Legal Boundaries and Ethics in Energy Work

Energy healing and other "frontier medicine" modalities present many legal and ethical boundary issues for clinicians. To canvass these, I've collected some possible clinical scenarios and different legal and ethical rules that may apply.

Below is the syllabus presented at The Integrative Medicine Program of Spaulding Hospital, Energy Healing for Healthcare Professionals: Developing Your Skills (November 6, 2004, 2:30-3:15). Download a Word version with hot links.


I. Energy Work - Definitions and Premises

Energy medicine: That subset of therapies within the spectrum of complementary and alternative medical therapies that primarily are based on the projection of information, consciousness and/or intentionality to patients. Energy therapies are sometimes known by specific modalities and techniques such as laying-on-of-hands, intuitive medical diagnosis and distance healing, and aspects of traditional oriental medicine, Tibetan medicine, and herbal medicine, all come under the rubric of energy medicine. The thrust is an understanding of medicine and healing that incorporates and simultaneously transcends the physical world as presently understood, including known biological, chemical, pharmacological, and other mechanisms in our human anatomy and physiology.

Michael H. Cohen, Future Medicine (University of Michigan Press, 2002)

The literature: includes evidence-based reviews, case reports, and other studies, on non-local effects of consciousness as well as on the application of energy healing in clinical settings such as in operating rooms, critical and intensive care units, and elsewhere. To quote a recent meta-analysis, although approximately 57% of the randomized, placebo-controlled trials of distant healing reviewed showed a positive treatment effect, "the evidence thus far warrants further study." [Citations are in chapter 4 of Future Medicine].

"Frontier medicine" (NCCAM): The National Center for Complementary and Alternative Medicine ("NCCAM") at the National Institutes of Health has defined "energy therapies" as one of five major domains of complementary and alternative medical (CAM) therapies, and has further sub-divided the domain into therapies that:

focus either on energy fields originating within the body (biofields) or those from other sources (electromagnetic fields).... Biofield therapies are intended to affect the energy fields, whose existence is not yet experimentally proven, that surround and penetrate the human body. Some forms of energy therapy manipulate biofields by applying pressure and/or manipulating the body by placing the hands in, or through, these fields. Examples include Qi gong, Reiki and Therapeutic Touch. Qi gong is a component of traditional oriental medicine that combines movement, meditation, and regulation of breathing to enhance the flow of vital energy (qi) in the body, to improve blood circulation, and to enhance immune function. Reiki, the Japanese word representing Universal Life Energy, is based on the belief that by channeling spiritual energy through the practitioner the spirit is healed, and it in turn heals the physical body. Therapeutic Touch is derived from the ancient technique of "laying-on of hands" and is based on the premise that it is the healing force of the therapist that affects the patient's recovery and that healing is promoted when the body's energies are in balance. By passing their hands over the patient, these healers identify energy imbalances.

NCCAM defines frontier medicine as CAM practices for which there is no plausible biomedical explanation; examples include bioelectromagnetic therapy, energy healing, homeopathy and therapeutic prayer.
NCCAM website (www.nccam.nih.gov).

Regulatory Definitions

"While these efforts are ongoing, the existing literature to date has failed to convince [many within] the scientific community that energy healing is anything more than 'placebo responsiveness' or something that should be 'debunked.' From the perspective of the skeptical scientist looking for sufficient large, controlled, double-blind, randomized trials to validate assertions made by energy healing, there is nothing further to say and the book could end here.

"But this is not the whole picture. One of the regulatory goals offered in earlier chapters is that of functional integration, defined as including appropriate integration of all world systems of knowledge about healing. Another regulatory goal ... involves facilitating human transformation at the broadest and deepest levels. The scientific agenda for energy healing has not controlled the public policy debate. It is often the case in complementary and alternative medicine that 'legislative recognition trumps medical recognition.' States legislatures have granted legal recognition to energy healers in a variety of ways.

"For example, a House Bill in Maryland has proposed to require the state Board of Chiropractic Examiners to adopt regulations for the registration of 'energy practitioners;' to define the term 'energy therapy;' to define an 'Energy Practitioner Advisory Committee' within the board; and to prohibit the practice of energy therapy (with specific exemptions) by individuals lacking registration.

"Interestingly, the bill defines 'energy therapy' as 'the laying of hands on a clothed individual to affect the human energy field' and includes modalities such as Shiatsu, Polarity, reflexology, Reiki, Jin shin jyutsu, Healing Touch, Zero balancing, kinesiology, Bowen technique, and 'therapeutic touching.' House Bill 1002 (Maryland, 2001) (www.mlis.state.md.us/2001rs/billfile).

"Energy healing has sufficiently penetrated both legislative, consumer, clinical, and research arenas to fuel contemplation of what it might portend for health care generally, even as research continues to help define the parameters and permutations."

