Medical Integration: Law and Policy on Alternative and Integrated Medical Practice

Chapter 12
Medical Integration: Law and Policy on Alternative and Integrated Medical Practice


Irehobhude O. Iyioha


Introduction


The problem of inequitable healthcare delivery is pervasive in most Sub-Saharan African Countries. Equitable healthcare implies ‘equal opportunities for health’ and aims to reduce ‘health differentials’ to the ‘lowest level possible’ between different societal groups where the health status of the groups is neither natural nor inevitable.1 The concept of ‘health equity’ generally encompasses the idea that every person ‘should have a fair opportunity to attain their full health potential’ and at least that none should be deprived of realizing this potential, if it can be prevented.2 A major reason for the inequity in healthcare delivery in Sub-Saharan Africa is the shortage of human resources in healthcare delivery, which are central to the functioning of health systems. The World Health Organization (WHO) has noted that in the struggle against various global healthcare crises, little attention has been paid to the people who actually deliver health services.3


The human resources shortage in the healthcare system is further complicated by the ‘inequitable spatial distribution of health workers’, which has resulted in serious ‘urban-rural imbalances’ in African communities4 including Nigeria. Today, over 80 per cent of the Nigerian population utilize indigenous medicine for their daily healthcare needs. Indigenous medicine, commonly denoted as ‘traditional medicine’ or ‘complementary and alternative medicine’ (CAM) in Western countries, is internally eclectic and encompasses a broad variety of diagnostic and therapeutic methods or systems, including herbalism, naturopathy, homeopathy, osteopathy, acupuncture, massage therapy, chiropractic, traditional orthopaedic surgery (otherwise known as ‘bone-setting’), amongst others. Some systems of medicine within the broad umbrella of indigenous medicine are built upon philosophies and mechanisms of action that are fundamentally different from the aetiology of Western allopathy.5 Each region of the world – whether Africa, Asia or the Americas – has its own unique therapeutic system closely modelled to suit its ways of life.6 Indigenous medical providers (IMPs) – the practitioners of this system of medicine – are healthcare professionals skilled in the delivery of medical care through natural and holistic therapeutic methods, and are generally acquainted with local needs and resources. These practitioners play a major role in strengthening health systems by sustaining healthcare delivery in underserved communities.


Although the WHO has consistently called for the integration of indigenous medicine into the conventional biomedical healthcare system, only 25 of 191 WHO member states have national policies on indigenous medicine.7 The efforts of IMPs to provide affordable healthcare services to their populations are rarely discussed in policy frameworks. In Canada, the United States and many other WHO member states, there is a hierarchical relationship between biomedicine and indigenous medicine entrenched in the laws and policies governing healthcare delivery in those countries. While Nigeria boasts of a national policy on ‘traditional medicine’, a close examination of laws and policy instruments governing medical practice in Nigeria, including the National Health Act, the National Health Insurance Scheme Act and the Medical and Dental Practitioners Act, reveals that the legal framework governing medical practice is skewed towards privileging biomedicine as the dominant healthcare system in the country over non-biomedical systems. The practice of indigenous medicine, more commonly known as ‘Traditional Medicine’ in Nigeria is primarily governed by the Traditional Medicine Act, which sets the general legal framework for the recognition of this system of medicine, and signals the country’s acceptance of a pluralistic healthcare system.


Nonetheless, as in a number of countries including Canada and the United States, the mere existence of a body of legislation regulating the practice of indigenous medicine does not imply successful integration within the national or provincial healthcare delivery system. An integrated system of healthcare is one in which practitioners of different medical systems work collaboratively and across healthcare paradigms in the same clinical context for better health outcomes. Cant and Sharma define integration as a clinical system ‘where biomedical and alternative practitioners collaborate or work alongside each other in a variety of institutional arrangements’.8 The ideal of collaborative healthcare delivery which integrated medicine represents is yet to be achieved anywhere in the world. A major factor that complicates the agenda of medical integration is physicians’ concern about the possibility of legal liability. This concern is further aggravated by what are perceived as ambiguities in the legal framework governing indigenous medical practice. Drawing upon jurisprudence in Canada and the United States that provide accounts of trends in the evolution of alternative medicine, this chapter examines the state of the law on the subject in Nigeria.


The chapter is an exposé on the legal framework governing the practice of indigenous medicine and the nature of the acts and omissions on the part of biomedical professionals that could result in professional liability. The chapter further examines the legal implications of physicians’ decision and/or failure to administer indigenous medicine and refer patients to indigenous medical providers when necessary. It concludes with a summary analysis of the defences that could apply to a malpractice charge against a physician who practises integrated medicine in Nigeria. Canadian case law and legislative trends, including the social and scientific studies and scholarship on complementary and alternative medicine, serve as predictive tools providing invaluable resources and insights into the analysis of the novel, diverse and often-complicated issues implicated in the concept of integrated medicine. The analysis of Canadian law further highlights the similarity of aspirations between healthcare consumers in Canada and Nigeria on the subject of medical integration.


