licensing of herbalists

[Guest guest]

Roger

 

I read your article about the legality of the unlicensed practice of

herbology. You certainly make the case that it is largely the words

used to describe one's practice that the courts have regulated, not the

practices themselves. I am not sure if your main point is that the

courts are being hypocritical, playing a semantic game over labels

while still condoning the legal practice of alternative medicine. Or

that herbalists don't actually practice medicine anyway, since they do

not diagnose or treat illnesses, but rather assess imbalances and

recommend herbs to improve health. First of all, medicine is licensed

by each state and each medical practice act differs. So case law from

one state is really irrelevant to another. second, very old cases may

reflect opinions made prior to changes in the medical practice act. In

addition, one cannot apply rulings from 1901 or even 1964 w/o

considering changing circumstances. The old Separate but equal ruling

could not be used to prevent a new idea for new times -

antidiscrimination laws.

 

I will limit myself to how this position fits with TCM. TCM definitely

treats illness. It does not just assess imbalance and apply herbs to

improve health. This may be the way it is taught or conceived, but TCM

has actually largely been geared towards disease treatment for much of

the last 2000 years. diseases were diagnsoed (bian bing) and patterns

were differentiated within those diseases (bian zheng). But the one

of the main focuses of texts going all the way back to the nei jing and

shang han lun has been on specific diseases. This pattern continues in

the works of wen bing specialists and zhu dan xi all the way to modern

internal medicine texts. These diseases are presented in terms of

making a correct diagnosis and treatment is determined upon that

diagnosis. anything other than this process is considered malpractice

in classical chinese texts. I cannot see how the practice of chinese

herbology fits any other definition than that of practicing medicine.

Sure, I suppose you could claim to treat only patterns, but this is not

really the TCM tradition, where disease was discussed as often as

pattern.

 

And if it comes down to semantics, what are you doing when you gather

symptoms from a patient and plan a strategy to help the patient,

whatever terms you use? If your treatment is geared in any way towards

relieving the patient's chief complaint, you are practicing medicine

under CA law. It does not matter if you claim to be treating MS,

balancing zang-fu or merely combatting fatigue. If the intent of both

you and the patient is symptom relief, it is medicine.

 

And what do people actually do? I wish people were so scrupulous about

their word choice, but in health food stores, there is no attempt to

hide what is going on. A customer comes in an says they have high

blood pressure. The clerk says here, take this, it good for your

heart. that's not semantics. That's the practice of medicine w/o a

license. Now having said that, I think people should be free to do

business with whomever they please. Licenses merely insure that the

public has some recourse if injured. If the corner herbalist injurs

me, he cannot have his license revoked. While there are methods for

redress, none as accessible as a licensing board. So there is no broad

public protection w/o licensure. Anyone can claim to be an herbalist

(and anyone does). Perhaps caveat emptor should reign in this arena.

But for caveat emptor be a safe way to run a medical system, would

require an educated populace, something I sensed you may be skeptical

of in your article on the dumbing down of america. How do we protect

the ignorant, weak, powerless and uneducated from injuring themselves

and being taken advantage of. Education is the key for the long term.

But what about for the next 50 years. I know its paternalistic and I

once rejected it myself. but I see no other choice.

 

In addition, I sense your anti-corporatism as well. I strongly oppose

corporate control of anything. They should be servants, at best.

current libertarian policies, such as the DSHEA law, favor a corporate

libertarianism that allows the strong to prey on the weak. We

couldn't get any more libertarian than DSHEA in america. However that

libertarianism has led to unscrupulous marketing of potentially

dangerous supplements. Only regulation that protects our right to

practice and restrains the right of corporations to sell allegedly

dangerous products directly to the public can rectify this situation,

which I believe exists due to current irrational regulations, not

regulation per se. when regulations are applied to protect the public

and not the industry or professions they oversee, that will be my ideal

world.

 

 

 

Chinese Herbs

 

 

FAX:

 

 

[Guest guest]

On 30 Apr 2004, at 6:52 AM, wrote:

 

> Only regulation that protects our right to

> practice and restrains the right of corporations to sell allegedly

> dangerous products directly to the public can rectify this situation,

> which I believe exists due to current irrational regulations, not

> regulation per se. when regulations are applied to protect the public

> and not the industry or professions they oversee, that will be my ideal

> world.

>

>

>

>

 

This is the current Australian approach and the only one I can see with

real potential to safeguard our profession from being swallowed or

eroded to the point of irrelevance by the status quo of pharmaceutical

companies and western medicine.

 

I do worry about the future here in terms of who will control and sell

" safe " and " effective " herbal products. Standardization is here, raw

herbs will disappear form " professional " practice and concentrates in

powder/granule/capulse/pill form will the be only products allowed to

be prescribed by registered TCM docs. If the popularity of TCM

continues to grow here, the pharmaceutical companies will want a piece

of the pie. I can't see that being a particularly good outcome as I see

them just continuing the process of isolating an " active " chemical and

synthesizing it for medical application through their " patent " .

