Back crack quack attack – it’s a legal matter, baby

Dr Aust finally (late as ever) tries to think of something new to say about the back-crackers vs. Simon Singh, and about British libel laws and Alt.Reality in general.

The Bad Science Blogosphere has been full, these last couple of weeks, of the Back-crackers – sorry, I should say “the chiropractors” – rushing to M’Learned Friends when people say mean things about them. (NB – for non-UK readers, “M’Learned Friends” is a British term for lawyers – usually highly-paid ones).

The first example was the New Zealand Chiropractors Association threatening to sue the New Zealand Medical Journal – who have comprehensively called their bluff by publishing the letter from the Back-crackers’ legal mouthpiece, together with an unrepentant re-statement of their main points of issue with the Back-crackers (see David Colquhoun’s blog for details and for links to the articles). More recently, in the UK, the British Chiropractic Association or BCA (who are one of several chiropractors’ professional associations in the UK, and say they represent “over 50%” of UK chiropractors) has issued legal proceedings for defamation against noted science writer Simon Singh for an article he wrote in the Guardian under the paper’s Comment is Free banner.

Singh’s comments, which can be read in Blogospace here and here, were clearly derived from Trick or treatment?, the book about Alternative Medicine he recently published together with Professor Edzard Ernst. Given all the research that went into the book, and Ernst’s many papers on the subject, Singh should be well equipped with any information he needs to argue for the accuracy of his statements in a courtroom. Gimpy’s excellent post sets out, point by point, some of the scientific references that back up what Singh wrote.

Unfortunately, in UK defamation law, the defence of “justification” – the statements complained of as defamatory were in fact true – has a reputation as rather a risky option. In contrast to most other countries, the burden of proving the truth of what was said rests wholly on the libel defendant. Furthermore, there is no general defence of “public interest”. A rather qualified “public interest” defence has recently become possible in UK libel courts – though constructed by judicial ruling and predecent, and not by legislation – the so-called ”Reynolds_Defence”. However, the press (and “citizen journalists” and internet commentators) enjoy nothing like the protection they have in the US under the Freedom of speech laws and the New York Times v. Sullivan decision.

UK Libel Law – protecting the rich and the con-men?

The Singh lawsuit thus arrives at a time when UK libel law is increasingly something of a pariah. The UK’s anomalously plaintiff-friendly law has been criticized both at home and abroad for producing the depressing phenomenon of “libel tourism”, and was recently characterized by a UN report as. “serv[ing] to discourage critical media reporting on matters of serious public interest”.

Libel tourism arises when someone invents rather thin grounds for sueing in the complainant-friendly UK courts, rather than in the jurisdiction where most people would view any offence as having actually being committed The phenomenon goes back several decades, as discussed here. Two high-profile recent cases (widely discussed in the press e.g. here) have involved books written by American authors, and published in the US, but purchased by a mere handful of UK-based readers (precisely twenty-three in one case) via the Internet. The plaintiffs did not bother suing in the US, where they would have had no chance of a judgment in their favour. Instead , they sued in the UK for the “damage to their reputation”, making the argument that the ability of UK residents to order the book, and the availability of part of the book online, proved that case could reasonably be heard in the UK. This has since led to the passing of legislation in New York State to make it legally impossible to attempt to enforce in their jurisdiction a judgment made by the overseas (UK) court in libel cases. The New York legislators clearly saw the libel tourism as an attempt to make an “end-run” around US constitutionally-guaranteed freedom of speech. Subsequently, bills essentially to replicate the New York guarantee of “no imported libel chill” have been tabled in the US House of Representatives and Senate.

Whether one views the fuss over the recent cases as being wholly concerned with free speech – and the two cases which have made this a “hot button” issue for the US legislators do relate specifically to allegations concerning terrorism – it is clearly of some concern to UK citizens when other democracies start passing laws to strike down our laws as repressive. Many UK press commentators have made this point, including Geoffrey Wheatcroft:

“For years journalists have grumbled about the [English] libel laws and no one has listened, but when a distant legislature passes a law of its own to counteract the intolerable effects of the British courts then it’s time to take notice. The most startling recent legal story comes not from the high court but from Albany, where the New York state legislature has introduced the starkly named Libel Terrorism Prevention Act, intended specifically to guard writers and publishers outside British jurisdiction from the terrors of English libel law.”