The ‘Resource’ Problem: Inequitable Healthcare Delivery and Alternative Medical Practice


The WHO confirms that Africa faces an insidious crisis in human resources for healthcare.9 The crisis has eroded the ‘survival gains achieved after a century of the most spectacular health advances in human history’.10 Although Africa carries 25 per cent of the world’s disease burdens, it has only 1.3 per cent of the world’s health workforce.11 According to statistics, Africa needs 2.5 health workers per 10,000 inhabitants to achieve the Millennium Development Goals; however, the continent presently has a health workers/population ratio of 0.8 health workers per 10,000 inhabitants.12 Among the factors that have contributed to the decline in human resources are financing arrangements and weak planning of the health workforce in countries. However, these factors are perhaps less prejudicial to health systems than the major cause of the human resource crisis, which according to the WHO, is the international migration of biomedical healthcare practitioners to countries in the global North.13 The evidence shows that most African countries have become ‘exporters’ of human resources in healthcare.14 Countries in the global North, particularly the United Kingdom and the United States, are the receiving countries. Data provided by the WHO indicate that Nigeria and South Africa have the highest number of medical doctors working in Northern countries.15 Statistics have shown that 21,000 Nigerian doctors were practising in the United States alone in 1995. This was about the same number of doctors practising in the Nigerian public service at the time.16 The problem of workforce shortages in Nigeria is emblematic of what the WHO has described as a ‘crisis in human resources in health’17 in the entire African region traceable to the migration of Nigerian physicians to North America and Europe.18


Statistics on the nature of the resources available to some Southern states further illustrate this view. The available data show that more than 80 per cent of Nigeria’s population rely on indigenous medical systems (IMS).19 Earlier data suggests that there are only about 34,923 doctors for the country’s population, which at the time of report was approximately 140 million.20 Ironically, a 1998 Report of the Joint United Nations Program on HIV/AIDS and Folk Medicine in Africa states that there are about 900,000 ‘traditional’ healers registered with the Association of Folk Medicine Practitioners in Nigeria. South Africa is reported to have more than 700,000 ‘traditional’ healers. The Zimbabwe National Traditional Healers’ Association has a list of 50,000 healers, while more than 450,000 healers are registered with the Senegalese Melango Union established in 1983.21


Even in Western nations, such as Canada and the United States, a growing number of healthcare consumers are turning to alternative approaches to healthcare delivery and invoking constitutional rights in the rising spate of legal challenges against the denial of government subsidy for use of indigenous and alternative medicines. A recent study by the Fraser Institute in Canada reveals that 74 per cent of Canadians utilize ‘complementary and alternative medicines’ (CAM).22 In another study funded by Health Canada, it was established that 71 per cent of Canadians regularly use herbal medical products, homeopathic medicines, and related products that fall within the category of natural health products (NHPs).23 Given these impressive statistics on usage, it is not surprising that annual out-of-pocket expenditure on CAM in Canada and the US is about $3.8 and $34 billion respectively.24 There is presently no comprehensive insurance coverage of CAM in these countries. Similarly, most Southern states have neither comprehensive payment schemes nor legal frameworks to govern the use of indigenous medicine in the interest of the large number of citizens who rely on it. Indeed, the WHO reports that only 25 of 191 WHO member states have national policies on indigenous medicine.25 Yet, more than 80 per cent of the peoples in that part of the world conventionally denoted as the ‘developing world’ depend on indigenous therapies for their healthcare needs.


The acute shortage of healthcare resources and medical personnel in the 1960s and 1970s led the WHO to show a marked interest in national indigenous healthcare systems in the African region. The situation influenced the WHO to produce a series of reports detailing the promising role of indigenous medical providers as key human resources in healthcare delivery.26 These reports emphasized the important role indigenous medical systems (IMS) can play in the delivery of primary healthcare. In recent policy reports, such as the Traditional Medicine Strategy 2002–2005,27 the WHO has reiterated the contributions made by indigenous medicine to national healthcare delivery and population health. In the first WHO Congress on Traditional Medicine in 2008, the WHO recognized indigenous medicine as a key resource of primary healthcare delivery which has the capacity to ‘increase the availability and affordability’ of medical care and to contribute to better health outcomes.28 The Congress adopted the Beijing Declaration, which calls on WHO member states and relevant stakeholders to take steps towards the integration of indigenous and conventional medicines, the development of national policies on indigenous medicine, the regulation of indigenous medical practice and herbal products, as well as the recognition of indigenous medicine as a core aspect of primary healthcare delivery.29


Although an examination of the prospects for medical integration to contribute to achieving an equitable healthcare system is beyond the scope of this chapter, the analyses in the chapter are premised on the theory that integrated medicine can indeed reduce disparities in healthcare delivery and access through the deployment of indigenous medical providers to specialized tasks within the national or provincial healthcare delivery system and the incorporation of natural health products (NHPs) into national or provincial drug formularies.30 This theory underlies the discussion in this chapter of the legal implications of integrated medical practice and the defences against an indictment for dual medical practice.


