licensing of herbalists

[Guest guest]

The practicing medicine without a license (PMWL) issue is one I've followed

closely for over 10 years. After hearing a lot of rumors and conflicting

information from fellow health practitioners, I decided to get myself some

training in law. When I was director of the Colorado Herbal Institute (now Rocky

Mountain Herbal Institute) I had an advisory baord member who was an organic

farmer and ex-lawyer (often the best type, they are very blunt about their

former profession). He told me how to look up case law and to see how the courts

deal with gray zones in the statutes. Everytime I heard of a case of PMWL

anywhere in the country, I followed it in the news and law reports.

 

Although in principle every state's case law will differ, in fact in many areas

they tend to converge, as courts in each state closely watch each other for

trends. (Case law precedents within a state are called " stare decisis " ; whereas

case law from other states is called " persuasive authority " - both are relevant

and may be used in arguing position in legal briefs.) If one state begins to

diverge from a trend, it is more likely that political pressures from voters and

from the federal level will act to return that state's courts to the trend. The

recent activity regarding gay rights is a perfect example of how this

give-and-take is unfolding among the states and federal levels.

 

The cases that I found in the law journals and reported on in my article are

considered to be key cases in the history of PMWL in the U.S. generally, and

define the limits of PWML. The recent Hulda Clark case in Indiana was a classic

example of someone who violated many of the guidelines outlined in my article,

and they went after her. After spending about $50,000 in attorney fees, she

prevailed in a jury trial, because the public is so sympathetic to most

alternative practitioners that prosecutors know they must have a watertight case

to get a conviction. So they will not even touch a case which is anywhere near

the gray zone. The clearest way to get yourself out of the gray zone, as the

cases in my article make very clear, is to give out a disclaimer that one is not

a " doctor " or " physician " . For example, although I have a Ph.D., if a potential

client (not patient), calls me on the phone and refers to me as " Dr. Wicke " , I

immediately correct them, letting them know that although I have an academic

degree in Biomedical Engineering, I am not a physician and do not diagnose or

prescribe for MEDICAL conditions. This guideline comes from several cases,

including the People v. T. Wah Hing case from California in 1926, and to this

day is the most important aspect of PMWL prosecutions.

 

What the recent California laws do ( " Health Freedom Act " legislation) is merely

to put into statutory form what really has been established case law for almost

a hundred years. That makes it easier for the public to know what the real

situation is, without having to hire expensive lawyers to interpret the current

state of the case law. Ten years ago, doing the background research for the

article took about a hundred hours of my time. Now, in California, you can

easily read the statutes in a few minutes and understand what is intended.

 

Health Freedom Acts have already been passed in California, Rhode Island, and

Minnesota. There is tremendous pressure from the public to formally recognize by

statute what is already case law, but which up until recently has been a

carefully guarded lawyer's club secret. Health Freedom Acts are being considered

in many more states, and there is also an active international movement. See:

 

http://www.rmhiherbal.org/review/2003-1.html

State Health Freedom Acts - A Growing Trend

 

However, the established health professions seem much less interested in

supporting such acts, because of their own vested interested in the status quo.

I find it interesting how only 30 years ago, acupuncturists were vigorously

supporting the public's right to choose health care options, but now that they

are part of the system, are increasingly heard to have the position that the

ignorant public should be forced to come to them for advice and herbs. I find

this extremely hypocritical, considering that many licensed acupuncturists have

little or no training in herbs, even though many states include herbs within

their scope of practice. Years ago, the Montana acupuncturists had made an

attempt to pass a bill giving them the exclusive right to practice Chinese

herbology; there was some debate as to the effect of the bill's wording, but on

the face of it, that is what it purported to achieve. I was outraged, and

immediately wrote to the Senate committee reviewing the legislation calling

their attention to the minimal herbal training of many of the local

acupuncturists. They invited me to testify, and I did. The wording of the bill

was referred to the Montana Supreme Court for advice, and the offensive sections

were removed by the committee. Montana is not a state where such antics are

looked upon kindly.

 

Perhaps it might help you to understand my positions by stating that I am not an

extreme libertarian. IMO extreme libertarianism of the type that says all

persons (natural and juristic persons, including corporations) should have the

right to do whatever they please inevitably leads to fascism, because corporate

power will always trump individual power if given the chance. What I try to

carefully document in many of my articles, is that our legal system and

tradition already provides the framework for placing a leash on corporate

abuses. The problem is that the general public does not understand the legal

distinction between private rights and corporate or quasi-corporate privileges.

It is these corporate privileges (ability to pool massive wealth while operating

in limited liability, unlimited lifetime, protected franchises, etc.) that have

been abused and must be brought under control once more. The Bush administration

is the most guilty in recent history for allowing corporate power to act without

restraint, at the sacrifice of individual rights.

 

A state granted license to practice medicine, or acupuncture, is a

quasi-corporate privilege. It should be regulated to stricter standards than

individuals are held to. If acupuncturists cannot meet higher standards of

herbal knowledge than the general public, they should not be granted a state

monopoly license to do so. How is the public served by this? A state-granted

monopoly (franchise) is a privilege, and in return certain things should be

demanded, just as of corporations, which are also state-granted franchises.

