TABLE OF CONTENTS
Introduction v
1. Our Laws and Their Purposes 1
2. Legal Concepts About Health And Healing 15
3. Practice Options 23
4. How Thoughts, Words and Deeds Affect Legal Status 33
5. Consent, Disclaimer and Disclosure Statements 45
6. Records, Corporate Status and Insurance 51
7. Differences Between Licensing And Certification 57
8. The Case Against Medical Licensing 63
9. The Psychology of Licensing 77
10. What Are Your Rights? 81
11. The United States
Constitution 93
12. Our Bill of Rights 101
13. Our Forgotten Ninth
Amendment 107
14. If Legal Disputes Arise 115
15. The Fully Informed Jury 121
16. Forms 125
index 135
I
dedicate this book to my parents, Myron and Helen Wilson. It was they, more than anyone else, who
helped me to learn critical thinking by challenging many of my ideas throughout
childhood and as an adult as well.
To them I say, thank you so much for teaching me to think clearly and
logically.
I
also wish to thank all the great men and women who have fought to preserve the
principles of individual liberty in America and around the world.
INTRODUCTION
This
book was written to spare you, dear reader, the confusion that I experienced as
an unlicensed practitioner. I
earned a medical degree in 1979. I
left an internship early due to a health condition. As a result, I did not complete the requirements for licensure. For 27 years, I have elected to work as
an unlicensed nutrition and lifestyle consultant. Several legal skirmishes arose related to an unlicensed
status. I also watched many of my colleagues become embroiled in legal
conflicts related to their holistic healing practices. I realized that I was better off than
many of my licensed colleagues.
The lessons learned are presented here.
This
volume will assist anyone to understand the occupational licensing laws in
order to work within the American and European system of laws. The intent is also to clarify legal and
regulatory principles that served America well for over 120 years. These are the principles of free market
economics, as applied to health care and to many other fields as well. These principles are quite simple. Some day, hopefully, this material will
be taught in every high school.
Many
gifted individuals are offering exciting and effective methods of therapy in
the healing arts, psychology and other licensed professions. Occupational laws,
however, often hinder rather than encourage these much-needed innovations. In fact, the trend at this time is to
pass more laws for licensing professions.
Whether intended or not, their effect is to reduce innovation and to
protect often costly, outdated and toxic methods of treating mental and
physical ailments.
The
material in this book was originally compiled for natural healing
practitioners. However, most of
the principles and ideas it contains also apply to practitioners in education,
psychology, and other professions as well. Also, while this book was written for those who are
unlicensed, most of the material within it will benefit greatly the licensed
practitioners as well.
The
first half of the book contains common sense suggestions for safely conducting
a practice. These range from
words that should be avoided to simple safeguards such as disclosure,
disclaimer and consent forms. The
second half of the book delves into more detail about the occupational
licensing laws, constitutional and other rights, and the Ninth Amendment.
PREMISES OF THIS BOOK
The
premises of this book may seem a bit radical. The word radical means to go to the root cause. The Arizona State Constitution at
Article II, 2, states: "A frequent recourse to fundamental principles
is essential to the security of individual rights and the perpetuity of free
government." With that in mind, let us begin with
and never stray far from fundamental legal principles. Among these principles are:
1.The sovereignty of the individual,
rather than that of the government, is the basis for our legal system. This idea derives from the concept of natural rights. Natural rights are those that are
God-given and antedate mankind's entrance into any society. Today they are often referred to as
‘human rights’. No government
should infringe upon them.
The
concept of natural rights stems from the writings of English philosopher John
Locke, among others. He, along
with other European political philosophers, heavily influenced the founders of
the American nation. However, the
idea can be traced all the way back to the biblical concept of divine laws that
are to be held sacred above all man-made laws.
2. Natural rights apply to
individuals, rather than to groups. Among these
are the rights to life, liberty and the pursuit of happiness. Laws and governments exist to help each
individual achieve
his or her highest potential. This
is done by the government acting so as to protect each person’s natural and
other rights.
