The Limited Competence of the State

Well established as the custom is, there is a certain awkwardness of fit between professional standards and state enforcement. The request by the health professions for state protection of their monopoly is certainly plausible. While the state can play little part in instructing or defining the work of the professions, it certainly has always had as part of its police power the protection of the public from outright dangers to health, including health frauds—quacks, charlatans, and sincere professionals whose education was simply inadequate to their tasks (Dent v. State of West Virginia, 1889). But a profession is defined in large part by its esoteric knowledge: Only professionals can set professional standards, determine when they have been violated, and, by extension, determine the sanction that would be appropriate as a punishment.

The result is that the public ends up enforcing rules that only a private association can set, presumably for its own benefit as much as for the public good. Nor is it clear that licensing in general, especially in the context of rigid scope-of-practice statutes, is in the public interest. The costs of licensing will normally be passed along to the consumer in the form of higher costs, and the license requirement restricts entry into the profession to those who can afford the initial outlay. The scope-of-practice acts make sure that auxiliary professions, with less expensive preparation and lower fees, cannot perform certain procedures that they may in fact be perfectly competent to perform (CSG/CLEAR). Built into the arrangement, if it is to be tolerable, is a strong presumption of altruism on the part of the professional and trust on the part of the public. Let either fail, and the system is in danger.

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