Julie Stone

As the millennium approaches, the acupuncture profession faces the pressing question of whether statutory regulation would be the best route to protect the profession and patients, not just in the present climate, but also in the future. In 1996, when the British Acupuncture Council (BAcC) last discussed this issue at its annual conference, the general feeling was that effective voluntary self-registration, principally under the Council's umbrella, was the appropriate form of control at that time. What, if anything, has changed during this period? Certainly, the rush to statutory regulation which some people anticipated in the light of the Osteopaths and Chiropractors Acts has not materialised. Nonetheless, the BAcC has seen a more unified profession develop, and public support for acupuncture, as for complementary therapies as a whole, remains high. Moreover, purchasers continue to express interest in utilising complementary therapies within the NHS, (although funding for such initiatives is scant and has even, in some cases, been withdrawn). Against this backdrop, let us look at the arguments for and against statutory regulation, and see whether acupuncture is now at a point at which statutory regulation is a viable, or even necessary option.

Pursuing statutory regulation
All too often it is assumed that statutory regulation, and the professional status which accompanies it, is unquestionably 'a good thing'. I would seek to argue that this status is potentially a two-edged sword, and that before practitioners commit themselves to the pursuit of statutory status, they should critically review the arguments for and against statutory regulation for the acupuncture profession. The main arguments for and against statutory regulation can be summarised as follows:

Perceived advantages of statutory regulation
- Consumer protection and enhanced professional security through statutory protection of title, so that only registered practitioners can use the title 'acupuncturist', or, alternatively, restrictions are placed on who may use acupuncture techniques;
- More secure professional base, particularly in the event of threats from future European legislation if the Lannoye Report is adopted (with its threat of practice being restricted to registered medical practitioners);
- Higher public profile and greater respect of the public;
- Greater respect of the medical profession together with a greater willingness to refer patients to acupuncturists.

Disadvantages of statutory regulation
- The government will only grant statutory status to a mature therapy which it regards as united. Moreover, statutory regulation will only be contemplated when a therapy can demonstrate its effectiveness in 'scientific terms'. Whether this would mean sacrificing underlying philosophical underpinnings in order to produce 'acceptable' or 'accepted' research has been discussed elsewhere, but must surely remain a cause for concern. - Compared with a voluntary scheme, statutory bodies are expensive both to set up and to administer, and the cost will be borne primarily through the subscription fees of individual members. For individual practitioners, this is likely to lead to a frustration at having to pay higher professional fees with nothing obvious to show for it.
- Protection of title does not necessarily guarantee protection for consumers, as witnessed by the growing number of civil, criminal and professional disciplinary cases brought against existing statutory regulated professionals.
- Statutory regulation is unnecessary if voluntary schemes are working well.

Is now the right time for statutory regulation?
Although the above points are merely a brief outline of some of the arguments in this debate, they hopefully demonstrate that there are strong arguments both for and against statutory regulation. In order for acupuncturists to weigh up whether statutory regulation is right for them, it will be necessary, in the light of the above, to address our minds to three key questions:
1. Are existing systems of voluntary self-regulation adequately serving the profession and the public?
2. What, if anything, can we learn from the experience of the osteopaths and the chiropractors?
3. What do grass roots professionals feel about statutory regulation?

How well is voluntary self-regulation working?
In one sense, the continued acceptability of voluntary self-regulation will depend on how well the BAcC is perceived to be functioning.What criteria might we need to apply to determine this? Certainly, the following pointers would be useful indications:
- how satisfied its members are with the services it provides;
- how well its professional disciplinary mechanisms are thought to be operating, both from the perspective of practitioners and the public;
- how far the BAcC is able to disseminate information about acupuncture in general, and its services to the public, to other health professionals and to potential purchasers;
- how effective the BAcC is as a lobbying organisation on behalf of its members;
- how prepared the BAcC is to liaise with other acupuncture organisations.

In the absence of any statistical data, it is difficult to answer any of these questions with any precision, although the general feeling seems to be that the BAcC is relatively well appreciated by its members and is recognised to be a credible and legitimate registering body. For several years the British Acupuncture Accreditation Board (BAAB) has been busy accrediting training establishments, and the BAcC has, for the last three years been producing relevant Codes of Practice and Ethics, and operating disciplinary mechanisms. The BAcC has a reasonably high external profile, although in terms of internal and external communications there is probably scope for improvement.

