LEGAL GUIDELINES FOR UNLICENSED PRACTITIONERS

TABLE OF CONTENTS

Introduction v

1. Our Laws and Their Purposes 1

2. Legal Concepts About Health And Healing 15

3. Practice Options 23

4. How Thoughts, Words and Deeds Affect Legal Status 33

5. Consent, Disclaimer and Disclosure Statements 45

6. Records, Corporate Status and Insurance 51

7. Differences Between Licensing And Certification 57

8. The Case Against Medical Licensing 63

9. The Psychology of Licensing 77

10. What Are Your Rights? 81

11. The United States Constitution 93

12. Our Bill of Rights 101

13. Our Forgotten Ninth Amendment 107

14. If Legal Disputes Arise 115

15. The Fully Informed Jury 121

16. Forms 125

index 135

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Chapter 1. LAWS AND THEIR PURPOSES

Just as one lives in a physical environment, so too one lives in a 'legal environment'. Just as it is helpful knowing about the physical environment, it is most helpful to know the basic structure and history of the American legal system.
Laws are rules of action. Good laws make for a peaceful, prosperous society. Poorly thought-out laws lead to moral, economic and social decline. As human consciousness has changed, so too have our laws evolved. However, basic legal principles such as the golden rule do not change.
The purpose of laws is to promote the unfoldment of the potential in each human being. To do this, laws should:

- protect the rights of individuals.
- protect the innocent from the guilty.
- provide equal treatment for all.

These qualities combined constitute justice and fairness. Often, however, laws are used to stifle innovation and competition in the marketplace, redistribute wealth, punish instead of making restitution and manipulate or control others. The feeling of being out of control that everyone feels at times leads to the passage of multitudes of laws in a futile effort to impose control from outside. Whenever one considers passing a law, it is important to consider its actual effects, even if its purpose seems noble and the effects are unintended.
Today there is an attempt to create an entirely safe society. This has spawned an explosion of regulations and licenses in every field. In health care, education and other fields, many laws stifle innovation, protect outdated and often harmful practices and protect the status quo. The actual effects of the laws are opposite of their stated goal.
There will never be an entirely safe society. Accidents will happen and innovation requires trial and error. This book will suggest that the best regulatory structure to protect people while allowing innovation is the free market. This requires strong property rights, full rights to litigate for damages and a minimum of government-imposed regulation.

HISTORY OF THE LAW

For all of recorded history, in most nation-states power and authority flowed from the gods to the leader, who then made the laws for his subjects. 'Might makes right' was the rule. The ten commandments of the Hebrew bible represented a great step forward, as these were not arbitrary rules, but were for everyone and would be enforced by a power greater than any earthy leader.
Many of our present legal principles can be traced back to admonitions found in the Old Testament. An important lesson is given in 1 Samuel, verse 8. The Hebrews were told not to worship an earthly king or other idols. This was the Second Commandment. However, they insisted on having a king. Speaking through Samuel, Jehovah warned that a king would tax them dearly, take young men to fight in foreign wars and enslave women in his harem. The people insisted anyway and the warnings proved correct.
Around the world, the 'divine right of kings' was the doctrine under which monarchs justified controlling the population. In England, landowners and nobles gradually gained power. This culminated in documents such as the Magna Charta, a precursor of our Bill of Rights. Still, the king retained ultimate power. Christianity had a civilizing effect upon European law, but the church became a new power center that controlled through fear and dogma.

THE FLOW OF POWER IN AMERICA

Fed up with the tyranny of the king and the Church of England, the founders of America returned to the biblical principle. There would be no king and no state religion. Instead, the flow of power in America would be as follows:

* Ultimate authority or sovereignty flows from the Creator directly to each citizen (not to groups, not to majorities and not to bureaucrats).

* Citizens delegate (meaning assign or entrust) specific powers to the states and federal government. This occurs by means of contracts called constitutions. These specify which powers are entrusted to the government and which are retained by the people. Governments may pass laws but they must conform to the contract or constitution.

* All powers not specifically delegated remain with the people. (Remember this one!)

This was and is a radical doctrine. It remains a shining light in the world. For millions around the world, it is only a dream. It has also been long forgotten by many judges, lawyers, teachers, presidents and other public servants in America.
For the past 150 years or so, powerful forces have sought to reverse the flow of power, making the states and the people mere subdivisions of the federal government. This has caused much loss of individual liberty and social decay in America. Liberty, privacy and the supremacy of the individual over the state are absolute values. They cannot be bargained away or compromised without impairing the entire fabric of society. This truth is rarely taught in school and we are living with the results.

THE HIERARCHY OF LAWS

Based on the above, there is a hierarchy of laws in America. This hierarchy becomes very important as one explores practice options. The hierarchy is as follows:

I. Biblical principles are the moral and spiritual basis for our laws.

II. The English Common Law embodied the biblical principles and was the unwritten legal tradition in Europe. America adopted the Common Law of England at the time of the American revolution.

