British Hom~eopathic Journal October 1990, Vol. 79, pp. 195-197
Our cover The root and flower of Caulophyllum thalictroides, the most important homoeopathic medicine in obstetrics. See articles by Ventoskovskiy and Popov and Moskowitz in this issue.
Alert: Hom0eopathy banned in US state!
The practice of homeeopathic medicine is now illegal in the US state of North Carolina! On 28 July 1990 the North Carolina (NC) Supreme Court reversed two earlier appellate decisions and upheld the NC Board of Medical Exam- iners' order which prohibits George Guess MD from utilizing homceopathic medicines in his practice. Dr Guess is a fully qualified and licensed doctor in family practice; the Board of Medical Examiners made it clear that the only complaint against him was his use of hom~eo- pathy. This means, in effect, that the practice of homoeopathy by licensed physicians is now illegal; its practice by unlicensed practitioners appears to be a grey area. Homeeopathic medi- cines, which are federally regulated, remain legal in North Carolina.
Charges Initially, in 1985, after a hearing before the Board of Medical Examiners, Dr Guess was found guilty of 'unprofessional conduct' for util- izing hom0eopathic medicines in his practice and ordered to cease dispensing those medicines. If he complied, he would be placed on probation for three years. Guess appealed to the Superior Court and won. That court ruled the Board's action 'arbitrary and capricious'.
The Board then appealed that decision to the NC Court of Appeals. That court determined that the action by the Board, while not being arbitrary and capricious, was still in error. It reasoned that since the inherent purpose of all legislation is to protect the public, it must be demonstrated that a medical therapy which does not conform to 'acceptable and prevailing' stan- dards within the state represents a potential risk to the public's welfare before it can legally be restricted. Finally, the Board appealed to the state Supreme Court. There they found the judi- cial vindication they so long sought. That court
reversed the decisions of both lower courts, thus, in effect, rendering the practice of homeeo- pathy illegal in the state.
Court ruling The essential elements of that decision are:
First, the NC General statute which was applied in this case, $90-14. Revocation, sus- pension, annulment or denial of license. (a) The Board shall have the power to deny, annul,
suspend, or revoke a license issued by the Board to any person who has been found by the Board to have committed any of the following acts or con- duct, or for any of the following reasons:
(b) Unprofessional conduct, including, but not lim- ited to, any departure from, or the failure to con- form to, the standards of acceptable and prevailing medical practice, or the ethics of the medical profession, irrespective of whether or not a patient is injured thereby.
1 The Court determined that the legislature must have felt that it was reasonable to assume that any departure from 'acceptable and pre- vailing' standards represents a risk to the public, and that it was not necessary for a specific determination to be made about any particular deviation's (i.e. therapy's) poten- tial to harm. (This suggests that the kind of departure from 'acceptable and prevailing' standards is irrelevant.)
2 The Court determined that, since lay persons were unqualified to make informed decisions on medical matters affecting the public, the legislature rightfully created an expert admin- istrative body (the Board) to make such judge- ments, and that the judiciary must defer to the expertise of the Board in medical matters. Consequently, the Board has discretionary powers to determine what does and does not conform to 'acceptable and prevailing' stan- dards. Furthermore, the Board need not specifically enumerate how a particular diver- gence might harm the public.
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3 The Court determined that the Board pre- sented competent evidence that homoeopathic practice did not conform to the 'acceptable and prevailing' standards within North Caro- lina. (The evidence consisted of two phys- icians who listened to Dr Guess's description of homeeopathy and then stated that they had never been taught such things in medical school and they knew of no physician in the state, other than Dr Guess, who practised homeeopathy; therefore homoeopathy was neither acceptable nor prevailing.) The Court ruled that this evidence was enough. All the evidence which was submitted regarding the safety and efficacy of homeeopathy and its widespread acceptance throughout the world simply was not considered relevant.
4 The Court rejected Guess's contention that the Board's application of the statute against him was selective. The Court supposed that this action would not imply that any new or rediscovered therapy would similarly be suppressed.
5 The Court determined that the evidence which was presented as to the recognition and acceptance of homoeopathy elsewhere was irrelevant since homoeopathy is neither pre- vailing nor acceptable in North Carolina. To quote: 'While some physicians may value the homeopathic system of practice, it seems that others consider homeopathy an outmoded and ineffective system of practice. This conflict, however interesting, simply is irrelevant here in light of the uncontroverted evi- dence and the Board's findings and conclusion that homeopathy is not currently an acceptable and pre- vailing system of medical practice in North Carolina.
6 The Court acknowledged that the question of the legitimacy of homoeopathy would be an appropriate issue for the state legislature or the scientific medical community to consider.
