A Slice of Law and Medicine
By Ann Richtman, JD

You can make your own decisions about what is right for you. The United States Supreme Court has ruled that no one can force you to undergo certain treatment. However, it has not said that unconventional treatments will be available to you.

The mix of law and medicine has many interests and players, some more obvious than others, some more influential than others: You/your family, health care providers, the government, and the medical and healthcare industry. The University of Minnesota-Duluth Bureau of Business and Economic Research reports in an article printed in the Duluth Budgeteer July 7, 1999, that the combined dollars generated by doctors and dentists, hospitals, and other medical and health services in St. Louis County, MN, and Douglas County, WI, is $310 million annually and second only to the export value of the iron ore industry in the area. The local economy and a lot of jobs - maybe yours or your neighbor's - are dependent on the status quo. If we embrace a preventive and holistic health care model and if alternative modalities reduce health care costs, then we expect the tension that comes with shifting values and different choices.

What if you are a person who says to government: Thanks but no thanks; I am capable of determining for myself the kind of health care practices that are best for me. If the Supreme court interprets your liberty interest and your right to privacy under the Constitution to include the refusal of medical care, then you certainly ought to be able to choose options that you think, rightly or wrongly, will promote your health. But not so fast. Your interests are "balanced" by the State's interest in protecting the safety of its citizens. This is referred to as "the police power" of the States. We will examine the fit and tension among these interests.

Citizens have certain constitutional rights. The First Amendment should guarantee you the right to receive and exchange medical information. A person should have a right under the Commerce Clause of the Constitution to practice a trade, but the government can regulate how you do that. You may have a liberty interest under the Fourteenth Amendment to access informed, safe and beneficial medical treatment, but the government can make certain health practitioners or health practices unavailable to you by laws. Some courts have ruled that a health care practitioner, whether licensed or unlicensed, cannot assert the interests or benefits to their clients as a justification for services.

There is not a universal truth or agreement about the standards for licensing or regulation from state to state. For instance, every state has some form of Medical Practice Act which defines the scope of practice for those professionals with the title of medical doctor. This means that a person cannot use the title or do those things defined within the act defined as the practice of medicine unless they meet the licensure standards of the state. There is further regulation done by a state governing board which determines professional competence and fitness, i.e. Minnesota Medical Practice Board or Wisconsin Board of Medicine.

Unless exempted by statute, current state law permits only medical doctors and osteopaths to "prevent or diagnose, correct or treat in any manner or by any means, methods, devices, or instrumentalities, any disease, illness, pain, wound, fracture, infirmity, deformity, or defect of any person" except by authority of the state board. The breadth of this authority is staggering. Occupations are regulated under the police power of the states to protect and preserve the public health. The remaining question is whether the regulation is reasonable. Does the patient have a right to choose the type of medical care preferred?

Here is where we run into some curious twists and turns of logic. The present reality is that more and more Americans are turning to practices that are considered "complementary and alternative" to the dominant conventional allopathic medical system. Studies show that 70% of all Americans and 47% of all physicians are using at least one form of complementary or alternative methods for their personal health care. The Federal government funds the National Center for Complementary and Alternative Care as a separate department of the National Institute of Health to the tune of $50 million annually.

Educational institutions want to keep abreast of the changes in consumer health choices. The University of Minnesota has added alternative therapies to its medical school curriculum and created the first graduate level minor in CAM in the country. The College of St. Catherine offers a 10-month course to bring health professionals up to speed on various complementary models. In the Duluth area, the College of St. Scholastica, the University of Minnesota, and Lake Superior College incorporate information for undergraduates, medical students, and allied health professionals into several courses.

If an unlicensed health practitioner offers you a homeopathic remedy, herbal medicine, or applies any of a number of other healing practices, he or she can be prosecuted for "practicing medicine without license." By the same token if your physician offers you herbal medicine or a homeopathic remedy, he or she can be accused by the Medical Practice Board of practicing outside "acceptable and prevailing" conventional standards of care and be sanctioned. Doctors are in a difficult position individually if they do not know with certainty whether they can be sued for malpractice if they make a referral to an alternative practitioner, or if they co-manage a patient who sees one and experiences a bad outcome from that experience. David Eisenberg, M.D., makes specific recommendations for physicians with patients wanting alternative care in Annals of Internal Medicine 1997; 127(1):61-69.

Can consumers distinguish between competent practitioners and quacks or must they rely on the government to do so for them?
How do you minimize inherent conflicts of interest when the health practitioner's livelihood depends on marketplace demand? Will regulation of the occupation guarantee that the health of the client or patient is the primary goal?

Reasons often given for regulation of health care professionals are to prevent non-diagnosis, misdiagnosis, non-treatment, and mistreatment by unlicensed medical providers. Can we assume that a licensed medical practitioner will not fail to diagnose, misdiagnose, fail to treat or mistreat? Likewise must we assume that a unlicensed health practitioner would undoubtedly cause harm or that there arena existing civil or criminal remedies to protect the public?

I am not suggesting that an untrained or unlicensed person perform surgery or prescribe drugs. But we do need to look more closely at the many health and wellness therapies, traditions, and practices available on the health continuum and sort out the least restrictive manner of regulation, if any is necessary.

How Effective Is Occupational Regulation?
In Minnesota, the stated purpose of regulating any occupation is to protect the public: "The legislature declares that no regulation shall be imposed upon any occupation unless required to the safety and well-being of the citizens of the state." Minnesota Statutes §214.001,subd. 2.

