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Sunday, 16 November 2008

On A New Direction For This Blog

This Blog will now increasingly focus on law and policy matters, particularly when I can inform or contribute to (or even seek to force open) a debate.

By doing this I think I will be most useful for those who read my posts.

I am concentrating on the Singh matter for now, but I will seek to expose the abuse of law and policy on a range of other issues. As always, my main concerns will be with freedom of expression, privacy law, and the checks against the misuse of private and public power.

Sadly, this will mean less whimsy, though I am sure it will break through every so often...

Sunday, 9 November 2008

On Putting Chiropractic On Trial - Simon Singh's Defence

[This post summarises Simon Singh's defence, for a summary of the BCA claim see here.]

Simon Singh has produced a detailed and powerful defence to the claim brought against him by the British Chiropractic Association.

I set out the original claim on this site yesterday (I apologise for the anodyne tone of that post, but it was required so I could set out the alleged "libel" without incurring potential liability myself).

Now I will set out the Defence which has been filed with the English High Court. It is twelve pages long and has clearly been put together by Simon working together with experienced libel lawyers.

First in the Defence is a brief section setting out relevant information about Simon Singh as a defendant, such as his various degrees and publications, the many science book prizes, his service on a number of relevant bodies, as well as his MBE for services to science, technology and engineering in education and science communication. Accordingly, Simon Singh is firmly established before the court as a serious writer about science with the highest credentials for communicating scientific issues to the general public.

The Defence then quickly moves on to the meat of Simon Singh's case, and what an interesting and thought-provoking case it is.


The Defences of Fair Comment and Justification

First, it is denied that the passage in question carried the defamatory meaning posited by the BCA and even if it did, then Simon Singh will invoke the defences of "Fair Comment" and/or "Justification".

The effect of this denial is that the BCA will have to prove that its meaning is vaild (see yesterday's post) as well as dealing with Simon Singh's detailed defence.

Second, and tantalizingly, Simon Singh, as his "Fair Comment" defence, invites the court to consider an alternative meaning for the passage in question.

The key paragraph here is worth quoting in full:

"The [original Guardian] article was or contained a fair comment on a matter of public interest, namely the conduct of the Claimant [the BCA], as a professional body for chiropractors in the UK, in promoting to members of the public as a treatment for infants and young children suffering from colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying.

The comment which the Defendant [Simon Singh] contends the article bears is that the Claimant's behaviour in doing so is reckless and irresponsible in the light of the lack of any reliable scientific evidence supporting the effectiveness of such treatments and in the light of the risks of the treatment proposed.
"

To plead this alternative meaning is (in my view) excellent, the legal equivalent of a George Best reverse swerve.

A claimant in a libel action does not have a monopoly in putting forward to the court the alleged meaning of a defamatory passage; the defendant is fully entitled to put forward alternative meanings, which in turn (if also defamatory, as this meaning is) can be defended as fair comment or justified by facts.

If this case goes to court, then Simon Singh's proposed meaning will need to be established by means of expert evidence and cross-examination. That court spectacle would be worth watching.

Third, Simon Singh is also running a "Justification" defence (that is, that the passage was factually justified). Again, the paragraph from the Defence is worth quoting in full:

"Further or alternatively, insofar as necessary the Defendant will justify the article in the following meanings:

(a) The Claimant [BCA] is reckless and irresponsible in 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 because (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.
(b) The Claimant promotes such treatments despite knowing that the state of the reliable scientific evidence is as set out at (a) above and that such treatments are to that extent bogus
."

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.

It appears therefore that Simon Singh is seeking, in effect, to put Chiropractic on trial, with their "scientific evidence" to be rigorously scrutinised and tested in a serious public forum.

He did not set out to do this, and the BCA can only blame themselves as they decided to bring the case.

(I wonder if the BCA's lawyers warned their client about this possibility before launching the claim.)


In Support of the Defences of Fair Comment And Justification

Simon Singh has not only pleaded these two defences, he has over eight pages and 32 paragraphs "particularised" them, that is set out the building blocks in support.

In these "Particulars", he addresses head-on issues such as the correct approach to the treatment of children and to obtain scientifically-reliable clinical evidence for any treatment.

