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posted by FatPhil on Monday July 22 2019, @01:11AM   Printer-friendly
from the dietetics-dianetics,-what's-the-difference dept.

The judge noted that the "health coach" was free to offer pro bono advice.

A federal court on Wednesday rejected claims by an unlicensed "health coach" that the unqualified health advice she provided to paying clients was protected speech under the First Amendment.

In rejecting her claim, the court affirmed that states do indeed have the right to require that anyone charging for health and medical services - in this case, dietetics and nutrition advice - be qualified and licensed. (State laws governing who can offer personalized nutrition services vary considerably, however.)

Heather Del Castillo, a "holistic health coach" based in Florida, brought the case in October of 2017 shortly after she was busted in an undercover investigation by the state health department. At the time, Del Castillo was running a health-coaching business called Constitution Nutrition, which offered a personalized, six-month health and dietary program. The program involved 13 in-home consulting sessions, 12 of which cost $95 each.

Under a Florida state law called the Dietetics and Nutrition Practice Act (DNPA), anyone offering such services needs to be qualified and licensed to protect against bogus advice that could cause significant harms. Those qualifications include having a bachelor's or graduate degree in a relevant field, such as nutrition, from an accredited institution; having at least 900 hours of education or experience approved by the state's Board of Medicine; and passing the state's licensing exam.

Del Castillo had completed none of those things. Her only credential for providing health services was a certificate from an unaccredited, for-profit online school called the Institution for Integrative Nutrition. Otherwise, she had a bachelor's degree in geography and a master's in education. [...]


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  • (Score: 1, Interesting) by Anonymous Coward on Monday July 22 2019, @06:31PM (5 children)

    by Anonymous Coward on Monday July 22 2019, @06:31PM (#870029)

    On the one hand I agree with you. On the other hand, what if the medical advice was valid? How do you allow that speech but block this speech?

    As an example, currently cannabis/marijuana is officially a Schedule 1 [dea.gov], so by definition has "no currently accepted medical use and a high potential for abuse. By this same argument, everybody who is saying that canabis has a valid medical use (let alone states which have legalized it) can and should be prosecuted. There are countless other cases as well (there have historically been literal conspiracies by pharmaceutical companies to suppress certain competing treatments or information).

    So if we can prosecute everything outside the mainstream, where does that leave people who say, "the world revolves around the sun?"

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  • (Score: 2) by All Your Lawn Are Belong To Us on Monday July 22 2019, @08:25PM (3 children)

    by All Your Lawn Are Belong To Us (6553) on Monday July 22 2019, @08:25PM (#870069) Journal

    Simple. They don't care about the content of the speech except that it falls into the domain of a licensed professional. What they care about is that the individual rendering the advice was not licensed to do so. There may well be licensed dieticians who give exactly the same advice as the person prosecuted here and charge exactly the same rate.

    As to those who believe the world revolves around the sun... Is there reason to believe someone is charging others in order to hear that? However I will give you the sound of one hand clapping: Go and obtain the license to be able to operate as a professional who says that. Problem solved.

    --
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    • (Score: 0) by Anonymous Coward on Monday July 22 2019, @08:53PM

      by Anonymous Coward on Monday July 22 2019, @08:53PM (#870078)

      Simple. They don't care about the content of the speech except that it falls into the domain of a licensed professional. What they care about is that the individual rendering the advice was not licensed to do so. There may well be licensed dieticians who give exactly the same advice as the person prosecuted here and charge exactly the same rate.

      As to those who believe the world revolves around the sun... Is there reason to believe someone is charging others in order to hear that? However I will give you the sound of one hand clapping: Go and obtain the license to be able to operate as a professional who says that. Problem solved.

      Except, as in the example for marijuana, the government intentionally does not give ANY license to anybody who is wrongthink. That's one way they had eliminated marijuana in the first place. They made it illegal to use marijuana for research unless you have a license (sounds reasonable, which congressman would vote against that?), and then refuse to grant anybody any license under any circumstances.

      As an example, imagine the administration got it in their head that abstance-only is the only safe form of birth control, and/or that if a person sexually identifies as a horseradish that that is perfectly normal and needs no counseling. Now they have it as part of getting a medical license that they must subscribe to that ideology, at risk of malpractice and license revocation.

      How do people who know "the truth" spread the word? Unpaid volunteer-only activities?

