CAMLAW: Complementary and Alternative Medicine Law Blog

"Healing at the Borderland of Medicine and Religion" Published

Healing at the Borderland of Medicine and Religion has been published by UNC Press.

This latest book analyzes the integration of conventional, or biomedical, care with complementary and alternative medical (CAM) therapies, such as acupuncture, chiropractic, massage therapy, herbal medicine, and spiritual healing -- in short, integrative medicine and its attendant legal and social issues.

From the Introduction:

The Wheel of Time

At the First International Congress on Tibetan Medicine in Washington, D.C, the Dalai Lama reminded the audience that the first, international congress on Tibetan medicine was actually held in the seventh or eight century, not the twentieth; further, that the congress was held in Tibet, not in the American capital; and finally, that the historical conclave focused on the shared medical traditions of India, Nepal, China, Persia, and Tibet, traditions that already reflected an ethic of medical pluralism.

The Dalai Lama went on to point out that even at that meeting, centuries ago--long before the notion of "complementary therapies" had become popular in the U.S.--Tibetan medical culture already represented an amalgamation of influences from other traditions, already manifested deep respect for international collaboration and shared research efforts.

With gentle humor, the Dalai Lama's keynote reflected back the hubris and ethnocentrism often described as embedded in modern scientific efforts within the Western hemisphere to understand indigenous and other medical traditions. The medical stance implicitly critiqued by the Dalai Lama has been described by some critics as one of "co-optation" and assimilation, rather than true collaboration between camps. In other words, even when open to exploring other medical systems, clinicians and research scientists adhering too rigidly to the Western, scientific model--that is, without fully appreciating the asserted role of consciousness in mediating healing therapies--tend to imagine that the medical system adopted relatively recently in human history, largely in one part of the globe, authoritatively can filter, understand, and synthesize other medical traditions.

The Dalai Lama's assertion that this approach may suffer from hubris does not deny the power, and elegance of the scientific method to probe questions of safety, efficacy, and mechanism. No doubt scientific inquiry represents a powerful method for discerning truth in discovery. Scientific study to date has invalidated a number of would-be cures outside of conventional medicine (such as laetrile for cancer) and validated others (such as acupuncture to control nausea following chemotherapy; see Appendix A).
But science is not the whole of authority, and the Dalai Lama was not criticizing the power of medicine and science, but rather the exclusive claim these disciplines tend to hold upon our epistemological framework--on what we hold to be true, real, and valid. Balanced against scientific method are other modes of inquiry, from other disciplines in the humanities and, as well, from within human experience.

For the lineage within the Dalai Lama sits represents one of the great contributions to human understanding of the realms of mind and spirit--a technology of consciousness, if you will. His implicit critique of biomedical ethnocentrism thus suggests a need to balance current scientific inquiry on one hand, and tolerance and respect for foreign theories and systems of health care on the other. His challenge is in essence about embracing pluralism: momentarily suspending categorical disbelief, and being willing to try to understand some of the methods in these non-biomedical healing systems (such as the mysterious "pulse diagnosis" in Tibetan medicine) on their own terms. Those terms of reference may including framing healing as transfers of consciousness, healing intention, or therapeutic information through the medium of 'spiritual energy'--for lack of better terminology--i.e., through as yet unknown mechanisms. Contrary to reductionistic attempts to boil all inner awakening down to biochemical processes (a posture William James termed "medical materialism" ), an opening to pluralism refuses to dismiss phenomena that may not yet be validated under generally accepted frameworks in one cultural frame of reference as 'implausible' and therefore invalid.

In other words, the Dalai Lama's challenge--and the parallel objective of this book--is to navigate or negotiate the bridge between these seemingly opposite parts of the world map for healing: some objective, others entirely subjective; some externalized, others deeply within; some comprehensible according to commonly agreed standards, others incomprehensible or inaccessible to generally accepted rules of evidence; some operating according to known rules, and others touted by believers on one hand as authoritative and dismissed by skeptics on the other as irrational and hallucinatory.

