Introduction
There is currently a new Traditional and Alternative Medicine bill in Ghana, which is waiting to be passed. Policymakers began formulating this bill in 2010, with the current version of the bill being finalized in 2014. The purpose of this bill is to set up a Traditional and Alternative Medicine Council, as a corporate body to regulate the practice of traditional and alternative medicine. Due to the controversies associated with the Traditional Medicine Practice Act 20001 (Act 575), the scope of its mandate to extend to alternative medicine, and ambiguities about who qualifies to be called a Traditional Medicine Practitioner, the new bill seeks to revise the legislation to regulate traditional medicine practice as well as alternative and complementary medicine. The new bill defines alternative medicine as any form of medicine that is outside the mainstream of allopathic and traditional medicine and involves the management or treatment of diseases in cooperation with natural forces and the defensive mechanisms of the body. The subsequent sections of this paper present a summary of some components of the Traditional and Alternative Medicine Bill 2014, interpretations of the bill, Statutory Interpretation Approaches, a discussion, and some recommendations.
Summary of Selected Sections of the Traditional and Alternative Medicine Bill 2014
Review of the 2014 bill reveals the following;
Clause 3 (a) notes that the Council shall set and enforce standards for the practice of traditional and alternative medicine.
Clause 3(c) deals with the promotion of training in traditional and alternative medicine.
Clause 3 (d) states that the Council shall approve in consultation with the educational and research institutions determined by the Board, the curricula for training in traditional and alternative medicine in those institutions
Clause 3 (e) states that the Council shall collaborate with the Ministry of Health to establish centers for traditional and alternative medical care within the national healthcare delivery system
Clause 3 (h) states that the Council shall collaborate with the Food and Drugs Authority to ensure the quality, safety, and efficacy of traditional and alternative medicines.
Clause 3 (i) also states that the Council shall promote research in the science of traditional and alternative medicine
Clause 11 deals with Ministerial directives and states that the Minister may give directives to the Board on matters of policy and they shall comply.
Clause 12 establishes an advisory committee for each field of specialization. It states that a committee has the responsibility to consider applications for registration and make recommendations to the Council, advise on training courses for practitioners and determine other issues.
Clause 12 (b) states the Committee of specialization shall assist in the formulation of a code of ethics;
Act in consultation with practitioners within that field;
Advise on training courses for practitioners;
Assist in the preparation of syllabi for use in training institutions;
Establish an award scheme for deserving practitioners;
Liaise with international associations to assist the development of the field; and
Determine any other issues.
Clauses 13 to 19 are on the registration of practitioners. It states the application is to the registrar and qualifications are spelled out. The applicant must have adequate proficiency in the practice of tradition or alternative medicine.
Clause 14 (1) states that a person does not qualify to practice as a traditional or alternative medicine practitioner unless:
In the case of alternative medicine, the person holds a valid qualification in the field of specialization of alternative medicine to which the application relates;
The person has adequate proficiency in that field of alternative medicine;
Has passed the relevant professional examination; and
Is of a good character.
Clause 39 emphasizes on titles of practitioners. It states that the Minister responsible for Health, on the recommendations of the Board, may by regulations decide the titles be used by practitioners of traditional or alternative medicine based on the type of service rendered and qualifications of the practitioner.
Clauses 17, 18, and 19 deals with the principle of natural justice for practitioners.
Clauses 20 to 21 provide the regulation of food supplements and health foods. It states that a person who sells or supplies food supplements and health food is required to be registered by the Council. The Council is also mandated to license premises used for the sale or supply of food supplements and health foods.
Clauses 22 to 33 deals with the licensing of premises for the practice of traditional and alternative medicine. Under Clause 22, a person is not to own or operate unlicensed premises. The procedure for application is provided in clause 23.
Clause 31, 32, and 40 deals with the power of entry and inspection, obstruction, and notification of a coroner.
Clause 41 deals with Regulations
41(1) states that the Minister may, on the advice of the Board, by legislative instrument make Regulations to:
Prescribe the standards for the safety of and sanitary conditions of a practice.
Prescribe practice standards for practitioners.
Provide for the discipline of practitioners.
