Potions, promises and paradoxes: complementary medicine and alternative medicine and malpractice law in Canada.

I. Introduction Over the past decade there has been a phenomenal growth of public interest in complementary and alternative medicine (CAM). Indeed, the provision and sale of CAM has become a major industry and, even, a political force - as witnessed by the federal government's struggle to regulate natural health products. (1) Not surprisingly, this health care trend has also led to an increasing number of physicians integrating CAM into their conventional practice. For many physicians, the rise of CAM is closely linked to the perceived failures of conventional medicine (2) and, as such, they view CAM as a means of giving their patients the best of both worlds. (3) The popularity of CAM has resulted in increased pressure on physicians from the public and even from fellow physicians to keep an open mind or even to provide CAM treatments. (4) In recent years, there have been a number of efforts made to open the medical profession to CAM practices. Some examples of this trend include: the Medical Society of Nova Scotia establi shed a CAM section in 1994; in 1996, a group of physicians formed the Canadian Complementary Medical Association; (5) in Ontario, the College of Physicians and Surgeons has started to make the profession more open to CAM; (6) there is an increasing presence of alternative providers in some Canadian hospitals; (7) and the Vancouver Hospital has established the Tzu Chi Institute for Complementary and Alternative Medicine with a mandate to provide and study CAM. (8) So, though a segment of the profession remains skeptical, it seems likely that an increasing number of Canadian physicians will be offering their patients the choice of having a combination of conventional and alternative treatments. While this mixed approach to the practice of medicine is undoubtedly attractive to many health care consumers, and may be viewed as an open-minded response to public interests, it is not without legal pitfalls. Specifically, the dearth of available evidence for many CAMs may make it difficult for physicians to meet the relevant legal standard of care. The legal tensions associated with the provision of CAM therapies by physicians also highlight a number of social paradoxes inextricably linked to the growing popularity of alternative therapies that lack any evidence of efficacy. As health care budgets have come under a higher degree of scrutiny, the need for scientific evidence to justify the use and public financing of conventional treatments has intensified. Moreover, the incredible advances that have occurred in, for example, molecular genetics have revealed an unprecedented amount of information about the biology of many human diseases. Certainly a large percentage of conventional health care practices are not backed by sufficient evidence to justify their use; (9) but there is little doubt that conventional medicine is now more scientifically based than at any other time in history. Though it seems likely that many untested CAMs will turn out to be efficacious, a push for the integration of therapeutic alternatives that have no scientific basis can onl y be viewed as a practice paradox. How will the law respond? For example, to what standard of care will physicians be held? In a legal environment that is placing increasing emphasis on the physician's obligation to disclose accurate information, how much will a physician be required to disclose about CAM? Part II of this paper begins with a number of sections that describe the current context in which any discussion of CAM will take place. It will begin by defining CAM and what forms of alternative medicine are being considered in this discussion. Next, the paper will look at the increase in public interest in CAM, which is truly becoming a social phenomenon, and some of the factors that may prompt individuals to turn to CAM for therapeutic treatment rather than to conventional medicine. Undoubtedly, it is related, in part at least, to frustrations with the limits of conventional therapies and the technology-oriented approach of most conventional health care practitioners. …

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