 

If a non-licensed practitioner offers his or her services to the public, the

rule of caveat emptor applies, barring fraud - and the Health Freedom Acts

affirm that such practitioners are obligated to honestly state their experience

and training to their clients. There is a tendency among many in the public,

however, to assume that licensed practitioners are held to a higher standard;

when these licensed practitioners in fact are not held to a higher standard,

this can lead to much mischief.

 

" I know of no safe depository of the ultimate powers of

the society but the people themselves: and if we think

them not enlightened enough to exercise their control with

a wholesome discretion, the remedy is not to take it from

them, but to inform them. "

-- Thomas Jefferson

 

I agree with Jefferson that the most effective way to protect the public is to

offer education and information to them - and even shame them for their

ignorance. All other approaches, i.e., the paternalistic ones ( " trust us, we

know better " ) invariably lead to fascism and the worst kind of abuses.

 

I think you may find it interesting to read a key document in the historical

origin of the common-law right of herbalists to practice without a license, that

has provided the foundation of Anglo-American legal precedent in this matter,

and which is relevant in all nations and former nations of the British

Commonwealth:

 

Herbalist's Charter of Henry the VIII; 1543 A.D. The Naturopathic Rights are

covered in the Original 13 States of America under this charter. A copy of this

document was procured through the efforts of Dr. Benedict Lust during his visit

to England in 1907; the text follows:

Herbalist's Charter of Henry the VIII; Annis Tricesimo Quarto and

Tricesimo Quinto. Henrici VIII Regis. Cap. VIII. An Act That

Persons,

Being No Common Surgeons, May Administer Outward Medicines.

 

Where in the Parliament holden at Westminster in the third Year

of the

King's most gracious Reign, amongst other Things, for the

avoiding of

Sorceries, Witchcrafts, and other Inconveniences, it was enacted,

that

no Person within the City of London, nor within Seven Miles of

the same,

should take upon him to exercise and occupy as Physician and

Surgeon,

except he be first examined, approved, and admitted by the Bishop

of

London and other, under and upon certain Pains and Penalties in

the same

Act mentioned: Sithence the making of which said Act, the Company

and

Fellowship of Surgeons of London, minding only their own Lucres,

and

nothing the Profit or ease of the Diseased or Patient, have sued,

troubled, and vexed divers honest Persons, as well as Men as

Women, whom

God hath endued with the Knowledge of the Nature, Kind, and

Operation of

certain Herbs, Roots, and Waters, and the using and ministring of

them

to such as been pained with customable Diseases, as Women's

Breasts

being sore, a Pin and a Web in the Eye, Uncomes of Hands,

Burnings,

Scaldings, Sore Mouths, the Stone, Strangury, Saucelim, and

Morphew, and

such other Diseases; and yet the said Persons have not taken

anything

for their Pains or Cunning, but have ministered the same to poor

People

only for Neighbourhood and God's sake, and of Pity and Charity:

And it

is now well known that the Surgeons admitted will do no Cure to

any

Person but where they shall be rewarded a greater Sum or Reward

than the

Cure extendeth unto; for in case they would minister their

Cunning unto

sore People unrewarded, there should not so many rot and perish

to Death

for lack or Help of Surgery as daily do; but the greatest part of

Surgeons admitted been much more to be blamed than those Persons

that

they troubled for although the most Part of the Persons of the

said

Craft of Surgeons have small Cunning yet they will take great

sums of

Money, and do little therefore, and by Reason thereof they do

oftentimes

impair and hurt their Patients, rather than do them good.

 

In consideration whereof, and for the Ease, Comfort, Succour,

Help,

Relief, and Health of the King's poor Subjects, Inhabitants of

this

Realm, now pained and diseased: Be it ordained, established, and

enacted, by Authority of this present Parliament, That at all

Time from

henceforth it shall be lawful to every Person being the King's

subject,

having Knowledge and Experience of the Nature of Herbs, Roots,

and

Waters, or of the Operation of the same, by Speculation or

Practice,

within any Part of the Realm of England, or within any other the

King's

Dominions, to practice, use and minister in and to any outward

Sore,

Uncome Wound, Apostemations, outward Swelling or Disease, any

Herb or

Herbs, Ointments, Baths, Pultess, and Emplaisters, according to

their

Cunning, Experience, and Knowledge in any of the Diseases, Sores,

and

Maladies beforesaid, and all other like to the same, or Drinks

for the

Stone, Strangury, or Agues, without suit, vexation, trouble,

penalty, or

loss of their goods; the foresaid Statute in the foresaid Third

Year of

the King's most gracious Reign, or any other Act, Ordinance, or

Statutes

to the contrary heretofore made in anywise, notwithstanding.