Regulate the arrangements for sterilization and disinfection of practice. and the prevention of the spread of infectious diseases from a practice;
Prescribe the fees to be paid for the registration of practitioners and the licensing of premises in respect of registration and licensing;
Regulate the preparation and storage of herbal medicine;
Regulate the titles to be used by practitioners based on the type of service rendered and the qualification of the practitioner;
Regulate itinerate Traditional Medicine Practitioners;
Regulate licensing of premises and registration of practitioners
Protect medicinal plant resources;
Protect indigenous intellectual property on traditional Medicine and
Provide for any other matters ancillary to the functions of the Council
Interpretations of the Traditional and Alternative Medicine Bill 2014
Clause 42 deals with interpretation, an important aspect of the bill
The bill defines the following practices:
“Acupuncture” means a Chinese healing art in which special needles are used to pierce and stimulate very precise points on the body to produce a wide range of therapeutic effects;
“Acupressure massage” means a type of bodywork with the same concept as acupuncture but using pressure applied from the therapist’s fingertip or knuckle to stimulate specific points on the patient’s body;
“Allopathic medicine” means a system of medical practice that is based on the application of rational scientific evidence and inquiry which has been the dominant medical practice since the 19th century and is also referred to as western or orthodox medicine;
“Alternative medicine” includes traditional medicine systems that are imported and any form of medicine that is outside allopathic and African traditional medicines which involves the management or treatment of diseases in cooperation with natural forces and the defensive mechanisms of the body;
“Ayurvedic medicine” means a system of medicine or way of living that is used for prevention and treatment of diseases based on Vedic sacred philosophies developed in India during the 5th Century BC to the 5th Century AD. It includes the use of herbs, medicinal baths, and foods;
“Botanical medicine” means liquid or dried extracts from plant parts, fruits, and juices used as medicines for the treatment and prevention of diseases;
“Chiropractic” means a medical care system that deals with the relationship between the spinal column and the nervous system;
“Herbal medicine” includes
A finished, labeled medicinal product that contains as active ingredients, aerial or underground parts, or other plant material or the combination of them, whether in a crude state or as a plant preparation; and
Plant material such as juices, gums, fatty oils and any other substances of this nature which may contain excipients in plant material in addition to the active ingredients and in exceptional cases may also contain natural organic or inorganic active ingredients or both which are not of plant origin.
“Naturopathy” is a system of healthcare usually drugless, which uses a wide variety of therapies including hydrotherapy, heat, massage, nutritional supplements, and herbal medicines with the purpose of stimulating optimum functioning of the whole person and supporting the person’s own innate healing capacity;
“Natural forces” means energies derived from light, heat, air, water, and physical manipulations that are used to stimulate the immune system to treat diseases;
“Premises” include a house, building, structure, tent, caravan, land, ship, boat, aircraft, and a mechanically propelled vehicle;
“Prescribed” means prescribed by regulations made by the Minister under this Act;
“Radionics” means a method of diagnosing and treating disease through the use of an instrument which senses vibrations;
“Reflexology” means bodywork which utilizes the principle that the areas reflex points that correspond to major organs, glands, and areas of the body which can be used to treat diseases.
“Traditional medicine” means the sum total of knowledge, skills, and practices based on theories, beliefs, and experiences indigenous to different cultures that are used to maintain health, as well as to prevent, diagnose, improve or treat physical or mental illness;
“Therapeutic massage” means the manipulation of soft tissue and musculoskeletal structures done with the knowledge of anatomy with the purpose of enhancing health, such as acupressure, reflexology, Thai massage, etc.
Clause 43 deals with the Transitional Provisions and (3) states that “a Practitioner of alternative medicine in practice before the commencement of this Act shall register the practice under this Act within six months of commencement of this Act”.
Clause 44 deals with Repeal and Savings and (1) states that “the Traditional Medicine Practice Act, 2000(Act 575) is hereby repealed”.
(3) notes that the registers of practitioners in use immediately before the commencement of this Act and each document prepared or issued under Act 575 shall continue in force as if kept, prepared, or issued under the corresponding provisions of this Act.
Schedule
The Bill notifies that alternative medicine diagnostic or therapeutic modalities or systems to be licensed are:
Discussion
The legal definition of naturopathy
Clause 42 defines Naturopathy in Ghana as:
A system of healthcare usually drugless, which uses a wide variety of therapies including hydrotherapy, heat, massage, nutritional supplements, and herbal medicines with the purpose of stimulating optimum functioning of the whole person and supporting the person’s own innate healing capacity.
