Midge Online

by Midge Murphy, JD, PhD (Energy Medicine)

Professional Liability Risk Management Consultant
Ethics and Legal Principles in Energy Healing Methods

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What’s a Disclaimer and Why Do I Need One for My Website?

Friday, February 03, 2017

This is the second article in a series designed to provide practitioners of energy based techniques with information about essential risk management tools. In my first article I explored several ways that both licensed and non-licensed practitioners of energy therapies can find themselves in costly and debilitating legal dilemmas because of what is published on their websites. In this article I will discuss the importance of having a disclaimer on your website, provide some of the basic information that should be included in your website disclaimer, and explain why in order to be effective the placement of your disclaimer on your website is critical.

First, it does not matter if you are an individual practitioner (licensed or non-licensed), part of a group practice such as a wellness or integrative care clinic or an organization…..you need a website disclaimer. A disclaimer is generally any statement intended to specify or delimit the scope of rights and obligations that may be exercised and enforced by parties in a legally-recognized relationship. Your website is like a “contract” between you and each visitor to your website and thus you become legally and “contractually” bound by what you publish on your website. Another way to look at your disclaimer is that it’s a type of “informed consent” for each visitor. By posting your disclaimer prominently and by having the specific legal language you need for your website, the viewer agrees to the terms of the disclaimer. This agreement should include that the visitor assumes any and all risks associated with viewing and/or using any of the information contained on your website.

You need a disclaimer on your website to reduce your significant legal risks. While is it clear that disclaimers provide no guarantee of any shield from liability, you need a disclaimer so as to be able to at least have some claim to a defense. There is a recently published case in New Zealand (Patchett v SPATA) where a visitor to the SPATA website filed a claim of negligence; the court found SPATA’s disclaimer was effective in protecting SPATA from liability.

What legal risks you face depends on the content of your website. Many energy based practitioners provide information, advice, and/or instructional information on their websites which exposes them to potential legal claims. For example, you could be sued for negligence if someone claimed to suffer any injury (physical or emotional) because the person followed advice you provided on your website. The risk of facing a lawsuit is greatly enhanced if you provide any instructional information about a technique, process, or modality on your website. Let’s say you provide on your website the basic steps or process on how to do an energy technique/intervention and state that the technique/intervention can help depression or make you feel more positive. What if your visitor suffers from severe depression and in using the process published on your website claims that he/she didn’t feel any more positive and in fact claims his/her depression got worse instead of better? Not only are you at risk for being sued for negligence but also for providing misleading information that could also lead to a claim of misrepresentation and potentially fraud. Remember a claim can be made by a disgruntled visitor even if there is no merit to the claim….you still have to hire a lawyer and defend the claim. Given our ever-growing litigious society and the fact that energy modalities are considered experimental by the authorities and most of the public, only heightens your legal risks associated with having a website. Not to mention the Federal Trade Commission Task Force investigating innovative practitioners’ websites and enforcing the laws which prevent deceptive and unfair acts or practices.

There is no “standard” language that applies to disclaimers. Each disclaimer must be tailored to include precise language to fit the specifics of the website both in terms of the substance of the material and how it is intended to be used. General language will not suffice. A disclaimer is useless if it is borrowed from another website or is a generic form. An appropriate disclaimer has many elements depending on the nature of the website and the contents thereof. Some of the key points are:

  1. State that all information is of a general nature only and must not be taken as advice; and
  2. Instruct visitors to make their own independent inquiries before acting on any information; and
  3. State there is no existence of a professional relationship; and
  4. Provide that testimonials do not constitute a guarantee, warranty, or prediction; and
  5. Provide assumption of risk and release of claims language; and
  6. Provide protection of intellectual property (i.e. copyright) and trademarks, if applicable.

Not only is the content of you disclaimer important but also the placement of it on your website is crucial. You could have an excellent disclaimer but if it isn’t positioned correctly on your website, it can be rendered meaningless. Ideally, the disclaimer should be a portal through which the visitor must go through to access the contents of your website. This means that visitors must be instructed to read and agree to the disclaimer before exploring your website. This act forms the basis to argue that the visitor entered into a “contract” with the publisher of the website that includes that the visitor used the information on the website with full knowledge of (informed consent) and agreement with (“contract”) the disclaimer. If it is merely tucked off into some inconspicuous link that can be easily bypassed by the visitor, the publisher’s argument that a contract has been established has very little merit.

The value of disclaimers depends upon the skill with which they are drafted so to use some form copied from another website will turn out to be legally ineffective. If you rely on some generalized disclaimer to protect yourself, you may find that in an attempt to “save” money you have caused yourself to incur substantial losses. The cost of engaging the services of a risk management consultant or lawyer that has the expertise in energy therapies to help you with your disclaimer is a sound investment. It is my hope that the information shared with you in this article has been helpful… and speaking of disclaimers…here’s mine.

