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| [1] | COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT |
| [2] | No. H003366 |
| [3] | 1989.CA.40620 <http://www.versuslaw.com>;
260 Cal. Rptr. 113; 211 Cal. App. 3d 1346 |
| [4] | June 29, 1989 |
| [5] | BOARD OF MEDICAL QUALITY ASSURANCE, PLAINTIFF AND RESPONDENT, v. ARTHUR ANDREWS ET AL., DEFENDANTS AND APPELLANTS |
| [6] | Superior Court of San Benito County, No. 14644, Thomas P. Breen, Judge. |
| [7] | Norman Lariviere, Susan F. Shapiro and Lariviere & Dickerson for Defendants
and Appellants. |
| [8] | John K. Van de Kamp, Attorney General, and Richard Arnold, Deputy Attorney
General, for Plaintiff and Respondent. |
| [9] | Opinion by Capaccioli, J., with Brauer, Acting P. J., and Premo, J., concurring. |
| [10] | Capaccioli |
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[211 CalApp3d Page 1348]
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| [11] | Appellants, the Religious School of Natural Hygiene (RSNH) and its president
and first minister, Arthur Andrews, appeal a permanent injunction granted
to respondent the Board of Medical Quality Assurance (Board) pursuant to
Business
and Professions Code section
125.5
*fn1 forbidding appellants
from engaging in conduct which the court found constituted unlawful practice
of medicine, within the meaning of sections 2052 and 2053 of the Medical
Practice Act. Appellants contend that their practices are exempt from the
regulations of the Medical Practice Act under section 2063 of that act,
citing a decision of another Court of Appeal. (Northrup v. Superior Court
(1987)
192 Cal. App. 3d 276
[
237 Cal. Rptr. 255].
) They also argue that the injunction infringes their rights to free exercise
of religion (U.S. Const., 1st Amend.) and their rights of privacy under
California law; that an injunction was not warranted since the Board did
not demonstrate the possibility of future conduct of the type enjoined but
showed only past incidents; and finally that the court abused |
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[211 CalApp3d Page 1349]
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| [12] | its discretion in awarding costs to the Board (§ 125.5, subd. (c)) because
the proved investigative costs were not entirely related to the petition
before the trial court. None of these contentions have merit and the judgment
will be affirmed, although in reaching this result we must disagree with
the Northrup decision in its construction of section 2063. |
| [13] | The Statute |
| [14] | The exemption statute upon which appellants rely, section 2063, reads
as follows: "Nothing in this chapter [the Medical Practice Act] shall
be construed so as to discriminate against any particular school of medicine
or surgery, school or college of podiatric medicine, or any other treatment,
nor shall it regulate, prohibit, or apply to any kind of treatment by prayer,
nor interfere in any way with the practice of religion." (Italics are
added and indicate the clause of the statute upon which appellants rely.) |
| [15] | Record |
| [16] | Board initiated this proceeding September 12, 1986, by a petition requesting
a temporary restraining order and a permanent injunction pursuant to section
125.5 and sections 2052 and 2053. The petition alleged that appellants (hereafter
collectively RSNH) were engaging in the unlawful practice of medicine without
a license and that their conduct had injured named individuals. |
| [17] | Board's evidence included an advertisement for RSNH from a periodical.
