 
|
  
|
|
|
|
|
|
A Fixed Star in Health Care Reform: The Emerging Paradigm of Holistic Healing
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1942).
INTRODUCTION
The debate over health care reform has challenged pivotal assumptions about the way americans care for themselves and their families. For example, the possibility of health care rationing has challenged the assumption that a patient receives all the care necessary to regain health. [1] Similarly, advances in medical technology have challenged the assumption that nature sets the bounds of birth [2] and death. [3] Many diseases lead to chronic or terminal hospitalization [4] and to a societal perception that technology alone cannot heal disease. [5]
These challenges in foundational assumptions about health care have resulted in a paradigm shift, or at least a change in perspective or emphasis, from orthodox medicine [6] to more holistic approaches to healing. [7] The shift in part reflects a recognition that the patient, as a person, matters, that mind and emotions do affect health, and that orthodox medicine has limits, or at least can be complemented by alternative healing methods. [8] Patients are claiming the alternatives for themselves, [9] and policymakers have begun to respond, in part, by creating an office of alternative medicine ("OAM") at the national institutes of health. [10]
This article examines the extent to which the legal system accommodates, or even tolerates, a broader spectrum of healing than "medicine." Essentially, the law defines and licenses the "practice of medicine" in terms that entrench the medical profession and that exclude all other forms of healing as the "unauthorized" practice of medicine, a crime. The purported justification is to prevent fraud and protect public health. The regulatory paradigm, however, has two flaws: first, it reflects the private interest of the medical academy as a professional monopoly, an interest that does not coincide with the prevention of fraud; and second, rather than protecting public health, the current framework limits consumer choice, denigrates patient autonomy, and diminishes patient welfare.
Section I of this article explores the regulatory problems posed by a paradigm shift from strictly medical to more holistic forms of healing. Section II analyzes state licensing schemes regulating the "practice of medicine" and the way courts have interpreted these statutes when confronted with alternative practitioners. Section III places the legislative and judicial response to alternative healers in historical context and evaluates whether existing statutes and judicial attitudes toward healers actually serve the values they espouse, namely, preventing fraud and protecting health care consumers. Section IV suggests avenues for regulatory reform that disentangle the prevention of fraud from the protection of medical orthodoxy, and that more fully serve consumer choice and patient autonomy.
I. THE PARADIGM OF HOLISTIC HEALING
A. A Hypothetical: The Case of Quicksilver
Consider the following scenario: Quicksilver, a trader on the New York Stock exchange, develops an excruciating pain in his abdomen. He visits his physician, Dr. Knowsomething. After numerous diagnostic procedures, Dr. Knowsomething opines that there is an abnormal growth in Quicksilver's abdomen, requiring immediate surgery.
Quicksilver's decision is complicated by the fact that he has malignant hyperthermia, a rare condition that renders him susceptible to death on receiving general anaesthesia. [11] Quicksilver visits a local healer, Sagebrush. Sagebrush explains that he holds no medical degree, that he is not a minister, and that he does not follow the tenets of any organized church.
Sagebrush places his hands on Quicksilver's abdomen. Quicksilver feels warmth and a slight tingling emanating from Sagebrush's hands. At the end of the session, Sagebrush says Quicksilver should temporarily avoid the doctors, meditate, try a warm bath with epsom salts, and drink carrot juice twice daily; in a month, he may be re-tested for cancer.
Quicksilver follows this advice. When he is re-tested, there is no trace of any abnormality in his body. [12]
Quicksilver's doctor has no medical explanation. He tells the patient, "You've had a spontaneous remission."
Quicksilver confesses that he has had a consultation with Sagebrush. Dr. Knowsomething replies, "Placebo effect."
At lunch, the doctor raises the case with colleagues. "I thought the AMA ran these people out of business a hundred years ago," one doctor replies. Another says: "How can you allow a patient to visit a quack?" A third says: "What about respecting the patient's capacity for decision-making? Shouldn't the choice to see Sagebrush be the patient's, not the physician's or the state's?" A fourth: "It worked, didn't it? What if he'd forgone the healing, and died on the operating table? Who's responsible then?" A fifth: "What are you, a scientist, or a mystic? Tumors have a physiological and biochemical reality; Sagebrush's claim that `energy' flows from his hands has no basis in reality." The department chairman says: "Allowing Sagebrush to see Quicksilver raises two specters: first, the patient wastes his money on a fraud; second, the patient relies on the healer and thus evades the necessary medical treatment. I'd better consult our attorney and draft a policy statement."
