In P.V.ManoharPanth vs. The State Bank of Hyderabad (31 January, 2014), the Court ruled that:
"No particular branch of medicine can arrogate to itself the sole privilege of exclusive expertise."
This means that mainstream medicine cannot arrogate to themselves supremacy in the healthcare industry. This also applies to the Alternative Medicine Practice and all other branches of medicine.
Also,in Poonam Verma vs Ashwin Patel, &Ors (10 May, 1996), the Supreme Court held that:
"Any person who does not know a particular system of medicine but practices in that concerned system will be held guilty of medical negligence."
This implies that the Court recognizes the practice of alternative medicine. Additionally, the Court holds the view that Alternative Medicine practitioners cannot be spared in malpractices. Alternative Medicine Practitioners should not misrepresent themselves as Medical Doctors and prescribe conventional drugs.
This article stems from the interesting documentary titled 'The Licensed Sex Predator' by Manasseh Azure Awuni, which has to do with one Alternative Medicine Practitioner Jonathan OheneNkunim and his facility, Nature's Hand Therapeutic Centre. Jonathan,indeed, had three licenses from the state regulatory agency; The Traditional Medicine Practice Council; that is charged with the power to regulate the industry.
We also read the many comments from the general public questioning the integrity of the Traditional Medicine Practice Council in issuing licenses to potential practitioners, including the requirements laid down by the Council for potential practitioners to get their licenses.
Practitioners of Alternative Medicine who do not abide by the rules of evidence-based practice may fall foul of the law. It is against this background that we intend to shed light on Alternative Medicine and the Law.
Alternative Medicine and Malpractice
There are many cases of malpractices against practitioners of Alternative Medicine globally. In Ghana, Jonathan's case happens to be the first one that has caught public attention. In the US, UK and India for instance, battles over alternative medicine are increasingly fought in the courts.
In the US, Stanislaw R Burzynski, a proponent of alternative cancer cures, was accused by a patient of deceitful practice and swindling her of nearly $100,000 (£63,000) by using "false and misleading strategies". Also in the US, a woman was awarded $7.4m (£4.7m) after suffering a stroke following the intake of a herbal supplement.
Also, 83-year-old Herbalist Timothy Morrow, who advised his victim's parents to treat their son with herbs instead of insulin just one day before his death was charged and faced up to two years in jail for wrong medical advice.
In R v Javanmardi(2019 SCC 54), a Quebec Naturopath was charged for criminal negligence for the death of a patient after giving nutrients intravenously.
Probably the biggest in alternative medicine industryis the settlement of CAD$12m (£7.4m) by the world's largest homeopathic manufacturer,Boiron, after a class action that was brought against it in Canada for selling homeopathic remedies under false pretenses.
Ian Freckelton, an Australian barrister and Professor of Law, has scrutinized alternative medicine from legal perspectives and also addressed a wide range of unorthodox therapies by evaluating selected legal cases from across the world. The treatments examined included:
Laetrile ("vitamin B17") Spirtual healing Magnetic healing Oxygen therapy Coffee enemas Colonic irrigation Topical application of sulphuric acid Ozone therapy High-dose vitamin C Live blood analysis Aqua Tilis Neck manipulation
From his point of view, the practitioners of alternative medicine who professed some of these therapies were found guilty of professional misconduct or negligence.
"It is the responsibility of the registered practitioner to abstain from engaging in unprofessional practice by obtaining genuinely informed consent from their patients.It is a criminal (and a disciplinary) offence under Australia's national regulatory scheme for registered health practitioners to engage in false, misleading and deceptive advertising, to use testimonials or purported testimonials about services or to create an unreasonable expectation of beneficial treatment. It is unprofessional conduct to provide treatment that is excessive, unnecessary or otherwise not reasonably required for the person's wellbeing."
He further advised practitioners to look at their professional obligations:
"By electing not to undertake treatment likely to be successful, or by refraining from orthodox clinical trials and instead proffering unscientific treatments, they are acting unprofessionally, regardless of whether they procure informed consent in that such conduct would be of a lesser standard than most of their colleagues and members of the public would reasonably expect of them. This issue is yet to be finally resolved by the courts and disciplinary tribunals. Generally, though, the theoretical distinction is not problematic. Contemporary health practice that involves the provision of assessments and treatments that are not justified by the relevant professional literature is usually accompanied by impoverished provision of information to patients and therefore by practice that has denied treatment options and thus been without informed consent."
Taking a cue from his assertion, the question now is how many practitioners of alternative medicine would survive if the legal principles outlined by Freckelton were strictly enforced in Ghana?
