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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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

Disclaimer

The information provided in this article is for educational purposes only as well as to give you general information and a basic understanding about client testimonials, not to provide specific legal advice. By reading this article you understand that there is no professional relationship between you and the author. The information provided in this article should not be used as a substitute for competent professional advice from a professional liability risk management consultant or from a licensed attorney in your state.

© 2009-2017 Midge Murphy.  All rights reserved.  You may not disseminate, modify, reproduce, copy, in whole or in part, the information contained on this website without prior written permission from Midge Murphy

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