In applying the physician licensing statutes to alternative practitioners, the courts have failed to distinguish two related, but distinct issues: first, the question of fraud; second, the scope of practice. The first issue addresses whether the practitioner has committed fraud by deluding the consumer into effective, dangerous, or misleading treatment.[410] The second addresses how broadly a legislature has intended to define, or should define, the "practice of medicine."
Fraud derives from the classical action of deceit.[411] The essence of the tort is "the capacity of mankind for duping, deceiving, tricking, and taking advantage of the less informed or the gullible."[412] As one court noted, "the forms it may assume and the means by which it may be practiced are as multifarious as human ingenuity can devise . . . ."[413]
In general terms, fraud comprises "anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another or by which an undue and unconscionable advantage is taken of another."[414] The definition thus includes a mental state, intent to deceive, and an act, deception.[415] The mental state requires knowledge that one's conduct will deceive, as opposed to negligence.[416]
In asserting that alternative practitioners are committing "fraud," consider the following scenarios:
In Case 1, Sagebrush arguably has committed fraud: he has intentionally deceived Quicksilver into believing that touch healing will shrink or eliminate his tumor. This is the very kind of danger the legislature sought to address: an avaricious operator who takes advantage of a gullible, vulnerable patient.[417] In this case, the healer should be quickly and vigorously prosecuted.[418]
In Case 2, the element of intent is missing. In a sense, Sagebrush is innocent: he honestly believes he is helping the patient, but is not intentional ly defrauding him.[419] One might argue that Sagebrush has no business viewing Quicksilver as a "patient"; indeed, Sagebrush could conceivably be prosecuted for "holding himself out as a physician." But that goes to the "practice of medicine" issue, which asks how broadly "medicine" should be defined and has nothing to do with actual fraud.[420]
Case 3 goes to the scope of practice issue. Sagebrush addresses himself solely to the patient's "energy field,"[421] which is not the locus of the disease, but only the locus of "block or distortion" that ultimately underlies any physical disease.[422] He reminds Quicksilver that, for touch healing to work, no physical contact is necessary.[423]
In Case 4, Sagebrush is making a thorough disclaimer, consistent with norms underlying informed consent. Here Sagebrush encourages Quicksilver to consult with a physician. The client, who might prefer a nostrum or palliative, or to forgo treatment altogether, is prodded to seek medical advice.[424]
The disclaimer is strengthened in Case 5. Conceivably, courts could, as a policy matter, invalidate any such disclaimer, and any accompanying release signed by the client.[425] However, the argument for invalidation would be that touch healers should not be entitled to practice. One could base the argument on the insufficiency of controlled double-blind experi ments, or on the paternalistic desire to prevent patients from overrelying on healers to the detriment of their own medical care, but this is different than concluding that the alternative practitioner is perpetrating a fraud. Indeed, the argument suggests that "fraud" may become a label for "not accepted by conventional medicine."