Definition and Aetiology of Indigenous Medicine


The WHO defines indigenous medicine as ‘diverse health practices, approaches, knowledge and beliefs incorporating plant, animal, and/or mineral based medicines, spiritual therapies, manual techniques and exercises applied singularly or in combination to maintain well-being, as well as to treat, diagnose or prevent illness’.31 This broad definition highlights aspects of the fundamental nature of indigenous medicine such as the diversity of techniques and resources employed in indigenous medical practice. However, the definition omits the unique matrix of disease aetiologies and worldviews that characterize and distinguish indigenous medicine from biomedicine. While there is no grand definition of indigenous medicine, I have proposed a definition that highlights the very important epistemic dichotomy between biomedicine and indigenous medicine. Accordingly, indigenous medicine comprises the totality of therapeutic knowledge, methods and systems, including the natural, psychosomatic, psychosocial and mystical, employed in maintaining health or preventing, diagnosing and treating illness, which are based on mechanisms and theories that may or may not be explicable through Western biomedical philosophy; the methods and systems typically employ plant, animal and other mineral resources in combination or independently in the therapeutic process.32


This definition highlights four elements – natural, supernatural, psychosomatic/psychosocial and holistic – which make up the indigenous medical paradigm.33 Each of these elements identifies the origin of diseases as conceived within indigenous cosmology. Natural theories identify observable forces and elements within the material world as the cause of diseases and directly link measurable environmental phenomena such as pollution, infection and contagion to illness.34 Within this theory, the indigenous medical practitioner (IMP) relies on physical substances such as medicinal herbs, roots and plants for treatment.35 Supernatural or mystical theories identify factors and phenomena beyond the natural world as the origin of illness.36 Within this category, transcendental forces such as ancestral beings and religious deities are believed to be imbued with the power to interfere in human relationships and cause health-related problems. Illnesses linked to the transcendental cannot be rationalized through the ‘dynamics’ of the physical world.37 They require knowledge of the systems of ‘interaction’ that exist between the natural and supernatural realms.38


Psychosomatic explanations link certain illnesses to the influence of mental or emotional factors. This element emphasizes the interrelationship between the body and the mind; changes or distress in any of the realms of consciousness represented by the body and the mind can result in sickness in the other.39 Factors that create psychological changes or disturbances between the mind and the body are diverse and might include experiences in the social world. A related theory to the psychosomatic, therefore, is the psychosocial aetiology, which interprets some diseases and illnesses through the social and psychological experiences of the patient. Disharmonious social relationships between the individual and members of the community are deemed to create an imbalance between the body and the mind of the patient, which is said to result in illness. It is noteworthy that Western medical anthropology conflates IMS into the natural and the supernatural spheres. In this classification, the psychosomatic, psychosocial and supernatural theories are conflated as a single concept; thus, phenomena that address social relationships are often classified as supernatural.40 The broad categories of ‘natural’ and ‘supernatural’ are treated as distinct categories of a ‘premodern’ medical system.41 These contrived categories mischaracterize the nature of indigenous medicine. Contrary to the perspective depicted by Western anthropologists, the four elements of indigenous medicine identified above are seldom exclusive. They often overlap to emphasize the importance of a balanced relationship between the body, mind, community and transcendental forces to an individual’s health and overall well-being.


The overlap and interdependence between the first three basic elements of indigenous medicine underscores the fourth element or principle – ‘holism’ – which is a ‘core organizing principle’ of indigenous medicine.42 Holism in indigenous medicine represents the interrelatedness and conceptual inseparability of the natural, transcendental, psychosomatic and psychosocial elements in medical diagnosis and treatment.43 This holistic framework complicates any attempt to isolate the natural theories of illness from the broader cosmology of indigenous medicine as is the case with biomedicine. In fact, the exclusion of any essential element in a specific case often undermines the wholeness of an indigenous therapy and strips indigenous medicine of its uniqueness as a distinct healthcare paradigm.


Beyond the above elements, other defining features of indigenous medicine include the empiricism in the search for causes and cures within the natural, psychosomatic and psychosocial theories of illness,44 the social and yet capitalist nature of indigenous medical practice, and of course the ‘receptive’ and pragmatic attitude which indigenous healthcare practitioners have adopted towards biomedicine.45 Most indigenous healthcare systems, including African and Asian systems of medicine, recognize the interrelationship between medical systems and the importance of integrating the best of different medical cultures. According to Baronov, the pragmatism of African pluralistic medical systems ‘extends to the acceptance and incorporation of biomedicine as a duly respected, alternative medical system’.46 In this case, the flexibility and evolution of practices within indigenous African medicine do not approximate to the ‘wholesale replacement of one medical system for another based upon the ethnocentric Western premise of inherent incompatibility’.47


The combinatory elements of indigenous medicine, while differing from one society to another in different degrees, mark the paradigmatic difference between indigenous medicine and biomedicine. On the one hand, while both systems are similar in terms of the empiricism in research, diagnosis and treatment of illnesses associated with natural theories, the interdependence of the elements of indigenous medicine signify a system of medical care that cannot be reduced to a substrate of biomedicine as is the case with attempts to exclude the non-observable aspects of indigenous medicine in scientific research. Biomedicine itself embodies a specific paradigm of disease, which differs from the indigenous in its exclusion of non-specific, non-observable and socio-transcendental elements from its conception of illness. This narrow worldview of disease consigns Western biomedicine to its own geo-cultural realm. While biomedicine is today a universal phenomenon having been accepted by virtually every medical culture in the world, it remains an alternative medical phenomenon traceable to a specific geographical, cultural and philosophical milieu simply denoted as the ‘West’. In the course of the discussions in this chapter, the term ‘alternative medicine’ – one of the dominant terms employed in the description of these systems of medicine in North America – will be used loosely alongside ‘indigenous medicine’ to describe the broader category of non-conventional therapies (for lack of a better word) that do not originate from the specific communities within which they are practised.