Today,
this principle has been turned inside out. Governments often dictate what is best, rather than
protecting the rights of all citizens to choose their own type of health care
and education, and to make other important decisions as well. Also, social and occupational groups
today often receive government protection at the expense of individuals. Among these are groups such as
physicians, attorneys, teachers and others.
3. The ability to do healing is a
gift from the Creator, and a way of loving others. It is an ancient and natural human vocation. Current laws do not acknowledge this fact. Instead, they place innumerable restrictions upon who can
heal or educate another, and how it may be done, even if no harm comes to
another.
We
suggest that this is the cause of the present health care and education
problems that America and most other nations are experiencing. By restricting who works, and what
methods they must use, many low-cost, safe and effective methods are denied the
opportunity to be tested and incorporated into our health care and educational
systems.
4. The legal structure of the
healing arts and the public education system are outdated and quite inadequate
for the task of healing and educating all of humanity on every level of human
functioning. The system of occupational licensing
laws gives control of health care, for example, to one group of
practitioners. This stifles
creativity, innovation and healthy competition. However, due to the great need for healing today, these laws
are at times not strictly enforced.
The author's experience is that in many cases, an unlicensed person can
practice many alternative therapies, provided your intent is pure and you
follow certain procedures.
KEYS TO SUCCESS
·
Always
maintain high ethical standards.
Accept complete responsibility for your situation and for your work.
·
Understand
the legal environment in which you live and where you work.
·
Understand
the belief systems or paradigms that operate in your field, especially those of
the authorities, in order to harmonize your work with their concepts.
·
Take
simple, reasonable precautions including the use of disclosure, disclaimer and
consent forms.
*************
Chapter 1. LAWS AND THEIR
PURPOSES
Just
as one lives in a physical environment, so too one lives in a 'legal
environment'. Just as it is helpful knowing about the physical environment, it
is most helpful to know the basic structure and history of the American legal
system.
Laws
are rules of action.
Good laws make for a peaceful, prosperous society. Poorly thought-out laws lead
to moral, economic and social decline. As human consciousness has changed, so
too have our laws evolved. However, basic legal principles such as the golden
rule do not change.
The
purpose of laws is to promote the unfoldment of the potential in each human
being. To do this,
laws should:
- protect the rights of
individuals.
- protect the innocent from the guilty.
- provide equal treatment for all.
These
qualities combined constitute justice and fairness. Often, however, laws are
used to stifle innovation and competition in the marketplace, redistribute
wealth, punish instead of making restitution and manipulate or control others.
The feeling of being out of control that everyone feels at times leads to the
passage of multitudes of laws in a futile effort to impose control from
outside. Whenever one considers passing a law, it is important to consider its
actual effects, even if its purpose seems noble and the effects are unintended.
Today
there is an attempt to create an entirely safe society. This has spawned an
explosion of regulations and licenses in every field. In health care, education
and other fields, many laws stifle innovation, protect outdated and often
harmful practices and protect the status quo. The actual effects of the laws
are opposite of their stated goal.
There
will never be an entirely safe society. Accidents will happen and innovation
requires trial and error. This book will suggest that the best regulatory
structure to protect people while allowing innovation is the free market. This
requires strong property rights, full rights to litigate for damages and a
minimum of government-imposed regulation.
HISTORY OF THE LAW
For
all of recorded history, in most nation-states power and authority flowed from
the gods to the leader, who then made the laws for his subjects. 'Might makes
right' was the rule. The ten commandments of the Hebrew bible represented a
great step forward, as these were not arbitrary rules, but were for everyone
and would be enforced by a power greater than any earthy leader.
Many
of our present legal principles can be traced back to admonitions found in the
Old Testament. An important lesson is given in 1 Samuel, verse 8. The Hebrews
were told not to worship an earthly king or other idols. This was the Second
Commandment. However, they insisted on having a king. Speaking through Samuel,
Jehovah warned that a king would tax them dearly, take young men to fight in
foreign wars and enslave women in his harem. The people insisted anyway and the
warnings proved correct.
Around
the world, the 'divine right of kings' was the doctrine under which monarchs
justified controlling the population. In England, landowners and nobles
gradually gained power. This culminated in documents such as the Magna Charta,
a precursor of our Bill of Rights. Still, the king retained ultimate power.