From Future Medicine (2002).

II. Law Governing CAM Therapies

The market for medical services is changing. At least 40% of Americans use complementary and alternative medical (CAM) therapies such as acupuncture, massage therapy, chiropractic, and herbal medicine. Further, health care law and health care policy affecting CAM therapies and providers are in flux.
Although clinicians and institutions are beginning to incorporate many CAM therapies, without the benefit of clear legal, regulatory, and policy guidance, practitioners and institutions (as well as patients) operate in an uncertain and hazardous legal environment. At least seven interrelated areas of law affect legal and policy decisions surrounding clinical integration of CAM into conventional care. These include: (1) credentialing and licensure; (2) scope of practice; (3) malpractice liability; (4) food and drug law; (5) professional discipline; (6) third-party reimbursement rules; and (7) rules governing health care fraud. It is important to develop a negotiation framework to navigate through such issues when discussing CAM therapies with patients.

Some of the legal and ethical questions that arise when clinicians and institutions are called to counsel patients regarding CAM therapies and/or refer patients to CAM providers include:

1. Who will likely get sued?
2. What kinds of protective measures will allow responsible, clinical integration of CAM therapies while minimizing risks of civil liability, criminal prosecution, or professional discipline?
3. What is the liability for referral of the patient to a CAM provider?
4. To what extent are liabilities by various providers shared in integrative medicine centers?
5. How important is it for various individuals and institutions it to understand credentialing systems applicable to CAM providers? To what extent may non-licensed providers (such as herbalists and homeopaths in some cases) be included in insurance and referral networks?
6. What are the relevant elements of an appropriate, informed consent disclosure, and when is lack of disclosure likely to trigger potential liability?
7. What are the most important risk management strategies for the clinician? How can these be implemented within the institution?
There is a crucial need to provide leadership in legal and regulatory developments to answer these questions in ways that can serve hospitals, academic medical centers, educational institutions, patients and their families, and federal, state, and local governments who are creating law and setting policy.

III. Hypothetical Clinical Cases

We'll talk about some of the legal and ethical rules applicable to the cases below during our time together. These cases come from Future Medicine. We'll use a little "Socratic method," so be prepared to have some ideas about how to handle these situations. Some of the salient questions are: Is the practice ethical? Is it legal? Should or might the practice be regulated, and how and by whom? How might that affect your practice?

This part of the talk will be interactive.

Speaking of legal boundaries.... As I'll be talking about general legal principles and not giving legal advice or opinion about specific practices and situations, we won't hone in on Massachusetts or any other state law, but rather we will look at the field more broadly. If you have a legal question about your situation, you should not rely on the talk but rather hire a licensed attorney for legal consultation.

And now to our cases.

A. The Physical Therapist Who Integrated Reiki

An attorney telephoned for the following consultation:

"I represent a licensed physical therapist in Texas. The physical therapist has been treating a client for a sports injury; the client also is seeing a psychiatrist for emotional dysfunction. The physical therapist has taken some weekend workshops in Reiki. While using traditional physical therapy techniques to help the client regain flexibility and range-of-motion in the arm, the physical therapist, with the client's consent, 'ran energy' using Reiki. The client felt warm, tingling energy and found that it increased the rapidity of her healing. As the sessions continued, the client grew more relaxed and in fact began experiencing regression into deep trance states where she connected to previous traumas to the arm, and the symbolic meaning of her injury. Some of these experiences involved childhood traumas, while others reached into what the physical therapist explained and the client understood as 'past lives.'

"Simultaneously, the client began experiencing symptoms of multiple personality disorder in her psychiatric sessions. The client has sued the physical therapist for malpractice, alleging that the physical therapist's use of Reiki--a modality not generally accepted within the profession--caused her unwarranted emotional injury. The physical therapist had had her client sign a consent form agreeing to the use of Reiki treatment. Now I don't know much about Reiki and less about past lives; do you think my client has a defense?"

B. The Healer's Intuitive Guidance

A healer related the following: "I was working with a young woman who had multiple physical disorders.... I asked for specific guidance.... I heard the following words: 'Tell her to reduce her thyroid medication by one-third.' At the time, I was completely unaware that she was taking it. In a rather embarrassed manner, I asked her about it. She confirmed that she was taking it. In the next few weeks, with the consent of her physician, she reduced her intake of the medication according to the guidance channeled and proceeded to regain more health. After five months it was necessary to make another reduction. Shortly thereafter, she left treatment, satisfied with her health, having decided to go to college."

The healer then described a second client: "....[B]efore Jennifer arrived in my office for her first appointment, I received information that she should choose the type of chemotherapy that lasted three months and used two drugs, rather than the one that lasted two months and used three drugs. I had never met Jennifer and didn't know why she was coming to receive healing from me. When Jennifer told me her presenting complaint, she stated that just a week before, she had been given the choice by her oncologist of two different chemotherapies for cancer treatment. One was to use three drugs and last two months, while the other was to use two drugs and last three months. She had come to me to help her make the decision."

