Beware the spinal trap – with added amateur legal musing (updated four and a half times)

Having written some long-ish comments about it in a thread on something else, I have “promoted” them here, a bit altered, as an excuse for being the last blogger to reprint the “decaffeinated” version of Simon Singh’s now legendary article about chiropractic. So if you read my comments threads you’ve probably seen all this already. Apologies.

free debate

As ever, Dr Aust is a bit slow on the uptake, so it will surprise no-one that I am practically the last blogger in the known universe to reprint the redacted version of Simon Singh’s Zeitgeist-catching  article on Chiropractic. This version is lacking any mention of “legal entities” and is thus unlikely to stimulate parasympathetic muscarinic drive to the salivary glands of any “reputation management” lawyers. (Note the relapse into physiology – hangover from the day job).

This version, which hundreds of bloggers have re-printed worldwide in the last day or two, is de-libel-ized. But does that mean it is defanged?

Well, read for yourself:

——————————————————————————————————

Beware the spinal trap

Some practitioners claim it is a cure-all, but the research suggests chiropractic therapy has mixed results – and can even be lethal, says Simon Singh.

You might be surprised to know that the founder of chiropractic therapy, Daniel David Palmer, wrote that “99% of all diseases are caused by displaced vertebrae”. In the 1860s, Palmer began to develop his theory that the spine was involved in almost every illness because the spinal cord connects the brain to the rest of the body. Therefore any misalignment could cause a problem in distant parts of the body.

In fact, Palmer’s first chiropractic intervention supposedly cured a man who had been profoundly deaf for 17 years. His second treatment was equally strange, because he claimed that he treated a patient with heart trouble by correcting a displaced vertebra.

You might think that modern chiropractors restrict themselves to treating back problems, but in fact some still possess quite wacky ideas. The fundamentalists argue that they can cure anything, including helping treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying – even though there is not a jot of evidence.

I can confidently label these assertions as utter nonsense because I have co-authored a book about alternative medicine with the world’s first professor of complementary medicine, Edzard Ernst. He learned chiropractic techniques himself and used them as a doctor. This is when he began to see the need for some critical evaluation. Among other projects, he examined the evidence from 70 trials exploring the benefits of chiropractic therapy in conditions unrelated to the back. He found no evidence to suggest that chiropractors could treat any such conditions.

But what about chiropractic in the context of treating back problems? Manipulating the spine can cure some problems, but results are mixed. To be fair, conventional approaches, such as physiotherapy, also struggle to treat back problems with any consistency. Nevertheless, conventional therapy is still preferable because of the serious dangers associated with chiropractic.

In 2001, a systematic review of five studies revealed that roughly half of all chiropractic patients experience temporary adverse effects, such as pain, numbness, stiffness, dizziness and headaches. These are relatively minor effects, but the frequency is very high, and this has to be weighed against the limited benefit offered by chiropractors.

More worryingly, the hallmark technique of the chiropractor, known as high-velocity, low-amplitude thrust, carries much more significant risks. This involves pushing joints beyond their natural range of motion by applying a short, sharp force. Although this is a safe procedure for most patients, others can suffer dislocations and fractures.

Worse still, manipulation of the neck can damage the vertebral arteries, which supply blood to the brain. So-called vertebral dissection can ultimately cut off the blood supply, which in turn can lead to a stroke and even death. Because there is usually a delay between the vertebral dissection and the blockage of blood to the brain, the link between chiropractic and strokes went unnoticed for many years. Recently, however, it has been possible to identify cases where spinal manipulation has certainly been the cause of vertebral dissection.

Laurie Mathiason was a 20-year-old Canadian waitress who visited a chiropractor 21 times between 1997 and 1998 to relieve her low-back pain. On her penultimate visit she complained of stiffness in her neck. That evening she began dropping plates at the restaurant, so she returned to the chiropractor. As the chiropractor manipulated her neck, Mathiason began to cry, her eyes started to roll, she foamed at the mouth and her body began to convulse. She was rushed to hospital, slipped into a coma and died three days later. At the inquest, the coroner declared: “Laurie died of a ruptured vertebral artery, which occurred in association with a chiropractic manipulation of the neck.”

This case is not unique. In Canada alone there have been several other women who have died after receiving chiropractic therapy, and Edzard Ernst has identified about 700 cases of serious complications among the medical literature. This should be a major concern for health officials, particularly as under-reporting will mean that the actual number of cases is much higher.

If spinal manipulation were a drug with such serious adverse effects and so little demonstrable benefit, then it would almost certainly have been taken off the market.

