Healthcare Tyranny Reversed In Washington Supreme Court

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Healthcare Tyranny Reversed In Washington Supreme Court

Postby utopiasi » Sat Jan 12, 2008 10:19 am

by Ben Taylor

The Washington State Supreme Court struck a blow for healthcare freedom in ruling that “due process of law” was not adequately served in court cases using a “preponderance of the evidence” standard. Across the country, drug companies through their “behind the scenes” influence with the United States Food and Drug Administration and State Health Departments have used administrative court hearings and trials to tyrannize the rights of “alternative” healthcare users, practioners, manufacturers and marketers.

We all understand that no one has the right to yell “fire” in a crowded theatre and anyone who does so and causes injury to another should be appropriately punished commensurate with the damage caused. By this standard, if anyone causes the injury of another through intentional and fraudulent acts or sale of products or by their use of knowingly false information, then appropriate punishment should be meted out by constitutional “due process of law”, but the standard of justice should not be determined by the whims and personal opinions of faceless and unaccountable bureaucrats within an administrative agency.

Such an arbitrary bureaucratic standard can result in administrative rulings that essentially make it a word “crime” to use the phrase, “Colloidal silver boosts the immune system”, but approves the use of the phrase “Colloidal silver supports the immune system”. This exact scenario has occurred in Utopia Silver Supplement’s dealings with the Texas Department of Health. Using such a standard is like trying to construct a building out of jell-o. It just ain’t possible! Another bureaucrat at some later date might have the opinion that word crimes are committed using either “boosts” or “supports”, but it would be legal to use the phrase “Colloidal silver aids the immune system”.

Such arbitrary opinions and administrative tyranny can only be stopped by requiring that “governmental agencies” act under the substantive law and due process of law set forth in Organic Law, being in part the Constitutions of the various States and The Constitution of the United States of America which is the Supreme Law of the Land. Under the tyranny of an “administrative process”, no one has any God-given and unalienable Rights whatsoever, whether it be “Freedom of Speech”, “Freedom of Religion”, or “Freedom of you name it”, but within the framework of Organic Law, nameless and faceless “government officials” are constrained from overstepping their “Constitutional” authority. The ultimate axiom of our Constitutional Republic(s) is that the God-given Rights of the people are without limitation unless their exercise of these Rights directly damages and/or infringes upon the God-given Rights of another Citizen. The prime directive of our Constitution(s) is that it is “Government” that is shackled and chained, not the Rights of the People. The Constitutions of our Republic(s) are intended to bind and confine “government” and to deny the exercises of “government” from tyrannizing the Rights of the People.

This ruling by The Supreme Court of Washington aids in setting the stage for the breaking of “administrative tyranny” across the U.S.A. and the holding of “governmental” officials accountable and liable for their Constitutional violations and their infringement against the Rights of the People. The ironic thing is and what these administrative bureaucrats would do well to learn as soon as possible (ASAP), is that these shackles that confine “government” and “governmental agencies” also protect them too, …as long as they are using these Constitutions for guidance and direction in their administration of the daily affairs of government. In doing so, they will limit their exposure and liability to being held accountable for abuses that are rampant within most administrative processes, be they within agencies or in court hearings and quasi-judicial settings.

We encourage that everyone write, email, and call their State and National Congress people and demand that our legislators use their power of oversight to rein in the “administration of tyranny” that has become common place within all “government” agencies. Such a groundswell would also motivate the Courts often acting under “color of law”(The appearance or semblance of Law, but without the substance of Law.), to remember that infringement on the God-given Rights of the People will not be tolerated.


Below are comments by healthcare advocate Tim Bolen:

The Washington High Court said, in its opening remarks:

By a mere preponderance of the evidence in an administrative hearing, Alice Ongom’s nursing assistant’s registration was suspended for alleged abuse of a patient. Ongom appealed to the Superior Court which affirmed, as did the Court of Appeals. Ongom v. Dep’t of Health, 124 Wn. App. 935, 104 P.3d 29 (2005). We granted review and reverse, holding due process requires clear, cogent, and convincing proof.