C. Pediatric Care

Liza, a three-week-old baby, was born with a herniated diaphragm. The baby lay for months in intensive care, with seven tubes radiating from her body like spokes of a wheel, and constant mechanical monitoring of her vital organs. Liza's mother stroked the baby's head, tenderly, while the physician, in tandem with conventional monitoring and treatment, applied Reiki. The mother and healer formed a beautiful unit. Liza seemed to relax. The physician alternatively scanned the child's field and then made long brushing strokes on the child's energy field. She placed one hand over the area of the infant lungs.

At one point, as the physician "ran energy," the child's level of oxygen intake began severely dropping. Liza's nostrils flared as she worked to consume more oxygen. The nurse, concerned, came by, and muttered that the child was having "too much stimulation." The physician immediately backed away. She then let the mother know that she could "send good thoughts" from a distance. This seemed to resolve any apparent conflict between the biomechanical world of the nurse and the monitors, and the world of subtle energies in which the physician was working. The physician's education as a physician bolstered her credibility in knowing when to intervene medically, and when to intervene energetically, making her a bridge between the two worlds.

After the healing, the mother spoke with the physician. She said that initially she had held back, emotionally, from wishing Liza healing--not knowing whether her child would make it, not wanting her heart torn, but now felt optimistic that Liza was going to make it. Her husband now was preparing the child's room as well. The physician acknowledged all this and finished by saying she would continue to "send good thoughts" over the weekend. She reported that seeing a golden arc of light surrounding the fields of the instrumentation, the mother, and Liza. She had a vision of Liza in her twenties or thirties, and felt the child's "spirit" was strong, healthy, and that the lung would develop normally. For the moment, at least, the oxygen intake remained stable.

IV. Food for Thought

• "Every therapist working in complementary and alternative medicine should have a clear understanding of the principles of evidence-based medicine and healthcare," with such principles being "part of the curriculum of all complementary and alternative medical therapy courses....[But] if CAM is to be practiced by any conventional healthcare practitioners, they should be trained to standards comparable to those set out for that particular therapy by the appropriate (single) CAM regulatory body."

Select Committee on Science on Technology, House of Lords, United Kingdom Complementary and Alternative Medicine (Sixth Report, 2000).

• When making ethical decisions about recommending use or avoidance of specific CAM therapies, clinicians should balance the following seven factors: the severity and acuteness of illness; the curability of the illness by conventional forms of treatment; the degree of invasiveness, associated toxicities, and side effects of the conventional treatment; the availability and quality of evidence of utility and safety of the desired CAM treatment; the level of understanding of risks and benefits of the CAM treatment combined with the patient's knowing and voluntary acceptance of those risks; and the patient's persistence of intention to use CAM therapies.
Adams KE, Cohen MH, Jonsen AR, Eisenberg DM. Ethical considerations of complementary and alternative medical therapies in conventional medical settings. Ann Intern Med; 2002;137:660-664.

• To assess potential malpractice liability issues in counseling patients about complementary and integrative therapies, clinicians should classify therapies into four categories, according to whether the evidence reported in the medical and scientific literature (A) supports both safety and efficacy; (B) supports safety, but evidence regarding efficacy is inconclusive; (C) supports efficacy, but evidence regarding safety is inconclusive; (D) or indicates either serious risk or inefficacy. In (A) recommend and in (D) avoid and discourage, as liability is (A) unlikely and (D) highly likely; most therapies fall into (B) and (C), in which case it is appropriate to allow use but monitor conventionally, since liability is possible, particularly if therapies have a safety risk.

Cohen MH, Eisenberg DM. Potential physician malpractice liability associated with complementary/integrative medical therapies. Ann Intern Med; 2002;136:596-603.

• "Energy healing presents at least four emerging regulatory conundrums: first, whether and how to license providers practicing some form of energy healing; second, how to define healers' scope of practice; third, establishing a standard of care, for purposes of determining the boundaries of acceptable practice; fourth, appropriate documentation of the application of energy healing."

From Future Medicine (2003).

• The Kentucky State Medical Board divides complementary and integrative medicine into three categories: "invalidated," "nonvalidated," and "validated." The term, "invalidated" includes therapies that "have neither a proven nor any scientific basis for any health benefit." In Kentucky, "invalidated" also includes any therapy that: (a) Is implausible on a priori grounds (because its implied mechanisms or putative effects contradict well established laws, principles, or empirical findings in physics, chemistry or biology). (b) Lacks a scientifically acceptable rationale of its own. (c) Has insufficient supporting evidence derived from adequately controlled outcome research. (d) Has failed in well-controlled studies done by impartial evaluations and has been unable to rule out competing explanations for why it might seem to work in controlled settings.

