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Medicine for today - Professional Responsibility and Complementary Medicine

Presentation to Otago University , Dunedin
1 June 2000

Ron Paterson
Health and Disability Commissioner

What perspective does a Health and Disability Commissioner bring to the issue of professional responsibility and complementary medicine? First, a cautious one. I note that when my predecessor ventured into this area last year, one media commentator (Brian Rudman of the New Zealand Herald, March 9, 1999, All) accused her of "cheering the misguided" and said that "if Robyn Stent wants to juice every carrot in Ohakune and drink the results, I support her right to do it". You will appreciate my caution.

But it is a statutory function of the Commissioner "to make public statements ... in relation to any matter affecting the rights of health consumers ... including statements that promote an understanding of, and compliance with, the Code or the [HDC] Act" (Health and Disability Commissioner Act 1994, s14(d)). Given the increasing popularity of alternative therapies, it is important to clarify the rights of consumers who opt for complementary medicine.

As noted by the Journal of the American Medicinal Association in a special issue in November 1998, "if you've ever taken high-dose vitamins, used an herbal remedy, or sought treatment from a chiropractor, you're among the millions all over the world who use alternative medicine to ward off illness or treat a variety of ailments. Known by a variety of terms - complementary, holistic, unorthodox, integrative - alternative medicine refers to most treatment practices that are not considered conventional medicine (widely practised or accepted by the mainstream medical community)". According to JAMA, four out of ten Americans use some form of alternative medicine. I suspect that the figure is equally high in New Zealand.

In 1996 I was the rapporteur for a Health Research Council Consultative Conference on "Evidence and Health Practice". The two-day meeting in Christchurch drew more than 170 participants, including a wide range of consumers, health activists, tangata whenua, Pacific Island people, health researchers, clinicians and alternative therapists. There was a striking divergence in approach between people from a medical and scientific background, and consumers, Maori, Pacific Island people, and providers.

While researchers and clinicians pointed to randomised controlled trials (RTC's) as the 'gold standard' for evidence, other participants noted that "scientific evidence is not infallible" and that "evidence from consumers' personal experiences of health care must be listened to, and should not be discussed as anecdotal". Advocates for complementary therapists spoke passionately of the difficulties in getting their "grass roots" evidence accepted by the medical establishment.

Interestingly, at least one researcher highlighted the lack of congruence between evidence and health practice in areas of conventional medicine where there is good evidence - from RCT - of what works. There is strong evidence of the efficacy and safety of anticoagulant therapy for the prevention of venous thrombosis after hip fracture. It is a simple, inexpensive means of reducing the risk of death from thrombotic complications. Yet two-thirds of New Zealand surgeons surveyed at that time (mid 1990s) never gave anticoagulants, predominantly for reasons unsupported by evidence.

So, when we reflect on the desirability of evidence-based healthcare, those of us in the glass house of modern medicine should pause before throwing stones.

Parliament clearly responded to consumer preferences in the Accident Insurance Act 1998, by enabling 14 disparate treatment providers, including acupuncturists and osteopaths, to receive public funding for providing rehabilitative care for individuals suffering personal injury covered by ACC. I note that Dr Pippa Mackay, President of NZMA, railed this week (editorial, NZMA Newsletter, 26 May 2000) that "there was not a shred of research, evidence or consultation to support this aspect of the ACC changes. Nor was there a call for those new treatment providers who did not already meet professional standards to undergo further training or qualification".

Pippa's typically punchy comments highlight a concern commonly expressed by 'traditional' health care providers: Are 'non-traditional' or alternative health providers held to a lower standard of care? In an age of increasing legal accountability of medical practitioners, are other providers being 'let off the hook'?

What does the Health and Disability Commissioner Act and the Code of Rights have to say about the matter? The genesis of the Commissioner legislation was Judge Sylvia Cartwright's 1998 Report of the Cervical Cancer Inquiry. The focus of that Inquiry was the actions of medical practitioners researching cervical carcinoma in situ in patients at National Women's Hospital. But although the key recommendations related to patients' rights, notably to informed consent, in a public hospital setting, the resulting legislation has a far wider ambit.

"Health consumers", who enjoy the rights spelt out in the Code of Rights, include "any person on ... whom any health care procedure is carried out". "Health care procedure" includes "any provision of health services to any person by any health care provider". "Health services" covers any "services to promote health". And a "health care provider" includes "any ... person who provides, or holds himself or herself out as providing, health services to the public or a section of the public, whether or not any charge is made for those services". The net is cast widely indeed. From my reading of those definitions in section 2 of the Health and Disability Commissioner Act, every tohunga, every iridologist, every primal therapist and every faith healer who holds herself out as providing services to promote health is subject to providers' duties under the Code.

What does this mean in terms of the key rights at the heart of the Code, Right 4 - the right to services of an appropriate standard - and Right 6 - the right to be fully informed. Are the legal standards for alternative medicine as unconventional as the treatments?

First, standards of care. Right 4 sets out a number of aspects of the broad right to receive services of an appropriate standard.

1) The right to have services provided with reasonable care and skill.

