Thailand Law Journal 2011 Fall Issue 2 Volume 14

Unfortunately, the development of traditional medicine in Thailand was frozen between 1916¹¹⁶ and 1978¹¹⁷. Due to the reduction in the number of traditional healers, and fewer successors, during sixty years there is bound to be the loss of knowledge regarding traditional medicines. However, people in rural areas continued to rely on traditional medicine, thus, traditional healers spread around the country, particularly in the remote areas. The research of personnel who are involved in Thai traditional medicine, such as local practitioners, licensed practitioners, NGOs, farmers (who raise medicinal plants), manufacturers, and academics, in B.E.2550 (2007) found that there is a total of 39,221.¹¹⁸

The world's trend of use traditional medicine as a dietary supplement for health has dramatically increased in the past decades, particularly in the Europe and the United States.¹¹⁹ As mentioned earlier, the estimated market value of Pharmaceuticals (plant based medicines) sold in CECD countries (Organization of Economic Go-operation and Development)¹²⁰ in 1985 was $43 billion.¹²¹

Therefore, there is no question as to why Thailand has attempted to revive the development of Thai traditional medicine that was abandoned for more than a half century. Presently the system of traditional medicine includes businesses related traditional medicine, such as massage therapeutics, spa and traditional medicine educational institutions, these have boomed in the past decades.

In this connection, it is important to mention the policy of traditional medicine in Thai public health care that relates to the laws concerning the protection of traditional medicine, which will be analysed in the following topic.

2 Traditional Medicine Policy in Thai Public Health Care

As Thailand has received a reputation of foods and spices particularly Thai jasmine rice that is known amongst rice consumers. Some of medicinal plants are ingredients for everyday Thai food.¹²² The Department for the Development of Thai Traditional and Alternative Medicine, which was established in 2002, aims to fulfill the following purposes:

a) Revival of the body of knowledge of Thai traditional medicine;
b) Promotion and development of Thai traditional medicine and complementary and alternative medicine into the health care system;
c) Research and development of Thai traditional medicine, complementary and alternative medicine, folk medicine, traditional and herbal products;
d) Gathering and scrutinizing the body of knowledge of different disciplines of complementary and alternative medicine to screen, select, and set up the standards of those that are appropriate for the healthcare of Thai people;
e) Dissemination and transfer of Thai traditional medicine and complementary and alternative medicine knowledge and technology;
f) Protection and conservation of Thai traditional medicine wisdom and medicinal plants;
g) Establishment of the standard of Thai traditional medicine, complementary and alternative medicine products and practice, and education system, and
h) Promoting the production of quality Thai traditional medicines and other herbal products.¹²³

Thus, Thai traditional medicines that spread throughout the country are gathered into the common system for quality control and protection. The development of traditional medicine as a part of the national health care policy has been done simultaneously with drafting the law for the protection of traditional medicine. Thai traditional medicine first entered the national health care system through the 4th National Health Development Plan (1977 to 1981) and it has been continuously integrated into the health service system from the 5th to 9th National Health Development Plan (1982 to 2006).¹²⁴ In this connection, the law for the protection of traditional medicine namely the Protection and Promotion of Thai Traditional Medicine Intelligence Act B.E. 2542 (1999) was also enacted in 1999 and effective in 2000, which is under the supervision of the Ministry of Public Health.¹²⁵

The Protection and Promotion of Thai Traditional Medicine Intelligence Act B.E. 2542 (1999) is the only law that is designed to directly protect Thai traditional medicine from biopiracy.¹²⁶ However, for whatever reasons, this Act may be inadequate to meet this aim, thus, there, is a need mention to the relevant law, which will be analysed in the next topic.

With respect to the policy of traditional medicine protection under this Act, Thai officials sometimes tend to overlook the functions of the Ministry of Public Health that are mainly providing an appropriate system of public health care for the people, rather than providing fundamental protection of intellectual property rights on traditional medicine. Even though the subject matter of this law may be directly related to medical products and the public health care system, the theme of protection in this matter is rather complicates owing to the concept of intellectual property rights regime, which would be better handled by the specialised agency, such as the Department of Intellectual Property, Ministry of Commerce. Similarly to the new conventional medicines, that are protected by patent law, which are also under the supervision of the Department of Intellectual Property. It may be argued that this Act is considered as a sui generis system, but in fact it is undoubted that the traditional medicinal knowledge is related to intellectual property rights regime.

However, at least, Thai traditional medicine is protected by this Act and it has become a part of national health policy (the 9th National Health Development Plan covers the period of 2002-2006) that consists of three main tasks to be implemented which are as follows:

a) Strengthening the knowledge of Thai traditional medicine, indigenous medicine and complementary and alternative medicine through research and development;
b) Transferring the selected knowledge of Thai traditional medicine, indigenous medicine and complementary and alternative medicine to the public and health-care personnel through training, demonstrations, exhibitions, printed matter and various other media channels; and
c) Developing herbal products and Thai traditional medicine, indigenous medicine and complementary and alternative medicine services to meet international standards.¹²⁷

With respect to the above-mentioned policy, the Ministry of Public Health may overlook the rights of traditional medicine holders to be protected, particularly for the transferring of the selected knowledge from an individual of 'Thai traditional medicine, indigenous medicine and complementary and alternative medicine to the public and health-care personnel'. The Ministry may need approval from the traditional medicine right holders. In this regard, according to the 9th National Health Development Plan on the Thai traditional medicine protection policy¹²⁸, there are no clear-cut, measures for the protection of traditional medicine, particularly for the individual rights holders.

Moreover, the current situation of traditional medicine protection in the 10th National Health Development Plan, that covers the period of 2007 to 2011,¹²⁹ is also not clear on the strategies for the protection of Thai traditional medicine knowledge.¹³⁰ Most of the policy implementations emphasise developing and promoting Thai traditional medicine in 'therapeutically effective herbal medicinal products' and 'to reduce irrational uses of expensive medications and modern medical technology'.¹³¹

Once again, Thai traditional medicine is recognised and promoted as a part of public health care since it was withdrawn from official health care services and medical curriculum in 1916. Thailand has just realized the importance of traditional medicine after the WHO insisted member states were required to include medicinal plants into their primary health care programmes. However, for whatever reasons, nowadays, Thai traditional medicine has become a part of the National Health Development Plan. The Ministry of Public Health is an authorised government agency responsible for development, promotion and protection of traditional medicine in Thailand.

In this connection, it has to be said that the Ministry of Public Health has played an important role in regard to consumer protection by the Practice of Art of Healing Act B.E. 2542 (1999) and the Drug Act B.E. 2510 (1967)¹³² However, the protection of traditional medicine in the view of traditional medicinal knowledge holders has not been mentioned particularly to the rights either of an individual or the collective/ community.¹³³