III. Constitutional law consists of the contracts between the sovereign people of America and their federal, state and local governments.

IV. Statutes or public laws are laws passed by local, state and federal governments.

V. Implementing regulations are rules that accompany each public law in order to carry out the law.

VI. Case law consists of the interpretations of the law made by judges and juries over the years. Important cases are called precedents.

Let us consider each kind of law in more detail.

BIBLICAL PRINCIPLES

Biblical principles include thou shalt not kill, steal, lie or bear false witness. These remain the basis for American law. The bible traces the maturing of mankind from the slave state in Egypt to a state in which one is totally responsible for one's acts and thoughts.
The Ten Commandments are the basic requirements for taking responsibility. The Hebrew word for commandment means a signpost, not a rule. The intent was that if one follows the signposts, one will be led to a better life. Other biblical laws include the 613 rules given in the books of Leviticus and Deuteronomy and the golden rule in the New Testament.

COMMON LAW

Though rarely discussed, the Common Law is quite important. English Common Law was the major body of law in use at the time of the American Revolution. The IRS Code contains a good definition the Common Law. Page 5041.1, Section 222.1 states:

"Common Law comprises the body of principles and rules of action relating to government and the security of persons and property which derive their authority solely from usages and customs or from judgments and decrees of courts recognizing, affirming, and enforcing such usages and customs."

The Uniform Commercial Code or UCC is a single federal statute containing some of the original common law pertaining to contracts. UCC 1-103.6 states that:

"The code (UCC) is complementary to the Common Law, which remains in force, except where displaced by the code."

The American Declaration of Independence and Constitution are Common Law documents. They were written within the framework of the Common Law, the system of law then in force in the American colonies. To understand the intent of these documents (and your rights to practice) requires understanding them within the context of the Common Law.

CONSTITUTIONAL LAW

A constitution is the contract established between the sovereign People and their creations, the state and federal governments. The word People is capitalized because it denotes a group of empowered citizens rather than an amorphous mass of humanity. A constitution enumerates which powers and responsibilities are delegated to the government and which are retained by the People. The constitutions also set forth the three branches of government and important details about the operation of the government. The federal Constitution is a relatively short and simple document that should be read and understood by everyone. Chapters 11 and 12 discuss the federal Constitution and Bill of Rights.
Constitutional law consists of our state and federal constitutions including their amendments. Commentaries such as the Federalist Papers offer more insight about the intent of the federal Constitution. The first ten Amendments to the federal Constitution are called the Bill of Rights. All state constitutions also have a bill of rights. Many times the protections offered by the state constitutions are greater than those of the federal Constitution.

STATUTES

The state and federal constitutions permit local, state and federal legislatures to pass public laws or statutes. Statutes must conform to the state and federal constitutions. If not, they can be struck down as unconstitutional. Statutes have slowly replaced the common law in America. However, all state constitutions acknowledge the common law as binding unless superceded by statute. The U.S. Code or USC is a series of volumes of federal public laws or federal statutes. Each state also has its code book or book of laws.
Among the statutes are the state medical practice acts. These govern the practice of the healing arts and the issuance of licenses. An excerpt from the California Business and Professions Code, "Unlawful practice of medicine defined", reads as follows:

"Any person who practices, or attempts to practice, or who advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, injury, or other physical or mental condition of any person, without having at the time of doing so a valid, unrevoked, or unsuspended certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is guilty of a misdemeanor."

One may argue that medical practice acts violate the constitutional prohibition against passing laws that abridge the right to contract freely (Article I, section 10). However, courts upheld these laws under another doctrine called the police powers of the state. This is defined as the power to:

"prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity." - from Barbier v. Connolly, 113 U.S. 27, 31 (1885).

The extent to which the police powers may infringe upon constitutional rights to contract freely and protect one's property is an open question. The trend has favored giving up more and more rights and powers to the government.
There is another perspective regarding the constitutionality of the medical practice acts. Note that the acts begin with: "Any person who practices ..." A 'person', legally defined, includes corporations and partnerships. These entities are creations of the state. Such creations have no constitutional rights. If a medical practice act stated that "Any citizen who practices ...", it might be declared unconstitutional. We will return to this topic in chapter 3.

IMPLEMENTING REGULATIONS

An implementing regulation must accompany each statute in order for the law to have effect. For example, a statute might establish a board of medical examiners. However, legislators do not write all the rules and procedures to carry out the law. They delegate this task to an agency or even to the board itself. Federal implementing regulations are found in a series of volumes called the Code of Federal Regulations, or CFR. Each state also has a book of state implementing regulations.
At times, a statute is fair but its implementation is not. Such corruption occurred, for example, with the National Labeling and Education Act of 1990. The intent of Congress was not to use the law to take nutritional supplements off the market. However, the FDA interpreted and perverted the law, writing the regulations in such a manner that they could remove products from the store shelves at whim.

