MLN Vol.10.No.1

Massage Law Newsletter

Vol. 10, No .1                                  ISSN 1073-5461                                      June 1999   

A CONFRONTATION BETWEEN HUMAN RIGHTS AND

 MONOPOLY CONTROL  IN BRITISH COLUMBIA

THE CONTROVERSY ABOUT REGULATION  INVOLVES

THE CANADIAN CHARTER OF RIGHTS  AND FREEDOMS,  AND THE UNITED NATIONS' INTERNATIONAL BILL OF HUMAN RIGHTS

Albert Schatz, Ph.D.

Part 1: CMTBS's "silly" proposal created controversy

Part 2: Follow the money trail to find out what drives the regulation machine

Part 3: OBITUARY. The death of CMTBC's "silly" 1995 proposal

Part 4: The prognosis of CMTBS's 1998 proposal is not good

Part 5: From potential harm to harm that has actually occurred

Part 6: Does CMTBS's 1998 proposal violate theCanadian Charter of Rights and Freedoms?

Part 7: Does CMTBS's 1998 proposal violate the United Nations' International Bill of Human 

                    Rights?

Appendix  A: How Lincoln Lau organized opposition to CMTBS's proposals

The best of science doesn't consist of mathematical models and experiments, as textbooks make it seem. Those come later. It springs fresh from a more primitive mode of thought, wherein the hunter's mind weaves ideas from old facts and fresh metaphors and the scrambled crazy images of things recently seen. To move forward is to concoct new patterns of thought, which in turn dictate the design of the models and experiments. - E. O. Wilson, Harvard biologist

 This report is a follow-up of an article on the controversy over regulation in British Columbia.1 

Acronyms

HPC = the Health Professions Council of British Columbia.

CMTBC = the College of Massage Therapists of British Columbia which oversees self-regulation.

RMT = the title Registered Massage Therapist.

RMTs = Registered Massage Therapists who  use the title RMT.

Non-RMTs = all other bodyworkers who are not registered and may not use the title RMT.

MSP =  The British Columbia's Medical Services Plan which compensates RMTs for treatig patients referred to them by doctors.

PART 1: CMTBA'S "SILLY" PROPOSAL CREATED CONTROVERSY

CMTBS's 1995 proposal is "silly"

The controversy in British Columbia was reviewed in the November/December, 1998, issue of Massage Magazine.  The title of that article is British Columbia's Battle of the Bodyworkers. -  Animosity Grows toward BC Massage College as Legislative Changes to Massage Regulations are Proposed.2 

The report provides information about how some non-RMTs have been intimidated and harassed in  attempts to drive them out of business. 

 Susan Stewart, President of the College of Massage Therapists of British Columbia (CMTBC) admitted "they made mistakes in their first proposal" submitted to HPC in 1995. She said,  "The submissions sound ridiculous [now]... It was silly. It looked as if we were going for [the reserved acts] to the exclusion of any other bodywork, but it was just an attempt to define what could be dangerous."

 Note that Stewart referred to, "what could be dangerous," not to harm that had actually occurred." In other words, she was concerned with potential harm, not with harm that had actually occurred. The most likely reason why she focused on potential harm is that she was not aware of any well-documented harm which non-RMTs had actually caused.

The "silly" proposal was

originally handled secretly

This surreptitious modus operandi was most likely adopted to avoid controversy. The "silly" proposal would adversely affect many people. If they became aware of it, they would certainly object. If that occurred, the "silly" proposal would become controversial This is precisely what happened. Appendix A has a detailed account of how Lincoln Lau organized opposition to CMTBS's proposals, and why.

Why CMTBC's "silly" proposal

created controversy

There was no controversy in British Columbia as long as CMTBC, which had been established as a self-regulating agency, regulated RMTs who wanted to be regulated. CMTBS created the controversy when it decided to expand its scope of practice in a way that would require all massage practitioners and other bodyworkers, who were not RMTs, to become RMTs (by taking the required 3000-hour training), or go out of business.

 This understandably upset non-RMTs who do not want to spend a lot of time and money to become RMTs. They simply want to continue earning a living by doing the bodywork which they had been doing for clients who are satisfied with the services they provide, even though they are not RMTs.

PART 2: FOLLOW THE MONEY TRAIL TO FIND OUT WHAT DRIVES THE REGULATION MACHINE

The money trail

in the United States 

Following the money trail has been useful in understanding what has been happening in the United States.3,4 The motivation for licensure has been explained as follows:

It seems that proponents of licensing are hopeful that a state license would mean more money, status, and power. - Jerry A. Green, Attorney for the California Coalition on Somatic Practices.

I think the move toward licensure is regrettable. I believe licensing creates state-sanctioned monopolies ... with the explicit goal of  'protecting the public,' but with the real effect of protecting those who hold the monopolies' respective entitlements, reducing information to the public, and restricting competition. - Don Schwartz, Director of the Trager Institute

The money trail

in British Columbia

The economy in British Columbia has been deteriorating. Massage therapists have been getting less compensation from the  Medical Services Plan than they formerly did. There is concern that MSP may eliminate services it considers non-essential, and approve payments only for primary medical care and surgery. Without MSP payments, RMTs would be competing with non-RMTs to a much greater extent than they presently are.