That statement by the High Court is an immense victory for those of us trying to protect cutting-edge practitioners from attack by the drug-pusher's assault squads. Since the advent of the "Plan of '96" the tactic used against practitioners using methods others than "drugs, drugs, and more drugs," was simply to drag healers into an State Administrative Hearing and bring in any buffoon they could find to testify, blathering on, endlessly, usually saying something like; "dat ain't wad dems call no standard of care. We-uns don't not use dat voodoo quack stuff..." And, that seemed to be enough. A lot of professionals lost their ability to practice with that tactic used against them.

But that's all changed now - and this decision will make a big difference. Why? Here's what else the Supreme Court said:

After concluding a preponderance of the evidence supported the charge of unprofessional conduct and further concluding the violation was “moderate in nature,” CP at 111, the presiding officer suspended Ms. Ongom’s license for 24 months. The presiding officer also ordered her to complete the Healthcare Integrity and Protection Data Bank Reporting Form (section 1128E of the Social Security Act, 42 U.S.C. § 1320a-7e), id., and promptly return the form to the Nursing Assistant Program, thereby establishing a permanent public record of the disciplinary measure.

The nursing home fired Ongom immediately after the incident in question. Of course, with this action, Ongom's career was ruined and she was unable to get employment. Of this, the High court said:

ANALYSIS - We review this administrative decision pursuant to the Administrative Procedure Act, chapter 34.05 RCW, and apply the “error of law” standard of RCW 34.05.570(3)(d) to the agency’s legal conclusions. Haley v. Med. Disciplinary Bd.,117 Wn.2d 720, 728, 818 P.2d 1062 (1991). We must determine whether proof by a preponderance of the evidence in a professional license disciplinary proceeding satisfies due process. For the reasons expressed in Bang Nguyen v. Department of Health, 144 Wn.2d 516, 29 P.3d 689 (2001),3 we conclude that due process requires clear and convincing proof. Accord Miss. State Bd. of Nursing v. Wilson, 624 So. 2d 485, 493 (Miss. 1993) (“The standard of proof required for a decision of the Board of Nursing in cases involving fraud or conduct deemed quasi-criminal in nature is clear and convincing evidence.”); Hogan v. Miss. Bd. of Nursing, 457 So. 2d 931, 934 (Miss 1984). Accordingly, we reverse and dismiss.

As stated, the identical issue was resolved in our recent Nguyen decision. Dr. Nguyen was disciplined under the same statute (RCW 18.130.180) as was Ms. Ongom. As is always the case, there are certain factual and technical differences between the proceedings; however, we conclude the differences do not constitute a distinction justifying disparate treatment for Ms. Ongom under the generalized considerations set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct.893, 47 L. Ed. 2d 18 (1976).5

More, the Court clearly pointed out what was wrong with the Administrative Court using the "preponderance of evidence" standard rather than the "clear and convincing evidence" standard saying:

We noted in Nguyen that “[a] professional disciplinary proceeding subjects a medical doctor to grave concerns which include the potential loss of patients, diminished reputation, and professional dishonor.” Nguyen, 144 Wn.2d at 521. Although undoubtedly a medical license is much more difficult to obtain than a registration to practice as a nursing assistant, each constitutes a lawful entitlement to practice one’s chosen profession. We cannot say Ms. Ongom’s interest in earning a living as a nursing assistant is any less valuable to her than Dr. Nguyen’s interest in pursuing his career as a medical doctor. See Nims v. Bd. of Prof’l Eng’rs & Land Surveyors, 113 Wn. App. 499, 505, 53 P.3d 52 (2002) (“[T]he time and money spent on training has so little bearing on disciplinary proceedings that it cannot, by itself, justify a higher or lower burden of persuasion.”). We reject the Court of Appeals conclusion that “the property interest" in a nursing assistant’s license, while not insignificant, is considerably more limited than the property interest in a license to practice medicine.” Ongom, 124 Wn. App.at 944. The licenses may be different, but nurses and medical doctors have an identical property interest in licenses that authorize them to practice their respective professions.

