Mainstream medicine versus complementary and alternative medicine in the witness box: resolving the clash of ideologies

Mainstream medical philosophy and practice differ in many respects from those of complementary and alternative medicine (CAM), differences which are explored in this article. Because of a resurgence of CAM therapies, courts and tribunals will scrutinise CAM in more and more contexts in the future. Such court cases may require the resolution of conflicts between opinions of CAM and medical experts. This article considers how courts evaluate such opinions where experts hold conflicting ideologies or philosophical approaches, and addresses the following questions: Do the opinions of CAM practitioners qualify as "expert" opinions in court? How do the courts examine the basis of such opinions? Are they systematically given less weight than the opinions of mainstream medical practitioners? Will recent procedural reforms for hearing expert evidence make it easier for courts to resolve these issues?     

The uncritical enthusiasts versus the uninformed sceptics: regulation of complementary and alternative medicines

The introduction of a treaty between Australia and New Zealand to regulate complementary and alternative medicines (CAM) has revived the age-old debate between advocates of conventional medicine and those of CAM, particularly with regard to the standards of regulation that should be applied. Currently, the systems for regulating CAM products in Australia and New Zealand are very different, making harmonisation contentious, as the proposed treaty follows the Australian system very closely. New Zealand and Australian principles of good regulatory practice stipulate that only minimum necessary standards should be imposed, and should be transparent, understandable and equitable. It is argued that the proposed treaty does not adhere to good regulatory standards, and that other forms of harmonisation should be sought to avoid adopting a regulatory regime in New Zealand that is overly restrictive and harmful to the New Zealand CAM industry.     

Chinese dragon or toothless tiger? Regulating the professional competence of traditional Chinese medicine practitioners

The escalation in popularity of complementary and alternative medicine (CAM) has begun to stimulate regulatory responses to ensure the safety and efficacy of different modalities. The Therapeutic Goods Authority in Australia oversees a scheme of listing and registration, said to lead the world. Established CAM courses now confer recognised bachelor degrees. Victoria has recently regulated Traditional Chinese Medicine (TCM) practitioners, through the Chinese Medicine Registration Act 2000 (Vic), modelled on legislation regulating medical practitioners. CAM is being integrated into conventional medical (especially general) practice, and calls for the "mainstreaming" of CAM are increasing. Integrating CAM, however, involves a critical incoherence, well illustrated by the Victorian legislation. Clinical competence can only be properly assessed against standards established through scientific validation. If CAM systems, which purport to offer alternatives to science-based medicine, are regulated through conventional instruments, they may well be relinquishing the very identities which set them apart.     

Does a doctor have a duty to provide information and advice about complementary and alternative medicine?

It is argued that a doctor has a duty to provide information about reasonably available complementary and alternative medicine treatments where that information would be material to the particular patient or the hypothetical prudent patient. Given the vast array of such treatments available, doctors will want to rely on evidence-based medicine problem-solving skills to ascertain those treatments that are safe and efficacious. While the risk of litigation for failure to provide such information is probably low at this time, given the high rate of patient self-prescribing, it is necessary for a doctor to open a dialogue with a patient about complementary and alternative medicine to address safety concerns. In addition, it is important to facilitate access to the best of conventional and complementary treatments to ensure better health outcomes for the patient.     

The Effect of Practitioner Recommendations on the Tax Judgments of Small Business Owners and Managers*

This study addresses conflicting results between prior research documenting a client demand for aggressive practitioner-prepared returns and research establishing taxpayer preferences for accurate returns and cautious reporting behavior. Rather than rely on practitioner reports of client aggressiveness, the tax reporting preferences of clients are examined in afield experiment mailed to small businesses across the country. After subjects had indicated ex ante beliefs about the likelihood of independent contractor status, they significantly altered their behavioral intentions in the direction of a preparer's recommendation. This implies that prior results with practitioner samples may have been biased by the practitioners' personal views. Nonetheless, some aggressive subjects were not as willing to follow the preparer's advice as were the conservative subjects. Evidence is presented on variables that correlate with aggressive tax decision making.     

The regulation of traditional Chinese medicine practitioners in Australia

The Australian Government has recently recommended that all jurisdictions regulate Traditional Chinese Medicine practitioners along the lines of the Chinese Medicine Registration Act 2000 (Vic). In light of this recommendation, this article examines whether the Victorian legislation is an effective means of regulating a group of practitioners who operate under an alternative health care system. While the main focus is on the challenges of regulating of Traditional Chinese Medicine practitioners, the article also considers the broader issue of whether a statutory approach is the appropriate method of regulating unregistered complementary and alternative medicine practitioners.     

Autonomy,paternalism, and institutional interest: why some conflicts can't be waived

This paper asks the question of why, in some cases, a client is precluded from demanding of their lawyer that they act for them and their adversary simultaneously. We accept that in numerous instances a lawyer can act for clients whose interests may diverge (or in some cases do in fact diverge) providing informed consent has been obtained. This paper enquires as to why the line between waivable and non-waivable conflicts is drawn where it is, and examines the theoretical underpinning of the waiver rule and its boundaries. It does so by first looking at the client autonomy argument for allowing waivers. It then turns to explore the paternalistic justifications for rendering a consensual waiver of a conflict inoperative. Finally it looks at those cases where a waiver is not permitted that are left unexplained by paternalism. It argues that paternalism, properly understood, is a legitimate justification for most refusals to accept a waiver of conflict. However, a residual body of cases remain unexplained by paternalism. Those cases are best explained by the propensity of the law and the legal profession to protect its institutional values and interest.     