British Columbia is the only province that pays RMTs who treat people whom doctors refer to them. In 1996, there were over 200,000 such referrals.5  Doctors do not refer patients to non-RMTs.

Is history repeating itself?

CMTBC eliminated competition from massage therapists who came to British Columbia from Ontario (with 2200 hours of training) to benefit from the $$$$ relationship that RMTs in British Columbia have with MSP.6 

  Is CMTBC now trying to gain monopoly control of all bodywork in British Columbia to compensate RMTs for the economic loss they will experience if they are eliminated from MSP?

At a time when there is serious unem-ployment in British Columbia, does CMTBC intend to put non-RMTs out of work in order to  take over their business?

Is this why harm, allegedly caused by non-RMTs, popped up in CMTBC's 1998 attempt to get monopoly control?

In the fall of 1997, Lincoln Lau, described the legislation which CMTBC was then pushing as follows.  "If the massage therapists have their way and their provincial legislation is changed to give them a total monopoly control of all manual therapies in BC [British Columbia], we bodyworkers might as well close shop and move out of BC."6 

Massage Magazine  had reported, "...despite its new, arguably tamer proposal, bodyworkers in British Columbia say the college is moving perilously close to monopolizing the entire bodywork market, and using questionable strong-arm tactics to do so."2

The controversy is therefore not "Much ado about nothing." It's "Much ado about" $$$$.

The money trail 

in Ontario

Self-regulation was established by title protection acts in Ontario and British Columbia. Ontario served as a model for self-regulation in British Columbia.7 But Ontario does not have the equivalent of British Columbia's MSP. Another difference is that Ontario has not attempted to gain monopoly control of massage and bodywork, as some believe CMTBS now wants to do. 

$$$$ $$$$ $$$$ $$$$

Massage therapists in Ontario were motivated to push for regulation because they wanted the economic benefits that regulation would provide.4 Since there was no well-documented evidence that massage therapists had actually harmed anybody, regulation was obviously not needed to protect the public from that harm.

 Massage therapists in Ontario "fought a 10-year battle" and "groveled on the ground" to get regulation. They were "given the privilege of third party insurance coverage where people who were not regulated" did not get that type of privilege. And "it's something that the public sought "because there" was "a tremendous amount of need ... for coverage for services."

 "It was a 10-year battle."  Those who fought that battle "had this commission where they made us all come forward to them and basically grovel on the ground to prove why we needed to be regulated."

The massage therapists "had to prove to the Schwartz Commission that there was a significant risk of harm to the public. And that was why we needed to be regulated."

 According to Elizabeth Leach, Executive Director of the Ontario Massage Therapist Association, the Schwartz Commission decided to regulate massage on the basis that "some activities ... are potentially harmful."

  This tells us the Schwartz Commission did not know that the risk of harm is determined not by potential harm, which may or may not occur, but by harm that has actually occurred. If the Commission had required well-documented evidence of harm that had actually occurred, which it should have done:

1. The massage therapists would not have been able to comply with that requirement because no harm had actually occurred.

2. There would not have been any "battle."

3. Massage therapy would not be regulated in Ontario.

4. I would probably not be writing this report.

Evidence that massage is safe 

in Ontario and elsewhere

 The  fact that it took 10 years to win the "battle" is convincing evidence that no well-documented harm had actually occurred in Ontario before and during the 10-year battle. If there were well-documented harm, massage therapists would certainly have brought that harm to the attention of the Schwartz Commission. Therefore, Ontario's title protection act is  good evidence that massage therapy poses little if any risk of harm to the public.

It is precisely because massage is safe that  title protection in Ontario  permits massage practitioners, regardless of their training, to do massage and also use the word  massage in advertising, provided only that they not call themselves Massage Therapists. The title - massage therapist - may be used only by registered massage therapists.

The fact that Ontario has permitted unregulated massage practitioners to do massage for so many years is convincing evidence that they have caused little if any harm. Therefore Ontario's title protection Act is prima facie evidence that unregulated massage practitioners have not harmed  people.

 Alexander, in Ontario, researched the issue of harm, and concluded, "Massage and bodywork are safe. There have never been any cases of physical injury to people." Alexander is editor of the Journal of Soft Tissue Manipulation which is published in Ontario.  He is also a Contributing Writer for the Massage Therapy Journal published by the American Massage Therapy Association.®

The Province of Quebec has not regulated massage practitioners because it conducted a 2-year research project which did not reveal any harm.

In the United States, a Senate Committee in Georgia, which did its own research to determine whether massage therapists harmed people, concluded:

"There is no documented danger of actual harm to the public."

"The potential for harm to the public appears to be remote and would not be alleviated by licensing."4

Since there's insufficient harm in Georgia, Ontario, Quebec, and all other provinces to justify regulating all massage practitioners to protect the public from that harm, why does British Columbia need to do that?

