Herbalist Legal Protection

If you are an unlicensed practitioner trained in herbal medicine, is there any legal protection?

As always, the answer is mixed, and depends on the circumstances. But in general, here are some legal guidelines.

There is a difference between a licensed health care professional and an unlicensed (or non-licensed) practitioner. So if you are practicing herbal medicine as an herbalist, energy healer, hypnotist or hypnotherapist, or homeopath (or even naturopath) and not licensed, you are typically in a different legal category than the licensed practitioner (such as nurse, psychologist, social worker, physician (MD or DO), massage therapist, or chiropractor, for example) who happens to add on another modality such as herbal medicine or aromatherapy or whatever alternative and complementary medicine therapy may be chosen.

The nonlicensed practitioner has to face at least two different possible sources of liability: the risk of criminal prosecution for unlicensed practice of medicine, and the risk of civil liability for negligence (malpractice). The 'gorilla in the room' (so to speak -- actually I am sure some gorillas are quite friendly) is the unlicensed practice of medicine, because this carries a criminal charge, and makes for a difficult legal defense. (For more information, take a look at my article: A Fixed Star in Health Care Reform--the Emerging Paradigm of Holistic Healing; or, Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives). A simple informed consent form will not be a defense to the unlicensed practice of medicine charge.

The malpractice charge is another story. At first blush, malpractice is a little hard to think about, since there is no established standard of care for something like herbal medicine, homeopathy, naturopathy, hypnotherapy, or energy healing by a non-licensed practitioner; whereas there are established standards of care, for example, for use of a therapy such as medical hypnosis by physicians. And it is important also to note that there at least two different theories of health care malpractice: one, a deviation from the standard of care, with resulting patient injury; and two, a failure of informed consent. A robust informed consent process, documented by an informed consent form, only addresses the second theory of malpractice. So, then, how does a practitioner create some legal protection against a malpractice claim?

At the very least, consider having a well-drafted informed consent form, and have that form incorporate an assumption of risk clause especially if that doctrine is accepted in your state. Also, try to figure out what might be considered standard of care even in an emerging area; and recognize that this might be more useful in a state such as Minnesota which grants some legal leeway to designated practitioners even though they may lack some form of health care licensure.

Finally, understand the difference between legal concepts such as licensure, scope of practice, and credentialing, and malpractice liability and risk management. Having a credential for a CAM therapy from a school, or even from a national professional organization, does not necessarily provide protection against the risk of malpractice liability, or worse, perhaps, a claim of fraud. Also look to state and federal rules governing conflict of interest, and determine whether sellling herbal and other dietary supplements may create a risk of running afoul of these conflict of interest rules, or may trigger heightened liability (as happened in the New York case of Charell v. Gonzales, which involved a physician who had a financial interest in the supplements to which he referred his patient).

In conclusion, no form of legal protection is absolute, and there are no guarantees, but at the very least, understanding and separate the different source of risk and liability can be a first step toward implementing the limited protection that may be available. In addition, non-licensed practitioners should strongly consider achieving licensure in one of the recognized, licensed health care professions. But in so doing, they must also understand any scope of practice restrictions and be sure that the licensure allows them to do what they truly love and honor their healing gifts. Further, they will need to be on the lookout for malpractice laws applicable to that profession, current and emerging standards of care, and the state of regulatory board discipline for that profession within that state.