The Relevance of Coercion: Some Preliminaries*

Many philosophers take the view that, while coercion is a prominent and enduring feature of legal practice, its existence does not reflect a deep, constitutive property of law and therefore coercion plays at best a very limited role in the explanation of law's nature. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the orthodox view. Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative.     

Obligation to advise of options for treatment--medical doctors and complementary and alternative medicine practitioners

An important aspect of health professional's duty of care is to advise patients of the available options of treatment so that the patient can choose the form of treatment that suits her or his requirements. As CAM becomes more evidence-based and accepted, medical doctors need to consider the extent to which they should provide patients with information about those types of treatments. If a CAM treatment option is evidence-based, there is a strong argument that medical doctors should advise of this option for treatment to satisfy their duty. CAM practitioners should also provide details of options for treatment within their own modality but are not obliged to advise of medical options.     

Opening the Door to Complementary and Alternative Medicine: Self–Regulation in Ontario

This paper examines the steps that three complementary and alternative medicine (CAM) groups – naturopaths, acupuncturists/traditional Chinese medicine practitioners, and homeopaths – are taking to achieve statutory self–regulation in the province of Ontario. The regulatory framework created by the Regulated Health Professions Act of 1991 is outlined, and the differing approaches taken by each of the three groups to gain inclusion under its umbrella are compared and contrasted. The paper assesses the influence of current regulatory and socio–political environments, and queries the extent to which the paradigms of health and health care of these different groups can be accommodated in a regulatory regime heavily reliant on the conventional medical model.     

Exploring Lawyer–Client Interaction

Personal injury victims involved in compensation processes have a worse recovery than those not involved in compensation processes. One predictor for worse recovery is lawyer engagement. As some people argue that this negative relation between lawyer engagement and recovery may be explained by lawyers’ attitude and communications to clients, it seems important to investigate lawyer–client interaction. Although procedural justice and therapeutic jurisprudence had previously discussed aspects relevant for lawyer–client interaction, the client’s perspective has been rather ignored and only few empirical studies have been conducted. In this qualitative study, 21 traffic accident victims were interviewed about their experiences with their lawyer. Five desirable characteristics for lawyers were identified: communication, empathy, decisiveness, independence, and expertise. Communication and empathy corresponded with aspects already discussed in literature, whereas decisiveness, independence and expertise had been addressed only marginally. Further qualitative and quantitative research is necessary to establish preferable lawyer characteristics and to investigate what would improve the well-being of personal injury victims during the claims settlement process.     

Client participation in paid sex markets under alternative regulatory regimes

To help inform the design and review of alternative public regulatory policies towards paid adult sex markets, this study uses economic reasoning to explore the nature of client participation. This is a timely focus given the increasing consideration and movement towards a greater role for demand-side policies and regulation that has emerged in some countries to complement, or, in some cases, even replace elements of supply-side regulation and policy. The analysis is based upon a time allocation model that characterises the nature and balance of incentives facing clients under various public regulatory regimes. The regimes considered range from the status quo in England, Wales and Scotland, to varying levels of state involvement or direction, featuring, inter alia, supplier registration, public health inspections and locational restrictions. All of these are shown to affect in various ways the extent to which risk, income and other factors can influence the pattern and intensity of leisure time usage, which is a key requirement for client participation in paid sex markets.     

The Protection of Confidentiality in Australian Family Law

This paper identifies and discusses the legislative provisions which protect confidentiality in family law proceedings in Australia. The purpose of discussing these protections is two‐fold: firstly, to identify the scope and operation of these protections for Australian legal practitioners; secondly, to allow comparison of Australian protections to those offered in other jurisdictions. This paper will consider duties of confidentiality and evidential privileges in the context of settlement negotiation, mediation, arbitration, lawyer‐client relationships and medical, counselling and other therapeutic relationships. The rationale for the protection of confidentiality in some of these relationships and circumstances, but not in others, will also be considered in an attempt to understand why it is so.     

Death by homeopathy: issues for civil, criminal and coronial law and for health service policy

Homoeopathy has a significant clinical history, tracing its roots back to Hippocrates and more latterly to Dr Christian (Samuel) Hahnemann (1755-1843), a Saxon physician. In the last 30 years it has ridden a wave of resurgent interest and practice associated with disillusionment with orthodox medicine and the emergence of complementary therapies. However, recent years have seen a series of meta-analyses that have suggested that the therapeutic claims of homeopathy lack scientific justification. A 2010 report of the Science and Technology Committee of the United Kingdom House of Commons recommended that it cease to be a beneficiary of NHS funding because of its lack of scientific credibility. In Australia the National Health and Medical Research Council is expected to publish a statement on the ethics of health practitioners' use of homoeopathy in 2013. In India, England, New South Wales and Western Australia civil, criminal and coronial decisions have reached deeply troubling conclusions about homoeopaths and the risk that they pose for counter-therapeutic outcomes, including the causing of deaths. The legal decisions, in conjunction with the recent analyses of homoeopathy's claims, are such as to raise confronting health care and legal issues relating to matters as diverse as consumer protection and criminal liability. They suggest that the profession is not suitable for formal registration and regulation lest such a status lend to it a legitimacy that it does not warrant.     