PART 3: OBITUARY -THE DEATH OF CMTBS'S "SILLY" PROPOSAL

REST IN PEACE

BORN SEPTEMBER 25, 1995

DIED MARCH 4, 1998.

On March 4, 1998, George K. Bryce, Chair of  CMTBC's Scope of Practice Committee, notified HPC that "the Board of the College of Massage Therapists of BC has agreed to formally withdraw its September 25, 1995, submission to the Health Professions Council, titled Reforming the Scope of Practice of Massage Therapists, as amended. The  College proposes to submit a new scope of practice and reserved act to the Council."8

Thus ended the life of CMTBC's 1995 proposal which Susan Stewart, President of CMTBS, had described as a "silly." 

Our autopsy reveals three

causes of death

1. the widespread opposition from the  British Coalition of Allied Bodywork Practitioners6 and other bodywork organizations, whose members would be adversely affected.

2. the opposition of medical and other pro-fessional organizations in British Columbia.

3. the absence of well-documented evidence that non-RMTs had actually caused sufficient harm and sufficiently serious harm to justify granting CMTBS the expanded scope of practice they wanted. 

Professional opposition

to CMTBS's 1995 proposal

On March 8, 1996, the College of Massage Therapists of Ontario  wrote HPC to express its concern about some of the provisions in CMTBC's submission.9

On July 2, 1996, the College of Physicians & Surgeons of British Columbia wrote HSP, "The current definition of the scope of practice of massage therapy tells the public in reasonably clear and simple terms what massage therapy consists of. The proposed new definition" [in the September 29,. 1995 submission] "fails in that regard."11

On May 7, 1996, the British Columbia Medical Association wrote HPC, "We have grave concern that the assessment of soft tissue and joint injuries is well beyond the scope of massage therapy and should be reserved for those with medical training... There is another concern with regard to the definition of 'massage therapy. Without adequate definitions of expertise, what chance does the general public have in choosing an appropriate [massage] therapist?"12

On April 3, 1996, the College of Physical Therapists of British Columbia wrote HPC, "Massage is a modality that has been used through the ages, and the risks of harm are minimal... The risk of harm has been overstated... The actual risk of physical harm for massage therapy, as currently defined, is minimal... We recommend that an objective, third party review the current accreditation of massage therapy programs, establishment of core curriculum, competency requirement and examination process be completed prior to consideration of expansion of the current scope of practice of massage therapists."13

 The Reply Submission of the B.C. College of Chiropractors, entitled Scope of Practice Review Respecting Core Competency was submitted to the Health Professions Council in May, 1996. This Reply appropriately pointed out "The Importance of Definitional Clarity."14

With respect to massage therapists, the Reply stated, "No risk of harm. There is no serious risk of harm to the public from any of the services provided by massage therapists that warrants the creation of reserved acts or shared reserved acts. Massage therapy is only regulated in British Columbia and Ontario. The justification for the regulation of massage therapy is the risk of harm to the public of sexual abuse, and not the risk of physical harm from the performance of massage therapy services."14

"Using massage therapy techniques when certain contraindications exist. There is an absence of information that ... there is a serious risk of harm to the public that would warrant the creation of a reserved act for this service"14

"No Shared Reserved Acts. With respect to the proposals for shared acts for massage therapy techniques, since all such techniques are within the public domain, they should not be a reserved act."  'Massage therapists propose that, 'masseur' and masseuse' be reserved titles to massage therapists in addition to their current reserved titles (massage therapists, registered massage therapists, massage practitioner, registered massage practitioner). The titles 'masseur' and masseuse' should remain within the public domain and not be reserved to any profession."14

PART 4: THE PROGNOSIS OF CMTBS'S 1998 PROPOSAL IS NOT GOOD

The 1998 proposal is not

expected to survive

In February, 1999, HPC issued its Preliminary Report15 on CMTBC's 1998 proposal that HPC change the Scope of Practice of RMTs. In this report:

"The Council recommends that massage therapists not be granted any reserved acts."

"The Council recommends that the title 'Registered Massage Therapist' be reserved for members of the College of Massage Therapists."

Inadequacies in CTMBC's

1998 proposal

The Council's recommendations are not surprising when one considers the inadequacies in the CMTBC's proposal.5

The issue of harm

CMTBC's 1998 survey for harm that had actually occurred16 revealed (as we will see) that an average of only one person a year may have been harmed by non-RMTs.

Does British Columbia need a reserved act to protect the public from harm if only one person a year may be harmed by non-RMTs?

How many people have

RMTs harmed?

CMTBC has not submitted well-documented evidence that its training requirements can and do protect the public from harm by RMTs who treat people with pain and dysfunction. Many of these problems may result from accidents or are associated with other kinds of serious health problems. This patient population is more susceptible to harm than the patient population that non-RMTs work on.