If fraud is involved, courts should not hesitate to convict healing practi-tioners. However, if fraud is not involved, courts should not echo the AMA and automatically presume quackery. The issue of fraud is distinct from whether the individual offering a particular health care modality is "practic ing medicine" within the meaning of the licensing statute.[426]
The broad scope of practice in medical licensing statutes reflects a bias toward medical paternalism and against patient autonomy. Autonomy is a central value in medical decision-making.[427] Respecting the patient as an autonomous agent requires acknowledging the individual's right to make choices based on personal values.[428] Disrespect for autonomy, on the other hand, entails ignoring, insulting or demeaning those choices.[429] We value autonomy to respect the individual's unconditional worth, manifested as the right to determine one's own destiny, and to allow the individual to live according to personal conviction, so long as this does not interfere with the autonomy of others.[430]
Rights such as confidentiality and privacy derive from autonomy.[431] Respect for autonomy means helping patients overcome their sense of dependence and achieve as much control over their bodies and care as possible.[432] This notion underpins the doctrine of informed consent.[433] Autonomy should be overridden only by competing and overriding moral principles.[434]
The practice of medicine, and statutes licensing medical practice, are based on paternalism: the notion of physician as a benevolent parent making decisions for dependent, ignorant children.[435] Paternalism generally involves interference with autonomous choices.[436] Weak paternalism protects persons against substantially non-voluntary conduct, such as conduct by an addict.[437] Strong paternalism violates informed, voluntary, and autonomous choice.[438]
Strong paternalism is justified only if the following conditions are satisfied:[439]
Applying these criteria suggests how profoundly depriving patients of the right to select the alternative treatment of their choice violates patient autonomy and imposes an unjustified strong paternalism.[441] First, the asserted risk is that the patient will be harmed by the treatment or forgo medical treatment altogether. The possibility of active harm is difficult to envision, if all the practitioner is doing is using hands to affect Quicksilver's "energy field."[442] Indeed, if nothing else, Quicksilver may benefit from a placebo effect.[443] As for possibility of harm through passivity, the patient's reliance on a touch healer can be mitigated by a statutorily mandated disclaimer. The patient's unjustified reliance on the disclaimer can be remedied by requiring advance physician consultation or by requiring the practitioner to ask whether the patient has consulted a physician.[444]
Applying the second criterion, banning so-called "alternative" practitioners will not prevent patients from exploring complementary healing modali ties.[445] Moreover, a patient could still seek a healing touch from a caring friend or relative.
The third criterion requires that the projected benefits to the patient of removing access to alternatives outweigh the risks. The purported benefits consist in protecting the patient from a treatment that is either harmful or ineffectual, or which might be substituted for medical care. However, medical orthodoxy shifts the burden to proponents of alternative treatments to show their virtues.[446] In this way, medical paternalism may be no more than medical "chauvinism."[447] Moreover, most patients use unconventional providers to complement, rather than to substitute for, medical care.[448] Finally, patients such as the hypothetical Quicksilver, the plaintiff in Andrews, and the terminal cancer litigants in Rutherford, risk little by seeking touch healing or other holistic practices; indeed, when medicine no longer works, denying access to complements or alternatives may sentence these patients to a life of chronic pain or to a violent death.[449]
The fourth criterion is violated by any outright ban on alternative prac-tices.[450] As the court in Andrews noted, less drastic regulatory means ex istfor example, statutorily-mandated disclaimers and referrals, consulta tions, and physician supervision.[451] Finally, if patient health is the benefit to be secured, then limiting "healing" to "medicine" is hardly the least autonomy-restrictive alternative.[452] Rather, the argument for autonomy suggests respecting patient choices, and narrowing the term "medical practice" to practices that are truly "medical."[453]
By preferring paternalism to patient autonomy, medical practice acts devalue patient rights. Generally, the law analyzes physician-patient relations from a rights-based perspective.[454] Rights are "justified claims that individuals and groups can make upon others or upon society."[455] Rights theory in bioethics refers to liberal individualism, the notion that in a democratic society, individuals have a legally protected space in which to pursue personal interests.[456]
While widening access to alternative medicine supports patients' autonomy rights, it also implicates an ethics of care.[457] Caring refers to "emotional commitment to, and willingness to act on behalf of persons with whom one has a significant relationship."[458] Kantian universal rules, utilitarian calculations, and rights are less important.[459] "[R]esponsibility," "trust," "fidelity," and "sensitivity" matter.[460]
The ethics of care maintains that rights and obligations do not adequately capture the moral responsibilities between health professionals and their patients.[461] Rather, the expression of feelings gives rise to mutual interde pendence in relationships.[462] Acknowledging this interdependence shifts the emphasis from "curing" to being "a healing presence to one another."[463] As one physician notes, "whatever external approaches we choose, disease has another side, which can be approached not through doing but through understanding."[464]
Furthermore, affirming the emotional texture of the caregiver-patient interaction transforms the perspective of that relationship from one of dominance and dependence, respectively, to one of "adult collaboration."[465] The physician may disagree with the patient's choices and yet remain in relationship with the patient as primary caregiver.[466]
To the extent that holistic forms of healing treat the patient as a person, they reflect an ethic of caregiving. Indeed, the experience of "deep caring, empathy, and emotional support"[467] may be healing. The healer and client exchange in relationship, as autonomous, independent agents; the former acts as a "healing presence" to the latter, with an emphasis on caring, not curing.[468] In this way, "caring can be offered without paternalism . . . within a context worthy of trust," transforming the patient into an active partner in self-care.[469] The healing relationship, occurring outside the medical institution, values and protects the emotional aspects of the experience of illness.[470] In an integrated system of health care profession als, holistic forms of healing see in patient well-being the experience of "care," as well as "cure."
