A Joint Consultation on the Report to Ministers from the DH Steering Group on the Statutory Regulation of Practitioners of Acupuncture, Herbal Medicine, Traditional Chinese Medicine and Other Traditional Medicine Systems Practised in the UK.

This extremely lengthy consultation paper was published by the Department of Health (DH) in July 2009 with a deadline for responses of  November 2nd, now extended to November 16th 2009. It runs to 56 pages along with a separate Impact Assessment document of 21 pages. Anybody, including members of the public, can access the document from this link: –

http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_103566.pdf

Equally anybody can respond to it – the DH hopes that most will do so by using the electronic ‘Question & Answer’ form provided, although there are few if any who will be able to answer every one of the questions.

The DH Steering Group Report referred to in the title strongly recommended Statutory Regulation and was primarily concerned with the detail of how it should be achieved and administered. In somewhat unanticipated contrast the DH consultation appears to be going ‘back to the drawing board’ offering in addition no less than eight alternative ‘light touch’ approaches for consideration such as accredited voluntary regulation and even a voluntary licensing scheme.

The consultation does seem very concerned that any regulation of herbal medicine, acupuncture et al. should be proportionate to risk – ‘proportionate’ taking into account not only what is perceived as risk but also any negative impact on practitioners and their patients (expense, bureaucracy, interference), and in particular the cost to the taxpayer.

In most respects the consultation does appear to be painstakingly accessible, even-handed and inclusive. Conspiracy theorists can be forgiven in the light of recent government behaviour to interpret this all as ‘window dressing’, decisions having already been made by the Ministers. Others see signs that the DH is wavering and that the whole regulation issue will be shelved or scrapped. This latter contention is more likely – new, expensive, petty regulation will clearly not be a vote-winner during a deep recession, and there is a general election looming long before any new arrangements could be enacted.

Below we give a few key reflections on the consultation that arise from our own intended responses, which we hope may help to inform others (and we hope there will be many others!) who will be responding to the consultation personally or on the behalf of interest groups:-

REGULATION PROPORTIONATE TO RISK

Annex B of the consultation paper is a summary of the perceived risks associated with the professional practice of herbal medicine, acupuncture, etc. Most of these are imagined rather than real, some relate to incidents that were not properly investigated (and the weight of culpability is more likely to rest with allopathic drugs and/or doctors), some occurred abroad, others relate to self-medication with OTC herbal preparations. Those few UK cases cited that seem fairly incontrovertible relate to Traditional Chinese Medicine (and perhaps Ayurvedic) practitioners. In support of our non-indigenous colleagues, these things appear to be statistically insignificant and, more to the point could be (and generally speaking have been) dealt with satisfactorily under existing law. Hence any ‘regulation proportionate to risk’ would warrant a very light legislative touch indeed.

In the case of practitioners of Traditional Western Herbal Medicine, (TWHM), not a single case has been cited in Annex B that relates to our work. Our own records and memories indicate that we have not been responsible for a single incidence of harm caused to a member of the public: all TWHM practitioners are covered by a professional indemnity policy and it would be easy for the DH to verify that there has not been a claim at least since the time of the 1968 Medicine Act.

In consequence, we hold that in our case ‘regulation proportionate to risk’ means no regulation at all. There seems no justification in causing trouble and expense to TWHM practitioners, their patients, the government or taxpayers to put safeguards in place where no risk has been evidenced.

PROTECTION OF TITLE

It has been recommended (should regulation of herbal medicine happen) that the protected title should be ‘herbalist’, i.e. only registered herbal practitioners would be permitted to call themselves herbalists. Despite the need to refer to ourselves as TWHM practitioners for purposes of differentiation, in our everyday work we are always referred to simply as ‘herbalists’, just as we were a hundred or a thousand years ago. It is both odious and misleading to hijack our job title for the use of the ‘unproven experiment’ of the pro-orthodox, science-driven, evidence-based practitioners that are imagined as the subjects of a fully legislated future. So our response is simply that it’s our title, we’re keeping it, and you can’t have it.

We would recommend as a far more just and helpful arrangement that the protected title would be registered herbalist (or licensed herbalist). This would give the public the opportunity to make a clear and informed choice to see a regulated practitioner, with all that goes with it, should they choose.