Christianity had a civilizing effect upon European law, but the church became a
new power center that controlled through fear and dogma.
THE FLOW OF POWER IN AMERICA
Fed
up with the tyranny of the king and the Church of England, the founders of
America returned to the biblical principle. There would be no king and no state
religion. Instead, the flow of power in America would be as follows:
* Ultimate authority or sovereignty flows from the Creator
directly to each citizen (not to groups, not to majorities and not to
bureaucrats).
* Citizens delegate (meaning assign or entrust) specific powers to the
states and federal government. This occurs by means of contracts called constitutions. These specify which powers are
entrusted to the government and which are retained by the people. Governments
may pass laws but they must conform to the contract or constitution.
* All powers not specifically delegated remain with the
people. (Remember
this one!)
This
was and is a radical doctrine. It remains a shining light in the world. For
millions around the world, it is only a dream. It has also been long forgotten
by many judges, lawyers, teachers, presidents and other public servants in
America.
For
the past 150 years or so, powerful forces have sought to reverse the flow of
power, making the states and the people mere subdivisions of the federal
government. This has caused much loss of individual liberty and social decay in
America. Liberty, privacy and the supremacy of the individual over the state
are absolute values. They cannot be bargained away or compromised without
impairing the entire fabric of society. This truth is rarely taught in school
and we are living with the results.
THE HIERARCHY OF LAWS
Based
on the above, there is a hierarchy of laws in America. This hierarchy becomes
very important as one explores practice options. The hierarchy is as follows:
I. Biblical principles are the moral and spiritual basis
for our laws.
II. The English Common
Law embodied the
biblical principles and was the unwritten legal tradition in Europe. America
adopted the Common Law of England at the time of the American revolution.
III. Constitutional law consists of the contracts between
the sovereign people of America and their federal, state and local governments.
IV. Statutes or public
laws are laws
passed by local, state and federal governments.
V. Implementing
regulations are rules
that accompany each public law in order to carry out the law.
VI. Case law consists of the interpretations of
the law made by judges and juries over the years. Important cases are called precedents.
Let
us consider each kind of law in more detail.
BIBLICAL PRINCIPLES
Biblical
principles include thou shalt not kill, steal, lie or bear false witness. These remain the basis for American
law. The bible traces the maturing of mankind from the slave state in Egypt to
a state in which one is totally responsible for one's acts and thoughts.
The
Ten Commandments are the basic requirements for taking responsibility. The
Hebrew word for commandment means a signpost, not a rule. The intent was that if
one follows the signposts, one will be led to a better life. Other biblical
laws include the 613 rules given in the books of Leviticus and Deuteronomy and
the golden rule in the New Testament.
COMMON LAW
Though
rarely discussed, the Common Law is quite important. English Common Law was the
major body of law in use at the time of the American Revolution. The IRS Code
contains a good definition the Common Law. Page 5041.1, Section 222.1 states:
"Common Law comprises the body of principles and rules
of action relating to government and the security of persons and property which
derive their authority solely from usages and customs or from judgments and
decrees of courts recognizing, affirming, and enforcing such usages and
customs."
The
Uniform Commercial Code or UCC is a single federal statute containing some of
the original common law pertaining to contracts. UCC 1-103.6 states that:
"The code (UCC) is complementary to the Common Law,
which remains in force, except where displaced by the code."
The
American Declaration of Independence and Constitution are Common Law documents.
They were written
within the framework of the Common Law, the system of law then in force in the
American colonies. To understand the intent of these documents (and your rights
to practice) requires understanding them within the context of the Common Law.
CONSTITUTIONAL LAW
A
constitution is the contract established between the sovereign People and their
creations, the state and federal governments. The word People is capitalized because
it denotes a group of empowered citizens rather than an amorphous mass of
humanity. A constitution enumerates which powers and responsibilities are
delegated to the government and which are retained by the People. The
constitutions also set forth the three branches of government and important
details about the operation of the government. The federal Constitution is a
relatively short and simple document that should be read and understood by
everyone. Chapters 11 and 12 discuss the federal Constitution and Bill of
Rights.