 

 

 

 

> Thu, 29 Apr 2004 13:52:10 -0700

> <

>licensing of herbalists

>

>Roger

>

>I read your article about the legality of the unlicensed practice of

>herbology. You certainly make the case that it is largely the words

>used to describe one's practice that the courts have regulated, not the

>practices themselves. I am not sure if your main point is that the

>courts are being hypocritical, playing a semantic game over labels

>while still condoning the legal practice of alternative medicine. Or

>that herbalists don't actually practice medicine anyway, since they do

>not diagnose or treat illnesses, but rather assess imbalances and

>recommend herbs to improve health. First of all, medicine is licensed

>by each state and each medical practice act differs. So case law from

>one state is really irrelevant to another. second, very old cases may

>reflect opinions made prior to changes in the medical practice act. In

>addition, one cannot apply rulings from 1901 or even 1964 w/o

>considering changing circumstances. The old Separate but equal ruling

>could not be used to prevent a new idea for new times -

>antidiscrimination laws.

>

>I will limit myself to how this position fits with TCM. TCM definitely

>treats illness. It does not just assess imbalance and apply herbs to

>improve health. This may be the way it is taught or conceived, but TCM

>has actually largely been geared towards disease treatment for much of

>the last 2000 years. diseases were diagnsoed (bian bing) and patterns

>were differentiated within those diseases (bian zheng). But the one

>of the main focuses of texts going all the way back to the nei jing and

>shang han lun has been on specific diseases. This pattern continues in

>the works of wen bing specialists and zhu dan xi all the way to modern

>internal medicine texts. These diseases are presented in terms of

>making a correct diagnosis and treatment is determined upon that

>diagnosis. anything other than this process is considered malpractice

>in classical chinese texts. I cannot see how the practice of chinese

>herbology fits any other definition than that of practicing medicine.

>Sure, I suppose you could claim to treat only patterns, but this is not

>really the TCM tradition, where disease was discussed as often as

>pattern.

>

>And if it comes down to semantics, what are you doing when you gather

>symptoms from a patient and plan a strategy to help the patient,

>whatever terms you use? If your treatment is geared in any way towards

>relieving the patient's chief complaint, you are practicing medicine

>under CA law. It does not matter if you claim to be treating MS,

>balancing zang-fu or merely combatting fatigue. If the intent of both

>you and the patient is symptom relief, it is medicine.

>

>And what do people actually do? I wish people were so scrupulous about

>their word choice, but in health food stores, there is no attempt to

>hide what is going on. A customer comes in an says they have high

>blood pressure. The clerk says here, take this, it good for your

>heart. that's not semantics. That's the practice of medicine w/o a

>license. Now having said that, I think people should be free to do

>business with whomever they please. Licenses merely insure that the

>public has some recourse if injured. If the corner herbalist injurs

>me, he cannot have his license revoked. While there are methods for

>redress, none as accessible as a licensing board. So there is no broad

>public protection w/o licensure. Anyone can claim to be an herbalist

>(and anyone does). Perhaps caveat emptor should reign in this arena.

>But for caveat emptor be a safe way to run a medical system, would

>require an educated populace, something I sensed you may be skeptical

>of in your article on the dumbing down of america. How do we protect

>the ignorant, weak, powerless and uneducated from injuring themselves

>and being taken advantage of. Education is the key for the long term.

>But what about for the next 50 years. I know its paternalistic and I

>once rejected it myself. but I see no other choice.

>

>In addition, I sense your anti-corporatism as well. I strongly oppose

>corporate control of anything. They should be servants, at best.

>current libertarian policies, such as the DSHEA law, favor a corporate

>libertarianism that allows the strong to prey on the weak. We

>couldn't get any more libertarian than DSHEA in america. However that

>libertarianism has led to unscrupulous marketing of potentially

>dangerous supplements. Only regulation that protects our right to

>practice and restrains the right of corporations to sell allegedly

>dangerous products directly to the public can rectify this situation,

>which I believe exists due to current irrational regulations, not

>regulation per se. when regulations are applied to protect the public

>and not the industry or professions they oversee, that will be my ideal

>world.

>

>

>

>Chinese Herbs

>

>

>FAX:

 

 

In another post of Todd's:

=================

 

SB 577 makes an addition to the existing Business and Professions Code:

 

Section 2053.5 Notwithstanding any other provision of law, a person who

discloses to a client that he or she is not a licensed physician shall

not be in violation of Section 2051, 2052, or 2053 unless that person

does any of the following:

 

(a) Conducts surgery or any other procedure on another person that

punctures the skin or harmfully invades the body.

 

(b) Administers or prescribes x-ray radiation to another person.

 

© Prescribes or administers legend drugs or controlled substances to

another person.

 

(d) Recommends the discontinuance of legend drugs or controlled

substances prescribed by an appropriately licensed practitioner.

 

(e) Willfully diagnoses and treats a physical or mental condition of

any person under circumstances or conditions that cause or create great

bodily harm, serious physical or mental illness, or death.

 

(f) Holds out, states, indicates, advertises, or implies to a client or

prospective client that he or she is a physician, a surgeon, or a

physician and surgeon.