We also recognized Dr. Nguyen has a liberty interest in his license to preserve his professional reputation. Nguyen, 144 Wn.2d at 527. So too does Ms.Ongom. True, Ms. Ongom’s employment is probably much less financially rewarding than that of a medical doctor, but it is nevertheless all she has, and she is at least equally dependent upon her professional reputation for employment. Here a notice of her discipline for allegedly abusing a patient was posted in a national register by order of the hearing examiner, accessible by all the public as well as future prospective employers. There is no reason to believe that the damage to her professional reputation in the context of her life to be any less damaging than Dr. Nguyen’s. We therefore disagree with the comment of the Court of Appeals that “[a] nursing assistant who loses her license may suffer some slight damage to her reputation, but any such damage does not approach the significant stigma attached to loss of the right to practice medicine.” Ongom, 124 Wn. App. at 944. To the contrary, loss of reputation to one marginally qualified for a modest occupation is potentially more damaging than the loss of reputation for a highly qualified medical specialist, such as Dr. Nguyen, who may have many more alternate career opportunities. In either case, professional discipline is stigmatizing. It is more than mere money and is thus entitled to a higher standard of proof.6 Nguyen, 144 Wn.2d at 524-25; Addington v. Texas, 441 U.S. 418, 424, 99 S. Ct.1804, 60 L. Ed. 2d 323 (1979).

In essence, this decision smashes the tactics laid out in the slimy "Plan of '96" and changes everything in Administrative hearings nationwide. No more can any State bring in the local buffoon who studied "quackwatch.com" the night before to learn how, and what to testify on. Now, the State must apply the "clear and convincing evidence" standard, which means they can't just show there is a difference of opinion, and pile up some paperwork.

In Washington State this decision will have immediate effect, for there, health activists have been petitioning the Governor, and the State Auditor, to investigate the relationship (Performance Audit) between the State Health Department employees and the "quackbusters." In Washington State, currently, there are about ten separate actions filed against cutting-edge practitioners on the say-so of local "quackbusters." or their hangers-on.

Washington's Health Department is already under scrutiny for their blatant "protection" of professional sex-offenders. You can read about this by going to the article "Sexual Predators Protected by Washington of Health." I'm not surprised at all that the Washington health bureaucracy is involved in this.

More, in Washington State, health activists, clearly operating to protect their right to cutting-edge health care, are pointing out to their legislators that:

State Agencies are not operating according to law or according to legislative intent.

The Department of Health and the Attorney General's Office are prosecuting unregulated healthcare practitioners as practicing medicine without a license; and, they are prosecuting licensed healthcare practitioners for practicing outside of the traditional boundaries of western (allopathic) medicine.

Unlicensed healthcare practitioners. In their prosecution of unlicensed practitioners, the Department of Health and the Attorney General's Office are ignoring RCW 18.120. By doing this, these agencies knowingly and without authority take property rights (the right to practice a profession; and sometimes even personal property such as herbs, homeopathics, diagnostic equipment and other tools of the trade) and they deprive patients of their fundamental constitutional right to choose their own healthcare options.

Agencies do not have the authority to act in contravention of a state statute when administering its provisions. If the legislative intent is clear and "plain on its face," the agencies must administer the law according to the legislative intent. The agencies cannot adopt administrative rules or administrative practices that conflict with the statutes.

You can read the whole story in Washington State by going to the excellent website called "Does the State Own Your body?"

Be advised that the last words of the High court were:

CONCLUSION - In sum, this case is on all fours with Nguyen: The minimum constitutional standard of proof in a professional disciplinary hearing is clear and convincing evidence. WAC 246-10-606 is invalid because it requires only a preponderance. Accordingly we reverse the Court of Appeals, dismiss the statement of charges, and direct that Ms. Ongom recover her statutory costs at trial and on appeal.
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