Sample Chapter
Chapter 3, By Midge Murphy
Chapter 3
Ethical, Legal, and Regulatory Concerns for Energy Therapy Practitioners
The purpose of this chapter is to provide you, as an energy therapy practitioner, an opportunity to gain understanding about the potential ethical, legal, and regulatory vulnerabilities that could be present in your practice. Within the context of the growing dimension of complementary health care, we will explore the meaning for us as innovators in a new field as well as the ethical and legal principles that directly relate to our individual work.
As we continue our less formal discussions later in this book, you will gain insights into the ethical management of your healing practice.
Definitions of key terms
The overall purpose of ethics is to guide professional practitioners
so that clients' welfare remains the first priority. Simply put, ethical
codes are conduct guidelines. Because our field is so new and there
are no existing guidelines, practitioners may inadvertently act unethically
because they have not considered all aspects of relevant issues.
The foundation for creating ethical codes in CAM and energy–based approaches can be found in various related health care fields such as medicine, psychology, and massage. While none of these fields operate in the same way as the energy therapies in relation to awareness of intuition, subtle energies, intentionality, and consciousness, they provide a foundation for ethical behavior in our practices.
When we begin to consider ethics, some people use other
terms such as values, morals, laws, integrity, principles, and professionalism
interchangeably. While ethics is the study of an operating, practical
philosophy which encompasses all of these expressions, they are not
the same. For purposes of clarification, let’s take a look at
each of these fundamental terms:
1. Ethics is the study of the appropriate choices to
be made by an individual in relationship with others. This can be expanded
to include groups and professions. As such, ethics goes beyond what
can be defined or codified in legal terms. Ethics deals with our moment
by moment decision-making especially when no one else is looking on.
Ethics in energy work involves personal healing and integrity, expertise
in the modalities used with clients, working within the appropriate
standards of practice and within one’s scope of practice, complying
with applicable laws and regulations, and treating the therapeutic relationship
with clients as a sacred contract.
2. Values are tangible and intangible beliefs that persons consider
to be part of their essential nature. Values are based on convictions
and attitudes. For example, an important value for an energy therapist
may be to trust intuition. In addition, respect and concern for others
are two values deeply ingrained in health care professionals. Values
may vary over our lifetime and will be different for each of us.
3. Principles comprise our individual code of honor and create the framework for us to behave with integrity. Principles empower us to adapt our behavior so that each action arises from our core values and deeply held sense of self. An energy practitioner that holds the principle of compassion for her client may be reflecting the value of being nonjudgmental. As with values, principles will differ from one person to another.
4. Integrity means wholeness or completeness. Wholeness
means that the practitioner’s behavior is congruent with her beliefs,
principles, knowledge, intuition, and emotions. Integrity means there
is harmony between different internal aspects, such as our values, which
result in external behavior that is consistent and ethical.
5. Morals relate to a judgment of human actions and character. Morals
are usually based on cultural or religious standards and may define
what is considered “good” or “bad” behavior.
Keep in mind that what is moral in one culture could be considered immoral
by another. For example, an Islamic woman must wear clothes that completely
cover her and would be considered immoral if she wore a T-shirt and
shorts.
6. Laws are codified rules of conduct set forth by society, generally based on shared ethical or moral principles. Laws are enforceable by courts with the purpose of protecting the public’s welfare. Laws and regulations are promulgated by federal governments, by states, and local municipalities. Practitioners must adhere to not only federal and state laws but also regulations set forth by their licensing boards if they are licensed. In addition, there may be local municipal laws and regulations that affect a practice. For example, some cities do not allow therapy practices to be operated from one’s home. Practitioners may also need a city or county business license in addition to professional licensure to practice a given form of therapy.
7. Professionalism is the highest level of integrity a professional can convey to others. Professionalism emanates from our attitudes, values, and principles and is manifested through our practice. It includes our technical competency, our proficiency at communication skills, our respect and compassion, our skill at handling boundaries, and our business style. Incorporating professionalism as part of our therapy practice is equal to behaving ethically.
Obviously, ethical violations are unprofessional. However, not all unprofessional behavior is considered unethical. For instance, dressing in workout clothes when working with a client is unprofessional, but cannot really be considered unethical.
Areas in Which Ethical Violations Can Occur
It is important for us to understand behaviors that are considered unethical
within professional codes of ethics. This knowledge assists us to avoid
the many problems that can occur in daily practice throughout our careers.
Because of the subtleties implied in our innovative practices, there are
many possible areas where misinterpretation by clients and perceived overstepping
of boundaries can occur.