In 1996, "67% of physicians made referrals to RMTs. In 1996, over 200,000 referrals were made."5 Susan Stewart, President of CMTBS, said, "We do really deep work, and work with lots of medical conditions."2 

This raises an important question:  How many RMTs have harmed by aggravating conditions or in other ways? If so, what harm have RMTs caused, and how serious was that harm? If RMTs have not caused any harm, why doesn't CMTBC say so?

Even the rigid training for doctors does not protect the public from harm. In the United States, conventional medical care is the fourth major cause of death. More people are killed by conventional medical treatment than by auto accidents.4

The issue of competence

CMTBC has not submitted well-documented evidence that its training requirements can and do assure competence. Many unregulated practitioners have not harmed people and are considered competent in Ontario, which has title protection, and in other provinces which do not regulate massage therapists.4

CMTBC's 1998 proposal has not defined competence and reports no way of objectively measuring competence. Without a definition of competence and a reliable way to objectively measure competence, CMTBC cannot present well-documented evidence that:  

1. justifies its 3,000 hour training, or any other training.

2. non-RMTs are inadequately trained and therefore incompetent, and thus more likely to cause harm than RMTs are.

Why did CMTBS increase its required training 37% - from 2200 to 3000 hours? Does the 3000 hour training produce RMTs who are 37% more competent than RMTs who had  2200 hours of training? If that is the case, the 2200 hour training was very inadequate. If the 2200 hour training produced competent RMTs, why is a 3000 hour training needed?

Did CMTBS increase the required training from 2200 hours (which is what Ontario requires) to 3000 hours to eliminate competition (for RMTs in British Columbia) from RMTs who migrated to British Columbia from Ontario to take advantage of MSP payments to RMTs in British Columbia?

To what extent, has the 37% increased training economically benefited the private, for-profit massage schools in British Columbia? Do they charge more tuition fees for the additional 800 more hours of training?

HPC's Preliminary Report (released in February, 1999)15 tells us that "the five Ontario massage therapy schools support the increased scope of practice" which CMTBS's 1998 proposal requested. Have private, for-profit massage schools ever objected to any requirement (by any agency independent of the massage schools) which would increase their gross income? 

More on the issue of competence

 CMTBS's 1998 proposal does not respond to questions raised about competency by the College of Physical Therapists of British Columbia (CPTBC) with respect to CMTBS's 1995 proposal. CPTBC's above-mentioned letter13 of April 3, 1996, commented as follows:

1. "We have not seen evidence of any attempts to define ... competency requirements."

2, It is "not clear  ... how ... the expanded program  ... relates to competency."

3. "There is little objective evaluation of the current massage therapy examination program, as set by the College of Massage Therapists.".. Has there been any evaluation of the examination's validity  and reliability with respect to assessing competency?"

4. "Are the CMTBS examinations valid and reliable? What process has been used to assure this?"

Professional criticism of CMTBC's

1998 proposal

I have already reported HPC's recom-mendations for CMTBC's 1998 proposal. HPC's Preliminary Report15 (released in February, 1999) tells us that, "In summary, massage therapists' education and training for the scope of practice proposed has been questioned by the British Columbia Medical Association, the British Columbia College of Chiropractors (BCCC), the Canadian Athletic Therapists Association, New Brusnswick Health, and the Canadian Physical Therapists of British Columbia.15

CMTBC lost a legal battle in 1996

Massage, as a generic term, played an important role in litigation in the Supreme Court of British Columbia.4,6. 

The BC Telephone Company wanted to introduce a new listing category "massage services" in the Yellow Pages to allow manual therapies and massage practitioners that were not Registered Massage Therapists to list and advertise in the Yellow Pages.

The Telephone Company took the position that the word "massage" is a generic term and that not all people who perform an act of massaging should be classified as providing massage therapy.

The College of Massage Therapists objected that "only persons who are allowed under legislative authority to be engaged in providing massage services are those duly registered with the college, and no others."

The Judge, Mr. Justice Braidwood, found "that it is not everyone who provides the service of rubbing another person's body who is properly designated as a massage therapist and that, accordingly, there are two categories and they are properly separated as proposed, namely one being 'massage therapists registered' and the other being 'massage service' ... Accordingly, the application for a permanent injunction is refused.'"

The judge also concluded that people who provide "relaxation or comfort massage" need little if any instruction. He considered that four hours or less training might well be adequate for that purpose.

PART 5: FROM POTENTIAL HARM TO HARM THAT HAS ACTUALLY

 OCCURRED

A brief history

The 1991 report of the British Columbia  Royal Commission on Health Care and Costs included the following comment in the section on Criteria for Granting the Privilege of Self-Regulation.

What is the nature of the potential harm to the public? Is it easily recognizable, or is the harm so remote or dependent on tenuous arguments or unlikely circumstances as to be of questionable significance?" 7

How can one answer this question without knowing how much harm actually occurred, and how serious the injuries were?

HPC "felt it important to establish some basic principles to guide us in its assessment of what is a significant risk of harm. In this respect the Council was assisted by the 1994 report of the Manitoba Law Reform Commission which indicated that regulation should not be imposed unless the threat of harm to the public is serious.