But, of course, the question must look beyond the functioning of the BAcC as the main registering body, precisely because voluntary self-regulation means that acupuncturists need not be registered with the BAcC, but may be affiliated with one or more alternative registering bodies or professional associations, or they may, indeed, prefer to subscribe to none at all.

Lessons from Osteopathy and Chiropractic
If acupuncture is seriously considering pursuing statutory regulation, it would make sense to draw on the experiences of osteopaths and chiropractors. Some might argue that osteopathy and chiropractic had a real need to secure statutory status, so as to fend off the direct competition of state registered physiotherapists, to whom GPs would more readily refer patients. Nonetheless, the passing of the Osteopaths Act and Chiropractors Act was seen as such a significant milestone in the history of complementary therapies that it makes good sense to draw on their experiences, even though each and every therapy considering statutory regulation has a radically different identity and agenda.

It is clear from the chiropractic experience that statutory regulation is possible even when there are different camps within a particular therapy. Thus, chiropractors were able to achieve statutory regulation notwithstanding the obvious differences in training and therapeutic approaches between different types of chiropractors. Within acupuncture, arguably, most of the hard work has already been achieved in the impressive task of bringing five separate registering bodies together under the auspices of the BAcC, and acupuncture is certainly a less fragmented profession than it has been in the past. Nonetheless, two problems remain. The first is that there are still existing practitioners, schools and registering bodies who are not affiliated with the BAcC and would resist moves towards statutory regulation, particularly if any statutory council were to grow out of the BAcC (as the General Osteopathic Council grew out of the General Council and Register of Osteopaths). The second is that there are some TCM practitioners who use both acupuncture and herbal remedies as part of their treatment, but who would not necessarily regard themselves first and foremost as acupuncturists. These therapists would nonetheless be affected by any moves towards statutory regulation, and their views would also have to be canvassed.

It is too soon to tell whether statutory regulation will turn out to be in the long term interests of either osteopathy or chiropractic. What is perhaps informative for our purposes is to consider the practical difficulties and the enormous length of time it has taken for each of these professions to actually set up and open their professional registers, some three or four years after the passing of their Acts. The transformation from voluntary status to statutory status requires a huge amount of personal effort. Although the BAcC has some paid staff, the administrative burden in setting up a statutory body is not to be underestimated.

Again, drawing on the osteopathic and chiropractic experience, another extremely contentious area is standard setting and defining the scope of practice of a registered professional. Huge difficulty would be experienced in deciding what acupuncture is and what qualifications an acupuncturist must possess before being allowed on the register. The statutory body would be charged with the unenviable task of accreditation and deciding which training establishments' qualifications will form the basis of the statutory qualification. Whilst the BAcC has done a lot of this groundwork, harder choices are yet to come. A statutory council would have to decide whether it was going to err on the side of inclusiveness, in order to secure a diverse and innovative profession, or exclusiveness, narrowing membership down to graduates of only the most academic training. Either way, they will face criticism.

Another practical consideration is expense. Osteopathic practitioners and students have expressed considerable displeasure about the increase in membership fees, particularly when they previously enjoyed professional respect as members of a credible voluntary self-regulating organisation.

Finally, acupuncturists might ask whether osteopaths' and chiropractors' new statutory status has led to the anticipated benefits in terms of respect of the public and greater willingness of the medical profession to work alongside them. In terms of public support, osteopaths and chiropractors continue to be popular therapists, although individual therapists might argue that they had a perfectly healthy client base prior to achieving statutory recognition. More telling though, is the lack of response on the part of the medical establishment. Certainly, GPs continue to utilise the services of both groups of therapists, either through fund-holding budgets, or through recommendations. At a political level, the General Medical Council (GMC) has now stated that when a doctor entrusts care to a practitioner who is accountable to a statutory regulatory body, this constitutes a referral and not a delegation, which is clearly a good thing.