Constitutional
law consists of our state and federal constitutions including their amendments.
Commentaries such as the Federalist Papers offer more insight about the intent
of the federal Constitution. The first ten Amendments to the federal
Constitution are called the Bill of Rights. All state constitutions also have a bill of rights.
Many times the protections offered by the state constitutions are greater than
those of the federal Constitution.
STATUTES
The
state and federal constitutions permit local, state and federal legislatures to
pass public laws
or statutes. Statutes
must conform to the state and federal constitutions. If not, they can be struck down as
unconstitutional. Statutes have slowly replaced the common law in America.
However, all state constitutions acknowledge the common law as binding unless
superceded by statute. The U.S. Code or USC is a series of volumes of federal
public laws or federal statutes. Each state also has its code book or book of
laws.
Among
the statutes are the state medical practice acts. These govern the practice of the
healing arts and the issuance of licenses. An excerpt from the California
Business and Professions Code, "Unlawful practice of medicine
defined", reads as follows:
"Any person who practices, or attempts to practice, or
who advertises or holds himself or herself out as practicing, any system or
mode of treating the sick or afflicted in this state, or who diagnoses, treats,
operates for, or prescribes for any ailment, blemish, deformity, injury, or
other physical or mental condition of any person, without having at the time of
doing so a valid, unrevoked, or unsuspended certificate as provided in this
chapter, or without being authorized to perform such act pursuant to a certificate
obtained in accordance with some other provision of law, is guilty of a
misdemeanor."
One
may argue that medical practice acts violate the constitutional prohibition
against passing laws that abridge the right to contract freely (Article I,
section 10). However, courts upheld these laws under another doctrine called the
police powers of the state. This is defined as the power to:
"prescribe regulations to promote the health, peace,
morals, education, and good order of the people, and to legislate so as to
increase the industries of the State, develop its resources and add to its
wealth and prosperity." - from Barbier v. Connolly, 113 U.S. 27, 31
(1885).
The
extent to which the police powers may infringe upon constitutional rights to
contract freely and protect one's property is an open question. The trend has
favored giving up more and more rights and powers to the government.
There
is another perspective regarding the constitutionality of the medical practice
acts. Note that the acts begin with: "Any person who practices ..." A
'person', legally defined, includes corporations and partnerships. These
entities are creations of the state. Such creations have no constitutional
rights. If a medical practice act stated that "Any citizen who practices ...", it might
be declared unconstitutional. We will return to this topic in chapter 3.
IMPLEMENTING REGULATIONS
An
implementing regulation must accompany each statute in order for the law to have effect. For
example, a statute might establish a board of medical examiners. However,
legislators do not write all the rules and procedures to carry out the law.
They delegate this task to an agency or even to the board itself. Federal
implementing regulations are found in a series of volumes called the Code of
Federal Regulations, or CFR. Each state also has a book of state implementing
regulations.
At
times, a statute is fair but its implementation is not. Such corruption
occurred, for example, with the National Labeling and Education Act of 1990.
The intent of Congress was not to use the law to take nutritional supplements
off the market. However, the FDA interpreted and perverted the law, writing the
regulations in such a manner that they could remove products from the store
shelves at whim.
CASE LAW AND PRECEDENTS
Statutes
and implementing regulations are general in nature and cannot cover every case.
When judges and juries consider specific cases, they further refine the meaning
of the law. This is called case law.
Precedents are important cases decided by
judges or juries. For example, the law says an unlicensed practitioner may not
diagnose disease. When does an assessment, a guess or an evaluation become a
diagnosis? This issue must be decided by a judge or jury. All such specific
cases form case law. Lawyers look to case law to see how an issue was handled
in the past. Sometimes the intent of a law is just, but its interpretation by
the courts changes its meaning entirely.
JURISDICTION
The
next four sections introduce important legal doctrines that affect one’s practice.
The first is jurisdiction, a key to understanding our legal system and perhaps for
defending one’s actions. Jurisdiction of a court is its right or authority to
hear and try a case. Jurisdiction also means the sphere of authority or power
of a governing body. The issue of jurisdiction is the issue of whether or not a
particular law applies to you, to your location and to your kind of business.
