The harm principle and liability for CAM practice: a comparative analysis of Canadian and United States health freedom laws
A study by the Fraser Institute in Canada shows that 74 percent of Canadians use complementary and alternative health services, while 71 percent have used natural health products to combat chronic and debilitating medical conditions.4 The study reports that other patrons have used natural health products simply for preventive healthcare purposes.5 According to a different study by Health Canada, 81 percent of Canadians are convinced that there will be an increase in the use of natural health products over the next ten years.6 In spite of the rising profile of medical pluralism in Canada, restrictive federal and provincial laws and policies place complementary and alternative health services and products out of the reach of many Canadians and impede the practice of complementary and alternative medicine by many Canadian health practitioners. The traditional definition of medical negligence or medical malpractice, which renders a physician’s practice of CAM a standard case of deviation from acceptable practice standards, further inhibits the professional autonomy of physicians interested in practicing CAM or integrated medicine. However, recent legislative changes, such as amendments to the Medical Acts or health professions legislation of some Canadian provinces, attempt to ease the contentious relationship between the biomedical institution and CAM practice by recognizing – without actually espousing – the practice of CAM through the circuitous approach of modifying the grounds on which biomedical healthcare professionals may become liable for medical malpractice. For example, amendments to Medical Acts in Alberta, Ontario, British Columbia and Manitoba provide that physicians will not be liable for unprofessional conduct solely on the basis of
departing from the prevailing medical practice or practicing non-traditional therapies. These provisions in Canadian law are modeled after similar provisions in Acts regulating medical practice in several states in the United States (US), including Oklahoma, Texas, Washington, Oregon, New York, North Carolina, Massachusetts, Georgia, Colorado and Alaska. Today, while a good number of laws and legislative amendments, which are denoted as health freedom laws, in the US as well as Canada provide that physicians will not be liable for unprofessional conduct for practicing a non-traditional therapy except where the chosen therapy poses a greater risk to the patient than the conventional therapy, Alaska’s health freedom provision (and before the recent amendment following a key legal decision, North Carolina’s) has a different proviso which makes physicians automatically liable for use of a non-conventional therapy where the patient is harmed. Washington’s health freedom law incorporates both types of provisos, attaching liability to a physician’s use of a non-traditional therapy only where it results in harm or creates unreasonable risk. Denoting these provisos as the “harm principle”, this chapter explores the critical implications of the principle alongside the disparities between the two variants of the provisos and their impact on the practice of CAM and integrated medicine. The chapter contends that, in deviating from the traditional standards for a finding of liability for medical negligence or malpractice, the provisos draw a subtle hierarchy between CAM and biomedicine and further impede the practice of CAM. While outlining the impact of the provisos on the integration of CAM and biomedicine, the chapter outlines how the health freedom provisos reinforce the co-option model of CAM integration – a model involving the practice of validated CAM therapies by biomedical practitioners, and fundamentally excludes non-biomedically trained CAM practitioners from hospital-centered CAM practice. It is noteworthy that there seems to be a gradual trend in legislation towards the more nuanced provision that emphasizes the degree of risk of a CAM therapy comparative to standard or recognized treatment as the fulcrum in the determination of professional liability – a trend that appears to have been spurred, at least in the case of North Carolina, by adverse judicial opinion. However, it remains important to deconstruct the inherent problems and limitations of the harm provisos in order to serve as a decision-making guide for future US and Canadian state and provincial legislatures that are yet to adopt a health freedom law. The analysis and perspectives enunciated in this chapter draw from law and ethics – from the analytical tools provided in the law of professional negligence and the ethical principles of non-maleficence and, inferentially, autonomy. These disciplines collectively illuminate the approach adopted and thesis herein espoused. Given the nature of the subject of complementary and alternative medicine – a subject imbued with the complexities that trail health policy and health law studies – and its dependency on law for legitimacy, the analysis of the harm principle through legal and ethical lenses is fundamental to achieving the ultimate goal of validation and legitimization of CAM. The discussion is set out in three sections. The following section defines and examines health freedom laws in Canada and the United States. Next, in the context of a general overview of malpractice in CAM practice, the “harm principle” is analyzed with some focus on the similarities and differences between the two versions of the harm principle adopted by US states and Canadian provinces. The section also examines the implications of the provisos within medical negligence law. Following the discussion of the harm principle, the section highlights the slippery-slope effect of the amendments towards the co-option model of medical integration, and evaluates the impact of the amendments on the growth and development of the field of CAM. The concluding section discusses possible legislative and interpretive reform of the harm principle with primary focus on the importance of minimum standards of acceptable medical
practice as part of the evaluation of a healthcare professional’s liability for the practice of CAM.