 

That possibility is more long-term however............I think the US

would be wise to concentrate on professional recognition and licensing

in law for TCM practitioners to allow them to be exempt from our

" dangerous dietary supplements " . I know many want to be totally free to

give whatever they like and claim whatever they like to a patient. This

however, is not professional or practical in the modern world.

Potentially dangerous substances must be restricted in terms of supply

and application.......this is only sensible. The days of free access by

the untrained to dietary supplements are numbered. Our sole aim should

be to become the ones who supply and apply these products.

 

 

The other issue you addressed in your post regarding what constitutes

practicing " medicine " is a very complicated issue here in Australia

also. A literal reading of the laws would prevent a mother from

applying a band-aid to a grazed knee. By law, only a " medical doctor "

can either diagnose or supply ANY type of therapy to relieve suffering

or illness; including a band-aid.

 

This is obviously ridiculous and designed for a time when western

medicine was considered the only " real " therapy and all others were

simply " snake-oil " taking advantage of the gullible. Sure, many were

and the laws probably saved many lives...........but they are no longer

relevant to today in any practical way.

 

Thankfully, as part of the changes that have occurred since the

introduction of a registration board here; all medical

laws are being re-assessed for the 21st century including the scope of

practice for " alternative " therapies which currently don't have one. I

await with bated breath the outcome of these assessments.

 

Best Wishes,

 

 

Dr. Steven J Slater

Practitioner and Acupuncturist

Mobile: 0418 343 545

chinese_medicine

[Guest guest]

, rw2@r... wrote:

 

>

> What the recent California laws do ( " Health Freedom Act " legislation) is

merely to put into statutory form what really has been established case law

for almost a hundred years. That makes it easier for the public to know what

the real situation is, without having to hire expensive lawyers to interpret

the current state of the case law. Ten years ago, doing the background

research for the article took about a hundred hours of my time. Now, in

California, you can easily read the statutes in a few minutes and understand

what is intended.

 

Roger

 

I still believe you are incorrect about this. It seems clear to me that herbal

practice was not legal in CA before SB 577 and the case law you referred to

would not have been not considered valid in the CA courts. Our practice

clearly defines any medical intervention, regardless of terminology, as the

practice of medicine. Whenthe bill was offered, the sponsors said they were

legalizing something thathad been illegal under the strict intepretationof the

medical practice act. the courts did not force them to conform to case law in

this matter. the fact that juries nullify the law on a regular basis is another

thing altogether.

 

I believe your legal position is well researched. I have seen similar

arguments made about things like drug laws and federal income tax. However

in all these cases, the position is not generally accepted by the courts today.

for example, we have a long history of jury nullfication supported by the

courts, yet most judges will instruct jurors that this is illegal and those

promoting jury nullification outside a courthouse are typically removed. SB

577 made something legal that had been illegal. It did not make something

clear which had been grey. If sympathetic juries did not nullify these laws,

then your case would be weakened immensely. I doubt judges feel the same

way. I believe it was the intent of medical practice acts to do just what they

do - prevent some people from practicing. If a medical practice act does not

prevent some people from practicng, it serves no purpose at all.

 

 

> However, the established health professions seem much less interested in

supporting such acts, because of their own vested interested in the status

quo.

 

 

in fact, we spend allout time trying to prevent others from doing acupuncture

and even chinese herbs.

 

 

> A state granted license to practice medicine, or acupuncture, is a quasi-

corporate privilege. It should be regulated to stricter standards than

individuals are held to. If acupuncturists cannot meet higher standards of

herbal knowledge than the general public, they should not be granted a state

monopoly license to do so. How is the public served by this? A state-granted

monopoly (franchise) is a privilege, and in return certain things should be

demanded, just as of corporations, which are also state-granted franchises.

 

I agree. But what do you propose we do. IF there were proper corporate

restraints and IF there was adequate public education, I would be right with

you. The modern democratic state is paternalistic and that is why we so

easily drift into fascism. But in the presence of ignorance and unbridled

corporate power, the stae is the only bulwark against robebr baronism. While

the state did indeed make a mess of medicine, you must admit that most of

what was being sold at the turn of the 20th century was quackery designed to

deceive a gullible public. It was unfortunate that bonafide medicine like

eclectic herbology went down the drain with the dirty water. the current

scenario of internet marketing of dubious products is the snake oil salesman

all over again. We are not going to educate folks over night and education

must also precede the rollback of corportae power, becuase if you don't

understand the situtation, you won't be motivated to do anything about it. But

education is controlled by the government, which is supported by

corporations, so this is not part of the curriculum.

 

So even if the system can be overthrown, when will it happen and what do we

do for the helpless in the mean time. I completely agree that we are ruled

like slaves because of our ignorance, but the regs I propose are actually not

meant to increase corporate power, but give it back to the people. If you have

to meet standards, rather than just see what you can get away with, the

public will be better off. I believe paradigms change by showing their

weknesses from within, not by rejecting them outright and just substituting

another. How do we do this. I use to spend a lot of time in my youth

discussing the same very points Roger raises with my peers. All to no avail,

That is when I opted for constructive engagement with the system as it is. I

use that word self consciously though as this term was used to describe our

support for south africa during apartheid years. But it was protest and

disengagement that actually succeeded. We could all default on our student

loans. :-)