Legal Framework Governing Indigenous/Alternative Medical Practice


The current legal frameworks governing medical practice in Nigeria and Canada endorse the ascendancy of biomedical professionals in the practice of medicine. While the body of healthcare laws in these countries selectively makes provisions for the recognition of (some) indigenous/alternative medical systems, the level of recognition granted by these laws has not conferred indigenous/alternative medical providers with the necessary legal and institutional status needed to thrive at the level of the biomedical profession. For example, while many alternative medical professions remain unregulated, the regulated alternative professions do not have the full institutional support of the state (in terms of funding for research, reimbursement for services, and enlisting in healthcare plans) to adequately address consumers’ needs and expectations. More importantly, the selective recognition granted to alternative medical systems in these states fails to address the population health implications of the marginal legal and institutional status of indigenous and alternative medicines.


In Nigeria, while the legal framework governing healthcare delivery in the country legitimizes indigenous medical practice, the laws, policies and institutions that govern healthcare delivery in totality are not structured to allow the type of systemic integration advocated by the country’s policymakers. For example, although the National Health Act – the principal healthcare legislation in the country – recognizes indigenous medical practitioners as part of the national healthcare delivery system, other sections in the Act do not make provisions for shared tasks between the recognized health professions. Similar types of omission are evident in other health-related statutes and policies in the country. The country’s health system is governed through this asymmetrical body of laws in a social context in which there is limited access to health services.


In light of the problem of healthcare access in many Southern communities, the World Health Organization has made several calls for a strengthening of national policies and regulatory frameworks for the sustenance of the indigenous medical sector. In its Traditional Medicine Strategy 2002–2005, the WHO promotes the integration of indigenous/alternative medicines and biomedicine within national health systems. The policy is aimed at facilitating the development of national health policies on indigenous medicine and drafting national guidelines for indigenous medicine through the development of international standards, technical guidelines and research methodologies. Other objectives of the policy include promoting rational evidence-based use of indigenous medicine, advancing research into indigenous medicine through the promotion of clinical research on the safety and efficacy of indigenous medicine and managing information exchange on indigenous medicine.48 However, although the WHO acknowledges the plurality of medical systems through these and other detailed policies and programmes on the development of indigenous medicine, it has not established a ‘binding’ legal regime that can effectively govern indigenous medicine.49


Thus, while the WHO continues to struggle with a dual vision – continued allegiance to Western biomedicine on the one hand, and engineering policies for the recognition of indigenous forms of medical care on the other hand – it has been critiqued for not employing its treaty-making power under Article 19 of its constitution to establish a legally binding regulatory convention on indigenous medicine for the global health community.50 The argument is that in spite of its broad conception of health and healthcare and the expansive nature of its indigenous medicine policy, the WHO has failed to ‘explore the possibilities in international law for advancing that policy’.51 However, it is not clear whether a legally binding instrument for implementing its policies on indigenous medical systems (IMS) will have a significant impact on the status of indigenous medicine worldwide. The existence of such an instrument might simply indicate a legitimate intent on the part of the WHO to ensure that national healthcare systems, especially in the South, are sustainable.


Nonetheless, the WHO’s policies have influenced several initiatives at the national level where it has raised considerable awareness on the importance of policy guidelines and regulatory frameworks for indigenous medicine. Several WHO member states, including Nigeria, Canada, the United States, the United Kingdom, India, Australia, and China have established guidelines for regulating at least some indigenous and alternative medical services and products. However, in accordance with the WHO’s fixation on legitimacy through ‘‘scientific validation’ or Western-style empiricism’,52 these regulations often focus on the clinical and experimental aspects to the neglect of the public health aspect of indigenous medicine.53 While focusing on the clinical and experimental medical aspects of indigenous and alternative medicines, governments need to ensure that public health research also addresses the ‘social, cultural, political, and economic contexts’ of indigenous medicine to ‘maximize’ its contribution to health systems worldwide.54 Nevertheless, even where statutes or regulations formally recognize indigenous medicine as an integral part of the national health system, they do not provide binding principles regarding the practice of indigenous medicine. For example, most statutes on indigenous medicine (often known as ‘Traditional Medicine Acts’) do not legislate on the necessity for inclusion of indigenous medicines into national formularies nor do they outline guidelines for standardizing the practice of indigenous medicine.


Similarly, national and provincial health Acts and most healthcare-related statutes do not clearly articulate the role of indigenous medical systems in national or provincial healthcare delivery. It is also not surprising that these national or provincial laws have no provisions that directly incorporate indigenous medicine into healthcare delivery. For example, the informed consent provisions under Nigeria’s National Health Act, 201455 and Ontario’s Health Care Consent Act, 199656 do not include indigenous/alternative medicine among the ‘alternative’ therapies to which patients are entitled.57 While some provincial medical practice Acts in Canada now redefine medical malpractice to limit the liability of physicians practising alternative medicine,58 such provisions – as will be contended in this chapter – have not eradicated the existing hierarchies between biomedicine and indigenous medical systems. Furthermore, existing medical practice laws do not permit referral between medical systems, except on limited grounds and to a limited class of alternative providers. Thus, while a binding legal instrument issued by the WHO could facilitate the necessary harmonization of national or state medical practice laws and existing regulations on indigenous and alternative medical systems, it remains necessary to address how the content of such laws and regulations may be structured.


