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Sunday, 12 July 2009

Why BCA v Singh Matters To Me

This time last year I had never heard of the now discredited British Chiropractic Association.

If I had read Simon Singh's original article in the April, I soon forgot all about it.

The first time I had ever thought about chiropractic was that May, when Mahlon Wagner gave a fine talk to Skeptics in the Pub in London.

So by the summer, chiropractic was for me just another topic which skeptics had discussed in a pub one evening. It was of no greater interest to me than, say, horoscopes, ghosthunting, or crop circles.

For, although my lovely critic Dr George Lewith has accused me of being "a prominent member of the anti-CAM brigade", I really have never had any particular interest in complementary and alternative medicine (CAM).

Most of what I now know about CAM has come from dealing with legal threats from CAM practitioners to critics; and so whilst I now know about chiropractic and homeopathy, I still know little about - say - osteopathy, reiki or acupuncture, for the simple reason that practitioners of the latter do not seem to threaten to sue people when criticised to the same level.

Then, one summer day, I get a call from my friend Professor Chris French.

He tells me that Simon Singh is being sued for libel.

I had met Simon Singh, around the time of his fateful Guardian article, when the great and amazing James Randi came to speak in London. At the dinner afterwards I was lucky enough to sit by Simon Singh, and he cheerfully and charmingly fired questions at me about the relationship between skepticism and the law.

So I was shocked and supportive when Chis French told me that this cheerful and charming chap was now being sued.

As I was still "in-house" at time, I was not able to advise or act for Simon Singh.

So I wondered what I could do to help from the outside.

I straight away realised that as a media and communications lawyer I could offer an informed and supportive commentary on this Blog. For although I know little about CAM, I do know about libel law. And, unlike many lawyers, I enjoy writing about law in a popular way.

But as I read further into the case, and finally got hold of the original text, my general wish to support Simon Singh transformed into a stark and fierce passion.

It was immediately obvious on reading the alleged libel that the BCA case was deeply misconceived.

Before I explain the cause of my passion, I would just like to set the BCA case in some legal context.

I have had the good fortune to sit in the same conference rooms and offices as some of the best media litigators in the City.

And of many things I have learned from these experiences, two are salutary:

1. just because a case can be brought it doesn't mean it should be brought; and

2. never, never bring a case unless you are fully prepared to fight it to the end.

(Think about feeding Gremlins after midnight...)

Bad litigation arises when either - or both - of these lessons are disregarded.

I have said before that the BCA do not have a weak case; and the BCA - and The Guardian - lawyers have so far been proved "right" on this narrow point.

Nonetheless, it is a case which should not have been brought.

Nothing important would have been gained by a BCA legal victory - or even defeat - whilst the crucial underlying issue of the adequacy of the evidence base was left unresolved.

And the BCA clearly are bewildered that Simon Singh refused to surrender.

For me, the most telling statement made by the BCA from the plethora of verbiage in their increasingly barmy and desperate press releases, was a snide remark about Simon Singh saying he had the money and time to fight the case.

It was like the school bully realising that someone is both willing and able to take him or her on.

My impression - my guess - is that like a number of such claimants, the BCA did not really think past bringing the claim. To use the dreadful management-speak term, they thought this would be a "quick win".

So, with this background, it was never going to be a good case for the BCA.

However, the source of my passion was nothing to do with CAM or because I had met and liked Simon Singh or that I saw a case wrongly brought.

It was, for me, a free speech issue regarding public health.

In essence, Simon Singh's article was critical of the evidence base for certain treatments for children's ailments.

As such, it is my fundamental view that - absent malice - such statements should be published without fear of legal action.

Indeed, my view is that the law should be there to protect such statements not hinder them.

Debate about public health - and public safety and police powers - should be as free as possible.

As I stated when I set up the Facebook support group (which, incidentally, is now too large for messages to be sent to its members!):

"An informed and responsible science writer should be able to write about genuine concerns on an important public health issue (the correct treatment for children) without the threat and expense of High Court libel claims.

