TCM practice - may (or should) remain open under restrictions
Update from 22.03.2020, 20:00h
On 21003.2020, the Federal Council amended COVID-19-VO-2/16.03.2020 and, in particular, also reformulated Art. 10a para. 2 and para. 3 (obligations of health care facilities) as follows:
"2 Health care facilities in accordance with Article 6 paragraph 3 letter m, in particular hospitals and clinics, medical practices and dental practices, are prohibited from carrying out medical examinations, treatments and therapies (interventions) that are not urgently indicated.
3 Interventions that are not urgently indicated are those that:
a. can be carried out at a later date without any disadvantages being expected for the person concerned that go beyond minor physical and psychological complaints and impairments; or
b. serve mainly or entirely aesthetic purposes, the enhancement of performance or well-being."
The FOPH's explanatory notes on COVID-19-VO-2/21.03.2020 have also been supplemented, adapted and clarified in the meantime, and they now state the following with regard to Art. 10a COVID-19-VO-2/21.03.2020, which is relevant here:
Regarding Art. 6 para. 3 COVID-19-VO-2/21.03.2020 (p. 9/19 of the Explanatory Notes): "According to cantonal law, the following are also considered health professionals (this varies from canton to canton): Acupuncturist, optician, dental hygienist, occupational therapist, psychotherapist, non-medical practitioner, homeopath, podiatrist, traditional Chinese medicine (TCM) therapist. However, in order to avoid unnecessary contacts, only treatments and therapies that are urgent from a medical point of view may be carried out in health facilities of such professionals (cf. Art. 10a para. 2).
Regarding Art. 10a para. 2 COVID-19-VO-2/21.03.2020 (p. 15/19 of the Explanatory Notes): "Para. 2 generally obliges healthcare facilities to refrain from medical examinations, treatments and therapies (interventions) that are not urgently indicated in the current situation. This serves two purposes: On the one hand, it is intended to prevent unnecessary crowding in such facilities (e.g. in waiting rooms) or to ensure that only persons in immediate need of treatment are present. On the other hand, interventions that are not necessary from a medical point of view should not tie up capacities and resources that are potentially needed for the treatment of patients with COVID-19 infection (personnel resources, infrastructure, remedies and consumables). Finally, it should be noted that paragraph 2 is also applicable to veterinary practices; there, too, it applies that interventions that are not urgent from a medical point of view and can therefore be postponed must be dispensed with.In general, the following applies: Hospitals must prepare themselves and take all measures so that all patients can be treated well. They must evaluate their capacities at all times. As mentioned, healthcare facilities such as hospitals, clinics and medical and dental practices must refrain from all non-urgent medical interventions. This requires all health actors to take responsibility today and set priorities for the coming months." [...]
According to paragraph 3, interventions that can be carried out at a later date without any disadvantages beyond minor physical and psychological complaints and impairments being expected for the person concerned are not considered urgent (subparagraph a). On the other hand, interventions that serve predominantly or entirely aesthetic purposes, the enhancement of performance or well-being are also to be classified as non-urgent (subparagraph b). [...]
An exhaustive list of all permissible medical interventions is not possible. It isultimately up to the health professionals to decide whether an intervention is necessary or not".
With these clarifications, the Federal Council and the FOPH have brought welcome clarification for all complementary practices:
"TCM and other licensed therapists may - indeed should - continue to work, but under their own responsibility."
The circle of facilities that are to remain open (sic!) has now been clarified. This also includes complementary medicine practices under cantonal law.
The somewhat difficult-to-apply criterion of "further interventions and treatments that are not urgent from a medical point of view and can therefore be postponed", which all medical facilities are no longer allowed to perform, has been replaced by a new criterion. Newly, "non-urgent" examinations, treatments and therapies must be dispensed with.
The legislator has defined what is to be considered as "non-urgent" treatment, namely (i) interventions thatcan be carried out at "a later date without the person concerned being expected to suffer any disadvantage beyond that of the treatment itself"; or (ii) interventions that "can becarried out at a later date without the person concerned being expected to suffer any disadvantage beyond that of the treatment itself". minor physical and mental complaints and impairments beyond"; or (ii) which have "predominant or complete aesthetic purposes, enhancement of performance or well-being" (awards added).
This means that (purely on the basis of federal law) all treatments by health professionals (authorised under Art. 6 para. 3 lit. m COVID-19-VO-2/21.03.2020) are permissible, which treat complaints that are
"go beyond minor physical and psychological complaints and impairments". The FOPH thus sets a rather low standard, which is clearly below that of 'medically prescribed therapies' or 'therapies that cannot be postponed';
moreover, these (permissible) therapies may therefore also serve as a mere side effect (but not as the main purpose) to "increase performance or well-being". Thus, the treatments do not have to be artificially limited as long as the focus and main purpose of the therapy is the treatment of a condition that goes beyond a "minor physical and psychological discomfort and impairment".
The justification for these obligations of the treatments to be provided by the health care facilities results unambiguously from the above-mentioned explanations on Art. 10a para. 2 COVID-19-VO-2/21.03.2020 (p. 15/19. In addition, the reasons according to Art. 1 para. 2 lit. a and b COVID-19-VO-2/21.03.2020 must certainly also be taken into account: To prevent or contain the spread of the coronavirus and to reduce the frequency of transmission and interrupt chains of transmission.