Of course, the use of UK libel law by our own rich and powerful to suppress adverse comment is already well known to UK readers – one need only name Jeffrey Archer, Jonathan Aitken, and perhaps most egregiously of all the late Robert Maxwell, famous (infamous?) in life for his frequent recourse to M’Learned Friends.

In the context of English libel law reform, the UN’s comments last week, already noted above, were particularly interesting since the information they had studied had apparently been provided to them by the UK Government, or at least by its civil servants. This might lead one to hope that the issue of libel law reform is under discussion in high places in the UK, though as yet there seems no sniff of new legislation. More on this, and on libel tourism and UK free speech in general, in two recent Guardian articles by Tim Luckhurst and Duncan Campbell

Bad medicine, Alt.Reality and the public interest

Anyway, after that long and probably multiply inaccurate digression, back to Simon Singh and the back-crackers. Singh’s comments about the Chiropractors could serve as an obvious example of “critical media reporting on matters of serious public interest”. Although his easiest defence to the libel action might actually be to argue that the column was to be read as an “Opinion” rather than “authoritative reporting”, as I will explain later.

Unfortunately for us ordinary citizens (bloggers included), law is a minefield of obscure meanings and verbal convolutions, and UK libel law is no exception. However, ”Jack of Kent”, a blogger who is both a skeptic and a media and communications lawyer, has done some nice de-convoluting for us over on his blog. From his On Simon Singh and the chiropractors:

“First, the BCA is able to sue because it is a “legal person”, that is, a company. If it were a public authority, like the statutory General Chiropractic Council [who license all UK chiropractors – Dr Aust] it would not be able to sue under the “Derbyshire Rule” preventing such bodies from suing for defamation. It would be good if the High Court used this case to extend the Derbyshire Rule to such representative bodies: a nice gunshot wound to the BCA’s own foot…”

And in a post specifically on English Libel Law – A Brief Guide for the Perplexed, he explains the process that occurs in a libel action:

”1. The “claimant” (in this case the BCA) will first need to show that they have been defamed. This is a common law test and it usually means that the claimant’s reputation has suffered. A defamatory statement in permanent form is called a “libel” (in transient form, it is a “slander”).”

On this first point alone, it would seem the chiropractors would have little difficulty in demonstrating that Singh’s remarks would tend to make an average person think worse of chiropractic than they did before they read the article. That was pretty much the point.

However, it is not quite that simple: J of K goes on to make a crucial distinction that I had not properly appreciated:


”The claim form [detailing the alleged libelous contents] issued by the BCA has not been published, but one must presume that they are complaining that a direct (or implied) statement about the BCA by Simon Singh has the effect of lowering their reputation (rather than say the reputation of Chiropractic generally).”

This is quite interesting. The BCA can sue Singh because they are a professional association and thus a company / charity, which gives them a right to protect their reputation. However, most of Singh’s article (links above), refers to chiropractic in general, and not to the BCA in particular. The offending remarks they are complaining of must therefore be wholly, or at least primarily, the two sentences in Singh’s article (in the third paragraph) that refer directly to the BCA:

“The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organization is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.

(italics mine).

The indefatigable Gimpy has traced the probable source of these statement to a document on the BCA’s website. This document is entitled

”Happy families”

and subtitled:

Chiropractic – the natural health choice for the whole family

This document contains the following section (yellow highlighting for the notable bit):

Birth trauma

Although a natural process, birth is sometimes traumatic for both mother and baby, Chiropractic may help you and your baby recover from any birth trauma. Treatment aims to relieve the stress that can affect your baby’s neck and head, especially if forceps or other medical assistance was involved, or if it was a breech birth.

There is evidence to show that chiropractic care has helped children with the following symptoms:

Asthma …Colic

Prolonged crying …Sleep and feeding problems

Breathing difficulties … Hyperactivity

Bedwetting …Frequent infections, especially in the ears”

The list of conditions is identical to those in Singh’s disappeared article. It would thus seem that the only thing in Singh’s article that can be construed as directly defamatory to the BCA are the two sentences / phrases which imply that the BCA are promoting treatments for which there is no scientific evidence (see above).