3. Redefining the Scope of Practice
The medical practice acts enshrine the notion that licensing health care practitioners, and prosecuting the unlicensed, serves patient well-being. Licensing, however, is designed to serve the well-being of the licensed, not the public. In fact, licensing is not a narrowly tailored solution to fraud, but a manifestation of the "culture of professionalism."[471]
The term "culture of professionalism" describes a social view of occupation, popularized in the late nineteenth century, which "admirably serve[s] individuals who aspire to think very well of themselves" by elevating their financial and social status.[472] The culture of professionalism regards the "professional" as somehow superior to the "nonprofessional" competitor. As the culture of professionalism ignited Americans' desires to be regarded as "professionals" (and hence as having succeeded in the middle class), plumbers "praised the dignity of . . . [their] work" as a "profession," rather than a mere "trade;" funeral directors "seized the word professional" to avoid being lumped with makers of brooms, boxes and baskets.[473]
The invention of the word "professional" spurred a surge in institutions devoted to "professional" education; in health care, for instance, the number of "professional" medical schools rose from twelve in 1801, to eighty-six in 1899:
Licensure, along with specialization and professional monopoly, responded to the call for fending off competitors.
Licensing not only creates a dubious distinction between "professionals" and their "nonprofessional" competitors, it also provides an inefficient, ineffective means of excluding the untrained.[475] Although licensing purports to protect the public against incompetence and fraud, it actually serves to insulate established practitioners from competition.[476] Typically, it is these entrenched practitioners who most ardently defend licensure; the general public does not have a special interest sufficient to motivate an organized opposition.[477]
Licensure not only entrenches the established; it also makes entry to the profession costly, if not forbidding.[478] Those who have taken the Bar exam may appreciate this proposition.[479] While licensure provides some level of consumer protection,[480] it unnecessarily restricts entry in order to protect and promote existing practitioners' pocketbooks.[481] Medical licensing, in particular, entrenches practitioners, and results in increased health care costs, shortages in the supply of health care professionals, and ineffective education and provision of services.[482] Indeed, medical licensing is ineffective in controlling incompetent or fraudulent practitioners.[483] Medical licensing exacerbates quackery by restricting the supply of legitimate practitioners, forcing consumers to seek underground substitutes.[484] Higher costs, reduced competition and increased bureaucracy result.[485] Moreover, since medical licensing boards are staffed by individuals drawn from, and committed to promoting, the licensed profession, medical licensing intensifies the protection of non-patient interests.[486]
Despite these failures, medical licensing persists, perhaps because it serves as the "key to effective control" over the profession. To practice medicine, one must obtain a license; to obtain a license, one must graduate from an approved school; and the list of approved schools maintained by licensing boards typically coincides with the list maintained by the AMA's Council on Medical Education.[487] When physician incomes decline, the Council can restrict physician supply.[488] Because the medical profession controls licensure and lobbies for broad interpretation of prohibitions on unlawful "practice of medicine," allied health professionals, and even barbers, cosmeticians, and manicurists have had to seek separate licensing; some legislatures have even "found it necessary explicitly to exempt shoe fitters from the requirements for a medical license."[489]
Many commentators advocate the outright abolition of medical licens ing.[490] Whether medical licensing is abolished or not, however, it reflects the political, economic, and legal entrenchment of the medical profession. The view that "medicine" occupies the universe of "healing"[491] must be viewed in this context: politically, the medical profession supplies the paradigm in which medical licensing is understood, interpreted, and enforced. Since the Flexner report, the AMA has used medical practice acts to stave off any perceived encroachment on its professional turf.[492] The late nineteenth-century efforts to squash "irregular physicians" and eliminate homeopaths have continued in successive fights against osteopaths,[493] psychologists,[494] physician assistants,[495] nurse practitioners,[496] midwives,[497] and other health care professionals; each group has had to fight either for separate licensing, or to broaden its statutory carve-out from the medical practice acts.[498]
