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Healthy people - healthy wildlife

Proceedings of the second Australian Symposium on traditional medicine and wildlife conservation
Melbourne Australia, March 1999


Occupational Regulation of Chinese Medicine in Victoria

Anne-Louise Carlton
Project Manager
Health Workforce Section
Public Health and Development Division
Department of Human Services
Victoria

Overview

This paper presents work by the Victorian Department of Human Services to review the practice of traditional Chinese medicine (TCM) in Australia and establishes a system of occupational regulation of the TCM profession. This paper presents:

Background

Traditional Chinese medicine (TCM) has a history of over 2,000 years in China. Its use is now expanding rapidly in most Westernised countries. In August 1995, the Victorian Department of Human Services started a review of the practice of TCM. The purpose of the review was to assess the need, if any, for statutory registration of TCM practitioners and regulation of Chinese herbal medicines.

Health practitioner registration is a power which rests with state and territory governments. Pressure to examine the practice of TCM in Victoria arose from:

The first stage of the review was completed with the publication, in November 1996, of the research report Towards a Safer Choice: The Practice of Traditional Chinese Medicine in Australia. The purpose of the research was to investigate the risks and benefits associated with the practice of TCM, the nature of the TCM workforce, and the need, if any, for legislative regulation of TCM practice.

The second stage during 1997-98 involved release of a discussion paper and conduct of an extensive national public consultation on options for regulation of the profession of Chinese medicine. The second stage was completed with the publication of the Victorian Ministerial Advisory Committee’s report Traditional Chinese Medicine: Report on Options for Regulation of Practitioners. All Australian Health Ministers agreed at their July 1998 conference for Victoria to take the lead in developing legislation to provide for the regulation of the Chinese medicine profession.

The third stage has commenced with implementation of the recommendations of the Ministerial Advisory Committee’s report. This includes preparation of a proposed Chinese Medicine Registration Bill for consideration by the Victorian Parliament in its Autumn or Spring sessions 1999. If passed, the new Act should be in force during the year 2,000 and will:

It is hoped that it will also provide a model for other state and territory governments to draw on in order to enact legislation to regulate Chinese medicine practitioners in their jurisdictions.

Recommendations of 'Towards a Safer Choice - Stage 1'

The research report Towards a Safer Choice: The Practice of Traditional Chinese Medicine in Australia investigated and reported on seven main areas:

  1. the regulatory frameworks in China, other countries, and all states of Australia;
  2. the profile of the TCM workforce in Victoria, NSW and Queensland including the organisations that represent practitioners;
  3. the profile of patients using TCM;
  4. the risks and benefits of TCM;
  5. the nature of the links and referral networks between practitioners of TCM and other health care practitioners;
  6. the nature of TCM education in Australia and China; and
  7. the adequacy or otherwise of the current state regulatory frameworks.

The report provided the first comprehensive view of the practice of TCM in Australia. The Executive Summary which includes the key findings is available free of charge from the Victorian Department of Human Services. A copy of the full report can be purchased from University of Western Sydney - Macarthur.

The report also included a summary of issues associated with use of endangered species in Chinese herbal medicines. It stated that the Chinese materia medica includes medicines made from animal products, some from parts of endangered species. The use of rhino horn, tiger bone and deer musk as medicinal preparations, has placed a significant strain on these species and contributed to the reduction of their numbers to critical levels (Callister and Bythewood 1995).

Appendix 14 of Towards a Safer Choice lists animal species used in Chinese medicine which are threatened with extinction and listed in CITES Appendix 1. They include various types of bear, elephant, leopard, monkey, musk deer, rhinoceros, seal, tiger and crocodile. Despite efforts to introduce stricter controls, use of many of these substances is culturally ingrained and considerable international effort is required to limit their usage.

The use of preparations containing endangered species in Australia has continued despite becoming a signatory to the CITES. Nearly 43,000 units of Chinese Medicine products claiming to contain bear, leopard, musk, rhinoceros and tiger were seized by the Australian government between July 1991 and March 1995 (Callister and Bythewood 1995).

Some TCM professional associations including the Australian Chinese Medicine Education and Research Council (ACMERC) have clear policies that condemn the use of endangered species of both animals and plants and promote the use of appropriate substitutes.

Viable alternatives to many endangered species used in Chinese Medicine do exist and extensive work is being done to identify the most appropriate substitutes (Bensoussan and Myers 1996).

The report referred to difficulties identified by TRAFFIC Oceania with enforcement aimed at stopping illegal imports of TCM containing endangered species and the failure to adequately control possession and sale of such items once in the country.

The report made the following recommendation:

In the formation of any legislative act providing for occupational regulation of TCM practitioners, consideration be given to the need of appropriate penalties for practitioners trading in, prescribing or providing medicines or raw products containing CITES Appendix 1 - listed endangered species.