This navigational task is freighted with contradictions. For example, the catchphrase "mind-body" (as in "mind-body medicine," one of the terms bandied about in moving beyond conventional or "orthodox" medicine) itself embodies (so to speak) deep contradictions, a presumptive crossing of chasms that may be unbridgeable if rhetoric alone purports to mediate understanding. A subtle aspect of the challenge in bridging these disparate arenas is to include tools from both worlds (e.g., science and religion; physics and metaphysics; concrete and consciousness). Hence the emphasis in this book on "negotiating" the new health care--a task of harmonizing where possible, integrating where appropriate, and synthesizing where beneficial. To reiterate, the "negotiation" at the borderland of healing and medicine is not only between MD and patient, but also between MD's, DO's, allied health providers, and CAM providers. The negotiation between West and East, biomedicine and CAM--whatever metaphor one chooses--affects all health care professionals (and patients, and those who study and those who regulate these dynamics), not only physicians. The multifaceted negotiation includes as well negotiating different worldviews, epistemologies, hermeneutics, and metaphors for health and healing.
During the Tibetan medicine conference, the contrast between Western, scientific medicine (or biomedicine) and Tibetan medicine was visually demonstrated in the difference between many of the speakers (in our starched shirts, knotted ties, and expensive haircuts) and the monks with their saffron robes and shaved heads; between the disposable conference brochures, formatted on high-speed laser printers, and the Kalachakra mandala, with its pristine colors and precise figurines of deities, painted in colored sands according to ancient Tibetan prescription; between the clinging by some of our minds to present position, status, academic affiliation, salary (or dependency on cell-phone, email, PDA, or other gadget), and the ceremonial gesture of sweeping away of the beautiful mandala at the conference's conclusion--a ritualistic meditation on the fact of impermanence.

The contrast reminded me of a meeting held about five years earlier, when I was an associate at Davis Polk & Wardwell, a Wall Street law firm. The theme of negotiating bridges between worlds was present even then, metaphorically and literally. I was in fact negotiating a copyright agreement between a Tibetan cultural foundation, our pro bono client, and a group of monks that the foundation had brought to the West to share knowledge of the Kalachakra (Wheel of Time) sand painting.

Together, my client and I met with the monks and their lawyer, in a room about twenty feet behind the New York stage on which the Dalai Lama was giving a talk. I recall greeting the monks individually, meeting their steady gaze, the head-bows, the hands folded in Namaste or prayer position. While negotiating the agreement's terms with their representative, I had the sense that these monks were sending blessings our way: their silence was profoundly full. In a fleeting way--without being distracted from my role as a lawyer--I could almost feel the wind of past lives, ghosts, deities, the subtle levels of consciousness that Tibetan teachings describe, as we sat, within the energy field of the Dalai Lama, as it were, unseen and yet present, trying to reach consensus.

Now at the Tibetan medicine conference, political and medical landscapes had shifted since that earlier negotiation. The monks and their mandala were not new to the West; the agreement had long been concluded and many books about their spiritual healing traditions published; "complementary and alternative medical" (CAM) therapies--the notion of including such therapies as (in order of most commonly licensed providers) chiropractic, acupuncture and traditional Oriental medicine, massage therapy, and naturopathic medicine--figured prominently on biomedical, regulatory, and political maps; some of the leading medical schools were offering courses on CAM therapies while others had invited Tibetan physicians to participate in research studies; and I had moved from Wall Street to legal academe to explore legal, regulatory, ethical, and policy questions at the intersection of conventional and complementary medicine.

At the conference, my role involved not a hard-headed, soft-hearted negotiation between client and monks, but instead, the task of leading a panel--composed of Tibetan medicine practitioners and representatives from various nations--on licensure, liability, and other legal considerations involved in bringing Tibetan medicine to the U.S. The old dichotomies seemed to have melted into a world in which ancient and modern had to find mechanisms for peaceful coexistence, even mutual respect and accommodation.
During the conference, I had the opportunity to meet one of the senior physicians to the Dalai Lama, and to experience his mind, consciousness, and knowledge of Tibetan medicine. My encounter with him was mysterious, sublime, and portending of things below the surface of conversation; and yet, by biomedical standards, this subjective impression might be dismissed as anecdotal, ungrounded, or--using the often-applied label for a beneficial effect whose only basis is the 'good medicine' of relationship--placebo. And again, the contrast between my felt sense of the encounter, and how it might be analyzed from a contemporary biomedical perspective, reminded me that, although the conference aimed to explore scientific analysis of the Tibetan arts, in many ways, the two worlds remained apart and polarities persisted. Scientists and religious leaders were engaged in dialogue, and in the attempt to find common language, yet many 'truths' the religious leaders took for granted could not possibly be tested or validated scientifically, and the fundamental epistemological assumptions of each camp, and starting premises of each for any inquiry, were startlingly dissimilar.