This advertisement did not mention religion. It was entitled "The California
Health Sanctuary" and claimed to offer supervised fasting, natural
diet, rest, and instruction in natural hygiene. |
| [18] | Also offered was a document published by the Religious School of Natural
Hygiene entitled "The Major Tenets - Heed My Words." This document
stated that the Religious School of Natural Hygiene is a healing church
which operates the California Health Sanctuary near Hollister, California,
for those "who seek health restoration, knowledge of health maintenance
and experience in healthful living." This document described the philosophy
of the RSNH. Among other things it stated that prayer, rest and fasting,
along with the laying on of hands are activities which permit God's healing
power to be implemented. It also recommended consumption of raw foods or
foods in their natural state. |
| [19] | A card given to members of the RSNH states that the practices of this
organization preclude use of drugs, medicines, vaccinations, blood transfusions,
X-rays "and all other such practices." The RSNH encourages prayer
and fasting, often for long periods of time, as instruments to promote healing |
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[211 CalApp3d Page 1350]
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| [20] | and eliminate disease. It further recommends organic and uncooked foods. |
| [21] | Board further presented evidence of practices of RSNH which included promulgating
a doctrine that many physical conditions can be cured by undergoing supervised
periods of fasting; persuading certain individuals to participate in such
fasts, under supervision of appellant Andrews, who received compensation;
advising some persons to stop taking medications prescribed by a physician;
and performing diagnostic procedures such as physical examinations with
a stethoscope, taking blood pressures and pulses, feeling parts of the body,
examining the mouth and eyes, and in one case attempting to remove a colonic
blockage by hand. Specifically, Board presented declarations and testimonial
evidence of five individuals who had fasted under Andrews' supervision and
who claimed to have been injured, as well as evidence concerning another
individual who had died immediately after undergoing a lengthy supervised
fast. Each of the surviving witnesses claimed severe and persistent physical
injury as a result of a prolonged fast. Also, each of these witnesses claims
to have consulted Andrews in order to correct a physical ailment, not for
religious or spiritual purposes. |
| [22] | For example, Sproule consulted Andrews for a case of hypoglycemia. She
fasted, under Andrews' supervision, for 55 days. During the fast Andrews
checked her blood pressure, eyes, mouth and other things. After the 30th
day she began to vomit without relief. After the 38th day she lost full
consciousness and became too weak to walk. Her urine became the color of
iodine. Andrews told her the fast would end when the urine became a lighter
color. She relied on Andrews to tell her the proper time to end the fast.
At the end of the fast she was hospitalized and could not read, write, walk
or talk. She is still unable to walk unaided and for the most part is restricted
to a wheel chair. She suffers mental difficulties which she did not have
before the starvation treatment. |
| [23] | Nettle came to Andrews to lose weight. Andrews said he was a healer and
held himself out as having special skill and knowledge to treat obesity
by supervised fasting. She paid him to supervise her fasts, which he did
for payment. She fasted as much as 30 days at a stretch, receiving only
water. During these fasts she had such symptoms as multiple vomiting without
relief, irregular menstruation, bloody urine, and amnesia, and lost the
ability to work and developed great mental confusion. When she was delirious
Andrews said things to her concerning religion. She was at the Health Sanctuary
for 10 months and lost 160 pounds. To the present day she suffers adverse
physical and mental symptoms which her doctors attribute to the starvation. |
| [24] | David and Roberta Pressman, husband and wife, fasted together at the Health
Sanctuary under Andrews' supervision. David Pressman came to |
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[211 CalApp3d Page 1351]
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| [25] | Andrews to correct a variety of physical symptoms including a prolapsed
mitral heart valve, fatty tumors in his limbs, and a toenail fungus. Other
than these problems and being nearsighted he had no diseases or impairments.
When he came to RSNH Andrews took his medical history, listened to his heart,
took his pulse and blood pressure, felt his forehead, and checked him generally.
He was then placed on a water-only diet for 46 days. Andrews supervised
the fast. He took Pressman's pulse and blood pressure daily and felt his
forehead and smelt his breath. He said the breath smelled bad but this was
a good sign and showed bodily toxins were being eliminated. During the fast
Pressman suffered from dry mouth, extreme weakness, nausea, constipation,
insomnia, and freezing at night. At the end of the fast he had severe double
vision and was not strong enough to stand. After he regained strength he
consulted medical specialists and was told he had loss of neurological function
and enervation of the eyes caused by vitamin starvation, specifically thiamine
deprivation. He has persistent double vision still. He paid Andrews $5,400
for supervising the fasts of himself and his wife. |
| [26] | His wife Roberta testified she came to Andrews for symptoms such as acne,
menstrual dysfunction, hemorrhoids, constipation, and allergies. She took
medication for the acne and menstrual pain. Andrews told her to discontinue
the medication and undergo a water-only fast to cure her conditions. He
also told her that almost all human ailments are caused by toxins within
the body and that during a fast with rest, the body does not have to perform
its normal functions and has extra energy to rid itself of these toxins.
He claimed to have extensive training in human anatomy, health, and medicine,
and to have studied fasting on his own and with a Dr. Herbert M. Shelton.