CASE LAW AND PRECEDENTS

Statutes and implementing regulations are general in nature and cannot cover every case. When judges and juries consider specific cases, they further refine the meaning of the law. This is called case law.
Precedents are important cases decided by judges or juries. For example, the law says an unlicensed practitioner may not diagnose disease. When does an assessment, a guess or an evaluation become a diagnosis? This issue must be decided by a judge or jury. All such specific cases form case law. Lawyers look to case law to see how an issue was handled in the past. Sometimes the intent of a law is just, but its interpretation by the courts changes its meaning entirely.

JURISDICTION

The next four sections introduce important legal doctrines that affect one’s practice. The first is jurisdiction, a key to understanding our legal system and perhaps for defending one’s actions. Jurisdiction of a court is its right or authority to hear and try a case. Jurisdiction also means the sphere of authority or power of a governing body. The issue of jurisdiction is the issue of whether or not a particular law applies to you, to your location and to your kind of business.
Jurisdiction may depend upon a geographical area, the subject matter or the person who is on trial. A simple example of geographical jurisdiction is that a court in a particular state has the authority to hear only cases that pertain to that state. Some states view natural health care differently than others. One state may be more lenient and therefore an easier place to work.
A very important principle of jurisdiction is that in order to hear a case, a court must have jurisdiction over both the person and the subject matter.

"If any tribunal (court) finds absence of proof of jurisdiction over person and subject matter, the case must be dismissed." - Louisville RR v. Motley, 211 US 149, 29 S Ct. 42.

Another important aspect of jurisdiction is that once it has been challenged, it must be proven. If it is not challenged, jurisdiction is assumed to exist. Many people have lost their case in court because they challenged the subject matter of the case, when they should have challenged the jurisdiction of the court to hear the case at all.
For example, let us imagine one is charged with practicing medicine without a license. Let us also say that one does not consider oneself a 'person' under the law. The statutory laws are written for persons and the courts today are for persons. One would need to defend oneself by challenging the jurisdiction of the court. If one does not challenge jurisdiction, it is presumed that one accepts the court’s jurisdiction and one can only argue the subject matter.

ENUMERATED POWERS

Enumerated powers means that governments may only exercise powers that are delegated to them by the People in the constitutions. All other powers are reserved to the People or the states. James Madison wrote in Federalist Paper #45:

"The powers delegated by the proposed Constitution to the federal government are few and well-defined. Those which are to remain in the States are numerous and indefinite."

The Tenth Amendment to the federal Constitution states:

"The powers not delegated to the United States (government) by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people."

An example of violation of the principle of enumerated powers was the attempt in 1993 to institute socialized medicine in the United States. The merits of it are one matter. The federal government, however, is nowhere empowered to take over the health care industry. A constitutional amendment is required to nationalize an entire industry.
Often laws are passed without the constitutional authority to do so. This abuse is widespread. The FDA often writes rules for herbs, vitamins, foods and other products, although they are not a legislative body. They have no constitutional authority to write laws. They also enforce their own laws, often with gun-toting SWAT teams, although they are not a court of law and they have no power to judge the law. Over 100 federal agencies do the same thing. This brings us to another important American legal principle.

SEPARATION OF POWERS

Another radical American legal doctrine is the separation of powers. In 18th century England, the king or queen passed the laws, executed or carried out the laws and judged who broke the laws. This gave the monarch absolute power. Every dictatorship combines these three powers. To establish and preserve the liberty of the people, the founders of America decided to separate these powers. They asserted that no one person or group of persons would have the power to pass, execute and judge the laws. They divided these functions as follows:

1. To pass laws there would be a legislative branch (local councils, state legislatures and houses of Congress).

2. To carry out the laws, there would be an executive branch (mayor, state governor, the president, vice president and cabinet).

3. To judge guilt or innocence, there would be a judicial branch (the courts, judges and juries). Juries of one's peers were to be the ultimate judges of guilt or innocence and to judge the validity of laws.

SEPARATION OF FUNCTIONS

The fourth legal concept is the idea that certain government functions are best handled by the federal government, while others are best handled at the state level, and others at a local level. The distribution of government functions is a very important subject if we are to retain out liberties.
Declaring war, foreign trade, making treaties and printing money are federal government functions. Education and roads are traditionally state functions. Police and fire protection are generally considered local functions. In the 20th century, the federal government has assumed more and more of the functions of state and local governments. Some say this is the only way to assure a minimum standard for all Americans.
This is true in some cases. The problems, however, are micromanagement, unfunded mandates and big brother tactics that deprive individuals and localities of their rights and powers. Any time another takes responsibility for our welfare, control and power are also taken away. Also, no constitutional authority exists for many of these functions. One might answer that times have changed and the old principles no longer apply. Perhaps and perhaps not. The problems in health care today, for example, have resulted in large part from violation of this important legal principle.

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