But what if you Don’t Want to be Regulated?

The Malaysian Parliament has just approved a law about traditional medicine.  The Traditional and Complementary Medicine Act is largely about the regulation of practitioners of TCM – notably, setting up a regulatory Council.  According to section II (5)

The Council shall have the following functions:

(a) to advise the Minister on matters of national policy relating to traditional and complementary medicine practice;

(b) to establish the eligibility requirements for each practice area;

(c) to recognize qualifications conferred by any institutions of higher learning established under any written law in Malaysia or any institutions of higher learning recognized and authorized by any countries outside Malaysia for the purpose of registration under this Act;

(d) to specify the appropriate academic qualifications or recognized skills certificate issued pursuant to the National Skills Development Act 2006 [Act 652] which are or is necessary before a person may apply to be a registered practitioner;

(e) to specify the necessary apprenticeship and training requirements including rules for undergoing apprenticeship, the scope of responsibilities and permitted conduct or activities of apprenticeship, duration of apprenticeship and post-qualification apprenticeship;

(f) to register individuals who will provide traditional and complementary medicine services to the public;

(g) to issue practising certificates to registered practitioners who have satisfied the prescribed conditions and paid the prescribed fees;

(h) to develop codes of professional conduct, rules relating to the professional conduct of registered practitioners, including penalties for breach of such codes or rules;

(i) to develop, undertake, prescribe and mandate any matter relating to or connected with the practice of traditional and complementary medicine or the professionalism of such practice;

(j) to specify, provide for and administer a complaints procedure and process;

(k) to develop rules upon which registered practitioners are to refer their patients to medical practitioners or dental practitioners, as the case may be;

(l) to obtain such relevant information from practitioners, and to provide the same to the Minister;

(m) to carry out such functions as may be specified by this Act; and

(n) to carry out all such other activities as may be directed by the Minister and such direction shall be consistent with the purposes of this Act.

Section IV (21) says that

(1) No person shall practise in any practice area which is not a recognized practice area.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable—

(a) in respect of a first offence, to a fine not exceeding thirty thousand ringgit [approx £6000] or to imprisonment for a term not exceeding two years or to both; and

(b) in respect of a subsequent offence, to a fine not exceeding fifty thousand ringgit [£10 000, or thereabouts] or to imprisonment for a term not exceeding three years or to both.

Is this a good law?  Clearly, it is not a particularly exciting piece of legislation; and there might be problems with it – there’re problems with a lot of laws.

But its the sort of thing that seems to be perfectly in order: it is reasonable to expect that, if someone is claiming to provide therapy of one sort or another, then there should be some form of regulation.  Medicine without regulation is open to all kinds of quackery; sometimes that quackery is harmless, but there’s a chance that it might be positively dangerous, or at least that it delays people getting access to things that do work because they spend their time, money, and effort on homeopathy and dream-catchers first.

I’m mildly amused by some of the reaction, though.  Dr Lee Chee Pheng, president of the Malaysian Society for Complementary Medicine (MSCM), is worried that there’s no “grandfather clause”, which would allow the old rules (or lack thereof) to apply to extant cases, and apply the new rules to any new cases from now on – that is, which would allow TCM practitioners without certificates to carry on practising.  He’s reported as complaining that

[t]he Health ministry should not ignore them as this group of people has learned the traditional method of treatment from their forefathers and they do not carry any paper qualifications.

There are many practitioners in the traditional massage industry who are blind and are over 60. How could they be possibly undergo formal anatomy and physiology classes in order to get certified?

How indeed?
Others are also worried; from the same article:

A council member of MSCM, Dr Lai Yoon Kgen, said he was unhappy with the requirement of the proposed act for TCM practitioners to undergo residency of not less than one year, and added that it would interrupt their daily routine as they would be attached to hospitals to acquire their practising licence.

“We hope the TCM Division of the Health Ministry will reconsider this point as many practitioners are not in favour of it,” he said, adding that there were about 15,000 practitioners in the country.

So… the government should reconsider its laws on regulation just because some of those to be regulated would prefer not to be?  Yeah: that makes sense.

Meanwhile, Dr Jeyakumar Devaraj, himself an MP, is worried about the speed of implementation, and its compulsory nature:

Here we are plunging into the deep end by seeking to regulate all traditional medicine modalities from the word go.

[…]

Wouldn’t it be better, I asked, for the ministry to make registration voluntary at this stage. Some of those registered, who the Council is confident about, can be officially certified. The practitioner could then display the Ministry Certification in his place of practice. And the government could tell the people that they should be careful when the traditional practitioner does not display a Health Ministry certification.

I can see the pragmatic appeal of this kind of claim: that there’s something iffy about requiring regulation if the infrastructure of regulation isn’t there, and that it might be better to treat the scheme as voluntary in the first instance – it would have a certain cachet of its own, a bit like a Kitemark or AOC badge.  But I’m not sure that the argument is all that compelling, particularly in regards to medical regulation.  Notably, kitemarks and AOC badges work best when there’s a real choice about whether or not to buy the certified product – but if there’s not a real choice, then they’re a bit pointless.  Much would depend on how easy it is to get medical treatment in Malaysia; and it’s not obviously always that easy.  According to the World Bank, Malaysia had 0.9 physicians per 1000 people in 2010 – the UK had 2.7 and the US 2.4 – and I’m willing to bet that they are concentrated in urban areas.  So there’s a real possibility that, if you happen to be living out in the sticks, your choice might be between a TCM practitioner, or noone at all.  Certification will be neither here nor there – and so there’ll be no incentive to get a certificate unless it’s compelled.

And this matters in respect of health.  Maybe forbidding someone to practise without a certificate would remove even the choice between having something or nothing – but this is where medicine is different from the purchase of Roquefort.  Buying ersatz Roquefort is highly unlikely to make you worse off than you would have been had you bought no cheese at all.  But there is a possibility that going to an unqualified local practitioner could leave you worse off than seeing noone.  Obviously, it would be best overall if there was a genuine medic on hand, with actual medicine.  But in the absence of that, I can see possible scenarios in which it would be better not to be treated by TCM – and in which it would be better for TCM not to be available.

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