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LEGAL STATE of ALTERNATIVE MEDICINE [ 31 ] [the magazine title page]
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Preliminary note
There is already negative experience of removal of scientific public from participation in elaboration of bills, or at least discussion and evaluation of ready bills. A bright example appears: The federal law of drug remedies and psychotropic substances.
The clause 44 of the law makes it actual to each person – adult and child – standing on the earth of Russia, independently on whether he has really any relation to drugs. The clause permits any power representative to deprive him of his liberty for independent (not limited) period at his own discretion (arbitrariness – solely suspicion of guilt is enough).
Only this is already enough for to raise a question of its revision (but to raise it to whom? to President, who sighned it by his own? to Constitutional Court? International Court?). And this is necessary. But how much easier it would be to prepare and to pass this law in its normal form at once!
For several years the Law of traditional and folk medicine is prepared in Health Protection Committee of Duma (Lower Chamber of Russian Parlament). In order to not to repeat mistakes we'll try to discuss in advance, what kind it ought to be.
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A. THE PROBLEM
Alternative medicine (AM) exists, functions and significantly influences upon the society. Whether it is good or bad but it is a fact.
A LAW for AM is topical. In the last few years, since private enterprise ceased to be persecuted and the article of the criminal code of illegal doctoring (treatment, medical assistance) was repealed, AM, and especially native-folk-medicine, came up from its hemi-underground.
That would have not been wrong, for folk-medicine is an excellent supplement to official, academical medicine. But the grief is that it didn't calmly came but rather splashed, burst without any control, that on the wave of that splash, persons joined AM who interested not so much in a patient as in themselves, in their profit, prestige, etc.
Physicians feel by their practice the harm influence of the lack of supervision over folk-medicine. Oncologists note cases, neglected up to hopelessness because of academic methods were delayed for the hope of healer's help . Psychiatrists note the increase of acute psychosis provoked both by a healer and even merely by fear of evil eye etc.
It's possible to be reconciled to the situation, remarking philosophically that any medal can't but possess its reverse. But it's possible – even necessary! – to take measures to minimize these negative influences.
Protection, offered to a patient by criminal and civil codes, is obviously insufficient. Firstly, the protection is not anticipatory, preventive, it is principally late for it is offered to those who have already suffered materially and/or morally. Secondly, a sick person has much more important interests than legal procedures. Therefore an offender remains unpunished and a victim - without any compensation/satisfaction.
The only defence in that respect, made by the "Legislative Foundations of the Russian Federation for health protection" which was passed by the Supreme Council on 22.07.93, was the prohibition of radio- and TV- extrasensory sessions.
The LAW is topical. It should legalize folk-medicine for now it is illegal (is existing in-fact, but not existing legally), should legalize it as an independent field of societal life, should regulate the rights and obligations of a healer.
The LAW is topical. But what kind ought it to be? Discussions of the problem show that the more participants the more opinions are revealed and the opinions differ up to very opposition. And this is understandable: those who gather at the discussions are specialists. They analyses the law and it's tasks from view point of their own professional interests. Their personal interest as the potential (in the future) patients is moved to the secondary (if not the tenth) background, although everyone declares just the patient interest to be of the first (if not the single) priority.
An example of such a narrow, corporative approach can be found in the article of one of the chiefs of the Scientific Research Institute for Traditional Methods of Treatment under the Health Protection Ministry ( HPM) [À.À. Êàðïååâ Íåêîòîðûå ïðàâîâûå àñïåêòû òðàäèöèîííîé ìåäèöèíû è âîïðîñû ëèöåíçèðîâàíèÿ íàðîäíûõ öåëèòåëåé (Some legal aspects of traditional medicine and a problem of folk healers licensing) / Ïàðàïñèõîëîãèÿ è ïñèõîôèçèêà, ¹1(13), 1994, ññ. 5-6]. We dare to retell the Institute's (it means the HPM's) categorical opinion without exact quoting of the long and complicated text; namely: it is only doctors/physicians who have the right to practise on their own in the sphere of traditional and folk medicine. What would remain of folk-medicine under such an approach? Do it really correspond to a patient interest?
B. A VARIANT of SOLUTION.
The following seems to be important to the LAW conception in principal – without touching upon juridical and other technical details:
1. When a patient makes a request to a region polyclinic, he doesn't choose a doctor. He doesn't need to do that and as a rule cannot do that well. He goes to the registry, and then to the very doctor, whom he is directed to. The patient entrusts his health not to a concrete physical person, Mr. Doctor, but to the medical institution, organization, legal person, which in its turn confides in this very Mr. Doctor.