"Even if he is wrong, it would be surely enough for the BCA to simply show their supporting evidence. But they are suing him instead".


The key passage here is "even if he is wrong" - I know little about CAM and did not know if he was correct (though it is now clear to me that he is), but he should have been permitted to raise the issue.

In my opinion, the two sentences in dispute should have been properly sub-edited by The Guardian into being libel-proof - it would have taken five minutes at most.

And, given they were published, the BCA should have accepted The Guardian's offer of a "right to reply".

Or they could have published their evidence base on their website. Perhaps they could have had a conference to discuss Simon SIngh's claims, which I think he would have eagerly attended.

But it was not until Simon Singh forced the BCA with his wide-ranging Defence to set out its purported evidence base for the six children's ailments that the BCA even started trying to substantiate their claims.

(I understand the "plethora" originated in the BCA's attempt to undermine Simon Singh's "Fair Comment" defence - a defence which the BCA strongly opposed. So, had it not been for this defence, we still would not know the BCA's evidence base.)

And when a case is misconceived, disasters can occur.

That said, I never expected the spectacular mess which the BCA has caused by their lawsuit. It really does seem to get worse every week or so.

Yes, the BCA could sue, but it is now obvious to everyone that they should not have done so.

Libel law should not have any role in science generally; but it certainly should be kept out of discussions about public health.

It is where "free speech" should be a given, but it is not.

And so that is why BCA v Singh matters to me.

free debate

28 comments:

Richard said...

Simon has been refused permission. Now comes the oral renewal

Andy said...

And I think an awful lot of us are better informed as a result of the interest of some key bloggers such as yourself.

Like you, I knew little about chiropractic prior to this. I had seen dismissive references to the questionable history of the practice but had no idea as to the extent strange "beliefs" continued to be held within the industry.

After this case became public, I started looking at Australian chiro sites and was dismayed to see similar claims repeated here. From there my interest became somewhat more focused and I now await each new blog post or news item about this case

Singh is in OZ this week and he already lobbed a small grenade here last week on national TV.

The international chiropractic industry will seemingly have a lot to thank the BCA for if the situation gets any worse.

Richard said...

It's a hopeless case and Singh is wasting everyone's time. Fortunately their Lordship has agreed on paper and he hasn't been given permission

Mong H Tan, PhD said...

RE: How a scientific/legal mind could turn into a sensational "churnalist"!?

As a science-philosophy writer-critic, the BCA v Singh libel case matters to me, too -- however, before dusts settle, I shall always maintain an open mind (scientific and legal) whenever reviewing all sources, arguing about this case!

I am surprised that you have tried to “discredit” the BCA so readily, by basing on sources that I would consider to be anti-libel law campaign-rhetoric or "churnalism" -- originated probably from Singh himself (and associates) of the “Sense about Science” organization in the UK!?

Both the BMJ editorial and Le Canard Noir are "churnalism" in the sense that they both solely based on the Edzard Ernst’s “review” (predicated on his views of chiropractic as CAM) as the affirmed "demolition" to the BCA’s "plethora" -- while they both ignoring the fact that Ernst is not a disinterested party to the BCA v Singh case, at all -- for the fact that in The Guardian article (and henceforth the libel case in point) Singh had clearly tried to heighten his (libelous) sensationalism (against the BCA) so as to bolster the scientific and biomedical credibility of his then new book "Trick or Treatment" that he coauthored with Ernst!?

As such, in the final analysis, this libel case will not be about “free speech” issues, at all; nor about whether “libel laws will stifle science and/or journalism” or not; but it clearly will adjudicate Singh’s professionalism which had turned into sensationalism of “hearsay-allegation-libel” issues! Caveat lector!

Best wishes, Mong 7/12/9usct2:20p.

Anonymous said...

You wrote "Gods, Genes, Conscience: A Socio-intellectual Survey Of Our Dynamic Mind, Life, All Creations In Between And Beyond, On Earth"

I suppose this is how you demonstrate what you are speaking of.

