As the year draws towards its end, what has become of one of the big Alt.Reality stories of the year in the UK – the back-crackers Chiropractors vs. Simon Singh libel action?
Well, legal blogger Jack of Kent has been keeping a weather eye on the procedural bubblings-under of this case, in which the British Chiropractic Association (or BCA) are suing noted science writer Simon Singh for being mean about them.
As those who have been following the case will know, it all stems from a short Opinion piece Singh wrote in the Guardian back in April. In the article he repeated what he and Edzard Ernst had said in their excellent book Trick or Treatment; namely that there is no credible scientific or medical evidence that chiropractic can treat lots of things wholly unrelated to your spine, such as asthma in children, colic in babies, sleeping problems in babies, feeding problems and so on.
All of which claims appear on the British Chiropractic Association’s website here (NB – PDF).
The BCA promptly sued. Which ensured them the undying derision of the Bad Science Blogosphere –see e.g. Holfordwatch’s summary here – and also promulgated knowledge of Singh’s claims, and the BCA’s rather thin-skinned response, across the Interwebs – the so-called “Streisand Effect” or “Spartacus Effect”. 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 suit.
Subsequently, all went quiet until about a month ago, when Jack of Kent reported that the BCA’s lawyers had finally detailed how they felt Singh had libelled their clients, and that subsequently Singh and his lawyers had filed their defence, i.e. had outlined the basis on which Singh would seek to defend the action. I was pleased to note, if I may be allowed a bit of self-congratulation, that my analysis of both the libel and of the likely defences had been reasonably close.
One of the most interesting aspects of Singh’s outlined defence is that he does not appear to be proposing to use a simple defence of “fair comment” (in effect, to say that the allegedly libellous bits of what he wrote were his honestly held opinion based on the facts). The filed papers strongly suggest that Singh and his legal team are prepared to “go the distance” and argue justification, i.e. to argue that the remarks Singh made debunking the Chiropractors’ claims were materially true and accurate.
This is interesting, because it is a much more nail-your-colours-to-the-mast position – especially under the plaintiff-friendly British libel laws – than “fair comment”.
As I discussed at length before, a straight “fair comment” defence would probably be the standard newspaper “get-out clause” for defending this kind of libel action. Indeed, in my earlier post I suggested that the BCA might actually be banking on Singh filing a “fair comment” defence:
“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.”
Now, if this was an accurate reading of the mindset of the BCA, then Singh’s filed defence has rather called their bluff. Jack of Kent quotes from the defence brief:
“Further or alternatively, insofar as necessary the Defendant will justify the article in the following meanings:
(a) The Claimant [BCA] is … promoting chiropractic as a treatment for infants and young children with colic or sleeping and feeding problems or frequent ear infections or asthma or prolonged crying [even though] (as it should be aware):
(i) that there is reliable scientific evidence that this would be ineffective in respect of children with asthma, and/or
(ii) that there is no/no reliable scientific evidence supporting the effectiveness of such treatment for each of those conditions/symptoms, and/or
(iii) that in the circumstances chiropractic treatment for none of those conditions /symptoms is worth the risk of adverse side-effects,
- and such treatment is to that extent bogus.”
(one or two minor edits to hopefully reduce the risk of my being sued – you can see Jack of Kent’s blog for the unexpurgated version)
”As the onus will be on Simon Singh to demonstrate these factual justifications, again the trial will deal fully with expert evidence and cross examination as to the efficacy of Chiropractic.”
Later, Jack spells it out again:
“For the BCA to fully meet Simon Singh’s defence means that the efficacy of Chiropractic in respect of six children’s ailments will require scrutiny by the court, cross-examination of experts, and the testing of the validity of the “scientific evidence” which the BCA cites in support of the efficacy of Chiropractic.
As I said above, the real effect may be to put Chiropractic on trial before the English High Court.”
This offers the tantalizing prospect of a series of eminent scientific and medical figures, like Directors of the Cochrane Collaboration, Professor Edzard Ernst, Professor David Colquhoun, and Professor Michael Baum, all trooping into the High Court. Firstly to explain the nature of scientific evidence, and how it is assessed and synthesized, and secondly to set out why the state of the scientific and medical evidence does not support many of the claims made by chiropractors for chiropractic.
Would the BCA, one wonders, really want to have a libel case defended on this basis heard, doubtless over many days, in the High Court in the full glare of the media?
Well, at the moment we don’t really know – because:
It has all gone quiet – very quiet.
In particular, Jack of Kent notes that the BCA and their lawyers have not filed a “Reply” to Singh’s defence. As I am not a lawyer, I am a bit hazy as to the precise point of this “Reply”. However, one possible use of such a Reply, I surmise, could be to allow the BCA’s legal team to dispute whether any of Singh’s proposed modes of defending the action are allowable, or arguable, in law. Again speculating, it could allow them to argue the legal niceties of whether what Singh says he meant (which interpretation makes his words less libellous in law) is less plausible than what they (the BCA) contend his words would usually be taken to mean.
If that sounds a bit convoluted, then it is probably because I’m not explaining it very well. But essentially, a lot of the case might conceivably reduce to what the word “evidence” is commonly taken to mean in the context of a discussion of the “evidence” supporting a treatment. Singh will almost certainly argue that when someone says “evidence” this way – when he said it – it means “the balance of the scientific evidence, scientifically assessed for believability and combined by techniques like scientific review and meta-analysis – which is the way scientists and doctors would do it”
The BCA are likely to argue that evidence means “any evidence, including equivocal or poorly done trials, case reports, customer testimonials, and other evidence which scientists and doctors regard as wholly unreliable.”