The importance of standardizing current health law and policy frameworks to address the atypical (legal and ethical) issues that arise from alternative and integrated medical practice has not been at the fore of the scholarship on integrated medicine.59 These issues arise partly because of the prohibitive and/or restrictive nature of most laws governing medical practice. These laws place restrictions on the practice of alternative medicine, and by extension constrain the development of an integrated health system. Also unacknowledged and unaddressed is the central role that a standardized system of laws, as part of a state’s health governance regime, can play in bridging the gap between transplanted legal and institutional norms that often fail to meet established objectives for population health and pragmatic, evidence-based strategies for meeting consumer needs.


National and Provincial Health Laws and Policies


In Nigeria, formal recognition of indigenous medicine through legislation dates back to 1966 when the Ministry of Health approved research into the medicinal properties of local herbs.60 The research was conducted by the University of Ibadan, the country’s oldest university. A series of investigative and research committees were established through the 1970s and 1980s to examine the regulation and standardization of indigenous medicine. The country established policies in the 1980s to register indigenous medical providers in the country, and in 1984 the Federal Ministry of Health set up the National Investigative Committee on Traditional and Alternative Medicine.61 In 1988, the Federal Ministry of Science and Technology established a committee to research and develop indigenous and alternative medicines.62 In 1992, the National Primary Health Care Development Agency Decree established the National Primary Health Care Development Agency.63 The Agency had a ‘broad mandate’ on issues related to healthcare, including the authorization and support of traditional birth attendants and village healthcare systems through:


Paying special attention to and providing maximum support for the training, development, logistic support, and supervision of village health workers and traditional birth assistants, along with the relationship between those workers and their communities and the mechanisms that link those workers to other levels of the health system …64


Other initiatives taken by the country include the establishment of the National Traditional Medicine Development Programme in 1997 and the proposed establishment of a Traditional Medicine Bill. Since the establishment of the National Traditional Medicine Development Programme, the Federal Ministry of Health has taken steps to create the National Technical Working Group on Traditional Medicine; developed policy documents on indigenous medicine, including the National Policy on Traditional Medicine, National Code of Ethics for the Practice of Traditional Medicine, the Federal Traditional Medicine Board Decree, and Minimum Standards for Traditional Medicine Practice in Nigeria; constituted Consultative Meetings of the Honourable Minister of Health with State Commissioners for Health and Local Government Chairmen (1999), and organized the Presidential Think Tank Forum (1999).65


A law, the Traditional Medicine Council of Nigeria Act, was proposed in 2000 to establish a regulatory council for indigenous and alternative medical systems. The mandates of the council, amongst others, were to establish guidelines for the regulation of indigenous medical practice to control quackery, fraud and incompetence, to liaise with traditional medicine boards at the state level to ensure observance of policies and guidelines outlined in the Federal Traditional Medicine Board Act, to establish traditional medicine clinics and traditional medicine production units in the country’s geopolitical zones, and to collaborate with local and international organizations with similar objectives.66 There has been a more recent attempt to establish a Traditional Medicine Act for the regulation of indigenous medical practice. The proposed law is expected to establish a council for the regulation of indigenous medical practice in Nigeria. The functions of the council would include establishing national guidelines for the regulation and practice of indigenous medicine, preparing and reviewing a practitioners’ code of conduct, collaborating with relevant agencies within and outside Nigeria for the promotion of indigenous medicine, accrediting institutions that would train providers and conduct certificate courses on indigenous medicine, and promoting the establishment of model services on indigenous medicine such as clinics, schools, botanical gardens, drugs and manufacturing units in the country.


While the above initiatives are laudable and the government has outlined impressive milestones for the development of indigenous and alternative medical systems, these initiatives are not often reflected in key healthcare statutes in the country which directly affect the provision of medical services and products to the citizens. For example, an amendment of the National Drug Formulary or the list of essential drugs under Nigeria’s National Health Insurance Scheme Act to include natural health products and other alternative medical products will indicate a clear intent on the part of the government to move towards integration. Although the Nigerian National Drug Policy proposes to reduce the country’s ‘high dependence on foreign sources for finished drug products, pharmaceutical raw materials, reagents and equipment’ through several methods including the ‘publication of a Nigerian Pharmacopoeia, incorporating a list of effective herbal medicines’, the Essential Drugs List recognized by the National Health Insurance Scheme does not include any herbal pharmacopoeia.67


Furthermore, it is not evident that the consultative meeting between the Honourable Minister of Health and the State Commissioners for Health and Local Government Chairmen inaugurated in 1999 is a continuous practice, and more importantly, whether it included representative groups of consumers and indigenous medical practitioners whose interests supposedly constituted the agenda in those meetings. Decision-making within national and state health systems through ministerial offices, commissions, committees and meetings remain organized around physicians and biomedical practitioners. The healthcare decision-making process in Nigeria is comprised of a bureaucratic system manned by physicians and other members of the biomedical profession. The National Council on Health (NCH) is the highest policymaking body on healthcare matters in the country.68