-Random

LB said...

J of K ...."It was, for me, a free speech issue regarding public health.

In essence, Simon Singh's article was critical of the evidence base for certain treatments for children's ailments."

But this is not the reason for the libel case. Singh did not attempt to discuss the evidence he simply accused the BCA of being dishonest.

He later admitted that he did not mean what he said but did not withdraw his comments or offer an apology.

In my opinion being a science journalist comes with responsibilities and a duty of care it should not allow you to act unprofessionally by using sensationalist language that is clearly defamatory and then claim "scienticic comment" as a defence.

Andy said...

Mong H Tan, PhD said...

As a science-philosophy writer-critic, the BCA v Singh libel case matters to me, too -- however, before dusts settle, I shall always maintain an open mind (scientific and legal) whenever reviewing all sources, arguing about this case!

Can you point us to any editorial in support of the BCA's evidence so that we might also weigh up both sides?

I think to call the Quackometer's review of the issue Ernst-based churnalism is a little unfair given that several other bloggers had already demolished the "plethora" in exquisite detail long before Ernst took his turn. Ernst just happened to be published in BMJ.

I'd love to have an open mind on this but it's becoming more and more difficult as one side holds it cards so close to its chest and gets trumped the moment it shows some.

Brian Clegg said...

Thanks, as always for your insightful comments, particularly helpful to us writers of popular science books, for whom the law is a mystery. (Maybe you could write a popular law book...)

Skepticat said...

LB, Simon did not accuse the BCA of "being dishonest", he accused them of "happily promoting bogus therapies". That is not the same thing and it is the interpretation that he was accusing the BCA of deliberate dishonesty - rather than of simply being deluded - than Simon later denied. That is why he didn't apologise or withdraw his comments. And quite right too.

Chris Kavanagh said...

Great article Jack! Very interesting to see the full story of how you came to the case.

Now if you'll excuse me...

It's a pretty good rule of thumb that whenever someone feels the name to include PHD or any other title in their username that it's never a good omen for sensible arguments and I see it holds up here.

Mong, to describe the BMJ and the Quackometer as 'churnalism' is simply ridiculous. Editorials for journals often make reference to the articles contained within that specific issue and in terms of controversial debates they also often take sides when the relevant editor thinks a much stronger case is being made on one side. See Nature's editorial coverage of Benveniste's Homeopathy papers for a good example of this.

Sue Reid found Ernst's review of the evidence to be persuasive not because of his rhetoric but because his review is well conducted and fair. The BCA's evidence is of a very low standard and the BMJ is one of the premier medical journals for it not to side with Ernst analysis would have been perverse. There are countless other articles and blogs that have taken apart the BCA's plethora and Prof. Ernst just brought all the criticisms together into one source and added more rigor to the analysis.

As for Quackometer it was posting an update for those following the case and discussing the implications of the BMJ's editorial and the review. That's what bloggers do. If you look through other posts you will see very good quality original research. So to describe Le Canard Noir of being guilty of 'churnalism' for commenting on one of the top medical journals dismissing the BCA's evidence is well... silly.

You also seem to be clinging to some notion that there must be a balanced conclusion for something to have been treated fairly in a review. However, as a science journalist you should know that is not how science or medicine works. Things really can be wrong. Evidence can be lacking. And to say so does not make you an ideologue regardless of what you imply.

As far as Singh's original statements being about bolstering 'the scientific and biomedical credibility' of his book. I think you're really barking up the wrong tree. His statements were BASED on his research rather than being anything to do with backing up his credibility. The BCA did/does promote chiropractic for those childhood ailments and the evidence that chiropractic could treat such ailments is simply not there (as the published plethora clearly shows) so his comments are perfectly understandable.

If you think it is a sensationalised statement Simon made in order to support sales of his book, I think you have very little experience of Simon or his writings. Have you read Trick or Treatment? Do you think it is sensationalised and unfair?

Your own 'open minded' assessment of the case seems to be remarkably similar to simply re-churning out the arguments made by Richard Brown so maybe your critical eye might be well served by addressing your own biases!

Alice said...

Fantastic article, many thanks Jack of Kent.

It's a bit sad to see the same arguments gone through again and again in the comments - however, can I point out one thing?

J of K has sensibly written that it is important that people be permitted to comment on public health issues. Even if their comment turns out to be wrong, public figures should be able to voice their concerns.

The BCA have made some pretty silly claims which have the potential to damage far more people and far more lives than Simon's accusation of incorrectness. Or dishonesty, whatever you want to call the accusation. That might lead to a few hurt feelings and a few people perhaps being careful about choosing chiropractic - as they should be anyway.

The medical profession doesn't sue nutters who go on telly and claim that their son was made autistic by having the MMR vaccination, does it? The space industry, to the best of my knowledge, doesn't sue people for claiming the Moon landings were faked.

Accusations of dishonesty are made all over the place. An intelligent and mature scientific organisation sighs, provides evidence to the contrary, and gets on with life.

So, even if the BCA wins the case, it has made a complete moron of itself. And the more it and its supporters villify Simon, the more famous he'll get. I hadn't even heard of him but I intend to read his books now.

Rogue Medic said...

Mong H Tan, PhD,


. . . I shall always maintain an open mind (scientific and legal) whenever reviewing all sources, arguing about this case!

I am surprised that you have tried to “discredit” the BCA so readily,


How do you maintain an open mind, when you are putting thoughts in the mind of someone else. You do not know what was tried or how readily. You are only drawing conclusions.


by basing on sources that I would consider to be anti-libel law campaign-rhetoric or "churnalism" -


More conclusions. You stated that you are a science writer?


- originated probably from Singh himself (and associates) of the “Sense about Science” organization in the UK!?


And even more conclusions. Where is the basis for these claims? Are you a mind reader?


Both the BMJ editorial and Le Canard Noir are "churnalism"


I am not familiar with Le Canard Noir, but based on the sources it is associated with, I do not see justification for this comment.

BMJ is an excellent medical journal that allows for comments and corrections. The opportunity to present contrary evidence is available to BCA. BMJ is a medical journal that promotes the scientific approach to medicine. BCA only seems to be interested in stifling valid criticism.

Science is about having an open discussion of the evidence.


in the sense that they both solely based on the Edzard Ernst’s “review” (predicated on his views of chiropractic as CAM)


More conclusions.


as the affirmed "demolition" to the BCA’s "plethora" -- while they both ignoring the fact that Ernst is not a disinterested party to the BCA v Singh case, at all -- for the fact that in The Guardian article (and henceforth the libel case in point) Singh had clearly tried to heighten his (libelous) sensationalism (against the BCA) so as to bolster the scientific and biomedical credibility of his then new book "Trick or Treatment" that he coauthored with Ernst!?


The only sensationalism I see is coming from Mong H Tan, PhD.


As such, in the final analysis, this libel case will not be about “free speech” issues, at all; nor about whether “libel laws will stifle science and/or journalism” or not; but it clearly will adjudicate Singh’s professionalism which had turned into sensationalism of “hearsay-allegation-libel” issues! Caveat lector!


I am not a lawyer, but I suppose that Simon Singh and Edzard Ernst have much more of a valid case for libel against Mong H Tan, PhD, than BCA did against Simon Singh.

Twaza said...

Jack

I have enjoyed your blogs and learnt a lot. Thanks!

The BCA v Singh case has highlighted two issues for me. The law should support both freedom and responsibility.

People need to feel free to expose error when they think they see it.

People also need to be held accountable for what they say. Healthcare professionals should not feel able to make claims about their treatments that cannot be supported by good evidence. Journalists should not feel able to damage the reputation of people and institutions without good evidence that their claims have substance.