The report stated that three factors would be evaluated in considering the seriousness of a threatened harm:

"1. the likelihood of its occurrence;

"2. the significance of its consequences on individual victims;

"3. the number of people it threatened."

Again, I ask, How can one answer this question without knowing how much harm has actually occurred,  and how serious the injuries were?

Why did CMTBC go from potential harm

to harm that actually occurred

On July 25, 1996, CMTBC wrote HPC, "We readily admit that it is unlikely anyone can harm a healthy person through most forms of massage, but that is not the point."10  But CMTBC did not at that time submit any well-documented evidence that non-RMTs had actually injured people with or without serious health problems.10

Prior to 1997-1998, CMTBC's primary concern about protecting the public from harm was to prevent bodyworkers, who were not RMTs, from representing themselves as RMTs. CMTBC did this allegedly to protect the public from the potential harm that might occur. 

The 1997 Annual Report of the College of Massage Therapists of British Columbia reveals that CMTBC was primarily concerned with prohibiting individuals from using reserved titles. There is no evidence that CMTBC was aware of any harm that had actually occurred and was unequivocally caused by non-RMTs.

 The 1997 Annual Report tells us that the CMTBC Board had hired a consultant to do research on reserved acts. "Unfortunately, the consultant found that no jurisdiction in the world grants massage therapists a reserved act or its equivalent... The consultant also found that, despite extensive discussion and her review of the literature and legislation, as well as extensive internet searches, she could find no persuasive evidence for granting any form of reserved acts to RMTs."17

On June 19, 1998, George K. Bryce, Chair of the Practice Committee of CMTBC, wrote Mary McCrea at HPC: "In the near future, the College will be submitting a revised scope of practice proposal. That submission will contain a set of proposed reserve acts that will be justified on the basis of an analysis of risk of harm to the public."17

A month earlier, on May 22, 1998, George Bryce had written to RMTs. His letter was addressed "Dear Massage Therapists," and included "a series of questions that explore the issue of patients who have been harmed by unlicensed persons (e.g., non-RMTs, such as bodyworkers) after being provided with massage services."16

To the best of my knowledge, May 22, 1998, is the first time CMTBS began to look for harm that had actually occurred allegedly as a result of treatment by non-RMTs. Prior to May, 22, 1998, CMTBS had been satisfied with the potential harm associated with contraindications. I believe CMTBS's search for harm that had actually occurred was motivated:

1. by comments in the above-mentioned evaluations of CMTBS's 1995 proposal that massage posed little, if any risk of harm.

 2. by my publications which highlighted the importance of well-documented evidence of harm that had actually occurred. I had sent copies of my publications to individuals in Vancouver who were actively opposing CMTBS's proposals to expand their scope of  practice, and to HPC.

For these reasons, CMTBC may have become concerned that HPC would no longer swallow the potential harm bait.

What harm did CMTBS attribute

 to non-RMTs?

CMTBC's second 1998 proposal for revising the scope of practice included one "case description" which was considered "a good example of anecdotal evidence of the risk of harm from massage performed by untrained providers." Three other cases reported harm allegedly associated with treatment by non-RMTs. In these  cases, all four patients had serious problems before they  were allegedly  treated by non-RMTs.

CMTBC has existed independently of its former association with physiotherapists since 1994. During the four year period (1994 to July 1998), 

CMTBC's four cases of harm amount to an average of only one person allegedly harmed by non-RMTs each year

Since RMTs have about 200,000 referrals from doctors annually,8 only one person in every 200,000 referrals had allegedly been harmed by non-RMTs.

It is astonishing that CMTBS wants reserved acts and reserved titles to protect the public from so little harm that is only allegedly attributed to non-RMTs.

The fact is that, in British Columbia, so many non-RMTs with so many varied trainings have massaged so many people (with so many contraindications) so many times, for so many years, with so many benefits, but with so little if any well-documented evidence of serious harm.    

Questions about the harm

non-RMTs allegedly caused

One wonders how reliable the alleged association of harm with non-RMTs is because the reports were submitted by individuals who knew they could benefit economically from the information they provided. In other words, the CMTBC members had a vested interest in reporting harm.

It is difficult to believe that a judge would give serious consideration to such testimony in litigation involving a personal injury claim. Or, that insurance companies would pay personal injury claims based on such evidence. 

One therefore wonders why CMTBC did not submit medical reports, provided by doctors who independently evaluated the etiology and seriousness of the harm allegedly associated with treatment by non-RMTs. Doctors would not  have the above-mentioned vested interest.

Difficulty in atrtributing

 harm to bodywork

I am reporting this case history in some detail because it illustrates how difficult it may be even for doctors to unequivocally attribute harm to bodywork. Several similar cases are usually required to determine a cause-effect with certainty.