Below is a list of the 16 most prominent possible violations
with one sample of the many likely scenarios. These come from the authors’
review of actual issues that have been brought to their attention.
1. Practicing beyond the scope of practice; exceeding one’s skill
level
Example: Doing energy therapies without appropriate training
2. Financial impropriety
Example: Requiring fees from referral professionals; charging exorbitantly; improper billing to insurance companies
3. Failure to honor the fiduciary relationship
Example: Putting your needs ahead of your client’s needs; having a personal agenda or goal
4. Inappropriate advertising
Example: Presenting misleading qualifications or claims in marketing materials
5. Violating confidentiality
Example: Name dropping a well-known client at a party; sharing client information without a release of information
6. Bigotry, being judgmental of clients
Example: Refusing to work with clients because of their sexual orientation
7. Misleading claims of curative ability
Example: Saying to a client that her trauma will be released in 3 sessions
8. Sexual misconduct
Example: Hugging a client in a sexual manner; using inappropriate language
9. Misrepresentation of education status and skill level
Example: Calling yourself an energy therapist after attending a conference
10. Exploiting the power differential
Example: Telling a client what to do
11. Dual relationships
Example: Applying treatments casually for family; asking for legal advice from a lawyer during a session
12. Violation of laws
Example: Having a practice in your home when it is not permitted by law
13. Failure to obtain informed consent
Example: Not fully discussing the treatment plan with the client as a partner
14. Failure to get adequate supervision
Example: Working with a client who has complex issues for which you need help
15. Ignoring contraindications
Example: Selecting a modality that is inappropriate for a specific client
16. Practicing below the standard of care
Example: Using a modality that is potentially harmful or unsafe for the client
We will discuss these areas of violations further in the next chapter
in light of the psychological dynamics of the human energy centers that
impact our desires, longings, and vulnerabilities as practitioners.
Self-Accountability as the cornerstone of ethical actions
In essence, self-accountability is the cornerstone of ethics. It is
about the decisions we make and who we are when no one is watching.
Persons who embrace self-accountability are honest with themselves and
take responsibility for their speech and actions. When we are self-accountable,
we develop the ability to look beyond the immediate moment to consider
and accept responsibility for all the consequences of our actions. This
personal ethic is the precursor of our professional ethic. We are not
likely to be more ethical in our professional lives than we are in our
personal lives.
There is an important new concept that is emerging in
the helping professions: the caregiver and what he brings to the therapeutic
setting as a person is more important to the outcome of care than the
techniques employed. The nature of the relationship between therapist
and client is at the core of facilitating the healing process. Put another
way, who we are as individuals communicates energetically to clients
much more than a specific technique or method. While ethical guidelines
within our professional group or specialty provide an external locus
of control, self-examination of values and motivations stimulates development
of an internal locus of control. External guidelines are helpful, but
ultimately, we will use our own values and motivations to choose a course
of action. Ethical codes encourage behavior that is more effective therapeutically
and discourage behavior that is ineffective or harmful.
In the past, the focus of ethical directives has been punitive rather
than educational in nature. Currently, there is a shift in thinking
to go beyond prevention of harming to an ethic of caring that honors
the sacred contract between healer and healee, therapist and client.
This movement brings the focus of ethical codes to valuing the energetic,
spiritual connection between therapist and client and honoring every
part of the interaction with care.
Core Psychological Concepts in Ethics
There are a number of core psychological concepts that have been developed
to guide caregivers to behave responsibly and ethically. These concepts
create the bedrock of ethical decision-making and responsible behavior in
all our relationships. The fundamental considerations for a therapeutic
relationship that we will explore further are:
• to be client-centered
• to maintain the fiduciary relationship
• to develop a professional environment for structure and safety
• to be sensitive to the power differential
• to address transference and counter-transference issues
The focus and purpose of all interventions is directed toward client
needs and treatment -- not the therapist’s desires, interests,
or wishes. Client-centered care also means that the client has a voice
in the healing process and must agree to the course of treatment for
it to proceed. The client is considered a partner in decision-making
while the therapist has a commitment to create a space that supports
and nurtures the client, allowing the inner wisdom of the client to
be a full participant in treatment direction.
All health care practitioners have a fiduciary relationship with their clients. “Fiduciary” is the legal term that is applied to a professional in whom a client places his/her trust. This implies a higher standard of responsible behavior on the part of the practitioner than on the client to insure that this trust is maintained.
The therapeutic relationship is structured so that a specific time to meet is set in a professional environment, the length of each session is determined, and there is agreement on office procedures and payment requirements.
Furthermore, the client has a right to expect that emotional, spiritual, energetic and physical boundaries are honored. Thus, we as practitioners create a safe, protected surrounding, free of inappropriate personal comments or sexual innuendos.