Quicksilver's dilemmathe choice between a risky medical procedure and an uncharted alternativeis compounded by Sagebrush's peril, the risk of prosecution for "practicing medicine" unlawfully, a felony in many states. State statutes typically define "practicing medicine" as encompassing "diagnosis," "prescription," "operation," and "treatment" for "any human injury or disease." [13] Sagebrush may well wonder at what point he has "practiced medicine," if all he has done is tell Quicksilver:
Assume there is no fraud or duress; Sagebrush makes no claims, promises or threats. Should the law criminalize Sagebrush's behavior and deprive Quicksilver of the opportunity to seek such treatment? Does, or should, it matter whether Sagebrush prescribes remedies contrary to the doctor's advice, for instance, if Sagebrush tells his client, "Don't take your heart medication, it's poison?" Would it matter if Dr. Knowsomething had referred Quicksilver, saying, "There's nothing I can do; why don't you go see Sagebrush, a healer who lives about fifty miles down the highway?" Finally, should it matter that Quicksilver is out of optionsthat medical treatment may mean death?
Both Sagebrush and Quicksilver could take refuge in God. The First Amendment to the United States Constitution protects the "free exercise" of religion. [14] The wide berth granted to "religion" [15] might well allow Sage brush to practice his craft, whether he employs shape-shifting, voodoo, or animal sacrifice. [16] Indeed, some state statutes explicitly exempt religious practices from the definition of "the practice of medicine." [17]
However, to view Sagebrush's act as "religious" makes Sagebrush a "faith healer," "shaman," [18] or perhaps, a "witch doctor." A religious healer, while honored in many cultures, is often dismissed in the West. [19] We tolerate the free expression of religion precisely because it is simply that an expression of personal belief. To credit Sagebrush with a miracle is to relegate the entire experience to the realm of mystery. One takes the truth of this exchange on faith or not. One takes Sagebrush's craft seriously or not. It is all a matter of personal preference, of one's own belief system. [20]
On the other hand, if Sagebrush is doing more than "laying on hands", if he is employing a therapeutic technique of potential benefit to future patients, one that implicates a physiological reality, then relegating Sagebrush's work to the realm of faith, on one hand, or banning it outright, on the other, requires reexamination. If the touch of Sagebrush while it employs no scalpel, dispatches no pharmacological agent, and operates solely on touch ameliorates Quicksilver's disease, then we must reevaluate our foundational assumptions about the way the law defines "medicine."
A paradigm is a shared set of assumptions about the world, by which individuals define the parameters of their reality and their investigation of this reality. [21] Problems and methods outside the paradigm are denied or explained away. [22] A paradigm gains acceptance when it solves problems more readily than competing paradigms. [23] However, a paradigm can insulate a community from problems outside the paradigm, simply because these problems cannot be stated in the terms the paradigm supplies. [24]
Those who follow the paradigm find acceptance within the community, since they are committed to the consensus reality. [25] On the other hand, those who oppose the paradigm or who define problems or articulate solutions outside the paradigm, are deemed suspect, since their method implicitly attacks the foundational order. [26] For this reason, the shift from one paradigm to another generally occurs by revolution rather than by accretion. [27]
According to Thomas Kuhn, paradigm shifts exhibit the following steps: awareness of anomaly, observational and conceptual recognition, and finally, change of paradigm categories and procedures, often accompanied by resistance. [28] Kuhn found that those who challenge the old paradigm are either young or new to the field. [29] Being uncommitted to the traditional rules of the old paradigm, they are more "likely to see that those rules no longer define a playable game and to conceive another set that can replace them." [30]
The medical model, as practiced by Western physicians, views disease as a biochemical phenomenon that can be diagnosed through technology and treated, where possible, according to scientifically tested mechanisms. This model came of age in the late-nineteenth and early-twentieth century, when Newtonian physics and Cartesian dualism dominated intellectual thought, [31] and, in its emphasis on the power of science and reason, draws on these two systems. [32]
Newtonian physics views the universe as consisting of fundamental, irreducible building blocks made of matter. [33] According to Newtonian theory, the motions and interactions of all material bodies obey a few, simple laws. [34] The universe is an elaborate, immense clock, following a pre-determined course. [35] The system is rational and follows basic laws. [36]
Cartesian dualism asserts that bodies exist in space, subject to mechanical laws, while minds exist elsewhere. [37] According to this view, an individual lives through "two collateral histories, one consisting of what happens in and to [the] body, the other consisting of what happens in and to [the] mind. The first is public, the second private." [38] Cartesian dualism dichotomizes the "outer" world, objective and subject to scientific testing, and the "inner" world, deeply subjective and inaccessible to others. [39] Cartesian dualism thus opposes mind and matter, confining each to an isolated, independent realm. [40]
The medical model, following Newtonian physics and Cartesian dualism, views the body as a machine that can be analyzed in terms of its parts. [41] In this vein, medicine tends to treat disease without considering the body and mind as a unit. [42] Medicine reduces disease to an outside invader that preys upon a particular part of the body; treatment, accordingly, consists in attacking the invader. [43] As a result, patients often find themselves sur rounded by a bewildering array of charts, monitors and tubes, being spoken about rather than to, and witnessing their body as the object of debate among strangers, in an incomprehensible scientific language. [44]
Holistic healing refers to a paradigm of health care that "recognize[s] the importance of considering the condition of the patient as well as the disease . . . [and] advanc[es] the theory that the psyche and the soma, the mind and the body, are one." [45] In holistic healing, "all parts of the system, body, mind, spirit, environment, society, are interrelated and interact" to produce health or disease; illness "reflects an imbalance between the individual and the wider world." [46] Chinese medicine (including acupuncture), [47] homeopathy, [48] naturopathy, [49] herbal and nutritional remedies, hypnosis and mind/body therapies, and other forms of "alternative medicine" represent holistic approaches to treating disease.