The law at work

Jack of Kent also explains, in his post summarizing the workings of English libel law, what happens once the plaintiff has set out precisely how they feel they have been libeled:

“2. Once the claimant has established that the statement is defamatory, the onus [for proving the statement were not libelous] then shifts to the “defendant” (here, Simon Singh). This “reverse burden” of proof means that English libel law is regarded as unfair to defendants and too advantageous to the claimant.

3. There are three common defences: privilege, fair comment, justification. The defence adopted will depend mainly on what the claimant says is the defamatory meaning of the alleged libel.”

Now, as I understand it (based on my new Jenny McCarthy-style ”University of Google” two-hour-degree in British defamation law), all three of these defences would be feasible in an action of this type.

Justification – the statements are true

“Justification” at first sight seems the obvious one, but this is slightly two-edged in the context of British libel law since one might conceivably have to justify the exact choice of wording, and debate its possible meanings..

To explain this, consider the following hypothetical scenario.

Let’s say that a charity called the “Breath Foundation” promotes special breathing exercises as a cure-all for all sorts of childhood ailments. Let’s say I have written an article in which I say that the Foundation and its therapist members promote these therapies “even though there is not a jot of evidence” that they work. And let’s say that they have then sued me for defamation.

Next, let’s imagine that there are ten studies published in the medical literature assessing breathing exercises for one of these conditions in particular, say childhood asthma. Let’s imagine that nine studies, find that the therapy is useless. The tenth study is rather equivocal, and technically of poor quality, but finds some weak evidence of benefit.

The question is, can I summarize this as there being “not a jot of evidence” [that breathing exercises help childhood asthma]? I could, have written something less blunt: for, instance, instead of “even though there is not a jot of evidence.”, I could have put “even though the scientific evidence overwhelmingly contradicts this claim”. Do these phrases carry the same meaning? Using a “justification” defence when the Breath Foundation sues me effectively argues that they do. The argument could certainly be made – nine studies to one would probably equate in a systematic review or meta-analysis to “essentially no evidence”, but it could perhaps be argued the other way by a plaintiff’s libel lawyer. If we analogize this to Simon Singh and the BCA, the BCA’s lawyer might be going to argue that Singh overstated the evidence to make his words carry the implication that the BCA were lying.

One can also concoct slightly different versions of this argument, and one in particular is interesting as it carries a wider implication for CAM therapies and their advocates, and the way they promote and justify what they do.

In this modified scenario, suppose that the scientific and medical literature all points one way – to the therapies being without effect – but the CAM professional association’s members’ testimonials – “what my patients have told me” – are all positive (as it is quite possible they would be – the satisfied customers write the nice letters, while the dissatisfied ones commonly don’t come back).

The CAM professional association might then argue, including through their lawyers, that this constitutes the “evidence” on which they, in good faith, base their claims about their therapy. As I understand the law – and I’m hoping Jack of Kent, or some other legal eagle, will be by to correct me if I have it wrong – it then falls to the debunker – e.g. Singh and his lawyers in the BCA vs. Singh suit – to convince the court that this does not constitute “evidence” in a way that a normal reader reading the BCA’s website, or Singh’s article, would understand it. Again, possible, but not altogether straightforward.

Finally, in the light of the above arguments, consider in my hypothetical example what would happen if I had also written that the Breath Foundation “happily promotes bogus treatments”. Again, how easy is it to demonstrate that this precise wording is true, as a judge would understand it? Could my hypothetical Breath Foundation argue that the treatment is not “bogus” if they sincerely believe in it, even if the scientific and medical consensus is wholly against it? This question, in turn, might hinge on whether the Breath Foundation’s own documents imply that the treatments are backed by scientific evidence.

As I have already noted, what, exactly, do we take the statement “There is evidence” in any Alternative Therapy organizations promotional or information leaflet to imply? What kind of evidence? Scientific? One positive study? A broad consensus? A meta-analysis? Patient testimonials?

