Where Professionalism Intersects NDEs and IANDS by Jody
 

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This is an oversimplified legal discussion for purposes of general knowledge.  In reality, each of the grounds for liability would depend on specific facts when applied to specific areas of federal and each person's particular state law.  Each reader is advised to seek additional legal counsel to limit liability as needed This is not intended as advice for those outside of Washington state, although there may be implications that other's might wish to explore in their own states.

The purpose of posting this article is not only for general information, but mainly for those seeking professional counseling and psychological help resulting from experiencing an NDE, the death of a loved one, or trying to integrate a spiritually transformative event.  There are many who hold themselves out as healers, but may not be licensed or competent to practice in the healing arts.  Although there are many good and competent medical professionals among our ranks, there are always a few that spoil it for everyone.  The bottom line is to make sure you thoroughly check out any medical or counseling professional you decide to obtain services through.  With that as the backdrop, below is a discussion of legal liability concerning where professionalism and IANDS intersect.

One of the core issues with IANDS policy-making centers around legal liability.  These policies affect interaction between members, professionals, Friends of IANDS groups, and Mother IANDS.  Many times, the seeming unresponsiveness of the organization results in a lot of criticism and animosity.  This is most unfortunate, as the laws are what limit IANDS� ability to act, and falls outside the power of the IANDS governing body.  Further, the mission statement, bylaws, and articles of incorporation, will define what authority and powers IANDS has to organize business and structure the meetings.  Therefore, the following discussion will hopefully shine some light as to those boundaries and Member concerns.  Then, should someone wish to go outside of these particular limitations, then they are free to do so.  The understanding being that IANDS is not associated with the ultra vires actions. 

Among the concerns, Members want to form counseling support groups of NDE-only members under the umbrella of IANDS.  Members also want to know where they can find professionals such as doctors, psychologists, counselors, or spiritual advisors, to deal with post-NDE re-integration into mainstream society.  Board Members are faced with the dilemma of providing member services and being liable as a deep pocket for a law suit if an IANDS member or their family wants to sue: 1) the professional who caused harm to the Member, and/or; 2) IANDS for being associated with the professional.  A person who is both, a professional and an IANDS member, may be faced with clearly delineating their role in the group as either a professional or a simply a Member.  As a member, individuals need to take responsibility for whom they choose to help them heal.  So, from many different angles within our ranks, we all need to develop clear understandings that will satisfy member needs and also protect the NDE organization.

The most common legal theories in this analysis are torts and licensing problems.  A tort can be either an intentional or unintentional action that causes harm to another person.  Misconduct is usually a violation of a particular policy of a licensing agency or a legislatively defined standard for a professional.  Many members may wonder where the line exists for practicing counseling vs. lending a sympathetic ear for those who need help.  Finally, there is a type of tort called vicarious liability that holds an organization liable for the actions of third-parties; essentially it is guilt by association to enable the harmed party to get more money from a legal suit.       

In general, a tort has four or five elements of proof.  There must be 1) a duty owing between the parties, 2) a breach of that duty, 3) there has to be a direct link of causation that the breach caused harm, and 4) there needs to be proof of harm.  The fifth element, may or may not include the element of intent.  Physical, emotional, or mental harm to a member could most commonly occur through associations with other IANDS members either in the capacity of another member or as a member who is also a professional. 

Vicarious liability could attach to a Friend of IANDS group or to Mother IANDS, regardless of separate legal incorporation between the two, if there is a special relationship between the professional member and IANDS.  This means that if a professional acting under the authority of IANDS commits harm to an IANDS member, then, ultimately both, the professional and IANDS, could be held responsible for the harm.  Moreover, it could be argued that IANDS may actually have a greater duty of care than other organizations to protect its members, since there is a high-percentage of vulnerable people. 

This can be of great concern since IANDS and most FOI groups do not have a lot of financial resources.  The more common scenario could possibly occur if an agency relationship could be established.  This would be a relationship whereby a person was authorized to represent IANDS in dealings with Members.   The key issue would be whether or not an agency was created, either in writing, by actions, or if non-authorized actions were subsequently ratified by the IANDS Board.  This is the primary reason why IANDS does not recommend or even maintain a list of professionals for Members.  IANDS does not want to be liable for any harm coming to a Member, nor do they want any type of misunderstanding to arise that might look like an endorsement of professional services or warranty of professional fitness. 

Generally, the state determines what professions need to be supervised for the good of the public.  Statutory requirements are stringent for health-related professions, as the capacity to injure others is relatively high compared to other professions.  A person acting in a professional capacity is held to the standards of the profession.  Misconduct could arise if a professional Member fails to live up to the standards of the profession and harms the Member.  However, if a professional makes it clear that they are not acting in a capacity of a professional Member, then they are held to the standard of any other member in the group. 

There are two other potential pitfalls concerning professional Members.  One is in the area of writing, and the other is in the area of IANDS leadership.  Any professional Member who writes specific advice that is relied upon by readers to the detriment of that reader, could potentially open themselves and IANDS up for a lawsuit.  The mere fact of publishing without disclaimers, could be considered as an endorsement of the author�s views. 

