Eakin McCaffery Cox Partner Gregory Ross discusses the Australian Medical Board’s apparent crackdown on doctors providing Alternative Medicine and Therapies. 
Introduction
The Australian Medical Board (AMB) is considering options for “clearer regulation of medical practitioners who provide complementary and unconventional medicine and emerging treatments”, and has issued a Consultation Paper on its proposals and called for submissions.
AMB proposals have potential to restrict and prohibit some currently available medical treatments and methodologies, particularly in the area of proactive and preventive care.
Submissions can be made until 30 June 2019. The discussion paper and draft proposals are available for download at the AMB’s site.
Increased Regulation Complementary and Unconventional Medicine
AMB acknowledges that there “is not yet widely agreed definition of complementary and unconventional medicine and emerging treatments” and presents two options in support of its proposal:-
“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.”
To me, both are unnecessary as discriminatory and, the second is potentially prejudicial to patients. Maintaining 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 proposals.
Inhibiting Prudent, Proactive Preventive Health Care
The proposals have real potential to inhibit the right of the public to undertake prudent, proactive preventive health care under the supervision of professionally trained integrative and or functional medical practitioners.
The cost savings and benefits of proper proactive care are inestimable.
Overreach – Hammer to Crack a Walnut?
Australia’s broader medical services now include views and methodologies from a range of cultures, not simply medical science from some traditional narrow sense.
I fear the current proposals have potential, if not intent, to threaten integrative and or functional medicine and so prejudicing the ability of medical practitioners providing that care to service the existing and developing needs of patients in a dynamic way.
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.
A Problem with Proposed Definition
The proposals involve a new definition, such as: –
“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 has no corresponding definition of “conventional medicine”.
The problem with the proposed definition is its laxity. In the absence of a corresponding definition of “conventional medicine, it just creates uncertainty. Potentially, anything not main stream (whatever that might be) could 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 wordsmith, highly flawed legally.
Who does it protect? What does it do for patients?
With the Mayo Clinic acknowledging the benefits of “integrative care”, the AMB should be reconsider the tenor, tone, nature and wording of its current proposals. They lend themselves to the suggestion that AMB seeks more to protect the status quo, than the needs of patients.
The AMB proposals seem to me to lack 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.
Do not the AMB proposals demonstrate 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, so increasingly important to so many patients?
In my view, AMB has no right, by means of these inappropriately drafted proposals, 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 be beneficial
An example within my knowledge is patients let down by “traditional” medical practice who are at risk of dementia being denied access to integrative medical practitioners who can and do treat those with or at risk of developing dementia with diet and vitamins with measurable success.
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 or families at undue risk and trauma
The terminology set out in the discussion paper and its persistent references to cost issues suggest, to me, an intent to better preserve the traditional status quo – and, query the relevance of the fee regime under Medicare – rather than an objective view of safe medical practices based on scientifically supported diagnostics.
Australian medical practitioners have, for many years, challenged traditional medical thinking. Had they not, there may not have been medical progress. Some might be seen as going back to basics and treating a patient, rather than treating the patient’s symptom by reference to a 10 minute consultation with a general practitioner.
Many who have found traditional medical practice has failed them, have found relief, cure and/or benefit by resort to various forms of complementary and unconventional medicine.
Submissions can be made
If you, or a member of your family, is 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. Submissions should not mention particular doctors.
Submissions could address one’s beneficial personal experience of “Complementary and Unconventional Medicine” and/or address the 11 particular points raised by AMB at pages 3 and 4 of its Discussion Paper.
Disclaimer: 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. Visit the author’s blog for the long version of this article.
Gregory Ross, LLB, has been a Partner at Eakin McCaffery Cox Lawyers since 2010 and was Special Counsel at the firm between 2001 and 2008. Prior to his return as Partner he was Special Counsel at Shaw Reynolds Bowen & Gerathy and has had a part-time appointment with the Independent Commission Against Corruption. Gregory’s legal practice reflects his many years of legal, commercial, policy and probity experience in NSW and beyond. As an Accredited Specialist in Government and Administrative Law, Gregory advises government bodies to develop legislation, contracting and process arrangements. He also leads the firm’s Intellectual Property practice, advising on issues including copyright, licensing, trademarks and confidentiality agreements. He advises on contracts with entities and enforcement of IP rights in India. Contact Gregory at ross@eakin.com.au or connect via LinkedIn 
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