 

---Roger Wicke, PhD, TCM Clinical Herbalist

contact: www.rmhiherbal.org/contact/

Rocky Mountain Herbal Institute, Hot Springs, Montana USA

Clinical herbology training programs - www.rmhiherbal.org

[Guest guest]

, " "

wrote:

> , rw2@r... wrote:

>

> I still believe you are incorrect about this. It seems clear to me

>that herbal practice was not legal in CA before SB 577 and the case

>law you referred to would not have been not considered valid in the

>CA courts. Our >practice clearly defines any medical intervention,

>regardless of terminology, as the practice of medicine. Whenthe

>bill was offered, the sponsors said they were

>legalizing something thathad been illegal under the strict

>intepretation of the medical practice act. the courts did not

>force them to conform to case law in this matter. the fact that

>juries nullify the law on a regular basis is another

> thing altogether.

> I believe your legal position is well researched. I have seen

>similar arguments made about things like drug laws and federal

>income tax. However in all these cases, the position is not

>generally accepted by the courts today.......... SB

> 577 made something legal that had been illegal. It did not make

>something clear which had been grey. If sympathetic juries did not

>nullify these laws, then your case would be weakened immensely. I

>doubt judges feel the same way. I believe it was the intent of

>medical practice acts to do just what they do - prevent some people

>from practicing. If a medical practice act does not

>prevent some people from practicing, it serves no purpose at all.

 

 

I think here your key words are " legalizing something that had

been illegal under the strict interpretation of the medical practice

act. " While you are right about this that a strict interpretation of

the

medical practice act leaves no room for the practice of herbalism,

but such a strict interpretation of law has inherent problems in it

which will eventually lead to restricting Grandma from suggesting

cinnamon and ginger for some situations. Strict interpretation of the

medical practice act is practically not " livable " and therefore I

think such a strict interpretation of law, if enforced on a herbalist

who has avoided the use of terminology related to the practice of

western medicine will not finally succeed in the court of law.

 

I think given the current situation of public sympathy for

alternative health care, any herbalist avoiding the use of

terminology as suggested by Roger is practically very safe.

 

Regards

 

Rizwan Kherati DSc,HHP

[Guest guest]

 

 

If you would show me the California statute wording, we could pick it apart. But

from your statement below, the key is " medical " intervention. As the case law

clearly states, " helping someone to improve their health " is very different

legally from " prescribing herbs for the relief or cure of disease " , even though

***the very same physical actions are involved***. As long as these physical

actions do not involve invasive or harmful ones, surgery, etc., and one does not

claim to be a doctor, then one is safe. If you can find a case of prosecution

for practicing medicine without a license that does not follow these guidelines,

I'd be interested in knowing about it, but I am not aware of a single one. In

spite of the statutory wording, there is a little known trick in statutory

interpretation that courts apply all the time: if the wording of a statute would

violate common-law rights or constitutional provisions that have already been

ruled on (stare decisis), the interpretation is " adjusted " to make the statute

conform to constitutional standards. This is one of the lawyer club secrets -

the wording to the public is never changed, it's just a wink-wink sort of

understanding that the lawyer's club members know what is really meant. Often

though, these types of recognitions get explicitly included under " Notes " in the

annotated version of the state statutes. There are many laws still officially on

the books, that the courts have effectively annulled by ruling them invalid for

various reasons.

 

Regarding jury nullification, there is a very active Jury Nullification group

here in Montana, with some knowledgeable folks. What I learned from researching

this, is that from Supreme Court precedent (would have to look up the case), it

has been ruled that juries and jury members have the ***power*** to ignore

judge's instructions if their own conscience demands it, even though their

***duty*** is to obey the judges instructions, though there is no penalty to

jury members for following their conscience and ignoring their duty. (How's that

for legerdemain?) The Court ruled that the judge ***was not required to tell

them about this power that they had*** - individual jury members were expected

to know it all by themselves. That is the main reason why there is a lot of

confusion about this issue.

 

Re: your comment:

" >But it was protest and

>disengagement that actually succeeded. We could all default on our student

>loans. "

 

Pleading with politicians to do the right thing will get you only so far. If one

is in a less powerful position, then protest, disengagement, and ***legal

resistance and offense*** can be very effective. I'm not advocating defaulting

on your student loan, but what I do advocate is this:

If a public servant is abusing his authority, follow his or her every

actions like a bulldog (I also like the analogy of a Gila monster, for those of

you in the Southwest), documenting and researching everything they do. Sometimes

letting them know you are doing this will make them nervous and cause them to

make even more mistakes. Many of the laws on the books are intended to control

and limit the actions of government employees. The dirty secret is that many

government officials have gotten cocky and arrogant, because people don't call

them on their illegal actions, but when someone does, you have them hog-tied.

Several years ago I helped to rid the town of an abusive school superintendent.

I finally got so sick of hearing tales of woe from parents, literally in tears,

that I vowed to get the S-O-B. I attended every school board meeting for 6

months, collected eye-witness reports, helped school board members research

state school laws, and documented his every illegal move in the previous year.

At the end of the year, he was out, after a 20-year dynasty of terror.