The power differential is inherent in any therapeutic relationship. In ethical practice, awareness of the power differential benefits clients by acknowledging that they are in a more vulnerable position. The implicit acknowledgment of the practitioner’s expertise is amplified by the physical, psychological, and spiritual aspects of energy modalities. It is important to ask ourselves, how am I handling my power?
To maintain a healthy practice, we, as the empowered practitioners, must pay special attention to the needs of the person with less power. We must also ask, how am I encouraging my client to express concerns? How am I obtaining feedback from clients who may not be able to express themselves readily?
Transference occurs when a client personalizes the professional relationship with the therapist thereby diminishing its effectiveness. The more disorganized, disempowered, and lacking in internal resources clients are, the more susceptible they will be to transferences.
Counter-transference is the inability of the professional to separate the therapeutic relationship from personal feelings and expectations. Therefore, we must actively seek ways of preventing excessive client dependency, emphasize personal empowerment as a goal of therapy, avoid judgments about a client, seek supervision when experiencing difficulties, and refer clients when appropriate.
Major Sources of Potential Liability Risk and Risk Management Tools
Major sources of potential liability risks (Cohen, 2005) are as follows:
• Offering clients one or more therapies that have limited evidence for safety or efficacy as cited in medical literature or recognized professional journals
• Not asking clients on intake about use of dietary supplements; or recommending or selling supplements within the office or organization
• Lacking a robust informed consent process (with dialogue and decision-making) by using appropriate informed consent and release of information forms
• Receiving payments from persons with whom you share space or resources, or from practitioners to whom you refer, either in the form of rent or other exchange, which constitutes a form of profit-sharing and creates legal exposure.
• Making claims on your website, client brochures, marketing materials, and in your patient encounters, that are inconsistent with federal Food and Drug Administration (FDA) and Federal Trade Commission (FTC) guidelines.
The top five liability risk management tools cited by Cohen (2005) are as
follows:
• Evaluate the literature, theory, and research to decide how risky any approach you are using is in terms of safety and efficacy
• Keep back-up files of the literature that you have studied and used for your practice.
• Provide clear informed consent that takes into account the risks and benefits of the approaches you are using. Document that you have given informed consent, citing risks and benefits to the client, and insuring that the client freely chose to participate in the approach you offered.
• Continue conventional diagnostic and therapeutic regimens, or at least, monitor conventionally to ensure there are no missed diagnoses or overlooked conventional treatments that might have been medically necessary. Document when medical evaluation of the client’s symptoms has been made.
• Seek consultation and supervision from a person who is known to have expertise for complex situations. Make referrals to appropriate practitioners for clients whose needs exceed your skill level.
Essential Legal Principles for Both Non-licensed and Licensed
Professionals
Both licensed and unlicensed practitioners of energy therapies need
to be aware of legal concerns that affect their pursuits. Scope of practice
issues, possible malpractice or negligence, lack of sufficient informed
consent, possible misrepresentation interpreted as fraud, violations
of confidentiality, possible assault through improper touching -- all
these are legal issues that can emerge for an unwitting energy therapy
practitioner who is not aware of the consequences of his or her actions.
Licensure and scope of practice
Energy healing practitioners generally fall into two classifications:
those that are licensed such as psychologists, physicians, nurses, and
social workers and those that are unlicensed such as shamans, herbalists,
energy healers, and medical intuitives.
Licensed practitioners must comply with the state laws which regulate their profession. States have the right to regulate professions under the Tenth Amendment of the U.S. Constitution which leaves states free to regulate matters of health, safety and welfare affecting citizens. While both groups are subject to legal liabilities, each group has separate issues to consider.
Licensed providers have a scope of practice and standards of practice they must follow which are defined by each state’s statutes, regulations, and interpretive cases. By practicing innovative energy techniques, a licensed practitioner may be subject to professional discipline. A licensing board could take the position that energy techniques fall below the standard of care or fall outside the scope of practice. This is considered unprofessional behavior and could lead to probation, suspension, or revocation of the caregiver’s license. Therefore, it is advisable for licensed practitioners, who incorporate energy modalities, to belong to professional organizations that support the approaches the practitioner uses with clients. A professional organization with research information, certification programs, internal standards of practice, and an ethics code is a credible witness and ally if a practitioner were to be summoned by a regulatory board.
There is an evolving legal theory in this area called the “respectable minority defense.” Courts and licensing boards could accept expert testimony regarding innovative energy techniques, even though they are not yet generally accepted in mainstream health care, if they can be supported by significant research and are used responsibly according to existing studies and protocols.
