Short answer, not inherently, and you can try to get the same protection without limiting 1) the right to choose a non-licensed but legal practitioner and 2) without limiting the practitioners’ right to practice his/her trade/skill.
Does licensing protect us from incompetence? Does it assure us of minimum competence?
Since there is a big campaign going on to get legalized mandated licensing for all 50 States, one of the campaign tactics is to highlight stories such as “an unlicensed midwife did THIS” or “an unlicensed midwife did THAT.” As if licensed midwives don’t do such questionable, even dangerous things.
It’s just that, during the campaign for mandatory licensure, we want the public to believe that it doesn’t happen, so we keep those stories quiet. And we also don’t tell the stories of things licensed midwives do because they are licensed and want/need to keep their clients within their practice bounds, for example (like pushing for inductions . . . strangely just like doctors!).
Licensing is not the optimal system for protecting consumers. In fact, it ends up working against consumers. Because the licensing organization is now heavily invested in maintaining the profession, regardless of compromises and the costs to consumers, and those licensed face frequent choices about, for example, dealing with a variation of normal in a client and the mandated protocols they must practice under.
(Well, when a profession starts on the road to licensure, sure they believe they will not compromise. But the more heavily invested (time, money, reputation) they become in licensure itself, the more compromises shrink in size in comparison.)
Solares says that a system should establish “freedom of choice in health care as a constitutional right, and implements it through a regulatory system that is educational rather than restrictive” (p. 401, emphasis mine)
So, yes, there should be a system, but not patterned after the medical model’s.
Also, mandatory licensing, in practice, doesn’t really assure us of competency. Licensing gives a minimum of experience and knowledge. It then issues a paper that tells the person that the standard has been achieved. Just assuming best case scenarios where applicants did not lie or cheat (which has been done), you now have minimally trained person out practicing. Will the parents be informed that one person with a license has caught 20 babies, another with a license has caught 300 (in a high-risk foreign setting), and another, who has no license, has caught 2000 in her 30 years of practice . . . ? As a consumer, I would like to know these things, not just if he/she has a license.
Now the question of giving consumers recourse to protest, be compensated for wrongs that a practitioner does, be able to remove a dangerous practitioner, etc.
Solares says that if consumers choose a non-certified practitioner, they have taken responsibility for outcomes unless fraud or criminal assault occurs.
This seems fair. Fraud would give me legal recourse if my caregiver lied or misrepresented him/herself to me. One definition is as follows:
A false representation of a matter of fact—whether by words or by conduct, by false or misleading allegations, or by concealment of what should have been disclosed—that deceives and is intended to deceive another so that the individual will act upon it to her or his legal injury.
So yes, there should be some type of legal recourse when not using a licensed or certified caregiver, and several recourse elements of the licensing method should be kept in place for those who choose to do that.
What I’m saying is, mandatory licensure isn’t the best answer for protecting consumers. In fact, it’s a terrible answer.
Coming up next: The 2 legal battles we really should be fighting.
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