Is energy healing the unlicensed practice of medicine

Whether energy healing can be considered the unlicensed practice of medicine depends on laws in a given state.

Each state has a similar definition of the "practice of medicine," but some states have relatively new statutes providing exemptions and exceptions for non-licensed healers. So one has to do some careful legal research.

Why is this a problem, given that so many healers want to apply 'new paradigm' thinking to medicine?

Essentially, we're looking at a 19th century regulatory paradigm into which many are trying to fit a 21st (or 22nd, or Atlatean or Lemurian, depending on your view) philosophy.

In any event, render unto Ceasar. Representing clients requires being mindful of those Ceasarian requirements, while balancing empowerment and good business decision-making.

Note that the issues get trickier when the practitioner is licensed -- such as a medical doctor (MD or DO) -- who wants to apply energy healing to their patients. Because one has to worry about the state medical board.

At any rate, here are results of a quick search of Arizona cases concerning unlicensed practice of medicine:

*1st case: The practitioner was a shoemaker by trade, did not have any formal medical education, and did not have a license to practice medicine. For two and one-half years he had been treating patients. He did not charge for his services, but did accept contributions. He used the money contributed by his "patients" to purchase medicines and medical supplies. The Secretary brought this action to enjoin his practice of medicine without a license. The practitioner contended that he was not practicing medicine because he did not accept compensation. The court held that compensation was a necessary element of the practice of medicine under Ariz. Code Ann. § 67-1102(a) (1952). However, the practitioner did receive compensation because he accepted the contributions of his "patients." The money they donated went into his coffers and was controlled exclusively by the practitioner. Therefore, the trial court did not err in refusing to admit testimony that the practitioner did not charge for his services.

Note: in many states, receiving compensation is not necessary for an unlicensed practice of medicine charge.

Case 2: The unlicensed physician was practicing medicine and surgery without a license in a city in Arizona. The attorney general filed a complaint, which sought an injunction to enjoin and restrain the unlicensed physician from the further practice of medicine and surgery without first having obtained a license. The trial court sustained the unlicensed physician's demurrer to the complaint and entered a judgment of dismissal. On appeal, the court reversed and held that: (1) the regulation of the practice of medicine and surgery by the State was a matter of public interest; (2) an injunction could issue to restrain acts that amounted to a public nuisance or affected the rights or privileges of the public or public health; (3) the practice of medicine and surgery without a license affected the public health; (4) the situation called for the equitable remedy of injunction and (5) the trial court was directed to issue a permanent injunction to prohibit the unlicensed physician from practicing medicine or surgery without a license.

Case 3: Defendant challenged his conviction for practicing medicine without a license, in violation of § 32-1401and § 32-1455. § 32-1401 defined the practice of medicine and 32-1455 made the unlicensed practice of medicine a felony. Defendant was licensed to sell vitamins and health food, but was not licensed to practice medicine. Defendant had diagnosed an individual as suffering from both cancer of the throat and chest and sold the individual minerals and vanishing cream to cure her throat cancer. The court affirmed, holding, among other things, that the statutes at issue provided a penalty for any single act constituting the unlicensed practice of medicine and that proof of continuous or habitual acts of treatment were not required to sustain a conviction. Further, expert testimony was not required to show that the acts of defendant constituted the practice of medicine. Also, the terminology contained in § 32-1401 was not unconstitutionally vague. Finally, the evidence clearly showed that defendant did not attempt to effect his cures exclusively by the practice of religion and the trial court properly refused to instruct the jury that the statute did not apply to religious treatment.

The 3rd case is especially interesting, because many clients ask whether religion can be a cover for energy healing. However, courts are quick to point out that when dealing with the needs of the body, we are usually in the realm of medicine and not religion. (Hey, they obviously have not read my book, "Healing at the Borderland of Medicine and Religion!") In any event, the defense threw in the kitchen sink, but none of the arguments succeeded.

The keywords in this case are: cancer, mineral, medicine, cure, diagnosis, practice of medicine, disease, license, food, doctor, supplied, religion, pills, urges, practicing medicine, surgery, assured, healing, tissue, expert testimony, vitamins, cream, medical assistance, common knowledge, statutes provide, person receiving, ordinary intelligence, instrumentalities, administered, terminology.

Here's the statute and one bottom line: "Ariz. Rev. Stat. § 32-1401(7), as amended, states that the "practice of medicine," which shall include the practice of medicine alone, the practice of surgery alone, or both, means the diagnosis, treatment or correction of, or the attempt to, or the holding of oneself out as being able to diagnose, treat or correct any and all human diseases, injuries, ailments or infirmities, whether physical or mental, organic or emotional, by any means, methods, devices or instrumentalities, except as the same may be among the acts or persons not affected by this chapter.Ariz. Rev. Stat. § 32-1455, as amended, makes the practice of medicine by one not licensed or exempt from the requirement therefor guilty of a felony.The provisions of § 32-1401 are in the disjunctive and the offense is therefore committed by a person who performs any one or more of the acts prescribed. Continuous or habitual acts of treatment are not essential in order to establish the unlicensed practice of medicine. A single isolated act may constitute the offense."

This case is a bit old, and the facts do suggest extreme behavior: "The defendant further stated that he could empty out any hospital of cancer patients within thirty days; that the 'number five mineral' together with cold cream could dry up and kill a cancer." But if you think of all the claims that practitioners and products make, this may not be so far from the sliding scale of practices our clients call about every day.

Again: "'Practice of Medicine,' which shall include the practice of medicine alone, the practice of surgery alone, or both, means the diagnosis, treatment or correction of, or the attempt to, or the holding of oneself out as being able to diagnose, treat or correct any and all human diseases, injuries, ailments or infirmities, whether physical or mental, organic or emotional, by any means, methods, devices or instrumentalities, except as the same may be among the acts or persons not affected by this chapter."

The defendant tried to get the judge to accept this definition of the word "diagnosis:" "You are instructed that diagnosis means the recognition of a disease from symptoms, made by a doctor or someone pretending to be a doctor, after examination, when the person receiving the examination is relying on the result and opinion of the person giving the examination."

The defendant also failed to get the judge to accept this jury instruction: "When a defendant has a license to sell minerals and vitamins from the State and City of Phoenix, and you find from the evidence that the defendant was acting within the confines of that license you shall find the defendant not guilty."

This court quoted a prior case in defining treatment very broadly, as "catering to the patronage of the sick who were asking relief from their ills, and, if she listened to their statements, assured them of her ability to help them, and supplied them with her alleged appropriate remedies giving instructions for their application or use."

For more more information on the way courts typically interpret these situations, take a look at Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives, or call Law Offices of Michael H. Cohen.