AUSTRALIAN NATUROPATHIC NETWORK
 Serving the community since 1998

The main Act that deals with the legality "unregistered practitioners" in NSW is the Medical Practice Act 1992. Of particular interest to Naturopaths are sections 104 through to 109.

Presented below are headings taken from sections of the Act. Details of each section are available online from NSW government web sites.

Extracts from the Medical Practice Act 1992

Sect 104 Fees cannot be recovered for medical services provided by an unregistered person

Sect 105 Use of misleading titles etc.

Sect 106 Causing or permitting use of misleading titles etc.

Sect 107 Business documents and advertising with misleading titles etc.

Sect 108 Prohibition against advertising for certain diseases ... of special interest within this section is ... (2) A person (including a body corporate) must not hold himself or herself out, or hold another person out, to be entitled, qualified, able or willing to cure, or offer any service in the nature of a cure for, any disease to which this section applies.) NSW MEDICAL PRACTICE ACT 1992

Sect 109 Cancer treatments not to be given or offered by unregistered persons

Review of Medical Practice Act - 1998

The Act is reviewed at times with the most recent review conducted in 1998. Chapter 12 of the review (which is also available on line) deals with "Restrictions which impact on the practice of unregistered practitioners". The review observes that the essential restrictions on unregistered practitioners include:

• the prohibition of unregistered practitioners holding themselves out as registered practitioners
• recovering fees for medical or surgical services they have provided
• holding themselves out as qualified willing or able to cure a range of specified diseases
• providing cancer treatments for certain purposes

The review also points out that a broader regulatory environment exists which protects the consumer including:

• the Health Care Complaints Commission has the power to investigate complaints about unregistered practitioners
• the Poisons and Therapeutics Goods legislation limits access to certain drugs to medical practitioners
• the Public Health Regulation 1991 provides that unregistered persons (with the exception of dentists) must not carry out any procedures which penetrate the skin unless certain requirements the object of which is to avoid infection are met.

With respect to sections 108 and 109 of the Act the review states:

Whilst there is a prohibition in the Act of advertising cures for a range of diseases, it does not preclude unregistered persons from treating people with one of the specified diseases but simply prohibits them from advertising that they can cure a person so afflicted. The majority of these diseases can be classified as ones for which there is no generally accepted cure. It is interesting to note that the prohibition does not apply to medical practitioners.

There is also provision in the Act which is more restrictive than the prohibition on advertising cures for certain diseases. This provision prohibits an unregistered person from giving a substance which it is claimed is likely to prevent cancer or have curative or alleviating powers in the treatment of cancer.

This restriction seems to purport to exclude unregistered practitioners from providing treatment with cancer. Several submissions have noted that alternative practitioners can be of benefit to those who are suffering from cancer. (eg naturopaths, herbalists, aromatherapists, acupuncturists) Again, this restriction impedes the development of new and innovative services which may be of assistance to patients with the specified conditions and limits consumer choice.

The rationale for the provisions according to the Australian Medical Association is

"One must accept that the diseases/conditions mentioned within the Act at the moment would involve perhaps the most vulnerable group of patients in the community. Their vulnerability must be protected at law from unscrupulous purveyors of "quick cures". The AMA would strongly promote that the current section be extended to preclude unregistered persons from treating patients for one of the specified diseases mentioned in the Act."

The Medical Board (of NSW) in its submission has expressed a different view.

"... it is inappropriate for it [the Board] to attempt to police the activities of unregistered persons offering to provide health care, provided that they do not purport to be registered medical practitioners when they do so. It [the Board] did not believe there is any justification for expanding its jurisdiction in relation to alternative therapy.

Its [the Board] experience in seeking to enforce the provisions of section 108 and 109 have been singularly unsuccessful, even where serious consequences including death have resulted from the unregistered person's activities. This has been due to a number of factors, including evidentiary and burden of proof issues arising when matters are pursued in the local courts."

Several submissions have argued that the current restrictions prevent the development of new and innovative services which may be of assistance to patients with the specified conditions.

If restrictions were removed, the following regulatory framework would apply.

• Consumer protection legislation would continue to prohibit claims about a product or service which are misleading and deceptive.
• All unregistered practitioners would continue to be prohibited from holding themselves out to be medical practitioners.
• The Health Care Complaints Commission would be able to investigate the activities of unregistered practitioners.
• Controls on access to certain drugs under Poisons and Therapeutic Goods legislation and in the area of skin penetration under the Public Health Regulation would continue to apply.

On balance, the Department considers that the current restrictions do not provide more effective protection for consumers than that offered by the above regulatory framework. The provisions are difficult to enforce and represent a piecemeal approach to the regulation of unregistered practitioners. The Department therefore recommends their removal.

The Department is currently considering the issue of the development of an effective framework for minimum standards for the conduct and safety of alternative practitioners under the auspices of the Australian Health Ministers Council. A number of factors are informing that process including the Council of Australian Governments "Principles and Guidelines for National Standards Setting and Regulatory Action by Ministerial Councils and Standard-Setting Bodies".

Finally the recommendations made in the Chapter 12 of the review are:

Recommendation 26

That the current restrictions:

(i) on recovering fees for medical or surgical services;

(ii) advertising cures for a range of diseases; and

(iii) providing cancer treatments,

be removed from the Medical Practice Act.

All extracts have been taken from "Review of the Medical Practice Act - Final Report (December 1998)"

It is of note that no professional association representing the interests of naturopaths (or any other alternative health providers) appears in the list of submissions presented in Appendix B of the review.

(Our latest information indicates that our associations were not invited to make submissions - Ed. 19/2/99.)

If you have any issues or questions regarding the information presented here please contact us first!

Certain diseases are listed in the Medical Practice Regulation 1998 - Section 8 and include:

• AIDS
• cancer
• diabetes
• epilepsy
• hepatitis
• human immunodeficiency virus (HIV) infection
• leukemia
• multiple sclerosis
• poliomyelitis tuberculosis