Now, if you were the BCA, you might wish to dig out a lot of legal precedents – assuming you could find some – that said that the courts take “evidence” to mean de facto “absolutely any sort of evidence at all” rather than “the balance of scientific evidence”. And you might want to put these arguments in the “Reply” to head off Singh’s defence in advance – sort of:
“You can’t argue the word “evidence” commonly means what you wish it to mean here, because it’s meaning in this context is already well established in law, and it’s what we have been saying it means – so you cannot mount your defence on this point.”
Now, as I am not a lawyer, all of this last bit could be a load of utter nonsense. If so, hopefully Jack of Kent or someone else better informed will come along and put me right.
However: whatever the precise legal purpose of the “Reply”, to date a ”Reply” has not appeared. Jack of Kent’s piece makes clear that this is rather unusual for a case of this type. Jack runs through some possible reasons for the missing “Reply” here.
Will they… Won’t they… Will they… Won’t they…
I have always doubted myself that the BCA would really want this one to go the distance. If I were the BCA’s spin doctor, I would probably be telling them to try and think of a way of staging a tactical retreat, whilst simultaneously claiming that they had been vindicated. However, murmurings emerging from Chiro-world, as briefly chronicled by Jack of Kent, seem to suggest that some voices at least within the BCA think they have to carry on to the bitter end in order to “defend the reputation of the profession”.
To which one might respond – “Err…?”
Now, one could perhaps usefully ask at this point what the general view on chiropractic is among practicing health-care folk, as opposed to among the academic ninjas of evidence-based medicine like Ernst and Colquhoun.
Well, among the medical doctors I know well, the consensus view on chiropractic seems to be roughly that summarized by American physician (and noted medical blogger) PalMD here:
“I am often asked my opinion of chiropractic care. My usual answer (based on evidence) is that it can be somewhat helpful in the treatment of low back pain. That’s it. Any further claims are complete and utter …”
… see Pal MD’s post for the rest. It is well worth a read.
It also bears repeating that Professor Edzard Ernst himself, co-author with Simon Singh of the book from which Singh’s disputed claims arise, is not just one of the world’s foremost experts on the assessment of evidence for and against “Complementary Therapies”. He also has long had a special interest in “spinal manipulation therapies”, of which Chiropractic is one. This almost certainly reflects Ernst’s 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. This would mean he is very familiar with physical therapies, probably including spinal manipulation therapies. He may even have trained to carry out spinal manipulation on patients.
It must be highly doubtful, to put it mildly, whether the BCA will be able to find anyone with a matching level of expertise and credibility to argue that Ernst’s damning assessment of the scientific evidence regarding their more outlandish claims is incorrect.
So who thought up all this back-cracking business?
Another thing that might not help Chiropractic is that a high-profile court case would be expected to trigger some media stories exploring their beliefs. It is a fair assumption, I think, that a setting out of the origins, history and philosophy of Chiropractic would not help the BCA’s credibility, either in court or on the wider world. A neat and amusing summary of some of this history was given by Private Eye, which covered the Singh libel case earlier this month:
All hardly likely to cast Chiropractic in a flattering light, I would say.
A further intriguing point is that this is all happening at a time when spinal manipulation for lower back pain (something practised by several different groups of practitioners, including chiropractors) is fairly widely available, and viewed as a reasonably mainstream intervention. If I were the back-crackers, this is just the time when I would be keeping a low profile and trying desperately not to look like a bunch of quacks, cranks, and loonies.
Hence my doubts that the case will go the distance.
But – it is a predictable part of the mindset of many Alternative Practitioners, and of their “professional organizations” too, that they have little or no self-insight in certain key respects. Specifically, they have no insight into either the intrinsic silliness and implausibility of their beliefs, or the central sticking point of their repeated refusal to engage with actual evidence on the key question of efficacy.
It seems constitutionally beyond them to understand that the basic reasoning in healthcare has to be:
“Well, the evidence that [insert your therapy of choice] works for X is reasonable… but the evidence that it works for Y is much dodgier, and near to non-existent, and it is pretty clear-cut that it doesn’t work at all for Z, and might even be harmful… so we should stick to offering it for X, and should discourage our wackier practitioner brethren from offering it for Y and definitely for Z.”
Don’t, though, expect to get this kind of logic from full-on Alt.Reality merchants like the homeopaths. The vast majority of them simply cannot get their heads round this kind of thinking, whatever soothing noises they may make for public consumption.
To repeat for the umpteenth time: They believe it works.
Evidence, schmevidence. They believe. They know.
And as a corollary, many of them seem to believe their therapy of choice will work for nigh-on everything, from asthma, to a bad back, to a blocked nose, to depression, to pre-menstrual tension.
Again, careful sifting of evidence, condition by condition – who needs it? We just know.
Chiropractors are regulated by professional bodies. They are a registered healthcare profession. That, it seems to me, is part of why they are suing Singh. Their sense of their own gravitas has been offended.
But: judging from these claims the BCA make for chiropractic “treating” all sorts of things that have nothing whatsoever to do with your back – and if one takes it that many of their members will be offering these treatments - it would not appear a stretch to argue that many chiropractors seem to struggle to recognize where the limits of effectiveness of chiropractic lie.
And if anyone points this out? They sue.
Now, I would expect a “registered healthcare profession” to argue claims about their therapy, and the evidence supporting it, in the scientific and medical literature.
To quote (again) the Editor of the New Zealand Medical Journal, Prof Frank Frizelle, when the New Zealand Chiropractic Association recently threatened to sue him, his journal, and his authors:
“Let’s see your evidence. Not your legal muscle”.
However… given their sense of wounded dignity, we may yet see the BCA’s lawyers and Simon Singh’s lawyers facing off in the High Court. In which case we stand to get both “legal muscle”, and evidence.
Personally, I shall be looking forward to it.