Simon Singh is a science writer in London and the co-author, with Edzard Ernst, of Trick or Treatment? Alternative Medicine on Trial. This is an edited version of an article published in The Guardian for which Singh is being personally sued for libel by the British Chiropractic Association.

——————————————————————————————————-

Now, my correspondent Svetlana has taken great umbrage at the reprinting of Singh’s article without the contentious phrases, an action she characterized as cowardice. She has also contended, as has American medical blogger Orac, that printing the article in this “bowdlerized” form is tantamount to seeming to accept Eady’s, and thus the BCA’s, interpretation of how people would read Singh’s words. This, remember, was that they are readable as Singh accusing the BCA of making deliberately false claims – a meaning, to repeat yet again, that Singh has always stated clearly he did not intend, or feel the article or any part of it conveyed.

Anyway, I don’t really agree with Svetlana. My rather simple minded assumption was that Sense About Science  are just trying to raise awareness – of the case, of what was actually said, and of the way in which English defamation law “acts” on such matters.

Personally I would have liked to have seen the Guardian re-publishing this de-libel-ized version. But you can’t have everything, I suppose.

In any case, anyone who reads the article now and then wonders:

“Uh-huh. And what was this supposed libel, then?”

- 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.

But take care not to be found in contempt…

There is, of course, also a practical reason not to re-print it with the words in. The case is still before the court, with the watchers currently waiting to see if Singh is granted leave to appeal Sir David’s ruling.

As I understand the law (which is imperfectly, IANAL, see various caveats passim), while the case is active, and especially post Mr Justice E’s ruling on the defamatory meaning (as he sees it) of the debated words, Singh (or anyone else in England, Wales, and Northern Ireland) cannot re-publish the article in its original form without committing frank contempt of court. As well of course, as repeating the alleged defamation.

The English legal system (and other ones too) takes a very dim view of people “flouting” court decisions. This is not something confined to defamation cases. Were the Guardian, say, or Sense About Science, to try to re-publish the Singh article in its entirety, the result would undoubtedly be immediate legal injunctions to suppress the (re) publication. Further, if the republishing were done by Singh, or with his express or implied approval, this would certainly be taken as “compounding” the alleged libel (making the “damage to reputation” worse by saying it again after the judge had specifically ruled it was libel). This compounding would likely lead – in the event that Singh were ultimately to lose the case – to even higher damages being awarded against him.

However… none of this applies if the article is reprinted without the offending phrases about the original “offended entity”. The comments about chiropractic and chiropractors, and their much-demolished claims for their therapy for childhood ailments, are identical. But there is no defamation. So it seems a rather sensible measure to me.

But it’s backing down…isn’t it?  Can’t we pick a fight?

Again, the more “combative” might feel that there is being unnecessarily craven. After all, there is probably little chance of hordes of bloggers being pursued by the long arm of the libel law in the way that a newspaper probably would be were it to do something likely to be viewed as contempt of court.

Well, yes and no.

I certainly doubt individual bloggers would be pursued, unless they were very prominent and widely read – though as I understand it there would be nothing to stop the court seeking to punish such individuals for contempt. I would also hazard a guess that the more readers a blog has, the more seriously such an action would be viewed by the court. Which means I would be safe.

What I imagine might happen, let’s say if a blog was popular, would be that lawyers for the complainant could seek injunctions against the ISP and/or webhosting company that hosted a blog. These are (typically) companies with financial resources, and thus unenthusiastic about findings of contempt of court against them, or being fined large amounts of money. And the webhost would then take down the post, or even the entire blog.

We have, of course, been here before several times, e.g. with the Society of Homeopaths vs. the Quackometer, or the Quackometer vs. Joseph Chikelue Obi, and several others I could mention if I had more time. The last mentioned case is relevant because it was Netcetera, the Quackometer’s webhosting company, who insisted on taking down the post – necessitating the relocation of the Quackometer to another one, with attendant hiatus. And that was after just an utterly unconvincing threat of legal action – not an actual court ruling and the strong likelihood of being found in contempt of court.

Like it or not, once a court has started looking at the thing and made a ruling, flouting that ruling is not the same as re-publishing something that someone has merely claimed they think is defamatory (and muttered about “legal action”).

In the latter case – see the SoH vs. the Quackometer – by re-printing the piece one is showing solidarity, but also daring the offended person/organisation:

“Are you going to sue me too?”

(or yelling “Spartacus!”, if you prefer).

In the current situation one would be waving two fingers in the face of the judge, the courts and the legal system. Not a wise move. And unnecessary.