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What You Need to Know About Using Client Testimonials on Your Website

Saturday, December 17, 2016

Most energy healing practitioners publish client testimonials on their websites for the purpose of advertising and promoting their health care services. However, most of these practitioners are not aware that the use of testimonials in advertising must comply with Federal Trade Commission (FTC) laws and regulations, specifically Section 5 of the FTC Act (15 U.S.C. 45). The FTC is the nation's consumer protection agency and is federally authorized to protect consumers and to prevent fraud, deception, and unfair business practices in the marketplace. In addition, many states have consumer protection laws which energy healing practitioners must also comply with when publishing client testimonials on their websites.

For the past decade I’ve been advising practitioners and organizations about the legal and regulatory issues in the practice of energy healing methods. Many in the field are initially resistant to anything legal and it’s not uncommon for clients to remark that dealing with laws and regulations feels uncomfortable. What I’ve experienced is that once legal issues are addressed and appropriate risk management strategies are put into place, the client moves from a place of resistance and fear to one of empowerment.

In this article I will discuss the basic legal requirements the FTC mandates for testimonials. This article also includes sample problematic testimonials and how they can be reworded to decrease their potential legal liability. In addition, I will briefly cover how testimonials can also subject a non-licensed energy healing practitioner to being charged with practicing a licensed profession without a license such as medicine or psychology. Lastly, this article includes recommended essential risk management strategies for energy healing practitioners that publish client testimonials on their websites

It’s important to be aware that a few years ago the FTC put together a special task force to review websites offering health care products or services that make questionable claims of curative ability; are exaggerated, or unproven. The FTC is specifically targeting “newly discovered” therapies that claim to help cure a wide range of ailments. This would include the energy-based methods that are part of the field of energy medicine and energy psychology. The FTC is checking websites looking at several items:

  • The type of modality, technique, or therapy offered by the practitioner
  • The qualifications of the practitioner
  • The claims of effectiveness
  • Violations in the use of restricted language such as non-licensed practitioners using the word “treatment” or “pain” on their websites
  • Lack of scientific proof for the modality, technique, or therapy

Many energy healing practitioners think they are safe because their websites are similar to all the others. This is unwise because over 95% of websites, featuring the services of energy healing practitioners, carry significant legal risks. Remember licensing boards, regulatory agencies, and the courts have a negative perception of energy healing methods and consider them to be unsubstantiated and suspect. In addition, practitioners mistakenly believe client testimonials published on their websites are protected by the First Amendment. This is not necessarily the case. For example, if a client claims in a testimonial that an energy healing method cured his/her diabetes, FTC laws and regulation governing advertising would supersede the client’s First Amendment free speech rights and your right, as an energy healing practitioner, to publish it on your website.

First, let’s state the obvious; from an ethical perspective client testimonials should be true. From a legal perspective and under FTC regulations, client testimonials must be true. Additionally, under FTC regulations, the FTC views client testimonials as claims and satisfied customers are not sufficient to support a health claim. Under the law you must have proof to back up express and implied claims on your website. In addition, health claims must be supported by “competent and reliable scientific evidence". Scientific evidence must be evaluated by qualified people and studies must be conducted using methods that experts in the field accept as accurate. Needless to say, the websites of energy healing practitioners containing health claims, by and large, do not meet the FTC’s standard of being supported by competent and reliable scientific evidence.

To give you a practical idea about what I am talking about, here is an example of a legally problematic client testimonial if it were to be published on a non-licensed energy healing practitioner’s website:

"I’ve have been obese for many years but after getting energy healing treatments from Suzie I’m no longer obesity."

Jane Doe

This testimonial has 2 major problems. First, because obesity is considered a medical condition, the testimonial would be considered to be a claim that the practitioner has cured a medical condition. The FTC would require scientific evidence that Suzie’s energy healing method successfully treats obesity. Second, because obesity is considered a medical condition and the testimonial uses the word “treatment”, the practitioner faces of the risk of being charged with practicing medicine without a license. Here is a better way to phrase the above testimonial in order to reduce the potential legal risks:

"I’ve dealt with weight issues for many years, but after working with Suzie, my eating habits have improved and I’m better able to choose foods that support my goals. I feel great and people compliment me on my appearance."

Jane Doe

Here is another example of a legally problematic testimonial if it were to be published on the website of a complementary and alternative medicine clinic that is under the direction of a licensed physician:

"I was really sick when my friend told me about the Complete Health Restoration Program. I had been dealing with the daily struggle of a progressive disease called Ankylosing Spondylitis. The inflammation, pain and hardening of my connective tissues progressed every night as I slept. After the first round of treatments, I started to thrive. I could feel the reversal of the disease process."