As a result, while in the past fifty years, the health care system has changed fundamentally, the "practice of medicine" statutes have hardly changed.[499] In California, for example, the definition of medical practice in terms of diagnosing, treating, operating or prescribing for any ailment or injury has not changed since 1937.[500] Rather than redefine the scope of medical practice, legislatures and courts have redefined the scope of practice allocated to allied health care providers. The ensuing regulatory system defines non-physicians in pigeonholed categories and fails to recognize that professional functions, which form the basis for the licensing distinc tions, in fact overlap.[501] For example, nurses and psychologists often "diagnose," "treat," and/or "prescribe."[502] So do chiropractors.[503] Even courts have begun to acknowledge that physicians do not perform these functions exclusively.[504]
Proposals for reform have included limiting licensing provisions to restrictions on use of title (for example, "M.D.") rather than on the perfor mance of specific functions (for example, "diagnosis"),[505] limiting the definition of "medicine" to practice involving the use of medicines,[506] and expressly authorizing certain allied health care professionals to "diagnose" or "prescribe."[507] Each of these solutions would bring the historical definition of "practicing medicine" into greater conformity with the current reality. The more generalized solution, however, requires reform on three levels: legislative, judicial, and public.
On a legislative level, medical practice acts must be amended to define "practicing medicine" in terms specific to the medical profession, rather than in global, functional terms derived from historical notions of physician dominance. For example, the core definition could be amended to read as follows:
With this amendment, the term "medical" modifies "diagnosis," "treatment," "prescription," and "operation" to clarify that a physician utilizes medical education to assess a patient's condition and propose solutions.[508] Overbroad language such as "any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality,"[509] has been deleted, recognizing that not all human pain is medical pain, that the human "condition" may require more than prescriptions or surgery, and that various "means and instrumentalities" may exist alongside medicine as part of a patient's health care regimen.[510] The proposed definition links the caregiver function to caregiver education, which is "medical" rather than universal.[511]
The amendment acknowledges that physicians do not occupy the universe of healing, but rather inhabit an important place in a system of medical, allied, and alternative or complementary health professionals.[512] For example, most physicians are not trained to practice acupuncture or touch healing, or, for that matter, nursing or chiropractic.[513] A physician typically does not assess the flow of chi, the balance of yin and yang, the energy field, or the nerve energy[514] in a patient's spine.[515] Nor do any of these modalities necessarily conflict with medical treatment, treatment according to established medical protocol, using available technologies and scientifically established methods. Indeed, holistic and touch healing may be particularly valuable where medical techniques alone, such as chemotherapy, radiation, and even surgery, impose a "technological violence" on patients.[516]
Beyond amending medical practice acts, legislatures should continue to open the "healing arts" by licensing such complementary health professionals as practitioners of touch healing. Many states, finding complementary practices beneficial to patients, already license chiropractors,[517] osteo paths,[518] naturopaths,[519] massage therapists, [520] acupuncturists,[521] and practitioners of homeopathy. [522] In Nevada, for example:
Such an approach respects patient preferences[524] and recognizes the expertise of nonmedical healing professionals.[525]
As with practices such as chiropractic[526] and acupuncture,[527] it is those skilled and trained in the particular treatment who must guide the legisla ture.[528] The definition of touch healing could, for example, include:
The proposed definition permits touch healers to apply touch or non-contact touch as a healing modality without manipulating the neuromusculoskeletal system.[530] The healer treats the energy field. The treatment may affect the patient's physical condition, or, it may simply create a greater sense of wholeness. The healer may make an "energy diagnosis", not a medical diagnosis, but an assessment of the patient's chi. The healer is not practicing medicine, massage, nursing, chiropractic, religion, nor anything within our existing paradigm. As suggested, touch healing may stretch our conceptual categories.