A non-licensed practitioner is not subject to professional
discipline by a licensing board. However, a
unlicensed practitioner is exposed to claims of practicing a licensed
profession without a license and could be charged with a crime. Although
health care freedom legislation (as mentioned in chapter 2) ameliorates
this exposure in some states, non-licensed practitioners must tread
very carefully in the conduct of their practices.
For example, doing in depth counseling without a license to do so, would be considered practicing a profession without a license.
Malpractice and negligence
Malpractice is typically defined as unskillful practice that fails to
conform to a standard of care in the profession and results in client
injury. As stated earlier, standards of care are specific to a profession
(e.g. medicine, psychology, acupuncture, counseling, etc). Therefore,
licensed providers can be sued for malpractice by clients and also can
be subject to professional discipline based on a malpractice claim.
It is possible that an innovative energy modality by itself could be
deemed a form malpractice by a licensing board. Negligence encompasses
failure to perform the duty of due care which results in injury to another.
Non-licensed practitioners are subject to claims of negligence by their clients as well as other common civil torts. The court would need to determine whether the practitioner acted as a “reasonable practitioner” for a particular modality. If not, the practitioner could be found negligent.
Informed Consent
A second basis for incurring malpractice and negligence liability is
inadequate informed consent.
Informed consent is defined as the consent a client gives before she undergoes a therapeutic process. Informed consent implies the client knows what the therapist will do and how the procedure is likely to affect her during and after the therapy. Therefore, it is imperative for both licensed and non-licensed energy healing providers to engage in a rigorous dialogue with clients regarding the treatment plan.
In assessing whether a specific failure to disclose information regarding the risks and benefits of a recommended therapy has violated the informed consent obligation, courts identify whether a reasonable patient would find the information material given sufficient to make a decision to undergo or forego treatment. (See discussion of informed consent in chapter 5 and sample form in Appendix C).
Fraud and misrepresentation
Both licensed and non-licensed practitioners are subject to legal liability
for fraud and misrepresentation in their practices. Fraud and misrepresentation
involve the knowing reliance on inaccurate or false information for
the benefit of the person committing the fraud and to the detriment
of the victim (Cohen, 1998).
The practitioner must know the information is false, or recklessly fail to discover its veracity, and the victim must reasonably rely on the representation. A fraud claim typically opens the practitioner to the possibility of punitive damages. Fraud is harder to prove than negligence, since fraud requires proving intention and recklessness and not simply that the standard of care was not met.
Confidentiality and privacy
Confidentiality is the ongoing obligation of licensed and unlicensed
caregivers to keep private the information shared with them by clients
in the course of treatment. It is an obligation that exists until the
client grants permission for confidentiality to be breached or a situation
arises that falls within one of the exceptions to confidentiality. Signed
release of information forms, granting the practitioner permission to
release information to a specific professional, are the accepted way
to handle client agreement for a practitioner to discuss a case. State
and Federal statutes, including the Health Insurance Portability and
Accountability Act (HIPAA), have increased the requirements for signed
releases. HIPAA formalizes many of the pre-existing protections of medical
information, which it refers to as Protected Health Information (Schouten
& Cohen, 2004).
There are exceptions to the duty of confidentiality that allow information to be disclosed without a client’s express permission. The exceptions include client emergency, an express written waiver, or the possibility of the client’s being in imminent danger to self or others. Even under these exceptions, however, confidentiality should be breached to the least extent necessary to accomplish the necessary goal. Practitioners may also have a duty to breach confidentiality where it is necessary to protect third parties from potential violence, other risks posed by a client, such as infection, or genetic predisposition to serious diseases (Schouten & Cohen, 2004).
Assault and battery
The legal definition of assault is “creating an imminent apprehension
of harm.” The legal definition of battery is, “physical contact
without consent.” Both in social situations, and with clients, we
imply consent to a certain, socially understood level of contact.
For example, strangers in a crowded subway train expect to be somewhat jostled. But other contact is considered nonconsensual -- particularly, in a therapeutic practice, when it could be construed as possible sexual misconduct (Cohen, 2003).
Further, the obligation of informed consent requires discussion and disclosure of procedures the therapist will perform as well as their risks and benefits (See case example 5.1). Whereas such action was deemed battery in the past, increasingly, such violations come under the malpractice theory of negligence.
Summary
Although many of us in energy healing practice are highly individualistic,
our practices need to honor the reality of ethical and legal concerns. Careful
understanding of these areas will help to give credibility to our emerging
discipline as a viable approach to health care. As caring persons, we also
need to utilize such available resources as referrals and consultations
to maximize outcomes for our clients.
