Now that the election dust has settled and, as expected, the political order has been shaken up, it seems a good time to cast a weary eye over the past decade and the ups and downs in the landscape of state regulation for herbalists. Let’s begin with some background on the biggest acronym in herbal medicine…

EHTPA

One of the chief protagonists in the drive for state-sanctioned ‘professional status’ for herbalists has been the European Herbal and Traditional Medicine Practitioners Association (EHTPA, formerly the European Herbal Practitioners Association, EHPA), a pro-regulation lobby group formed in 1993 to (in their own words) enhance the legal basis of herbal medicine practice across the European Union (EU). The EHTPA is an umbrella body which represents professional associations (PAs). Representation of PAs within the EHTPA is on an organisational level: individual members of these PAs have no voting rights and no say in how the organisation is run, although each member is obliged to pay an annual £50 levy to fund the activities of the EHTPA. The PAs have a combined membership of around 1400, made up of herbalists from various traditions. The EHTPA was represented on the Department of Health (DH) Herbal Medicine Regulatory Working Group and the Steering Group on the Statutory Regulation of Practitioners of Acupuncture, Herbal Medicine, Traditional Chinese Medicine and Other Traditional Medicine Systems Practised in the UK, both of which produced reports recommending the introduction of state regulation for herbalists in the UK. The EHTPA lobbied hard, particularly via letter-writing campaigns, demanding that MPs and the former Health Secretary, Andy Burnham, support state regulation for practitioners. This campaign appears to have been unsuccessful.

The House of Lords Select Committee on Science and Technology

The campaign for state regulation started in earnest in November 2000 with the publication of the House of Lords Select Committee on Science and Technology report on Complementary and Alternative Medicine. Herbalists appeared to receive official public backing for state regulation as the report suggested that practitioners met key criteria, including (a) risk to the public from poor practice, (b) the existence of a voluntary regulation system, and (c) a credible, if incomplete, evidence base.

Statutory Self-Regulation (SSR) was to be introduced under Section 60 of the Health Act 1999, which empowered the Health Secretary to ‘fast track a profession to SSR’1 via the establishment of a single umbrella body, recognised by statute, to represent, register and protect the title of herbalists.

Herbal Medicine Regulatory Working Group and DH Consultation 2004

In January 2002, responding to the Select Committee report, the DH formed the Herbal Medicine Regulatory Working Group (HMRWG) to explore the practicalities of introducing SSR. Its report, entitled ‘Recommendations on the Regulation of Herbal Practitioners in the UK’, was published in September 2003 and proposed the establishment of a Complementary and Alternative Medicine Council (or CAM Council) to regulate both herbalists and acupuncturists.

The results of a DH consultation on the report, published in February 2005, suggested broad support for the introduction of SSR on the basis of (a) ensuring patient and public protection and (b) enhancing the status of herbal medicine. A government timetable suggested a draft Order establishing SSR (made under Section 60 of the Health Act 1999) would be published and ready for consultation by the winter of 2005 at the latest.2

White Paper scuppers SSR and CAM Council

The Shipman Inquiry, the government investigation into the activities of the serial killer and GP Harold Shipman (found guilty in January 2000 of murdering 15 of his patients), published its final report in January 2005. This report led to the setting up of two reviews into the regulation of medical and non-medical healthcare professions. Both published their reports in July 2006 and following consultation a White Paper entitled ‘Trust, Assurance and Safety – the Regulation of Health Professionals in the 21st Century’ was published in February 2007.

The White Paper emphatically stated that ‘Government [should] not establish any new statutory regulators’. This effectively pulled down the shutters on SSR and the proposed CAM Council. The ‘self’ had to be dropped from ‘statutory self-regulation’ and, according to the White Paper, the only option left to ‘emerging professions’ aspiring to statutory recognition was regulation via the Health Professions Council (HPC). Furthermore, the White Paper stated that ‘the relative restriction of statutory regulation [should be] used only where it is proportional to the risk involved.’

Steering Group Report and DH Consultation 2009

In early 2006, the DH launched a further review into the regulation of herbalists. However, the work of the Steering Group on the Statutory Regulation of Practitioners of Acupuncture, Herbal Medicine, Traditional Chinese Medicine and Other Traditional Medicine Systems Practised in the UK was delayed by the Government’s U-turn on SSR and its report was eventually published in May 2008.

Predictably, the Steering Group (SG) report recommended the urgent regulation of herbalists in order to ‘safeguard the public’ from ‘failing practitioners’.3 There was also gushing praise for the HPC: the Steering Group ‘has every confidence in the ability of the HPC to statutorily regulate practitioners…effectively and efficiently…’, in addition, ‘…effective, safe and cost-effective statutory regulation has been demonstrated by the multi-professional HPC…’4

On 3 August 2009 the DH published its consultation on the SG report. This consultation was well overdue – it was predicted to commence in December 20085 – leading some to suggest that the government was reconsidering its support for statutory regulation (SR). The delay was, according to the official line, caused by the late publication of the report by the Working Group on Extending Professional Regulation (WG on EPR).

