How immune are health gurus to liability?

What is a health guru?

A health guru has substantial knowledge about health and a healthy lifestyle. Health gurus actively promote healthy habits. They often share their advice and knowledge with others through the media or by offering courses.

It is essential to distinguish between health gurus and individuals with professional or educational title protection. Martin Buijsen, Professor of Health Law, indicates that individuals who do not enjoy professional or educational title protection under the Dutch Individual Healthcare Professions Act (Wet BIG) do not differ in their responsibilities and obligations from other citizens in those respects. Health gurus, thus, have the same responsibilities and obligations as other citizens and cannot be equated with individuals with professional or educational title protection, such as doctors or nurses.

The question arises whether anyone can present themselves as a health guru or if these individuals need a certain level of medical expertise to offer health practices. Buijsen explains that Dutch law includes the freedom of choice of healthcare providers. This choice means that patients have the right to select their own healthcare provider. These healthcare providers also include paramedical professionals, alternative healers, and alternative medicine practitioners, for example.

Legal Protection

Article 96 of Wet BIG is relevant in this context. Liselotte Postma, Associate Professor of Criminal (Procedural) Law, explains that this provision focuses on healthcare providers who, in performing actions in the field of individual healthcare, cause harm or a significant risk of harm to another person's health without necessity. Postma states: "The scope of the criminal provision also includes alternative healthcare providers or health gurus. The patient can turn to an alternative healthcare provider, but if this harms the patient's health, the law does not remain indifferent." There are sanctions for the healthcare provider associated with harming a patient's health through the treatment of an alternative healthcare provider. However, Postma does point out that prosecution under Article 96 of the Wet BIG is rare in practice. "If it does happen, it often occurs in combination with offences under the Criminal Code."

Competent or incompetent

Buijsen remarks about healthcare law: "There is no law or regulation that prescribes these providers (such as health gurus) must possess medical expertise. However, some actions are legally reserved for healthcare providers who enjoy professional title protection under the Wet BIG". Actions legally reserved for healthcare providers with professional title protection include prescribing medication or performing surgical procedures. Buijsen explains that these are actions that require authority and competence. "If an unauthorized individual performs an action legally reserved for doctors, it constitutes a criminal offence", says Buijsen. These unauthorized individuals could potentially face criminal prosecution. Buijsen indicates that when someone is allowed to hold a professional title, this person could be held not only criminally but also professionally liable. Professional liability involves legal proceedings that oversee compliance with the ethical and professional standards within specific professional groups. Criminal law focuses on maintaining the law and punishing individuals for criminal offences.

No punishment without guilt

For criminal liability, several elements are required. Firstly, article 1, paragraph 1 of the Dutch Criminal Code must be examined. In this article, the principle of legality is enshrined, which states: no act is punishable unless it is based on a prior legal provision. Postma points out that the actions of the health guru must fall within the scope of a legal provision, and the health guru must be subject to blame for those actions. Postma says: "After all, criminal law is based on the principle 'no punishment without guilt': if there is no guilt on the part of a suspect, then the conduct cannot be attributed to them, and no punishment can be imposed".

How far does the duty of care extend?

If the actions of a health guru result in serious bodily injury or the death of the patient, various provisions from criminal law may be applicable. Firstly, Article 300, Section 1 of the Dutch Criminal Code. This article pertains to assault. Assault is: the intentional infliction of bodily injury or pain on another without a justification. According to Article 300, Section 4 of the Dutch Criminal Code: intentional detriment to health is equated with assault. Postma highlights the relevance of the Millecam case in this context.

Millecam lawsuit
The Millecam lawsuit concerns the death of actress Sylvia Millecam and the involvement of the paranormal healer Jomanda. In 2001, Millecam was suffering from breast cancer. However, she chose to pursue alternative medicine rather than conventional medical treatment, such as undergoing chemotherapy. Jomanda had stated that Millecam did not have cancer but rather a bacterial infection. Jomanda claimed that her alternative treatments were sufficient to treat Millecam. Ultimately, Millecam succumbed to the illness. Jomanda's statements raised questions about the responsibility of alternative healers when advising patients on medical conditions. Unlike the doctors involved in Millecam's case, who also practised 'alternative' medicine, Jomanda was absolved. Jomanda had a duty of care towards Millecam, but her advice and assistance were, in short, not aimed at preventing Millecam from continuing to see doctors. There was no gross violation of the duty of care in this case. It could not be said that the advice and assistance provided by Jomanda alone could harm Millecam's health.

Postma states: "From this case, it becomes evident that alternative healers also have duties of care that, under certain circumstances, can lead to criminal liability. However, these care duties are less extensive than those of doctors offering alternative medicine".

In addition to Article 300 of the Dutch Criminal Code, other criminal provisions may be relevant in cases where the actions of a health guru result in severe physical injury or death. Manslaughter, as mentioned in Article 287 of the Criminal Code, may apply if the patient or client's death is intentionally caused. Articles 307 and 308 of the Criminal Code make it a criminal offence to cause severe physical injury or death through negligence or carelessness based on the accusation of 'more or less gross negligence or recklessness'. Non-intentional causing of 'ordinary' injuries, on the other hand, is not punishable.

Furthermore, Postma states that a patient's consent for a specific treatment does not guarantee immunity from prosecution. Postma says: "A client's voluntary participation in the activities of a health guru alone is insufficient to reduce criminal liability".

Unlawful act and contractual liability

Professor of European Liability Law Kasper Jansen explains: "If someone performs unauthorised medical procedures that, by law, only doctors are allowed to perform, it constitutes not only a criminal offence but also an unlawful act." An unlawful act means the unauthorised individual may be obligated to compensate the patient. If the patient had entered into a contract with the health guru, liability can also arise from it. It depends on whether there is a breach in fulfilling the agreed-upon terms. Moreover, the contract can also contain an exculpatory clause. Jansen explains this: "It is a contractual exclusion of liability. In relation to consumers, such an exculpatory clause usually has no effect, especially not if there is intent or conscious recklessness on the part of the health guru".

Unwritten standard of care

"Besides these situations where the health guru violates the law or breaches a contract, liability is also possible when the health guru infringes upon the physical integrity of the patient or contravenes an unwritten standard of care", states Jansen. Infringement of physical integrity involves intentionally or directly causing harm to the patient. Acting in contravention of an unwritten standard of care means acting or omitting to act in a way considered ‘decent’ in society. Jansen explains when a health guru can be held liable for acting in contravention of an unwritten standard of care: “This is particularly the case when the health guru exposes the patient to a greater risk than was reasonably justifiable under the given circumstances. Some vigilance is expected from the patient in this context, but especially in extreme cases, the actions of the health guru may quickly be characterized as wrongful endangerment". Jansen also points out the patient’s responsibility: “If the patient consciously assumed certain risks, a violation of a standard of care cannot be assumed in principle".

Unfair commercial practice

Furthermore, it is still possible that the health guru makes misleading statements about themselves or the treatment in their advertising. For instance, the health guru might falsely claim to be a doctor or assert that no risk is associated with the treatment. This false advertisement could provide an additional basis for civil liability. Jansen explains that this may constitute an 'unfair commercial practice,' which is also a form of an unlawful act and thus a basis for liability.

Hof's lawsuit will take place in the United States. This article focused on Dutch law.