Touch healing, which involves healing through touch, is a particular mode of holistic healing. In touch healing, the healer's touch may, but does not always, involve actual contact with the patient's physical body. Rather, "non-contact touch" may direct healing toward the human energy field, described as surrounding the human body. [50] In a study of premature babies at Stanford Children's Hospital, non-contact touch has been described as follows: "Cupping one hand above the body's head, [the nurse] slowly sweeps the other hand down the baby's body, above the surface of the blanket". [51]
According to Chinese medicine, non-contact touch transmits chi, or "universal energy," to the client. [52] Other healing traditions likewise describe a transmission of energy, the nature of which has not yet been scientifically quantified. ]53] In any event, touch healing describes disease as the ultimate result of an imbalance or a distortion in the energy field. [54] Touch healers perceive the field visually, as well as kinesthetically, by turning attention toward interior experience and focusing on "latent senses." [55] The shift in perception also has been described as a natural state of expanded awareness, [56] heightened intuitive capacity, [57] and using non-ordinary states of consciousness to access information. [58]
Numerous forms of touch healing are practiced in this country, including "pranic healing," [59] Reiki, [60] qi gong, [61] biomagnetics, [62] Taido [63], and other systems. [64] One form of touch healing, taught by the American Holistic Nurses Association to health professionals nationwide, is called "healing touch." [65] A related modality is known as "touch for health" ("TFH"). [66] Among physicians using touch healing, one refers to "the use of `healing energy' through touch." [67] An obstetrician and gynecologist refers to "holoenergetic healing." [68] A third physician uses the term, "Era III medi cine." [69] The best known form of touch healing is that developed by Dolores Krieger, called "therapeutic touch." [70] Therapeutic touch is "not done within a religious context, nor is the healing or helping that occurs considered to be a function of the faith of the healer and/or the client." [71] Although therapeu tic touch is part of the nursing curriculum at New York University, it is not strictly a nursing protocol. [72] An estimated 30,000 individuals practice therapeutic touch in the United States. [73] Clients report "feelings of deep caring, empathy, and emotional support" from the experience of therapeutic touch. [74] Clients also report physiological changes, such as being able to swallow without choking, experiencing fewer muscle spasms, and being able to move more freely. [75] Typically, therapeutic touch creates a "significant relaxation response" in patients, as evidenced by decreased anxiety, more relaxed breathing patterns, decreased heart rate, and increased alpha and theta brainwave activity. [76] When fathers were taught to apply therapeutic touch to their wives during childbirth, the fathers became more positive about the pregnancy and their responsibilities. [77]
At present, much evidence about touch healing, including therapeutic touch, is in anecdotal form. For example, one physician has described her use of the human energy field in practice. [78] A psychiatrist has written about his perception and use of the energy field, [79] and a nurse has provided anecdotal evidence regarding the efficacy of Healing Touch when used in conjunction with standard medical treatment. [80] Scientific studies currently are being collected by the Office of Alternative Medicine. [81] Study began in 1977 with the work of Dr. Valerie Hunt (University of California, Los Angeles) who, using an electromyograph, detected an electrical field radiating around the human body, with frequencies between 100 and 1600 cycles per second (cps). [82] When Hunt converted the electrowaves into a visual pattern through an oscilloscope, she found that the pattern correlated with colors the healer had detected in the client's field. [83]
In a 1990 study involving fourteen healers and clients, the investigators observed a change in the oxygen-hydrogen bonding of water in the infrared spectrum. [84] The authors speculated that this shift in bonding might correlate to a positive change in the body's immune response. [85] They also collected studies from researchers at McGill University, Rosary Hill College and Roswell Park Cancer Hospital, the University of California, Berkeley, and St. Joseph's University reporting increased vitality in healer-treated sub-populations of cell colonies, enzymes, and seedlings in comparison with controls. [86]
