1/6/2018 Herbalists: avoiding the practice of medicine | RMHI

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Herbalists' guidelines for avoiding the practice of medicine

American herbalists' realpolitik, essay #5. Practical suggestions for protecting herbalists' rights, from office
procedures to political strategies. Learn how to avoid the "practice of medicine" without a license and how to rely,
instead, upon your First Amendment rights to provide information about improving health.
by Roger W. Wicke, Ph.D.

Subtopics on this page…

Disclaimer
Introduction
Words to avoid using
Comparison of medical practice vs. health consulting
Defending your rights
Making appointments
Office forms to use
Professional organizations
Knowledge of the law will help protect you
Copyright ©1995 by RMH-Publications Trust; all rights reserved.

Disclaimer
The following information is of an educational and general nature and should not be construed as
legal advice. You should consult appropriate written and professional sources to answer
questions related to your individual situation. Exercising one's rights often entails some element
of risk, and you should verify all information relevant to your situation before acting; the author

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and publisher disclaim any responsibility or liability for any loss incurred as a consequence of the
use of any information herein.

Introduction
Many practitioners of natural health care are not aware of the legal machinery lurking in the
background that can potentially sabotage their business and livelihood. Health care practitioners
who know their rights and responsibilities are less likely to be targeted with harassment.
The First Amendment to the U.S. Constitution protects freedom of speech, including that of an
educational nature. You do not need a license to exercise such rights, as long as you are not
practicing medicine, which includes diagnosing medical illnesses or prescribing treatment for
such conditions. Most courts consider use of the words "diagnose", "treatment", or "prescribe" in
your office brochures or in talking to clients to be prima facie evidence (evidence sufficient to
establish a fact unless rebutted) of practicing medicine. Even if you use other words, but your
intent can be shown to be the practice of medicine (diagnosing and prescribing treatment or
remedies), you are still in jeopardy.
You should adhere to each of the following guidelines scrupulously.

Words to avoid using

Do not use the professional title "Dr." in conjunction with claims to treat illness. Even if you have
a valid Ph.D. in a health-related field, it is recommended that you not use the term "Dr." to
prevent your clients from thinking, mistakenly, that you might be a medical doctor. In addition, if
a potential client calls you on the phone and refers to you as "Dr." So-and-So, you must correct
them immediately by informing them that you are not a medical doctor, or you could become
guilty of passive fraud.
Do not "diagnose, prescribe, or treat" anyone, nor recommend any course of "therapy". Avoid
claims to "treat disease". Instead, educate to promote health. Avoid diagnosing, assessing, or
evaluating the client's diseases or organs or any anatomical part, physiological process or
biochemical process. (Anyone is free to impart information of a general nature to others as long

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they make no specific references to the individual's body. For example, one may explain the
various factors that may lead to diabetes, without referring to the client specifically or making
any inferences about the client's condition.) Avoid claiming to treat the client's diseases, organs
or anatomical body parts. You may explain what you are recommending by saying "If this were
my body, I would be concerned about... and I would do ...," but you must avoid claiming that a
recommendation will cure, treat or relieve specific symptoms or illnesses of the client.
In describing the services that you perform, avoid the following specific words and phrases:
diagnose or evaluate (illness); examine (when referring to physical inspection of the body
exterior, tongue and pulse); therapeutic system, therapy; treatment, cure, treat or cure disease;
relief of symptoms, relieve symptoms; prescribe treatment, prescription, dispense or administer
remedies; manipulations (referring to any massage you may perform), physician (referring to
yourself), patient (your client), medical, medicine (herbal supplements you may use).
In some states, the dieticians have even usurped the words "diet" and "nutrition". Aha! But they
have not become so bold as to claim dominion over "food". Therefore you should refer to: foods,
food or meal plans, food sensitivities, etc.
Words that are probably safe to use in describing what a professional non-medical herbalist
does: teach, consult, consultant, promote health, stimulate healing, restore health, client, herbal
formulas, herbal science, inspect or look at (client's body exterior, tongue and pulse), health
disharmony.