[In fact, one possible outcome of a case like the BCA vs. Simon Singh is that we will get a precedent in this regard. Personally, I would have said that, if the claim is made for a ”medical therapy”, then the word “evidence” should be taken to mean “evidence of the type and standard routinely applied to conventional medical therapies”]

Now, while lawyers and especially judges are very smart people, and well-equipped to see through a load of flim-flam or a “legal filibuster” (see e.g. Mr Justice Eady’s interim ruling in Andrew “MMR” Wakefield’s ultimately abandoned delaying libel action against journalist Brian Deer), it is easy to see how an argument of this kind could be a long and involved argument. And also how, in certain cases, it might give quacks a way to defend their purported “reputation” without having to engage too closely with the real scientific truth.

Fair Comment

Given all the above arguments, a “fair comment” defence is likely to be Singh’s safest bet in law. As one legal website puts it:

“The defence of “fair comment” may be available to a defendant who can show that the defamatory statement amounted to an opinion which was honestly held and based on facts which were true.”

Here, what Singh has written could clearly be regarded as his (and Edzard Ernst’s) honestly held opinion, based on (i) the claims made in the BCA document, and (ii) Singh’s and Ernst’s knowledge of the actual published medical evidence that relates to these particular claims. This “opinion based on the facts, which are these”, would seem to me to be the clearest and most straightforward defence. – though (disclaimer) I am not a lawyer.

Of course, it could be argued that defending the action this way does not have quite the “moral force” of defending it based on saying “every statement I made was demonstrably true”. But it could be rather less work.

Qualified privilege

The final defence would be one of “qualified privilege”. The specific kind of qualified privilege can be described as follows (taken from www.website-law.co.uk):

“The third (and most interesting) kind [of qualified privilege defence] is sometimes called “Reynolds-style qualified privilege”. This protects certain public interest stories published in the media, providing they adhere to the standards of responsible journalism”

Now, the public interest in the BCA vs. Singh lawsuit is absolutely clear. As Jack of Kent pithily puts it:

“The extent of the efficacy of Chiropractic is an important area for a public debate about public health. And such a debate should not be subject to the veto of vested commercial interests.”

However, the slight snag is what “responsible journalism” is taken to mean in the Reynolds context. As I read it (and again, corrections from those better-informed are welcome), it usually covers a series of standard checklist things, including “contacting the person likely to be offended (here the BCA) before the story goes out and offering them a right of response” – think of all those articles you have read, watched or listened to that say “we tried to contact XYZ to comment on what we have said about them, but no-one was available to speak to us”.

Partly for libel lawsuit avoidance reasons, newspapers tend to badge “Comment” pieces very clearly and deliberately as “Comment” or “Opinion”. This differentiates opinion pieces (including columns) from articles on the news pages (where wording is more neutral, editorializing is curtailed, quotes are sourced to those making them, and responses are sought – think Woodward and Bernstein). This makes it less likely that the newspaper will be sued for defamation for anything published in a “Comment” article – it is being, in effect, pre-emptively labeled as “sincerely held opinion based on the facts”, with the prospect of a fair comment defence to any defamation claim. Since Singh’s piece was published under the Comment is Free banner, it is clearly labeled as “Opinion”.

Behind the scenes…?

On balance, then, I would imagine in my legally uninformed way that Singh’s simplest defence to the BCA’s claims is going to be “Fair Comment”, rather than (Reynolds) privilege or the more balls-out justification. Indeed, one would have thought “fair comment” was so obvious and sufficient a defence that there was little point in the BCA bringing the action at all.

The original news story quotes a member of the BCA governing council as saying: “It wasn’t a decision taken lightly [to sue Singh]…I know that a lot of thought went into this.”

I can’t help being curious as to what these thoughts were.

I suppose it could be that the BCA are taking the action specifically in the hope that Singh will file a “fair comment defence”, the idea being that they can then issue a ringing public statement arguing that Singh has admitted his comments about the BCA are “opinions rather than facts, by his own admission”. Of course, that would not dispute the facts on which the opinions are based.

In addition, or alternatively, it could be that the point was simply to get Singh’s article removed from the Guardian website in the meantime. In which case, the BCA have probably shot themselves in the foot spectacularly, as the ”Spartacus effect”, a.k.a. the “Streisand effect” (or even ”Obi Wan Effect”) will mean that the Singh article is likely to be intensively discussed in the Blogosphere, not to mention being rapidly republished on tens or even hundreds of online sites –think The Quackometer vs. The Society of Homeopaths, or The Quackometer and gutless webhosts Netcetera.