The consultation proposed a number of regulatory options including full-blown SR, light-touch licensing regimes, and a preservation of the status quo (with the addition of consumer warnings – the caveat emptor approach). The public consultation closed in November 2009 and it seems the DH is unlikely to publish a report on this consultation unless it becomes politically expedient to do so.

WG on EPR and evidence-based risk assessment

The Working Group on Extending Professional Regulation, established to advise Government on how to deal with ‘unregulated health workers’, published a report in July 2009 that undermined EHTPA hopes for state regulation via the HPC.

The report marked a change in the establishment’s attitude to extending ‘professional regulation to new groups’. The report suggested that the process had been ‘overly driven by the aspirations of emerging professional groups themselves’, mainly as an attempt to establish themselves as ‘safe and effective players in the health care arena’. The HPC had coined the term ‘aspirant professions’ to describe groups, like herbalists, ‘seeking regulation through emphasising the risks inherent in their professions in order to secure their positions within health care, for reasons of status and market position’. The Working Group agreed that this approach was unsustainable, not simply because of the cost and bureaucracy involved, but also because it failed to have the ‘protection of the public as its primary concern’. 6

The WG on EPR report recommended a number of key principles inform future work on state regulation. These included: (1) state regulation, if appropriate, should range from full SR to lighter touch approaches, and (2) the type of state regulation should be (a) proportionate to the risk posed by the activities of a ’health profession’ and (b) founded on a robust evidence-based approach to risk assessment.

Bearing in mind that practitioners of western herbal medicine are considered ‘low risk’ by insurers and given the current lack of evidence clearly demonstrating a significant risk to the public from western herbalists, any moves by government to implement SR or licensing would appear draconian and contrary to the above recommendations. Now (June 2010), we are bombarded by coalition government announcements about impending public spending cuts, making it almost impossible for the DH to justify any cost to the public purse for such measures.

Royal College of Physicians drops support for SR

In its submission to the DH consultation 2009 the Royal College of Physicians (RCP) withdrew its previously held support for the regulation of herbalists, claiming that herbal medicine is ‘largely or completely of unproven benefit and should be regulated in terms of consumer protection’. The RCP further stated that extending SR to practitioners (herbalists included) whose therapies are ‘neither of proven benefit nor appropriately tested, has the potential to increase the possibility of harm’.7

This should have given the pro-regulation herbalists pause for thought – in the past century, repeated attempts by groups of herbalists to gain any kind of state-sanctioned recognition in the UK have foundered because of opposition from the orthodox medical establishment.8

Andy Burnham scuppers SR and membership of HPC

On 1 April 2010, then Health Secretary, Andy Burnham, issued a statement, which to some must have felt like a bad April’s fool joke:

‘Emerging evidence clearly demonstrates that the public needs better protection, but in a way that is measured and does not place unreasonable extra burdens on practitioners.

I am therefore minded to legislate to ensure that all practitioners supplying unlicensed herbal medicines to members of the public in England must be registered with the Complementary and Natural Healthcare Council (CNHC).

I believe that the introduction of such a register will increase public protection, but without the full trappings of professional recognition which are applied to practitioners of orthodox healthcare.’

This must have been a massive blow to the EHTPA hierarchy and other SR cheerleaders, though it should have come as no surprise given the WG on EPR report and the RCP position on SR. So, after a decade pursuing regulation by the state it appears that herbalists have come full circle: a decade ago there was voluntary regulation (VR) via PAs and now, after umpteen reports and consultations, there is a government proposal for more of the same, this time via the state-funded CNHC…

CNHC – more Voluntary Regulation and more Bureaucracy

How do the CNHC and the HPC compare? The HPC, the EHTPA’s regulator of choice for herbalists, has authority delegated by UK statute to regulate health professions allied to orthodox medicine, while the CNHC is (in their own words) a ‘national voluntary regulator for complementary healthcare practitioners in the UK’. The CNHC was not incorporated by statute nor does it have any powers conferred by statute. At most, it can strike off errant or incompetent practitioners, as can ANY register.

The HPC is a massive and expensive bureaucratic exercise, and is already creaking under the strain of growing backlog of complaints against practitioners (year on year there are 30% more allegations made than cases considered).9 Furthermore, the HPC is struggling financially – it made an operating loss of around £1 million for the year ending March 200810.

The CNHC was launched in January 2009 by Prince Charles’ charity, the Foundation for Integrated Health* (FIH), backed by £900,000 of public money, though there are claims that the figure is closer to £3 million 11.  However, the CNHC is already struggling to balance its books. In order to become self-funding, the CNHC aimed to recruit 10,000 registered members within 2 years of opening, but to date they appear to have recruited just over 2,000. It is difficult to see the new coalition government bailing out the CNHC should it fail to become financially viable, particularly in the light of the recently announced £500 million cut in funding for quangos (quasi non-governmental organisations funded by taxpayers).