Jurisdiction
may depend upon a geographical area, the subject matter or the person who is on
trial. A simple example of geographical jurisdiction is that a court in a
particular state has the authority to hear only cases that pertain to that
state. Some states view natural health care differently than others. One state
may be more lenient and therefore an easier place to work.
A
very important principle of jurisdiction is that in order to hear a case, a
court must have jurisdiction over both the person and the subject matter.
"If any tribunal (court) finds absence of proof of
jurisdiction over person and subject matter, the case must be dismissed."
- Louisville RR v. Motley, 211 US 149, 29 S Ct. 42.
Another
important aspect of jurisdiction is that once it has been challenged, it must
be proven. If it is not challenged, jurisdiction is assumed to exist. Many people
have lost their case in court because they challenged the subject matter of the case, when they should have
challenged the jurisdiction of the court to hear the case at all.
For
example, let us imagine one is charged with practicing medicine without a
license. Let us also say that one does not consider oneself a 'person' under
the law. The statutory laws are written for persons and the courts today are
for persons. One would need to defend oneself by challenging the jurisdiction
of the court. If one does not challenge jurisdiction, it is presumed that one
accepts the court’s jurisdiction and one can only argue the subject matter.
ENUMERATED POWERS
Enumerated
powers means that
governments may only exercise powers that are delegated to them by the People
in the constitutions. All other powers are reserved to the People or the
states. James Madison wrote in Federalist Paper #45:
"The powers delegated by the proposed Constitution to the federal
government are few and well-defined. Those which are to remain in the States
are numerous and indefinite."
The
Tenth Amendment to the federal Constitution states:
"The powers not delegated to the United States
(government) by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively or to the people."
An
example of violation of the principle of enumerated powers was the attempt in
1993 to institute socialized medicine in the United States. The merits of it
are one matter. The federal government, however, is nowhere empowered to take
over the health care industry. A constitutional amendment is required to
nationalize an entire industry.
Often
laws are passed without the constitutional authority to do so. This abuse is
widespread. The FDA often writes rules for herbs, vitamins, foods and other
products, although they are not a legislative body. They have no constitutional
authority to write laws. They also enforce their own laws, often with
gun-toting SWAT teams, although they are not a court of law and they have no
power to judge the law. Over 100 federal agencies do the same thing. This
brings us to another important American legal principle.
SEPARATION OF POWERS
Another
radical American legal doctrine is the separation of powers. In 18th century England, the king
or queen passed the
laws, executed or carried out the laws and judged who broke the laws. This gave the monarch absolute
power. Every dictatorship combines these three powers. To establish and
preserve the liberty of the people, the founders of America decided to separate
these powers. They asserted that no one person or group of persons would have
the power to pass, execute and judge the laws. They divided these functions as
follows:
1. To pass laws there would
be a legislative
branch (local councils, state legislatures and houses of Congress).
2. To carry out the laws,
there would be an executive branch (mayor, state governor, the president, vice
president and cabinet).
3. To judge guilt or
innocence, there would be a judicial branch (the courts, judges and juries). Juries of one's
peers were to be the ultimate judges of guilt or innocence and to judge the validity of laws.
SEPARATION OF FUNCTIONS
The
fourth legal concept is the idea that certain government functions are best
handled by the federal government, while others are best handled at the state
level, and others at a local level. The distribution of government functions is
a very important subject if we are to retain out liberties.
Declaring
war, foreign trade, making treaties and printing money are federal government
functions. Education and roads are traditionally state functions. Police and
fire protection are generally considered local functions. In the 20th century,
the federal government has assumed more and more of the functions of state and
local governments. Some say this is the only way to assure a minimum standard
for all Americans.
This
is true in some cases. The problems, however, are micromanagement, unfunded
mandates and big brother tactics that deprive individuals and localities of
their rights and powers. Any time another takes responsibility for our welfare,
control and power are also taken away. Also, no constitutional authority exists
for many of these functions. One might answer that times have changed and the
old principles no longer apply. Perhaps and perhaps not. The problems in health
care today, for example, have resulted in large part from violation of this
important legal principle.
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