 

And you are right that it is not easy to defend oneself in a corrupt court

system. One might be legally correct, but lose anyway through procedural tricks

and deceptions. One of my heros is a man named Sherman Skolnick, who exposes the

corruption in the U.S. court system, especially federal judges. I highly

recommend his website and articles:

 

http://www.skolnicksreport.com/

 

Roger

 

 

> Fri, 30 Apr 2004 19:18:10 -0000

> " " <

>Re: licensing of herbalists

>

> , rw2@r... wrote:

>

>>

>> What the recent California laws do ( " Health Freedom Act " legislation) is

>merely to put into statutory form what really has been established case law

>for almost a hundred years. That makes it easier for the public to know what

>the real situation is, without having to hire expensive lawyers to interpret

>the current state of the case law. Ten years ago, doing the background

>research for the article took about a hundred hours of my time. Now, in

>California, you can easily read the statutes in a few minutes and understand

>what is intended.

>

>Roger

>

>I still believe you are incorrect about this. It seems clear to me that herbal

>practice was not legal in CA before SB 577 and the case law you referred to

>would not have been not considered valid in the CA courts. Our practice

>clearly defines any medical intervention, regardless of terminology, as the

>practice of medicine. Whenthe bill was offered, the sponsors said they were

>legalizing something thathad been illegal under the strict intepretationof the

>medical practice act. the courts did not force them to conform to case law in

>this matter. the fact that juries nullify the law on a regular basis is

another

>thing altogether.

>

>I believe your legal position is well researched. I have seen similar

>arguments made about things like drug laws and federal income tax. However

>in all these cases, the position is not generally accepted by the courts today.

>for example, we have a long history of jury nullfication supported by the

>courts, yet most judges will instruct jurors that this is illegal and those

>promoting jury nullification outside a courthouse are typically removed. SB

>577 made something legal that had been illegal. It did not make something

>clear which had been grey. If sympathetic juries did not nullify these laws,

>then your case would be weakened immensely. I doubt judges feel the same

>way. I believe it was the intent of medical practice acts to do just what they

>do - prevent some people from practicing. If a medical practice act does not

>prevent some people from practicng, it serves no purpose at all.

 

>

.... this term was used to describe our

>support for south africa during apartheid years. But it was protest and

>disengagement that actually succeeded. We could all default on our student

>loans. :-)

>

>Todd

>

 

---Roger Wicke, PhD, TCM Clinical Herbalist

contact: www.rmhiherbal.org/contact/

Rocky Mountain Herbal Institute, Hot Springs, Montana USA

Clinical herbology training programs - www.rmhiherbal.org

[Guest guest]

, " rizwantcm " <rizwantcm>

wrote:

 

>

> I think given the current situation of public sympathy for

> alternative health care, any herbalist avoiding the use of

> terminology as suggested by Roger is practically very safe.

>

 

 

I completely agree. You can practice chinese herbology legally without a

license under SB 577 and probably under the case law of many states. All you

have to do is be careful with terms. I just think it stretches things to say

that chinese herbology as it was practiced in China fits any other definition

besides medicine. I think the idea that we are doing something other than

treating disease is not completely accurate. At PCOM, Bob Damone, a

respected translator and also a student of CS Cheung, emphasizes the

importance of disease diagnosis in TCM and goes to painstaking attempts to

show that this has been the rule, not the exception, throughout chinese

medical history.

 

So if you present your practice of chinese herbology as one of restoring

balance that has nothing to do with directly treating disease, I don't think

that is how the chinese conceived of their own practice. Most treatment

manuals are organized around diseases and symptoms, not patterns. Patterns

are used to explain diseases and organize treatment, but the focus of

treatment manuals (as opposed to basic theory, materia medica and formulas)

is clearly the diseases. This is not a modern phenomena, either. It can be

seen in the shang han lun and nei jing. Unschuld makes this point in his intro

to Forgotten Traditions, as does Liu in Warm diseases. Chinese herbology has

a long history of treating diseases and was renowned in ancient times mainly

for its efficacy in acute illnesses, not chronic ones.

 

There are certainly aspects of chinese herbology that are solely about balance

of zang-fu or five phases. Prevention and health maintenance come to mind.

Arguably, one can treat certain chronic illnesses using only holistic ideas, but

I find the results inadequate when disease is not also considered and actively

addressed. Once you consider disease, does it not become medicine? for

example, when a patient coms to me for heavy bleeding or seizures, my first

recourse is to stop these symptoms, based upon the theory that the root

cannot be corrected while the branch ails. When I stop bleeding, pattern is of

consideration, but definitely secondary to sx control. some herbs would be

used regardless of pattern in many cases, like san qi or tian ma (for tremors).

 

And then the wording from the governor that the practices legalized under SB

577 are those that do not require training to practice safely and effectively

really diminishes the the practice of those who have been trained thoroughly.

Having dabbled at treatment of others during every phase ofmy studies, I can

absolutely say that the general practice of chinese herbology without at least

three years of focused fulltime studies and clinical apprenticeship is

dangerous. Then even if one gets this amount of study,how is the public to

know that your education was good. Getting a certificate from a school is

meaningless. Schools have a vested interest in graduating their students.

that is why we have independent examination and licensing boards to prevent

fraud and deception. I can't imagine you would feel safer having the person

who is about to cut you open just reassure you that they know what they are

doing even though you never heard of their school and they have never been

independently examined. Licensure does not insure competency, but it does

separate vested interests from the public interest.

