Voluntary self-regulation of complementary and alternative medicine practitioners.

• Author: Lunstroth, John

"The urge to regulate is stronger than the sex drive." (1)

1. INTRODUCTION

   Complementary and alternative medicine (CAM) has been practiced and used in this country continuously since the nineteenth century. (2) All of the forms of care present then are still present today including botanical medicine ("Thomsonians"), health food ("Grahamites"), homeopathy, hydrotherapy, healing touch ("mesmerists"), osteopathy, naturopathy, chiropracty, and Christian Science. (3) In the 1920s and early 1930s, three studies reported CAM usage of thirty-four percent, eighty-seven percent, and ten percent. (4) Thirty percent of those born before 1945 use CAM compared with about one-half of those born between 1945 and 1964 and seventy percent of those born between 1965 and 1979. (5) Although there may have been a period of diminished use of CAM in the 1930s and 1940s, there has been a continual increase in usage since the 1960s. (6)

   There are academic and social definitions of CAM, (7) but in this Article I use a legal definition. A Minnesota statute states:

   "Complementary and alternative health care practices" means the broad domain of complementary and alternative healing methods and treatments, including but not limited to: (1) acupressure; (2) anthroposophy; (3) aroma therapy; (4) ayurveda; (5) cranial sacral therapy; (6) culturally traditional healing practices; (7) detoxification practices and therapies; (8) energetic healing; (9) polarity therapy; (10) folk practices; (11) healing practices utilizing food, food supplements, nutrients, and the physical forces of heat, cold, water, touch, and light; (12) Gerson therapy and colostrum therapy; (13) healing touch; (14) herbology or herbalism; (15) homeopathy; (16) nondiagnostic iridology; (17) body work, massage, and massage therapy; (18) meditation; (19) mind-body healing practices; (20) naturopathy; (21) noninvasive instrumentalities; and (22) traditional Oriental practices, such as Qi Gong energy healing. (8) Similar detailed language is also used in a Rhode Island statute, (9) but California adopted a more general approach, defining it in the negative. (10) The statute refers to legislative findings that

   complementary and alternative health care practitioners ... are not providing services that require medical training and credentials.... [and further] that these nonmedical complementary and alternative services do not pose a known risk to the health and safety of California residents, and that restricting access to those services due to technical violations of the Medical Practice Act is not warranted. (11) The statute itself is an exemption from the Medical Practices Act for persons who provide a statutorily defined disclosure statement and who do not perform any of a short list of controlled acts. (12) The legal definition of CAM therefore includes both a general component based on safety--the fundamental policy justification for all public health regulation--as well as a non-exclusive list of specific, safe, unregulated health care modalities that are more or less found widely in contemporary American society.

   Next to allopathy, (13) homeopathy was once the most well-known and successful school of medicine until the allopaths consolidated regulatory control over the practice and professions of medicine in the first two decades of the twentieth century and used it to eradicate as much of the competition as they could. (14) "In 1898, homeopaths had 9 national societies, 33 state societies, 85 local societies and 39 other local organizations, 66 general homeopathic hospitals, 74 specialty homeopathic hospitals, 57 homeopathic dispensaries, 20 homeopathic medical colleges, and 31 homeopathic medical journals," (15) and in 1902, there were 15,000 practitioners. (16) By 1980 there were 128 homeopaths and no homeopathic hospitals. (17)

   I use homeopathy to illustrate how existing regulation of health care providers works for both licensed and unlicensed CAM providers. The effect of allopathic control of laws regulating the practice of medicine has resulted in a patchwork of restrictive or ambiguous laws that cover CAM providers that vary from state to state. (18) The regulatory climate combines with the low number of practitioners to make legislative changes difficult; however, without regulatory changes it is hard for communities of practitioners--especially homeopaths--to grow. In this Article, I recommend that homeopaths and other similarly situated practitioner groups organize on a state-by-state basis around a code of conduct as a means to counteract divisive and restrictive laws as well as internal disputes to achieve solidarity.