Accordingly, she underwent a fast which lasted 46 days. The adverse symptoms
she suffered are similar to those of her husband including extreme weakness,
nausea, constipation, insomnia, and freezing at night. About the 28th day
she began vomiting and toward the end vomited almost continuously. Andrews
said this was a good sign and showed the body was purifying itself. She
also developed bladder pain and a sensation of tingling over her whole body,
which Andrews also said was a good sign. When Andrews finally broke her
fast she weighed 95 pounds and could not stand. During the weeks after the
fast while she was recuperating at the RSNH, she had great difficulty walking.
Andrews spent time trying to get her to walk up and down a staircase and
yelled at her when she fell. Once he told her if she did not walk he would
give her no dinner, which terrified her since by then "the meals were
all that I lived for." One of the staff smuggled her a plate of vegetables.
When she left the fasting place she was still very weak and unable to walk
on any hard surface, especially cement in the open, for fear of falling.
She has persistent weakness on her left side and constant pain in her thighs,
loss of neurological function |
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[211 CalApp3d Page 1352]
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| [27] | caused by vitamin starvation (according to her doctors), and fear of walking. |
| [28] | Ted Mauk came to the RSNH after having been given a barium enema at Kaiser
Hospital, South San Francisco, and being told he needed surgery. Andrews
said he could help him without surgery and that Mauk did not have cancer
because he had seen cancer patients and they were all skinny; Mauk was not
skinny enough to have cancer. Mauk was placed on a water diet for four weeks.
When he resumed eating his former symptoms of colon problems recurred. Andrews
then took him to an osteopath who gave him a high colonic irrigation, but
the pain persisted. Andrews also tried, unsuccessfully, to remove a blockage
manually by hand from Mauk's colon. Finally Andrews took him to Kaiser Hospital
where he underwent a colostomy. He has since had three operations because
of cancer of the colon. |
| [29] | Evidence was also presented regarding Sara Roundtree, an individual who
died after fasting at RSNH. She fasted several times, each fast lasting
from 10 to 30 days. A doctor reviewed her history and data sheet prepared
by a student at the RSNH which indicated she went to Andrews to lose weight.
She also suffered from depression and had been involved with drug and alcohol
abuse. During her fast under Andrews' supervision she reported such symptoms
as inability to walk, weakness, pain in her joints, swollen extremities,
a feeling of electricity through her body, foul smelling urine, and sleepiness.
The doctor testified these were adverse medical symptoms caused by starvation
and required medical attention. Eventually during a fast she developed severe
diarrhea; Andrews took her to the hospital and she died there five hours
later. The cause of death on the autopsy report was sepsis, probable, due
to "inanition" (starvation). The testifying forensic pathologist
explained the probable cause of death as metabolic acidosis due to starvation
and leading to infection (sepsis) in the body. Both he and another doctor
who testified as an expert witness gave the opinion she died of metabolic
acidosis caused by starvation. |
| [30] | Both doctors who testified as expert witnesses, Dr. Sampson and Dr. Margen,
gave the opinions that prolonged fasting is dangerous to life. In addition
Dr. Sampson testified that Andrews' practices with respect to all the witnesses
who fasted constituted the practice of medicine. |
| [31] | RSNH presented evidence that supervised fasting is integral to its religious
beliefs. It also offered evidence that it is a religious organization exempt
from federal and California income taxes and that a decision of the same
superior court which issued the injunction here determined that RSNH is
using its property for church purposes within a zoning ordinance. |
| [32] | The trial court rendered a statement of decision. First, it found that
certain practices of RSNH constitute the practice of medicine within sections |
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[211 CalApp3d Page 1353]
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| [33] | 2052 and 2053, including diagnostic procedures, physical examinations,
advising on physical conditions, and giving advice and counsel on the taking
of medications and on fasting, as well as representing that a "water-only
fast" can heal or cure illnesses. The court further found that three
specific persons, the Pressmans and Roundtree, suffered harm as a result
of undertaking fasts supervised by RSNH. Further, the court stated that
"the practice of natural hygiene does not require a belief system based
on religion." And further, "the water-only fast of [the Pressmans
and Mauk] was not a religious experience nor a religious practice, but was
solely for therapeutic reasons." The court's judgment then restrained
appellants from engaging in the activities found to constitute the practice
of medicine. The injunction prohibited activities constituting the unlawful
practice of medicine, including but not limited to taking blood pressure
or pulse; listening to the heart, chest or lungs with a stethoscope; conducting
physical examinations; giving advice or comment on the meaning and significance
of physical conditions including but not limited to tongue or breath odor;
giving advice or counsel regarding use of medications; advising when to
begin or end a fast; representing that fasting can cure illnesses, diseases
or physical and mental conditions; supervising water-only fasts; and advertising
the offering of such supervised fasts. |
| [34] | The court also awarded costs to the Board, including costs incurred for
investigations dating back to 1983. |
| [35] | Discussion |
| [36] | The issue here is not whether RSNH engaged in activities which constitute
the practice of medicine. (See fn. 2.) Ample evidence in the record supports
the trial court's findings that they did do so, and they do not challenge
those findings.*fn2 |
| [37] | Nor is there a serious argument made that the injunction infringes appellants'
constitutional rights to free exercise of religion under the First Amendment.
