Tuesday, 13 November 2018

Why is Quackery Legal in the UK?

Firstly, a slight diversion.

Guardian story on CEASE therapy
As previously mentioned, the Guardian printed a story about CEASE therapy on 28/04/2018. The online version can be found here. The Daily Mail published a version of this story on their website on 29/04/2018 which appears to be lifted entirely from the Guardian story and contains no original reporting.

Social media reaction was largely one of horror. Many made statements along the lines of CEASE therapy being child abuse. This thread on Mumsnet is illustrative. Many asked how this kind of thing was legal. The answer lies in history and poorly framed legislation.

Common Law
English Common Law (ECL) forms the basis of the legal system of many countries. The US (with the exception of the State of Louisana) and the many current and former Commonwealth countries are common law jursdictions (although the Canadian Province of Quebec is an outlier). Some current/former Commonwealth countries mix common law with other legal systems that ultimately derive from Roman Law.

Wales and Northern Ireland effectively use ECL (although Welsh law is a relatively new innovation - to a large extent England and Wales are still the same jurisdiction). Scotland is different. The Scottish legal system is based on Civil Law - that ultimately derives from Roman law. Much is made of the differences between English and Scottish law but there aren't huge differences when it comes to areas such as commercial law, consumer protection and health and safety regulations. It is also the case that compared to European civil law jurisdictions, common law is much more important. Historically, ECL has had a profound effect on Scottish law.

The differences between ECL and Civil Law are multiple and can be technically quite complex but in short - Civil Law is a codified system where written laws have primacy. By contrast, Common Law places a lot more emphasis on decisions, on the interpretation of the law by judges. Precedent plays a great role in common law jurisdiction - not that is it is ignored in Civil Law jurisdictions, it just has less of a role. Case-based reasoning is a phrase often used to prescribe how common law works - a concept that will be familiar to computer scientists.

Although a gross simplification, it is often said that in Civil Law systems what is not permitted in law is forbidden whereas as in Common Law what is not forbidden is permitted. This is particularly relevant to the practice of medicine.

Quackery and Common Law
Being most familiar with homeopathy, during research I have encountered all sorts of bizarre notions of ECL dating back to the Druids and there be some magical right to practice homeopathy associated with this. What legal systems existed in pre-Roman Britain is unknown - likely widely varying customary law - but it is very likely that Roman Law would have had some influence pre-Invasion due to trading links. ECL really starts to take form after the Norman conquest as it started to supplant Anglo-Saxon law (the Norman invasion had less effect than one might think). Henry II's legal reforms are particularly important.

In ECL, the practice of medicine is not forbidden to anyone per se. There are certain acts that are forbidden except by certain legally recognised professions. There are certain titles that can only be used by certain legally recognised professions but beyond that any member of the public has considerable to freedom to do all manner of things to another person that would prohibited in a Civil Law jurisdiction. Interestingly, this is also true for many legal matters - it is possible for a member of the public to represent themselves in Court.

It is worth pointing out that this is not the case for veterinary medicine. Other than owners (or their employees) treating their own animals, treatment of animals is confined to veterinary surgeons. Members of the public are forbidden in law from treating animals that do not belong to them. 

However, as might be expected, things are a bit more complicated and there is also the business of Scotland.

History of Medical Professions Recognition and Regulation
Ideas of distinct medical professions date back to Antiquity and Ancient Greek ideas held great sway over a long period of time. At the time that the professions stated to become legally recognised (if not regulated) were -
  • Surgeon
  • Physician
  • Apothecary
Although nursing and midwifery were known - and certainly some midwifes were held in very high regard for their skills - they were not regarded in the same way. Although much is made of the idea of the "wise woman" and an associated folk-medicine tradition, a lot of this is bound up with the witch-cult hypothesis. And homeopathy has nothing to do with it. 

The history is fascinating (would recommend this on the development of regulation in England - and this text goes into depth on the development of medicine in Scotland), the notion of quackery in a modern sense only comes into existence as modern scientific medicine does. There are several key drivers at work - the decline in costs of printed material, increases in education and literacy and later on the advent of advertising and mail order. Arguably, the advent of the internet has lead to an explosion in quackery but these past developments likely had a similar (if more slow acting) impact.

This has to be viewed in the context of as modern scientific medicine has evolved, as professionalism has grown, some of what previously fell in it canon has been discarded and now belongs to the realm of quackery. This is particularly true for ideas about causation of disease. Miasma theory, vitalism both long discarded - germ theory denialism is seen very much as quackery now.

The past isn't perfectly recorded and is subject to interpretation. For one thing, commonly understood definitions of words, professions and so on, can change.

The past explains the why but not the what.