Defending Alt Therapies: Evidence and publications? Or law courts and M’learned Friends?

The wider point for skeptical people interested in CAM Therapies and how they are promoted is precisely what the BCA have not done.

They have not produced any kind of statement explaining why they think what Singh wrote is inaccurate.

Not in a newspaper – although I cannot believe there would not have been many happy to print a statement. Not in a press release. Not in any broadcast I have heard. And not even in the ”Latest News” Section on their own website.

Instead, they have gone straight for M’Learned Friends and the gagging effect of a Libel Writ. Precisely the same can be said of the New Zealand Chiropractors Association.

The response of the New Zealand Medical Journal’s editor, Prof Frank Frizelle, to the NZCA’s legal threats, has received wide publicity around the bad science blogosphere. As noted at the start of this article, he has challenged the NZCA, publicly, to make their argument based on published science. He has even offered them a forum.

The phrase he used, which Holfordwatch have dubbed “an instant classic” is:

“Let’s see your evidence. Not your legal muscle”.

The law is… an ass?

Lastly, back to the law. Regardless of the view we take of the BCA’s (and NZCA’s) actions as an appropriate way (or not) to respond to criticism, and whatever the easiest defence under current English law of the BCA’s idiotic action, it is hard not to feel that the defamation law as it stands is an ass.

There has been much discussion in the UK over the last few years of ways in which libel laws might be modified to place less burden on those defending defamation cases. One suggestion that has been repeatedly advanced is to modify the law so that “public figures” – under which heading one might reasonably class a large and wealthy professional association – would have to demonstrate specifically that the allegations had been made recklessly, and/or maliciously. This idea follows the US model. Another related idea is to give media comments on public interest matters special privilege.

As currently stands, it seems crystal clear that the public interest is emphatically not served by the chiropractors being able to block people from going public criticizing them To quote Jack of Kent once again:

“The article was by Britain’s leading science writer, in the comment section of a quality newspaper, discussing concerns about an important aspect of public health, that is, the treatment of sick children. If Article 10 of the European Convention on Human Rights, which protects freedom of expression, does not apply here, then we may as well not have a Human Rights Act.”

Basically, the need for some sensible new legislation is clear. Unfortunately, it seems that British Governments are historically reluctant to do anything legislative that curtails libel lawyers’ ability to trouser huge fees. Those of truly cynical mind might wonder whether this is because so many British politicians are lawyers.

Which prompts a final thought:

Perhaps this is a chance for the highly erudite and forensically intelligent ex-journalist* (with history Ph.D. from Edinburgh) who occupies No. 10 Downing Street to show us what he is made of.

After all, it seems a perfect chance; a big issue to take the focus off economic gloom; something that goes beyond petty self-interest; free speech, open debate, and a public right of fair criticism; the rich and powerful de-fanged in their attempts to control what can be said about them.

What could be more stirring than that?

Over to you, Gordon.

———————————————————————————-

*Thanks to Jack of Kent for pointing out my mistake in originally suggesting that our Prime Minister trained as a lawyer (see comments).

[BPSDB]

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29 Responses to “Back crack quack attack – it’s a legal matter, baby”

  1. British Chiropractors Join the Legal Intimidation Party « Holford Watch: Patrick Holford, nutritionism and bad science Says:

    […] Dr Aust has been able to collect his resources together and resist the cute distractions of the most recent addition to the Aust family to swell the ranks of those covering this issue in a wide-ranging discussion: Back crack quack attack – it’s a legal matter, baby. […]

  2. Jonathan Hearsey » ‘The Plausibility of CAM on the NHS’ Says:

    […] own feet that are in the crosshairs? The internet is awash with discussion about chiropractor’s actions and in the heat of all this it has been suggested that I comment on the plausibility of […]

  3. Jack of Kent Says:

    This is an excellent piece for a non-lawyer, and one which actually carries the legal analysis forward significantly.