The concerns
From the aforementioned presentation, it can be seen that the proposed Traditional and Alternative Medicine bill (2014) is a watertight document that aims to help streamline the profession of Complementary and Alternative Medicine in the Ghanaian jurisdiction. The bill, if promulgated, is likely to put Ghana in the global limelight of the CAM profession. However, there are a few concerns in the legal definition of Naturopathy. It is Clause 42 of the interpretation section of the bill in Ghana that drew our attention to this paper.
In the legal definition of naturopathy, the bill introduced the wording “usually” drugless. The term “usually” further leaves room for controversies. In Law, interpretation is very important. The purpose of Interpretation of Statutes is to help any Judge to ascertain the intention of the Legislature; not to control that intention or to confine it within the limits, which the Judge may deem reasonable or expedient. The wording usually is likely to create a legal tussle in the future, as more people are developing naturopathic knowledge and the law in Ghana. The issue of naturopathic illiteracy is gradually facing out.
On the other hand, interpretation issues crop up in almost all adjudicatory processes and occur more prominently in judicial litigation. On the other hand, it is understood that language itself is imperfect and does not confirm certainty in the understanding of words.
As such, Lord Denning was right as he said in Asher v Seaford Court Estates [1949] 2 KB 481 that “the English language is not an instrument of mathematical precision.2
Additionally, the Courts have responded to interpretative issues by adopting one or more approaches to provide a legal understanding of ambiguous statements. It is refreshing to know that the courts have adopted three rules to provide a guide on interpretative issues.
An example is the literal rule as espoused in Sussex Peerage Case:3
“The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.”
The second is the Golden Rule which states that some judges can do away from the ordinary meaning where that would lead to absurdity. This was espoused in Grey v Pearson (1857) 6 HL Cas 61, where Lord Wensleydale indicated:
“… The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, to avoid that absurdity and inconsistency, but no farther.”
The third is the Mischief Rule espoused in Heydon’s Case (1584) 3 Co Rep 7, where it was stated that for the true interpretation of all statutes four things are to be considered:
What was the common law before the making of the Act?
What was the mischief and defect for which the common law did not provide?
What remedy did Parliament resolve and appointed to cure the disease?
4th. The true reason of the remedy; and then the function of the judge is to make such construction as shall suppress the mischief and advance the remedy.
Statutory Interpretation Approaches
The word “usually” appearing in the Traditional and Alternative Bill (2014) makes it a statutory issue. Hence, this section of the paper examines the different approaches to statutory interpretation. In law, maxims of interpretation, or what are referred to as linguistic canons, are the rules of language which are used in the interpretation of statutes. The rules are aids or guiding pathways and not a binding principle of law. The Court can use it or depart from it when the need arises especially where there is drafting error or would amount to injustice or defeat the purpose of the legislation or intention of parties. This summed up the saying that maxims are servants, not masters as espoused in Maunsell v Olins [1975] AC 373. In this case, the House of Lords had to determine whether a farm cottage attached to a farmhouse constituted ‘premises’ for the purposes of the Rent Act. Lord Simon set out the two-tier to be taken under the purposive approach. Lord Simon said:
“The first task of a court of construction is to put itself in the shoes of the draftsman; to consider what knowledge he had and, importantly, what statutory objective he had …being thus placed…the court proceeds to ascertain the meaning of the statutory language”.
Professor John Willis4 analyzed this in his article “Statutory Interpretation in a Nutshell” (1938). He recommended that:
“A court invokes whichever of the rules produces a result that satisfies its sense of justice in the case before it. Although the literal rule is the one most frequently referred to in express terms, the courts treat all three as valid and refer to them as occasion demands, but, naturally enough, do not assign any reason for choosing one rather than another”.
This means that any of the three maxims can be called in to be used in statutory interpretation.
Sir Rupert Cross,5 in his paper Statutory Interpretation (3rd ed, 1995), also held the view that the English approach does not emphasize the choice of the maxims. Some scholars have also explained that judges prefer to adopt the idea of “purposive” statutory construction, ie one that will “promote the general legislative purpose underlying the provisions” (per Lord Denning MR in Notham v London Borough of Barnet.6 In this case, both the literal and purposive approaches are compared before decisions are taken. In Pepper (Inspector of Taxes) v Hart7 AC 593, Lord Browne-Wilkinson referred to “the purposive approach to construction now adopted by the court to give effect to the true intentions of the legislature”. Lord Griffiths said: 7
“The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of the legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted”.