The NCH is comprised of the Federal Minister of Health, Commissioners of Health of the states, the Secretary of Health and Human Services in the Federal Capital Territory, and the Permanent Secretary of the Federal Ministry of Health. The Permanent Secretary of the Ministry of Health is also the Secretary to the NCH. The NCH determines the structure, time-frames and guidelines for the formulation of both national and state health plans.69 Decision-making within the system is closed to public participation. External participation in matters handled by the NCH comes in the form of the technical advice rendered by the Technical Committee which sits as an advisory body to the NCH. The Technical Committee is comprised of a long list of members drawn from different biomedical institutions. Although section 6(2)(l) of the National Health Act identifies ‘one representative each of the registered health professional associations including trado-medical70 practitioners’ as members of the Committee, it is questionable whether these members have any real influence over decisions reached by the NCH.


The scepticism regarding the influence of the representatives of the indigenous/alternative health professions in the Committee arises because the Technical Committee is largely dominated by members of the biomedical profession,71 and its decisions are expected to be those of the majority where the Committee is unable to reach a consensus. According to section 7(2) of the Act, the ‘Technical Committee shall strive to reach its decisions by consensus but where a decision cannot be reached by consensus, the decision of the majority of the members shall prevail and be regarded as the decision of the Technical Committee’.72 Thus, it is highly unlikely that the sole representative of the indigenous and alternative health professions in the country will be able to influence decision-making in the Technical Committee.


Furthermore, decision-making in the area of healthcare financing and choice of services and products to be funded is restricted to biomedical actors. The country’s National Health Act (NHA) effectively directs funding to biomedical and physician services. Although the Act recognizes indigenous medical systems as part of the overall national healthcare delivery system,73 it does not make concrete provisions for the inclusion of indigenous forms of medical care within the lists of covered services.74 Given the closed nature of the decision-making process and the dominance of biomedical actors within the system, it is doubtful that matters such as the growing consumer demand for indigenous therapies or the possible role of indigenous medical systems in national healthcare delivery would be relevant to the decision-makers.


Reform of this hierarchical ordering will necessarily require stakeholders in the indigenous medical sector to become involved and participate actively in the healthcare system. It is important to emphasize ‘active participation’ because the Nigerian National Health Act makes provisions for the inclusion of ‘one representative each of the registered health professional associations, including indigenous healthcare practitioners, in the Technical Committee which, as noted above, is the advisory body of the NCH.75 Although the inclusion of a representative of the indigenous medical sector in this national advisory body is commendable, as already noted, it is doubtful that the interests of the professional body as channelled through the representative can prevail over those of the established health professions. The inclusion of representatives of indigenous health professions in major decision-making bodies and councils would have an impact only where the representatives have direct input into decisions affecting the healthcare of the populace and where they have more votes in committees to back their interests.76


Another area for legislative reform is the category of healthcare workers recognized by the state as part of the human health resource workforce. For Southern societies such as Nigeria experiencing a shortage of healthcare workers, legislative reform of national or state law provisions that outline mechanisms for increasing the healthcare workforce may be necessary. For example, section 43 of the Nigerian National Health Act,77 which governs the training and management of human resources in the healthcare system, has no provisions indicating the possible contributions of indigenous healthcare providers within the national healthcare system. The same provision contemplates possible importation of health workers from foreign countries.78 While the state has expressed its interest in developing an integrated healthcare system through setting up the Presidential Committee on the Integration of Traditional Medicine into National Healthcare Delivery, legislative provisions such as section 43 of the NHA do not reflect this interest. However, the integration of the indigenous medical workforce into state and national healthcare delivery systems must be preceded by formal regulation.


Regulation


Medical practice is restricted to a limited category of professionals who are recognized by the state as qualified to practise medicine. In Canada for example, provincial health statutes stipulate the category of persons who may practise medicine. Section 27 of the Ontario Regulated Health Professions Act (RHPA)79 prohibits a person who is not statutorily authorized from performing controlled acts identified in the statute, such as diagnosis, treatment and drug prescription.80 The regulated health professions include conventional or allopathic health professions81 as well as chiropractic,82 massage therapy,83 naturopathy,84 and traditional Chinese medicine and acupuncture.85 The regulated alternative health practitioners are generally limited to the tasks stipulated under the statutes regulating the given profession. A similar provision to Ontario’s section 27 operates under British Columbia’s Health Professions Act,86 which restricts the practice of medicine to designated health professions.87


In Nigeria, section 17 of the Medical and Dental Practitioners Act88 criminalizes the practice of medicine by persons who are not registered medical practitioners. Section 17(6) creates an exception for indigenous medical providers (IMPs) who are recognized within their communities as capable of providing a system of medical care that originates from the given community within which the provider practises.89 However, section 17(7) limits the exemption provided under subsection 6 by prohibiting IMPs from performing ‘any activity involving an incision in human tissue or to administering, supplying or recommending the use of any dangerous drugs’.90 It is noteworthy that these procedures or acts are similar to some of the controlled acts outlined in subsections 27(1) and (2) of Ontario’s Regulated Health Professions Act.91 Also noteworthy are the terms employed in the categorization of the tasks of the respective professions. For example, under Ontario’s Regulated Health Professions Act, members of the medical, dental, chiropractic, optometry and psychology professions can ‘diagnose’ while other health providers can only ‘assess’ a patient’s medical condition.92 Physicians are usually given the broadest latitude to diagnose, treat and make prescriptions.93