This is the 'umbrella' provision which underpins the right of every consumer of health care in New Zealand - traditional or non-traditional - to receive good quality care. How do we measure that? Interestingly, the legal test derives from a 1957 case (Bolam v Friern Hospital) involving the administration of the 'conventional' treatment of electroconvulsive therapy (ECT) to a patient in a psychiatric hospital. The standard is that a doctor must act in accordance with a responsible and competent body of relevant professional opinion. In a negligence case, the Court hears evidence from experts in the relevant speciality to determine what is accepted practice. Similarly, in investigating an alleged breach of the Code of Rights, the Commissioner seeks independent expert advice. In the case of an alternative practitioner, advice may be sought from a recognised practitioner in that field.

The Health Commissioner does have a role in relation to patient safety, since if a responsible practitioner would know that the potential harm of a health care procedure outweigh the benefits, it would clearly be negligent (a breach of the Right 4 duty of reasonable care and skill) to administer that treatment. The fundamental ethical principle of health care - 'primum non nocere' (first do no harm) is no less applicable to alternative practitioners than to medical practitioners.

The efficacy of a procedure is a different matter. If a responsible practitioner would know that the procedure is ineffective, then it would seem irresponsible to administer it (and again a breach of the duty of reasonable care and skill). But what if the particular school of alternative practitioners believe that the procedure is effective, even though it has not been validated by randomised controlled trials or other scientific evidence? In that case, it seems to me that the crucial matter for a consumer is information. I shall return to the issue of informed consent to alternative health care procedures in a moment.

The Medical Council of New Zealand, in its statement notes that any doctor who embarks upon a mode of investigation or treatment of patients that is not based upon evidence of effectiveness, must, in assessing patients:

a) In history taking and examination, meet the standard of practice generally expected of the profession;

b) Investigate utilising generally accepted modalities;

c) Reach a diagnosis that reasonable medical practitioners would reach; and

d) Advise the patient of the evidence based and conventional treatment options.

The bottom line is that a GP practising alternative medicine will be held both to professional standards for medical practice, and to accepted standards for the relevant alternative practice. Some GPs may decide that they should "stick to their knitting".

The second key right in the Code is Right 6. It is inaptly entitled "the right to full information". In practice, of course, it is absurd to expect a practitioner to divulge all the information relevant to a particular diagnosis or treatment. What the Code actually requires, in essence, in relation to information disclosure, is two things:

1) Telling consumers (without being asked) all the information that a reasonable patient, in that consumer's circumstances would expect to receive, including ... an assessment of the expected risks, side effects, benefits and costs of each option;

2) Giving honest and accurate answers to questions.

In my opinion, consumers who seek alternative health care are entitled to be given information about the safety and effectiveness of the proposed therapy. Medical practitioners have come to expect high standards of information disclosure particularly in relation to anxious, inquisitive patients. Witness the debate around the need for disclosure of the increased risks of thrombosis from third generation oral contraceptive pills, where the absolute risk is in the order of 1 in 30,000. Surely I have a right to a similar level of disclosure about the 'quantum booster' that is to be used to treat me.

The third area where the Code is relevant to professional responsibility and complementary medicine is where, as a medical practitioner, I know that my patient is also using alternative therapies. Right 4(5) states that "every consumer has the right to co-operation among providers to ensure quality and continuity of services". This means that for patients receiving orthodox and non-orthodox health care, co-operation is a two-way street. My GP should not make it difficult for me to see a chiropractor or an osteopath for my lower back pain. Equally, my naturopath should not prevent me from seeing my GP to obtain a prescription medicine. Indeed, the duty of co-operation between providers many entail a level of co-ordination of care, so that my GP can be assured that my homeopathic potion will not counteract my prescription medicine, and vice versa.

One area of particular difficulty for alternative practitioners is Right 2, a consumer's right to be free from "sexual, financial, or other exploitation". Reading the Commissioner's published opinions, it is evident that some alternative practitioners do not maintain appropriate boundaries with their patients. In two cases, a primal healing therapist entered a sexual relationship with a patient (therapy in one case consisted of spending one week living at the provider's home while receiving therapy). In another, a naturopath made inappropriate comments about a patient's physique.

It is perhaps not surprising that alternative health care, which often involves a more holistic approval to healing, with emphasis on psychological and spiritual issues, may result in a closer relationship between provider and consumer. That is all the more reason for the provider to take special care to establish and maintain appropriate boundaries. It is encouraging to see self-regulatory bodies such as the NZ Charter of Health Practitioners and the NZ Natural Health Practitioners Accreditation Board developing Codes of Ethics to clarify what is acceptable practice.

One intriguing case that I discovered in preparing this lecture involved a GP who, in the course of a consultation, offered to pray for the patient and proceeded to do so, despite the patient's protestation. The doctor mentioned that the patient was healed and must have consented at a spiritual level. The unhappy patient complained the to Health and Disability Commissioner who found a breach of Right 2 (exploitation of trust) and Right 7 (services provided without consent). The message for GPs - pray for your patient in your own time!