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Legal Tips for CAM Providers

Some further comments on the useful tips in “Legal Tips for CAM/Integrative Physicians” (Shorts, January 2013) that may help those having problems with the medical boards and FDA.

Consider that a license is not a qualification, but a political privilege. Any law, rule, or regulation containing the phrase “to protect the public” is in fact a special interest protection law to limit an activity or access in the public domain.

The legal definition of medical boards, national associations of medical boards, AMA, and so on, is a union. As a licensee (union member) one must abide by the “scope of practice” (all or none) and “standard of care” (we all do it or none do it).

The license-granting agency (state) gives the privilege (not right) to earn a living practicing the restricted activity. Also, while most medical practice acts do not explicitly mention allopathic, they implicitly are limiting practice to allopathy by only licensing allopathic or osteopathic physicians.

Other systems, such as Ayurvedic, are not regulated, although medical boards claim to have purview over all systems but only license one and some do license naturopathy. The state cannot require a license for an activity that is not regulated, such as Chinese medicine, but medical boards intimidate practitioners.

As to the mention of seeking an attorney specializing in administrative law, good advice; but also constitutional/civil rights. Administrative law is subject to the most abuse because bureaucrats interpret and apply it based on the “spirit” or “letter” of law according to whim and politics, with no checks and balances.

The US Constitution provides for and makes a distinction as to the activities in public and private domains. Examples:

1. alcohol consumption in a “dry” county by members of a private club.

2. homeschooling versus public schooling.

3. as a lawyer and not a member of the state bar, I may still practice as a private attorney or in-house counsel, or before a federal court and international law. I may not hold out to be an attorney to the public. The US Supreme Court has consistently upheld the rights of the private domain versus the public domain. Rights are not automatic and a right not defended is lost.

4. Since license is only required to practice before the public, a physician can practice within a private group without a license.

An activity in the public domain may require a license, but not in the private domain, unless it is inherently harmful and/or dangerous. See mala en se and mala prohibita.

As an unlicensed JD, MD, PhD, I practice in the private domain. For those who want off the state medical board grid, we do practice consulting. Nothing in the foregoing is intended to be legal advice or replace the services of an attorney.

John S. Jester, JD, MD, PhD

110 N. Hospital Drive

Abbeville, LA 70510

337-892-0854; fax 337-892-0855