Free Speech Doesn’t Apply to Licensed Therapists

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Another in the series of posts to stimulate discussion on some of the bigger political issues in the massage profession. (Photo credit: gapingvoid.com)

Last fall, I was investigated for professional misconduct by my regulatory board.

Why?

They took offence at three statements they attributed to me. In brief, the statements basically were:

1. When you have too much training in rehab, you focus on “treating” people and your relaxation skills suffer. It’s like the old cliche: If you have a hammer, everything looks like a nail.

2. Massage is expensive and this prohibits people from using it regularly.

3. The public doesn’t always see massage through the filter of rainbows, lollipops and unicorns. Many look at massage in a negative light. In the minds of many, getting a massage means that they have to go behind closed doors and take their clothes off for a stranger while they get rubbed in greasy oil.

One of the statements appeared on a website of a company I do not own, a fact my board seems to have ignored. But regardless whether I made the statements or not doesn’t matter. The bottom line is that someone took offence to them, or at least took offence to me, and used these statements to start a professional misconduct investigation.

I thought these were all pretty well accepted truths about massage and when they asked me to explain I provided lots of case studies, quotes, and stats to back each one up. (Again, apparently ignored by the regulatory body.)

I’ve always believed that we should always be questioning the way things are and should engage in dialogue around some of the hard issues our profession faces. I always thought that I could talk about my profession in an open and honest way.

But I got a rude awakening and discovered through this process that an individual’s right to freedom of speech does not apply to a regulated health professional. Because I’ve voluntarily become registered by a regulatory college (or “regulatory board” in the US), the regulations of that organization supersedes the Charter of Rights and limits my freedom to express myself.

So when I write critically of the profession, my board can decide that they don’t like what I publish and can take steps to shut me down under this broad protectionist regulation of professional misconduct.

What’s particularly troubling about the college’s actions to limit freedom of speech is that the regulations are often extremely broad and open to a great deal personal interpretation. For example 26(49), which the college accused me of being in violation of, defines professional misconduct as “Engaging in conduct that would reasonably be regarded by members as conduct unbecoming a massage therapist.” (O. Reg 748/94, s.2.)

There is no definition or criteria of “conduct unbecoming a massage therapist.” I certainly can’t believe this phrase was drafted to limit the rights to comment critically on shortcomings in our profession. It’s more likely to apply to massage therapists who wear bikinis for their clients or who are shaking their junk inappropriately on YouTube while wearing their massage therapist ID tag.

I told the disciplinary panel in my rebuttal that because there is no definition of “conduct unbecoming a massage therapist” that the decision to make this judgment should not be taken lightly and that they should exercise extreme caution when using this as a reason to investigate a member.

I was very public about the CMTO’s allegations and rather than getting hate mail, I received dozens, if not hundreds, of supportive comments in my blog, Facebook and by email from massage therapists. None of these massage therapists found my comments “unbecoming a massage therapist”. So obviously the opinions of the members of the discipline committee are not reflective of the profession in general. A regulation that is so open and can be interpreted so broadly certainly seems like a dangerous regulation, especially as it opens up the possibility for abuse.

So what’s the takeaway?

As a regulated massage therapist your right to freedom of speech is not protected under the Charter of Rights and Freedoms (the equivalent of the American Constitution) in Canada. I doubt that most governing bodies would take the extreme action my regulatory college did, but you need to be aware that speaking or writing critically of our massage profession could get you in hot water.

This has been another in the series of posts to stimulate discussion on some of the bigger political issues in the massage profession. Feel free to join the conversation. Check out:

Who Owns Massage?
Are you violating “Massage Therapy” Trademark?
What’s the Role of a Massage Regulatory Board?

Are You Violating a “Massage Therapy” Trademark?

Shiny Trademark SymbolDo you use the words “massage therapy” in any of your advertising? If so, you may possibly be violating trademark law. Read on to find out more…

This is the second in a series of posts looking at some broader issues in the massage profession, perhaps even bringing to light some little known facts about massage in the process. In the first post, I looked at the question of who owns massage by looking at two types of regulation that are commonly used to govern massage and bodywork. Now let’s look at who owns the words “massage therapy”.

Side note: I’m not a lawyer, so I’m just communicating my understanding of the matter. Feel free to correct me in the comments section if there are any inaccuracies in my reporting.

Ownership of a word or phrase is usually obtained by registering it as a trademark.

“A trademark is a word (or words), a design, or a combination of these, used to identify the goods or services of one person or organization and to distinguish these goods or services from those of others in the marketplace.”

Trademarks are usually specific to each country, except for countries that have set up arrangements otherwise, as exists in some European countries. So a registered trademark in the USA is not applicable in Mexico, for example.

A search through the United States Patent and Trademark Office database shows no trademark for the term “massage therapy”. The term is used as part of the trademark of longer company names however. For example, “massage therapy journal” is a registered trademark of the American Massage Therapy Association (which is also a trademarked name).

However, a search through the Canadian Intellectual Property Office database shows that “massage therapy” is in fact a registered trademark. Most people don’t know that the term “massage therapy” has been trademarked in Canada by the College of Massage Therapists of Ontario (CMTO), the regulatory body for massage therapy in Ontario, Canada and has been an actively protected trademark since 1999.

