Florida House Bill 4039 Will Outlaw Hypnosis

On Thursday, January 13, 2011 while I was celebrating my 40th birthday, a young whelp out of Miami (Jose-Felix Diaz) filed a bill in the Florida State House of Representatives to outlaw my favorite activity: hypnosis.

The Current State of Affairs
The way the law is in Florida at this time regarding hypnosis is set by Chapter 485 and a couple of references to Chapter 485 in 490.0141 and 491.0141. Chapter 485 specifically regulates:

the practice of hypnosis for therapeutic purposes by providing that such hypnotic techniques shall be used only by certain practitioners of the healing arts within the limits and framework of their own particular field of competence; or by qualified persons to whom a patient may be referred, in which event the referring practitioner of the healing arts shall be responsible, severally or jointly, for any injury or damages resulting to the patient because of either his or her own incompetence, or the incompetence of the person to whom the patient was referred.

So for example, if someone has schizophrenia, a hypnotist may not diagnose or treat the schizophrenia unless they are a properly licensed psychologist or under the supervision of a properly licensed psychologist. Makes perfect sense, the law should indeed punish those who practice medicine without a license!

The provisions in 490.0141 (Psychological Services) and 491.0141 (Clinical, Counseling, and Psychotherapy Services) go further in stating:

The provisions of this chapter may not be interpreted to limit or affect the right of any person qualified pursuant to chapter 485 to practice hypnosis pursuant to that chapter or to practice hypnosis for nontherapeutic purposes, so long as such person does not hold herself or himself out to the public as possessing a license issued pursuant to this chapter or use a title protected by this chapter.

This key is this: The law specifically says that the practice of non-therapeutic hypnosis is not regulated by the state. Stage hypnosis is not regulated, nor is self-hypnosis or hypnosis for weight loss or test-taking skills or improving memory or even teaching hypnosis. This was again reinforced in 2002 when the National Federation of Hypnotists (OPEIU Local 104) solicited an opinion from the Florida State Attorney General that:

It is lawful for unlicensed persons in Florida to engage in nontherapeutic hypnosis provided they do not hold themselves out as licensed practitioners.

What HB 4039 Changes

As currently written, the bill completely removes Chapter 485. Both 490.0141 and 491.0141 are changed to remove the reference to Chapter 485 which leaves them saying only:

49[0/1].0141 Practice of hypnosis.—[A licensed psychologist/A person licensed under this chapter] who is qualified as determined by the board may practice hypnosis

The bill makes no additions to the law, only deletions. The legal ramifications are significant.

What The Changes Mean

Deleting Chapter 485 has two particular effects.

The first effect is that the law no longer says the use of therapeutic hypnosis techniques may only be practiced by licensed health professionals or supervised by such, however the laws regulating medicine (and psychology, psychiatry, dentistry, and so on) still require a practitioner to be licensed in order to diagnose or treat. The practical effect is that practicing therapeutic hypnosis techniques can only be done by a licensed practitioner, supervision is no longer sufficient.

The second and more interesting effect is that the definition of hypnosis is repealed. Why does this matter? As it turns out there is no consensus on the definition of hypnosis, even among hypnotists. What will the police use as a definition? The medical board? The judge? As an example, say the definition used by the National Guild of Hypnotists is used: Hypnosis is "an altered state of mind." (I would post an example from my training materials, but that would be a copyright violation.) An altered state of mind could include meditation, speaking in tongues, or even the afterglow of an intense sexual experience. It can get even more confusing if (and almost certainly will) different courts use different definitions!

Deleting the reference to Chapter 485 from the Psychology and Counselors laws causes the most devastating effects. Both stem from the fact that the text removed from the law says that these sections "may not be interpreted to limit the right of any person ... to practice hypnosis". By repealing this text, the law can now interpreted by the courts as to therefore allow these sections to indeed limit the practice of hypnosis.

The new version of both of these sections say that licensed psychologists and counselors may use hypnosis. Not a big deal there it seems, but because these sections could now be interpreted to limit the practice of hypnosis, the practice would now be limited solely to psychologists, counselors, and psychotherapists. Dentists may no longer use hypnosis, nor may medical doctors, psychiatrists, or even anesthesiologists. No more hypnosis for childbirth even though it has been sanctioned by the Catholic Church for nearly 60 years -- unless your psych is in the delivery room doing it.