 

I think there is a radical disconnect between insisting that herbs are potent

pharmacological substances and then claiming their use to relieve suffering is

something other than medicine as defined under practice acts. I think health

freedom laws only passed because those who testified are PRETENDING not to

practice medicine, treat diseases or symptoms, when we know full well that

is exactly what they are doing regardless of how they label it. You can call it

what you want, but your patients show up with chief complaints, they expect

you to focus on those complaints and they are not satisfied unless those

complaints are releived. If you think otherwise, then you are probably not

dealing with a mainstream demographic.

 

When you do yoga or panchakarma or massage or reiki or homeopathy, you

really can claim to be something other than treating disease. All these

methods have long traditions of promoting general well being. TCM also has

such a tradition, but when a patient comes to you and says her period has not

stopped for four months and you give herbs and three days later it stops, let's

get real. That is medicine. It is not just promoting the general well being of

the patient. Having said that, I do believe careful word choice provides a

loophole for CAM px all over the country, but in the case of TCM, that word

choice is a ruse. I spend my days focused as often upon diseases and

symptoms as I do upon patterns. And I think this is true to TCM tradition. A

lopsided focus on patterns is a modern american bastardization. If someone

wants to practice some sort of zang fu balancing without consideration of

disease, then and only then could they get away with claiming to be doing

something other than practicng medicine. the ayurvedic testimony in CA

claimed exactly this. We balance doshas. We never treat disease. the

problem is that this position flies in the face of actual chinese tradition to

make such a claim. In fact, the case could be made that it would unethical to

practice chinese medicine in a way that deviated so much from actual

tradition. And if the actual tradition is disease focused, then it is medicine

and can only be practiced by those licensed to do so.

 

[Guest guest]

I thought Natuopath Doctors are licensed to prescribe herbs and other

nutritionals?

 

 

Teresa Hall, L.Ac, M.S, Q.M.E.

619-517-1188

-

" " <

Saturday, May 01, 2004 12:19 PM

Re: licensing of herbalists

 

 

> , " rizwantcm " <rizwantcm>

> wrote:

>

> >

> > I think given the current situation of public sympathy for

> > alternative health care, any herbalist avoiding the use of

> > terminology as suggested by Roger is practically very safe.

> >

>

>

> I completely agree. You can practice chinese herbology legally without

a

> license under SB 577 and probably under the case law of many states.

[Guest guest]

Roger,

 

On Saturday, May 1, 2004, at 09:50 AM, rw2 wrote:

 

> As the case law clearly states, " helping someone to improve their

> health " is very different legally from " prescribing herbs for the

> relief or cure of disease " , even though ***the very same physical

> actions are involved***.

 

I do not dispute this at all. The case you have made on your website

is very thorough. I merely dispute that the intent of chinese medical

practitioners historically or even now in modern chinatowns was

" helping someone to improve their health " , but was in fact " prescribing

herbs for the relief or cure of disease " . I can understand the legal

trick you mention, but it still is a semantic game. We can pretend TCM

is not at all disease oriented when we testify before those who don't

know any better, but we know that is not the actual case.

 

> If you can find a case of prosecution for practicing medicine without

> a license that does not follow these guidelines, I'd be interested in

> knowing about it, but I am not aware of a single one.

 

I am sure you are right. But the guidelines seem to be a charade to

me. I guess I am unclear as to whether you are advocating how to

legally " get away " with practicing med w/o a license to those who want

or need to do this for whatever reason. Or that you are claiming that

chinese medicine does not actually fit the definition of medicine as it

is about " helping someone to improve their health " , not " prescribing

herbs for the relief or cure of disease " . I dispute the latter.

 

However I would like to point out that that the California Health

Freedom Act (SB 577) appears to moot this issue. If you look at the

conditions that lead to a violation of the medical practice act (a-f

below),you will notice that they do NOT include anything about making a

diagnosis, treating diseases or symptoms or even using the term

medicine. It certainly appears that one could do unlicensed

chiropractic manipulation under this law if one called it something

else. The same would be true of any form of herbal practice. One

could not order lab tests or get insurance payments. But otherwise,

there is no limit to noninvasive body therapies and the prescription of

substances regulated as dietary supplements (like all chinese herbs).

 

It is interesting that as a quasi-corporate entity, if one has a

license to practice acupuncture, you may be more limited under some

states scope than a layperson under SB 577 in CA. For licensees, I

believe the standard is that if you are not given the scope explicitly,

you don't have it. Even if laypeople have can prescribe something

under common law, I think you give up your common law rights when you

get licensed. You basically agree to abide by certain restrictions in

exchange for the privilege of state recognition. For example, in

oregon, under common law, laypersons can recommend all herbs to improve

health as long as they follow Roger's guidelines. But L.Ac. in OR are

explicitly given only the scope of oriental pharmacopeia and vitamins

and minerals. Herbs not part of the oriental pharmacopeia and

supplements other than vitamins and minerals are not explicitly listed.

