Ethical and legal issues at the interface of complementary and conventional medicine

Community surveys from Australia, North America and Europe indicate that 35%–50% of the population attend complementary therapists or use complementary or alternative medicine (CAM). The full implications of the popularity of CAM have only recently been recognised, as it has existed largely as an independent, parallel and disparate healthcare system, largely ignored by conventional medical practitioners on the grounds that it had no compelling evidence base and that what research had been done had substantial methodological flaws or systematic biases.1,2

As the risks and benefits of CAM and its interaction with allopathic (conventional) medicines become better understood, various ethical and legal issues are raised. Moreover, recent events in law, professional practice, healthcare policy and industry have focused attention on the interface between complementary and conventional medicine and the roles and responsibilities of medical practitioners, and have threatened the trust that Australians appear to have in the safety, quality and philosophy of CAM. These events include the Pan Pharmaceuticals recall,3 a recent criminal case concerning the death of an infant being treated by a naturopath,4 increased concern regarding medical liability arising from failure to refer to complementary therapists,5 moves to regulate complementary therapists,6,7 and a Position Statement from the Australian Medical Association (AMA) on complementary medicine.8 These developments present complex challenges for conventional healthcare systems and those who practise within them. However, they also raise questions about the nature of evidence, the creation of consensus in clinical practice, and the very meaning and function of complementary medicine.9

One of the more contentious, but central, concerns is the possibility that conventional medical practitioners may risk legal liability by ignoring patient use of and preference for CAM.10

Medical practitioners are ethically and legally obliged to provide patients with enough information to make adequately informed healthcare decisions and valid consent to treatment. This information includes the risks and benefits of the proposed treatment and any relevant alternative treatments (Box).

Given the widespread use of CAM (often together with prescription medications),12 the importance attached to its use by the public, the blurring of distinctions between CAM and conventional medicine and the growing research into the efficacy of CAM, a strong case can be made where information exists about the benefits, risks and potential drug interactions of CAM. Doctors should be aware of this information and should be able to advise patients of these options.13 Indeed, while no cases yet exist where a doctor has been found liable for failure to advise a patient of CAM treatment options, it is arguable that a doctor’s common law obligation to provide information requires that he or she has a duty to provide information about CAM therapy where that information would be material to a particular patient.14

Recent legal developments have clarified the responsibilities of medical practitioners regarding the provision of treatment and of information. The 2002 Ipp Report made a number of recommendations about how the law should approach the issue of establishing an appropriate standard of care in cases of medical negligence.15 It concluded that, in relation to establishing the standard of care, “the distinction between treatment, on the one hand, and the provision of information, on the other, is a very important one, and that the law should deal with these two activities in different ways”.

With respect to treatment, the Ipp Report recommended that the law in Australia should be amended in such a way as to reflect the House of Lords decision in Bolitho v City and Hackney Health Authority.16 According to that decision, conduct will meet an appropriate standard of care where the conduct was in accordance with an opinion widely held by a significant number of respected practitioners in the relevant field, as long as that opinion, in the view of a court, is not irrational. It was recommended that the standard of care for giving information to patients remain the same as the current common law standard as explained in Rogers v Whitaker.17 The Ipp Report did, however, refer to the duty to inform as being “proactive” and “reactive” — proactive referring to what a reasonable person in the patient’s position might wish to know; while reactive is providing information that includes what “the patient has asked for or otherwise communicated a desire to be given”.

These recommendations have been adopted, to varying extents, in most jurisdictions. In New South Wales, these recommendations have been incorporated into the Civil Liability Act 2002. This means that medical practitioners should provide information about CAM where that information may be considered to be “material” to the patient. Information is material where a reasonable person in the patient’s position would attach significance to it, or where there is an indication that this particular patient would likely attach significance to information regarding complementary medicine. Thus, CAM should not only be discussed with patients who directly ask questions about it, but also at other times when discussions of CAM may become more significant for patients. Examples are where the burden of illness is substantial; where there is no proven conventional therapy available; where the therapy that is available is invasive or associated with minimal benefit or major toxicity; where complementary therapy may be of benefit and has few risks; and where the patient has expressed an interest in, or preference for, alternative therapies.18

This also means that doctors must know enough about CAM to meet the patient’s information needs. While neither the law, the profession nor the general public expect doctors to be experts on CAM, both the law and the profession (as shown by the AMA’s position statement on complementary medicine8) expect that doctors should have some knowledge of CAM to properly inform their patients about therapeutic alternatives. The question then becomes what should doctors know about CAM? This is particularly difficult to answer, as the degree of knowledge required of a doctor may vary according to his or her specialty and to the degree to which they incorporate CAM within their own practice. For example, oncologists may have a greater obligation to know about CAM used in cancer care than GPs, while those who use acupuncture in their own practice will have a greater obligation to understand the evidence relating to its risks and benefits than doctors who do not use it.

While government, the AMA and others appear to support the integration of evidence-based CAM, such an approach has significant implications. Integration may actually mean subjugation, disintegration or marginalisation; may fail to account for difference; and may fundamentally alter CAM practice (by emphasising standardisation, efficiency and generality at the expense of communication and individualised care).27 For these reasons, not only is it unclear whether a true integration of conventional and unconventional medicines is possible, but, more importantly, whether it is even desirable. If part of the attraction of CAM is its uniqueness, or its non-biomedical conceptions of health and disease, then integration might result in the loss of this alternative, or (more likely) it may result in the expansion of conventional medicine as it absorbs evidence-based CAM and the reshaping, shrinking and marginalisation of the CAM modalities that remain.