Because we are, arguably, past gestures now.  The CAM advocacy gang like to portray Badscience bloggers as a little clique of  like-minded obsessives. Things that can be portrayed as “acts of peevish-ness” can play into their hands. Far more sensible, in my view, to take things forward by mobilizing more and more people in a campaign to try and change the law, so that in future defamation suits will not be brought in such circumstances. And also to do what the bloggers have done – scrutinise the data underlying the disputed claims and show that Singh was speaking the truth about the lack of meaningful evidence for the claims made by the BCA and its members.

Ben Goldacre gives a lovely summary here , complete with Obi Wan Kenobi reference in the title. If you haven’t read Ben’s article, read it now.

It might even make you want to start a blog.

PS   - And if you aren’t one of the 15,000 people who have already signed Singh’s statement, please do that too.

———————————————————————————-

UPDATE – 31st July am: I see that Orac, who had originally reposted the original “unexpurgated” version of the article, has now changed it to the edited version, apparently at the request of Sense About Science.  Orac writes:

NOTE ADDED AFTER PUBLICATION: At the request of Sense About Science, I have removed the original version. They inform me that by reposting this I am potentially putting Simon Singh at risk for further action.

- which tends to rather bear out what I have written above.

To repeat: the solution lies in a change to the English Law of Libel.

The way in which the current law acts contrary to the public interest can also be seen in this excellent article by Nick Cohen. Cohen asks us to consider what might have happened to any academic who claimed that the financial model used by A.N. Other investment bank were flawed.  Or to take another example, what if there had been an English equivalent of Bernie Madoff, and an academic or journalist had tried to publish something claiming said hypothetical person’s multi-billion investment management business was all built on sand?

Remember that defamation lawyers in the UK do not term what they do these days “defamation”. Their preferred term is the more soothing (but actually more sinister):

“Reputation Management”.

————————————————————————————–

UPDATE No 2  – 31st July pm – STOP PRESS: Via Jack of Kent, I just saw that Simon Singh has been refused permission to appeal Sir David Eady’s ruling on meaning.  Permission to appeal had been refused at the initial hearing, and has now been refused by the Court of Appeal.

Simon can apparently still make an “oral renewal” of his petition for permission to appeal before the Court of Appeal.  This is presumably his next step. Beyond that there may be further appeals (all specifically of Mr Justice E’s preliminary ruling on meaning), to the House of Lords (or perhaps the Supreme Court of England and Wales, which I understand takes over formally as the highest English court towards the end of this year, though it will be the same old Law Lords as the “Supreme Justices”).  And  possibly thereafter as far as the European Court of Human Rights, should Singh claim that the ruling on meaning has the effect of violating his right to free speech.

Keep an eye on Jack of Kent’s blog for more information as it emerges.

—————————————————————————————–

UPDATE No 3  -  1st August:

Jack of Kent has now posted a must-read post for all those following the case, in which he briefly sets out Simon’s options. The main one is, of course: quit or persevere?

Jack thinks that permission to appeal (PTA) is unlikely to be granted by the Court of Appeal, even on a further application. This would mean that “persevering” would imply either:

(i) a trial fought on Judge Eady’s interpretation of the contentious words, or

(ii) an appeal ultimately to the European Court of Rights, as happened in (e.g.) the McLibel case.

Neither of these options is exactly attractive, for different reasons – though both have in common that they are likely to be expensive.

The other option is to settle, perhaps with a very limited acknowledgement by Simon that he did not intend the meaning Eady and the BCA put on his words, and is sorry if anyone took them that way (a strategy termed by Jack the “Heresiarch Manoeuvre”, after the blogger who first suggested it) .

Importantly, Jack is soliciting opinion from the blogosphere. What do you think Simon should do? It Though ultimately the decision is Simon’s, it is commonly understood that he and his legal team read the blogs, and your opinion matters to them. So pop on over to Jack of Kent and have your say.

——————————————————————————————————————-

UPDATE No. 3A

- more on the reasons for the Appeal Court’s decision- or more precisely, the decision handed down in writing by a single Appeal Court Judge who read the Singh team’s submission  – can be found over at Jack of Kent. In a classic piece of impenetrable egal-ese the judge refers to:

“…the length of the applicant’s [ i.e. Simon Singh's] skeleton”.

Essentially the decision is as Jack had predicted; despite the extended arguments produced by Singh’s legal team (this is the aforementioned “length of the applicant’s skeleton”, i.e. his outline argument) the judge does not find anything of great legal import, or any obvious errors, in Sir David Eady’s ruling on meaning (yes, the words “happily….promotes….bogus” again).