Jane Doe

Since the program is being offered under the direction of a licensed physician, the clinic is not subject to being charged with practicing medicine without a license. However, these statements could be construed by the FTC as a claim that The Completion Health Restoration Program cured a disease. Therefore, in order to make such a claim, the FTC would require competent and reliable scientific proof. Here is a better way to phrase the above testimonial in order to reduce the potential legal risks, including adding a testimonial disclaimer:

We recognize that testimonials are selective and are not fully representative of everyone’s experience. We can’t guarantee any specific results and the following testimonial does not constitute a warranty or prediction regarding the outcome of an individual using our services for any particular issue. Still, we share this to give a sense of what this client has experienced.

“I began using the Complete Health Restoration Program, a complementary and alternative medicine approach to wellness, to help me to deal with inflammation and chronic and debilitating pain. After several treatments, I started to feel better and am now able to move more freely.”

Jane Doe

What are the consequences of having a complaint filed against you by the FTC based on the contents of your website, including testimonials? At the very least you will incur significant legal fees in answering a complaint filed by the FTC and at worst you could be subject to a substantial fine. As an example, in an actual case, in 1998 the FTC brought a complaint against Dr. Roger Callahan, a pioneer in the field of energy psychology who developed Thought Field Therapy (TFT). A Decision and Order was published by the FTC (Docket No. C-3797). The FTC determined that Dr. Callahan’s Addiction Breaking System using TFT lacked competent and reliable scientific evidence among other things. Dr. Callahan and his attorneys entered into a consent order and he was fined Fifty Thousand Dollars ($50,000) and was subject to a number of restrictions. Obviously all energy healing practitioners want to avoid violating FTC rules and regulations.

In addition to FTC laws and regulations and state consumer protection statutes, all practitioners using energy healing methods are subject to legal problems if the testimonials on their websites describe their services in violation the “practice definition” of any laws that apply to licensed health care professionals. One of the most obvious health care professionals would be a physician, but it also includes state laws governing psychologists, social workers, professional counselors, marriage and family therapists, body workers, nurses, and potentially even dietitians, if you provide any kind of nutritional advice. If any licensing board perceives that the services described in a testimonial is the practice of a licensed profession, it subjects the energy healing practitioner to being charged with the crime of practicing a licensed profession without a license.

To illustrate this point, here is an example of a legally problematic testimonial if it were to be published on a non-licensed energy healing practitioner’s website:

“I suffered from depression and PTSD after being discharged from the military but after getting energy healing treatments from Derek; I’m no longer suffering from depression or PTSD”.

John Doe

This testimonial has 2 major problems. First, depression and PTSD are considered DSM V psychological disorders that, as a general rule, can only be treated by licensed mental health care professionals. Therefore, the practitioner faces of the risk of being charged with practicing psychology without a license. Second, the testimonial is also considered to be a claim that the practitioner has cured DSM V psychological disorders. The FTC would require scientific evidence that Derek’s energy healing method successfully treats depression and PTSD. Here is a better way to phrase the above testimonial in order to reduce the potential legal risks:

“I have dealt with a lack a purpose and a tremendous amount of stress after being discharged from the military. After working with Derek using an innovative energy-based technique, I have experienced a greater sense of peace and well-being and feel more positive.”

John Doe

As you can see, there is much to consider before publishing a client testimonial on your website. Due to the complexity of the legal and regulatory requirements regarding client testimonials, it is a good idea to seek professional help. The nuance of the words chosen can make a significant difference as to whether or not you are subjecting yourself to potential legal liability. For example, you do not want to use the word “pain” because it’s considered a medical condition, unless you are a licensed health care provider. If you are an unlicensed practitioner, it’s better to use the words “physical discomfort” instead of “pain”.

There are several risk management strategies listed below that I recommend you consider implementing if you have a website and publish client testimonials.

  • Follow FTC rules and regulations regarding advertising and also comply with the consumer protection laws in your state. You can also becoming familiar with FTC regulations regarding testimonials by studying the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising
  • If you are a non-licensed energy healing practitioner know, understand, and be in compliance with the laws and regulations in your state regarding licensed professions. For example, you do not want the description of your services on your website or in a client testimonial to be perceived as practicing medicine or psychology. Being in compliance protects you from being charged with the crime of practicing a licensed profession without a license.
  • Obtain written permission from a client to use a testimonial. Licensed practitioners should research their regulations and rules to determine if they have requirements for testimonials. Some states do not allow licensed health care providers to use testimonials. Other states do allow them but have specific requirements. For example, in New Jersey, licensed clinical social workers must have a written and notarized permission agreement in order to use a client’s testimonial in marketing materials, including a website.
  • Conduct a risk management audit of your website and other marketing materials and make sure you have a legally sound website disclaimer drafted specifically for the contents of your website. A generic or borrowed website disclaimer will not protect you. The cost of engaging the services of a risk management consultant or lawyer that has the expertise in energy healing methods to help you with your website is an excellent investment.
  • Please remember the information contained in this article is not intended to create fear but to broaden your knowledge base; to help empower you as an energy healing practitioner and to provide you with valuable risk management strategies you can take advantage of to protect your practice and reduce your potential legal liability. It is my hope that the information shared with you in this article has been helpful.
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How to avoid legal problems with your website if you use energy psychology methods