 The report, entitled "Zoster after shiatsu massage," was published in The Lancet, a British medical journal. One of the four authors was at the Tripler Army Medical Center, Preventive Medicine Service. Honolulu. The three other authors were at the University of Hawaii, School of Medicine, Department of Tropical Medicine and Medical Microbiology. Honolulu

"A 64-year-old woman ... had ... an overly vigorous shiatsu massage that caused pain in the left peri-cervical and suprascapcular areas." She subsequently developed other symptoms, and sought medical treatment seven days after the massage.

The report concluded, "Though possibly coincidental, a causal link between shiatsu massage and zoster is supported by the patient's claim of massage-induced neck trauma, and the temporal relation between trauma and onset of symptoms that progressed to zoster. Described by Charcot and Brown-Séquard in 1859, 'traumatic zoster' has long been controversial.

"Enactment of workmen's compensation laws around the turn of the century prompted publication of many case reports, but sceptics attributed them to chance. The condition is rarely diagnosed today; much of the evidence for its existence is anecdotal.

"Nevertheless the apparent clustering onset of rash at around 3-4 days post-trauma and the preponderance of right versus left involvement, especially in cervical dermatomes, are otherwise difficult to explain.

"We speculate that in our patient zoster resulted from either direct trauma to the nerve or nerve root damage during the massage, or to subsequent tissue inflammation causing swelling or immunological injury to the nerve."

The reason why the authors only speculate on the etiology of the zoster is probably because of what their literature survey revealed and because they had only one case of its kind.

CMTBS's reports of harm

which are unacceptable

I do not understand why CMTBC's 1998 proposal  included the following four case histories. One reported that an individual's problem "could have been .. severely worsened by ... an unskilled bodyworker." This is not a case of harm which had actually occurred, but of harm that "might have" occurred. It is therefore irrelevant.

Another case involved an individual with a brain tumor which was not caused by massage therapy or treatment by two chiropractors. Two other case reports were irrelevant because the patients had not been previously treated by unlicensed RMTs. These three cases are also  irrelevant.

How much physical harm have

RMTs  caused?

Physical harm: On August 20, 1998, George K. Bryce (Chair of the Scope of Practice Committee of CMTBS) sent me a letter in which he commented as follows:

"I very much hope that massage therapists in British Columbia do not harm their patients! If there were a significant number of reported cases of RMTs who had hurt their patients, as a public representative I would be concerned that the CMTBS had thus failed to meet its statutory mandate to protect the people. The College is made aware of only a few complaints of harm caused by RMTs. In my view, this is at least a partial confirmation that the College is achieving its mandate.

"The College has also developed educational programs designed to address those fortunately rare instances when the College has received sustained complaints from the public against an RMT."

Bryce did not say how many complaints of harm he would consider significant. Nor has CMTBS stated how many complaints of harm, allegedly caused by non-RMTs would be sufficiently significant to justify regulation.

Harassment and intimidation

of non-RMTs by CMTBS

   Massage Magazine has reported what one might consider shocking and unprofessional harassment and intimidation of non-RMTs.2 Some "bodyworkers report substantial legal bills from fighting with the college over their right to practice. Kendall Dixon, a shiatsu practitioner in Vancouver, said the college mistakenly took her newspaper advertisement to mean she practiced massage therapy. The college then contacted several hotels where she worked and informed them of her alleged illegal activity. It took several letters and paid lawyer consultations to get the matter strainghtened out.

 'I think the hostility in their actions is evident,' said Dixon. 'They have shut people down. And it you can't work, you can't fight them."

"College officials ... and the affiliated Massage Therapy Association of British Columbia (MTABC) defend such vigilance."

Integrity: "Not all members of the college agree with the college's tactics. Sherri Muir, a registered massage therapist in vancouver, said she finds the college's actions 'deplorable... People should have the right to choose what kind of practice they want to see.' Muir continued, 'Someone who is licensed in shiatsu can treat many  of the same injuries we can. The college wants to say [that] all form of therapeutic massage belong to us. They don't.'"

How much economic harm

could CMTBS cause

 If HPC grants CMTBS the reserved act and the reserved titles it requested in its 1998 proposal:

How many bodyworkers would be prohibited from continuing to earn a living by doing what they have been doing, in some cases for many years, without having harmed anybody?

How much economic financial would be inflicted on those bodyworkers? How would this affect their families in those cases where their income, earned from massage, is needed for the family's welfare?

How would this benefit the public, and the province? Is it justified to adversely affect so many people in order to avoid CMTBS's one possible case of harm allegedly attributed to one non-RMT in one year?

PART 6: DOES CMTBS's 1998 PROPOSAL VIOLATE THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS?

Because non-RMTs in British Columbia have caused so little if any well-documented harm, there is no need to protect the public from that harm. Therefore, all non-RMTs in British Columbia should have the right and the freedom to earn a living by providing their services to those who want them, just as non-RMTs have in Ontario and in all other Canadian provinces.

The Canadian Charter reads as follows:

"Guarantee of Rights and Freedoms

"1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

"Mobility Rights

"6... (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right to (a) move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence.