Nevertheless, judges are likely to adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation and expression of Parliament’s purpose or policy” (per Lord Scarman in R v Barnet LBC.8
The law commission9 explained the significance of the interpretation of a provision of the generic core legislative purpose. The Renton Committee on the Preparation of Legislation10 approved the following as the rule of language:
i. Ejusdem Generis
It states that general words following particular ones normally apply only to such persons or things as are ejusdem generis (of the same genus or class) as the particular ones. Powell v Kempton Park Racecourse11 AC 143. In this case, the Betting Act 1853 made it an offence to keep a house, office, room or other places for the purposes of betting. The House of Lords had to decide if the statute applied to Tattersall's enclosure at Kempton Park Racecourse.
The court applied the ejusdem generis rule and held that the other items mentioned in the statute related to places indoors whereas Tattersall's enclosure was outside. There was thus no offense committed.
In Jebeile v Norwich Union Fire Insurance Society Ltd.12 The Ghanaian Supreme Court stepped in to say that bicycles did not come within the risks covered under the policy using the ejusdem generis rule. This maxim was also used in Rep. v. Saffour II. In this case, the court was called upon to settle the word “revenue” in Section 17(2) of the Administration of Lands Act, 1962. The court used the ejusdem generis rule and said the generic word “other payments” implied regular payments for use of stool land and excluded “drink money.”
The second rule is Noscitur a Sociis. This rule is used by Courts to interpret legislation, in case a questionable understanding of a word is associated with the words. This means that most words have no meaning as they are put together. This was explained in Osei-akoto Vrs Attorney General.13 The court held that Executive Instruments are not of legislative character and that they are outside the scope of instruments enshrined in Article 11(7) of the 1992 constitution.
The third rule is Expressio Unius Est Exclusio Alterius. This rule is of the view that if the intended legislation has the intention to include a particular thing, it would definitely have included expressive terms. As such, once it has been excluded, it means the legislation intentionally excluded them. In Tempest v Kilner, the court had to rule whether the Statute of Frauds 1677 applied to the sale of stocks and shares. The Act required contracts for the sale of ‘goods, wares and merchandise’ to be evidenced in writing if they were above a specified value. The court decided that stocks and shares were not covered by the Act as the specific words ‘goods, wares and merchandise were not followed by general words.
Conclusions and Recommendations
The interpretation of statutes in Ghana is found in the Interpretation Acts of Parliament, Constitutional Instruments (CLs), and Legislative Instruments (LIs). Also, there are many reasons why the Court is called upon to provide a legal understanding of issues and such as what we found in the draft Traditional and Alternative Medicine Bill (2014).
The wording “usually” in the definition of Naturopathy in the Ghanaian jurisdiction is likely to be a subject of contention in the future. The refreshing news is that Act 792 mandates the courts in Ghana to use the purposive rule in interpreting enactments, which comprise Acts of Parliament, CLs, and LIs. In doing this, we found that the interpreter has to adopt the following:14
Read the legislation in its entirety to understand the legislative intention or the purpose of the statute by looking at the head note or marginal notes, the other provisions, the long title, the memorandum, and the other internal aids.
Get an understanding of the words in their ordinary sense or right cases, the technical sense.
Use the ordinary sense or technical sense if it is in accordance with the purpose of the legislation and given effect to it; and
Finally, where the interpreter finds that using the application of the ordinary or technical sense would defeat the purpose of the statute or result in injustice and many others, the interpreter can depart from it to accord the legislative meaning.
This also supports what Baude and Sachs15 wrote:
“The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document’s meaning or a drafter’s intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law.”
This goes to show how important interpretation is in the legal profession. Hence, Bill’s interpretation of Naturopathy using the phrase “usually” is worrying to us in this paper. This “law of interpretation” explains the actual meaning of a specific instrument “means” in our legal system.
Farber and Frickey16 explain that a judge’s job is to “read the [text] and do what it says. Alexander, L17 took a different perspective and explains that there are instances where judges are likely to disagree pugnaciously about regard to the explanation of the legal text, but was fast to say that the ultimate tool is to look at the intentions of the authors. Additionally, in one lecture by Breyer S,18 he also notes that it is prudent for judges to examine the purpose of the instrument. But still, Crosskey W19 opined that in case judges are still struggling to comprehend, there is a need for them to resort to the legal dictionary to examine the time and place to determine the outcome.