This is as expected, Jack tells us,  since Eady was  asked to rule on the meaning, and such rulings on the meaning of words and phrases are rarely, if ever, reversed by the Court of Appeal.

———————————————————————————————————————

UPDATE No. 4 – 17th August

As probably all readers will all know, Simon Singh has decided, as of last Tuesday the 11th, to press on with the case. He has therefore applied, notwithstanding the earlier ruling against him by the Appeal Court Judge, to make an oral submission to the Court of Appeal.

Jack of Kent summarises succinctly:

Simon Soldiers On

Simon Singh has today confirmed that he will ask for an oral re-consideration of his application for Permission To Appeal.

Simon Singh also outlines his current thinking, including a full response to The Heresiarch’s Open Letter.

In practical terms, all this means that there will be a public hearing at the Court of Appeal in London on 14 October 2009.

This oral hearing will deal with whether Simon Singh can have a full appeal hearing against the adverse ruling on meaning.

Did you catch that last bit? The hearing will not, repeat, not, be an actual appeal against Eady’s ruling on meaning. It will be a hearing to argue that Singh should be allowed to contest the ruling on meaning at a subsequent full hearing.

Once again I am inspired to pinch the line:

“Confused?  You will be….”

Thus we are on hold again until mid-October. Though in the meantime Singh’s legal team will doubtless be busy; and there remains a good reason to keep exhorting people to sign the petition.

———————————————————————————————————————

SELF-PUBLICIST CORNER

Since no self-respecting blogger misses a chance of a bit of “Self-Biggin’”, here are links to the previous Dr Aust coverage of the case, from the beginning:

Back Quack crack attack – it’ s a legal matter baby – detailed amateur legal analysis from last August, plus some musing on libel tourism.

It’s Quiet – too quiet – an end-of-2008 round up, wondering what had become of the case and discussing Singh’s proposed defence and the nature of CAM belief.

Truly Much Bogosity – some thoughts on the Eady ruling, the much-debated word “bogus”, and the chilling effect of English Libel Law.

Back Crack Quack Attack – the song – sadly as yet unrecorded, though it did gain me the scorn of a rather serious person styling themself “Cochrane Reviewer” over at Science Punk.

BCA say they want scientific debate – bears eschew woods for proper flush toilets and soft toilet paper – Dr Aust’s lower mandible almost dislocates under the jaw-dropping effect of a startling BCA press release

About these ads

11 Responses to “Beware the spinal trap – with added amateur legal musing (updated four and a half times)”

  1. Svetlana Says:

    Nevertheless Orac has republished edited text. I haven’t.
    I am THE ONLY person who has republished original text once again and hasn’t republished edited article.

    I am the sole person on the barricades :(

    http://dinoquest-3.blogspot.com/2009/07/original-text-down-with-idiotic-laws.html

  2. draust Says:

    Yes, Orac has “de-fanged” his version, which was originally unexpurgated, at the request of Sense About Science. You can see his post here.

    I have added an “Update” to the post above commenting on this.

  3. Svetlana Says:

    I have explained my actions.

  4. Michael Meadon Says:

    I’m trying to organize a Google Bomb so that Singh’s article appears high in the search results for the terms “chiropractor” and “chiropractic”. The link we should all point to is here.

    I have more details and a how-to on my blog.

  5. Litt forsinket – om “B17″, Singhs spinal trap og matpåstander « Skepsis blog Says:

    [...] må jeg muligens være, på tross av Dr. Austs selvkritikk, den siste av skeptiske bloggere som tar opp bloggstafetten med Simon Singhs opprinnelige kritikk [...]

  6. Andy Says:

    Don’t be so sure that irrelevant bloggers wouldn’t be sued too. A woman on Twitter has been sued and some reports have her with just 20 followers (here).

  7. Svetlana Says:

    Don’t be so sure that irrelevant lawsuits against bloggers would be too successful. :P
    Look at here, and here, and here.

  8. Simon Singh Case Response Roundup « God knows what… Says:

    [...] Aust rehosts the article but adds in some ‘amateur legal musings’ about the removal of the much debated 2 lines. Interesting discussion and includes an updated [...]

  9. Road Trip (in a minor manner of speaking) « Dr Aust’s Spleen Says:

    [...] scary) introduction to the possible legal consequences of blogging. Am gratified to find that my strictures a while back about not getting on the wrong side of courts in open cases and risking committing Contempt of [...]

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

    [...] Anyway, wonderful news for those who have been following the case. [...]

  11. Libel Reform | OutofRange.net Says:

    [...] Dr Aust’s Spleen [...]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


Follow

Get every new post delivered to your Inbox.

Join 1,990 other followers

%d bloggers like this: