Why The BCA Claim Is Misconceived

It has not been a good few days for the British Chiropractic Association.

Whatever can be lawfully said about their treatments, I don't think that the treatments were being promoted at all happily this week.

I am sure this was not the BCA envisaged when they first coined the phrase "Chiropractic Awareness Week".

I would think more people are now aware of chiropractic, and the nature of the claims made on its behalf, than this time last week. And this awareness is not on terms favourable to the BCA or to chiropractic generally.

The Sense About Science campaign launched this week is a fantastic development, and it may well be a real shift in the terms of engagement between those scrutinising ambitious claims and those seeking to use legalism to avoid that scrutiny.

However, the BCA clearly launched their misconceived legal action with no expectation of the storm which has now developed, and may even develop further. It may be that they saw this matter last summer as a "quick win".

But litigation is not like that.

And I did try to warn them.

Back in August 2008 I set out in a blogpost a series of questions which BCA members should pose to those bringing this case. I think that post reads rather well in retrospect. In particular I am struck by:

"Libel litigants often suffer a counterproductive impact on their reputations generally, even if they prevail at court.

"Also, by suing over an issue related to the efficacy of Chiropractic, the BCA are potentially also putting at risk the reputation of the whole discipline. They have needlessly created the scope for "Chiropractic on Trial", which they can be seen to lose."

I have always seen the BCA's case as misconceived, but not weak.

What was especially misconceived was to use libel law, with its (in effect) reverse-burden of proof and horrific costs risks, for a matter which always could have been resolved substantially by sharing whatever evidence the BCA have for the efficacy of chiropractic for the six named children's ailments.

Until and unless that crucial evidential exercise was done, there could never be any real "vindication" for the BCA in this matter, whatever the rulings of the High Court, and whatever their (increasingly) embarrassing and over-excited press releases may say.

And, because their case was structurally misconceived - demanding the wrong legalistic answer to an artificial question about their integrity rather than the substantial question as to their evidence base - it soon became painfully apparent that the BCA's case was going to be a public relations disaster both for them and their profession.

A whole range of key opinion-formers are now hostile to the British Chiropractic Association and about chiropractic generally. The range of signatories to the Sense About Science Statement is testament to the breadth of concern felt at the bringing of this misconceived legal action.

And this week the BCA libel claim received very hostile coverage in the mainstream media.

The Independent ran their piece this week with the headline Silenced, the writer who dared to say chiropractic is bogus. Even if that is unfair, such a headline was a perfectly foreseeable public relations problem.

Even the Daily Mail, which the BCA would reasonably expect to be fertile ground for complementary and alternative medicine, ran a hostile story - and it didn't even trouble to quote the BCA.

It is a peculiar form of alchemy which turns an almost-unknown professional body into a notorious bogeyman for scientists and journalists - both here and elsewhere.

For the British Chiropractic Association is now a proxy for international dislike of the English libel laws, a named target for every scientist and writer who has had to deal with the "chilling effect" of a potential libel case, and a notorious example of the misapplication of the English law of libel in the fields of public health and scientific research.

It may well be that the actual reputation of the British Chiropractic Association never recovers from this debacle.

And it may get even worse.

First, it seems that activists are reporting chiropractors for alleged breaches to the Advertising Standards Authority, the local Trading Standards offices, and the General Chiropractic Council. This is really not my sort of thing - and I watch all this busy activity with bemused detachment - but it cannot be doubted that not a single one of these complaints would have been made had it not been for the blunder of bringing this libel case.

The General Chiropractic Council is in a particularly difficult position here, for as a statutory regulator under public law duties (and the Freedom of Information Act), it has to deal properly and transparently with each complaint.

As a consequence, members of the BCA and other chiropractors are now to be held to strict regulatory proof in all their claims about the efficacy of chiropractic for certain treatments.

I am not sure that BCA members will think the BCA's hollow vindication was worth it.

Second, the BCA have perhaps "ruined" it for other complementary and alternative health practitioners (and for those in other sectors) who had used the threat of a libel writ as a "legitimate" way of dealing with unwelcome criticism in the fields of science and public health. I wonder how popular the BCA are in some quarters.

And third, the BCA must be dreading their evidence finally entering the public domain, and for it to be seen as not substantiating their claims for treatment of those six children's ailments. If this happens then I suspect the BCA will be widely seen as discredited and people may think that bringing the libel case was a disreputable thing to do.

But there is one really good thing to come out of all this.

The spirited campaign to take libel laws out of science - now to be organised by Sense About Science - is not going to go away.

It will fall in behind the next writer or scientist to be threatened with a libel case when just showing the evidence would have dealt with the real issues.

Sense About Science will also campaign for a changes in the law to make such claims impossible in any case involving scientific evidence or public health.

It takes more than mere alchemy to turn a legal setback into an ongoing and worthy check on future misconceived libel cases.

And it is to the credit of Simon Singh and Sense About Science, and to all those who support him, that the BCA's libel case will now lead to an enduring public good, promoting and protecting free expression in science and public health.




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