Bob Flaws can tell you a story about a similar CO scope that resulted

in legal action against his practice. Many of you heard about the

woman in Ohio who got ran out of town for prescribing herbs in a state

where herbs are not part of the scope at all. If she had no license,

she could have done as she pleased. Ironic.

 

SB 577 makes an addition to the existing Business and Professions Code:

 

Section 2053.5 Notwithstanding any other provision of law, a person who

discloses to a client that he or she is not a licensed physician shall

not be in violation of Section 2051, 2052, or 2053 unless that person

does any of the following:

 

(a) Conducts surgery or any other procedure on another person that

punctures the skin or harmfully invades the body.

 

(b) Administers or prescribes x-ray radiation to another person.

 

© Prescribes or administers legend drugs or controlled substances to

another person.

 

(d) Recommends the discontinuance of legend drugs or controlled

substances prescribed by an appropriately licensed practitioner.

 

(e) Willfully diagnoses and treats a physical or mental condition of

any person under circumstances or conditions that cause or create great

bodily harm, serious physical or mental illness, or death.

 

(f) Holds out, states, indicates, advertises, or implies to a client or

prospective client that he or she is a physician, a surgeon, or a

physician and surgeon.

 

 

 

 

 

Chinese Herbs

 

 

FAX:

 

 

 

[Guest guest]

, " Teresa Hall " <

Teresa.bodywork4u@w...> wrote:

> I thought Natuopath Doctors are licensed to prescribe herbs and other

> nutritionals?

 

 

yes, they are, but this does not make it illegal for laypersons to do the same

under SB 577.

 

 

[Guest guest]

Ever since I got into alternative health 25 years ago, I've seen alterative

practitioners put a significant amount of fear and worry into the issues of

practicing medicine without a license and scope of practice concerns. I simply

got to the point where I was tired of dealing with the anxieties and worry

around this issue and decided to settle it once and for all in my own mind.

 

When I had completed my research 10 years ago, I took several actions:

I returned my acupuncture license in Montana with a notice that I would

no longer be practicing as an acupuncturist. (As you have noticed, correctly, a

license does come attached with some unpleasant restrictions, as well as

economic benefits and status.)

I continued to practice as a TCM herbalist, doing other work not

requiring a license, such as counseling, simple massage, recommending exercise,

use of music to improve health, etc.

I prepared a game plan to firmly handle any attacks on my livelihood

beforehand, even preparing the paperwork and documentation for my legal defense.

 

I've never had to use any of it. I've observed that the practitioners the legal

system goes after are not even in the gray zone, but have strayed so far over

into prohibited territory that the prosecution's job will be easy.

 

So I no longer waste a lot of time even thinking about this issue, except to

inform others, which I believe is an important part of my goal as a teacher.

 

To address a number of issues that others, including have brought up:

 

(1) Yes, the legal system is full of trickery and word games. That is the

reality. America has 10x as many lawyers as any county in the world. I believe

that as a profession they have acted treasonously to destroy much of the good

that our country used to represent. The question you must ask yourself, are you

going to be a victim of their word games, or will you decide to use them for

your own protection, and possibly even to get back and the tyrants who abuse

this system?

 

(2) Yes, I believe that it is important to do fastidious TCM-style assessment of

my client's patterns of symptoms and signs, and to classify these accurately so

that I can evaluate the often complex array of dietary abuses, environmentally

induced problems, and other unpleasantnesses that these people suffer. However,

I make it clear to my clients (not patients), that:

 

(a) I am not a medical doctor and cannot legally perform diagnosis and

prescribe things for the purpose of curing disease.

(b) I do explain to them that this does not prevent me from helping them

to improve their health by assessing (not diagnosing) their patterns of symptoms

and signs, and using traditional Chinese methods to determine a choice of herbs,

formulas, and diet might help them to improve their health. (Most people who

patronize alternative health practitioners are familiar with this whole routine,

they often laugh a bit over it, and you can quickly get on with business. With

some people, though, I need to gently remind them not to call me doctor, as it

is legally dangerous to allow them to do that without correction.)

© I do explain briefly my educational background and training.

 

If you read the court cases having to do with practicing medicine without a

license, you will of course be struck by how much of this is word play, but

another thing will be very clear. The underlying legal **truth** upon which

these word games are founded is the idea of fraud: are you attempting to deceive

people into thinking that you have the same skills and powers as a medical

doctor? After all, the medical profession is very jealous of its powers. If you

are honest and very clear about this, the entire body of legal precedent is on

your side, and you can forget about all the anxieties and hand-wringing that

many alternative practitioners experience, because they are uncertain of their

lawful rights.