    The only minor quibbles are that it is English libel law not UK/British law, and the legal profession is not reponsible for Gordon Brown – I think he was a historian and media person before becoming a full time politician. His PhD, however, makes him more of a doctor than a DC will ever be :-)

  4. draust Says:

    Cheers Jack

    You are right, I have been a bit sloppy about UK/British vs. English. Is the Scottish law of defamation radically different, do you know? I would be curious to know, partly because of the historically distinctive intellectual and political tradition of Edinburgh / Scotland.

    Many thanks for pointing out my error in attributing Gloomy Gordon’s original career training to the law – I have now amended this. I think I must have read somewhere long ago about him and the Blessed Tony sharing an office as Labour’s two bright young things, and somehow inferred that Gordo was a lawyer as well. just goes to show that one should always check.

  5. jdc325 Says:

    “Dr Aust finally (late as ever)…”
    It was worth the wait though, Dr Aust. Nice work.

  6. Jack of Kent Says:

    I must emphasis, for anyone reading this blog post, that all of Dr Aust’s amplifications of my initial points are (in my view) valid. There are a couple of points in particular (and I am not telling yet) which I think the BCA should read very carefully indeed (assuming they have not already considered the points). However, I have no wish to do the work of BCA for them, if they have not already considered certain points.

    The BCA have started this unfortunate legal action and it remains to be seen whether they did think this one through before litigating. If not, they will not be the first English libel litiigant to blunder into a reputational and financial disaster, nor the last.

    I will be blogging shortly on the ten things that BCA members should now be asking the BCA. The answers to these questions will indicate to BCA members whether the BCA made the decison to litigate in a responsible and well-advised way.

    ps Lawyers can be blamed for many things, often rightly, but please don’t blame us for our witless Prime Minister…

  7. Jack of Kent Says:

    “I will be blogging shortly on the ten things that BCA members should now be asking the BCA. The answers to these questions will indicate to BCA members whether the BCA made the decison to litigate in a responsible and well-advised way.”

    Now posted:

    http://jackofkent.blogspot.com/2008/08/ten-questions-british-chiropractic.html

  8. batguano101 Says:

    Here is a take from an MD who studied two years of Osteopathic Theory and Technique (OT&T) and has used it 20 years:

    There is no question that vertebrae out of place slightly which press on spinal nerves can and are corrected by manual manipulation. Best results take place with moist heat, pain and muscle relaxant medication.

    The claims of treatment of the ailments in your blog are not taught in Osteopathic Medicine (DO), which is a full general practice licensed doctor using all medicines and surgery of allopathic (MD) medicine.

    Manual Osteopathic Theory and Technique is an extremely useful modality which includes exclusion of those more serious pathologies which mimic simple misalignment of the vertebrae.

    The usefulness of OT&T lays in the frequency of back pain seeking relief which is specifically treated successfully by this modality rather than it’s application to unrelated pathologies.

    In short: OT&T is very useful for what it works to correct, not as a treatment for all illnesses.

  9. draust Says:

    Thanks, “Batguano”.

    I think that Prof Edzard Ernst, the co-author of “Trick or Treatment”, pretty much agrees with you.

    Ernst has taken a long-term interest in spinal manipulation therapies, which I imagine reflects his background as a rehabilitation physician. Prior to taking up the Complementary Medicine Chair in Exeter in the mid-90s, Ernst was the Head of the Department of Physical and Rehabilitation Medicine in the University of Vienna’s Medical Faculty. His specialty as an MD must presumably have been rehab / physical therapies, so I would think he would know the spinal manipulation therapies very well. He also came from the German / Austrian tradition, where complementary therapies are mostly practised by conventional MDs with additional training (in the same way you have done), to the British one where almost all CAM practitioners are “lay therapists” (in the old jargon). It is pretty clear Prof Ernst has been shocked by, and has grown increasingly exasperated with, the anti-science attitude of the British lay CAM therapists. He comments on this in a well-known interview with the newspaper the Guardian:

    “Complementary and alternative medicine (CAM) practitioners had been delighted when the building magnate Maurice Laing decided to plough £1.5m into establishing the chair [of Complementary Medicine that Ernst now occupies]. They were appalled when the post was given to a conventional scientist who declared his intention was to put therapies and treatments from acupuncture to herbs to reflexology under rigorous scrutiny, to find out what worked and what did not. Most CAM practitioners insist that centuries of use are sufficient demonstration that therapies work. Others blame science for most of the world’s evils.