Many practitioners of eligible CAM therapies fail to see the point of the CNHC hence their reluctance to join, despite the modest registration fees. Homeopaths, one of the largest groups of CAM therapists, are noticeably absent from the CNHC register, having rejected an invitation to join. It appears, for example, that practitioners signing up with the CNHC are simply put on a list – they receive no services (such as insurance, professional support, CPD or promotion of CAM therapies) in exchange for their subscription fee. Supposedly, the CNHC exists solely for the ‘protection of the public’, yet (as is the case with western herbalists) there is an absence of evidence demonstrating a significant risk to the public from CAM therapists. The CNHC appears to be nothing more than an exercise in fleecing CAM therapists and building another layer of bureaucratic complication into their lives.

*At the end of April 2010, the FIH announced it was closing – a move apparently precipitated by a looming Scotland Yard investigation into fraudulent financial dealings that had left a £300,000 black hole in the charity’s 2008 accounts. The implications for the future of the CNHC by this turn of events are as yet unknown.

Herbal Medicine, quo vadis?

On 2 June 2010 a statement by the parliamentary under-secretary of state for health, Anne Milton, indicated that the coalition government was in no hurry to publish a report on the DH consultation 2009 or to reverse Andy Burnham’s stance on SR and the CNHC.12 Undoubtedly the EHTPA will once again engage in vigorous lobbying of the new Health Minister and encourage herbalists to do the same, but realistically SR for herbalists is unlikely to receive serious consideration by any UK government in the foreseeable future. In the current political context of drastic spending cuts, throwing money at SR for herbalists won’t be very high on the coalition government’s list of priorities.

After a decade of lobbying for state regulation and incurring substantial costs which have been borne by herbalists who can ill-afford them, what has the EHTPA delivered? Not the promised SSR or SR, but voluntary regulation (VR) – something herbalists already have. Further, the EHTPA must also take some responsibility for the creation of a herbal medicine education bubble by accrediting an unsustainable number of university courses. Three of these (including The Scottish School of Herbal Medicine) have recently closed and more are very likely to follow, particularly as the previous government cut £950 million from higher education spending. The EHTPA is supposedly dedicated to protecting and preserving the practice of herbal medicine from EU legislation, yet herbal medicine in the UK is more vulnerable than ever to the harmonisation policies of bureaucrats in Brussels. On a number of counts the EHPTA has failed to deliver.

The SR side-show of the last 10 years has, in our opinion, diminished western herbalists in the UK. The energy and financial resources put into the fight for SR has divided the profession and taken us down blind alleys. It has distracted us from our core task of healing patients in a way that strengthens the relationship between people and plants, and for many of us it has seriously compromised the joy of herbal practice. What will it take before herbalists in the UK dump the old hierarchies and start doing it for themselves?

Notes:

1. EHPA. (1999). Statutory State Registration for Herbalists: Mapping the Way Ahead. EHPA Circular.

2. DH. (February 2005). Statutory Regulation of Herbal Medicine and Acupuncture: Report on the Consultation.

3. DH. (May 2008). Report to Ministers from the Department of Health Steering Group on the Statutory Regulation of Practitioners of Acupuncture, Herbal Medicine, Traditional Chinese Medicine and Other Traditional Medicine Systems Practised in the UK.

4. Contrast this with the HMRWG report from 2003, which stated, ‘…unlike the other disciplines covered by the HPC herbal medicine is not well established in mainstream healthcare. Furthermore, the size of the HPC would make it difficult to ensure that each of the herbal medicine traditions were [sic] properly represented on council. Lastly, the HPC is a new organisation [it started operating in April 2002] with a heavy developmental agenda and already has a number of disciplines seeking membership. There is potential for overload which would not best serve the interests of the herbal medicine profession or the public…’ [DH. (September 2003). A Report from the Herbal Medicine Regulatory Working Group: Recommendations on the Regulation of Herbal Practitioners in the UK.]

5. EHTPA. (October 2008). Frankincense Newsletter.

6. DH. (July 2009). Extending Professional and Occupational Regulation.  The Report of the Working Group on Extending Professional Regulation.

7. http://www.telegraph.co.uk/health/healthnews/6720658/Doctors-abandoning-patients-over-herbal-medicine-claims-charity-boss.html & http://www.pulsetoday.co.uk/story.asp?storycode=4124485

8. Brown, P.S. (1985). The Vicissitudes of Herbalism in Late Nineteenth- and Early Twentieth-Century Britain. Medical History. 29: 71-92.

9. http://ipnosis.postle.net/pages/HPCPerspective0709.htm

10. http://www.a-r-h.org/Publications/Journal/sampleArts/Statutory%20regulation%20Karin%20Mont.pdf

11. ICNM Journal. (Spring 2009). A National Register – Is it the Way Forward? Vol. 3, Issue 3: 4-6.

12. http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100602/debtext/100602-0021.htm#1006037000001

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