    • (Score: 2, Insightful) by aristarchus on Monday July 22 2019, @10:06PM (1 child)

      by aristarchus (2645) on Monday July 22 2019, @10:06PM (#870102) Journal

      Professions are different. The work of Talcott Parsons [wikipedia.org] in the sociology of professions set out a lot of the reasons why. The basic thing is that professions are granted a monopoly on a particular practice, based on expertise and providing a social good. The secondary thing is that professions are granted autonomy, in that it is the profession itself that sets its own standards of practice, including ethics. And so professions must be organized, explicitly, to establish best practices, enforce ethical standards, and replicate itself as a profession.

      Point being, a professional opinion is not the opinion of an individual, it is the opinion of an individual professional speaking for the profession. Thus not a matter of free speech. A couple of examples:

      Hanging a shingle: One does not just profess to be a professional! It's not just a job, it is a calling, and as such relies on the professional community to recognize your self-identification. This is why we have professional schools, largely associated with universities, and other training requirements, like clerkships, adjutants, and interns. Our case here is of someone claiming professional expertise they did not have evidence of, which is the essence of quackery. Part of the monopoly of professions is that the profession can seek the aid of the state in granting licenses to practicioners, and punishing fakes. Case in point: Rand Paul's "Opthamology" certification [thedailybeast.com].

      Stolen Valor: One may be a professional, but attempt to use the authority and prestige of one's profession for private or non-professional purposes. Advertising is one instance, where a medical professional may endorse a drug, or some therapy for personal compensation, rather than out of professional responsibility. Politics, being closely related, is another area. Often we see not too professional conservatives failing to separate professional and private, and so crossing the line. For an officer of the military to appear at a political function, in uniform, and speak in favor of some candidate/policy, is an attempt to suggest that their profession as a whole shares that position. The profession punishes such fools. [court-martial.com]

      Religious Freedom: Current deceptive campaigns are being waged to guarantee "religious freedom" to professionals. This is again confusing the personal and the professional. If you are opposed to birth control, but it is the stated professional best practice to prescribe and administer instruments of the same, you cannot be a health care professional. Sorry. If you are opposed to, oh, let's say, blood transfusion [newyorker.com] because of a wacky literal reading of some holey book, you cannot be a health professional. Now we might think that you still could, and just recluse yourself from activities in the profession that mandate actions you have religious objections to. But if you arbitrarily choose what standards and practices and ethical values of your profession you will follow, you are no professional.

      In sum, always make it clear when you are actually a qualified professional, and when you are not. Always make it clear when you are speaking as a professional and when not. (Nota Bene: Professions have free speech as autonomous professions, so they can an do speak out on matters relevant to their profession, as a profession, but professions are not persons, so no free speech in that sense. With great expertise (power) comes great responsibility.) Finally, do not steal professional authority to promote your own or partisan agendas. M'kay?

      • (Score: 2) by All Your Lawn Are Belong To Us on Tuesday July 23 2019, @05:49PM

        by All Your Lawn Are Belong To Us (6553) on Tuesday July 23 2019, @05:49PM (#870411) Journal

        Don't disagree. However, professionals are also usually only liable in tort for their representations when they have been compensated for them. (Which occurred in this case - they paid her and she delivered advice). They can still be responsible before licensing boards AFAIK, although her taking money sealed the deal that she was acting in a manner reserved for the professionally licensed. Mrs. Lawn used to work with supplements at a store which sold more than that, and had quite a bit of training on how to respond to questions from the public where they referenced people where to get advice rather than giving the advice themselves.

        The other aspect is that in this case the person was not holding herself out to be a "nutritionist," but rather a, "health coach," according to TFA. The issue here as you noted, however, is that she was acting as a nutritionist without the credentials to do so whether she claimed the title or not and charging for that activity. One does not have to say one is a surgeon - if one cuts on a person and takes money for it one has practiced medicine without a license. One can say, "I am NOT a surgeon," but if one still takes money and then cuts then one is still acting as such without the credential.

        --
        This sig for rent.
  • (Score: 2) by c0lo on Monday July 22 2019, @11:33PM

    by c0lo (156) Subscriber Badge on Monday July 22 2019, @11:33PM (#870130) Journal

    On the other hand, what if the medical advice was valid?

    I don't know the answer, I'm not qualified in medicine (see what I did here?)

    But the question does bring in focus the 'role of trust in human society', something that is so everyday-life rarely anyone consider as a general topic (as opposed to issues in specific circumstances).

    Can you imagine what the liberty to scam others in the name of free-speech does to the trust?

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