Thursday, December 01, 2016

There are a number of ways that both licensed and non-licensed practitioners of energy therapies can find themselves in costly and debilitating legal dilemmas because of what is published on their websites. Most practitioners using innovative energy based techniques are not aware of the various legal issues that impact and govern their ability to represent themselves to the public viatheir websites. In this article I will discuss some of the legal principles that generate these potential legal problems and provide some steps for managing the risks practitioners face because of the innovative nature of energy therapies. This is a multilayered approach because there are several areas in which practitioners can have a legal problem. In this article, I’m going to cover 3 major legal areas….licensing statutes, the Federal Trade Commission, and misrepresentation.

There are actual cases where complaints have been filed by various licensing boards against energy oriented practitioners not because a formal complaint was received by the board from a client but solely because of the content of their websites. The result was these practitioners had to close their practices after spending thousands of dollars in legal fees to answer the complaints and defend themselves because they were unknowingly in violation of their state’s laws applicable to professional mental health practitioners. These unfortunate situations could have been avoided had the practitioners been aware of the laws in their state and had taken some simple steps to reduce and manage their legal risks. Please be aware that state licensing boards are routinely looking at websites and targeting those that are in violation of the law. This applies to both licensed and non-licensed practitioners and covers all professional health care practitioners.

First of all, it’s important to understand that you must operate within the current legal and regulatory framework that governs how health care is provided in this country. How did this framework evolve into our current health care system? It all starts with the 10th Amendment to the Constitution which grants states the right to protect the safety and well-being of their citizens. As a result, states have passed numerous laws, regulations, and administrative rules to regulate a number of occupations and professions, including, physicians, psychologists, nurses, chiropractors, counselors, lawyers, dentists, real estate agents, etc. The underlying regulatory value upon which all licensing statutes, regulations, and administrative rules are based is public safety.

Innovative energy psychology methods, energy therapies, energy techniques, whatever you choose to call them, are considered experimental and unsubstantiated and are therefore, not part of any established “standards of care” or “scope of practice” in the mental health care field. In order for new innovative therapies such as those used in energy psychology to be accepted, they must pass the “evidence-based” test. This hasn’t happened yet. Consequently even if you believe energy techniques are helpful therapeutic tools, the powers that be, by and large do not. So it’s important for you, whether you are a licensed or non-licensed practitioner, to be aware of how energy therapies are perceived by the authorities because it directly impacts your ability to do your healing work in the world.

BEING IN VIOLATION OF LICENSING STATUTES

For purposes of illustration, I’m going to focus primarily on the practice of psychology but the principles and issues discussed below generally apply to all licensed health care professionals. All 50 states license the practice of psychology. One area of significant risk you face as a practitioner of energy therapies is to be in violation of your state’s psychology practice act. As a general rule there are 2 components to the laws that govern the practice of psychology. One is the title portion of the law and the other is the definition of the practice of psychology.

Title – What you call yourself

Most state statutes are very restrictive in allowing the use of the word “psychology”. For example according to Oregon law, only licensed psychologists may represent themselves to be a psychologist. What does that mean? In Oregon it means

"to use any title or description of services incorporating the words “psychology,” “psychological,” “psychotherapy” or “psychologist,”(ORS 675.020)

This is typical in many states.

In one case, a non-licensed practitioner called herself a “Master Energy Psychological Therapist” and a “Medical/Psychological Intuitive” and got herself into legal trouble with the Board of Psychology in her state. It’s also possible for a licensed psychologist to face professional discipline by his or her licensing board if he or she calls himself/herself an “energy psychologist” because energy psychology is not recognized as a form or branch of psychology.

Even though the discussion above addresses the practice of psychology, other laws may also apply to what you can legally call yourself. For example, you may be legally prohibited from calling yourself a “counselor” or “therapist” unless you are a licensed mental health professional.

Key Risk Management Step – all practitioners need to determine what they can call themselves according to the laws and regulations in their state.

Definition of the practice of psychology – how you describe your services

In addition to title issues, all practitioners using energy techniques are subject to legal problems if on their websites the description of their services violates the “practice definition” of any laws that apply to licensed health care professionals. These includes laws governing psychologists, social workers, professional counselors, marriage and family therapists, physicians, body workers, nurses, and potentially even dietitians if you provide any kind of nutritional advice.

In one case a non-licensed practitioner was deemed to be representing herself as a psychologist in violation of the law because she posted on her website that she used energy psychology methods as part of the services she provided to her clients as a spiritual counselor. In this case she did not use an incorrect title but instead the description of her services used the word “psychology” and that got her into legal trouble.