Cases are legion which hold that freedom of religious belief may be absolute
but freedom of action is not (Cantwell v. Connecticut (1940) 310 U.S. 296,
304 [84 L.Ed.1213, 1218, 60 S.Ct. 900, 128 A.L.R. 1352]). The state may
legitimately regulate dangerous conduct regardless of religious content.
It is therefore universally held that in the interests of protecting its
citizens' health, the state may regulate health treatments which are potentially
dangerous to the patient. (Note, Restrictions on Unorthodox |
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[211 CalApp3d Page 1354]
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| [38] | Health Treatment in California (1977) 24 UCLA L.Rev. 647, 664; People
v. Nunn (1956)
46 Cal. 2d 460
, 469 [
296 P.2d 813]
; Hewitt v. Board of Medical Examiners (1906)
148 Cal. 590
, 592 [
84 P. 39]
; Blinder v. Division of Narcotic Enforcement (1972)
25 Cal. App. 3d 174
, 179-182 [
101 Cal. Rptr. 635].
See also Walker v. Superior Court (1988)
47 Cal. 3d 112
[
253 Cal. Rptr. 1
,
763 P.2d 852]
[parent may be prosecuted for involuntary manslaughter and felony child
endangerment when her criminal negligence proximately caused her child's
death from meningitis after receiving treatment by prayer in lieu of medical
attention]; Jacobson v. Massachusetts (1905) 197 U.S. 11, 39 [49 L.Ed. 643,
655, 25 S.Ct. 358] [compelled vaccination of children despite religious
objection]; United States v. Lee (1982) 455 U.S. 252, 261 [71 L.Ed.2d 127,
134-135, 102 S.Ct. 1051] [compelled participation in social security system
despite Amish belief]; Gillette v. United States (1971) 401 U.S. 437, 462
[28 L.Ed.2d 168, 188, 91 S.Ct. 828] [compelling certain conscientious objectors
to submit to conscription in a war perceived as unjust]; and Reynolds v.
United States (1878) 98 U.S. 145, 164 [25 L.Ed. 244, 249-250] [polygamy
may be outlawed although it is a basic tenet of the Mormon faith].) |
| [39] | The United States Supreme Court states the test of secular laws which
impinge on religious belief as follows: "[I]f the State regulates conduct
by enacting a general law within its power, the purpose and effect of which
is to advance the State's secular goals, the statute is valid despite its
indirect burden on religious observance unless the State may accomplish
its purpose by means which do not impose such a burden." (Braunfeld
v. Brown (1961) 366 U.S. 599, 607 [6 L.Ed.2d 563, 568, 81 S.Ct. 1144].)
Applying this test to the unauthorized practice of medicine, we conclude
in agreement with all the authorities cited above that the state may proscribe
that dangerous conduct despite its asserted centrality to a religious creed.
It cannot seriously be argued that the State of California lacks the power
to regulate the practice of medicine in the interest of public safety. (See
also Savelli v. Board of Medical Examiners (1964)
229 Cal. App. 2d 124
[
40 Cal. Rptr. 171]
; Shea v. Board of Medical Examiners (1978)