Legality of the System of Alternative Medicines
In The Council of Alternative system of Medicine &Anr. vs. state of west Bengal &Ors. 1991(2) CLJ 173, while considering the scope and effect of "Naturopathy", the Court held that:
"A system of medicine which is devoid of any therapy by chemicals or drugs, where the human body system is assisted to obtain a cure by controlling diet, the senses and breathing, does not contravene any statute."
The Legal position on the title "Dr" by Practitioners
In jurisdictions where there are legislations on Naturopathy, titles for practitioners are protected. It is therefore a crime to usesuch titles without graduating from four year Naturopathic Medical schools. However, in jurisdictions where there are no legislations, the titles for Practitioners are not protected by law. Hence, anyone could adopt such titles.
For instance, Section 13 of the Traditional Medicine Practice ACT, 575, Ghana stipulates that:
"The Minister, on the recommendations of the Board given in consultation with the Association, may prescribe by Regulations the titles to be used by practitioners based on the type of service rendered and the qualifications of the practitioners."
In the case of Sanjib Das vs. State of W.B. &Ors on 27 November, 2013, the Calcutta High Court held that person having obtained a Degree/Certificate/Diploma to practice Alternative medicine can prefix 'Dr.' or 'Doctor' or any other. Once they obtained such valid certificates they are entitled to practice Alternative Medicine. No law prohibits them from practicing Alternative Medicine.
In Ghana, titles of practitioners of Traditional and Alternative Medicine are prescribed by the Traditional and Alternative Medicine Practice Council of the Ministry of Health based on Act 575. Hence, titles being used by practitioners are governed by statute. There are many challenges:
i. The challenge has to do with whether the titles prescribed for these practitioners are based on their level of medical training and for how long is the training?
ii. What are the recognized medical schools accepted by the Council to provide the training for the practitioners?
iii. Is the curriculum based on the World Health Organization (WHO) benchmark?
iv. Is there a uniform curriculum for the different types of practices in Alternative Medicine in Ghana accepted or adopted by the Traditional and Alternative Medicine Practice Council (TMPC) of the Ministry of Health?
v. What is the minimum level of training a person has to undergo before licensure?
vi. How do foreigners acquire their licenses from the council? This is because, in the Conventional Medical sector, foreign trained Medical Doctors who return home are made to write the licensure exams but is this the case as pertains to alternative medicine sector in Ghana?
Another important question is whether one can claim to be a Doctor of Naturopathy without any educational training. One landmark case addresses this, in KalkisinhImanallahDuleray vs. State of Gujarat &Ors. (17 April, 2001).Thepetitioner professed to be a Practitioner under Articles 226/227 of the Constitution of India at the instance of the petitioner who professed to be a "Practitioner of Naturopathy".
The Court contended that as a simple Practitioner of a simple basic science in tune with nature, and professing to apply the principles of nature to the human body in order to maintain and restore good health, would not amount to "practice of medicine" within the meaning of any law applicable to such persons.
Thus, so long as a person strictly restricts himself to the application of the principles of nature, natural health and principles of naturopathy, without resorting to any other drugs, methods of diagnosis or cure by scientific instruments utilized in other medical systems of treatment, mere practice of naturopathy shall not be deemed to be practice of any system of medicine. It would, therefore, appear that the petitioner would be entitled to practice naturopathy, provided he sticks to this field and does not encroach upon any other field of treatment or cure, whereby it could be said or amount to practice of any system of medicine.
The Court further held that the only qualification claimed by the petitioner is that he is registered as a Member of the Indian Nature Cure Practitioners' Association. This name itself suggests that this is an association of persons who have come together, obviously for mutual benefit, and issue certificates of membership of the association.
However, such Certificate of Membership can only be to the extent that they are members of the Nature Cure Practitioners' Association, and nothing beyond that. Mere registration as a Member, or issuance of a certificate of membership of such an institution cannot possibly amount to acquiring any particular or specific qualification, as may be required under any other law for the time-being in force, and or to confer upon such a member a right to hold out, profess and declare to the world at large that he is a "Doctor". This would be misleading the public and would be a gross abuse to the science of Naturopathy as well. This is very interesting!
Certificate of Registration is different from Medical Training
Another interesting issue that the documentary raised was the Practitioner's educational background prior to the grant of his license by the Traditional Medicine Practice Council. Many are concerned about this development. The Traditional Medicine Practice Act 575 is silent on the educational or medical training of the practitioner before the board considers giving out license to practice.
For instance, Section 10(a) leaves room for ambiguity on adequate proficiency in the practice of traditional medicine. The question here is how the board justifies the adequate proficiency without clinical training evidence or academic training. The WHO prescribes about 1500 minimum hours on clinical training for two-year Naturopathy training and over 2,500 for four-year Naturopathy training.