On the latter, he provides a detailed step-by-step guide to the court:

"To be evidence/scientifically reliable evidence, material suggesting that a treatment effectively treats a condition should comprise a body of reliable published trials supporting such effectiveness.

Such trials should include a control group alongside the group receiving the treatment being investigated, which allows an unbiased comparison and assessment being investigated, which allows an unbiased comparison and assessment to be made because this takes into account the Placebo effect (the benefit derived by a patient who believes that a treatment will be beneficial, even if it is not beneficial).

Published trials vary enormously in their quality and reliability, so it is important to base any conclusion on high quality trials in order to minimise biases and avoid misleading results.

[Description of the CONSORT guidelines and the Jadad scoring scale]

In brief, the essential features of a high quality trial are:

a) a control intervention that allows an unbiased comparison and conclusions about the scientific effects of the tested intervention per se (rather than non-specific factors such as additional therapeutic attention, for instance);

b) a sufficiently large number of patients to minimise random biases;

c) blinding of patients and those evaluating the results of the tested intervention to minimise expectation bias; and

d) random assignment of patients to a control group or treatments group, to minimise selection bias.

Evidence from poor quality trials is not scientifically reliable and may be worse than no evidence at all, as it has a tendency to be overly positive and might therefore be misleading in suggesting that an intervention is effective when it is not. Case studies, case reports, case series and uncontrolled trials do not constitute evidence/reliable scientific evidence.
"

By clearly explaining to the court what should be done in respect of obtaining valid clinical evidence, Simon Singh has put the BCA in the position that it has to accept or reject this important standard.

Simon Singh then deals in detail with the evidence for the efficacy of the Chiropractic for each of the six children's ailments at issue (and also the "evidence" which the BCA cited on its site when promoting Chiropractic as a treatment).

I will not set these responses out in detail (though I can do on request), but in summary:-

1. Colic

Simon Singh lists a number of trials where Chiropractic has been shown to be ineffective: Olafsdottir (2001), Ernst (2003), Husereau (2003), Ernst/Canter (2006).

He then provides a detailed critique of the Wiberg (1999) trial cited by the BCA, and in particular where it did not meet most of the standards required and expected of a properly-done clinical trial.

2. Sleeping Problems

Simon Singh is unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with sleeping problems.

He points out that the BCA's reference is to a page in a book (Anrig & Plaugher) discussing two case reports.

3. Feeding Problems

Similarly, Simon Singh is unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with feeding problems.

He points out that the BCA's reference is to a page in a book (again Anrig & Plaugher) discussing feeding habits of parents, with no research or evidence.

4. Frequent Ear Infections

Simon Singh is also unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with frequent ear infections.

He points out here that the BCA reference is to an unpublished ongoing trial.

5. Asthma

Simon Singh lists a number of trials where Chiropractic has been shown to not be effective: Balon/Aaker (1998), Balon/Mior (2004), Hondras (2005) and Ernst/Canter (2006)

He then points out that the BCA's citation (Kukurin) is to a letter to the editor commenting on a pilot study.

6. Prolonged Crying

Simon Singh is also unaware of any published clinical trials investigating (let alone supporting) the efficacy of Chiropractic in dealing with prolonged crying.

He points out here that the BCA's citation is to a non-publicly available paper (Budgell) which looks at the experience of chiropractors and does not look at clinical trials.

After these detailed expositions, Simon Singh then sets out the risks for children who receive Chiropractic treatments for these ailments rather than those which have been subjected to clinical trials.

He also emphasises that the BCA is irresponsible in promoting such treatments as apparantly scientifically proven when there is no such evidence, that there are side-effects, and there is the risk of undue delay of or interference with effective treatment (especially with ear infections and asthma).


Other Legal Points

For completeness, Simon has also invoked Article 10 of the European Convention on Human Rights, which provides a right to freedom of expression (and as a non-natural person making public statements, the BCA will not have a countering "right to privacy") and also section 5 of the Defamation Act 1952, which means that if he can prove his Defence on the essential points, he need not do on every point.


Overall

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.