To further explore the definition of the practice of psychology, again as a example, in Oregon the law states that the “Practice of psychology means rendering or offering to render supervision, consultation, evaluation or therapy services to individuals, groups or organizations for the purpose of diagnosing or treating behavioral, emotional or mental disorders.” (ORS 674.010) This is a very broad definition and historically the courts have ruled that psychology boards have broad discretionary powers in determining what the practice of psychology is. In addition, you need to be aware of what are DSM-IV Psychological Disorders because these disorders define all the major categories of mental illness. As a general rule only licensed mental health professional can consult, evaluate, treat, and/or diagnose DSM-IV Psychological Disorders.

Currently there are numerous non-licensed practitioners who have on their websites that they treat anxiety, PTSD, phobias, depression, allergies, sleeping problems, eating disorders, etc and as a result, face significant legal risks. One non-licensed practitioner was found to be in violation of the law because he posted on his website that he used “energy psychology” techniques to treat PTSD, depression, and anxiety. Slam dunk….he was found to be in violation of both the title and description of services sections of the law and his practice was closed by the Board of Psychology in his state.

It’s not only non-licensed practitioners that face legal risks but also licensed mental health professionals as well. All licensed mental health professional must comply with the “standards of care” and “scope of practice” as defined by their respective licensing laws, regulations, and administrative rules. As I mentioned above, energy oriented therapies are considered experimental and they have not be substantiated by mainstream healthcare. Consequently, they are deemed to be outside the traditional “standards of care” and “scope of practice” definitions that all licensed mental health professionals must follow in working with clients. Licensed professionals could be subject to professional discipline for using energy psychology methods with clients because it could be determined that these methods are per se outside the scope of practice or fall below the standards of care. Licensed professionals face the risk of suspension; having to eliminate energy oriented therapies from their practices and/or loosing their licenses.

In one case a licensed clinical social worker posted on her website that she used a specific energy psychology therapy as part of her practice. She received a complaint from her licensing board asserting she was using an unsubstantiated treatment in violation of the regulations and that this unsubstantiated treatment was outside her scope of practice. After a costly legal battle she had to cease and desist from using this energy psychology treatment in her clinical social work practice. If she wanted to continue using the technique she could only use it for coaching work with clients not therapy.

Key Risk Management Step – all practitioners need to determine how they can describe their services on their websites so they are not in violation of any laws or regulations in their state.

RISK OF RECEIVING A COMPLAINT FROM THE FEDERAL TRADE COMMISSION (FTC)

The Federal Trade Commission is the nation's consumer protection agency. The FTC's Bureau of Consumer Protection works for the consumer to prevent fraud, deception, and unfair business practices in the marketplace. Last year the FTC put together a task force to review websites offering health care products or services that make questionable claims of curative ability; are exaggerated, or unproven. The FTC is specifically targeting “newly discovered” therapies that claim to help cure a wide range of ailments. This would include all of the energy based techniques that are part of the field of energy psychology. The FTC is checking websites looking at several items:

1. The type of modality, technique, or therapy offered by the practitioner

2. The qualifications of the practitioner

3. The claims of effectiveness

4. Violations in the use of restricted language such as non-licensed practitioners using the word “treatment” on their websites

5. Lack of scientific proof for the modality, technique, or therapy

To view an article regarding this issue published by the FTC go to: www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt025.shtm

What are the consequences of having a complaint filed against you by the FTC based on the contents of your website? At the very least you will incur significant legal fees in answering a complaint filed by the FTC and at worst you could be subject to a substantial fine. As an example, in an actual case, in 1998 the FTC brought a complaint against Dr. Roger Callahan and a Decision and Order was published by the FTC (Docket No. C-3797). The FTC determined that Dr. Callahan’s Addiction Breaking System lacked competent and reliable scientific evidence among other things. Dr. Callahan and his attorneys entered into a consent order and he was fined Fifty Thousand Dollars ($50,000) and was subject to a number of restrictions. Obviously all practitioners want to avoid running afoul of the FTC.

Key Risk Management Step – all practitioners need to make sure their websites are in compliance with FTC rules regarding advertising their services to the public

RISK OF A LEGAL COMPLAINT BY A VISITOR TO YOUR WEBSITE

From a legal standpoint what you say about you and your services on your website is like a binding contract with each visitor to your website. Many practitioners do not understand the legal vulnerabilities they face because of the language they use of their websites to describe their credentials, their services or the effectiveness of the therapies they offer to clients. Here is sample language that demonstrates a legal problem:

“Chances are that you've been searching for a way to get relief from your pain and distress--whether emotional or physical. You're about to read about a rapid and effective way to do just that! You can truly resolve these issues so they no longer cause distress. Today, a revolutionary new method called XXXXXXXXX can provide relief for traumatic memories: childhood abuse, war, auto accident, etc. (you can insert any physical or mental problem)”

Here is another statement from another website:

“XYZ is a gentle, fast and reliable technique to achieve quick and lasting relief from negative emotions, trauma, fears and many physical symptoms.”