This gap seemed particularly acute during a session on Tibetan understanding of death and dying, and of the bardo or transition states between death and rebirth; these were realms scientific inquiry could not touch. The Tibetan monks were presenting the unprovable as truth, and yet modern diagnostic and therapeutic tools were useless in these realms, the only tools being found in the laboratory of human consciousness....

The term "integrative medicine" is of relatively recent coinage, and describes the effort to integrate the best of biomedical therapies, and of CAM therapies having a reasonable level of evidence of safety and efficacy as published in the medical literature. Integrative medicine also emphasizes a partnership between patients and caregivers to find the safest and most effective therapeutic approach. Integrative medicine is gaining increasing recognition in hospitals, academic medical centers, free-standing, "integrative care" clinics, and individual physician practices across the U.S. and internationally. Yet, as the Dalai Lama pointed out, the notion of integrating medical wisdom reflects a human tradition from more than a millennium ago, and there are many dimensions to the search for integration.

Efforts to create viable models of integrative care have clinical, legal, cultural, and political implications. While there are now an increasing number of books offering examples of clinical pathways to integrative care; books for researchers of complementary therapies; books for patients, including an Alternative Medicine for Dummies; and even a book or two on professionalism and ethics; few--if any--explicitly address the implications of this shift toward integrative models of care, with a focus on legal and policy issues, in terms of what synthesis might actually mean for an expanded consciousness of healing. By this I refer to the implications of integrative health care for such disparate yet interwoven arenas as notions of medical pluralism, environmental concerns, and religious mystical experience. This book uniquely focuses on the larger social and psycho-spiritual ripples of integrative care, grounding such focus in the legal and regulatory shifts the change in medical culture augurs....

In the present volume, the concept of "negotiating the new healthcare" serves as an overarching theme: the notion that healthcare professionals, patients, institutions, and regulators each are negotiating, with or without appropriate tools, this new territory in which conventional and CAM therapies increasingly are interwoven. The leitmotif of 'negotiation' has a double meaning, referring not only to the process of interest-based negotiation as a means for reaching agreement in dispute resolution, but also to the process of navigating the new territory. Negotiation of the new healthcare is not only about financial or insurance reform, nor even about access to medical treatment, but deals with the borderland between medicine and religion; between the "scientific" and the "mystical;" between what knowledge that is considered objective and publicly accessible, and knowledge that is considered subjective and privately accessible; between outer and inner, material and spiritual, overt and covert, quantifiable and perhaps immeasurable. This borderland lacks clear rules, both in a clinical and a legal sense; it requires an integration of emerging understandings of consciousness, and an appreciation of conceptualizations in other medical traditions of innate forces such as acupuncture's "chi;" it evokes tolerance and health care pluralism, and therefore controversy.

Historically, although the American colonies began with pluralistic notions of health care, the poor state of the science, paltry qualifications of many would-be physicians, general lack of medical standards, and cornucopia of true charlatans, eventually led to state regulation of healers--largely through mechanisms of licensure--and thereby, to the triumph of biomedicine over competing communities of healers such as naturopathic and homeopathic physicians. Legally, state statutes made the unlawful practice of "medicine" a crime and defined medicine in broad terms, encompassing any activity that potentially could be construed as "diagnosis" and "treatment" of disease. [See Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998).]

New constructs have been slow to emerge. Further, as the international community becomes increasingly aware of the political and interdependence of all peoples, ideas, and cultures--both through the escalation of international terrorism and the concomitant, attenuated awareness of our shared vulnerability--international health care, too, finds itself in the midst of a transition from a stratification of health care traditions toward a more unified understanding of what Wayne Jonas, MD, former Director of the Office of Alternative Medicine at the National Institutes of Health, has called 'global medicine.'

Different medical traditions have existed in many forms at many times within history, from the Ayurvedic medical tradition of ancient India, to acupuncture and traditional Oriental medicine in China, Japan, and other Asian nations, to Native American herbalism, to Latin American folk medicine; yet on each continent, the same debate recurs: should Chinese hospitals, for example, use biomedicine or traditional Chinese medicine as the line of first care for the patient? Should herbs continue to be included in the acupuncturist's scope of practice, if 'proven' by five thousand years of that country's medical tradition, but unproven by a century or two of Western science? Should complementary therapies be used for cure as well as adjunctive treatment? How can ancient therapies be used in modern medical settings without losing their traditional flavor, philosophy, and potency?

[See all books on legal issues in complementary, alternative, and integrative medicine.]

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