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
************
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fields, many laws stifle innovation, protect outdated and often harmful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.
THE 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 oneÕs practice. The first is jurisdiction, a key to understanding
our legal system and perhaps for defending oneÕs 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 courtÕs 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. The
problems in health care today, for example, have resulted in large part from
violation of this important legal principle.
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