Personally, it seems shocking that any organization would try to maintain control over a term like “massage therapy”. One of the key characteristics of a trademark is its distinctiveness and the term massage therapy would be considered a generic phrase that is commonly used by both professionals and the public, both in Canada and internationally, to describe professional massage services.

I haven’t seen an reported instance of the CMTO launching a court case to defend it’s trademark and it seems difficult to imagine that a court of law would enforce the rights to such a generic term. Why would the CMTO trademark the phrase? Surely they would never enforce their ownership of the trademark. Or would they?

I was contacted by a holistic practitioner a number of years ago and she was issued what amounted to a cease and desist order from the CMTO for using the term massage therapy on her brochure. She never claimed to offer massage therapy, but was contrasting her services from massage therapy, basically saying that what she offered was different from massage therapy.

This was the first time I had ever heard of the CMTO actively enforcing their trademark. It appeared that some massage therapist didn’t like this bodyworker and had lodged a complaint to the College. The practitioner was in a bit of a panic, as anyone who receives these kinds of letters would be, and didn’t know what to do. I wrote to her massage association on her behalf, the largest Canadian massage association at the time, and the association responded to say that they would put their full weight behind the effort to defend her right to use the term. I don’t know how it all ended, but I never heard of the issue escalating, so my assumption is that the CMTO backed off on its position.

The bottom line: If you are in Canada you need to be aware that the CMTO owns the trademark for “massage therapy”. Although their exclusive rights to the phrase has never been challenged in a court of law, if you use those words in your advertising it is possible that you could find yourself in a legal battle to test their claim.

Mud Slinging Around Massage Ownership

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Who owns “massage”?

There is a disturbing level of unprofessional mud slinging going on in the massage profession. While most massage therapists are respectful of their peers, there is a small minority that rant in their Facebook Groups and blogs, seemingly out of ignorance and fear.

Although I don’t have high expectations that they will change their spots, I’d like to encourage those who are open-minded enough to step back and look at the big picture. This will be the first in a series of posts that takes a look at some of the more controversial political issues that face our profession in the hopes of opening some reasoned, professional dialogue on these issues.

Massage therapists do not “own” massage…

There are a few of vocal massage therapists, in Ontario in particular as of late, that believe they own the act of massage. They keep making public pleas for the provincial regulatory body (the CMTO) to restrict all massage  (or perhaps more broadly “bodywork”) activities unless the massage is performed by a “Registered Massage Therapist”.

Currently in Ontario, massage therapists have title protection. This means that anyone that wants to call themselves a “massage therapist” must meet certain provincial standards and be registered with the CMTO.

The act of massage on the other hand is public domain, that is, anyone can do massage for either general interest or for income. This makes sense. It allows friends and spouses to massage each other. It allows alternative forms of bodywork (reflexology, shiatsu, chair massage, Reiki, etc.) to be practiced and gives the public a wide variety of choice over the type of massage and bodywork that they can receive.

In the United States, most states regulate massage as a protected act, but this sets up a horrible situation where the public’s choice is limited and various professions are put in a position of fighting over the rights to touch specific parts of the body. For example, massage therapists fighting estheticians for the rights to do facial massage.

For someone outside the profession, it’s easy to see the benefits of “title protection” and also of keeping that title protection narrow or specific. It keeps our professional regulatory bodies in check and prevents them from overstepping the bounds of their role. For example, after hearing many personal stories of bodyworkers in British Columbia, my impression is that the provincial regulatory body is quite aggressive in trying to “own” massage. In addition to the title “massage therapist” that agency also regulates the title “massage practitioner”. However, an independent provincial task force has recommended that the provincial government remove protection of the “massage practitioner” title from the regulatory body, stating in effect that it is not in the public’s best interest and limits their choices in self-care.

As much as the provincial regulatory system of title protection may seem flawed, it serves both the public and the profession well. The public can rest assured that if they see a “massage therapist” that they will see someone who is at least competent in assessing and treating musculoskeletal issues. At the same time they have the option and right to receive alternative forms of bodywork if they choose to pursue those.

It’s really up to the regulatory bodies (CMTO), your provincial massage association and all of us individually as massage therapists to educate the public about massage therapy, the scope of practice of a massage therapist and the benefits of receiving massage therapy.

It’s not appropriate for regulated massage professionals to try to limit access to options for the public to choose from. We should all have the right to choice and should be able to choose the form of healthcare (or wellness care) that we want. For massage therapists to attempt to “own” the act of massage is not in the public’s best interest and is simply wrong.

A small number of therapists want to exert their control over the marketplace. They want to own massage, own the public and establish a monopoly on touch by eliminating any other competition for touch. Thank goodness our regulatory system prevents this from happening.

These people accuse alternative massage and bodywork trainers of being greedy, money-grubbers who want to make a buck off the public. That type of mud slinging is not only behavior unbecoming a professional massage therapist, but it clearly shows that the mud is on their faces.

So to answer the question: “Who owns massage?” Hopefully, the public.

I’ll be back with more posts looking at a broader picture of massage and examining some of the more controversial issues that we face in our profession. Feel free to leave your comments and thoughts below. I’m happy to post any viewpoint as long as it is civil and professional.