7 With regard to Guess's contention that the Board's action unconstitutionally invades his and his clients' privacy rights and their rights to choose their preferred medical treatment, the Court alluded to an earlier precedent which stated, 'there is no right to practice medicine which is not subordinate to the police power of the states'. Further, the Court felt that Guess was not being constrained from practising medicine, only from failing to con- form to acceptable standards. Additionally, the Court stated that Guess lacked the stand- ing to raise his patients' privacy interests, and the Court determined that it ' . . . recognized
no fundamental right [of the public] to receive unorthodox medical treatment'.
8 Lastly, the Court disagreed with Guess's con- tention that the Board was, by its action, exer- cising unbridled and unconstitutional monopolistic power.
Dissenting opinion One justice dissented from the opinion of the majority of the Court. Justice Frye felt that evi- dence of the potential for harm of an uncon- stitutional therapy should be demonstrated before a licensed physician could be censured. In his dissention Justice Frye said,
This is not the case of a quack beguiling the public with snake oil and drums, but a dedicated physician seeking to find new ways to relieve human suffering. The legis~ lature could hardly have intended this practice to be considered "unprofessional conduct" so as to revoke a physician's license in the absence of some evidence of harm or potential harm to the patients or the public. Nothing in the record before the Board or this Court justifies so broad a sweep in order to secure the public "against the consequences of ignorance and incapacity as well as of deception and fraud".
He went on to say,
1 also disagree with the majority's conclusion that Dr Guess's evidence presented to the Board concerning the efficacy of homeopathy and its use outside North Carolina was not relevant to the issue before the Board. North Carolina does not and should not exist as an island unto itself. The evidence that homeopathy is accepted in other states and in other countries ought to be of some significance to the Board and to the citizens of this State concerned about the public health and safety. The majority rejects evidence of the legitimacy of homeopathy in other states and countries through- out the world as being irrelevant because homeopathy is not currently an acceptable and prevailing system of medical practice in North Carolina. This raises the legitimate question of how the acceptable and pre- vailing practice can be improved in North Carolina if we do not even consider what happens in other states and countries.
The Bastille of medicine So stands the North Carolina Supreme Court's decision. A physician in this state can no longer prescribe hom0eopathic medicines to his patients. The public no longer has access to homceopathic treatment administered by phys- icians. North Carolina is now well on its way to becoming the 'Bastille of medical science' where the only treatment available will be orthodox allopathic medicine.
The provincialism of the state's position is bla- tant. That the status of hom0eopathy in the rest
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of the world should be construed as irrelevant is inconceivable. That the long track record of homceopathy's safety and the evidence of its effi- cacy should be disregarded seems negligent. Most ominous of all, however, is the Supreme Court's declaration that it: ' . . . recognized no fundamental right [of the public] to receive unorthodox medical treatment'. In other words, the state can tell the public exactly what form of health care it can have and what it cannot. Surely this is an abuse of the state's police power that the legislature never intended.
It is to be hoped that the citizens of North Car- olina will not tolerate this situation for long. It is to be hoped that they will demand legislation guaranteeing both their right to freedom of medical choice and the right of physicians to employ hom0eopathic medicine in their practice. Petition and letterwriting campaigns are essen- tial. Letters expressing outrage and demanding that hom0eopathy be made available in a medical context (i.e. as practised by physicians) can have a significant impact. Letters should be directed to legislators and the Governor (addresses below). Funds are needed urgently.
Of course, Dr Guess will not be idle during all of this. He will be filing suit in federal court to reverse the State Supreme Court's disturbing decision. He will continue to fight to practise homeeopathic medicine in North Carolina. He realizes the dire importance of this disastrous legal precedent, the implications for other states and for the nation.
Support George Guess and hom~eopathy The British Homoeopathic Journal urges all its readers to give moral, and if possible financial, support to George Guess in this vital struggle. If this case is lost there may be serious repercus- sions for homoeopathy in the rest of the United States and around the world. Letters protesting at the decision should be sent to elected repre- sentatives of the state of North Carolina.
Despite the court's ruling that experience in other countries is irrelevant, it is important that
legislators are made aware that this ruling places North Carolina in an internationally isolated position. The only other states which have attempted to suppress hom0eopathy in recent times have been some Eastern Bloc countries, particularly East Germany and Czechoslovakia. But this policy has been abandoned since the recent advent of democratic governments in those countries. One wonders how comfortable the legislators of North Carolina will feel with their Stalinist bedfellows!
Please send financial contributions to National Center for Homeopathy Legal Defense Fund National Center for Homeopathy 1500 Massachusetts Ave., NW, Suite 42 Washington DC 20005 USA Mark your cheque 'for the George Guess, MD case'.
Write to US Representative James M. Clark 1 North Pack Square, Suite 434 Asheville NC 28801 USA.
US Senator Terry Sanford PO Box 2137 Asheville NC 28802 USA.
Governor Jim Martin Office of the Governor Raleigh NC 27603 USA.
Please send a copy o f your letter to NC Coalition for Medical Freedom 47 Middlemont Ave. Asheville NC 28806 USA. 9