The Australian Medical Board (AMB) on 15 February 2019 issued a Consultation Paper for “complementary and unconventional medicine and emerging treatments” and called for consultation.

If implemented, the proposals in the paper have potential to restrict and prohibit some currently available medical treatments and methodologies, particularly in the area of proactive and preventive care. In one way, I see the AMB action as using a sledgehammer to crack a nut.

Initially, the period for consultation was April 2019 but, after some representations to AMB, the period has recently been extended until 30 June 2019.
The consultation paper relevant discussion paper and draft guidelines are available for download at https://www.medicalboard.gov.au/News/Current-Consultations.aspx .

The AMB operates under the Australian Health Practitioners National Law. The AMB registers medical practitioners and medical students, develops standards, codes and guidelines for the medical profession, investigates complaints about medical practitioners, conduct hearings in respect of complaints and sometimes refers serious matters to the relevant Tribunal for hearing, and approves accreditation standards and accredited courses of study.

Increased Regulation Complementary and Unconventional Medicine

From how I read material on the AMB site, AMB is considering options for “clearer regulation of medical practitioners who provide complementary and unconventional medicine and emerging treatments”.

In that sense, can it not be said to be targeting one set of practitioners?

I’m not aware of what particular complaints were ever raised with AMB to create in the AMB mind a need for consideration to be given to protect patients “who seek complimentary and unconventional medicine and emerging treatments” but it is important to note that the AMB acknowledges that there “is not yet widely agreed definition of complementary and unconventional medicine and emerging treatments”.

AMB presents two options in support of its proposal.

Both rely on adding to the code of conduct affecting medical practitioners a definition along the lines of ‘..any assessment, diagnostic technique or procedure, diagnosis, practice, medicine, therapy or treatment that is not usually considered to be part of conventional medicine, whether used in addition to, or instead of, conventional medicine. This includes unconventional use of approved medical devices and therapies’.

The options are:-

“Option 1 – Retain the status quo of providing general guidance about the Board’s expectations of medical practitioners who provide complementary and unconventional medicine and emerging treatments via the Board’s approved code of conduct.

Option 2 – Strengthen current guidance for medical practitioners who provide complementary and unconventional medicine and emerging treatments through practice-specific guidelines that clearly articulate the Board’s expectations of all medical practitioners and supplement the Board’s Good medical practice: A code of conduct for doctors in Australia.”

Both rely upon the definition mentioned above.

AMB has called for submissions on its proposals.

In my view, both are unnecessary.

Option 1 just creates some form of subset of medical practitioners who are somehow inferior or more risky and require additional regulation, despite the additional training they undertake, and option 2 is totally unacceptable as potentially prejudicial to patients.

From what I can see, to date, there was, prior to launch of the proposals, very little, if any, consultation with stakeholders (affected alternative and unconventional complementary medicine practitioners nor, more importantly, patients).

The idea of the AMB seeking to maintain standards in the interests of patient safety goes without saying.

However, I have issues with overreach, whether intended or not, and unintended consequences for patients of the proposal.

Inhibiting Prudent, Proactive Preventive Health Care

The proposals have real potential to inhibit the right of members of the public at large to undertake prudent, proactive preventive health care under the supervision on professionally trained integrative and or functional medical practitioner, with a view to maximising their long-term health and functionality, and, in doing so, reduce their risk of exposure to long-term institutional care and abuse of the type presently the subject of the Royal Commission into Aged Care.

The cost saving to the public and private purse, long-term, of appropriate integrative and/or functional medical advice can only be guessed at.

The benefit, monetary, tangible and intangible, to relevant members of the public at large can also not be under estimated.

Overreach – Hammer to Crack a Walnut?

Australia is now a multicultural society. Its broader medical services now include views and methodologies from a range of cultures, not simply medical science in some traditional narrow sense.

At one end of the scale, arguably the proposal under consideration has potential to be argued to operate in a racist manner to the disadvantage of those who make use of some of those medical methodologies and beliefs.

That might include “Chinese Medicine”, “indigenous bush medicine” and others, some of which are already adequately the subject of regulation under the Australian Health Practitioners National Law.

One has to query whether the proposal at hand does not, long-term, also have potential, if not intent, to threaten those types of medical methodology and treatment which form part of integrative and or functional medicine and frustrate the ability of medical practitioners providing integrative and or functional care to service the existing and developing needs of patients in a dynamic way.

From my own experience, various General Practitioners are quite prepared to use complementary medicine hand-in-hand with traditional medicine.

The proposals at hand, in the present form, seems to be putting that facility at risk.

The very concept of the regulation in the manner proposed seems to me to be a potential reversion to old-style trade union “closed shop” attitudes.

In that sense, one is reminded of stories, not too long ago, of medical practitioners being ridiculed for radical action now commonly embraced. That included Barry Marshall whose then controversial views on stomach ulcers turned treatment on its head [ The Doctor Who Drank Infectious Broth, Gave Himself an Ulcer, and Solved a Medical Mystery ].

A Problem with Proposed Definition

The proposal at hand involves the insertion into the relevant code of a definition like: –

Complementary and unconventional medicine and emerging treatments include any assessment, diagnostic technique or procedure, diagnosis, practice, medicine, therapy or treatment that is not usually considered to be part of conventional medicine, whether used in addition to, or instead of, conventional medicine. This includes unconventional use of approved medical devices and therapies”

The Code into which I understand the definition is to be inserted has no corresponding definition of “conventional medicine”.

