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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