UNLICENSED HERBAL MEDICINES COMMISSIONED FROM A THIRD PARTY TO MEET INDIVIDUAL NEEDS

Under Article 5.1 of European Directive 2001/83/EC, practitioners would be unable to arrange for a third party (e.g. a manufacturer or dispensing service) to make up a finished complex medicine for a given patient, unless they fulfill the European definition of an ‘authorised healthcare professional’, i.e. one who is state regulated. However, this facility is mainly of interest to some TCM practitioners and perhaps a very few western herbalists. It forms little or no part of a TWHM practitioner’s work, so we will willingly forgo it. We are equally sure that others who use such services could adapt to manage without (and might be all the better for it).

Meanwhile, we would press for confirmation that there must be no change in the arrangements whereby we produce and/or purchase from commercial suppliers both single dried herbs and single simple prepared medicines (e.g. tinctures).

UNREGULATED HERBAL PRACTITIONERS

It is clear that a significant cohort of respondents to the consultation document will remain vehemently in favour of full-blown statutory regulation, for the simple reason that there are powerful vested interests within the EHTPA, the executives of the larger PAs, phytopharmaceutical manufacturers, and the current academia of herbal medicine, who might otherwise face an uncertain future. More liberal members of the professions, their patients, etc. will probably dissipate themselves amongst the bewildering array of ‘light touch’ options that have been tabled – certainly there has been no evidence of a landslide in favour of any one of them.

We are confident there will prove a second powerful lobby, and one to which the Herbarium strongly subscribes, that will reject all these options and remain firmly opposed to any new legislation that deepens centralised control of herbal practice and the herbs we use. Of interest, the consultation makes no clear statement that, should regulation happen, unregulated herbalists would thereinafter be working outside of the law, rather there is an assumption that such practitioners would continue their work, albeit with the potential for a few annoying but not vital inconveniences.

The consultation paper does make it clear that under any future circumstances whereby complementary practitioners are not fully regulated, the caveat emptor (‘buyer beware’) principle would apply, and official warnings would be issued to this effect. Whilst we hope and trust this would not be taken as a new incentive to malign herbalists undeservedly, it would in fact maintain the status quo, which we have no wish to change. The working environment in which practitioner and patient share mutual responsibility makes for good therapy and safe practice.

The reasons for our approach of principled resistance to the statutory regulation of herbal medicine are clearly stated in the Declaration of Intent. In particular we would draw your attention to the following passages: –

  • It is the inalienable right of all people to use plants for their sustenance and healing. In the spirit of the European Charter of Human Rights, so too is it an essential freedom to seek advice from those who have devoted themselves to the knowledge and application of the health-giving properties of plants.
  • Herbal Medicine is the indigenous natural healing tradition of the British Peoples. It is a living tradition that has adapted and remained relevant through all times. We count ourselves amongst the custodians of this living tradition, for the benefit of all who would choose it and for generations to come.
  • Given that we are safe in the sourcing, preparation and prescription of herbal medicines, we challenge the need for legislation over and above the existing laws of the land that we are subject to and willingly uphold.
  • Likewise we reject the current intention to regulate our medicines in that it will compromise without justification the essential freedoms of the public, herbal practitioners and their traditional suppliers in favour of the few who may profit by it.
  • Herbal Medicine’s enduring strength is that it remains an effective therapy employing the most basic of technologies with little call on external resources or agencies. In anticipation of the effects of climate change we are determined to keep this aspect of our knowledge alive for ourselves and future generations as an integral element of a healing planet.

These ideas form part of the fundament of ‘Transition Herbal Medicine’, which looks beyond the devices and desires of the day to a near future where a relocalised, community-based and above all sustainable approach to herbal medicine will prove essential. This is diametrically opposed to the old-fashioned, unenlightened and potentially catastrophic mindset that clamours for yet more centralised control. We know that there are large and growing numbers of herbal practitioners who subscribe to the transition ethos, not just from the quite unprecedented interest that the Herbarium has generated, but in the real-life efforts of so many of our peers who have already made tremendous adaptations to the way they think and work.

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