Both of these statements make claims of curative ability without scientific evidence. In addition, if a visitor read these statements and then engaged the practitioner to help them and as a result did not get the resolution promised on the website, the visitor (now client) could file a legal complaint for misrepresentation. Now the practitioner has to hire a lawyer even if the complaint is without merit. Practitioners can avoid this kind of pitfall by carefully auditing the language on their websites and by having a legally sound website disclaimer specifically drafted for them.

Many of the potential legal issues that can arise from the misuse of language on a practitioner’s website can be ameliorated by a legal disclaimer. To be effective a legal disclaimer must be drafted specifically for that practitioner. A disclaimer is useless if it is borrowed from another website or is a generic form.

In my next article, I will share information about the nuts and bolts of legal disclaimers on websites and why the placement of your disclaimer on your website is crucial.

Key Risk Management Step – all practitioners need to review the language on their websites to make sure they are not at legal risk from a visitor to their websites

Key Risk Management Step – all practitioners need to have a legal disclaimer drafted specifically for them on their websites.

The good news is that energy oriented practitioners are helping clients heal and are making a significant contribution to the health care field. Energy psychology methods are becoming better known which also means the authorities are beginning to take notice. Along with this success comes the concurrent responsibility to make sure you are conducting yourself in an ethical manner and are in compliance with applicable laws and regulations. Failure can bring painful consequences both financial and from a career perspective. It is advisable to take each of the key risk management steps to reduce the potential for legal problems associated with your website. It is my hope that the information shared with you in this article has been helpful

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How energy medicine practitioners can avoid legal problems with their websites

Thursday, November 17, 2016

The purpose of this article is to provide vital information to non-licensed energy medicine practitioners about how to avoid legal problems because of their websites. Being knowledgeable about the legal pitfalls and using risk management tools to decrease potential liability empowers energy medicine practitioners to do their healing work without the threat of being charged with practicing medicine without a license. If you use energy techniques or therapies with clients solely for mental or emotional health purposes and are more oriented to the field of energy psychology please read my companion article at www.MidgeMurphy.com

There are a number of ways that non-licensed energy medicine practitioners can find themselves in costly and debilitating legal dilemmas because of what is published on their websites. Most practitioners using innovative energy based techniques are not aware of the various legal issues that impact and govern their ability to represent themselves to the public via their websites. In this article I will discuss some of the legal principles that generate these potential legal problems and provide some steps for managing the risks practitioners face because of the innovative nature of energy therapies. This is a multi-layered approach because there are several areas in which practitioners can encounter a legal problem. In this article, I’m going to cover 3 major legal areas: licensing statutes, the Federal Trade Commission, and misrepresentation.

There are actual cases where complaints have been filed by various licensing boards against energy oriented practitioners not because a formal complaint was received by the board from a client but solely because of the content of their websites. The result was these practitioners had to close their practices after spending thousands of dollars in legal fees to answer the complaints and defend themselves because they were unknowingly in violation of their state’s laws applicable to licensed health care providers. These unfortunate situations could have been avoided had the practitioners been aware of the laws in their state and had taken some simple steps to reduce and manage their legal risks. Many energy medicine practitioners could be unknowingly in violation of their state laws, including their medical and/or psychological practice acts. Please be aware that state licensing boards are routinely looking at websites and targeting those that are in violation of the law. This applies to both licensed and non-licensed practitioners and covers all professional health care practitioners.

First of all, it’s important to understand that you must operate within the current legal and regulatory framework that governs how health care is provided in this country. How did this framework evolve into our current health care system? It all starts with the 10th Amendment to the Constitution which grants states the right to protect the safety and well-being of their citizens. As a result, states have passed numerous laws, regulations, and administrative rules to regulate a number of occupations and professions, including, physicians, psychologists, nurses, chiropractors, counselors, lawyers, dentists, dietitians, real estate agents, etc. The underlying regulatory value upon which all licensing statutes, regulations, and administrative rules are based is public health, safety, and welfare.

Innovative energy medicine methods, therapies, techniques, whatever you choose to call them, are considered experimental and unsubstantiated and are therefore, not part of any established “standards of care” or “scope of practice” in any licensed health care profession, including the practice of medicine. In order for new innovative therapies such as those used in energy medicine to be accepted, they must pass the “evidence-based” test. This hasn’t happened yet although the Office of Complementary and Alternative Medicine within the National Institutes of Health is conducting research to support the safety and efficacy of energy medicine methods. Consequently at this time, even if you believe energy techniques are helpful therapeutic tools, the powers that be, by and large do not. So it’s important for you as a practitioner using energy techniques to be aware of how energy therapies are perceived by the authorities, especially state medical boards, because it directly impacts your ability to do your healing work in the world.

