There was a fascinating and troubling court decision on Friday that ruled that First Nations traditional medicinal practices are “aboriginal rights” in the context of section 35 of the constitution. Although the intent of this decision is, on its surface, to respect the aboriginal rights confirmed by the constitution and thus to ensure the vitality of aboriginal communities, I argue that this case mirrors residential schools policy. It does so in that it denies First Nations children the protection of medical interventions and perpetuates rhetorical space for a continued exploitation of First Nations people by powerful and predatory financial interests in the alternative health industry.
In the case, a judge dismissed an application by McMaster Children's Hospital to compel the Brant Children's Aid Society (CAS)to take action to take into custody a child from the Six Nations reserve. The child in question had been diagnosed with acute lymphoblastic leukemia in August and, with the consent of the child's parent, had begun undergoing chemotherapy treatment. In the hospital's assessment, going through the full phase of treatment meant the child had a 90-95% chance of survival (Note: this study reports an 80% cure rate). After a brief period undergoing the treatment, one of the parents withdrew the child, ostensibly in favour of traditional medicine. Concerned about the child's welfare, the hospital contacted the relevant CAS office (Brant) to gain some assistance in getting the child back into chemotherapy. The CAS declined to intervene, although it appears from the facts of the case that this was a considered, and not a knee-jerk, decision, whereupon the hospital filed the court action to compel Brant CAS to action.
Essentially the judge decided a fairly narrow, but crucially important, point. The importance of this decision cannot be understated. The judge ruled in the abstract that practicing traditional medicine is an aboriginal right confirmed under section 35 of the constitution. In the specific, he ruled that the parent of the child, as the substitute decision-maker, was practicing traditional indigenous medicine. Therefore, her decision was covered by s. 35 and could not be abridged, even by any evidence about the efficacy of said types of medicine.
This is a landmark and a terrible judicial decision. I come to this conclusion not through a particular professional interest or expertise in the politics of aboriginal rights in Canada, but in risk perception, risk management and the role of scientific evidence in public policy. Perhaps the worst flaw in the judge’s reasoning was to rely too heavily on concepts of "traditional" and "western" medicine as discrete, identifiable activities of human endeavor, even making reference to the "western paradigm.” “Paradigms” have a long history in the philosophy of science, particularly associated with the work of Thomas Kuhn. However, the concept has been so stretched, abused and misunderstood that its utility in the philosophy of science is questionable. Certainly, it is dubious to rest a judicial decision on which a girl’s life and the nature of aboriginal rights in contemporary Canada on such a shaky concept.
Central to Kuhn’s concept of “paradigm” is the notion of incompatibility, which is to say that two competing scientific paradigms are discrete, parallel and that the relative merits cannot be adjudicated in terms of evidence. This has been a tremendously powerful concept in the field of the philosophy of science and public discourse. But it is nowhere near a “proven” or “true” description of the nature of scientific theories and evidence. For one thing, as valuable Kuhn’s descriptions of the sociological process of paradigmatic construction has been, one can ask whether accepting the concept of a “paradigm” necessarily means that one must accept notions that evidence or facts cannot adjudicate between competing paradigms. Moreover, famously, one philosopher of science once argued Kuhn had failed even to coherently define a paradigm, counting 21 separate definitions in his original book.
One consequence of conceiving of traditional and western medicine as being composed of two competing paradigms is that it creates rhetorical space for a multi-billion dollar industry of highly organized financial interests to offer "alternative" medical services, including the Hippocrates Institute in Florida, to which the child’s parent turned in this case, at a cost of $18,000 after seeing a presentation . The industry is so huge and varied that it defies cataloguing in this space, but it ranges from corner store homeopathic, naturopathic and chiropractic providers to billion dollar nutritional supplement companies as well as clinics. What unites all of them is the premise that the medicine that people know, use and is tested is "western" and that what is not is complementary or alternative. For example, HPI Health Products Incorporated, based in Dawson Creek, British Columbia markets a highly successful line of pain supplements as “Lakota Herbs”. You might know them from a questionable television ad in the 1990s featuring a First Nations actor recommending the product. Most of its products are made from “natural products” such as willow bark, a plant that contains the chemical salacin. This product has been used throughout human history for its pain relief properties, including by Bayer to make….apsirin. The consequences of this example are important. It reveals both that the distinction between traditional and wesetern medicine is not so discrete, and that interests in the alternative health industry can colonize First Nations images and practices. In order for HPI to make any money, it has to differentiate its product, so it appeals to a widespread suspicion of western medicine and defines itself as both alternative and traditional.
There are a vast array of dubious rhetorical strategies available to people to make this link, many of them on display in front of the judge in this trial. I witnessed one expert argue that both alternative and traditional medicines focus on the health of the whole person. A second expert argued that traditional medicine was based on homeopathic principles. Homeopathy, of course, is a system of alternative medicine that has roots in medieval Germany and is premised on the notion that substances become more medically powerful as they are diluted out of existence.