Kentucky Board of Medical Licensure Board Policy Statement on Complementary and Alternative Medical Therapies (1999).

•"...no individual who is not licensed or exempted from licensure under said sections shall advertise the performance of or use a title or description of: (1) licensed mental health counselor, advisor or consultant ...No individual who is not licensed or exempted from licensure shall engage in practice as a licensed mental health professional. This does not prevent individuals not eligible to apply for licensure from advertising and practicing as counselors or therapists, provided that such individuals do not advertise or otherwise hold themselves out to the public to be licensed allied mental health professionals...Nothing in this section shall be construed to prevent qualified members of other professions including Christian Science practitioners, registered nurses, physicians, attorneys, or members of the clergy from doing the work of an allied mental health and human services professional consistent with the accepted standards of their respective professions; provided, however, that no such person shall use a title stating or implying that they are a licensed allied mental health and human services professional.

MGL Chapter 112, Section 164: Advertisement or engagement in practice of licensed profession; license requirement; exemptions.

• "It is the intent of this chapter: (1) To ensure that consumers of psychotherapy services are provided with the information relating to the training and qualification of nonlicensed and noncertified providers of psychotherapy necessary to enable them to make informed decisions concerning their choice of providers. (2) That psychotherapists who are nonlicensed and noncertified are entered on a roster and practice according to established standards of professional conduct and be subject to disciplinary procedures if they fail to adhere to those standards. (3) That the term psychotherapy as used in this chapter be narrowly interpreted to ensure that only those persons who provide services that clearly fall within the definition of psychotherapy are subject to the provisions of this chapter....§ 4085. Exemptions.... (b) The provisions of this chapter shall not apply to persons while engaged in the course of their duties: (1) In the activities and services of the clergy or leader of any religious denomination or sect or a Christian Science practitioner when engaging in activities that are within the scope of the performance of the person's regular or specialized ministerial duties and for which no separate charge is made, or when these activities are performed, with or without charge, for or under the auspices of sponsorship, individually or in conjunction with others, of an established and legally recognizable church, denomination or sect, and when the person rendering services remains accountable to the established authority of that church, denomination or sect. (2) In employment or rehabilitation counseling....(c) The prohibitions of this chapter shall not apply to practices in the fields of: (1) Body work education and healing, including massage therapy, stress reduction, physical fitness or yoga. (2) Energy-related therapy, including kinesiology, crystology and sound therapy. (3) Psychic reading and healing arts, including astrology, channeling and palmistry. (4) Social science research and education, including sociology and educational tutoring. (5) Human resource development, including personnel management, career development and business consultants.

Vermont Statutes, title 26, ch. 78.

V. Selected Resources

A. Course Description for Harvard School of Public Health

Complementary and Alternative Medicine: Health Law and Policy
M. Cohen
Course activities: Lectures, discussions, case studies. Weekly 2-hour session. 1.25 cr. Winter Session 2003.

This course introduces students to health law and policy surrounding the integration of "complementary and alternative medical" (CAM) therapies (i.e., therapies historically outside biomedicine, such as chiropractic, acupuncture, massage therapy, and herbal medicine) into mainstream health care. Topics include: definition and prevalence of CAM therapies; theory and practice of major CAM therapies; research methodologies and state of the science; licensing and regulation of CAM providers; professional discipline of physicians offering CAM therapies; credentialing and liability management strategies by health care institutions integrating these therapies; malpractice liability and informed consent issues; federal regulation of (and institutional policy involving) dietary supplements; emerging federal policy and state legislative developments; and related ethical questions. Readings are drawn from medical, public health, and health policy literature, as well as from statutes and cases. Students are expected to write an 8 to 10 page final paper and present a synopsis in class. No previous background in law is required, although HPM 213c and 215d are recommended.

B. Other Resources

Rather than list resources on-paper every time, I've put them on my blog.

Go to the Complementary and Alternative Medicine Blog and click on Resources under the Topics column at the left. The list includes both CAM resources and legal and regulatory resources for CAM therapies.

You will also find specific topics, such as Mental Healthcare, that include legal issues applicable to clinicians doing energy work. Posts on the site pertinent to this subject include Integrative Mental Healthcare: Legal and Ethical Issues, List of Legal and Ethical Issues in Spiritual Care (Such as Energy Healing), and a long, scholarly article entitled, Healing at the Borderland of Medicine and Religion: Regulating Potential Abuse of Authority by Spiritual Healers, published by the Journal of Law & Religion at 2004;18:2:373-426. You'll also find a whole topic area devoted to ethical issues, and links to Future Medicine and other books. 100% of royalties from sales of Future Medicine, as well as Beyond Complementary Medicine (University of Michigan Press, 2000) (which also deals with energy healing) go to nonprofit charitable organizations.