Medical Act 1983
This act does various things but grants the General Medicial Council various powers. It restricts certain roles to registered medical professionals -
47 Appointments not to be held except by fully registered medical practitioners who hold licences to practise
    (1) Subject to subsection (2) below, only a person who is fully registered and who holds a licence to practise may hold an appointment as physician, surgeon or other medical officer]—
        (a) in the naval, military or air service,
        (b) in any hospital or other place for the reception of persons suffering from mental disorder, or in any other hospital, infirmary or dispensary not supported wholly by voluntary contributions,
        (c) in any prison, or
        (d) in any other public establishment, body or institution,
or to any friendly or other society for providing mutual relief in sickness, infirmity or old age.

(2) Nothing in this section shall prevent any person who is not a Commonwealth citizen from being and acting as the resident physician or medical officer of any hospital established exclusively for the relief of foreigners in sickness, so long as he—
    (a) has obtained from a foreign university a degree or diploma of doctor in medicine and has passed the regular examinations entitling him to practise medicine in his own country, and
    (b) is engaged in no medical practice except as such a resident physician or medical officer. 
(3) None of the suspension events mentioned in subsection (4) below shall terminate any appointment such as is mentioned in subsection (1) above, but the person suspended shall not perform the duties of such an appointment during the suspension. 
(4)The suspension events are—
    (a) the suspension of registration of a person by a Fitness to Practise Panel—
        (i) following a finding of impairment of fitness to practise by reason of deficient professional performance or adverse physical or mental health under section 35D above, or
        (ii) under rules made by virtue of paragraph 5A(3) of Schedule 4 to this Act;
    (b) an order for immediate suspension by a Fitness to Practise Panel under section 38(1) above; or
    (c) an interim suspension order by an Interim Orders Panel or a Fitness to Practise Panel under section 41A above (or such an order as extended under that section).
 It also makes it a criminal offence to pretend to be registered -
49 Penalty for pretending to be registered.
(1) Subject to subsection (2) below, any person who wilfully and falsely pretends to be or takes or uses the name or title of physician, doctor of medicine, licentiate in medicine and surgery, bachelor of medicine, surgeon, general practitioner or apothecary, or any name, title, addition or description implying that he is registered under any provision of this Act, or that he is recognised by law as a physician or surgeon or licentiate in medicine and surgery or a practitioner in medicine or an apothecary, shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. 
(2)Subsection (1) above shall not apply to anything done by a person who is a national of any EEA State for the purposes of or in connection with the lawful rendering of medical services by him without first being registered under this Act if he has previously complied with the requirements of subsection (2) of section 18 above or subsequently complies with its requirements as modified in respect of urgent cases by subsection (3) of that section. 
(3) Any penalty to which a person is liable on summary conviction under subsection (1) above may be recovered in Scotland by any person before the sheriff or the district court who may, on the appearance or the default to appear of the accused, proceed to hear the complaint, and where the offence is proved or admitted the sheriff or court shall order the accused to pay the penalty as well as such expenses as the sheriff or court shall think fit.

(4) Any sum of money arising from conviction and recovery of penalties as mentioned in subsection (3) above shall be paid to the treasurer of the General Council.
And also 
49A Penalty for pretending to hold a licence to practise 
(1)If a person who does not hold a licence to practise—(a)holds himself out as having such a licence; or(b)engages in conduct calculated to suggest that he has such a licence,he shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. 
(2)Any penalty to which a person is liable on summary conviction under subsection (1) above may be recovered in Scotland by any person before the sheriff or the district court who may, on the appearance or the default to appear of the accused, proceed to hear the complaint, and where the offence is proved or admitted the sheriff or court shall order the accused to pay the penalty as well as such expenses as the sheriff or court shall think fit. 
(3)Any sum of money arising from conviction and recovery of penalties as mentioned in subsection (2) above shall be paid to the Treasurer of the General Council.

Level 5 on the standard scale is £5,000.

There have been cases of people masquerading as doctors and even getting jobs in the NHS but this is very different from the kind of quackery that is of concern and is better prevented by locum agencies and NHS bodies doing more thorough checking.

Arguably, it is very difficult to define what medical practice is because what doctors do is so wide ranging. 

Opticians Act 1989
The Opticians Act 1989 differents from the Medical Act 1983 in one key area. It restricts certain activities purely to opticians.

But the Act 1989 does not necessarily restrict what opticians can do but the General Optical Council (GOC) does.

The case of Ian Jordan is informative - he was struck for a number of reasons. It is important to distinguish between ophthalmologists (doctors who specialise in diseases/disorders of the key) and opticians. Opticians do play a role in screening for signs of certain eye diseases.