    Ernst admits his one big mistake was not to have understood quite what he was walking into: “Ten years ago I didn’t fully comprehend the situation. On the continent, CAM practitioners would normally be doctors. I didn’t realise that there are between 20,000 and 40,000 CAM practitioners in the UK and that most of them would be opposed to what I was planning to do.”

    One of Ernst’s issues with the lay spinal manipulators is that they never discuss possible adverse consequences of their therapies, and indeed mostly deny (at least implicitly) that adverse consequences even exist The websites often say things like “chiropractic is inherently safe”, or make the point that “Chiropractic does not involve the use of any drugs or surgery”.

    Ernst, who is very much an EBM (Evidence based Medicine) guy, has made it clear that he thinks this attitude makes the lay chiropractors dangerously reckless, notably in connection with chiropractic of the cervical spine. He has also got increasingly scathing about spinal manipulation peoples’ claims to treat things OTHER than back / musculo-skeletal problems (as noted in the article).

    A good lay summary of Ernst’s take on spinal manipulation therapy come from a newspaper article that is derived from the Trick or Treatment book.

    “While some [complementary] therapies do provide some health benefits (e.g. osteopathy), most have nothing to offer…”

    [Chiropractic] spinal manipulation can be a fairly aggressive technique, which pushes the spinal joint slightly beyond what it is ordinarily capable of achieving, using a technique called high-velocity, low-amplitude thrust – exerting a relatively strong force in order to move the joint at speed, but the extent of the motion needs to be limited to prevent damage to the joint and its surrounding structures…

    Some chiropractors claim to treat everything from digestive disorders to ear infections, others will treat only back problems…

    There is no evidence to suggest that spinal manipulation is effective for anything but back pain…

    Neck manipulation has been linked to neurological complications such as strokes – in 1998, a 20-year-old Canadian woman died after neck manipulation caused a blood clot which led to stroke. We would strongly recommend physiotherapy exercises and osteopathy ahead of chiropractic therapy because they are at least effective and much safer…

    If you do decide to visit a chiropractor despite our concerns and warnings, we very strongly recommend you confirm your chiropractor won’t manipulate your neck. The dangers of chiropractic therapy to children are particularly worrying because a chiropractor would be manipulating an immature spine…

    [Osteopathy is] a manual therapy which focuses on the musculoskeletal system to treat disease. Osteopaths use a range of techniques to mobilise soft tissues, bones and joints. Osteopathy and chiropractic therapy have much in common, but there are also important differences.

    Osteopaths tend to use gentler techniques and often employ massage-like treatments. They also place less emphasis on the spine than chiropractors, and they rarely move the vertebral joints beyond their physical range of motion, unlike chiropractors. Therefore osteopathic interventions are less likely to injure…

    In general they treat mainly musculoskeletal problems, but many also claim to treat other conditions such as asthma, ear infection and colic…

    DOES IT WORK? There is reasonably good evidence that the osteopathic approach is as effective as conventional treatments for back pain.. There is no good evidence to support the use of osteopathy in nonmusculoskeletal conditions.

  10. Svetlana Says:

    http://dinoquest-3.blogspot.com/

    The case of Simon Singh.
    Who can answer my question?

  11. Svetlana Says:

    Doctor! Some nonsense is happening in Guardian! There was Colquhoun’s comment on its pages:

    http://www.guardian.co.uk/education/2008/aug/27/highereducation.research

    Suddenly the comment has disappeared! And his opponent’s comments have evaporated too! 8-O What is it, eh??!
    Guardian carries out the strange policy! Maybe is it because of Singh’s case and the legal suit?
    What a devil!.. :(
    Explain me, please, what happened “in Dane state”?

  12. Svetlana Says:

    Oh, no… It was hasty remark- his opponent’s comments didn’t disappear. Only his comment has been removed. But – why?

  13. Dr Aust Says:

    No idea. Though it need not be sinister. Perhaps the two of them have been signed up for a extended debate-feature on:

    “Science degrees” in alternative medicine – yes or no?