The FOPH's explanations also state unequivocally that it is "ultimately" (by which is probably meant 'ultimately') within the decision-making competence of health professionals to decide whether an intervention is necessary or not. Thus, no objective standard or any kind of third-person view (as communicated by certain associations) is required, but rather explicit reference is made to the subjective assessment of the health professional and his or her final decision.
We recommend the following to our clients in this health care sector:
Switch off all online booking systems and, when requesting appointments, clarify in advance by telephone whether the complaints are clearly beyond "minor physical and psychological complaints and impairments".
In the case of patients belonging to the group of particularly vulnerable persons (Art. 10b COVID-19-VO-2/21.03.2020), more stringent requirements may have to be met in this respect in order not to break the "stay at home" principle without a truly proven need.
In any case, patients should be asked to postpone treatment (even for a short time) at the onset of the slightest cold symptoms.
The preliminary telephone clarifications are to be documented in the KG.
Unless absolutely necessary, treatment methods involving close physical contact (e.g. therapeutic massages) should be avoided.
Increased personal hygiene and other prophylactic protective measures must be taken (see also below).
Canton of Zurich
On the website of the GD ZH, it is still stated that "practices and facilities of health professionals with a licence to practise [...] may remain open, provided [...] examinations and treatments/therapies are carried out that are medically ordered, urgent and cannot be postponed [...]".
This interpretation of the legal situation, which is significantly more restrictive than federal law, undoubtedly contradicts the requirements of the Federal Council and the FOPH (as explained above). Moreover, a publication on the website of DG ZH does not meet the formal legal qualifications for a decree that entails an encroachment on the freedom of trade and commerce that goes significantly beyond the restrictions imposed under federal emergency law. This would require a formal legal decree by the government council, not just a casual statement on a website.
It is in the interest of the health system to relieve doctors of unnecessary consultations and to maintain the health system on as broad a level as possible. After all, besides COVID-19 diseases, all other medical complaints still exist.
We recommend that our clients in the canton of Zurich comply fully with the now clarified federal law requirements. However, it would certainly make sense for the professional associations of complementary medicine to make representations to DG ZH so that the statements on the website of DG ZH, which are not in accordance with federal law and which also place an additional burden on the health system, are corrected.
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Here is the extract from a statement to a client who runs a TCM practice:
Dear Ms XXX
You have asked us whether it is still permissible from a legal point of view to continue operating your TCM practice in the light of the COVID-19 Regulation 2 (Amendment of 16.03.2020 ) of the Federal Council ("COVID-19-VO 2/16.03.2020"), which has been amended/tightened today.
The provisions of COVID-19-VO 2/16.03.2020 explicitly differentiate in Art. 6 between "establishments accessible to the public", which are prohibited (Art. 6 para. 2), and those which continue to be permitted (Art. 6 para. 3). Accordingly, although "personal services involving bodily contact" (Art. 6 para. 2 lit. e) are generally no longer permissible, there is an explicit reservation under Art. 6 para. 3 lit. m for "healthcare facilities such as hospitals, clinics and doctors' surgeries as well as practices and facilities of healthcare professionals under federal and cantonal law".
The Federal Council thus quite carefully and deliberately differentiates between activities "with body contact" that are in cosmetic or pure wellness interest (and are thus no longer permissible), and between those that are offered within the framework of facilities that are regulated under federal or cantonal law and require "health professionals" (and are still permissible). This open and editorially well-chosen wording thus quite obviously wants to continue to allow all businesses that are considered part of the health system in some way, i.e. not only doctors' practices and hospitals, but any therapeutic facility regulated under public law. This is the result of a balancing of interests that ultimately places the maintenance of health care in the broad sense at the centre of the measures and at the same time places the responsibility on these "health professionals" to comply with the recommendations issued by the FOPH "concerning hygiene and social distance" (Art. 6 para. 4 COVID-19-VO 2/16.03.2020).
Since you have a licence under cantonal law and provide therapeutic services that are ultimately capable of relieving the other service providers in the health care system, there is nothing to prevent you from continuing to operate your TCM practice from a legal point of view. However, I would advise you to focus your already scarce time resources as much as possible on therapeutic treatments (pain relief, immune system strengthening, inflammation therapy, psychosomatic-related treatments, etc.) and to rather postpone patients with primary wellness needs or non-urgent and postponable medical needs (e.g. fertility issues) to a time after 19.04.2020, i.e. to a date after the measures according to COVID-19-VO 2/16.03.2020 have expired. I would also advise you to choose treatment methods that ensure the greatest possible physical distance during the treatment, i.e. to avoid massages as far as possible and preferably use other forms of therapy (e.g. acupuncture, moxa, etc.). In this way, you optimally fulfil the thrust of COVID-19-VO 2/16.03.2020. Ultimately, however, the needs of the patient dictate the treatment method.
It goes without saying that, in addition to increased personal protection, additional, increased attention is paid to the disinfection of all surfaces and equipment. It would therefore be appropriate, at most, to schedule additional time between treatments for cleaning the treatment room and to do the cleaning/provisioning on the basis of a small checklist. That patients are actively made aware before an appointment to stay at home even with the slightest cold symptoms and to cancel or postpone the appointment even at short notice is also advisable. It is also not necessary to explain further that you yourself only treat patients if you yourself do not experience any cold symptoms.
[...] If a therapist offers mainly cosmetic or wellness treatments, temporary closure may be more appropriate than for a therapist who is active in the core therapeutic area and can thus actively relieve the other health care providers (doctors and hospitals).
Status: Editorial adjustments 17.03.2020, 07:17h
For feedback and questions, please contact Balthasar Wicki.