Maintaining professionalism: emotional labor among lawyers as client advisors

Dominant professional ideology dictates that lawyers behave professionally toward clients by using logical, rational reasoning and expression and by leaving emotion and personal feelings out of their work. However, this ideology overlooks the fact that lawyers who work in settings that feature high client contact often labor under very emotionally charged circumstances. As a result, lawyers must use emotional labor to cope with their own feelings while maintaining their professional display. Using qualitative data based on semi-structured interviews with twenty lawyers in the Midwestern United States, I show that the lawyers interviewed in this study cope with their own feelings by using emotional labor to suppress the spontaneous expression of personal feelings, while working to evoke a display of emotions that does not run afoul of traditional standards of legal professionalism. Their use of emotional labor to cope with their feelings came in four forms: expression of genuine emotion, deep acting, surface acting, and detachment. The findings suggest that despite wide scholarly discussion of alternative conceptions of professionalism, the need to expand these discussions among law students and practitioners is still pressing.     

Lawyers Seeking Clients, Clients Seeking Lawyers: Sources of Contingency Fee Cases And Their Implications for Case Handling

Where do the clients of contingency fee lawyers come from, and what are the implications of client sources for contingency fee practice? Those are the questions this paper considers, drawing upon multiple sources of data. The analysis shows that relatively few clients come to lawyers’ offices in response to advertising. Rather, it is the more traditional route of reputationally based referrals that bring in the vast majority of contingency fee clients. The importance of maintaining a reputation that will draw in future clients tends to curb the potential for abuses created by the inherent conflict of interest between lawyer and client that the contingency fee creates.     

A STUDY OF CLIENT SATISFACTION WITH FAMILY COURT COUNSELLING IN CASES INVOLVING DOMESTIC VIOLENCE

The Family Court of Australia provides conciliation counselling to couples who are involved in disputes regarding their children following separation. In situations where domestic violence has occurred, the appropriateness of providing counselling to such couples has been seriously questioned This study examines the experience of clients attending counselling at the family court. Two groups of clients are studied—one group who reports domestic violence as a significant issue and a comparison group who does not report domestic violence. The results indicate that the two groups do not differ in their expressed level of satisfaction with the counselling they have received and that both groups consider counselling to have been helpful in resolving their issues. The preliminary results of this study have implications for the provision of postseparation counselling/mediation to couples when domestic violence has occurred.     

A Third Verdict Option: Exploring the Impact of the Not Proven Verdict on Mock Juror Decision Making

In most adversarial systems, jurors in criminal cases consider the binary verdict alternatives of "Guilty" and "Not guilty." However, in some circumstances and jurisdictions, a third verdict option is available: Not Proven. The Not Proven verdict essentially reflects the view that the defendant is indeed culpable, but that the prosecution has not proven its case beyond a reasonable doubt. Like a Not Guilty verdict, the Not Proven verdict results in an acquittal. The main aim of the two studies reported here was to determine how, and under what circumstances, jurors opt to use the Not Proven verdict across different case types and when the strength of the evidence varies. In both studies, jurors were more likely to choose a Not Proven verdict over a Not Guilty verdict when the alternative was available. When evidence against the defendant was only moderately strong and a Not Proven verdict option was available (Study 2), there was also a significant reduction in the conviction rate. Results also showed that understanding of the Not Proven verdict was poor, highlighting inadequacies in the nature of judicial instructions relating to this verdict.     

An evaluation of a private alternative probation and counseling program: Predicting program outcomes from client characteristics

The purpose of this evaluation was to determine if client characteristics affected selected program outcomes. The sample consisted of 475 clients admitted into a for-profit, private alternative probation and counseling program between November 1, 1998 and February 28, 1999. Multiple regression analyses identified race, previous alcohol and drug treatment, and employment status as significant predictor variables of client compliance. Being able to target client characteristics that are associated with successful program outcomes can help programs fulfill their goals of diversion and costeffectiveness, thus making the most effective use of scarce resources.     

Access to medicine in an era of fractal inequality

This article evaluates the legitimacy and degree of inevitability of unequal access to medicine. The author introduces 'fractal inequality' to the access issue by using the term to describe skewed patterns in distributions of income and wealth that lead to reallocative effects of higher spending on health care by the wealthiest that can cascade down the distributive ladder. 'Fractal inequality' is transposed to the U.S. health care sector to explain the trend away from medical need toward ability to pay. The author cautions U.S. policymakers to consider international access problems instead of exacerbating those issues when domestic access to care policies is debated in a vacuum. The author also analyzes some policy proposals designed to reduce inequities in the global trade of medicine.