I support Simon Singh in fighting his case (which was thrust upon him). But even if he does not prevail, it opens a question about just how substantial was BCA's scientific basis for making the claims that Chiropractic helped in the treatment of potentially serious children's ailments, such as frequent ear infections and asthma.

Should the BCA have promoted Chiropractic for those ailments on such a basis? The BCA have managed to bring a case where they have now been put in a position where a court may have to decide.

And even if the BCA win the case (as no litigation outcome is ever certain), the BCA may lose (or are seen to lose) the wider argument, and all of this in the highly sensitive context of children's health.

If the decison to make those claims for the treatment of children was perhaps misconceived, so too was the decision by the BCA to bring this libel claim against a serious and highly-respected science writer on an important area of public health.

Saturday, 8 November 2008

On the BCA's case against Simon Singh

[This post summarises the BCA Claim, for a summary of Simon Singh's defence see here.]

This post provides a fair and accurate report of the case which the British Chiropractic Association is bringing against Simon Singh.

This post is drawn from the actual Claim Form and Particulars of Claim filed by the BCA at the High Court, copies of which have been properly obtained from the court file under the provisions of the Civil Procedure Rules (such documents, called "statements of case" can be obtained by non-parties).

Even though this post repeats the alleged "libel", it is protected from any claim by virtue of Schedule 1 of the Defamation Act 1996. The BCA's lawyers should know this, though should they need to have the law explained to them they can of course email me at jackofkent @ gmail .com .

To Recap

The news that the BCA is suing Simon Singh broke in August 2008 in the Sunday Telegraph.

The article was posted in full by Svetlana on a Russian server here.

The best summary of what is already on the web on this case is the superb Holford Watch.


The Claim

It can be confirmed that the claim is for libel and not for any other legal claim (such as malicious falsehood).

For an introduction to the law of libel (or a refresher!), see my earlier post.

The BCA contend that it "has been seriously injured in its credit and reputation".

Accordingly, the BCA are seeking damages and an injunction against Simon Singh (and his agents) from publishing the alleged libel "or similar allegations defamatory" of the BCA.


The Alleged “Libel”

The BCA’s complaint is about the content of a single passage in Simon Singh’s original piece:

"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 organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."

(Emphasis added, see below.)

The BCA's focus on this passage means that none of the rest of Simon Singh's article is defamatory and so there seems no reason that the rest of it cannot now be reproduced (subject to copyright).


Defamatory Meaning

It is not enough in libel proceedings to assert a passage is defamatory, a defamatory meaning for that passage needs also to be established.

The BCA's alleged defamatory meaning for the passage is as follows:

"In their natural and ordinary meaning, the defamatory words set out above meant and were understood to mean that the Claimant:

(a) claims that chiropractic is effective in helping to treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is absolutely no evidence to support its claims; and

(b) by making these claims, knowingly promotes bogus treatments.
"

(Again, emphasis added.)

So, in essence, when Simon Singh says that he sees "not a jot of evidence" (by which he must mean no scientifically credible evidence) for the efficacy of Chiropractic for each of these ailments, the BCA says he means "absolutely no evidence" (by which they must mean no evidence at all).

Note that this is not about "evidence" in a vacuum or for the general efficacy of Chiropractic, but evidence for the efficacy of Chiropractic for each of the following children's ailments:

1. colic
2. sleeping problems
3. feeding problems
4. frequent ear infections
5. asthma
6. prolonged crying


What Should Be The Evidence For Such Claims?

The legal issues to be decided seem to be:

1. what (if any) are the defamatory meanings of the passage in question; and

2. in respect of each meaning, is there any defence such as "fair comment" or "factual justification".

The BCA have to show that Simon Singh said that the BCA, when making claims as to the efficacy of Chiropractic in respect of each of the six stated children's ailments, did so on inappropriate or no evidence.

If they succeed in establishing this, then Simon Singh has to show that in saying such a thing it was either fair comment or a matter of fact.

So it would thereby appear that this case (should it go to trial) will deal square-on with what would constitute the appropriate evidence that should be in place for BCA to make the claims it did regarding the efficacy of Chiropractic for each of the six children's ailments above.

This is an exciting prospect.

I will shortly set out a fair and accurate report of the next available court document, the Defence which Simon Singh filed at court in response to the above.