  14. Svetlana Says:

    Aha! It seems David’s comment came back :) Probably they have taken fright – some huge creature has come and roared “Where is Colquhoun’s comment?” ;) They’ve re-ceded – who knows? Maybe the creature is a biter… :)
    Though David is too kind to those, who doesn’t deserve it: “Every homeopath I have met in person has been entirely sincere, clearly well intentioned…” Oh, guy bird! :)
    And besides I don’t like the current Guardian’s mood – they behave enough cowardly, e.g. – in Singh’s case.

  15. Svetlana Says:

    One important question arises. Well, the quacks have taken legal action against Singh. But their lawsuit can’t lie moveless, as I understand. Some legal proceeding must start.
    When does the action proceeding start?

  16. draust Says:

    Don’t know the answer to that, Svetlana. A question for a lawyer like Jack of Kent, I think.

    My impression, as a layman watching from the sidelines, is that legal process in such cases “doth grind exceedingly slow”. However, one would have thought that, having issued a writ, the BCA would have to take at least the first step – that is, explain the nature of the libel they were claiming had been committed – fairly promptly. But then, again, I am not a lawyer.

  17. She-Liger Says:

    I asked it not for nothing.
    Could we make them to call away their lawsuit against Singh, i.e. to nolle it?
    Can we find such instrument of influence on them?
    There are the lawyers among quackbasters. Can they recommend something for this aim?
    It would be right!

  18. Alethea Says:

    Just to say, thanks. It was indeed an informative and clear post for a non-lawyer. Well done.

  19. draust Says:

    Thanks Alethea. My mother always says I should have been a lawyer. The family joke is that, if only I had gone down that path, I would have been rich and successful, and possibly already retired to my French villa, rather than… well. rather than the reality.

    Of course, given the influence of underlying character traits, I probably would have been just as much of an grouchy, underachieving, square-peg-round-hole type of guy as I am in my current job. Ah well. Que sera sera, and all that.

  20. Famous for fifteen people « O’Really? at Duncan.Hull.name Says:

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  21. It’s quiet…. Too quiet « Dr Aust’s Spleen Says:

    […] Much online discussion ensued, including my own extended (not to say downright longwinded) amateur legal analysis of the ways in which Singh might defend the […]

  22. Stephen Says:

    Is “chiropractic” really the only word for what a chiropractor does? I’ve been reading your post here and in between the legal reasoning this use of the word as both an adjective and a noun crops up and it’s reminding me of how they talk in A Clockwork Orange – do some of the old chiropratic, so to speak.

    It seems a very awkward construction to have to deal with in daily life.

  23. The twelve days of (alternative) Christmas « Dr Aust’s Spleen Says:

    […] Eleven chiros suing […]

  24. You couldn’t make it up « Dr Aust’s Spleen Says:

    […] chiropractors are institutionally, as well as individually, thin-skinned – as the BCA vs. Simon Singh libel case, and recent events in New Zealand, show. They also seem to be rather humourless. I started to get […]

  25. They seek it here… they seek it there « Dr Aust’s Spleen Says:

    […] Now, one of my regular correspondents has been emailing me to ask me why I have not yet had anything to say on the deeply depressing ruling by Mr Justice Eady in the BCA vs. Simon Singh case. […]

  26. Rank… in more ways than one « Dr Aust’s Spleen Says:

    […] (variously) “Foul!” “Not Fair!” “Leave my reality alone!” or “Libe!!” when people point this […]

  27. Beware the spinal trap – with added amateur legal musing (updated) « Dr Aust’s Spleen Says:

    […] – can find out easily enough, e.g. by reading Jack of Kent’s blog, or Jack’s discussion of Judge Eady’s ruling, or even my own analysis of the case from last August. […]

  28. Stop Press – Simon Singh granted leave to appeal « Dr Aust’s Spleen Says:

    […] (for Dr Aust’s amateur legal take on fair comment defence see here) […]

  29. Stop Press: Simon Singh wins Appeal Court ruling on meaning « Dr Aust’s Spleen Says:

    […] which, since we are back to talking about “Fair Comment”, gives me an excuse to plug my first extended dissertation on the case, written way back in August […]

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