MBC’s ACTION REPORT ~ Definition of what is and isn’t an illegal practice of medicine

by faithgibson on September 10, 2012

The following information comes from an impeccable source — the California Medical Board itself. It provides a very specific definition of what activities and duties a non-clinical student or other unlicensed ‘helper’ can provide as a part of their presence at a LM-attended OOH labor and birth.

It’s important that CaLMs have  on-going access to this historical document, so I am archiving the article here on the California-Midwives.com.

To help the reader understand this material better, I copied the most pertinent and informative part of the article as a stand-along quote at the very beginning and noted actions and types of care commonly provided by non-clinical students with an asterisk (*).

This excerpt is followed  posting the entire article, but without my of editorical comments & notations.

 Action Report – Board of Medical Quality Assurance No, 27 — January 1985

Repeated material from page 8:  ….. there are some things that can be done by unlicensed health occupations [editor’s comment: note the difference between a ‘profession’ and ‘occupation’]. In general, they [unlicensed persons] are permitted to do most anything that does not involve direct patient contact. For example, setting up examinations or treatment equipment, *assisting licensed personnel by handing equipment, *taking notes, and so on.

There also are certain patient-contact activities that are not illegal [Editor:  activities that ARE legal! ].

Examples include:

taking vital signs,
* assisting a patient in ambulating or transfers,
* collecting biological specimens (as long as no penetration of the tissue is involved) and
* performing simple non-invasive testing
[editor comment: i.e. prenatal and intrapartum examples incl. deep tendon reflexes, counting fetal heart tones, vital signs on the neonate, etc].

Thus, performing an electrocardiogram or electroencephalogram is permitted if there is no tissue penetration.

Problems occur if:

the unlicensed person is providing a treatment   [ed: the student of unlicensed helper decides to taken action to correct a medical symptom or ‘cure’ a disease]
analyzing results of tests   [Ed: interperting whether the baseling BPM of the baby’s fetal or neonatal heart rate, respirations, etc are normal vs. abnormal]
advising patients about their conditions   [Ed: “oh you don’t have to worry, everything is fine”]   making assessments or performing any kind of decision-making activities   [Ed: vag exam to see if it is OK for the mother to push]

There is no prohibition on a doctor consulting with an unlicensed person who has expertise in some technical area. However, the physician may not direct that person to provide the treatment the physician chooses, even if it is done under the physician’s supervision.

One final comment: the place of employment does not affect the legality of unlicensed activities. Licensed health facilities such as hospitals, are not immune or exempt from the prohibitions on the unlicensed practice of medicine.

We recognize that the practice of using unlicensed technicians to perform a wide variety of patient care is extremely widespread. The fact that it is being done does not make it legal. Hospitals and physicians alike need to realize that they are at risk if their employees are doing things that they are not licensed to do.

Full text of the article begins here

Action Report – Board of Medical Quality Assurance No, 27 — January 1985

Page #3: “Unlicensed Health Occupations: Who is Practicing Illegally?

In October 1983,the ACTION REPORT carried an article on what medical assistants can do. … many people called or wrote to react to that article, or to ask for further information. Some of those calls and letters were about other unlicensed health occupations, such as surgical technicians, occupational therapists, orthopedic technicians and numerous other groups. Those inquiries prompted this article to discuss the broad question of unlicensed occupations.

Historically, the number of licensed health professions and occupation has grown very slowly. Nationwide, there are an average of only 14 licensed health occupations in each state. However, there has been an explosion of technical occupations since 1950. Some listings contain as many as 200 occupational titles. Very few of these occupations have legal recognition, either through licensure or legal definition of a title or scope of practice.

In California, only acupuncturists, research psychoanalysts and respiratory care practitioners have achieved licensure in the past ten years [editor’s comment: they left nurse-midwives off this list]. Dietitians and occupational therapists have laws stating who can use those titles, and medical assistants have standars for training and scope of practice. This leaves dozens of occupations with questionable authority to engage in medical functions.

Perhaps the most widespread misconception in health care is that the license granted to a physician or a health facility provides umbrella protection or sanction for subordinates. In a 1961 decision (Maget vs. Board of Medical Examiners) the California Supreme Court unanimously ruled that supervision of a licensed individual (in the case a physician) does NOT protect an unlicensed person from being in violation of the law. The Court further pointed out that a doctor who permits unlicensed employees to practice medicine is guilty of aiding and abetting unlawful conduct. There has been no change in the law since that decision.

What, then, is the unlicensed practice of medicine? For an answer to that it is necessary to look at several sections of the law.

Section 2051 of the B&P Code gives a partial definition: “…to use drugs or devices in or upon human beings and to sever or penetrate the tissue of human beings and to use ANY AND ALL OTHER METHODS in the treatment of diseases, injuries, deformities, and other physical and mental conditions.

Further, Section 2052 states: “Any person who practices or attempts to practice who practice, or who advertises or holds himself or herself out as practicing any system or mode of treating the sick or afflicted in the state, or who disgnosis, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfiguration, disorder, injury, or other physician or mental condition of any person, without having at the time of so doing a valid, unrevoked or unsuspended certificate as (a physician) …. or without being authorized to perform such act pursuant to …. some other provision of law is guilty of a misdemeanor.

page #8:

Basically, if your not licensed to do it, then it probably is illegal.

Now obviously, there are some things that can be done by unlicensed health occupations [editor’s comment: note the difference between a ‘profession’ and ‘occupation’]. In general, they are permitted to do most anything that does not involve direct patient contact. For example, setting up examinations or treatment equipment, *assisting licensed personnel by handing equipment, *taking notes, and so on.

There also are certain patient-contact activities that are not illegal [Editor comment: ie. that ARE legal!]. Examples include *taking vital signs, assisting a patient in ambulating or transfers, *collecting biological specimens (as long as no penetration of the tissue is involved) and performing simple non-invasive testing [editor comment: i.e. for example, deep tendon reflexes, counting fetal heart tones, vital signs on the neonate, etc]. Thus, performing an electrocardiogram or electroencephalogram is permitted if there is no tissue penetration.

Problems occur if the unlicensed person is providing a treatment [ed: an action taken to correct a medical symptom or ‘cure’ a disease], analyzing results of tests [Ed: interperting whether the baseling BPM of the baby’s fetal or neonatal heart rate, respirations, etc are normal vs. abnormal], advising patients about their conditions [ed. “you don’t have to worry, everything is fine”], making assessments or performing any kind of decision-making activities [Ed: vag exam to see if it is OK for the mother to push].

There is no prohibition on a doctor consulting with an unlicensed person who has expertise in some technical area. However, the physician may not direct that person to provide the treatment the physician chooses, even if it is done under the physician’s supervision.

One final comment: the place of employment does not affect the legality of unlicensed activities. Licensed health facilities such as hospitals, are not immune or exempt from the prohibitions on the unlicensed practice of medicine.

We recognize that the practice of using unlicensed technicians to perform a wide variety of patient care is extremely widespread. The fact that it is being done does not make it legal. Hospitals and physicians alike need to realize that they are at risk if their employees are doing things that they are not licensed to do.