Comparison of medical practice vs. health consulting

Don't: Do:
recommend a therapy remove factors which prevent the body from healing
treat disease give advice for promoting the body's natural healing potential
give remedies teach correct lifestyle and habits
give manipulations refer to local laws governing actions involving touching clients
(The AMA does not define as remedies: sunbathing, diet regimens, steam and mineral baths,
and exercise.)

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Defending your rights

No public servants have the right to investigate you or invade your privacy without notice of
investigation and the reasonable basis for the investigation (due process of law). If the
investigation is an administrative inquiry, rather than a judicial procedure, the investigators must
meet with you on your own terms, not necessarily in your home or office.
You should bring with you two witnesses and an unconcealed tape recorder, and above all, be
polite and considerate of the investigators, who are obligated by law to investigate complaints
submitted to their agency, even if the complaints are without merit. Be polite but firm about
your rights. An excessively defensive attitude is unnecessary; simply state your case. Relevant
sections of the U.S. Constitution to review: Amendments 1 (freedom of speech), 4 (freedom
from search and seizure without a warrant), 6 (right of due process and equal protection under
the law), 9 (rights not enumerated in the Constitution are retained by the people), and especially
the current case law related to the 4th Amendment regarding searches and seizures.

Making appointments
Before making an appointment, be sure to send the new client a brochure describing your
services and a health questionnaire to fill and bring to the first appointment.
When making appointments over the phone, record the client's full name, address, and phone
number. After receiving this information, if you suspect undercover agents of trying to entrap
you, verify this information by checking in the phone book or with the directory assistance
operator. Undercover agents often do not use their own names and addresses.

Office forms to use

Business cards identifying you as a health consultant.
Brochure: The brochure should explicitly state that your services are not for the purpose of
diagnosing, treating or relieving disease, and that if a potential client desires these services
they should see a physician. You may wish to include a photograph of yourself on the
brochure and a brief biography including your education and experience, since these are
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details new clients often desire to know.

Health questionnaires for clients: symptom checklist of current and prior complaints.
Authorization forms, power of attorney: For more protection, you may decide to obtain
written authorization from the client giving you power-of-attorney to act in the client's
behalf concerning exercise, dietary and nutritional guidelines and to utilize specific non-
invasive methods of obtaining information about the client (i.e., pulse and tongue
inspection, interviewing the client about their health).
If you are suspicious about the potential client's motives, have him or her place an inked
thumbprint beneath the signature. (Undercover agents will resist doing this.) Typically,
investigative agents may wish to receive appointments in pairs, so that they can act as
corroborating witnesses for each other in court. Be especially cautious under these
circumstances.
Client consultation records: Be complete in writing down your recommendations and results
of any observations or relevant client history details. If you are a licensed health care
provider, you are legally required to keep these for each appointment; records may be
subpoenaed in cases of a legal dispute. They are a good idea in any case, because if you
acted in good faith and gave competent advice, the record of such facts will be to your
advantage. Keep these records for at least 7 years or longer than the statute of limitations
in your state.

Professional organizations
Become a member of a professional association or a support group of herbalists and holistic
health counselors in your area. If your state legislature ever proposes bills that may impose
upon your constitutional right to counsel and educate people about health, you will have an
organizational framework to begin immediately lobbying for your group's rights.
If you are interested in learning more about protecting herbalists' rights against legislative and
political encroachment, you should read "A review of issues relevant to regulating Chinese herbal
practice".

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Knowledge of the law will help protect you

By being aware of the above information and following these guidelines, you will likely
experience a hassle-free, ethical, and rewarding practice. Practitioners who are boldly, or in
ignorance, violating these guidelines are much more likely to be targeted for legal accusations
and harassment. If you make it clear to government officials that you know your rights and
intend to defend them (politely but firmly), they are likely to leave you alone. The legal system
thrives on victims who are ignorant of the law.
If you are interested in learning more about the legal history behind the above
recommendations, you should read "Strategies for defending your rights as an herbalist".

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