In another study, Dolores Krieger applied therapeutic touch to subjects diagnosed with gastro-intestinal disorder, nervous exhaustion, metastatic cancer, endocrine imbalance, and a cataract. [87] After treatment, Kreiger discovered significant increases in both hemoglobin value and hematocrit ratio in a less than 24-hour period. [88] The controls showed no change. [89] Subsequent studies have suggested that therapeutic touch can alter EEG and EKG to induce deep relaxation, decrease anxiety and lessen headache pain. [90]
In a double-blind study examining the effect of therapeutic touch on the rate of surgical wound healing, [91] a physician made full-thickness dermal wounds on the arms of forty-four healthy subjects using a skin biopsy instrument. The instrument removed a precise, uniform, circular layer of cutaneous tissue, allowing an accurate measurement of wound perimeters. The subjects were neither informed that the effects of healing would be studied, nor were told which individuals were in a control group. [92] The double-blind protocol and other procedures were designed to rule out suggestion and the placebo effect. [93]
The subjects inserted their arms through a ten-inch circle in a door sealed with rubber materials that allowed easy entry of the arm, but did not allow the subjects to see to the other side of the door. The therapeutic touch practitioner then worked on healing the arms of the experimental group, without making physical contact, for five-minute intervals. [94] The wounds were measured on the first, eighth and sixteenth days. [95]
By the sixteenth day, thirteen of the twenty-three treated subjects were completely healed - wound size of zero. [96] None of the non-treated group were fully healed. [97] The treated group showed substantially less variation in wound sizes than the non-treated group (.73 versus 2.95 square millime ters). [98] The difference between the improvement rates for the treatment and non-treatment groups was found to be statistically significant for both days eight and sixteen. [99] The author concluded that non-contact therapeutic touch "is a highly effective healing treatment for full-thickness dermal wounds." [100]
A further study, reported in the same journal, involved the healer's effect on the motility (the rapidly changing parameters for movement) and growth (a slowly changing parameter) of bacterial cultures. [101] The researcher proposed to explore whether "all living systems [are] connected in some fundamental manner . . . mediated by a real exchange of energy . . . [involving] consciousness." [102] The experimental results indicated that in the presence of a variety of chemical inhibitors, healer treatment produced significant growth and increase of motility in comparison with control cultures. The author concluded that the phenomenon of touch healing "is strong and persistent and can be replicated" and "implies the interconnection between living systems." [103]
Additional controlled studies have demonstrated effects on enzymes, cells in laboratory cultures, bacteria, yeasts, plants, animals, and humans. [104] These studies rarely find their way into traditional medical journals, perhaps because they are so contrary to the dominant paradigm. [105] In part, this may reflect the difficulty in correlating alternative modalities with Western technologies. [106] In part, the gulf between alternative practices and tradi tional medical journals reflects the century-old dichotomization of orthodox medicine and "quackery." [107] Finally, the gap may reflect orthodox medi cine's rudimentary understanding of the role of emotions in health care. [108] In any event, the premise of holistic healing generally, and touch healing in particular, that disease implicates both physiology and the energy field, is doubtless controversial to Western medicine. [109] Closer collaboration between physicians and alternative practitioners, including touch healers, would be appropriate to determine how a particular drug, surgery or other medical procedure affects the patient's energy field. [110] Indeed, a culture predicated on "doctor knows best" may evolve to one where the patient chooses a healing team, which might include, for example, in addition to the physician, an acupuncturist, a massage therapist, and a healer. [111] This augurs the kind of paradigm shift formulated by Kuhn, namely, a revolution in thinking, accompanied by great resistance.
Thus, while assuming to complement, rather than displace, conventional medicine, holistic healing challenges conventional ideas about medicine, much as Copernican astronomy challenged the unquestioned conviction of two millennia that the earth was the center of the universe. [112] Touch healing underscores the shift from the Newtonian and Cartesian models to the quantum perspective of a dynamic universe, where body and mind interrelate to produce health. [113] Finally, the holistic paradigm suggests that dismissing alternative healing practices outright as fraud, may be limiting, if not premature.