Posted By Jey Kumarasamy
In health or medicine-related articles, there are two prevalent sets of labels imposed on medicinal products. On the one hand, there are labels like “Western”, “mainstream”, and “conventional” medicine. On the other hand, there are terms such as “traditional”, “alternative”, and “complementary” medicine. These designations are commonly used in the media, medical literature, and sometimes, even in legal decisions.
The “Western medicine” label reflects its historical origin, but is now commonly practiced and studied around the world. It is also usually associated with biomedicine and scientific findings. As for “traditional medicine”, the World Health Organization provides the following definition:
“Traditional medicine is the sum total of the knowledge, skills, and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness.”
False Dichotomy
These labels are sometimes used to suggest that the two categories are mutually exclusive. For instance, it could be construed that no part of traditional medicine has any scientific basis, or that Western medicine does not encompass any traditional treatments. However, these propositions are difficult to uphold in the presence of clear counterexamples like the “CIHR Team in Aboriginal Antidiabetic Medicines” project. This Quebec-based multidisciplinary endeavor explores “the antidiabetic potential of Cree Traditional Medicine (TM) involving Boreal forest plants.” It is funded by the Canadian Institutes of Health Research, includes members of various Cree health institutions, and has produced several scientific publications. Perhaps this false dichotomy – of “Western” vs. “traditional” medicine – would be less significant were it limited to such fora as blogs and social media. Unfortunately, that is not the case.
A quick CanLII search for Canadian cases in the last 10 years containing the phrase “Western medicine” returns 48 results. Two of these results are the controversial case of Hamilton Health Sciences Corp. v D.H. and its clarification that followed in 2015. They were discussed in a recent MJLH blog post written by my colleague, Lauren Hanon.
Hamilton Health Sciences Corp. v D.H.
In the initial judgement, Justice Gethin Edward held that the McMaster Children’s Hospital in Hamilton cannot force an 11-year-old First Nations girl diagnosed with high-risk acute lymphoblastic leukemia to resume chemotherapy against her mother’s wishes. The girl, identified as J.J., was removed midway from her 32-day chemotherapy treatment plan by her mother, D.H., who wanted to pursue traditional medicine instead. Justice Edward upheld D.H.’s right to do so under section 35 of the Constitution Act, 1982, which recognizes existing aboriginal and treaty rights. Seven months later, after the cancer, which had been in remission, returned and the parties submitted a joint submission to the court, Justice Edward delivered a clarification. He reaffirmed that “the best interests of the child remain paramount.”
The judgment sparked quite a controversy in the media. It diverged from previous cases where courts have forced medical treatment on non-aboriginal minors considered not capable of making their own decisions. One such example is the Supreme Court of Canada’s judgement in A.C. v Manitoba (Director of Child and Family Services) in 2009, in which the court found that a forced blood transfusion, despite the 14-year-old Jehovah’s Witness girl’s objections, was constitutionally sound. However, Justice Edward notes at the end of his judgment on J.J.’s case that section 35, the source of D.H.’s right to pursue traditional medicine, is not contained within the Canadian Charter of Rights and Freedoms, and therefore falls outside the scope of section 1 – the Charter’s reasonable limits clause.
There is an interesting passage in Justice Edward’s original judgement, which brings us back to the discussion of labels:
“D.H.’s decision to pursue traditional medicine for her daughter, J.J., is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the Western medical paradigm.” [emphasis added]
Even though this passage references the aboriginal right itself and does not comment on the effectiveness of any treatment, the phrase “Western medical paradigm” seems to reduce chemotherapy and the medical opinion of the doctors at McMaster Children’s Hospital to a matter of culture. To be clear, this is not to say that Western medicine is more effective than traditional medicine, or vice versa. Rather, language like this is distracting and confusing, especially if we also have to consider questions like which treatment is simply more likely to be effective. Proponents for labels like “biomedicine”, “evidence-based medicine” or “science-based medicine” have raised similar arguments.
In the case of J.J., her mother originally chose treatment at the Hippocrates Health Institute (“HHI”) over the chemotherapy treatment provided at the Hamilton hospital. HHI advertises itself online as a centre for alternative medicine, and its director claims that they have “had more people reverse cancer than any institute in the history of health care.” HHI is licensed in Florida as a “massage establishment”, and it is being sued by former employees who allege that they were wrongfully dismissed after raising concerns about “ethical transgressions in regard to the medical treatment of patients at the facility.”
HHI was also the destination of another 11-year-old Ontario First Nations girl, Makayla Sault, after she left chemotherapy at McMaster Children’s Hospital for the same type of cancer in 2014. Makayla Sault unfortunately died several months later after she relapsed, following a period of remission.
The “Comprehensive Cancer Wellness Program” page on HHI’s current website has the following disclaimer at the bottom of the page (earlier snapshots on the WayBackMachine archive seem to indicate that the contents of the website were different last year):
“DISCLAIMER: This program is an advanced educational process, and is not intended to diagnose, treat, prevent, or cure any disease and is not a replacement for standard medical care. For any concerns or questions you should always seek advice from your primary care provider.”
Meanwhile, the doctors at McMaster Children’s Hospital insisted that J.J. had at least a 90% chance of being cured if treated with chemotherapy. And after J.J.’s cancer returned, her family decided to resume chemotherapy along with aboriginal medicine. The health-care team responsible for her now includes “a senior pediatric oncologist and a Haudenosaunee (Iroquois) chief with experience in native medicine.” There have been no further reports regarding J.J.’s prognosis.
Conclusion
Justice Edward referred to HHI as an “alternative cancer treatment facility” – a generous characterization considering that even HHI does not intend its program to be an alternative treatment for any disease, and states this clearly in the disclaimer. Furthermore, the original judgment did not examine HHI, or compare the effectiveness of each of the proposed treatments. Perhaps it should have, because if the paramountcy of the best interests of the child was implicit, as suggested in the clarification, then this was likely a relevant component to the analysis. Resorting to labels like “Western” and “traditional” medicine, instead, only needlessly perpetuates the aforementioned false dichotomy. It is easy to get caught up in all these labels given their pervasiveness, and it is also possible that there is no perfect solution for the purpose of demarcation. But we must be cautious when drawing the dividing line in medicine, because if we choose to focus on the wrong set of distinguishing factors, we might miss the ones that make the difference between life and death.
McGill Journal of Law and Health 