Academic journal article Albany Law Review

Voluntary Self-Regulation of Complementary and Alternative Medicine Practitioners

Academic journal article Albany Law Review

Voluntary Self-Regulation of Complementary and Alternative Medicine Practitioners

Article excerpt

"The urge to regulate is stronger than the sex drive." (1)


Complementary and alternative medicine (CAM) has been practiced and used in this country continuously since the nineteenth century. (2) All of the forms of care present then are still present today including botanical medicine ("Thomsonians"), health food ("Grahamites"), homeopathy, hydrotherapy, healing touch ("mesmerists"), osteopathy, naturopathy, chiropracty, and Christian Science. (3) In the 1920s and early 1930s, three studies reported CAM usage of thirty-four percent, eighty-seven percent, and ten percent. (4) Thirty percent of those born before 1945 use CAM compared with about one-half of those born between 1945 and 1964 and seventy percent of those born between 1965 and 1979. (5) Although there may have been a period of diminished use of CAM in the 1930s and 1940s, there has been a continual increase in usage since the 1960s. (6)

There are academic and social definitions of CAM, (7) but in this Article I use a legal definition. A Minnesota statute states:

   "Complementary and alternative health care practices"
   means the broad domain of complementary and alternative
   healing methods and treatments, including but not limited
   to: (1) acupressure; (2) anthroposophy; (3) aroma therapy; (4)
   ayurveda; (5) cranial sacral therapy; (6) culturally traditional
   healing practices; (7) detoxification practices and therapies;
   (8) energetic healing; (9) polarity therapy; (10) folk practices;
   (11) healing practices utilizing food, food supplements,
   nutrients, and the physical forces of heat, cold, water, touch,
   and light; (12) Gerson therapy and colostrum therapy; (13)
   healing touch; (14) herbology or herbalism; (15) homeopathy;
   (16) nondiagnostic iridology; (17) body work, massage, and
   massage therapy; (18) meditation; (19) mind-body healing
   practices; (20) naturopathy; (21) noninvasive
   instrumentalities; and (22) traditional Oriental practices,
   such as Qi Gong energy healing. (8)

Similar detailed language is also used in a Rhode Island statute, (9) but California adopted a more general approach, defining it in the negative. (10) The statute refers to legislative findings that

   complementary and alternative health care practitioners ...
   are not providing services that require medical training and
   credentials.... [and further] that these nonmedical
   complementary and alternative services do not pose a known
   risk to the health and safety of California residents, and that
   restricting access to those services due to technical violations
   of the Medical Practice Act is not warranted. (11)

The statute itself is an exemption from the Medical Practices Act for persons who provide a statutorily defined disclosure statement and who do not perform any of a short list of controlled acts. (12) The legal definition of CAM therefore includes both a general component based on safety--the fundamental policy justification for all public health regulation--as well as a non-exclusive list of specific, safe, unregulated health care modalities that are more or less found widely in contemporary American society.

Next to allopathy, (13) homeopathy was once the most well-known and successful school of medicine until the allopaths consolidated regulatory control over the practice and professions of medicine in the first two decades of the twentieth century and used it to eradicate as much of the competition as they could. (14) "In 1898, homeopaths had 9 national societies, 33 state societies, 85 local societies and 39 other local organizations, 66 general homeopathic hospitals, 74 specialty homeopathic hospitals, 57 homeopathic dispensaries, 20 homeopathic medical colleges, and 31 homeopathic medical journals," (15) and in 1902, there were 15,000 practitioners. (16) By 1980 there were 128 homeopaths and no homeopathic hospitals. …

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