In a case of conflict, the patient makes complaints not against Mr. Doctor, but against the administration of the polyclinic (hospital, institute etc), which in its turn inquires into Mr. Doctor.
The relationship between patient and healer should be made analogously.
A permission (a LICENSE) for practice in the area of alternative medicine (AM) should be given only to an AM-establishment, and a patient should have formal, legal relations only with the establishment, with the possessor of a .LICENSE (a PATENT of a private person must be equated to a LICENSE regarding both conditions of its obtain and its legal value).
This doesn't mean that the LAW must prohibit the practice in the AM area to a private individual without a PATENT. BUT it must prohibit any public advertisement – in any juridically confirmed (provable) form – without supporting by the LICENCE.
2. Only the state offices – regional administration which is responsible to population for law order in the region – must be LICENCE distributors.
The only necessary and sufficient ground for obtaining of an AM-institution LICENSE must be CERTIFICATE(-S) of professional capability of its constitutor(-s).
A LICENSE must reflect (and confine) an AM-institution competence sphere in hard accord with its constitutor(-s) CERTIFICATE(-S).
Obtaining of a LICENSE must not be accompanied by serious expense. A profit from the activity but not a permission to act must be taxable. It would be a mistake not to pay attention that many healers (and just the most efficacious of them) prefer to work gratis.
[ The separat problem, not a legal one but an economical and social, is: how large must be the taxation, and even whether it must be at all. Results of healer's work are profitable to the state. Is it ethically correct if a poultry-maid demands payment for a place in her hen-house from a hen who gratis lays gold eggs for her? ]
3. The possibility to obtaine the CERTIFICATE from any medical institution must be available to anyone if a proof of his competence is enough to the institution.
The CERTIFICATE must contain confines of the competence as well as of its confirmation sources - like approbation, testimony of competent specialists or cured patients (in the last case, the patients number, obtained results remoteness etc ought to be indicated.
Any education document is neither necessary nor sufficient for certificate obtaining. How - well or badly - does a healer work but not why - where and when did he learn - is important to a patient.
The medical institution giving a CERTIFICATE out must bear the legal responsibility for accordance of its decision (both positive or negative one) with objective, real professional abilities of the healer.
If a medical institution gives its patients to a healer for his approbation so for the LAW during the approbation period he must be considered a representative of the institution (in his regard both to the institution administration and to the patients).
Neither the clinical approbation nor the obtaining of the certificate must demand any preliminary condition like demand to describe his working methods. So a healer isn't obliged to be skilled in urgent aid which isn't one that a patient makes a request to him for. A shop customer may need such aid too but no one concocts to forbid trading to the shop keeper if in such a case he merely calls an ambulance. A CERTIFICATE must only punctually reflect what a healer can do.
4. As a reason for a CERTIFICATE cancellation may be
- revealing of negative subsidiary results of its possessor work;
- his unethical behaviour.
5. As a reason for an AM-institution LICENCE cancellation may be
- advertising of AM-activity which is not supported by the LICENCE;
- cancellation of a CERTIFICATE(S) of an AM-institution constitutor(s), if there isn't its other constitutor(s) who keeps their CERTIFICATE(S).
6. The LAW should make provision for possibilities like:
joining healers into creative (professional) Union for mutual support
establishing of Reserve-Insurance Fund of this Union to support its members with legal, social, financial etc. help in a case of both professional and everyday failure.
7. One may distinguish methodically traditional medicine and folk one. Universal and self-sufficient systems like acupuncture and ayurveda which have their own ideological base and own conception on each disease, that makes them similar to our official academic medicine, may be attributed to the traditional one. Folk medicine is a totality of separate methods of confined destination.
But regarding their responsibility to the Law, to a patient, they must be equal to each other, and therefore legally indistinguishable. A patient needs the LAW protection equally in the case of both healer's careless or his mistake, irrespective of used methods.
And more than that. The official state medicine must also be responsible to the Law, to a patient in equal extent with alternative medicine. Therefore it is rightful to talk of necessity for a common Law on medicine in RF, instead of a number of Laws on a number of medicines. All the more that legal unification of different medicines in the frames of the common Law could contribute to their methodical unification into a common, universal, integrated medicine. This is not less important for a patient than medical-legal protection: the more effective the medicine the less medical-legal conflict cause.
11 May 1995 ÷ 11 February 1998
The year of 2001. Duma is at its summer vacation. The LAW hasn't passed yet. The discussion is still actual.
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