CAMLAW: Complementary and Alternative Medicine Law Blog

Healing at the Borderland of Medicine and Religion

How does the law regulate spiritual and energy healing? Does it regard these practices as "health care" and "medicine" or "religion?" How does the law handle the kinds of potential abuse of power in the relationship between spiritual healer and client? What remedies are available, and what about legal rules governing fraud? How does this compare to the way the law handles misconduct in relationships between provider and patient generally?

Although historically, the phenomenon of spiritual healing emerged as a religious practice within the context of specific religious traditions and has traditionally been ascribed only to mystics, saints, and holy persons, in modern times, a variety of spiritual healing practices unconnected with traditional religion have entered mainstream professional health care. These practices are used in a variety of health care professions, from medicine to nursing, dentistry, and other allied health professions.

For example, some physicians either collaborate with (or refer to) spiritual healers or use "'healing energy' through touch" without naming a particular style, school, or technique, and a spiritual healing modality known as Therapeutic Touch is part of the curriculum in many nursing schools. Use of caring or healing touch is increasingly described as potentially useful in various health care settings, from acute care, to surgery, to obstetrical nursing practice; and Reiki, a Japanese form of energy healing, has even been used in efforts to help survivors recover from torture.
Additionally, spiritual healing services are offered by practitioners of "complementary and alternative" medical (CAM) therapies, such as chiropractic, acupuncture, and massage therapy. For example, some practitioners of acupuncture and traditional oriental medicine will practice qigong, a Chinese system of spiritual healing. Similarly, intuitive use of touch is a central component of chiropractic, and is central to many forms of massage therapy. Overall, at least 50,000 health professionals provide about 120 million sessions of spiritual healing to patients annually.

The prevalence of spiritual healing in the provision of health care services receives extensive attention in the Chantilly Report, a 1992 quasi-governmental report to the National Institutes of Health entitled, "Alternative Medicine: Expanding Medical Horizons." The report describes spiritual healing as a collection of different practices centering around spirituality and notions of healing that are used with increasing frequency as part of professional health care, not only in the provision of CAM services, but also within medicine, nursing, and the allied health professions. The report does not offer definitive guidance on ways to sort out differences, if any, between spiritual healing, faith healing, laying on of hands, prayer, intentionality, and related practices, but it does highlight the increasing use of these practices in a variety of health care settings.

The practice of spiritual healing in a secular context, within the provision of clinical care, suggests the possibility of regulating spiritual healing as the professional delivery of a health care service. The attached article argues that those who purport to utilize spiritual healing in clinical care within a secular (and frequently medical) context should be--and in fact, are--subject to an array of regulatory controls similar to those imposed on other health care professionals. The article: (1) broadly explores how legal rules regulate spiritual healing as a health care (rather than exclusively religious) practice in the U.S.; (2) conceptualizes the kinds of potential abuse of power in the relationship between spiritual healer and client; and (3) evaluates the extent to which legal rules address--or fail to address--such potential abuse of power in spiritual healing as a professional health care practice.

Cohen MH. Healing at the borderland of medicine and religion: regulating potential abuse of authority by spiritual healers. 18:2 J Law & Relig 2004;373-426. (Below is a prepublication version of the article, the full text with references which will be available on the website of the Journal of Law & Religion.)

HEALING AT THE BORDERLAND OF MEDICINE AND RELIGION:
REGULATING POTENTIAL ABUSE OF AUTHORITY BY SPIRITUAL HEALERS
Michael H. Cohen†
INTRODUCTION
Although historically, the phenomenon of spiritual healing emerged as a religious practice within the context of specific religious traditions and has traditionally been ascribed only to mystics, saints, and holy persons, in modern times, a variety of spiritual healing practices unconnected with traditional religion have entered mainstream professional health care. These practices are used in a variety of health care professions, from medicine to nursing, dentistry, and other allied health professions.
For example, some physicians either collaborate with (or refer to) spiritual healers or use "'healing energy' through touch" without naming a particular style, school, or technique, and a spiritual healing modality known as Therapeutic Touch is part of the curriculum in many nursing schools. Use of caring or healing touch is increasingly described as potentially useful in various health care settings, from acute care, to surgery, to obstetrical nursing practice; and Reiki, a Japanese form of energy healing, has even been used in efforts to help survivors recover from torture.
Additionally, spiritual healing services are offered by practitioners of "complementary and alternative" medical (CAM) therapies, such as chiropractic, acupuncture, and massage therapy. For example, some practitioners of acupuncture and traditional oriental medicine will practice qigong, a Chinese system of spiritual healing. Similarly, intuitive use of touch is a central component of chiropractic, and is central to many forms of massage therapy. Overall, at least 50,000 health professionals provide about 120 million sessions of spiritual healing to patients annually.
The prevalence of spiritual healing in the provision of health care services receives extensive attention in the Chantilly Report, a 1992 quasi-governmental report to the National Institutes of Health entitled, "Alternative Medicine: Expanding Medical Horizons." The report describes spiritual healing as a collection of different practices centering around spirituality and notions of healing that are used with increasing frequency as part of professional health care, not only in the provision of CAM services, but also within medicine, nursing, and the allied health professions. The report does not offer definitive guidance on ways to sort out differences, if any, between spiritual healing, faith healing, laying on of hands, prayer, intentionality, and related practices, but it does highlight the increasing use of these practices in a variety of health care settings.
The practice of spiritual healing in a secular context, within the provision of clinical care, suggests the possibility of regulating spiritual healing as the professional delivery of a health care service. This article argues that those who purport to utilize spiritual healing in clinical care within a secular (and frequently medical) context should be--and in fact, are--subject to an array of regulatory controls similar to those imposed on other health care professionals. The article: (1) broadly explores how legal rules regulate spiritual healing as a health care (rather than exclusively religious) practice in the U.S.; (2) conceptualizes the kinds of potential abuse of power in the relationship between spiritual healer and client; and (3) evaluates the extent to which legal rules address--or fail to address--such potential abuse of power in spiritual healing as a professional health care practice.
Part 1 provides some preliminary working definitions of spiritual healing and attempts to differentiate spiritual healing in a secular context (i.e., as a professional, health care service) from religious healing, which is given a working definition in this article as healing in an exclusively religious context. Part 2 examines whether the potential for abuse of spiritual healing in the clinical setting ought to be regulated. Part 2 reviews constitutional and policy arguments both for and against the possibility of government intervention into a domain of healing still considered by many--correctly or otherwise--to be "religious" or at the least (in light of the distinctions drawn), "spiritual," and thereby still beyond the purview and authority of public policy and legal constraint.
Part 3 conceptualizes potential forms of abuse between practitioner and client of spiritual healing. Such conceptualization is necessary to determine whether and how legal rules can address issues of abuse. Part 4 reviews the regulatory framework governing use of professional healing practices generally, and the potential application of these rules to issues of abuse of spiritual healing.
The article concludes that these rules not only provide a workable--albeit preliminary--framework for regulating spiritual healing in the context of professional health care practice, but also usefully identify categories of abuse of authority. Further, the article concludes that by formalizing such categories and applying corresponding sanctions, existing legal rules target specified variations on the theme of abuse of authority, and thereby help deter violations of trust within the therapeutic relationship.
I. SPIRITUAL HEALING IN HEALTH CARE PRACTICES
A. Differentiating "Spiritual" from "Religious" Healing
The phenomenon of religious healing, and the accompanying use of healing rituals in religious contexts, has been extensively studied by various scholars. Indeed, most practitioners of mainline, Western religions would be familiar with Biblical examples of religious healing. For instance, the ancient Israelite priests (or cohanim) blessed the people with healing--the blessing, in its Biblically recorded form, is still used in synagogues today--and when Moses wished to invest the elders with his power to rule the Israelites, he did so by laying hands on their heads, and transmitting to them the ruach ha-kodesh, sometimes translated as "holy wind" or "Holy Spirit."
Similarly, in Christian tradition, Jesus reportedly transmitted healing energy, among other things, through his touch, and exhorted his disciples to heal the sick. There is a vast tradition of Catholic saints who have had and used associated healing powers. Religious healing practices have had both physical and spiritual dimensions, aiming to restore both health of the body and wholeness of the spirit in terms of its unity with God.
While there are numerous scholarly definitions of "religion" and the "religious," some helpful definitions include these: "practices carried out by those who profess a faith"; "subscribing to a set of beliefs or doctrines that are institutionalized"; and "the outward practice of a spiritual system of beliefs, values, codes of conduct and rituals." And although religious healing continues today--both in mainline, Western religions and elsewhere--the term "spirituality" has entered the general vocabulary to denote persons who are "religious," in the sense of having an affinity for religious ritual and practices (including healing practices)--or at the least, for practices involving calming and clarity of mind and emotions--but not necessarily wishing to be bound to the particular faiths or dogmas of established religious traditions. Increasingly, individuals have wished to identify themselves as "spiritual" rather than as "religious."