In any event, to prevent touch healers from taking responsibility for the patient's medical condition, and to prevent overreliance by patients on alternative practitioners, two provisions could be added. First is the standard provision that the practitioner "may not practice medicine."[531] Second is the requirement, suggested by the court in Andrews, that patients consult physicians prior to obtaining alternative treatments.[532] A third possibility is to require appropriate disclaimers for each practice, and to mandate referral of patients to physicians for appropriate medical care. This is consistent with notions of autonomy and assumption of risk. A fourth option is to provide for tort or contract remedies in the case of injury relating to negligent practice or breach of warranty.[533]
On a judicial level, reform means rethinking the current state of deference to the medical model.[534] If alternative practitioners are prosecuted for "practicing medicine," courts should carefully consider whether the challenged practices actually constitute "medicine." Given that statutes licensing such diverse practitioners as physicians, nurses and chiropractors all contain terms such as "diagnosis" and "treatment," courts should hesitate to brand a practice "medical" simply because it involves assessing or addressing a human condition.
Courts also should reexamine any reflexive equation of "alternative" practices with "quackery." This could include giving less weight during trial to opinions, procedures and testimony that bear the term, medical.[535] Finally, reform on a judicial level means relying less on licensing laws and more on tort and contract remedies for egregious violations by alternative practitioners.[536] Indeed, contracting principles may be especially appropri ate, because many holistic healing practices rely on consensus and mutual responsibility.[537]
On the level of public awareness, reform entails a greater recognition of patient autonomy and of the extent to which paternalism has invaded health care and regulation. Patients must reclaim power over their own bodies. Greater education about alternative and complementary modalities will still the cry of fraud.[538]
As regulatory reform proceeds, legislatures, courts, and consumers can and should utilize the common law tort of fraud to target quacks. Where fraud exists, fraud should be prosecuted; those who actually intend to, and succeed in, taking advantage of patient vulnerability and luring patients away from medical treatment with the promise of quick cures, are indeed engaging in what society proscribes as criminal.[539] Ultimately, education may become the means for weeding out charlatans from practitioners who, though their methods may challenge conventional paradigms, truly are committed to patient care.[540] As physician dominance erodes, the patient, as a person, will have a greater voice in health care decisions.[541] The "silent world of doctor and patient" will shift to one in which the two parties not only engage in dialogue, but act as partners in a shared enterprise of mutual benefit.[542]
The emergence of holistic healing indicates a movement from medical orthodoxy toward a broader conceptualization of illness and health. To safeguard patient choices and recognize the growing body of literature regarding alternatives, policymakers should reexamine the reduction of healing to medicine, and the equation of nonmedical alternatives with fraud. The current regulatory scheme, embodied in state "practice of medicine" statutes and related case law, reflects an outmoded view of health care, in which the physician is the sole purveyor and guardian of health.
Constitutional norms and common law doctrines such as informed consent and assumption of risk provide some support for giving patient preferences greater deference. These doctrines should be expanded to recognize patient interest in complementary healing modalities. Moreover, since common law fraud protects patients against "quacks," lawmakers should acknowledge and encourage a more integrated system of healing professionals.
To shift from an exclusively medical paradigm to a framework that includes touch and other forms of holistic healing does not mean that the insights, discoveries, and therapeutic devices of modern medicine will be discarded or diminished. Nor does the movement from medicine to healing mean returning to the Dark Ages or succumbing to quackery. Rather, rethinking the paradigm means freeing the law from conceptual and historical limitations, and opening to embrace a broader set of possibilities for the journey into health.