Is colonic irrigation the unlicensed practice of medicine, or a legally sanctioned non-licensed healing art?
The debate continues in Washington state, where the Department of Health recently initiated enforcement action against an individual who was performing colonic irrigation.
In my book, Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998), I brought forward the debate around colonic irrigation and chiropractic. In some states, the practice is considered within the legally authorized scope of practice; in other states, the statute is silent, and either the courts have ruled definitively one way or another, or, the situation remains ambiguous.
Now colonic irrigation is being assailed as unlicensed medical practice. According to the defendant’s brief, this is despite an internal memorandum claiming this legal territory as ambiguous.
Here is an excerpt from a brief challenging Washington’s decision to prosecute an individual who provided colonic irrigation services as the unlicensed practice of medicine:
IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR KING COUNTY
DIRK YOW Petitioner,
WASHINGTON STATE DEPARTMENT OF HEALTH, Respondent
Case No.: 07-2-02554-5SEA
PETITIONER’S OPENING BRIEF: APPEAL OF AGENCY ACTION PURSUANT TO RCW 34.05 et. seq.
One subject of this appeal is colonic irrigation, a healing arts practice that is centuries old. Nevertheless, regardless of how one feels about this subject, it is not the core issue in this case. The real issue is whether a state agency can illegally abuse its authority under the guise of police power to take away a person’s livelihood.
"The issue is really whether’s [sic] a license required to do [colonic irrigation]."
-From the Assistant AG’s opening statement at the administrative hearing below in 2006.
"Current law is ambiguous concerning . . . colonic irrigation . . . [The] Assistant Attorney General for unlicensed practice . . . has expressed concern about pursuing unlicensed cases involving colonics until the agency has taken a firm position regarding this practice. . . Options . . . draft an interpretative statement which identifies who may perform colonic irrigation . . ."
-1996 DOH internal memo on colonic irrigation.
"[B]ecause of the ambiguity and misinformation about our state laws and policies over the years about the appropriate administration of colonic therapy, the issuance of the interpretive statement and enforcement in this area may be perceived by many, including some legislators, to be new regulations that should have been subject to hearings and deliberations."
– 1998 DOH preamble to a draft Interpretive Statement on colonic irrigation that has never been legally issued.
"[Interpretative] policy statements are advisory only. . . .[They] do not have the force of law. . . [U]nlike rules, policy statements may not operate to revoke a . . . benefit or privilege conferred by law. When an agency improperly relies on [an interpretative policy statement] to have such an effect, the proper remedy is invalidation of the agency’s action." (Emphasis added.)
– Dunn NW v. State Dept of L&I, Docket no. 56301-7 (Division I, April 16, 2007).
These four statements capture the essence of this appeal concerning the Washington State Department of Health’s (DOH) improper exercise of police power. The DOH abused its power to terminate Petitioner Dirk Yow’s 25 year old practice of colonic irrigation as unlicensed medicine while knowing full well that existing statutes and regulations allowed it. Without the legal authority of a proper statute or agency rule prohibiting Dirk Yow’s practice, the DOH declared his practice illegal on the basis of nothing more than an "interpretive policy statement" – and what appears to be an illegitimate "draft" statement that was never officially approved, filed or made available to the public!
Apart from this questionable and unenforceable "interpretive policy statement", the DOH’s only other legal support for prohibiting colonic irrigation as unlicensed medicine was a 2002 California Attorney General’s opinion. The DOH submitted that opinion to its Administrative Law Judge (ALJ) as legal authority. However, unbeknownst to or undisclosed by the DOH, that California AG’s opinion was overturned by the California legislature just 4 months after it was issued! At the time of Dirk Yow’s hearing, colonic irrigation was, and to this day remains, a lawful unlicensed practice in California exempt from all health licensing statutes there.
The DOH’s actions against Dirk Yow, including the imposition of a $444,000 fine, effectively ended his livelihood, costing him his home and driving him from the State.
In the first known case of this type to reach this level..
To read the entire Yow Opening Brief:
» Word Document can be viewed here«
As with any non-licensed healing arts practice, it is good to seek the advice of a seasoned attorney who understands unlicensed practice, corporate practice of medicine, scope of practice, and other legal issues that affect practitioners of complementary and alternative medicine.
Seek health law advice at the outset, while designing and developing your business, from a skilled health care law attorney who understands online health businesses and legal questions affecting mental health care and other professionals.
Michael H. Cohen is an experienced business law and health care law attorney. He has taught health care law and policy at Harvard University and counseled many different kinds of health care practitioners and businesses, including:
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As an attorney at the cutting edge of health care law and business law, he represents enterprises whose leaders are conscious and committed to a better world. He provides legal and regulatory expertise to a multitude of businesses and corporations, as well as to attorneys and law firms involved in various health care legal issues including:
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