The scope of practice laws such as those described above have been described as ‘reductionistic’ and ‘problematic’.94 Alternative and Integrated Medicine scholar, Michael Cohen argues that they ‘reflect the notion that the enterprise of healing can be carved into neatly severable and licensable blocks’.95 It has also been argued that while regulatory laws aim to protect patients from harm and ‘overreaching practitioners’, healthcare regulation requires ‘rethinking’ because the relevant legal rules on regulation impose limitations on integrated medical practice.96 While regulation strengthens medical standards, it is essential to ensure that a given system of regulation does not entrench biomedical hegemony and lead to loss of consumer access to therapies that are safely, effectively and appropriately administered.97


Regulation can increase the ‘availability of a systematized framework that can be relied on’ by clinicians, healthcare institutions and insurers, and most importantly, the healthcare consumer.98 Furthermore, regulation constitutes a major step towards the integration of biomedicine and indigenous medicine. Alternative health systems are often regulated through one or more of the different regulatory models that prescribe rules for the provision and providers of medical services, which have been discussed in Chapter 3 of this book.99


Medical Negligence Law and Integrated/Alternative Medical Practice


A Crisis of Legitimacy


In spite of the growing body of research on indigenous medicine and the gradual legislative recognition of this medical system in Nigeria, physicians’ integration of indigenous and other non-biomedical therapies into practice may expose them to legal liability. This outcome is not always obvious in WHO member states100 where the relevant healthcare statutes endorse and stipulate the requirements for the practice of biomedicine without expressly prohibiting the practice of indigenous/alternative medicine. The laws may simply stipulate prohibited acts, which are restricted to physicians. Thus, while indigenous/alternative medicine can co-exist with the biomedical system since it is not expressly outlawed in such regions, it is also not accounted for within the boundaries of state law. The problem with this unlegislated status is that the practice of controlled medical acts by indigenous medical practitioners or of integrated medicine by physicians can result in tortious or criminal liability.101


A significant consequence of the modern state’s minimal interest in indigenous medical systems is that there are either no directly applicable laws or policies to determine the relevant standards in indigenous medical practice in some countries like Nigeria, or existing medical and other relevant laws pertaining to health consumption are skewed to recognize only the biomedical form of healthcare. Statutes established to grant official recognition to indigenous medicine (such as Traditional Medicine Acts) are of no use in everyday medical practice. Although Traditional Medicine Acts grant formal recognition and legitimacy in limited cases to indigenous medical systems, the adjudication of substantive medical issues (including but not limited to malpractice, funding-related and reimbursement claims, as well as constitutional claims based on a supposed right of access to specific therapies) are often based on legal rules, which recognize biomedicine as the dominant healthcare system. For example, the charge of malpractice against a healthcare provider who administers non-biomedical therapies is often adjudicated on the principles of tort law – principles drawn wholesale from biomedical practice standards.


To put it plainly, the tort of medical negligence has no inherent source for the legal rules that it establishes. The source of its legal rules in practice is biomedicine; the precepts of biomedical practice implicitly determine what standards are legally acceptable. As Michael Jones has noted, while ‘it is the tort of negligence that provides the bottom line: minimum standard of acceptable professional conduct’, in actual practice ‘medical negligence is a failure to live up to proper medical standards, and those standards are set, not by lawyers, but by doctors’.102 This position was laid out by the English Court in Sidaway v Board of Governors of the Bethlem Royal Hospital,103 where Lord Scarman stated that ‘the law imposes the duty of care: but the standard of care is a matter of medical judgement’.104 Thus, where a legal issue arises in the context of indigenous medical practice, indigenous medicine is placed in a grey space, where the difficult legal questions include: should biomedical rules apply to the indigenous medical practitioner whose medical standards of practice (that is, methods of treatment and diagnosis) differ from that of the biomedical practitioner? In the case of an adverse reaction from the administration of a specific indigenous therapy, what standard has the practitioner (being either a biomedical or indigenous practitioner) contravened? Healthcare laws in many countries of the North and South, including Canada and Nigeria, have no clear answers to these questions.