As is obvious to almost anyone, the problem with the proposed definition, in the absence of a corresponding definition of “conventional medicine” is that potentially anything not main stream (whatever that might be) could, depending on the exercise of what appears to be a profoundly wide and unfettered discretion by those administering the Code, be excluded and rendered unlawful.

Medical practitioners, including those presently providing integrative and or functional medical care services, could be excluded from providing a range of types of diagnoses, services, treatments and/or from practice.

Most importantly, welfare of patients and members of the public who choose to take prudent, proactive, preventive steps to maximise their long term health and functionality, could be put at risk by too narrow a view taken by “traditional medicine”.

The proposal being considered by AMB is, in my view as a legal draftsman, a highly flawed option from a legal perspective.

Who does it protect? What does it do for patients?

With the famous Mayo Clinic acknowledging the benefits of “integrative care”, the AMB should be reconsider the tenor, tone, nature and wording of its current proposals. The current proposal lends themselves to the suggestion that it seeks more to protect “those in the tent” and their practices, than it does the needs of patients and the preparedness of medical practitioners to adapt to new methodologies and the desire of patients to avoid avoidable disease.

It seems to do so, to me, without proper respect to the medical needs of the many “patients” who have been and continue to be let down by “conventional medicine and treatments” and conventional medical practice, too often frustrated by time allowed under Medicare rules for consultations.

The AMB by making this proposal can be argued to be demonstrating that it is unable or unwilling to maintain pace with current trends and practices in the dynamic field of medical diagnosis and proactive and preventative care of the type provided by integrative and functional medical practitioners, so increasingly important to so many patients.

In my view the AMB has no right, by means of these inappropriately drafted proposals, properly to prevent a person from taking proper proactive and preventative care under the guidance of a medical practitioner having training in the field. This is especially so when being paid for outside the Medicare system, as is now available from “integrative” medicine.

Alternatives Can Often Be Beneficial

Examples within my knowledge include patients let down by “traditional unconventional” medical practice such as: –

• people at risk of dementia being denied access to integrative medical practitioners who, shock horror can and do treat those with or at risk of developing dementia with diet and vitamins with measurable success. See Reversal of Cognitive Decline: 100 Patients. The suggestion that proactive preventive action to allow people to lead a long and healthy life might be frustrated can only be seen as protective of traditional reactive medicine. This potential prohibition of proactive and preventive care that supports both people with or at risk of suffering various types of dementia puts patients and their carers/families at undue risk and trauma

The very terminology used in the discussion paper’s reasoning, to me as a lawyer, smacks of a possible improper exercise of powers by the AMB [see Roads and Maritime Services v Desane Properties Pty Limited [2018] NSW CA 196].

The terminology set out in the discussion paper and its persistent references to cost issues suggest to me an intent to more preserve the traditional medical status quo [? and costing regime under Medicare?], rather than involve an objective view of safe medical practices some Australian medical practitioners have been using for many years, especially those based on scientifically supported diagnostics.

Australian medical practitioners have for many years challenged traditional medical thinking.

If they did not, there may not have been medical progress.

One need think no further than the work of Alexander Fleming, Fiona Wood, Victor Chang and others.

Many of those who challenged the medical status but were leading edge scientists.

Some of the alternative and complementary therapies now at risk are traditional and/or culturally based. Those provided by reputable doctors still depend on careful diagnostics.

Some might be seen as going back to basics and treating a patient holistically, rather than treating the patient’s symptom by reference to a 10 minute consultation with a general practitioner, but why should that be a problem?

There are any traditional Australian indigenous “bush” therapies which could be prohibited pursuant to the proposal, would be rightly seen as stealing from indigenous culture in a calculated and arguably racist way.

Many who have found traditional medical practice has failed them and have found relief/cure/benefit by resort to various forms of Complementary and unconventional medicine.

From the terminology used in the discussion paper, the proposal is at hand seems to me to be unduly driven by an attempt to save cost to the public purse [including the private health funds].

The proposal is misconceived and flawed and has potential to put people in a position of having to endure years of trauma which could otherwise be avoided, reduced or significantly delayed.

Submissions

The AMB has an obligation to maintain standards for proper medical practice but is not the sole font of medical wisdom.

If you, or a member of your family, a person who has found benefit in alternative therapies you may find it prudent to make submissions to the AMB with a view to withdrawing the proposal.

Further information can be obtained at:-

• http://www.integrativemedicinefreedomofchoice.com/

Submissions can be sent to medboardconsultation@ahpra.gov.au .

Submissions should not mention particular doctors. Submissions could address one’s beneficial personal experience of “Complimentary and Unconventional Medicine” and/or address the 11 particular points raised by AMB at pages 3 and 4 of its Discussion Paper.

Submissions should also be sent to Health Ministers and local members of Parliament, both State and Federal.

If you would like me to send a template submission format, please feel free to contact me at infor@gregdross.com.au or ross@eakin.com.au

The text of the paper is only a summary and discussion of particular facts and principles. It is not to be taken as legal, medical or commercial advice as to any particular factual circumstances.