Occupational Regulation of Health Practitioners

At present, there are no statutory registration provisions which specifically govern the practitioners of Chinese medicine, that is, there is no act of Parliament which requires Chinese medicine practitioners to be registered, similar to registration requirements for medical practitioners, nurses, physiotherapists, pharmacists, podiatrists, osteopaths, chiropractors, psychologists and dentists.

There is an established model of health practitioner registration in Victoria as there is in other states and territories. The Victorian model was first introduced with the passage of the Nurses Act 1993 and the Medical Practice Act 1994. Between 1994 and 1998, five revised health practitioner registration acts have been passed in Victoria, each incorporating the model provisions with some updated provisions. The Physiotherapists Registration Act 1998 is the most recent health practitioner registration act passed and provides the most up to date provisions.

Powers and Functions of Health Practitioner Registration Boards

In Victoria, each regulated health profession has a registration board established under a state act of Parliament. These boards are independent of Government, and are incorporated so as to avoid personal liability for board members. Membership consists of a majority from the profession being regulated. Victorian registration boards are required to consult the Victorian Minister for Health and take notice of his views, but the Minister cannot direct the board. Boards are self-funding, and are responsible for setting their own registration fees and meeting all their own expenses, such as renting premises, hiring staff and paying legal counsel.

Under the Victorian model, the main powers of health practitioner registration boards are as follows:

Subject to mutual recognition principles, health practitioner registration boards in general have powers to register practitioners who:

Registration boards have the power to temporarily, provisionally, or conditionally register a practitioner or to grant a restricted registration. This allows additional flexibility in registration, for example with short-term registration of visiting overseas lecturers.

Key Features of the Victorian Health Practitioner Registration Model

Appendix 1 of the Victorian Ministerial Advisory Committee’s Report on Options for Regulation of Practitioners provides further detail on the standard model of health practitioner registration, including definitions of 'unprofessional conduct' and the complaints and disciplinary procedures.

The key features of Victorian model are as follows:

Key Features of the Proposed Chinese Medicine Registration Act

It is expected that the Victorian Cabinet will shortly provide approval in principle for the drafting of a new Chinese Medicine Registration Bill, to be considered by the Victorian Parliament in its Autumn sessions 1999. It is expected that this Act, if passed, will be implemented during the year 2000 and will provide a model for other state and territory governments to follow.

The key features of the proposed new Act are as follows:

Regulation of Use of Endangered Species via Occupational Regulation

In drafting the new Victorian Chinese Medicine Registration Bill, it is important to establish how the new occupational regulation system will interact with and reinforce the Commonwealth efforts to regulate importation and possession of Chinese herbal medicines which contain endangered species. There is potential for an occupational regulation system such as that proposed in Victoria to have a significant impact to reduce the prescribing and dispensing of such Chinese herbal medicines. Below is an outline of some of the issues:

The Commonwealth Wildlife Protection Act

The Commonwealth Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Wildlife Protection Act) is the legislative basis for conservation-oriented controls on the export and import of wildlife and wildlife products. The Wildlife Protection Act controls the export of Australian native animals and plants, and fulfils Australian legislative requirements as a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Wildlife Protection Act also controls the import and export of certain plants and animals, and products derived from them. The species under CITES control are listed in three Appendices and also included in the Schedules to the Wildlife Protection Act.

The offence provisions of the Wildlife Protection Act of most relevance to practitioners and dispensers of Chinese herbal medicines are:

To date it is understood that there have been no prosecutions or breaches of the Wildlife Protection Act that involve illegally imported traditional medicine products containing material from endangered species. The major impediment has been that current forensic technology is unable to prove beyond reasonable doubt that the traditional medicines contain material from endangered species as claimed on their packaging (Department of the Environment and Heritage Regulation Impact Statement for the Wildlife Protection (Regulation of Exports and Imports) Amendment Bill 1998.

The amendments currently before the Federal Parliament address some of the evidentiary problems that have arisen with attempts to prosecute under the above provisions:

For a prosecution to be successful under the current legislation, it must be proved beyond reasonable doubt that the product does contain an endangered species. .... the proposed amendments will enable a prosecution to be successful on the basis that a product is represented to contain material from an endangered species, and as such will overcome forensic problems..... by deeming that things which are deliberately represented (for example by their packaging) to be or to contain endangered species, are covered by the Wildlife Protection Act.

There are a number of ways in which the proposed Chinese Medicine Registration Act might reinforce and strengthen the enforcement of the Commonwealth legislation. They are as follows:

Unprofessional Conduct Powers

The role of a Chinese Medicine Registration Board will be to regulate professional standards of Chinese medicine practitioners and dispensers. Under the standard definition of 'unprofessional conduct', it is likely that a practitioner found guilty of the above offences under the Commonwealth’s Wildlife Protection Act would also be found guilty by the Board of unprofessional conduct.

