Etat des lieux de l'homéopathie en Belgique - KCE

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62 Homeopathy KCE Reports 154 5.1.4.2 The Colla law today The choice of a framework law During the elaboration of the Colla law, the legislature opted for a framework law. The purpose of this framework law is to offer patients various general guarantees before providing a more detailed formulation of the concrete conditions regarding training, assessment, ethics, practitioner registration, etc. Since it seemed neither possible nor desirable for the public authorities themselves to assume this task of detailed formulation, the legislature opted for a framework law, which mainly defines the procedure to follow. The key element of this framework law is the introduction of a joint committee, within which both traditional medicine and non-conventional practices are represented, which is tasked with determining which non-conventional practices are eligible for registration, and above all to define the conditions governing their exercise. 81 no. 1-1310/3 Entry into force As to the date on which the Colla law enters into force, a distinction must be made between articles 3, 8, 9, 10 and 11 and the other articles. Whereas articles 3 (joint committee), 8 (individual registration), 9 (obligations), 10 (relationship with Royal Decree no. 78) and 11 (penal provisions) will only enter into force six months after the first day of the month following the entry into force of the appointment of the members of the joint committee, the other articles have already been in force since 4 July 1999. The implementing orders More than ten years later, four implementing orders concerning the Colla law have been issued. They all relate to article 2, §1, 3°, namely the recognition of professional organisations. The first implementing order is the Royal Decree of 4 July 2001 concerning the recognition of professional organisations of practitioners of a non-conventional practice or a practice that could be qualified as non-conventional (Official Journal of 19 January 2002). This Royal Decree defines the conditions that a professional organisation must satisfy to obtain and retain recognition as a non-conventional practice. Recognition is granted by Royal Decree for a renewable period of six years. The procedure for the submission of a request for recognition is defined by the competent health minister. The minister defined these modalities in the ministerial order of 30 September 2002 defining the modalities for requesting recognition as a professional organisation of practitioners of a non-conventional practice or another practice that could be qualified as nonconventional (Belgian Official Journal of 5 December 2002). The second implementing order is the Royal Decree of 10 February 2003 recognising professional organisations of practitioners of a non-conventional practice or a practice that could be qualified as non-conventional (Official Journal of 26 February 2003). Through this Royal Decree, ten professional organisations of practitioners of nonconventional practices or practices that could be qualified as non-conventional were recognised. The third implementing order is the Royal Decree of 10 November 2005 recognising professional organisations of practitioners of a non-conventional practice or a practice that could be qualified as non-conventional (Official Journal of 9 December 2005). Through this Royal Decree, two new professional organisations were recognised. The fourth and last implementing order is the Royal Decree of 6 April 2010 recognising professional organisations of practitioners of a non-conventional practice or a practice that could be qualified as non-conventional (Belgian Official Journal of 12 April 2010). Through this Royal Decree, nine professional organisations saw their recognition renewed and two new organisations of practitioners of a non-conventional practice were recognised.
KCE Reports 154 Homeopathy 63 The consequences of restricted execution The Colla law cannot be applied at the moment because it has not been sufficiently executed. The joint committee tasked with issuing an advice concerning the general conditions for the exercise of all non-conventional practices, their registration and conditions for individual registration not yet having been constituted, the committee has not yet started its work. One notable consequence of this situation is that the practitioners of non-conventional practices (such as osteopaths, chiropractors, acupuncturists and homeopaths) who are not doctors are not currently allowed to perform acts relating to medicine. If they do not comply with this prohibition, they become guilty of the illegal practice of medicine, which is punishable by the law. Certain professionals such as physiotherapists can however practice on medical prescription certain treatments that can be considered as alternative treatments. Patients are also waiting for quality guarantees covering the exercise of nonconventional practices because, at the present time, practically anybody can exercise non-conventional practices without the benefit of any training. The condemnation of the Belgian state It is precisely because of this non-execution of the Colla law that the professional association Le Registre des Ostéopathes de Belgique summoned the Belgian state, in May 2008, before the Brussels court of first instance. On 22 January 2010, this court issued a judgement condemning the Belgian state. The court considered that the Belgian state was in default because of the non-execution of the Colla law within a reasonable period. This default results in prejudice to third parties, in particular professional associations, and compromises the honour and reputation of the professional organisation and its members. In this instance, there would have been no prejudice if the joint committee had been set up and if it had been in a position to carry out its task, in accordance with the Colla law. Since damages in kind had been requested, the court sentenced the Belgian state to set up the joint committee as stipulated in the Colla law, in accordance with the legal provisions, on pain of being compelled to pay 5 000 euros per month of default after a period of three months following notification of the judgement. After June 2010, the state must pay a penalty of 5 000 euros a month to two associations of osteopaths. A few remarks concerning the execution of the Colla law There are a number of elements that make it difficult to implement the Colla law. THE COMPOSITION OF THE JOINT COMMITTEE The joint committee must be composed mainly of ‘practitioners of a non-conventional practice’ (art. 5). It is not stipulated in article 5 whether these members must be registered individually. Neither does the law provide a definition of a ‘practitioner of a non-conventional practice’. As a result, it is not clear whether the law requires these practitioners to be registered for the composition of the first joint committee. The law states that nobody can exercise a non-conventional practice without being registered (Art. 8 §1). In addition, the professional exercise of a non-conventional practice by a non-doctor is equivalent to the illegal practice of medicine, which is punishable (although recent jurisprudence tends to temper this position and certain non-conventional practices can be found in the practices legally authorised for physiotherapists on medical prescription) 75 . If we keep to this interpretation that individual registration is not required to assemble the joint committee for the first time, it is possible that certain members of this committee would be guilty of the illegal practice of medicine. In order to comply with current legislation (the Colla law and Royal Decree no. 78) the joint committee could only be composed of doctors. This would go completely against the ’joint’ character specified in the law. In addition, there remains the problem that doctors who also resort to non-conventional practices and sit on the joint committee as ‘practitioners of a non-conventional practice’, must also as doctors satisfy the conditions of the Colla law and therefore be registered individually.
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Etat des lieux de l'homéopathie en Belgique - KCE

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