Top court to decide on oriental medicine practitioners’ access rights to Covid-19 info system

An administrative lawsuit concerning the access rights of oriental medicine practitioners to the Covid-19 information management system will be decided by the Supreme Court.

Attention is also focused on whether the top court will extend its rulings on diagnostic devices, including ultrasound and electroencephalography (EEG) machines, to determine whether rapid antigen tests (RATs) for professionals constitute a form of oriental medicine practice.

According to the legal community, the Supreme Court recently accepted the appeal filed by the Association of Korean Medicine (AKOM) and assigned a presiding justice and panel to begin reviewing the legal arguments. The AKOM appealed after the appellate court dismissed its claim challenging the “denial of approval for access rights to the Covid-19 information management system.”

Previous lower court rulings were mixed.

In the first trial held in November 2023, the Seoul Administrative Court Division 5 (B) ordered the Korea Disease Control and Prevention Agency (KDCA) to lift the system access blocking. The court accepted the AKOM's argument that rapid antigen tests for professionals constitute a form of oriental medicine practice. The KDCA immediately filed an appeal.

The appellate court ruled in favor of the KDCA. The Seoul High Court's 10-2 Administrative Division (B) accepted the KDCA's request to dismiss the lawsuit, stating that the “Covid-19 system access blocking” was merely an administrative processing procedure.

The high court pointed out that within the government's Covid-19 positive case surveillance system, “the medical institutions operated by the plaintiffs (AKOM executives and other oriental medicine practitioners) have never been designated as sample surveillance institutions and are unlikely to be designated in the future.” It further stated, “Even if they diagnose Covid-19 positive cases, they also are not burdened with the reporting obligation under the Infectious Disease Control and Prevention Act.”

Therefore, even if the court were to cancel the KDCA's blocking of access to the Covid-19 system, they cannot report Covid-19 occurrences using this system, nor do they have any obligation to report, the appellate court added.

The AKOM’s core contention in this case—whether the use of professional rapid antigen tests (RAT) by oriental medicine practitioners constitutes unlicensed medical practice—is a separate issue to be addressed, the high court added.

Oriental medicine practitioners can perform medical acts using professional rapid antigen tests at any time, regardless of the KDCA's system access block. If the KDCA deems this unlicensed medical practice and issues separate administrative sanctions or criminal complaints, the AKOM can file a lawsuit or pursue criminal proceedings to obtain a direct and specific court determination on whether it constitutes unlicensed medical practice," it stated.

Accordingly, the appellate court ruled the AKOM’s claim was unlawful, overturned the first-instance ruling, and dismissed all filed lawsuits. It also ordered the AKOM to bear the total litigation costs.

The AKOM appealed this decision, and both sides now await the Supreme Court's ruling. If the Supreme Court finds no grounds for the appeal, it will be dismissed. Conversely, if it accepts the AKOM's arguments, it could remand the case back to the Seoul High Court. The Supreme Court's Special Division 3 (A) is currently reviewing this case.