Etat des lieux de l'homéopathie en Belgique - KCE

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70 Homeopathy KCE Reports 154 Nevertheless, the correctional court acquitted the acupuncturist in question. The president stressed that the use of non-conventional medicines was part of social reality, as confirmed by the Colla law and the attitude taken by several sickness funds. The president also pointed out the resulting contradiction between acupuncturists who had undergone serious training and were holders of an acupuncture diploma and members of a recognised professional organisation, but illegally practised medicine, and doctors who were authorised to perform acupuncture, in application of their therapeutic freedom, but did not have the benefit of training for this purpose. This situation prompted the president to take the following attitude: an acupuncturist could choose not to treat the patient that consulted him because of his competence in the field of acupuncture; in doing so, the acupuncturist would contravene his professional responsibility, which insists that the patient should be given the required assistance, thus committing an act punishable by law for omitting to assist a person in danger (article 422bis of the penal code). The obligation to provide quality care could oblige the acupuncturist to administer acupuncture treatment, while such treatment constitutes an offence against Royal Decree no. 78, based on the current situation. The court judged that for the accused there could be a justifying emergency situation, following the paradoxical finding where the accused contravened Royal Decree no. 78 (because of the absence of executory decisions) in order to preserve a greater legal value, namely the dispensation of quality care to patients. Meanwhile, the public ministry has appealed against this judgement. The judgement of the court of appeal was not known at the time of completing this study. In another case, the Antwerp court of appeal confirmed on 25 June 2010 the acquittal of a defendant, for similar acts, pronounced by the correctional court of Turnhout on 13 February 2009. In this case it was a physiotherapist who, after having followed a training course in acupuncture, began to exercise this practice. He was also summonsed for the illegal practice of medicine, namely practicing acupuncture as a non-doctor. The president of the correctional court first stated that the accused exercised a completely separate medical profession as a physiotherapist, which authorised him to perform certain acts listed by the law without becoming guilty of the illegal practice of medicine. These include certain medical acts that can only be performed in consultation with the attending physician. The president went on to state that the exercise of acupuncture did not form part of the conventional practices referred to in Royal Decree no. 78, but fell into a legal void because of the non-execution of the Colla law. The president also pointed out that the law placed no explicit prohibition on physiotherapists practising acupuncture, and that it appeared that the legislator, through the Colla law, also intended to authorise physiotherapists to exercise non-conventional practices under certain conditions. The president also referred to the Royal Decree of 10 February 2003, concerning recognition of the professional association of acupuncturists. The fact that non-doctors are members of this association prompted the president to deem that this recognition by the public authorities should be considered as recognition of the legitimacy of the practice of acupuncture by non-doctors. The president also deemed that a physiotherapist who practiced acupuncture should comply, for this practice, with the restrictions and obligations applicable to a conventional practice, precisely because of the current legal void. Considering that the defendant had undergone serious training in acupuncture and that he was a member of a recognised professional association, and also considering that he had in this case provided proof of the fact that he had always acted in consultation with an attending physician, the president judged that the defendant, in the absence of legal execution conditions, had complied with all the currently applicable legal obligations for practicing acupuncture in the context of a medical profession, and that he had respected all the conditions and restrictions imposed on physiotherapists by Royal Decree no. 78. However, the president referred to an interpretation of the Court of Appeal in Ghent in its ruling of 28 June 2000, where a physiotherapist was judged guilty of the illegal practice of medicine when, on the basis of his knowledge of Chinese medicine and acupuncture, he made his own diagnosis and dispensed treatment on this basis. In the case brought before the Ghent court of appeal, the accused was declared guilty of the illegal practice of medicine, but was given a suspended sentence because of the serious training he had followed and the dilatory attitude of the legislator. (Ghent, 28 June 2000, T. Gez. 2001-02, 195).
KCE Reports 154 Homeopathy 71 Recent jurisprudence therefore does not automatically consider the exercise of a nonconventional practice without being a doctor as the illegal practice of medicine. It should however be noted that the courts do not generally give an acquittal, because there is no question in these cases of the illegal practice of medicine (which it is), but rather a ‘bypass’, such as the long-standing existence of a legal void, or the theory of THjustification by a state of necessity. It concerns legal concepts under ordinary penal law, which therefore have no fundamental link with Royal Decree no. 78. On the other hand, the oldest jurisprudence takes this view. Note in particular the sentence of 14 September 1999 of a Chinese doctor by the court of first instance of Ghent, for the illegal practice of medicine and pharmacy. This practitioner was a Chinese doctor operating in Belgium and the Netherlands, practicing mainly acupuncture, phytotherapy and the administration of herbal remedies. Although he had been trained as a doctor in China, he had not obtained recognition of his diploma in Belgium because of the duration and complexity of the procedure. For this reason he was not authorised to perform in Belgium acts classified as medicine or pharmacy. In his defence, he invoked the argument that he was not practicing medicine. This argument was dismissed because both doctrine and jurisprudence in Belgium consider the practice of acupuncture as forming part of medicine. In accordance with a decree of the Court of Cassation of 20 June 1990, Royal Decree no. 78 must not be interpreted in a restrictive sense and it also covers alternative medicine 90 . Although the Chinese doctor invoked the Colla law on the subject of acupuncture (not yet published at the time, but already promulgated and published by the King), the court judged that he could not invoke it because he was not registered as a practitioner of acupuncture. The same applies at the present time because of the absence of executory decisions relating to the Colla law. The courts have also ruled on the responsibility of a homeopath who carried out this practice in the Netherlands where he treated Belgians. One of them brought this Belgian homeopath before the Belgian courts. Since the homeopathic treatment had been administered in the Netherlands, the case was governed by Dutch law. On 16 February 1998, the Antwerp court of appeal recognised the specificity of a homeopath in that a patient that chooses to contact such a non-conventional practitioner does so in full awareness and cannot expect the same criteria as a traditional doctor, and that the patient to some extent accepts the risk. This is not strictly speaking an acceptance of the risk, but a simple application of the rules of responsibility, namely checking the references of a normally prudent non-conventional homeopath placed in the same context 91 . In the 1980s a number of osteopaths were summonsed for the illegal practice of medicine. Most of them (mainly physiotherapists) were acquitted. An osteopath was however sentenced on 15 May 1985 by the court of first instance in Namur. Since the defendant did not have a medical diploma, the court tried to determine whether or not he had performed medical acts. To do this, the president made a comparison between (certain) osteopathic treatments and medicine and concluded that the acts performed on a regular basis by the accused should be considered as medical treatments. In this case, the defendant was sentenced for the illegal practice of medicine.
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