BEING IN VIOLATION OF LICENSING STATUTES

For purposes of illustration, I’m going to focus primarily on the practice of medicine but the principles and issues discussed below generally apply to all licensed health care professionals. All 50 states license the practice of medicine. One area of significant risk you face as a practitioner of energy therapies is to be in violation of your state’s medical practice act unless your state provides exemptions and/or exceptions for non-licensed healers. So obviously it is imperative to do some careful legal research.

As a general rule there are 2 components to the laws that govern the practice of medicine. One is the title portion of the law and the other is the definition of the practice of medicine.

Title – What you call yourself

Generally state medical practice acts restrict the use of the word “physician” to only those individuals who have obtained a license to practice medicine. Most non-physician energy medicine practitioners don’t represent themselves as “physicians” so aren’t violating this part of the statute. However, words of caution for those energy medicine practitioners that have PhD’s and use the word “Doctor” or any abbreviation thereof in representing themselves because they possibly could be in violation of their medical practice act. For example in Oregon, a person is considered to be practicing medicine if he/she “uses the word “Doctor”……or any abbreviation or combination, thereof,……in connection with the name of the person, or any trade name in which the person is interested, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human diseases or conditions mentioned in this section” (ORS 677.085). If you have a PhD it’s important to disclose on your website and other marketing materials what discipline you earned your PhD in and to state you are not a licensed physician.

Even though the discussion above addresses the practice of medicine, other laws may also apply to what you can legally call yourself. For example, you may be legally prohibited from using the words “counselor” or “therapist” unless you are a licensed mental health professional.

Key Risk Management Step – all practitioners need to determine what they can call themselves according to the lawsand regulations in their state.

Definition of the practice of medicine – how you describe your services

In addition to title issues, all practitioners using energy techniques are subject to legal problems if on their websites the description of their services violates the “practice definition” of any laws that apply to licensed health care professionals. The most obvious health care professional would be a “physician”, but it also includes laws governing psychologists, social workers, professional counselors, marriage and family therapists, body workers, nurses, and potentially even dietitians if you provide any kind of nutritional advice.

Over the last hundred years there have been numerous cases adjudicated about what constitutes the practice of medicine. These cases are helpful in our inquiry as to whether or not using energy healing techniques is considered the practice of medicine. There have been a few cases dealing with alternative healers where criminal convictions of healers were upheld for unlawfully practicing medicine. For example, in Smith v People, a defendant who purported to cure diseases by laying on hands was convicted for "practicing medicine" without a license, even though he did not share with clients what was the matter with them, did not have an official office but practiced out of a home, and used only his hands. The court noted that defendant used the title "Healer" to indicate that he was engaged in the business of treating the sick. The court further emphasized that a public health statute must be construed liberally. The Smith court decided the "practice of medicine" to mean "the practice of the healing art commercially, regardless of the curative agency employed”. The foregoing is typical of decisions made by courts in other jurisdictions. Because state medical practice acts have been so broadly construed by the courts, they has basically created for MD’s a monopoly over health care in this country, asserting that any healing modality, present or future, must come within the sphere of "medicine." Consequently, judicial opinions treating alternative practitioners reflect the dominance of the medical profession over the delivery of health care.

As an example, in Oregon the “practice of medicine” is defined as to

“offer or undertake to diagnose, cure or treat in any manner, or by any means, methods, devices or instrumentalities, any disease, illness, pain, wound, fracture, infirmity, deformity, defect or abnormal physical or mental condition of any person”.(ORS 677.085(4).

Unfortunately, the laws that govern the practice of medicine and how those laws have been interpreted by the courts are antiquated based on a 19th century regulatory paradigm that doesn’t fit into the expanded use of energy techniques in the delivery of health care in this country.

So the bad news is healers potentially face being charged with the crime of practicing medicine without a license. However, the good news is that a few states have passed legislation that creates exemptions and exceptions for non-licensed practitioners of the healing arts. The National Health Freedom Action organization has been instrumental in getting laws passed in New Mexico, Arizona, Louisiana, Rhode Island, Minnesota, Idaho, and California that protects energy healers from being charged with practicing medicine without a license provided healers comply with the requirements set forth in the law. www.nationalhealthfreedom.org

It’s not only non-licensed practitioners that face legal risks but also licensed physicians as well. All physicians must comply with the “standards of care” and “scope of practice” as defined by their respective licensing laws, regulations, and administrative rules. As I mentioned above, energy oriented therapies are considered experimental and they have not be substantiated by mainstream medicine. Consequently, they are deemed to be outside the traditional “standards of care” and “scope of practice” definitions that all licensed physicians must follow in treating patients. Licensed physicians could be subject to professional discipline for using energy healing methods with patients because it could be determined that these methods are per se outside the scope of practice or fall below the standards of care. Physicians face the risk of suspension; having to eliminate energy oriented therapies from their practices and/or loosing their licenses. Some states have passed legislation that protects physicians from facing professional discipline for practicing complementary or alternative medicine provided the physicians meet certain conditions such as training and competency.