Under the proposed Victorian legislation, the Chinese Medicine Registration Board will have powers to investigate and prosecute practitioners for unprofessional conduct. Any party, including a patient, another practitioner, or Wildlife Australia may make complaints to the Registration Board.

On receipt of a complaint, the Board would be empowered to:

Sanctions available to the Board include issuing a caution or reprimand to the practitioner or dispenser, imposing a fine, attaching conditions to a practitioner or dispenser’s registration, or, in serious cases, deregistration. Deregistration is likely to be used only in extreme cases since it in most instances will involve deprivation of livelihood.

Such action by the Board to investigate an individual practitioner and conduct a hearing under the proposed Chinese Medicine Registration Act could occur before, during or after prosecution by the Commonwealth under the Wildlife Protection Act, but may sensibly occur after the outcome of an action under the Commonwealth legislation is known. The decision by the Board to defer its inquiry would most likely be made in consultation with Wildlife Australia who are responsible for administering the Commonwealth legislation.

A finding of not guilty under the Wildlife Protection Act would not necessarily prevent a Chinese Medicine Registration Board from finding a practitioner guilty of unprofessional conduct, since the necessity to prove that the medicine had been illegally imported would not be necessary.

A Code of Optimal Practice on the Use of Medicines Containing Material from Endangered Species

It is proposed that the Chinese Medicine Registration Board will have the power under the new legislation to issue 'Codes of Optimal Practice' and that these Codes would be taken into account by the Board in determining whether a particular practitioner was guilty of unprofessional conduct.

Such a Code of Conduct covering use of endangered species in Chinese herbal medicines might clearly set out the Board’s expectation that registered practitioners and dispensers have a thorough knowledge of their obligations under the Wildlife Protection Act and comply with its provisions. The Code might include requirements that practitioners and dispensers understand the following:

It is expected that the Board would inform registered practitioners and dispensers that are possessing, prescribing and dispensing Chinese herbal medicines which contain endangered species or list them on the packaging, may constitute unprofessional conduct under the Chinese Medicine Registration Act, if proper permits have not been obtained under the Wildlife Protection Act.

However, there are likely to be limitations on the Board’s powers in this area. For example:

Potential for Strengthening the Board's Powers - Specific Offence Provisions

In drafting the Chinese Medicine Registration Bill, consideration will be given to whether there is a need to strengthen powers for the Board to deal with unprofessional conduct involving use of medicines containing endangered species. For example, one option might be to include a specific provision which creates an offence under the proposed Chinese Medicine Registration Act in addition to provisions governing unprofessional conduct, where registered practitioners and dispensers prescribe or dispense medicines that contain material from endangered species without the required permits.

Conclusions

Further work is being undertaken to determine the most suitable provisions for inclusion in the proposed Chinese Medicine Registration Bill. Such provisions should aim to reinforce and support Commonwealth enforcement of regulation of endangered species used in Chinese herbal medicines.

As a minimum, it is expected that a Chinese Medicine Registration Board will have powers under the proposed Victorian Chinese Medicine Registration Act to regulate the professional conduct of practitioners and herbal dispensers, and that the Board will have the power to apply sanctions for breaches of the Commonwealth Wildlife Protection Act that are considered by the Board to constitute unprofessional conduct.

It is clear that there is considerable scope for a system of statutory registration of Chinese medicine practitioners and Chinese herbal dispensers. If adopted in all states and territories, such a system would greatly assist in wildlife conservation and reduce the use of material from endangered species in Chinese herbal medicines in Australia. Further comment is welcome on these matters and should be submitted to:

Professor John Catford
Director of Public Health and Development Division
Victorian Department of Human Services
GPO Box 1670N
MELBOURNE VIC 3001

or contact:

Ms Anne-Louise Carlton
Tel: 03 9637 4230
Fax: 03 9637 4744
e-mail: anne-louise.carlton@dhs.vic.gov.a

References

Bensoussan, A. and S. Myers. 1996. Towards a Safer Choice: The Practice of Traditional Chinese Medicine in Australia. Macarthur: University of Western Sydney, Faculty of Health.

Callister D.J. and T. Bythewood. 1995. Of Tiger Treatments and Rhino Remedies: Trade in endangered species medicines in Australia and New Zealand.: TRAFFIC Oceania, Sydney.

Department of the Environment and Heritage. 1998. Regulation Impact Statement for the Wildlife Protection (Regulation of Exports and Imports) Amendment Bill. Canberra.

The Parliament of the Commonwealth of Australia. 1998. Wildlife Protection (Regulation of Exports and Imports) Amendment Bill, Explanatory Memorandum. Canberra.

Victorian Department of Human Services, Ministerial Advisory Committee. 1998. Traditional Chinese Medicine: Report on Options for Regulation of Practitioners. Melbourne.