Examining the arguments from diverse legal scholars, one could also take inference from the fact that a purposive approach will be paramount for the determination of what might constitute Naturopathy in the Ghanaian jurisdiction. The aim of the Bill states that:
“The bill seeks to revise the legislation to regulate traditional medicine practice as well as alternative and complementary medicine”. The emphasis is on traditional, alternative, and complementary medicine. It is trite that alternative medicines are based on nature. However, judging from the changing trend in modern medical practices, Robertson, R20 explained that some states in the US have enacted laws to allow Naturopathic Doctors to have prescription rights. Hence, as espoused by Crosskey19 in advocating for judges to resort to the legal dictionary, we found that Lawinsider.com defines usually as:
“Most often. Means what is required most of the time, what is necessary to handle most of the job or the activity that takes the most time to do. (This may not be the activity that’s done most frequently)”.
It also means: “that procedures are carried out 75% of the time during the observation and no major problem is observed. In other words, there are relatively few lapses in practice, such as not washing 1 child’s hands or not sanitizing diapering surface 1 time”.
What it means is that, under any normal condition, a Naturopath treats a patient using Natural forces or natural medicines. However, there could be instances where the Naturopath could use pharmaceuticals or orthodox means to treat the patient. Is this what the drafters of the Bill intend for future Naturopathic practices in Ghana?
This notwithstanding, Clause 41(1) b of the bill further gives the power to the Minister of Health on regulation to Prescribe practice standards for practitioners. The Minister could use this power to prescribe the standard for Naturopathy in the Ghanaian jurisdiction. We however advocate for the drafters to take a second look at the legal definition of Naturopathy in Ghana and probably reframe or delete the phrase usually.
Our other concern in the bill is the quantum of power given to the Minister of Health. The Ghanaian landscape is highly politically inclined. Additionally, Medical Doctors in politics are normally given the nod to head the Ministry. If a Medical doctor who is politically motivated to sabotage Traditional and Alternative Medicine becomes Minister, it is likely that the profession will suffer. For instance, Clause 41 deals with Regulations and 41(1) states that the Minister may, on the advice of the Board, by legislative instrument make Regulations to states that Minister may, the advice of the Board, by legislative instrument make Regulations to Prescribe the standards for the safety of, and sanitary conditions of, a practice; Prescribe practice standards for practitioners; Provide for the discipline of practitioners; Regulate the preparation and storage of herbal medicine; Regulate the titles to be used by practitioners based on the type of service rendered and the qualification of the practitioner; Regulate itinerate Traditional Medicine Practitioners; Regulate licensing of premises and registration of practitioners; Protect medicinal plant resources; Protect indigenous intellectual property on traditional Medicine, and Provide for any other matters ancillary to the functions of the Council.
We feel the Minister can decide not to heed the advice from the Board in order not to grow the industry. However, the alternative is that CAM practitioners should start advocating for the people to also venture into politics to grow their industry in the future. We found that the bill is likely to help grow the industry if promulgated and patients will have more options in their healthcare delivery. For instance, Clause 3 (e) also states that the Council shall collaborate with the Ministry of Health to establish centers for traditional and alternative medical care within the national healthcare delivery system. Alternative medicine services would also be integrated into the existing Traditional Medicine departments in the government hospitals. The challenge might be which types of alternative medicine would be considered in the government Hospitals. We believe there are too many alternative medicine systems accepted into the bill. India has what they considered to be a recognized form of alternative medicine by the government. Practices such as radionics and magneto therapy are controversial.
We also recommend that if this bill is passed, the registrar of the Council should have a legal understanding for implementation. For instance, Act 575 of Schedule 13 deals with Titles of practitioners. It states that: The Minister, on the recommendations of the Board given in consultation with the Association, may prescribe by Regulations the titles to be used by practitioners based on the type of service rendered and the qualifications of the practitioners.
This appears not the case we witnessed. Titles for practitioners are still being contested instead of protected. If there were extensive consultation and follows the procedure in Schedule 13, titles for practitioners would have been protected and become illegal for unregistered practitioners. The bill finally captured food supplement marketers due to the many multilevel companies that mushroomed in Ghana. This would help regulate the food supplement industry. We expect implementers of the bill to follow the procedures in the future law if promulgated to protect the industry.
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