PART 7: DOES CMTBS's 1998 PROPOSAL VIOLATE THE UNITED NATIONS' INTERNATIONAL BILL

OF HUMAN RIGHTS?

Canada has ratified the International Covenants of the United Nations' International Bill of Human Rights.

The "Universal Declaration of Human Rights [which is a section of the United Nations' International Bill of Human Rights] ... represents a major milestone in human progress, bringing realization to the [United Nations'] Charter principle that universal respect for human rights is the common concern of all governments and all peoples."

 The following two sections of The United Nation's International Bill of Human Rights specifically refer to the right to work:

 The Universal Declaration of Human Rights recognizes "the inherent dignity and ... the equal and inalienable rights of all members of the human family." Article 18 states, "Everyone has the right to work, to free choice of employment..."

 The International Covenant on Economic, Social and Cultural Rights recognizes that "these rights derive from the inherent dignity of the human person." Part 3, Article 6 reads, "The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunities to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right."

Questions

1. Does Btitish Columbia not have an obligation - under the Canadian Charter of Rights and Freedoms; and the United Nations' International Bill of Human Rights - to protect non-RMTs' right to freely choose the bodywork they want to do?

2. Why does British Columbia tolerate CMTBC's interference with non-RMTs' right to do the same kind of bodywork in British Columbia that non-RMTs are free do in all other provinces of Canada?

3. Is this interference, by CMTBC not in violation of the Canadian Charter of Rights and Freedoms and the United Nations' International Bill of Human Rights which accords non-RMTs the right to freely choose the kind of bodywork they want to do in British Columbia?

4. Should the public in British Columbia not have the same right that the public has in all other provinces; that is, the right to choose non-RMTs if that is what they want?

According to Article 7 of the Universal Declaration of Human Rights, "All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."

APPENDIX A: HOW LINCOLN LAU ORGANIZED OPPOSITION TO CMTBC's PROPOSALS

Truth for authority, not authority for truth. -

Lucretia Mott

I need to be all on fire, for I have mountains of ice about me to melt. - William Lloyd Garrison

Lincoln Lau, in Vancouver, was kind enough to send me his newsletter6 and other information about the controversy which CMTBS's proposals created.

I believe CMTBS's position is completely  unjustified,and I am shocked at CMTBS's in-timidation and harassment of non-RMTs.2 I am therefore pleased to be allied with Lincoln and others who are opposing CMTBS. Such people inspire me.

Lincoln's important contribution in alerting bodyworkers to the danger and organizing the opposition calls to mind the following comments:

Anyone, anywhere can make a beginning; this is an arena where one person can count, as Rosa Parks counted in the civil rights movement. - Staughnton Lynd

Never doubt that a small, committed group can make a difference ... indeed it's the only thing that has. -  Margaret Mead

The following information is quoted from  Lincoln's newsletter.6 

"Allow me to introduce myself. My name is Lincoln Lau. I practice bodywork in Vancouver and have been doing so for the past three years. Prior to that, I graduated from the West Coast College of Massage Therapy , but am not registered in British Columbia.

"Over the last three years, as a bodyworker trying to practice in British Columbia, I have encountered many obstacles of the 'massage therapy machine"' and the provincial legislation backing it.

"I can relate to those out there who have had trouble getting a city business license in Vancouver, had trouble with restrictions on what they can say in their advertising without threat of lawsuit, and who feel they are treated like criminals because they do manual therapies, but aren't RMTs. After much persistence, I was able to get past those obstacles. In these past three years, there have been many changes that have affected massage therapists and bodyworkers.

"Perhaps the most dangerous change for bodyworkers is the scope of practice review that the British Columbia Ministry of Health is currently conducting. 

"If the massage therapists have their way and their provincial legislation is changed to give them a total monopoly of all manual therapies in British Columbia, we bodyworkers might as well close shop and move out of British Columbia.

"There is an opportunity to have a say in the changes, and in our favor is the fact that the people who are conducting the review are very receptive to public opinion and are very cautious in their approach to legislative change.

"I've found that although there is organization and cohesion in the massage community here, the rest of us seem to be scattered and isolated.

"I have composed this newsletter in the hopes of overcoming that. As well, there may be some legislative changes that would affect you and your business in the future, which is the primary reason for my reaching out to you.

"I helped organize the BCCABP (British Columbia Coalition of Allied Bodywork Professionals) for the express purpose of lobbying for the rights of those who do manual therapies in British Columbia, but work outside the 'massage therapy industry.' The BCCABP can also be a network for bodyworkers, to share information, offer support, and contacts."

"Current legislation governing massage therapy ... says 'no person other than a registrant may practice massage therapy.' a 'registrant' defined as a Registered Massage Therapist (RMT). It then defines the reserved titles which only RMTs may use.

"The proposed new legislation was submitted on September 29, 1995, to the HPC, and consisted of a brief of over one hundred pages. A summary of this brief was mailed out on January 5, 1996, to parties that the HPC thought would be interested in replying. 