What do grass roots acupuncturists feel about statutory regulation?
One obvious feature of the status quo is the diversity of professionals who are able to practise and call themselves acupuncturists. Indeed, it is this very diversity in terms of training and therapeutic approach which raises concerns about public safety, since acupuncture is clearly a therapy which can cause harm if practised in the wrong hands. Currently, amongst this diverse population of practitioners, there are those therapists who eschew formal regulation of any kind, and others who, whilst tolerating a voluntary scheme, would not want to be part of a government-backed profession. Nonetheless, there are other practitioners who view statutory regulation as an opportunity to be taken more seriously and who would like the opportunity to work within, or alongside, the NHS. For these acupuncturists, statutory regulation might seem to offer a more secure base which would provide purchasers with a greater sense of security.

There is, however, a shared concern amongst therapists that acupuncture, if statutorily regulated, could become narrow-minded and fixed. The fear is that statutory demands would make acupuncturists' training unduly academic and prescriptive and that, as a result, a new breed of standardised, homogenised acupuncturists would emerge, devoid of individuality and wary of innovative practice.

Protecting the public: limits on what statutory regulation can achieve
The strongest argument in favour of statutory regulation is that protection of title is the surest way to protect consumers. It is argued that only within a statutory scheme can dangerous or unsafe practitioners have their professional title withdrawn, thus effectively removing their licence to practise. However, in terms of ensuring consumer safety, statutory regulation is not a panacea. Statutory regulation creates a framework within which professionals are given a considerable latitude, or professional autonomy. Critically, this means that professionals are given the freedom to diagnose and treat within the sphere of their individual competence, without a central body setting out prescribed forms of practice. If the osteopaths' and chiropractors' model were followed, it would be acupuncturists themselves who would be statutorily regulated, and not acupuncture techniques. (A useful analogy is the Medical Act 1983 which creates a register of medical practitioners who, once duly registered, are free to use whatever therapeutic methods they please.)

Since harm to the public is invariably posited as a central reason to seek statutory regulation, let us consider how far statutory regulation would actually protect the public, by reference to a recent case last year which generated a lot of adverse publicity for the acupuncture profession. A problem arose in connection with a London clinic where it was misreported that patients were allegedly re-injected with their own blood as part of an acupuncture treatment and contracted Hepatitis C, notwithstanding the fact that the therapy involved 'haemotherapy' and most definitely not acupuncture. Why this case is important is that the practitioners involved were not registered members of the BAcC, and thus fell outside its disciplinary jurisdiction. But critically, even if a statutory scheme were in place, and these practitioners were registered members, professional autonomy would not stop therapists from using any practice they might choose. Obviously, were such a practice to cause a patient harm, those conducting negligence or professional misconduct proceedings would look to statutory Codes of Practice and Ethics of the relevant statutory body to form their opinion as to the acceptability of such professional behaviour. The point I am seeking to make is that it is not statutory regulation which prevents harm to patients per se. In short, an Acupuncturists Act could not guarantee that all practitioners would be competent or ethical, and would only be able to act retrospectively if harm were caused to a patient. No matter what the regulatory framework, it is ultimately down to the individual practitioner to exercise individual responsibility.

Conclusion
Acupuncturists may feel that all of the objections to statutory regulation that have been expressed are comparatively minor compared with the possible benefits and are worth overcoming to secure the status that statutory regulation might bring. If this is the feeling within the BAcC and amongst most grass roots practitioners, then it may well be time to start the lengthy process of negotiations with the Department of Health to pursue the possibility of statutory status. However, this is not a decision to be taken either lightly or by the few. Undemocratic or unrepresentative decision-making would cause considerable resentment amongst the rank and file membership. This would be most regrettable given the impressive work of the BAcC in terms of raising professional morale. If, however, statutory regulation is thought to be the way ahead, then communication is vital, not just amongst members of the BAcC, but amongst all professional associations representing acupuncturists, and individual therapists working on the fringe. Above all, it is ordinary practitioners who will be most affected by statutory regulation and it is their voice which should carry the most weight.

Julie Stone
Julie Stone is a qualified barrister who worked for several years in a solicitor's company which specialised in health care law. In 1996 she co-authored Complementary Medicine and the Law (Oxford University Press). She advises a number of complementary professional bodies and now teaches many different complementary therapists. She is a member of the Regulation Working Group on the Prince of Wales' Initiative on Integrated Healthcare.