Key Risk Management Step – all practitioners need to determine how they can describe their services on their websites so they are not in violation of any laws or regulations in their state.

RISK OF RECEIVING A COMPLAINT FROM THE FEDERAL TRADE COMMISSION (FTC)

The Federal Trade Commission is the nation's consumer protection agency. The FTC's Bureau of Consumer Protection works for the consumer to prevent fraud, deception, and unfair business practices in the marketplace. Last year the FTC put together a task force to review websites offering health care products or services that make questionable claims of curative ability; are exaggerated, or unproven. The FTC is specifically targeting “newly discovered” therapies that claim to help cure a wide range of ailments. This would include all of the energy based techniques that are part of the field of energy medicine. The FTC is checking websites looking at several items:

  1. The type of modality, technique, or therapy offered by the practitioner
  2. The qualifications of the practitioner
  3. The claims of effectiveness
  4. Violations in the use of restricted language such as non-licensed practitioners using the word “treatment” on their websites
  5. Lack of scientific proof for the modality, technique, or therapy

To view an article regarding this issue published by the FTC go to: www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt025.shtm

What are the consequences of having a complaint filed against you by the FTC based on the contents of your website? At the very least you will incur significant legal fees in answering a complaint filed by the FTC and at worst you could be subject to a substantial fine. As an example, in an actual case, in 1998 the FTC brought a complaint against Dr. Roger Callahan and a Decision and Order was published by the FTC (Docket No. C-3797). The FTC determined that Dr. Callahan’s Addiction Breaking System lacked competent and reliable scientific evidence among other things. Dr. Callahan and his attorneys entered into a consent order and he was fined Fifty Thousand Dollars ($50,000) and was subject to a number of restrictions. Obviously all practitioners want to avoid running afoul of the FTC.

Key Risk Management Step – all practitioners need to make sure their websites are in compliance with FTC rules regarding advertising their services to the public and the use of testimonials

RISK OF A LEGAL COMPLAINT BY A VISITOR TO YOUR WEBSITE

From a legal standpoint what you say about you and your services on your website is like a binding contract with each visitor to your website. Many practitioners do not understand the legal vulnerabilities they face because of the language they use of their websites to describe their credentials, their services or the effectiveness of the therapies they offer to clients. Here is sample language that demonstrates a legal problem:

“Chances are that you've been searching for a way to get relief from your pain and distress--whether emotional or physical. You're about to read about a rapid and effective way to do just that! You can truly resolve these issues so they no longer cause distress. Today, a revolutionary new method called XXXXXXXXX can provide relief for allergies, back pain, traumatic memories: childhood abuse, war, auto accident, etc. (you can insert any physical or mental problem)”

Here is another statement from another website:

“XYZ is a gentle, fast and reliable technique to achieve quick and lasting relief from negative emotions, trauma, fears and many physical symptoms.”

Both of these statements make claims of curative ability without scientific evidence. Also by using the word “pain” the FTC would say the practitioner is providing medical services because if a person has “pain” then there’s a medical problem. In addition, if a visitor read these statements and then engaged the practitioner to help them and as a result did not get the resolution promised on the website, the visitor (now client) could file a legal complaint for misrepresentation. Now the practitioner has to hire a lawyer even if the complaint is without merit. Practitioners can avoid this kind of pitfall by carefully auditing the language on their websites and by having a legally sound website disclaimer specifically drafted for them.

Many of the potential legal issues that can arise from the misuse of language on a practitioner’s website can be ameliorated by a legal disclaimer. To be effective a legal disclaimer must be drafted specifically for that practitioner and must be placed appropriately on the website. A disclaimer is useless if it is borrowed from another website, is a generic form, or is not placed properly on the website.

Key Risk Management Step – all practitioners need to review the language on their websites to make sure they are not at risk for a legal claim

Key Risk Management Step – all practitioners need to have a legal disclaimer drafted specifically for them on their websites.

The good news is that energy oriented practitioners are helping clients heal and are making a significant contribution to the health care field. Energy medicine methods are becoming better known which also means the authorities are beginning to take notice. Along with this success comes the concurrent responsibility to make sure you are conducting yourself in an ethical manner and are in compliance with applicable laws and regulations. Failure can bring painful consequences both financial and from a career perspective. It is advisable to take each of the key risk management steps to reduce the potential for legal problems associated with your website. It is my hope that the information shared with you in this article has been helpful

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