In January of 1999, the Office of the Legislative Auditor published a program evaluation report on Occupational Regulation in Minnesota which addresses the following questions: What is the history of occupational regulation in Minnesota and other states? What are the problems and suggested solutions? What constitutes Minnesota's system of occupational regulation? How effective is regulation? (Full text version of the report is available at Web site http://www.auditor.leg.state.mn.us or from the Legislative Auditors 651-296-4708.)

While the main purpose of occupational regulation is the protection of the public it can also limit access to regulated occupations and raise prices. Most requests for regulation come from occupational associations, not consumer groups; raising the criticism that it can be controlled by the political strength of professional organizations. This is referred to as occupational "fencing." As many state legislatures were faced with increasing demand to regulate more and more occupations (Minnesota regulates nearly 200) in the past thirty years, they began to look for ways to screen such requests of validity and true public purpose.

Sunrise Legislation
One solution was "sunrise" legislation. Sunrise provisions place into statute the idea that "credentialing should be enacted only when it is clearly in the public's best interest. Moreover, the level of regulation should be no more restrictive than necessary to protect the public.

In 1976, Minnesota became one of the first states to enact sunrise legislation as a means of screening proposals for occupational regulation to ensure that they meet criteria for public protection, rather than occupational member protection. Wisconsin has adopted a sunrise policy through department rules, Department of Regulation and Licensing, rather than statute. In recent years Wisconsin has shifted towards using less restrictive forms of regulation, notwithstanding the recent certification requirement for massage therapists and body workers championed by the profession.

In Minnesota criteria were established to determine whether to regulate:

• Whether the unregulated practice of an occupation may cause a recognizable, and not remote, harm or danger to citizens of the state;
• Whether the practice of an occupation requires specific skill or training;
• Whether citizens could be protected by another means.

In addition, the law mandates that occupations should be regulated in the least restrictive manner and directed the legislature to consider in a particular order a range of options for regulation in the least intrusive manner and for which licensing is the last to be considered in the regulation scheme.

What if you know that you are skilled and well-intentioned in your healing practice but not regulated by state licensure? For instance, perhaps you have trained at the Minnesota Center for Shiatsu Study (MCSS), a professional Shiatsu massage training program. MCSS offers services to underserved communities at an Elder Center, AIDS day care facility, and a YWCA neighborhood wellness initiative for those without medical insurance, as well as corporate preventive health care programs. Should these practitioners be prosecuted for the unlicensed practice of medicine because they provide treatment for a wide range of internal, musculoskeltal, and emotional conditions?

What if you graduate from the Northwestern School of Homeopathy and successfully treat a variety of illnesses? Should you be criminally prosecuted? What if you are a naturopath, an herbalist, or practice therapeutic touch?.

In 1997 and 1998 bills were introduced in Minnesota to regulate Massage and Oriental Body Work Therapists, but they failed to pass. An attempt to license naturopathic doctors also failed. However, it did provide impetus for a 104-page report on Complementary and Alternative Medicine by the Minnesota Department of Health, which concluded in January of 1998 that there is not presently enough information to justify governmental regulation of naturopaths or other alternative medical providers.

If unlicensed healers are in the marketplace, in fact sought out by patients, and the courts are not filled with cases brought by the Medical Practice Board or attorney general to stop them or criminally prosecute them, then why worry about regulation or be anxious about access to their care? The problem is that enforcement of the law becomes arbitrary and unpredictable, a potential weapon in the hands of professional organizations or government groups that dismiss what may work for you or me because science has not yet discovered the truth of common experience. It also has a chilling effect on the exchange of health information.

In 1999, the Minnesota Natural Health Coalition ACTION NETWORK, relying on several years of study and evaluation by the Minnesota Natural Health Coalition, proposed legislation for Freedom of Consumer Access to Complementary and Alternative Health Care (House File 537/Senate File 689). The bill is based on the principle consumers can make informed choices about the health care practices they want available to them. It moved out of the House Health and Human Services Policy Committee on March 15, 1999, after an amendment deleted all language protecting consumer access to already licensed health practitioners who wish to use complementary or alternative therapies in their practice. The Minnesota Medical Association and Medical Practice opposed the bill because they don't want consumers telling them what to do. The remainder of the bill pertaining to unlicensed providers passed and was sent to the Civil Law Committee. Hearings will continue in the next legislative session. (More information is available at Web site www.minnesotanaturalhealth.org)

The Freedom of Access bill is not a licensing bill. It's purpose is: "To protect the freedom of the individual to choose and receive the healing treatment that the individual desires and deems to correspond with his/her own view of health and disease, and which the individual deems to be effective in securing his/her own wellness; and to encourage and promote the practice of all healing methods; and to protect the right of health practitioners to practice complementary and alternative health care."

The proposed legislation adds an exemption to the Medical Practice Act for unlicensed complementary and alternative health care practitioners who practice in accordance with the full disclosure provisions. It would establish a statutory duty of care and standards of practice for the practitioner.

Healthcare in the United States is in a crisis not because of issues of managed care, insurance coverage, lengths of hospital stays, etc. but because too many people are ill or in pain. The Public Health issue is one of prevention, identifying the real causes of illness, and restoring individual and collective balance and integrity.

Ann Richtman, J.D., has practiced law and taught in Minnesota and Wisconsin for many years. She also helped draft the proposed legislation in Minnesota on Freedom of Access to Complementary and Alternative Health Care. © 1999 Northland Natural Health Resources, Inc. Used with permission.