"These groups were given until April 6, 1996, to reply, only four months after the summaries were sent out. The parties contacted were predominantly other legislated health professions (for example, the physiotherapists and chiropractic colleges and associations) which may be affected by the proposed expanded scope of practice of massage therapy.

"According to the list of contacted parties, not a single complementary modality associa-tion or person was notified. Nor was the review made public knowledge

"A year later, in the summer of 1997, Lincoln Lau (a practitioner of Swedish massage who tries to stay current with massage therapy policies in British Columbia) heard about the review from some RMT friends. He immediately requested copies of the appropriate documents. Upon reading the summary of the Committee of Massage Therapists' proposals, the brief of the proposals, and te listing of contacted organizations, he sent a letter to the HPC in opposition to the proposals. He then informed numerous bodywork associations and practitioners of current developments.

"His letter to the HPC was dated September 16, 1997. Shortly after, he spoke to Mary McCrea, a research consultant at the HPC who is overseeing the review of the massage therapists. Although the deadline for responses was April 6, 1996, she accepted his written response.

"She acknowledged that bodyworkers were never adequately notified and that the outcome of the review would drastically affect them.

"Mr. Lau was also informed by the HPC that they are very receptive to public opinion regarding the direction of the health professions. This indicated that the HPC will seriously consider the opinions and concerns of other manual therapists and the public, rather than change legislation based on the self interests of one health profession alone.

"As of the printing of this newsletter, there has been very little opposition  to the massage therapists' proposal for an expansion of their scope of practice, although two years have gone by. In our favor, there is still a long way to completion, giving us time to act.

"Although this [legislative] process can take three years or more to complete, it is almost half done. Therefore, we must act now to successfully lobby against the proposed short-sighted  and exclusionary legislation."

References

1. Schatz, A. The controversy over regulation of massage therapists in British Columbia. "Let there be light." Massage Law Newsletter. 4(4):1-2. 1998.

2. Walsh, K. British Columbia's battle of the  bodyworkers. Animosity grows toward BC Massage College as legislative changes to massage regulation are proposed. Massage Magazine. pages 117-124. November/December 1998.  

3. Schatz, A. Follow the money trail to find out why scare tactics tell us secular massage is harmful. Journal of Spiritual Bodywork. Special Issue No. 4. pages 1-14. 1997.

4. Schatz, A. Schatz, A. Massage should be deregulated because it does not cause harm. pages 1-18. Massage Law Newsletter. 5(2):1-18. 1998.

5. Revising the Scope of Practice of BC's Massage Therapists. Submission of the College of Massage Therapists of British Columbia. #103 - 1089 West Broadway. Vancouver. BC. V6H 1E5, to the Health Professions Council. Vancouver, BC. July 28,1998.

6. Coalition Bulletin. Newsletter of the British Columbia Coalition of Allied Bodywork Practitioners. 1(1):1-4. Fall. 1997. (BCCABP. #303 - 2164 Wall Street. Vancouver, BC. Canada. V5L1B5)

7. Governance of the Health Care Professions: The Privilege of Self-Regulation. Report of the British Columbia Royal Commission on Health Care and Costs. Chapter D26 of Closer to Home. 1991.

8. Bryce, George K. (Chair, Scope of Practice Committee. CMTBS). Letter to Mary McCrea. HPC. March 4, 1998.

 9. Shulman, Ruth. (President. College of Massage Therapists of Ontario). Letter to HPC. March 8, 1996.

 10. Sleeper, Ann. Co-Chair. Scope of Practice Committee. CMTBS Board),  and Bryce, George K. (Co-Chair.  Scope of Practice Committee.  CMTBS). Letter to David MacAulay. HPC. July 25. 1996.

11. Handley, T.F. (Registrar. College of Physicians & Surgeons of British Columbia). Letter to David MacAulay. HPC. July 2, 1996.

12. Schoenfelf, Mark D. (Director, Professional Relations, British Columbia Medical Association). Letter to David MacAulay. HPC. May 7, 1996.

13. Maloney, Beth. (Registrar. College of Physical Therapists of British Columbia). Letter to David MacAulay. HPC. April 3, 1996.

14. Scope of Practice Review Respecting Core Competency. Reply Submission of the British Columbia College of Chiropractors. Submitted to HPC. May. 1996.

15. Massage Therapists. Scope of Practice. Preliminary Report. Health Professions Council. Vancouver. British Columbia. Canada. February. 1999.

16. Bryce, George K. (Chair. Scope of Practice Committee. CMTBS). Letter to: Dear Massage Therapist. (sent to RMTs). May 22, 1998.

17. Bryce. George K. (Chair. Scope of Practice Committee. CMTBS). Letter to Mary McCrea. HPC. June 19. 1998.

18. Mumm, A.H., Morens, D.M., Elm, J.L., and Diwan, A.R. Zoster after shiatsu massage. The Lancet 341:447, 1993.

19. Bryce, George K. (Chair. Scope of Practice Committee. CMTBS) 8-page letter to Albert Schatz,Editor. Massage Law Newsletter. August 20, 1998. 

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