Dentists Act 1984
This falls somewhere between the previous two. The definition of dentistry is somewhat circular.
... the practice of dentistry shall be deemed to include the performance of any such operation and the giving of any such treatment, advice or attendance as is usually performed or given by dentists; and any person who performs any operation or gives any treatment, advice or attendance on or to any person as preparatory to or for the purpose of or in connection with the fitting, insertion or fixing of dentures, artificial teeth or other dental appliances shall be deemed to have practised dentistry within the meaning of this Act.
The Act goes onto regulate associated professions such dental nurses, hygienists and technicians.

It is a criminal offence for unqualified lay persons to practice dentistry or hold themselves out as dentist. The General Dental Council (GDC) has prosecuted a number of individuals/companies for offering teeth whitening.

Something that is curious is the position on Botulinum toxin injection. Both the GDC and British Dental Association (BDA) state that it is not part of any dental training yet it is not prohibited. Whilst not strictly relevant to this post, it raises questions.

Protected title
Statutory recognition can grant a profession exclusive use of a particular title (or suffix) but because of the history of English qualifications, "doctor" isn't one of them. It's not helped that different medical schools have different names for their qualifications unlike the US where MD is universal (although in India, there is an MD (homeopathy) qualification).

There's also a different between stating you obtained a qualification and that you are practicing. For example, there are former nurses who practice homeopathy - they can mention their degree but can't claim to be a Registered Nurse (RGN).

Some professions with protected title are more aggressive than others in pursuing breaches - curiously the General Chiropractic Council (GCC) have employed private investigators. To quote from a Professional Standards Authority (PSA - although at the time they were still called the Council for Healthcare Regulatory Excellence) report of 2012 -
The GCC has reported 55 potential illegal uses of protected title to the police since 2002. Registered chiropractors are the initial source of information in most cases. There have been 17 prosecutions for title misuse. The GCC used private investigators to gather evidence before notifying the police in the 55 instances they have recorded. The GCC suggests that to ensure individuals do not continue using a title, after not retaining registration or voluntarily removing themselves from the register, they could be subject to an investigation. 
The report is particularly informative - and not just about prosecution for misuse of protected title. The Executive summary is very clear.

In short
If a lay practitioner avoids certain activities, does not use a protected title or claims to be registered then in theory, there is nothing to stop them practicing.

This blog makes much of medicines regulations that prevent unqualified lay practitioners obtaining or supplying certain medicines but not all "therapies" use medicines or the like. Consumer protection legislation does prevent certain types of claim being made but it does not prohibit activities per se.

Cancer Act 1939
This article is well worth reading. In essence, it is illegal for anyone to advertise treatments for cancer although it is (rarely) used to prosecute quacks offering bogus treatments rather than anyone else.

It may be useful to examine the case of Errol Denton. Denton was prosecuted back in 2014 under the Cancer Act. In 2018 after still continuing in his ways, he was prosecuted again (ASA response chosen because it mentions their rulings against him).

The difficulty of obtaining a conviction under the Fraud Act 2006 is proving that the accused knowingly made "any representation as to fact or law ... express or implied" which is untrue or misleading. It would appear that the Court did not believe that Denton deliberately set out to mislead customers - the implication being that Denton actually believed in what he was doing.

But this relates more to the marketing and taking of money for a practice, not the practice itself. If Denton had made no claims, had taken no money, it is unclear what he could have been charged with except supplying a food product unfit for human consumption.

Assault and Negligence
Certain physical acts by lay practitioners might be considered assault but English law is complicated to say the leastAdministering quack nostrums can also be considered assault if they result in harm - think of poisoning. But the definitions used of harm are wide ranging and include emotional and psychological harm. 

Intention is important but is extremely unlikely that most practitioners would set out to harm anyone (but there are obvious examples such as Paida-Lajin and certain types of exorcism - "beating the Devil out" etc - that are clearly physical harm). 

The role of consent is also important but that an act is consensual does not automatically mean that an act is not assault. There have been various cases involving consensual sado-masochism and body modification that have resulted in prosecutions.

When harms result due to negligence, there is a test of reasonableness. Whether Courts treat lay practitioners as medical professionals varies by individual case. It is about the level of duty of care that is assumed. Whereas the test of reasonableness for a medical practitioner is whether other medical practitioners would carry out such an act, with lay practitioners, the test maybe against a ordinary member of the general public. This is different from assault though. Compare murder to manslaughter. 

When children and other vulnerable persons are involved, Courts will take a much harsher line. 

Human Medicines Regulations 2012
As this blog has mentioned multiple times, the supply of prescription only medicines (including unlicensed medicines) to and by lay practitioners is a criminal offence - see above as well. The classification of some of the nostrums handed out 

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