InSri. Gopichandra S/O Yellappa vs. The State of Karnataka, on 13 August, 2013,the petitioner was found practicing Alternative Medicine in a backward village called Kirawatti in Uttara Kannada district. Therefore, the Registrar of Karnataka Ayurvedic and Unani Medical Practitioners Board, Bangalore, lodged first information with the Sub-Inspector of Old Hubli police station. The matter was investigated and the final report was filed for the aforestated offences.
"The petitioner is before this Court and he has sought quashing proceedings in C.C.No.790/2000, inter alia, contending that he is a bonafide medical practitioner and he has obtained certificate of registration from Indian Board of Alternative Medicines, Calcutta, and his certificate is further supported by a letter addressed by the legal practitioner viz., Mr.Nemal Chand Samanta, M.Com. B.A. LL.B., Advocate & Legal Advisor for Indian Board of Alternative Medicines, Calcutta.
The court held that:
"In the first place, this certificate of registration does not indicate that petitioner had undergone a medical training course or a medical certificate course or a diploma course in alternate medicine. In the second place, the registration certificate bears invisible seal of the Registrar of Board of Alternative Medicines, Calcutta. One may find it very difficult to locate the Registrar going by the address furnished in the blurred seal. In the third place, the legal advisor has no business to certify legality and validity of practice of alternative medicines by the petitioner. In the fourth place, petitioner is not a registered medical practitioner with the Karnataka Ayurvedic and Unani Medical Practitioners Board. In the circumstances, contention of the petitioner that the final report does not constitute offences alleged against him cannot be accepted. The petition is dismissed. It is made clear that the trial Court while deciding the case on merits shall not be influenced by the observations made herein".
Accepting Medical certificates from only Medical Doctors
One landmark case addresses this discriminatory act. In P.V. Manohar Panth vs. The State Bank Of Hyderabad (31 January, 2014), the Court rules that:
"considering the nature of the medical certificate produced by the petitioner, this Court finds an important, as well as interesting aspect whether the employees in government establishments or public sector undertakings, the respondent bank being one, are required to produce medical certificates issued only by the allopathic doctors, to the exclusion of all other doctors practicing alternativebranches of medicine.
In this regard, insofar as the Allopathic Doctors are concerned, the Indian Medical Council Act, 1956, provides for the constitution or reconstitution of the Medical Council of India, and the maintenance of the Medical Register. In fact, once an allopathic doctor with a basic qualification of M.B.B.S, registers himself with MCI, he gets certain privileges under Section 27 of the said Act, which is as follows: Privileges of Persons who are enrolled on the Indian Medical Register:
Subject to the conditions and restrictions laid down in this Act, regarding medical practice by persons possessing certain recognized medical qualifications, every person whose name is for the time being borne on the Indian Medical Register shall be entitled according to his qualifications to practice as a medical practitioner in any part of India and to recover in due course of law in respect of such practice any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled."
The Court further held that in the first place the respondent bank had not produced any regulation or administrative instruction invalidating the medical certificates issued by the registered Medical Practitioners of the Alternative branches of Medicine. On the other hand, declaring general fitness on examination of a supposedly healthy person is different from treating a patient of general maladies and ailments. The Court held:
"No particular branch of medicine can arrogate to itself the sole privilege of exclusive expertise. Thus, a person cannot be curtailed from taking recourse to alternative medicine. In such an event, if a person avails himself of treatment of any branch of alternative medicine such as ayurveda or homoeopathy, putatively holistic, he can only be expected to produce certificate issued by that treating Doctor alone. As such, in my considered opinion, the stand of the respondent bank cannot be sustained to the effect that only of Medical Certificate issued by a Registered Medical Practitioner in allopathy should be taken into account but no other certificates."
Though the documentary is disheartening to the industry, we believe it is time for the Traditional Medicine Practice Council to use this opportunity to streamline the system to regain public confidence.We further call on the government to use this opportunity to pass the Traditional and Alternative Medicine bill. Additionally, this also serves as a warning to all practitioners of Alternative and Traditional Medicine in the Country to exhibit high professionalism as they cannot escape the long arm of the law. The Council with immediate effect; set standards for the profession with minimum requirements to get license in Ghana.
About the Authors
Dr. Raphael NyarkoteyObu, an honorary Professor of Naturopathy, Nyarkotey College of Holistic Medicine and a final year law student. LawrenciaAggrey-Bluwey is an Assistant Lecturer with the Department of Health Administration and Education, University of Education, Winneba, currently a PhD student in Health Policy and Management at the University of Ghana Business School.
Source: Dr. Raphael NyarkoteyObu