One of the central arguments made by the defendants in the case was that pursuing alternative medical treatments at the Hippocrates Institute was an extension of traditional, Haudenosonee medicine and, more importantly, stands in contrast to “western” medicine. According to this news story, the decision to pursue treatment at the Hippocrates Institute was directly related to the decision to stop chemotherapy. Quoting from the story:
After securing financial support from family, she called Clement from the hospital waiting room on the 10th day of her daughter’s chemotherapy.
“He had the tone of voice where he was so confident,” she says.
“By him saying, ‘Oh yes no problem we can help her,’ that's the day I stopped the chemo.”
However, the Hippocrates Institute has no connection to Haudenosonee people, history or culture. Instead is an archetypal institution of the "alternative" or "complementary" health industry. It offers classes in "lifestyle transformation" and "encourages people to draw from their vast inner resources to transform the quality of their health and lives." Its goal is to: " assist people in taking responsibility for their lives and to help them internalize and actualize an existence free from premature aging, disease and needless pain." It also seems to have a singular focus on the power of food as a source of medicine:
Under the guidance of a knowledgeable and compassionate team, guests from all over the world benefit from health and nutritional counseling, non-invasive remedial and youth-enhancing therapies, state of the art spa services, inspiring talks on life principles and a tantalizing daily buffet of enzyme-rich, organic meals.
This is a powerful way to blur the differences between traditional and alternative medicine, in that, on their own telling, traditional medicines were herbs and plants provided by the Creator to grow.
The problem here is that all these claims cannot pass evidentiary tests of efficacy. They do not work. "Western" medicine, by contrast, is defined by its commitment allowing claims to stand only so long as they are supported by evidence. It is not my first choice to quote from a comedian on a point of such grave concern, but Tim Minchin truly said it best, when he said that by definition, "alternative" medicine has not been proved to work or has been proved to not work. "Alternative" medicine that has been proved to work is ....medicine. This is precisely what happened with willow bark and aspirin. Used by traditional cultures, European and others, everywhere, scientific methods proved and refined its efficacy and it became….medicine.
And here we arrive at the problem with defining traditional, alternative and western medicine as different, but equal, paradigms. "Western" medicine is not in any way "western". It is medicine. It is worth noting, European life and society were equally marked by "traditional" forms of medicine. Some ultimately passed tests of efficacy and became “medicine”. Others, such as bleeding, were swept aside and destroyed by the onslaught of "western" medicine in the 17th, 18th and 19th centuries. I have myself had conversations with elderly German women who praise the "traditional" knowledge of herbs that their grandparents knew and bemoan the loss of those traditions in the face of "western" medicine. “Western” medicine, it seems, was as destructive to particular “western” traditions as traditional medicines.
These concepts that we commonly use to navigate the field of contemporary health care lead us into traps with damaging, even fatal, consequences. In particular, when medicine is deifned as "Western," the rhetorical space is created that is necessary for financial interests like the Hippocrates Institute and giant pharmaceutical companies peddling all sorts of snake oil to convince people interested in "traditional" medicine that what they both share is that they are "not western". In this case, the Hippocrates Institute charged the family $18,000 for a treatment program that has reportedly included lessons in developing a positive attitude and learning how to eat raw, vegan diets. This reveals again the distinction between alternative and traditional medicine. Not only did First Nations diets not vegan, no human community has subsisted in human diets since we developed fire and cooking. The trend to veganism and raw food is almost entirely a product of education and affluence.
This is what I mean when I speak of the "mirror of the residential schools policy". This may not be a perfect metaphor for what is going on here, but it is good enough, I think, to put it out there. When you put a picture in front of the mirror, you can still grasp the conceptual outlines of what is involved. A person is a person, a house is a house. But what was on the left is on the right. Positions are reversed. In the residential schools policy, elements of the Canadian state forced First Nations children to residential schools to assimilate them. Some elements of the state were racist and malevolent, but I suspect (this stands subject to verification) some were actually well meaning but misguided”. However, we all know the consequences were near genocidal.
Today, we have an element of the state (McMaster University) still making an attempt to apprehend a child, not to destroy them, but to save them. By contrast, we have other elements of the state (Brant CAS and the judge) cooperating with predatory white people and well-meaning allies in the worlds of health care, the university and the law, seeking to prevent this. Ironically, the past legacy of the residential schools policy as a justification. The roles are kind of reversed, as in a mirror, but the effect is going to be the same: a First Nations child is going to die.
If we cease thinking about medicine as "western" and, instead, think about it as medicine that has been proven to work, then we can also cease demonizing contemporary doctors and hospitals as current manifestations of past colonial attempts and seeing predatory quacks as anti-colonial allies. Instead, we can look at what medicine can offer First Nations people. We can think about it as the best that white society can offer, not the worst.
One of the arguments I often hear against the thesis that the treaties signed between First Nations and the Crown meant that First nations subsequently gave up rights to their territory and became wards of the state is that the spirit of the treaties was meant to enable a joint sharing of the land and a joint prosperity. If we stop thinking of medicine as "western" does this not open up space for us to make the same argument? Do McMaster and its proven treatments start to look like the best that “western medicine” can offer and the predatory quacks at the Hippocrates Institute as the worst?