Even worse, the deletion from these sections also removes the provision concerning the practice of non-therapeutic hypnosis. Therefore non-therapeutic hypnosis is also restricted only to psychologists, counselors, and psychotherapists. No more stage shows, no more weight loss groups, no more test-taking techniques, no more past-lives groups, no more experimenting or playing. Depending on the definition of hypnosis, there might not even be any more yoga classes, meditation rooms, or prayer groups!

Is It Really This Bad?

In all probability the actual implementation might be mild, but the possibility is there. The Bureau of Unlicensed Activities tried to stop all non-therapeutic hypnosis 9 years ago, so there clearly have been and maybe still are people in Florida State government who would indeed like to see this worst-case scenario come to pass. Our best protection is the way the law is now: Licensed professionals can use hypnosis within the authority of their license, and anyone else using hypnosis for a medical condition is punished for practicing medicine without a license. Meanwhile, the rest of us can use hypnosis in whatever cool, fun, and productive way we desire.

How Likely Is This Bill To Pass

Low -- for now. There is no history of such a bill being filed before, and first-time filings rarely go far. So far, there is no companion bill in the Florida Senate which also would be necessary for the bill to become law. Rep. Diaz is a freshman, elected to the state House of Representatives for the first time just this past November, so he has no seniority. All these indicate the bill could easily die in committee.

Don't relax too much, though. Diaz sits on the Health & Human Services Quality Subcommittee which is where the bill has been submitted, so Diaz is in position to shepherd this along. If there is a subsequent campaign to argue that poorly trained hypnotists are harming people, then the subcommittee could be sympathetic -- even though the law as it is now already provides protection.

There is absolutely a real danger here, and it must be met -- and met NOW. The bill could, and maybe likely will, fail, but it will be back unless the backlash is so strong as to make the bill itself a political liability.

What Can Be Done?

Contact Representative Diaz. Contact your local Florida State Representative. Contact the members of the Florida House Health & Human Services Quality Subcommittee.

A phone call is good. A mailed letter is better -- particularly a handwritten letter. A form letter or email does not usually get much notice. A personal visit to the Representative's office is excellent, and of course donating to his or her campaign fund always gets attention.

Please do it now.

UPDATE - February 2, 2011

Rep. Diaz's office received many contacts over the past five days. Many of those who contacted him received the following message today in email:

From: Diaz, Jose [mailto:Jose.Diaz@myfloridahouse.gov]
Sent: Tuesday, February 01, 2011 11:25 PM
Subject: Florida House Bill 4039

February 1, 2011

To whom it may concern:

First of all, I want to thank you for contacting me regarding HB 4039. If you are receiving this email, it is because you have recently contacted me to express your concerns about my proposed legislation.

I have received dozens of emails from concerned citizens who would like to know what my intentions were with HB 4039. As I have mentioned to several of you over the telephone, this year, the Florida House was tasked with cleaning up our statutes to make sure that there were no duplicative, superfluous, or excessive regulations. I proposed HB 4039 to help de-regulate what I felt was an over-complicated and excessive regulation, which currently criminalizes the practice of hypnosis without a medical degree (or under the supervision of same).

My proposed legislation originally intended to only get rid of Chapter 485, but the deletion of that chapter also affected Fla. Stat. 491, which has had the possible unintended consequence of further limiting the practice of hypnosis. That was never my intent.

Though there are several other references to hypnosis in Florida Statute and in the Florida Administrative Code, I would like to point out that Chapter 485, which was the main subject of my proposal, severely limits hypnosis and makes the practice of same illegal for almost anyone who is not a licensed medical doctor, psychiatrist, dentist, chiropractor, etc. The only exception is that someone can practice hypnosis under the supervision and legal responsibility of those certain medical practitioners. See Fla. Stat. 485.003(3) for complete list.

My understanding is that the fear of malpractice, civil liability, and revocation of licenses make it a rare occurrence for many of these medical practitioners to refer such work out to lay hypnotists and/or hypnotists with national certifications. In fact, there appears to be no licensing in Florida for lay hypnotists.

In these rough economic times, I know how important it is to preserve Florida's work force. As I mentioned before, my intent was never to threaten anyone's career or profession. It is for all these reasons that I am going to withdraw HB 4039. I certainly do not wish to cause any further strife or confusion. I applaud you for your diligent grassroots efforts and wish you luck in all your future endeavors.

Kind regards,
Jose Felix Diaz
State Representative, District 115

UPDATE - February 3, 2011

Rep. Diaz withdrew HB 4039!

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