81 Cal. App. 3d 564
[
146 Cal. Rptr. 653].
) In other states, many decisions have so held. (E.g. Fealy v. City of Birmingham
(1916) 15 Ala.App. 367 [73 So. 296]; Smith v. People (1911) 51 Colo. 270
[117 P. 612]; State v. Verbon (1932) 167 Wash. 140 [8 P.2d 1083]; State
v. Harrison (1951) 260 Wis. 89 [50 N.W.2d 38].) |
| [40] | Accordingly we find no constitutional issue of free exercise of religion
in this case. The issue is rather the scope of the exemption provided by
section 2063. Assuming, arguendo, that the fasting practices of RSNH constitute
the practice of religion, are these practices ipso facto exempt under the
statute which prevents regulation which would "interfere in any way
with the practice of religion?" |
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[211 CalApp3d Page 1355]
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| [41] | One case to date has construed the scope of this exemption and has held,
in a prosecution for practicing midwifery without a certificate, that where
such practice was pursuant to a bona fide tenet of a religious faith, the
exemption applied. (Northrup v. Superior Court, supra,
192 Cal. App. 3d 276.
) Northrup 's reasoning was that a literal reading of the statute required
this result. (Id. at p. 283.) The court said "From the face of the
statute, it is clear the Legislature determined that in the licensing context,
the state's interests are subservient to its citizens' religious beliefs."
(Ibid.) No other argument, no citation to legislative history or other authority,
was presented to justify the proposition that the legislature intended by
this exemption statute to provide a greater degree of freedom for the exercise
of religious beliefs than is afforded by the Constitution itself. This result
was reached in the face of the demonstrated dangerousness of the practices
which the State sought to regulate; the record in Northrup showed that two
of the three deliveries involved had resulted in stillbirths. |
| [42] | With due respect, we believe it is far from clear that the Legislature
intended by this exemption statute to offer special protection to dangerous
medical practices. First, there is no evidence that this statute was meant
to confer protection for religious practices beyond that already conferred
by the free exercise clause of the United States Constitution. The absence
of any such evidence is itself persuasive of the contrary conclusion. This
is so because to confer such extraordinary protection by means of the unusual
route of an exemption from a licensing scheme would be a remarkable exercise
of legislative power. Statutes conferring exemptions from regulatory schemes
are narrowly construed. (S. E. C. v. Ralston Purina Co. (1953) 346 U.S.
119, 126 [97 L.Ed. 1494, 1499, 73 S.Ct. 981]; Securities and Exchange Com'n
v. Sunbeam Gold M. Co. (9th Cir. 1938) 95 F.2d 699; Pollok v. Commonwealth
(1976) 217 Va. 411 [229 S.E.2d 858, 860]; Alpha Therapeutic Corp. v. County
of Los Angeles (1986)
179 Cal. App. 3d 265
, 270 [
224 Cal. Rptr. 498]
[exemptions from taxation].) They are not normally sources of extraordinary
constitutional guaranties. |
| [43] | Indeed, to construe the statute as providing such an exemption, in violation
of public policy solely to further religious interests, might well amount
to conferring a direct governmental benefit on religion in violation of
the establishment clause of the First Amendment which proscribes governmental
sponsorship or subsidy of religious practices. (See Corporation of Presiding
Bishop v. Amos (1987) 483 U.S. 327, 329-330 [97 L.Ed.2d 273, 279, 107 S.Ct.
2862]; Walz v. Tax Commission (1970) 397 U.S. 664 [25 L.Ed.2d 697, 90 S.Ct.
1409]; Lemon v. Kurtzman (1971) 403 U.S. 602, 612 [29 L.Ed.2d 745, 755,
91 S.Ct. 2105].) |
| [44] | Protection of religious belief against secular interference has been peculiarly
the province of Constitutions in our political history; this protection
is |
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[211 CalApp3d Page 1356]
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| [45] | rooted in the 18th century philosophy of separation of church and state,
which the establishment and free exercise clauses of the First Amendment
reflect. (See e.g. Mansfield, The Religion Clauses of the First Amendment
and the Philosophy of the Constitution (1984) 72 Cal.L.Rev. 847, 848-849,
856-858, 903.) In regulating the balance between government and religion,
"what finally is at stake is the substantive content of the constitutional
ideology. To it ultimately all questions must be referred." (Mansfield,
supra, at p. 903.) Interpretation of the constitutional guaranty is fundamentally
the responsibility of the judiciary, particularly of the United States Supreme
Court. (See e.g. Sheffer, The U.S. Supreme Court and the Free Exercise Clause
(1981) 23 J. Church & State 533, 535: "Any legal definition of
free exercise, if one is even possible, will come from the Supreme Court.")