Various definitions have been proposed for the broad concept of spirituality. These include: "searching for existential meaning"; "a quality beyond religious affiliation that is used to inspire or harmonize answers to questions regarding infinite subjects"; closer to "the source dimension [that the] everyday [awareness often] . . . has moved far from . . ."; a "quality that goes beyond religious affiliation, that strives for inspirations, reverence, awe and purpose . . . tries to be in harmony with the universe, strives for answers about the infinite, and comes into focus when the person faces emotional stress, physical illness or death"; and "a belief system focusing on intangible elements that impart vitality and meaning to life events."
Although there are numerous, additional attempts to sort out "religion" and "spirituality," and to draw clear differences between the two, one way to conceptualize a distinction is as follows:
[P]eople can be spiritual without being religious--and religious without being spiritual. Religion is a belief system organized around a prophet, teacher, or set of human precepts. Spirituality is the ability to discover and use our own unique specialness . . . .
* * * * * * *
[S]pirituality is the process of becoming a positive and creative person.
In other words, spirituality is not necessarily organized around a specific teacher or set of teachings; and spirituality may be, but is not necessarily, identified with religion.
In a similar vein, a group of scholars of bioethics, attempting to define the physician's role in paying attention to patients' religious and spiritual beliefs within the practice of medicine has articulated a distinction as follows:
The term "spirituality" tends to be used as a broader term to refer to that which brings significance, purpose, and direction to people's lives. The person who has spiritual beliefs and interests searches for (usually nonphysical) sources of meaning, life, wholeness, healing, and hope. The various forms of spirituality may be fluid and individual, taking no classical religious form, or they may be crystallized in the beliefs and practices of a specific religious community . . . . The term "religion" . . . tends to be associated with beliefs, practices, and ethical teachings of specific religious bodies and traditions.
In light of these various, proposed definitions, spiritual healing, as opposed to religious healing, draws on the healing power of connectedness to the sacred, without necessarily deriving its authority (or persuasive power to its practitioners and recipients) from the tenets or dogmas of any one specific religious tradition.
Spiritual healing increasingly is prevalent in the delivery of health care services. Spiritual healing services can be offered in a variety of hospital settings, in addition to the intensive care unit, such as in clinics specifically dedicated to "integrative health care"--to care that integrates biomedical and CAM therapies and providers. Such services also can be provided as part of rituals intended to help patients heal. Indeed, research into links between spiritual practices and health is increasing, as are educational courses in medical schools on the topics of religion, spirituality, and medicine.
In a larger sense, the focus on spiritual care reflects not only increasing interest among health care providers, patients, and others in spirituality (as thus defined), but also a broader cultural phenomenon connected to what Mircea Eliade has denoted, "creative encounter . . . with archaic--as a matter of fact, prehistoric--spiritual values." This is far more than a series of "encounters with oriental spiritualities" --of meetings between Western science and Eastern religion--as is frequently presupposed. Rather, the encounter with shamanism, the religious expression of prehistoric humanity, has parallels in theatre, literature, poetry, and music, as well as health care. It represents a delving into initiatory ordeals to forge a more "structured, stronger personality" that integrates the physical and spiritual worlds.
The increasing prevalence of spiritual healing in health care environments suggests a quiet yet profound cultural revolution, in which the instrument and vessel of divine grace has shifted--at least for many health care providers and their patients--from the exclusive domain of the saint or sage to the province of the ordinary individual. The spiritual gift of offering healing is understood as accessible to many or most persons, and the skills of spiritual healing as open to anyone who is willing to undergo the requisite training; in short, the gift of healing is no longer seen as emanating entirely from divine dispensation and thereby falling into a particularized religious tradition.
B. Spiritual Healing: Secular or "Religious"
Cultural phenomena aside, from a scientific perspective, at present one could argue that there is little consensus evidence concerning safety, efficacy, or mechanism of therapies in the clinical domain associated with spiritual healing. Further, the evidence validating any claims by spiritual healers concerning the effects of their practices on health or the physical body presently ranges from dubious to mixed, or at best, promising.
As such, members of the scientific community could argue that these spiritual healing practices should be viewed as "religious" in the sense that they have not received complete validation through scientific study, and therefore inevitably must draw on belief and subjectivity. Therapies that do not have satisfactory, objective, scientific proof, the argument goes, must rely on subjective belief, and hence fall into the realm of faith or religion. The above argument adds to earlier definitions of religion, by opposing religious to scientific truth: to the extent that "religion" involves a set of "practices carried out by those who profess a faith," then the absence of sufficient, reliable scientific data, coupled with the necessity of belief in the modality and its theoretical underpinnings, would suggest that spiritual healing remains in the domain of "religion" and not "medicine."
While the argument has merit, there are several compelling arguments for treating these practices as secular--i.e., as capable of operating, and thereby of deserving regulation, outside an exclusively religious framework. First, these practices are offered by health care practitioners of many, divergent religious faiths--unlike, for example, prayer "treatments" by Christian Scientists, all of whom operate from a common set of enumerated beliefs about God. Similarly, practitioners of spiritual healing in the clinical domain may apply different training and styles of spiritual healing, without necessarily ascribing the potency of these methods to a particular form of worship or particular conception of God. They may not necessarily share among themselves the kind of distinguishing marks of religion, such as a commonly held, "sincere and meaningful belief which occupies . . . in the life of its possessor a place parallel to that filled by the orthodox belief in God [of religious traditions]," (one proposed definition for "religion" from the U.S. Supreme Court).
Second, unlike the case of religious healing--in which most explanatory models entirely derive from commonly agreed, theological constructs--attempts have been made to offer scientific explanations for some of the phenomena reported by practitioners and their clients. Such explanations do not rely on faith or belief, any more than scientific hypotheses in general can be said to be faith-based. For example, some scientists have postulated the existence of a unifying, biologically based field of information that can be accessed by practitioners of spiritual healing; while others have looked to electromagnetic explanations and still others to new theories of physics. Irrespective of the apparent success of--and controversy surrounding--such explanatory attempts, they suggest that practitioners and clients can have experiences of these practices without subscribing to a defined religious dogma or creed.
Third, many of the steps in these practices are described in such a generic way that the practitioner who does choose to incorporate a religious practice is free to draw on multiple religious traditions for inspiration. For example, Therapeutic Touch describes several basic steps in the process of healing through spiritual energy. These include centering, focusing on intent, scanning (or assessing the human energy field), directing healing energy to benefit a client, and facilitating release. In the first step of Therapeutic Touch, centering, the practitioner can use his or her preferred meditative practice to attain a quiet, calm, centered space within; no particular religion or religious practice is specified.
Similarly, in describing the preparation for a technique known as "pranic healing," the founder of this modality, Choa Kok Sui, describes the most important practice as exerting intentionality. Use of this concept does not depend on religious dogma or faith. Although Kok Sui recommends that practitioners who are religious do incorporate meditation, prayer, and an invocation in their use of pranic healing, his advice to the healer who relies on religion, is: "Pray for a few minutes any religious prayer you are used to." Thus, although Kok Sui advocates use of prayer by "the religious," he does not recommend use of any specific prayer or prayer within any specific religious tradition. For Kok Sui, there is no wrong choice and no penalty for invoking the wrong deity or turning to the wrong religion. Simply put, the optional "religious" practice is described sufficiently generically that the practitioner can draw on almost any religion; one could say that Kok Sui is not so much an advocate of religious pluralism, as an advocate of spirituality by the religious. In like fashion, practitioners of Reiki permit drawing on any, all, or no religious traditions for inspiration and centering.
The fourth reason to view spiritual healing practices that are offered in the clinical domain by non-clerical personnel as falling outside an exclusively religious paradigm, has to do with the blurring of the boundaries between religion and therapy. That is, it becomes increasingly difficult to distinguish between religious healing practices centered on affirmations of faith, and practices aimed at therapeutic benefit irrespective of whether the patient or provider subscribes to a particular set of beliefs. For example, some evidence has accumulated that suggests a correlation between religious practices and physical health. It has been suggested that even the attitude of the practitioner toward the patient can impact healing; or in conventional terms, it is recognized that the patient's attitude toward the therapy--the so-called "placebo effect"--can have therapeutic benefit.
In light of this work, many have begun advocating a role for the physician in helping the patient access his or her own source of religious practices for potential physical, as well as emotional and spiritual, dimensions of healing. The profession of psychotherapy also has witnessed a call for integrating spiritual healing approaches and techniques; given these developments, distinctions between "psychotherapeutic" and "spiritual" interventions might be difficult to make, or might depend, not on who is providing the intervention, but on how that intervention is framed. Such developments arguably blur the lines between "religious" and "therapeutic" use of prayer, as well as between "religion" and medical use of access to religious practices.
But even more directly, as suggested, attempts have been made to secularize both the learning process for, and practice of, spiritual healing in various health care professions--particularly, in nursing. And like the distillation of various religious traditions of laying-on-of-hands into a reproducible technique that can be taught in the nursing school curriculum (as in Therapeutic Touch), many analogous "religious" practices have been adapted and adopted to yield therapeutic benefit in other secular settings. For example, self-directed "mindfulness meditation"--an attempt to calm the mind and focus on the breath in the present moment--has emerged from Buddhist meditation practices and ripened into a secular practice of potential therapeutic benefit, not only for patients in psychotherapy (as well as medicine), but also in professional relationships such as attorneys and clients in alternative dispute resolution.