 

If you read the article, " The right to practice herbology, legal history and

basis " , it should be clear that there really are basic philosophical and

practical distinctions between helping people to improve their health vs.

diagnosing an invisible condition that is properly the domain of medical

practice.

http://www.rmhiherbal.org/a/f.ahr3.rights.html

 

If this is still not clear to some of you, read:

http://www.rmhiherbal.org/review/2003-2.html

Orwellian schemes for maximizing health-care industry profits

- How these endanger the practice of herbal medicine

especially the section on " Emphasize invisible benefits "

 

 

Roger

 

 

 

 

---Roger Wicke, PhD, TCM Clinical Herbalist

contact: www.rmhiherbal.org/contact/

Rocky Mountain Herbal Institute, Hot Springs, Montana USA

Clinical herbology training programs - www.rmhiherbal.org

[Guest guest]

On May 2, 2004, at 9:37 AM, rw2 wrote:

 

> If you read the article, " The right to practice herbology, legal

> history and basis " , it should be clear that there really are basic

> philosophical and practical distinctions between helping people to

> improve their health vs. diagnosing an invisible condition that is

> properly the domain of medical practice.

> http://www.rmhiherbal.org/a/f.ahr3.rights.html

 

rw2 writes:

" ... if the herbalist then says to the client: " These herbs will help

to relieve your multiple sclerosis, " the line has been crossed. The

herbalist has just claimed to be able to cure or relieve the client's

specific condition or illness, and this is entering the domain of

medical practice. "

 

In your article, you draw the line of practicing medicine very clearly.

Is there a similar line crossed when we tell a patient that " these

herbs will help to relieve your Wei Syndrome or Qi deficiency " ?

 

Later on, you write:

" The authoritarian health care provider gains power by stealing it from

clients, robbing them of common sense, and leading them to mistrust

their own sensations and instincts, in many cases creating a highly

profitable, though pathetic, relationship of continual dependency. "

 

I have seen plenty of TCM practitioners who also steal personal

initiative from patients or else feed on their desperation and

ignorance. Your " authoritarian health care provider " is described in

your article as part of the conventional biomedical community, but I

see this practitioner as part of our TCM community as well. I see this

as a human problem, not one unique to biomedicine.

 

--

 

Pain is inevitable, suffering is optional.

-Adlai Stevenson

[Guest guest]

Al, yes, you're right that this type of authoritarian abuse is common among

practitioners of all types. I personally suffered from this type of crap when

going to " New Age " practitioners who told me that my symptoms were due to a bad

attitude and a failure to follow their recommendations. The truth was that I did

follow their recommendations with no relief. Later I discovered that I had been

suffering from heavy metal poisoning (uranium and others), and did my own

research to figure out what to do. No one else, neither doctors nor alternative

people, had the answers or the patience to figure it out. (Could it be that the

word " patient " arose because these poor people must suffer endless abuse with

the patience of Job from authoritarian health care providers?)

 

I never make decrees to my clients of the type " This will relieve or eliminate

your [blood Stasis, Spleen Qi Deficiency, etc.] "

What I might say, in my role as educator is: " Here is what my textbooks say

about these herbs. People with similar conditions in the past have benefited by

these. Why don't you try these and see how they work. If they are working, here

is what you might notice.... If for some reason you feel that the herbs are not

working, let me know what you are experiencing and we'll reevaluate the

situation. "

 

This puts the client firmly in the driver's seat of their own body, where they

should be.

 

Roger

 

 

 

>Message: 7

> Mon, 3 May 2004 11:50:25 -0700

> Al Stone <alstone

>Re: Re: licensing of herbalists

>

>On May 2, 2004, at 9:37 AM, rw2 wrote:

>

>> If you read the article, " The right to practice herbology, legal

>> history and basis " , it should be clear that there really are basic

>> philosophical and practical distinctions between helping people to

>> improve their health vs. diagnosing an invisible condition that is

>> properly the domain of medical practice.

>> http://www.rmhiherbal.org/a/f.ahr3.rights.html

>

>rw2 writes:

> " ... if the herbalist then says to the client: " These herbs will help

>to relieve your multiple sclerosis, " the line has been crossed. The

>herbalist has just claimed to be able to cure or relieve the client's

>specific condition or illness, and this is entering the domain of

>medical practice. "

>

>In your article, you draw the line of practicing medicine very clearly.

>Is there a similar line crossed when we tell a patient that " these

>herbs will help to relieve your Wei Syndrome or Qi deficiency " ?

>

>Later on, you write:

> " The authoritarian health care provider gains power by stealing it from

>clients, robbing them of common sense, and leading them to mistrust

>their own sensations and instincts, in many cases creating a highly

>profitable, though pathetic, relationship of continual dependency. "

>

>I have seen plenty of TCM practitioners who also steal personal

>initiative from patients or else feed on their desperation and

>ignorance. Your " authoritarian health care provider " is described in

>your article as part of the conventional biomedical community, but I

>see this practitioner as part of our TCM community as well. I see this

>as a human problem, not one unique to biomedicine.

>

>--

>

>Pain is inevitable, suffering is optional.

>-Adlai Stevenson

>

 

 

---Roger Wicke, PhD, TCM Clinical Herbalist

contact: www.rmhiherbal.org/contact/

Rocky Mountain Herbal Institute, Hot Springs, Montana USA

Clinical herbology training programs - www.rmhiherbal.org