A number of judicial examples illustrate the legal problem here. In the Canadian case of Ter Neuzen v Korn,105 the court’s dicta suggests that once a practice is established as generally accepted within a profession, then the courts will defer to the expertise of the profession as a whole in determining the applicable standards of care. Of course, this begs the question of what constitutes a profession.106 In the US case of Rosenberg v Cahill,107 a chiropractor who failed to see the patient’s tumours on an x-ray misdiagnosed the medical condition and prescribed manipulation therapy. At trial, the chiropractor contended that a medical doctor could not testify as to the standard of care required of chiropractors. The court had to decide whether a biomedical practitioner could provide the required expert testimony based on the chiropractor’s use of a biomedical tool of diagnosis. Evidently, there was professional overlap between two medical paradigms. By crossing from one paradigm to another in the course of practice, the chiropractor fell outside the general rule that only members of the same profession can provide expert evidence of the standards of practice.108


The Canadian cases of Gibbons v Harris109 and Penner v Theobald110 provide further examples of the unsettled nature of the law on alternative or integrated medical practice. In Gibbons, the Alberta Appellate Court rejected the notion that a physician could not testify as to the correctness of a chiropractor’s diagnosis on the ground that ‘there cannot be any question of different schools of opinion’ when the diagnosis of a certain practitioner is called into question.111 However, the Manitoba Court of Appeal in Penner rejected this earlier position. Allowing evidence of the form of diagnosis peculiar to chiropractic, the court held that ‘types of diagnosis may vary with different systems of healthcare; the type of diagnosis is naturally founded on the basic principles of each particular system. For that reason diagnosis by a medical doctor or an osteopath or a chiropractor may differ in some respects ….’112 Interestingly, the Ontario Court of Justice in the more recent case of Barber v Wilson113 followed the earlier decision in Gibbons.


These are a few of the many cases that exemplify the uncertainties in the law on integrated and alternative medical practice. Thus, whether we are considering the legal landscape in the United States where there are more promising legislative developments in this area or Canada with more conservative laws on the subject, there are no pre-set legal principles for determining the applicable standards in integrated and alternative medical practice. The healthcare laws of these countries – like in many postcolonial states in the South – have their roots in biomedicine.


Negligence/Malpractice and Integrated Medical Practice


There is evidently an incompatible relationship between medical negligence law and indigenous and integrated medical practice – at least within the context of the biomedical framework within which medical malpractice law has emerged. As noted in the foregoing discussion, the standards of care within the tort of medical negligence are determined by prevalent medical practices endorsed by the biomedical profession. Thus, the development or evolution of legal rules on integrated medicine is impeded by the content of existing laws. As presently formulated, the law of medical negligence effectively places non-biomedical practices within the definition of malpractice. Indeed, as one scholar has noted, ‘alternative medicine and malpractice law are an awkward fit’, and there are unresolved questions regarding ‘the appropriate standard of care in alternative contexts’ and how the standard may be determined.114 There are also questions about the defences available to biomedical healthcare providers who practise indigenous or alternative medicine.


The law of medical negligence aims to protect injured patients and sanction healthcare professionals who have not exercised due care and skill in their practice. The legal process has often construed as illegitimate any medical practice that falls outside the recognized biomedical paradigm.115 Although clinical practice is gradually evolving to integrate indigenous therapies into routine biomedical practice in North America, legal authority is yet to grasp fully the ‘paradigmatic shifts’ toward ‘expanded patient choice’.116 In the Canadian case of Davar v The Queen, Justice Miller bemoaned the slow pace of legal development on patients’ use of complementary and alternative medicine when he remarked that the law needs to ‘catch up’ with societal behaviour.117 A similar commentary is relevant to Nigeria where the majority of the population depend on indigenous and alternative healthcare systems, and where the legal definition of professional negligence draws heavily on the English law of torts. Notably, Nigerian physicians are also held accountable for professional negligence under the quasi-criminal jurisdiction of the Nigerian Medical and Dental Council Disciplinary Tribunal, whose standard for a finding of liability is ‘beyond all reasonable doubts’.118 However, since the acts or omissions that constitute professional negligence, which could earn the physician a quasi-criminal charge before the disciplinary tribunal under the applicable rules of professional conduct are similar to those that could result in a civil action under tort law, this chapter will focus on medical negligence under tort law.119


As I discuss in Chapter 4 of this book, medical negligence occurs when a physician deviates from the biomedical standard of care and that deviation causes the patient injury. Generally, the plaintiff in an action for negligence must prove (1) the existence of a duty of care, (2) a breach of that duty, and (3) a causal connection between the defendant’s negligent act and the plaintiff’s injury.120 The physician’s duty of care covers the areas of diagnosis, medical advice and treatment.121 Standard forms of negligence encompass errors in diagnosis or treatment, failure to attend, treat or refer the patient, and failure of advice or communication.122 In order to determine the existence of a breach of the standard of care, the court assesses the standard expected of the practitioner, and then considers whether the practitioner’s conduct fell below the applicable standard.123


Indigenous and alternative medicines are commonly defined as unconventional therapies that fall outside the conventional allopathic healthcare system. Indigenous medical providers largely operate within standards different from those operative in biomedical practice. Thus, the question is whether physicians commit malpractice by incorporating non-allopathic therapies into their treatment regime.124 The relevance of this question is evident in the fact that legislatures and the courts often rely on the absence of biomedical acceptance of specific medical practices as suggestive of failure to follow the standard of care.125 Cohen, commentator on complementary and alternative medicine (CAM) and the law, has suggested that by definition, CAM falls outside biomedical standards of what is medically accepted. Thus, by the very definition of CAM or indigenous medicine as ‘non-conventional therapies which fall outside biomedical standards’, CAM/indigenous medicine may be interpreted as malpractice. Although this legal position aspires to insulate patients from harm, it imposes limitations on the practice of alternative medicine.126