Similarly, Transcendental Meditation (TM) has attracted practitioners who are not bound to religious teachings from the East but rather desire techniques to calm and still the mind. Indeed, meditation, the "central plank of ancient spiritual disciplines," historically nestled within specific cultural contexts and codes, has been, in many contexts, secularized --and in some cases, reduced to a physiological "relaxation response." In similar fashion, the National Center for Complementary and Alternative Medicine (NCCAM) at the National Institutes of Health gave eight million dollars to fund a research center at the Maharishi University of Management in Fairfield, Iowa, to pursue research involving the health benefits of TM and other techniques. At some point, the boundary between "religious" practices and mental health techniques also becomes blurred. It may also be that, as scientific understanding increases, the tendency to dichotomize science and the religious--particularly as regards CAM therapies--also changes.
In short, spiritual healing need not necessarily be equated with religion and the religious, but can also be viewed as practiced by persons without a specific religious predisposition. Because of the varieties of understanding just described, for purposes of analyzing regulation of healing, this article offers a preliminary working definition of "religious healing" as healing in an exclusively religious context, and uses "spiritual healing" to denote a wider domain, including religious healing, as well as practices that can be offered in a secular context, such as the use of Reiki or Therapeutic Touch as a nursing service within a hospital.
C. Energy Healing as a "Frontier" Health Care Practice
In addition to this distinction between exclusively religious healing and a broader concept of spiritual healing, a further definitional wrinkle is worth noting. In many quarters, the term "energy healing" has come to denote spiritual healing in a secular (health care) context typically by providers other than religious personnel (i.e., other than clergy). "Energy healing" is frequently the language of choice by practitioners (and patients) of therapies such as Reiki, Therapeutic Touch, Polarity Therapy, and other forms of spiritual healing in the context of professional health care services.
"Energy healing," however, also is often used (by some) interchangeably with "spiritual healing," thus confusing the terminology as well as the conceptualization of what energy healing purports to be, how it purports to work, and in what ways its application within a mainstream health care setting partakes of (or fails to partake of) practices classically considered "religious." Further, the fact that a member of the clergy--as opposed to, say, a nurse--offers a patient Therapeutic Touch does not transmogrify the practice into the category of "religion"; and similarly, the fact that a nurse prays with a patient does not transmogrify prayer into energy healing. It may be impossible to sort out the definitional confusion at present, since this would require a much deeper understanding of the scientific mechanism, if any, of the various practices; and a resolution of larger, perhaps multidisciplinary issues, such as the relationship between meditation, prayer, and the theoretical transmission of mental energy or consciousness for the purposes of healing.
For the moment, one current conceptualization that may help clarify these issues describes energy healing as "a set of therapies based on the projection of spiritual or mental energy through intentionality and consciousness." In this definition, the term "intentionality" refers to mental processes and is free from connotations of attachment to a specific religion. And, as noted, the "projection of spiritual or mental energy through intentionality or consciousness" may be performed by physicians and allied health professionals, and as well by CAM providers such as acupuncturists and massage therapists, irrespective of religious affiliation of training. Again, theoretically, an atheist, an agnostic, a person of indeterminate religious affiliation, and a person with multiple religious proclivities could offer such practices.
Unlike fields of CAM therapies such as chiropractic and acupuncture--and to a lesser extent, massage therapy --there are no uniform standards for education, training, and practice of energy healing. Energy healing presently lacks a strong, unifying, national body that can translate theory and practice into a health care profession capable of attaining candidacy for licensure in any given state. Therefore, energy healing largely remains a covert element of many professions, and it lacks the support of an independent licensing mechanism for its practitioners.
Furthermore, the training offered to professionals to practice energy healing is not uniform but differs, depending on the school offering the training and its particular philosophy of education. Thus, an individual provider's training may differ, depending on the practitioner's appetite for immersion in learning theory, techniques, and practice. For example, practitioners can receive certificates in weekend courses or can choose to take much longer programs, such as four-year programs that attempt to integrate energy healing into other professional health care practices. Further, the numerous schools offering energy healing certificates may include a variety of related items within their coursework, including related activities such as spiritual development, "meditation and shamanic journeywork," hypnotherapy certification, and modalities such as Reiki. As with other CAM professions, counseling the patient appears to be an integral part of many energy healing practices.
Although the experience of energy healing can be individualized, there appear to be common elements, at least as described by patient recipients of energy healing. These can include sensations of warmth, tingling, and caring. For instance, the Chantilly Report describes the experience of energy healing as follows:
[It is] a process during which the practitioner places his or her hands either directly on or very near the physical body of the person being treated . . . [and] engages the perceived biofield from his or her hands with the recipient's perceived biofield either to promote general health or to treat a specific dysfunction.
Rather than turning to established religions for explanations of healing, practitioners frequently describe the process in terms of the "biofield" or "human energy field" (or "aura"). Such a human energy field is described as surrounding and interpenetrating the human body, and as having multiple layers that express different dimensions of human consciousness. Similarly, rather than turning to concepts within religious traditions, such as "prayer," "meditation," or "grace," practitioners frequently refer to more neutral, secular explanations such as, in Therapeutic Touch, the notion of "centering," which can involve prayer or meditation but more fundamentally, simply involves "being at a quiet place within ourselves from which we can focus completely on the person before us." Likewise, Therapeutic Touch uses the concept of "assessment" to detect imbalances of energies; assessment involves scanning the "energy field" with the hands and locating imbalances of spiritual energy by sensing "tingling, pressure, shock, pulsation, heat, or coolness." Modalities such as Therapeutic Touch do not necessarily rely on the notion of "prayer" or of "laying on of hands" in the sense of appealing to God to perform the healing, but rather emphasize a transfer of spiritual energy from (or perhaps, through) practitioner to client. Indeed, the use of such conceptualizations by practitioners of energy healing--resting, as these explanations often do, outside identifiable religious contexts--can offend religious personnel and believers, and in this sense, are even deemed anti-religious.
Ironically, there is not yet a scientific consensus for, or validation of, the "spiritual" form of the energy that is presupposed to be transmitted in "energy" healing practices, although NCCAM is sponsoring research projects in this arena of "frontier science," in an attempt to find mechanistic scientific explanations for, and sound methodological approaches to study, observed phenomena. In its own way, attempting to bridge beliefs about healing and science, NCCAM has defined the field as follows:
Frontier Medicine can be defined, for purposes of this initiative, as those CAM practices for which there is no plausible biomedical explanation. Examples include bioelectromagnetic therapy, biofield/energy healing, homeopathy and therapeutic prayer/spiritual healing. Despite the fact that these therapies are used extensively by the U.S. public, there are very little high-quality data available to elucidate or demonstrate the safety, efficacy, effectiveness and/or mechanisms underlying these approaches.
Notably, the NCCAM definition is for research and not legal purposes, and therefore lumps prayer together with energy healing. The Request for Proposals, however, proposes a more secular purpose for funding. It notes that the
Exploratory Program Grants will serve to develop the fields in ways that will increase the likelihood that efficacious therapeutic paradigms will emerge from the existing Frontier Medicine approaches, and thus increase the probability that some of these will become integrated with and will make a contribution to interdisciplinary healthcare.
While scientific consensus around mechanistic explanations is lacking, use of the word "energy" in NCCAM and the research literature does not specifically refer to mechanical notions of energy in physics. Rather, the term "energy" probably has "a broader interpretation in spiritual healing and is likened to organizing principles of vitalism and life force which bring about a harmonizing of the whole person." In other words, "energy" suggests "dynamic forces that are channelled or set in motion by the healer, or the patient," to create a transcendent wholeness.
The articulation of energy healing has a secondary import: it also helps describe a subset of CAM therapies, linked by this notion of a unifying, healing spiritual energy: the notion of yin and yang in traditional oriental medicine; the idea of the "innate" in chiropractic; the "spiritual vital essence" (vital force) in homeopathy; and the "prana" in Ayurvedic medicine, all reflect the unifying notion of vital energy embedded in consciousness. Thus, while the term "energy healing" refers in a specific sense to therapies aimed, via physical touch or thought, at transmission of intentionality or consciousness to heal, the term captures, in a broader sense, the common, vitalistic worldview underlying many CAM therapies.
In this sense, many CAM therapies share common ground in that they involve spiritual notions of healing that may or may not immediately and directly affect physical health, and thus, in themselves help bridge the present, cultural and ideological chasm between medicine and religion. Perhaps for this reason, their introduction into medical care has been highly controversial, and has raised issues of power, authority, and legitimacy with respect to who decides what therapies are valid for patient care.
II. REGULATORY INTERVENTION INTO SPIRITUAL HEALING
A. The Constitutional Side (Spiritual Healing and Constitutional Values)
As suggested, spiritual practices involving healing--on physical and emotional, as well as spiritual levels--are central to a variety of religious traditions. Increasingly, such practices are becoming part of worship services, whether in synagogues and temples, churches, mosques, or other venues for spiritual expression. Religious pluralism and freedom of religious expression are core values in American society and guarantees of religious pluralism and expression are embedded in the First Amendment to the U.S. Constitution. Yet, while the First Amendment protects religious expression, the Tenth Amendment to the Constitution reserves to the states the power to protect citizens' health, safety, and welfare, and thereby to regulate professional health care practices. Under this reserved "police" power, states decide who may practice and who may be excluded from practice of the healing arts.