The other area of concern is those professional Members who are also in IANDS leadership roles.  Generally, if a professional is a member of the Board of Directors or an officer of the organization, they are shielded from liability so long as they are operating under the general powers and authorities granted by the state, bylaws, and articles of incorporation.  They would normally only be personally liable if they operated outside of their grant of power or scope of authority.  The issue becomes whether or not a health-care professional in a leadership position with IANDS can help Members without being personally liable. 

A Member who is acting as a professional may need to beware of potential liability for practicing without a license.[1]  Generally, the line of demarcation is whether or not advice is offered.  The issue hinges on what constitutes �practicing� a licensed profession.  The best legal protection for a Member is not to represent oneself as either a professional or a healer who falls under state licensing regulations.

However, there may be some statutory criteria and exemptions that could help mitigate against potential legal suits.  It appears, at least in Washington, that there could be an escape clause for professionals if: 1) the counseling is  �incidental� to the authorized scope of practice or such that the professional is not specifically charged with counseling duties for IANDS, or; 2) counseling when approved by a non-profit organization, or; 3) counseling when associated with religion.[2]   

The formation of small support groups among Members, would legally depend on the purpose and scope of what the support group(s) is(are) intended to accomplish.  IANDS would need to establish policies and procedures for subgroups solicited during IANDS meetings or formed under the umbrella of being associated with IANDS.  If counseling or therapy is involved, then IANDS would need to check state laws, get the appropriate insurance and/or licenses, and modify bylaws and policies accordingly.

Based upon the foregoing discussion several recommendations follow below.

1)      IANDS Organizations need to limit potential vicarious liability to the greatest extent possible.  This may be done by a combination of disclaimers, waivers, policies that clearly state the relationship obligations and expectations between 1) Members and IANDS and 2) Professional Members and Members, and bylaws consistent with such disclaimers and policies.  Review and make sure that policies and meetings are consistent and within the scope of power granted with the mission statement and statutory laws. 

2)      It is recommended that all FOI groups maintain bylaws, mission statements, and policies consistent with Mother IANDS.  This would minimize liability and negative publicity for Mother IANDS.

3)      A procedure for professional Member endorsements, if any, should be established or written in IANDS policies or specifically prohibited as appropriate.

 4)      Professionals should be clear about their role in IANDS and the policy established by IANDS should clearly be communicated to Members.  It would be recommended that professionals understand that they can use their professional skills in communicating with Members, but holding themselves out to the Members in a Professional capacity should be discouraged unless approved by the IANDS Board and consistent with established policies and procedures.

 5)      Policies regarding Members should promote recognition that they accept responsibility for choosing their own method of healing and perform their own independent investigating of any professional Member they may come in contact with through their association with IANDS.

 6)      Lastly, it has been suggested that a subgroup be formed of NDE-only Members to meet in small numbers.  While it might be possible to have small subset groups, it is not consistent with the Mother IANDS mission statement to exclude people.[3]  Therefore, it would be legally prudent to either meet with other NDErs on an informal basis such as dinner after the meeting or form a group that is not associated with IANDS.  As this action may have other implications outside the legal analysis, it is recommended that further study be directed towards analyzing the history of IANDS groups, the duration, success or failure of similarly created subgroups.


[1] RCW 18.130.020(6), "Unlicensed practice" means: (a) Practicing a profession or operating a business identified in RCW 18.130.040 without holding a valid, unexpired, unrevoked, and unsuspended license to do so; or (b)Representing to a consumer, through offerings, advertisements, or use of a professional title or designation, that the individual is qualified to practice a profession or operate a business identified in RCW 18.130.040, without holding a valid, unexpired, unrevoked, and unsuspended license to do so.

 

[2] RCW 18.19.040, Exemptions. Nothing in this chapter may be construed to prohibit or restrict:  (1) The practice of a profession by a person who is either registered, certified, licensed, or similarly regulated under the laws of this state and who is performing services within the person's authorized scope of practice, including any attorney admitted to practice law in this state when providing counseling incidental to and in the course of providing legal counsel;  (2) The practice of counseling by an employee or trainee of any federal agency, or the practice of counseling by a student of a college or university, if the employee, trainee, or student is practicing solely under the supervision of and accountable to the agency, college, or university, through which he or she performs such functions as part of his or her position for no additional fee other than ordinary compensation; (3) The practice of counseling by a person without a mandatory charge; (4) The practice of counseling by persons offering services for public and private nonprofit organizations or charities not primarily engaged in counseling for a fee when approved by the organizations or agencies for whom they render their services; (5) Evaluation, consultation, planning, policy-making, research, or related services conducted by social scientists for private corporations or public agencies; (6) The practice of counseling by a person under the auspices of a religious denomination, church, or organization, or the practice of religion itself;

 

[3] IANDS' mission is to respond to people's needs for information and support concerning Near-death and similar experiences, and to encourage recognition of the experiences as genuine and significant events of rich meaning. Our goals are:To enrich our understanding of the nature and scope of human consciousness and its relationship to life and death; To encourage thoughtful exploration of all facets of near-death and related experiences; To respond to people's needs to integrate the physical, mental, emotional, and spiritual aspects of the NDE into their daily living. To provide reliable information about near-death experiences to experiencers, researchers, and the public; To serve as a contact point and community for people with particular interest in near-death and related experiences.

 

 

           

 

Copyright1999 by Dr. Jeff and Jody Long

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