One does not expect to find in a general statute, much less in a narrow
exemption from medical licensing provisions, a different, independent guarantee
of religious freedom, over and above that already inherent in the structure
of our government, set out in the Bill of Rights, and interpreted and applied
by the judiciary. Had the Legislature intended to confer such unusual protection
in so peculiar a fashion as by the route of an exemption statute in the
Medical Practice Act, surely it would have left some trace of that intention.
The most reasonable deduction from the absence of any such trace is that
the exemption statute is no more than a reflection and acknowledgement of
constitutional doctrine. |
| [46] | The California Constitution does not confer greater protection upon religious
practices than does the federal Constitution and in fact provides less protection:
"Free exercise and enjoyment of religion without discrimination or
preference are guaranteed. This liberty of conscience does not excuse acts
that are licentious or inconsistent with the peace or safety of the State.
. . ." (Cal. Const., art. I, § 4, italics added.) Arguably an exemption
from the licensing law for dangerous religious practices violates this constitutional
provision, since such activities are inconsistent with the safety of the
state in presenting a threat to the health of its inhabitants. |
| [47] | A commentator on the exemption in question notes that the California Constitution
defines freedom of religion more narrowly than does the First Amendment
and further states that the exemption statute applies only to "faith
healers" who use prayer or other nonmedical procedures. (See Note,
Religious Beliefs and the Criminal Justice System (1975) 8 Loyola L.Rev.
396, 401-402, 416.) The author also observes that persons who hold themselves
out as having special scientific knowledge, outside the realm of ordinary
experience, must be subject to regulation for protection of the public,
and may not seek the immunity afforded to faith healers who rely only on
the power of God for a cure and not on particular physical practices. (Note,
8 Loyola L.Rev., supra, at p. 418.) Therefore the author believes that the
exemption applies only to a genuine faith healer: "The faith healer,
so long |
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[211 CalApp3d Page 1357]
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| [48] | as he confines his activities strictly to prayer, is not regulated. The
'faith' is, and should be, unrestricted. The 'healing,' however, may be
regulated as soon as it takes on any appearance of medical practice."
(Id. at p. 430; accord, Note, 24 UCLA L.Rev., supra, at pp. 647, 695: "The
licensing laws prevent the unlicensed from administering any form of treatment.") |
| [49] | We agree. Here what is involved is not faith healing but the practice
of medicine, and therefore the exemption does not apply. The record here
is replete with examples of appellants' conduct in purporting to have special
knowledge of the body's physical symptoms and needs and further undertaking
to diagnose ailments and to prescribe treatment for those ills. The conduct
and the treatment goes far beyond prayer and reliance on divine intervention. |
| [50] | We do not agree with the Northrup court that the phrase "interfere
in any way with the practice of religion" has any greater or different
meaning than the free exercise clause of the First Amendment as it has been
interpreted by the judiciary. That protection clearly does not extend to
dangerous religious practices including unauthorized practice of medicine.
Appellants can find no case other than Northrup which holds that there is
an exemption for dangerous practices based on religious belief.*fn3 |
| [51] | The People argue that we need not disagree with Northrup to decide this
case because a point of distinction from Northrup is the presence in this
case of evidence that the medical practices employed were not bona fide
expressions of religion, whereas in Northrup the court noted there was no
evidence that the church there was not genuine nor that midwifery of the
sort there practiced was not genuinely integral to the belief. The Northrup
court pointed out that if a religious practice contention were false and
asserted solely to avoid the licensing requirements the exemption would
not apply. (See also People v. Cosper (1926) 76 Cal. App. 597, 600 [245
P. 466] [no exemption for prayer healing where the record showed that prayer
was a mere subterfuge to escape regulation].) We agree that the exemption
does not apply to religious practices that are not bona fide. Also it is
true that here, unlike Northrup, there is evidence that the victims did
not come to appellants for religious purposes but to have their physical
ailments treated. Thus this record would support a finding that the medical
practices were not promulgated for true religious purposes. |
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[211 CalApp3d Page 1358]
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| [52] | Unfortunately, we have no such unambiguous finding. The trial court did
not plainly say that the medical practices here are not bona fide religious
practices. There is the rather cryptic finding that "the practice of
natural hygiene does not require a belief system based on religion."