This power to regulate professional health care practices includes not only medicine and the allied health professions (for example, nursing, dentistry, physical therapy, optometry), but also health care practices historically outside of biomedicine--such as CAM therapies. But CAM therapies are defined to include chiropractic, massage therapy, herbal medicine, acupuncture, and spiritual healing practices, ranging from meditation and prayer to yoga and guided imagery. In other words, irrespective of constitutional protection for "religion," or even for privacy and due process of law, CAM practices are subject to health care regulation; and practices that cross the boundary into "medicine," even if they have religious aspects or infringe on a person's sense of what is best for his or her body, may constitutionally be regulated.
The constitutional collision between individual freedom and the states' rights to regulate pursuant to the Tenth Amendment has received little scholarly attention, largely because in most instances, states' rights have trumped. For example, in a landmark 1905 case, Jacobson v. Massachusetts, the U.S. Supreme Court upheld the state's right to order compulsory vaccination for public schoolchildren, and rejected the argument that vaccination violated the individual's "inherent right of every freeman to care for his own body and health in such way as to him seems best." The court observed that "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members." In Jacobson, the state's obligation to protect its citizens against public health risks was--and since, typically has been--deemed superior to the individual's claim to a right to make autonomous health care choices for his or her own body.
Subsequent cases have reaffirmed the principle. Courts have found that the police power outweighed not only the individual's privacy and liberty interests but also the practitioner's free speech interests in professional health care practice. Interpreting the practice of "medicine" broadly--as any activity that could be construed as "diagnosis" or "treatment" of human affliction (see infra)--courts have upheld a variety of cases against spiritual healers for practicing "medicine" without a license. For example, in Smith v. People, defendant practiced hands-on healing from his living room and claimed that he merely used his hands to deliver a "gift from the Almighty"; yet, because he purported to cure diseases by laying on hands, his conviction for practicing medicine unlawfully was upheld. Similarly, while courts have found constitutional protection for medical choices such as contraception, abortion, and the right to be disconnected from artificial life support, most courts have refused to recognize a constitutional, privacy-based right to obtain the treatment of one's choice (for example, acupuncture) against the objections of a state regulatory body (such as a medical licensing board).
Whether or not such decisions are correct as matters of constitutional interpretation, they do suggest an underlying hierarchy of values when it comes to clashes between the personal choices involving the conflux of "religion" and "medicine." Religious practices involving health are frequently swept into the conceptual category of medicine and its regulation. In this way, the legal system checks individual healing choices, and challenges healing impulses in both medical, as well as religious, personnel that represent potential incursions on state determinations of the legally accepted boundaries of healing. Concomitantly, the medical profession itself has adopted an arguably hegemonic definition of its own scope of practice, that sweeps spiritual healing choices under medicine's rubric.
Ironically, while the broad, statutory definition of the practice of "medicine"--and its interpretation by courts--appears to include practices intended as religious, the medical profession seems to exclude, rather than embrace, religious healing practices in its diagnostic and therapeutic offerings. As one scholar puts it:
The [scientific basis of modern medicine] often ignores the spiritual factors associated with health. Health invariably becomes defined in anatomical or physiological, psychological or social terms. Rarely do we find diagnoses which include the relationship between the patient and their God.
And yet, if a nonphysician were to make such a diagnosis--connecting the patient's health to the relationship between the patient and his or her deity, or between the patient and the cosmos, the nonphysician clinician could, conceivably, be construed as practicing "medicine" unlawfully.
This legal opposition between medical healing and spiritual healing sets up a contradiction between the legal definition of practice and the intended practice of some medical professionals. In fact, it could be argued that the actual practice of medicine should--and does--include spirituality:
Patience, grace, prayer, meditation, hope, forgiveness and fellowship are as important in many of our health initiatives as medication, hospitalization, or surgery . . . . It is in the understanding of suffering, the universality of suffering and the need for deliverance from it that varying traditions of medicine and religion meet.
In short, although spiritual healing practices may be an inherent part of health care, when they involve "diagnosis" or "treatment" (in the broadest conceptualization of these terms), the legal definition of medical practice makes such practices inherently criminal--unless they are performed by a medical doctor (or, presumably, by another licensed provider within the legally authorized scope of practice). This is because, as noted, the typical medical licensing statute brings even religious practices into the state's power to sanction unauthorized healing conduct. Again, the rationale has been protection of public health, safety, and welfare, although from an historical perspective, such broad interpretation of medical licensing requirements also reflects the political and ideological triumph of biomedicine over its rivals and competitors. But as noted, medical practice also has been defined as "the humane action of one human [being] toward another to provide comfort, relief and sometimes to cure"--that is, as sometimes constituting practices involving medical training and skill, and sometimes simply constituting practices involving a healing intention.
As suggested, the clash in constitutional values should be noted and clarified, but cannot necessarily be resolved, without addressing the larger confusion about what is "medical" and what lies outside the boundaries of medicine; what should be incorporated within medicine and how teams of healing professionals can interact; what are the interlocking layers of "health" and "disease" at all levels of being; what is "physical," versus "mental," "emotional," and "spiritual" (and how these are connected and distinct); which legal rules are anachronistic or the result of historical hegemonies and rivalries, and which legal rules protect patients and further health; and finally, how the complex mix of interlocking aspects of a person's being involving "health" can be understood, and, in some salutary fashion, be regulated.
For now, it is clear from case law that the state has the right and authority, as part of its police power, to regulate spiritual healing practices as one of many health care services offered by providers. The question is whether exercise of such authority unduly (though not necessarily unconstitutionally) intrudes into a domain of healing considered by many to be "religious" or, at the least, "spiritual," and thereby is beyond the purview and authority of public policy and legal constraint.
B. The Policy Side: Regulation of Spiritual Healing
With many states licensing a variety of CAM providers, it may seem inevitable that new CAM professions, including those based largely on spiritual healing practices, will seek licensure. But in fact, although a current trend is toward increasing licensure of health care providers and toward increasing administrative involvement in the licensing process, licensing is not uniformly favored as a mechanism to control dangerous and deviant practices. The critique of occupational licensure holds that licensure tends to be ineffective and tends to protect the entrenched interests of those judging candidates for licensure, rather than the public, therefore by and large failing to serve the interests it portends to present.
But even if it were effective as a means to control fraud, licensure has other implications in terms of its limits on practitioners' ability to rely on intuitive aspects of their craft--the so-called dark side of regulation. Particularly in the case of CAM therapies, licensure presents a potential "dark side" in terms of increased regulatory control and bureaucratic hurdles, and unnecessary intrusion into the therapeutic relationship. For this reason, many CAM providers fear that the "heart and soul" of their profession will be lost once they are subject to professional regulatory boards.
If practices involving energy healing remain at the crossroads of touch, intention, therapeutic contact, and caring--that is, they are practiced in good faith, with genuine regard for patient boundaries--then practitioners might have a genuine fear that regulation would be intrusive and have an overall destructive effect on morale in practice. Many providers, in fact, prefer that practices such as energy healing remain unregulated and beyond the requirements of uniform examinations and educational criteria.
But even in the absence of licensing mechanisms, spiritual healers remain at risk of prosecution when their practices purport to involve (or are understood by the patient to involve) a potential effect on physical health. Once the line between religion and medicine is crossed, the state arguably has the right (and many would argue, the duty) to intervene. Certainly, as noted, the police power pursuant to the Tenth Amendment authorizes such intervention, once practices aim not only at belief, faith, and doctrine, but also at facilitating physical health. And states, as noted, have not hesitated to prosecute healers in situations involving the patient's physical health.
At least one court, in Board of Medical Quality Assurance v. Andrews, has expressly drawn a line between purely "religious" care, and care sufficiently touching medical concerns as to warrant prosecution. In Andrews, the minister of a religious organization purported to have special knowledge of body symptoms and needs, diagnosed ailments, and prescribed treatments to his clients. These included severe and prolonged fasts, which apparently endangered the lives of some of the clients. In reviewing his conviction, a California appeals court found the minister to have engaged in the practice of medicine. The court reasoned that the purpose of the fasts and other treatments was therapeutic and not religious.
Andrews suggests that once a religious figure has crossed the line into recommending therapies that aim at physical, as well as spiritual, benefit, a court well may find that the practitioner has crossed the line into practicing medicine. The holding of Andrews is consistent with the tendency by courts to interpret "diagnosis," "treatment," and the "practice of medicine" extremely broadly, sweeping many different kinds of diagnostic and therapeutic activities--whether or not expressly "medical"--under the medical licensing statute's rubric. As suggested, historically, such broad interpretation helped to maintain the monopoly by biomedicine over professional healing practices. In any event, whether or not spiritual healing practitioners find a way to receive licensure, or to find exemptions thereto, their activities will doubtless be seen as affecting physical health, and thereby to cross the line into licensed medical (and other health care) practices.