   In Parts I and II, this Article describes homeopathy and the regulatory environment in which it finds itself. The authority of the state to regulate health care providers is part of its police power to protect the public health. Accordingly, Part III addresses the concept of safety and related concepts in the provision of health care. This Article then briefly identifies different approaches to the regulation of occupations, and then looks specifically at existing regulation of health care professionals. First, this Article examines the monopoly the conventional medical profession holds, as it is one of the primary impediments to the growth of other health professions. Then, this Article examines a constitutional argument against exclusive, universal scope of practice statutes. In Part IV, the response of the Health Freedom Movement (19) to the existing regulatory scheme for health care professionals is discussed. In Part V, this Article discusses options for the community of practitioners of homeopathy. This Article then concludes by stating that voluntary self-regulation around a code of conduct is the most viable alternative for homeopathy--and other unregulated CAM modalities--in the context of an exemption from the medical practice acts that is contingent on a disclosure statement to compensate for informational asymmetries in the health care market.

   Parts III and IV of this Article also provide a framework for looking at how information is related to safety: the basis for regulation of health care providers. If the modalities themselves are safe, then the only danger is informational. This Article applies ethical principles to a safety analysis in both the social order (medicine and law) and the economic order, concluding reform of scope of practice laws would be best for collective and individual good and suggesting that the principles developed in the paper for analyzing safety issues can be applied more widely in analyses of allocation of resource problems in the health care system.

   Annex A is a model code setting up a voluntary self-regulation scheme for CAM practitioners that is intended not only to legitimate CAM practitioners, but to foster integration of CAM practitioners into the existing health care infrastructure.

2. ABOUT HOMEOPATHY

   Homeopathy is a school of medicine (20) now referred to as a "whole medical system[]" by the National Institutes of Health Center for Complementary and Alternative Medicine. (21) It is a "complete system of medical theory and practice" (22) that was more or less fully developed prior to the theory and practices of allopathic medicine. (23) Homeopathy has also been characterized as a professionalized health care system with its own theory of health and disease, schools and standardized curricula to teach its concepts, delivery system of a network of practitioners, United States Food and Drug Administration (FDA) federally regulated medicines and pharmacies, regulations in several states, social and professional structures and expectations, and national certification and school accreditation functions. (24) It has grown several hundred percent in recent years. (25)

   The distinction between homeopathy and other CAM modalities is important. Homeopathy, like traditional Chinese medicine and Ayurveda, is a complete system of medicine. In this sense it is unlike reiki and other techniques and methods referred to in the Minnesota statute. (26) It is a drug-based system with extensive literature that is predominantly practiced by physicians licensed in conventional medicine. A shortcoming of the legal definition of CAM is that its measure of demarcation--from allopathic medicine--is safety. This is correct and serves the general public health purpose but it does not recognize either the public health enhancements that come from collectives of practitioners--such as continuing education and a code of conduct--nor does it recognize that homeopathy is not a technique that can be learned in a short period of time. To be sure, some acute prescribing can be learned easily, but it takes years of technical training and practice to acquire the skills necessary to utilize the full scope of its power in all types of disease, especially chronic diseases.

   Homeopathy was developed by Samuel Hahnemann, M.D. (1755-1843) over a period of about fifty years. (27) In 1790, having become discouraged with the often violent and dangerous medical practices of his time, Hahnemann was translating a work of the eminent Edinburgh physician William Cullen from English to German. (28) Cullen addressed the medicinal power of Cinchona bark--also known as Cortex Peruvianus--to cure malaria over the space of some twenty pages and concluded its effect was due to it being a stomach tonic by stating, "I have endeavoured [sic] to explain, in my first outlines of practical medical science, that the bark in this instance acts through its tonic effect on the stomach, and I have found nothing in any writings which could make me doubt the truth of my statements." (29)

   Hahnemann attacked this line of thinking vigorously and in the ensuing empirical activity he discovered the principles of homeopathy:

   By combining the strongest bitters and the strongest astringents we can obtain a compound which, in small doses, possesses much more of both...