That finding is followed by the finding that the fasts of three victims
were not religious experiences nor religious practices but were solely for
therapeutic reasons. That finding comes close to saying that appellants
engaged in these practices not for basic religious purposes but to avoid
the licensing restrictions, but it does not precisely say so. We hesitate
to premise our judgment solely on the proposition that the practices of
appellants here were not bona fide expressions of religion absent an unambiguous
finding to that effect by the trial court. |
| [53] | It is our conclusion that upon the facts presented by this record, the
court had the power to enjoin appellants from engaging in the unauthorized
practice of medicine, as it did. There is no question that the described
activities constitute the practice of medicine; that the Board has a substantial
interest in preventing such activities, which are demonstrably harmful on
this record; that there is no constitutional protection for such activities;
and that there is no exemption for such activity, either because the exemption
does not purport to go beyond the constitutional protection for freedom
of religion, or alternatively because the record does not show that these
practices are basic or central to a religion. In reaching this decision
we do not deem it necessary to question the bona fides of appellant Andrews'
religious faith; that fact is not relevant. Similarly irrelevant is the
existence of tax exemptions for the RSNH. Whether RSNH is exempt from taxation
is not the issue; the only issue is whether it is exempt from the medical
licensing law. We hold that it is not. The Board may obtain an injunction
preventing appellants from practicing medicine without a license. |
| [54] | Appellants' remaining arguments do not merit extended discussion. Their
argument that the record does not support the finding of a compelling state
interest justifying this injunction is unsupported by relevant authority
and is remarkable in its statement that the trial court "merely suggested
that two witnesses suffered harm." In light of the fact, on the record,
that one of the victims died, we think the evidence sufficient in this regard. |
| [55] | The claim that the injunction is overbroad is unaccompanied by a showing
of a narrower order that would serve the purpose of preventing unauthorized
practice of medicine. That conduct, and no other, is what the judgment enjoins.
Appellants say that the court might have required RSNH to limit its membership
to consenting adults and require them to sign a disclosure form. The law
does not exempt from the licensing requirements medical practitioners who
obtain consent forms. There is no license to practice medicine in an unapproved
fashion, although individuals may |
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[211 CalApp3d Page 1359]
|
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| [56] | indeed refuse treatment, as appellants argue. (Citing Bouvia v. Superior
Court (1986)
179 Cal. App. 3d 1127
[
225 Cal. Rptr. 297].
) The court's judgment does not infringe on the right of an adult to self-determination
in choice of medical treatment. It restrains unauthorized practice of medicine,
a wholly different proposition. |
| [57] | Nor does any authority give a right of privacy to activities such as those
engaged in on this record. The right of an individual to privacy does not
encompass any right to diagnose or treat other individuals. |
| [58] | The contention that the injunction cannot be based on past conduct is
frivolous. If not on such evidence, on what could it be based? |
| [59] | Finally there is no showing of abuse of discretion in awarding costs as
authorized by statute. There is no necessary reason why an investigation
begun in 1983 would not be germane to a petition for an injunction filed
in 1986. No evidence in this record other than self-serving assertions by
appellants shows that the investigative costs of Board were not legitimately
incurred. |
| [60] | We conclude that the judgment granting an injunction is proper and it
is affirmed. |
| [61] | Disposition |
| [62] | We conclude that the judgment granting an injunction is proper and it
is affirmed. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [63] | *fn1 All further statutory
references are to the
Business
and Professions Code unless otherwise stated. |
| [64] | *fn2 The concept of
practicing medicine under the California licensing laws is very broad, and
any activity customarily performed by a licensed practitioner, such as diagnosis,
treatment, or prescribing medications qualifies. (See e.g. Note, Restrictions
on Unorthodox Health Treatment in California (1977) 24 UCLA L.Rev. 647,
650-651; e.g., People v. Saunders (1923) 61 Cal. App. 341, 344 [215 P. 120].) |
| [65] | *fn3 The closest they
come to a citation for the proposition that dangerous religious practices
may not be regulated is People v. Woody (1964)
61 Cal. 2d 716
[
40 Cal. Rptr. 69
,
394 P.2d 813]
, finding use of peyote by the Native American Church a protected activity
despite its illegality. The court there balanced the danger of the use of
the drug against the central importance of its use to the religion involved.
The case is not comparable to our case since the showing of dangerousness
was pretty much limited to demonstrating that use of the substance was illegal. |
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