An interesting arena in which spiritual healing practices are subject to regulatory control involves informed consent. The doctrine of informed consent protects the patient's bodily integrity by requiring disclosure of information material to patient decision-making. The doctrine does not necessarily provide the patient with a protected interest in access to a variety of therapies. Nor have informed consent rules particularly expanded to embrace a patient's right to be informed concerning CAM therapies. Yet, presumably, there are risks and benefits of practices involving energy healing, even though it might be difficult to frame such disclosure, given the relative paucity of practice standards and scientific evidence concerning results. Policy arguments surrounding regulation of energy healing remain inconclusive and in flux.
III. CONCEPTUALIZING ABUSE
A. Defining "Abuse"
The fiduciary element of the healer-client relationship is ubiquitous, whether that healer is a physician, a mental health care professional, a nurse, or a member of the clergy. Perhaps for this reason, ethical codes among such diverse professions as medicine, chiropractic, and massage therapy contain parallel provisions. Yet, because spiritual healing traditionally has been offered within a religious context, it is also useful to begin by looking at definitions of abuse within the relationship between a member of the clergy and a believer. Further, the spiritual authority of the clergy presents unique challenges in conceptualizing the potential for abuse of that fiduciary relationship.
In describing betrayal and infliction of trauma within the setting of the provision of religious services, the term "abuse" has been used almost exclusively to describe sexual abuse between clergy and client. The notion of abuse, however, covers a larger territory, of which sexual misconduct is a subset. More generally, abuse signifies a deviation from the trust and fiduciary responsibility expected by a practitioner of professional health care services. An alternative term in the literature, referring to pastoral care, is "clergy misfeasance"; one current definition is "the exploitation and abuse of a religious group's believers by trusted elites and leaders of that religion." In legal terms, such malfeasance represents a violation of fiduciary responsibility. Use of the term "clergy malfeasance" recognizes that similar violations also "occur across a broad range of occupations and institutions--for example, in doctors' and counselors' offices, in law firms, and on university campuses"--in short, in other contexts presenting "hierarchies of unequal power." In this usage, clergy malfeasance has been conceptualized as a subset of "elite deviance," broadly defined as "illegal and unethical acts committed by persons in the highest corporate and political strata of society," who "run relatively little risk of apprehension or serious punishment." Examples include manufacturer distribution of dangerous products and political and corporate corruption.
Unlike perpetrators of "secular" elite deviance, whose misconduct frequently is motivated by desire to further organizational goals, perpetrators of clergy malfeasance frequently are motivated by "lust, greed, or personal problems." Again, however, the common element is violation of a fiduciary relationship--betrayal of trust in an expert professional to whom the client "has turned for services and assistance and thereby revealed vulnerability."
Clergy malfeasance, as previously defined, takes at least three forms of deviance: sexual, economic, and authoritative. Sexual deviance includes seduction, rape, and pedophilia. Economic malfeasance includes con schemes and diversion of funds for personal enrichment. Familiar examples include economic fraud by televangelists, and resemble white-collar crime, with an added overlay of religious manipulation.
Authoritative malfeasance (or "abuse of authority" by a spiritual figure) includes "excessive monitoring and controlling of members' livelihoods, resources, and lifestyles to enrich" the spiritual figure. Essentially, authoritative malfeasance (deviance) means "abuse of authority by a religious leader," and covers a gray zone or continuum of behaviors, from those acceptable (e.g. "shepherding" others) to those clearly identifiable as wrongful (e.g. micromanaging every aspect of followers' lives). A popular term used for this kind of abuse from the perspective of the victim is "toxic faith," defined by one author as "a destructive and dangerous involvement in a religion that allows the religion, not a relationship with God, to control a person's life." Notably, the term "spirituality" could equally be substituted for "religion," and a generic term such as "one's spiritual center" could be substituted for the more religiously oriented term, "God." The principle remains the same: ceding personal power and enabling dysfunctional control in the name of higher ideals.
Ultimately, all these forms of misconduct are, in a psychological sense, boundary violations--distortions of the accepted and healthy boundaries of the therapeutic relationship between the spiritual caregiver and the recipient of spiritual care. Boundary violations are a common ethical concern in psychotherapy, and indeed, the mental health professions offer an additional model for exploring the potential for abuse between the practitioner of spiritual healing and client. As a baseline, issues of sexual boundaries between therapist and patient and their potential exploration are of deep concern. But in addition, the profession has sufficiently evolved to generate a complex set of definitions and rules governing many different kinds of potential abuse between psychotherapist and client.
Arguably, ethical rules governing mental health counseling provide a particularly useful analogue for practices involving spiritual healing, because of the attention paid to the therapist's own psychological state (e.g. awareness of transference and counter transference) and the need to respect the client's emotional boundaries as part of the therapeutic process. Furthermore, the ethics of mental health counseling emphasize a holistic view of personal development as a paramount treatment goal. Finally, psychotherapy emphasizes the patient's vulnerability and emotional dependence on the therapist.
Although some connections between ethical issues in the practice of psychotherapy and practices involving spiritual healing have been preliminarily explored, further research is necessary to explore the intersection of thought (i.e., intention), behavior (e.g. touch), nuances of emotion (e.g. healthy and healing, or pathological and abusive), and the extent to which the profession of psychotherapy can or even should, from an ethical perspective, embrace spiritual healing, or alternatively, intensify the psychic boundaries between therapist and patient. In any event, malfeasance in psychotherapy offers a potentially parallel research ground for exploring issues of abusive conduct by health care providers offering spiritual healing.
B. Abuse of Authority in Spiritual Healing
Practices involving spiritual healing provide a particularly rich arena for exploring the definitions of abuse in clergy malfeasance, because spiritual healing purports to embrace the whole person--that is, not only the physical and emotional, but also the spiritual. In fact, spiritual healing in the health care context purports to mediate the client's physical, mental, and emotional issues, with the spiritual realms, with claimed benefits ranging from curing on the physical level to the broader notion of healing (a sense of spiritual redemption or reclaimed wholeness).
The healer acts not only as a confidant and therapist, but also as a medium through whom the energies of healing are purported to flow. The relationship between healer and client thus involves an expanded realm of interaction, bridging the physical, mental, emotional, and spiritual realms of being. In other words, the relationship involves not only the client's trust, vulnerability, and surrender to the healer's care, but also the perception of a flow, or exchange, of spiritual energy. The healer anchors himself or herself in the sacred, and thereby literally claims to draw on a universal field of spiritual energy to charge himself or herself and transmit the resulting "voltage" to the patient. The healer can be viewed as a shaman--bridging worlds, helping individuals transcend their normal, ordinary definition of reality, by moving easily between ordinary and nonordinary states of consciousness.
Further, the healer ostensibly is empowered with spiritual gifts to which the client presumably lacks access. These are self-reported, among some healers, to include from among the following: clairvoyance (the ability to access information through visual means), clairaudience (auditory access), clairsentience (access through sensing or feeling), long-distance perception, and direct access and precognition (ability to predict possible futures). Given such claims, the "unequal power" thus includes "claims to possess disproportionate spiritual wisdom, experience, or charisma of office," as well as "theological authority." This very imbalance of power--of stated ability in the arena of spiritual access and discernment--creates a potential for abuse of authority.
Therefore, while both sexual and economic deviance may be possible in the realm of spiritual healing, this article focuses on the category of authoritative abuse. Given the above claims of spiritual power by healers, the exchange between healer and client arguably is just as heightened and intensified, and the client is just as vulnerable and dependent, as in the clergy-confidant relationship. Yet, the healer's role purports to bridge that of physician and clerical counselor: to mediate physical and spiritual; to make the unmanifest manifest, and thereby bring gifts from divine realms--or at least the most sublime dimensions of human awareness--into the human condition.
Thus, whereas in the context of pastoral care, authoritative abuse may involve controlling recipients of care (e.g. through micromanaging, or manipulating behavior through expressions of spiritual dogma), the potential authoritative abuse in spiritual healing is likely to involve abuse of the healer's position of authority by virtue of claimed access to specialized, intuitive information--that is, access to the shamanic worlds of non-ordinary consciousness that give the healer a privileged glimpse into the client's condition and potential mechanisms to resolve the client's health care issues or crisis.
Although at its basest level, abuse of power may include inciting the client (or follower) to engage in criminal behavior, at a basic level, the abuse involves deception, a transfer of authority to the healer, and the potential for physical (and emotional) injury arising from relinquishing appropriate self-care. The very same instrument of healing--the human form, with its consciousness of caring, loving intentionality, and sacred touch--also can be used for destructive exploitation. In short, the potential for abuse of authority in spiritual healing presents unique conceptual challenges, precisely because it is potentially ubiquitous among spiritual health care providers, and simultaneously, promises to bridge medicine and religion.
IV. REGULATION OF ABUSE IN DELIVERY OF HEALTH CARE SERVICES
A. Legal Rules Regulating Potential Abuse
Legal rules governing (and attempting to control) potential abuse of authority by health care professionals are extensive. They are subsumed under five categories: (1) medical licensure; (2) scope of practice; (3) professional discipline; (4) malpractice; and (5) fraud. These legal rules operate together as a complex of limitations on potential abuse of authority by a variety of health care professionals. This Part describes these rules and their application to spiritual healing in the clinical arena.
1. Medical Licensure
Medical licensure is one of the earliest forms of regulation recognizing professional delivery of health care services, and subjecting the conduct of health care professionals to statutory proscriptions. Medical licensure originated in New York in 1760 as a means to prevent "ignorant and unskillful persons" from "endangering the lives and limbs of their patients, and many poor and ignorant persons, who have been persuaded to become their patients." Thus, medical licensure neatly fits the police power rationale, articulated in Part IIA, of protecting public health, safety, and welfare.
By requiring a license to practice "medicine," and defining the practice of medicine in its broadest sense--as any act constituting "diagnosis" or "treatment" for any disease or ailment, medical licensing laws--as interpreted by courts--resulted in convictions of chiropractors, naturopaths, massage therapists, hypnotists, nutritional counselors, and spiritual healers for unlicensed medical practice. Thus, although they were initially weakly enforced, by the late nineteenth century, medical licensing laws had become a powerful tool for enforcing dominant medical paradigms. Medical licensure had evolved from the attempt to control lay practitioners of the healing arts into the consolidation of a medical establishment, with extensive political and economic control, and the ability to condemn anyone who opposed dominant medical perspectives as "an 'enemy of physic and all learning.'"
While medical licensure has been variously criticized as self-serving, ineffective, and tending to incite litigation over practice boundaries, its ostensible purpose--to protect the public from unscrupulous and untrained providers--arguably deters those who "practice medicine" under the statutory definitions from delivering health care services that could injure the public. Medical licensure thus serves the regulatory goal of fraud control.
Courts have followed legislatures in conceptualizing the practice of "medicine" broadly, so as to include many different kinds of practitioners and practices within the proscription against practicing "medicine" without a license. This interpretation has resulted in litigation involving allied health providers--such as psychologists, physician assistants, and nurse practitioners--as well as osteopaths, midwives, and other providers of therapies outside conventional medicine (including lay practitioners of spiritual healing). Criminal convictions of spiritual healers in the past have shown courts' willingness to construe "diagnosis" and "treatment" sufficiently broadly to cover laying-on-of-hands, particularly in cases where healers have purported to use their spiritual gifts to cure disease, as well as to bring spiritual wholeness.
Notably, most state medical licensing laws typically contain an exemption for spiritual healers. These healers, however, typically are exempt from medical practice acts so long as they limit their activities to "praying" over their clients or to delivering their services in a religious context. This is because treatment by prayer alone has been held to constitute religion, and not medicine. Since energy healing often purports to operate in a secular context--and often involves "centering," "mindfulness," or similar techniques, without necessarily invoking "prayer" to "God"--the statutory exemption for religious healers arguably is unavailable, or at the least, as a matter of policy, inappropriate.
Parenthetically, because medical licensing laws have resulted in convictions of spiritual healers and other providers for unlicensed practice of medicine, grassroots movements have grown in a number of states, seeking to free such providers from the threat of prosecution for unlicensed medical practice. For example, at least three states, California, Minnesota, and Rhode Island, have enacted legislation permitting (with specified limitations) practice of health care by persons who are not licensed by the state. Rhode Island, for example, defines "unlicensed health care practices" as:
the broad domain of unlicensed healing methods and treatments, including, but not limited to: (i) acupressure; (ii) Alexander technique; (iii) aroma therapy; (iv) ayurveda; (v) cranial sacral therapy; (vi) crystal therapy; (vii) detoxification practices and therapies; (viii) energetic healing; (ix) rolfing; (x) Gerson therapy and colostrum therapy; (xi) therapeutic touch; (xii) herbology or herbalism; (xiii) polarity therapy; (xiv) homeopathy; (xv) nondiagnostic iridology; (xvi) body work; (xvii) reiki; (xviii) mind-body healing practices; (ixx) naturopathy; and (xx) Qi Gong energy healing.
The legislation provides that subject to certain restrictions, persons in Rhode Island "are authorized to practice as unlicensed health care practitioners and receive remuneration for their services." Restrictions include a posting that the state has not adopted any educational and training standards for unlicensed health care practitioners.
The registration requirements provided by such laws, aimed in large part to protect such providers from unlicensed medical practice, may still leave them vulnerable to claims of exceeding competence and thereby crossing the line into unlicensed medical practice, if courts continue the historical tendency to interpret medical licensing statutes and the concepts of "diagnosis" and "treatment" broadly. Further, such laws allow providers to be prosecuted if they commit fraudulent acts, or are found to be engaging in contact that "may be reasonably interpreted by a client as . . . engaging in sexual exploitation," or are shown unable "to engage in unlicensed health care practices with reasonable safety to . . . clients." Providers also may not offer a medical diagnosis, although that term, while it is more specific than simply "diagnosis," is not given further definition.
2. Scope of Practice Rules
Scope of practice rules refer to services that licensed nonphysicians (as opposed to physicians or laypersons) are authorized to provide pursuant to their own licensing statutes; such services typically are defined more narrowly than the broad authority granted to physicians to "diagnose" and "treat" disease. For example, in the allied health professions, licensure to practice psychology or physical therapy does not authorize the licensee to diagnose and treat in the medical sense.
As an example that may be relevant to the limits of healing by CAM providers, licensed chiropractors typically are authorized to use spinal manipulation and adjustment to readjust the flow of "nerve energy" in their patients; licensed acupuncturists, to use techniques of traditional oriental medicine to help adjust the "flow and balance of energy in the body"; and licensed massage therapists to use "rubbing, stroking, kneading, or tapping" the muscles to promote relaxation and affect well-being.
None of these providers are authorized to diagnose and treat disease in the medical sense. For this reason, frequently, the licensing statutes delineating scope of practice provisions for nonphysicians include an express prohibition against the unlicensed practice of medicine. Indeed, such providers often have a duty to refer the patient to a physician whenever the patient's condition exceeds the scope of their training, education, and competence; and violation of the duty can lead to malpractice liability.
Despite these statutory attempts to draw distinctions, the line between authorized practice of a nonmedical profession (e.g. chiropractic) and unauthorized medical practice, can be difficult to draw. For example, chiropractors who have offered nutritional advice have been prosecuted for practicing medicine unlawfully, despite the argument that nutritional care is part of chiropractic education and training. Courts have tended to interpret scope of practice narrowly, in the same way they have tended to interpret the practice of "medicine" broadly and inclusively.
In addition to the rationale of preserving public health, safety and welfare, one reason for this blurring of lines is that any distinction between a holistic notion of wellness care (adopted by many CAM providers) and the actual "diagnosis" and "treatment" of a "disease" is difficult to conceptualize. The difficulty increases when the latter terms are taken in their broadest sense to incorporate any and all attempts to help patients heal. In either case, many modalities such as nutritional care occupy the borderline between the two poles of "wellness care" and "disease care." A further problem is that scope of practice rules "reflect the notion that the enterprise of healing can be carved into neatly severable and licensable blocks," whereas many CAM practices aim to be holistic--to address the whole person, and not simply an afflicted body part.
One implication of these definitional conundrums is that, to the extent that licensed health professionals are using spiritual healing as part of professional care, they may offer such services only if acting within their legally authorized scope of practice. Thus, for example, nursing professionals would have to ensure that Therapeutic Touch is within the scope of nursing practice authorized by the licensing statute within their state.
A further complexity arises since spiritual healing services may be provided by any number of health professionals--physicians and allied conventional health professionals (such as nurses and dentists), as well as CAM providers (such as chiropractors, acupuncturists, and massage therapists). Scope of practice thus may overlap. Yet, state licensing statutes do not always expressly state whether spiritual healing can be offered. Sometimes, regulations by the relevant state professional board may delineate what the licensing statute omits. For example, in Massachusetts, the Board of Registration in Nursing has provided that it is within the scope of R.N. or L.P.N. practice to employ complementary therapies including "Massage, Therapeutic touch, Reiki, Reflexology, Imagery, Hypnosis, Music therapy, Shiatsu, and Aromatherapy," as "part of an overall plan of [nursing] care for which clients have granted informed consent." In the absence of such regulation, providers may argue that spiritual healing, if not expressly prohibited in the statute, is permitted (so long as part of their education and skill set); while the state may argue just the opposite--namely, that what the statute fails to expressly authorize, it prohibits.
3. Professional Discipline
Licensing statutes for health care professionals typically include a set of provisions specifying under what circumstances the licensed professional may be disciplined, with sanctions ranging from fines to loss of licensure. Unprofessional conduct (also known as professional misconduct) that provides a basis for such discipline typically includes such acts as obtaining the license fraudulently, practicing the profession fraudulently, practicing with gross incompetence or gross negligence, practicing while impaired by drugs or alcohol, permitting or aiding an unlicensed person to practice unlawfully, or failing to comply with relevant rules and regulations.
Presently, no independent licensure exists for practitioners of spiritual healing. As a result, in most states, health care providers arguably must seek licensure in another category or profession (such as nursing or chiropractic) that incorporates modalities such as Healing Touch or Reiki into its regimen. In such cases, these providers are bound by the provisions governing professional discipline that are contained in their respective licensing statutes.
Presumably, for example, a nurse practicing Therapeutic Touch in an extremely unskillful manner conceivably could be considered to be practicing with "gross incompetence," and thereby be subject to professional discipline. However, it may be difficult to define what constitutes "gross incompetence" to the extent that the profession itself may have failed to establish practice standards for the modality in question (e.g. Therapeutic Touch).
And even if the profession has set such standards, they may be less tangible than parallel standards for a medical or nursing procedure, since such acts as "centering," "assessing," and "directing energy"--even if taught as part of the nursing school curriculum and applied in a hospital setting--inherently cross the boundary between medicine and religion, and perhaps suggest untested (or untestable) metaphysical propositions. In other words, without the existence of objective criteria to measure whether a practitioner has met the standard, it may remain difficult to interpret and enforce the norms contained in professional discipline provisions of the licensing statute.
Notably, in recent years a number of states have enacted statutes, protecting health care providers--particularly physicians--from professional discipline based on therapeutic recommendations involving CAM therapies. For example, Alaska's statute, enacted in 1990, states that the medical board "may not base a finding of professional incompetence solely on the basis that a licensee's practice is unconventional or experimental in the absence of demonstrable physical harm to a patient." Similarly, Colorado's statute provides: "The board shall not take disciplinary action against a [physician] solely on the grounds that such a [physician] practices alternative medicine." The language contained in these statutes varies by state. In most states, it remains to be seen whether such language would, in fact, protect providers incorporating controversial therapies considered by a given regulatory board to be within a domain that is beyond testing, or in the minds of some, beyond plausibility.
4. Malpractice
Malpractice liability rules protect patients against negligence by health care providers. Negligent practice is defined as practicing below the standard of care, which conduct injures the patient. Since CAM therapies historically have been defined as outside conventional standards of care, the potential arises for courts to label use of such therapies as malpractice per se--that is, irrespective of any wrongdoing.
At least one court, in Charell v. Gonzales, has articulated the proposition that a physician's inclusion of CAM therapies conceivably could itself be negligent, given the current definition of CAM therapies. The danger increases with a therapy such as energy healing, which has theoretical underpinnings about which many similarly situated providers would be skeptical. Thus, an expert witness from the defendant's profession might be able to persuade the jury, as in Charell, that the defendant's use of the modality in question was "bogus" and "of no value."
Several defenses to medical malpractice might be available to the provider who uses a CAM therapy, even though the therapy has not been adopted as part of the standard of care within the jurisdiction. These defenses include, the "respectable minority" defense--the idea that a significant segment within the profession accepts the modality--and assumption of risk, the notion that the patient knowingly, voluntarily, and intelligently assumed a risk of injury from the chosen therapy.
The respectable minority defense, however, is especially complicated in regard to use of CAM therapies, since it may be difficult to determine what constitutes the requisite quantity of providers, and what level of evidence of safety and/or efficacy would make them sufficiently "respectable" to trigger the defense. Similarly, the assumption of risk defense does not allow providers to act negligently--in other words, there are some risks that courts will not allow patients to assume. This caveat to the defense triggers a circular argument as to what is negligent, and whether, in cases involving novel and controversial therapies, negligence can, like "fraud," simply become a label that is applied based on a bias view of those therapies.
A second theory supporting malpractice liability is the failure to provide adequate informed consent. To date, no patient has successfully argued that a provider's failure to disclose the possibility of using a CAM therapy, instead of a biomedical therapy, caused injury and constituted malpractice. At least one court has, however, observed that such an argument would succeed if the therapy in question had a sufficient level of professional acceptance.
The implication is that if energy healing were to gain significant acceptance within a given profession--say, nursing--then failure to disclose its availability to a patient if the patient were thereby injured, would constitute an actionable violation of informed consent and allow the patient to recover for malpractice. On the other side, an energy healer who fails to inform the patient concerning material, medical alternatives to energy healing probably would have violated the duty of informed consent and--particularly if such alternatives are within the provider's legally authorized scope of practice (e.g. medicine or nursing)--thereby be liable in malpractice.
5. Fraud
The tort of fraud is triggered when a health care provider deceives the patient and does so with the intent to so deceive. To the extent the provider offering spiritual healing intentionally deceives the patient into expecting a result that lacks sufficient scientific evidence, the prosecution would have a viable argument that fraud has occurred if that result is not achieved. The deception would have to be intentional and not simply negligent or the result of an honest mistake.
Providers of spiritual healing face arguably less legal risk if they describe potential results in spiritual rather than physical terms--alluding, again, to the distinction between healing and curing. The argument is that the description of healing work as spiritual helps deflect perception that the conduct falls within diagnosis and treatment of disease. On the other hand, this definitional strategy again dichotomizes medicine and religion--the physical and the metaphysical--and eviscerates the notion of a borderland between the two. As noted, spiritual healing practices are incorporated in a variety of clinical settings by various practitioners, often with the intent to produce more than relaxation, palliation, or spiritual comfort.
Ultimately, the language of fraud may be inadequate to the task, except under egregious circumstances meeting the requisite legal definitions. The law, perhaps, has not yet adequately learned to address the uncomfortable borderland between science and faith, medicine and religion--between accounts of the world considered objective and those by and large regarded as subjective. By definition, energy healing, when it is practiced in good faith--with the intent to heal, not to dupe--makes a charge of "fraud" appear as an ideological label, rather than as a conclusion of law. Again, fraud, an intentional tort, is among the most extreme forms of the abuse and potentially the most difficult to prove, since a distinct mental state must be alleged and proved. This is particularly ironic since, as noted, spiritual healing purports to draw on a clear and healing intentionality (i.e. a positive and beneficial mental state) on the part of the practitioner.
B. Conceptualization and Categorization of Potential Abuse
As suggested above, legal rules that would apply to the practice of spiritual healing within a secular context, such as the modern medical center, are extensive, even if not explicitly directed at spiritual healing practices. Whether such rules are in fact effective is an empirical question, requiring data beyond the scope of this article. What this article can suggest, however, is that these rules, taken as a whole, help conceptualize abuse of authority (as defined and described in Part 3) and thus create a preliminary, conceptual web that helps curb potential abuse by providing legal sanction for specific kinds of violations. For illustration, consider the following hypothetical scenarios:
1. D, who lacks any health care licensure but has several certificates from various schools teaching certain CAM modalities, offers energy healing to individuals, purporting to cure various ailments.
2. D, who is a licensed nurse, offers energy healing to individuals, purporting to cure various ailments.
3. D, a licensed family physician, offers energy healing to help a patient access his or her own inner resources for smoking cessation.
4. D, a licensed family physician, offers energy healing to a cancer patient, and, making the assumption that these methods will help shrink a tumor, neglects to perform or recommend accepted mainstream treatment.
5. D, a licensed family physician, offers energy healing to a cancer patient, and, assuring her that these methods will help shrink a tumor, neglects to perform or recommend accepted mainstream treatment.

These hypothetical situations respectively illustrate major potential arenas of abuse of authority in healing as follows: scenario (1) lack of professional competence; scenario (2) exceeding professional competence; scenario (3) exceeding professional boundaries; scenario (4) professional negligence; and scenario (5) intentional deception (including exaggeration of claims, and diversion from conventional care). This is not an exclusive and comprehensive, nor even systematic, map of potential areas of abuse, but it does provide a working framework for assessing the extent to which legal rules capture and address abuse of spiritual authority.
In this light, one can draw a parallel between the major legal rules governing delivery of healing services, identified above, and the potential arenas of abuse just mentioned. In the first scenario, D lacks the education and professional training necessary to cure various ailments. Because D arguably holds himself or herself out as being able to diagnose and cure disease, D could be criminally liable for practicing medicine without a license. Perhaps for this reason, hospitals may rely on licensed providers (e.g. licensed nurses or massage therapists, if massage therapy is licensed within the state) rather than unlicensed personnel (e.g. lay practitioners trained in Reiki) to offer energy healing services.
In the second hypothetical, D, in some (but not all) jurisdictions (particularly those with officials adverse to energy healing), might be considered to be exceeding professional competence, and thus the scope of practice authorized in the licensing statute. This would subject D to criminal charges of practicing medicine without a license.
The third hypothetical presents a situation in which a licensed physician employs energy healing. Since physicians typically are said to have an "unlimited" scope of practice to diagnose and treat disease--as opposed to the more limited scope of practice allocated to allied health professionals and CAM providers --the issue is not one of legal authority over practice, but rather of professional boundaries. In other words, the relevant professional regulatory board (i.e. medical board) could argue that physicians should not include energy healing in clinical practice, because energy healing lacks a sufficient evidentiary base. The physician's claim about energy healing (e.g. for cure, support, stress reduction) could be relevant to the board's ultimate response, however, especially if the physician continued to offer conventional care, since the physician then could not be accused of foregoing necessary medical care for untested alternatives.
In the fourth scenario, the physician neglects necessary conventional care, and thus is negligent in failing to meet the standard of care, and commits malpractice. The fifth hypothetical presents the case of an unwarranted claim that deceives the patient. If the deception has been intentional, then the patient can sue for fraud and potentially criminal fraud charges can be brought as well.
The noted correspondence between forms of abuse and applicable legal rules can be summarized as follows:

Form of Abuse Corresponding Legal Rule:

(1) Lack of competence Licensure
exceeding professional
competence
(2) Exceeding professional Scope of Practice
competence
(3) Misconduct Professional discipline
(4) Negligence Malpractice
(5) Deception Fraud

The correspondence could also be expressed by putting the second column first. This formulation illuminates how legal rules are intended to address (or have the actual effect of addressing) abuse in various, specific forms:
Legal Rule Intended to Address Abuse in the Form of:
(1) Licensure Lack of competence
(2) Scope of practice Exceeding professional
competence
(3) Professional discipline Misconduct
(4) Malpractice Negligence
(5) Fraud Deception

In short, such rules--whether or not directed in a comprehensive, rational manner toward such practices--do provide a preliminary conceptual map for major arenas of dysfunction. Whether or not completely adequate to the task, when taken together, legal rules governing licensing, scope of practice, professional discipline, malpractice, and fraud, do constrain the practitioner and begin to address major arenas in potential abuse of authority. Questions remain, however, as to how deeply these rules--historically rooted in the biomedical health professions--penetrate into future problems likely to arise from increasing use of spiritual healing in mainstream health care settings.
C. Future Regulation of Potential Abuse
Historically, of the above categories, the label of fraud has been most commonly ascribed to CAM therapies, and perhaps most strongly resonates with impressions of energy healing for many in the scientific and medical communities. Fraud, however, requires a mental state--an intention to deceive--as well as deception itself, and therefore should not be used as a conclusory label for liability.
As CAM providers increasingly receive licensure, scope of practice becomes an area of increasing legal attention. In cases of energy healing, this could result, for example, in attendant debates over whether Therapeutic Touch is properly within the scope of nursing, whether such therapies as network chiropractic are appropriate for professional practice in integrative care settings in hospitals, and the extent to which "noncontact touch" therapies are within the legally authorized scope of practice for some massage therapists.
Similar debates are likely to erupt in the arena of professional discipline, as emerging uses of energy healing--like earlier debates concerning use of homeopathy by physicians --challenge political structures within each profession. Indeed, such debates already have erupted within institutions, for example, attempting to draw policies determining which providers can lawfully practice energy healing and under what circumstances. In addition, debates may erupt as to what constitutes "efficacy," given that spiritual healers may be competent in their own terms while failing to meet a biomedical paradigm of effectiveness.
Finally, ethical codes within a healing profession may help delineate gray zones of conduct, where legal rules fail to reach. These might include, for example, referring patients to chaplains or other ministers when significant spiritual needs are identified, and ensuring that patients can exercise the right to refuse spiritual healing, counseling, or inquiry.
One arena that the above scenarios fail to address is the abuse of power that results in emotional injury, but without any physical consequences. For example, consider the following scenario:
P, a thirty year-old woman, inexplicably grows deaf in one ear. Her physician has no explanation other than reporting that some people grow prematurely deaf. P visits an "intuitive helper" who says she is "learning a lesson on a soul level: you haven't been listening to God," and advises her that "with prayer, meditation, and opening your heart to God's wisdom, the deafness will heal." P leaves the session, feeling bewildered, guilty, and morally imperiled, as well as frightened by her new physical status. She visits her physician who reassures her that all standard diagnostic and therapeutic procedures have been performed.
In one sense, the dogmatic "black-and-white" thinking articulated by the healer in this scenario, combined with the ascription of a physical condition as punishment from God, exemplifies the notion of "religious abuse"--of "adopting a rigid belief system that specifies only one right way, which you feel you must force onto others by means of guilt, shame, fear, brain-washing, and elitism." An individual who buys into such abuse may have a "toxic belief"--for example, that she is being punished for failing to listen to God, or that if she has real faith, a cure is guaranteed. On the other hand, one need not label the individual who is prey to the healer's misconduct a spiritual "addict" in order to understand the heightened vulnerability, propensity for dependence, and intense trust such a person may come to have in the healer.
Legal rules would address a physical injury, if the healer were to make a recommendation to ignore or neglect medical advice, or to substitute spiritual advice for medical diagnosis and treatment. But legal rules may incompletely address the explicitly emotional aspect of malfeasance by spiritual healers. Historically, the tort of negligent infliction of emotional distress could be met only when physical injury was shown; although more recently, the requirement has been relaxed so long as plaintiff can show that the defendant has breached some other duty recognized by law as being owed to the plaintiff. Thus, abuse of trust, without more, might not be actionable, particularly if the relationship was based on spiritual care-giving and advice, the healer steered away from giving an opinion on medical problems or issues concerning physical health, and there were no agreed standards of professional conduct in such a relationship (making negligence difficult to show). If, on the other hand, the healer, as suggested, were to advise P to disregard her physician's advice and to substitute a prescribed, ritualized regimen for healing, issues of scope of practice, malpractice, professional discipline, and fraud doubtless would arise.
The lacuna between spiritual and physical injury--between infliction of a wound to the heart and soul of the patient, and injury that can be concretized in material terms--raises novel policy issues. It may well be that the law, having opened up through licensing and other rules the possibility of allowing health care professionals to deliver exclusively spiritual (and not physical healing) to patients, has failed to recognize legal harm consisting exclusively of spiritual (and not physical) injury. Of course, it is debatable whether this has do with evolution in consciousness among those who give and interpret the law, or whether it is simply difficult to concretize spiritual injury sufficiently to make such injury comprehensible to a jury, and thereby compensable. At the very least, the thrust of modalities historically considered religious, into realms historically considered scientific, medical, and outside the purview of religion, may augur reconsideration of fundamental assumptions about what sorts of conduct are comprehensible as forbidden, socially condemnable, and monetarily compensable.
V. CONCLUSION
The presence of spiritual healing in clinical care centers, within a secular (and frequently medical context) challenges the legal boundaries of professional health care practice. More specifically, energy healing therapies, whether they are practiced by physicians, nurses, or other licensed health care providers such as (in many states) massage therapists, are subject to an array of legal rules.
Such rules proscribe (and ideally constrain) certain, specified categories of professional misconduct, and simultaneously circumscribe attempts by providers to portray diagnostic and therapeutic practices as "religious," rather than as "medical." More importantly, such rules attempt to delineate the major categories of potential abuse of power in the relationship between the energy healer and the patient.
Perhaps most significantly, in considering such rules, and their impact on conceptualizing malfeasance, policymakers confront practices that occupy the borderland between regulatory categories. In other words, energy healing therapies, like other CAM therapies, can blur the distinction between realms considered by many to be distinct as religion and medicine, and thus force a reconceptualization of legal categories previously thought to be less permeable.
Finally, although present legal rules address issues of abuse of power in the practice of energy healing, the practices themselves may lead to profound rethinking of fundamental legal principles. As one example, one of the exceptions to the informed consent doctrine--the therapeutic privilege--protects the physician from liability for failure to disclose to the patient information that could result in the patient's suffering physical or emotional harm. Yet, some forms of energy healing assert that consciousness is non-local (i.e. not limited to the body and mind of a particular individual), thereby permitting providers who are appropriately trained to gain intuitive access to information concerning patients' health and prognosis. The suggestion is that in the future, some healing professionals will have intuitive diagnostic, as well as therapeutic, tools of consciousness (rather than medical or scientific instruments) at their disposal that may enable them to reach information not available to the patient in question. Thus, the reach and extent of therapeutic privilege may need to be reconsidered, should physicians be able to access information intuitively and have to wrestle with legal and ethical obligations surrounding such knowledge.
In similar fashion, theories of malpractice liability may need to take into account the provider's mental, emotional, and spiritual effect on the patient--as well as physical injury; and likewise, in conceptualizing battery, questions may arise as to what constitutes impermissible "touch" in a world where individuals are conscious not only of the physical body and a zone of privacy around it but also of threads of spiritual energies connecting persons. In other words, if safety, efficacy, and mechanisms of energy healing ultimately receive sufficient scientific proof to garner general medical acceptance, expanded use of these controversial therapies in clinical care may suggest the need to extend legal paradigms to include expanded ideas, not only about different therapeutic modalities and domains of training and knowledge, but also about the nature of healing and human consciousness.
In sum, spiritual healing touches the boundary between medicine and religion, science and faith, intellect and uncertainty. Legal rules, in addition to safeguarding the public health, also codify political attempts to preserve professional monopolies. In so doing, such rules crystallize cultural belief systems about what professional healers can or should be able to do. Thus, it is increasingly important to explore the nexus between legal rules, ethical codes, religious values, and medical culture. Probing the regulatory edges of abuse of power at the borderland of religion and medicine begins to tease out unstated assumptions about the ultimate meaning of human affliction and the health care professional's role in the process of healing.

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Michael H. Cohen, Esq.; 468 North Camden Dr. | Beverly Hills, California 90210 | 310-844-3173