I hope that in the BCA v Singh case a technicality will not prevent the law from supporting both freedom and responsibility.

Anonymous said...

What a lot of fuss over nothing. I am amazed this has got so much milage. All Simon Singh needed to do clarify the point that many Chiropractors have deluded themselves into beleiving they can treat these conditions (if thats his opinion). And that should not be supported by their associations (whose job it should surely be to point out any lack of evidence). He admitted himself it was a misunderstanding over the term Bogus. Still on the up side for him, I'm sure he's sold a few more books.

Tim Husband said...

Brilliantly stated. Really if it matters at all it matters that the evidence is easily available and of suitable quality to have clinical relevance.

In the case of the BCA Vs Simon Singh it is tragically clear that the law is, and remains a total ass. Those responsible for adjudicating the import of evidence based medical treatment are utterly unqualified so to do.

Dr Singh and Mr Kent have significance beyond the merely pedantic - this is a test case that may well save the lives of gullible fools, or the children of gullible fools in the future.

Thank you,

Tim

Anonymous said...

Courtesy link to Australian website quoting this fine blogger

http://blogs.crikey.com.au/croakey/

Brian Blood said...

ref: http://www.bmj.com/cgi/content/full/339/jul08_4/b2783?maxtoshow=&HITS=10&hits=10&RESULTFORMAT=&searchid=1&FIRSTINDEX=0&resourcetype=HWCIT

Following a personal note from me, Fiona Godlee has agreed to make the two articles mentioned in the above editorial, namely that by the vice president of the British Chiropractic Association, Richard Brown, and the response 'Chiropractic for paediatric conditions: substantial evidence?' by Edzard Ernst 'free-to-read'. I hope this may make the scientific points at issue clearer to those interested in the BCA-Singh dispute.

Dr Aust said...

RE. Anon 20.44:

The BCA did not ask Simon Singh politely to issue a note "clarifying" his meaning. They issued a writ for libel. As one understands it, they wanted nothing less than removal of the article and an apology. Not a "clarification". Nor did they take issue with Singh's (presumed) meaning in print, though offered the chance to do so by the Guardian.

This strikes me as more like "making an example" of Singh than seeking to clarify what he meant.

One supposes that (figuratively) hanging Singh's head on a post would make future critical coverage of chiropractic in the mainstream press far less likely. This would, I presume, decrease the opportunity and need for the BCA to engage in public debate over their therapy and its benefits. Would they be upset, I wonder?

Anonymous said...

Re: Dr Aust

"As one understands it, they wanted nothing less than removal of the article and an apology."

... and how would they have reacted if he had clarified his position?

There would have not been a case had he explained what he had meant to say, but then again that would not have helped his book sales and self promotion.

This has nothing to do about freedom of speech, he has been caught out and is hiding behind it.

Jack of Kent said...

Sorry Rogue medic - but your final comments about the BCA mean I cannot approve your post.

It's a pity, as the rest of it was fine.

Chris K said...

RE: Anonymous

You need to do some more research. Simon DID offer to clarify his position by writing a further article. The BCA turned down that offer just like they turned down the offer to write a response.

So your suppositions about how he wanted to take on an expensive libel case that has already cost him personally £100,000 to increase his book sales seem to be rather unsupported.

As far as dismissing that this case is about free speech well your welcome to your opinion but it seems a lot of people disagree with you, at least in the region of 15,000+.

Of course, you are posting anonymously and making accusations about Simon without bothering to research the issue so your own bias in this issue are not difficult to guess.

Still chin up. I suppose it's easier to just keep believing Simon is a shameless self promoter who refused the BCA's reasonable offers... even if it is entirely a fiction!

Anonymous said...

Re: Chris K

I may have to stand to correction, but I cannot find the evidence that Simon offered to clarify his position before the court case. This would however suggest that he knew of its existence and could have therefore presented it to the world in its “discredited” format and ended the argument there and then.

As for the £100 000 cost issue to which you refer, this is not exactly going to break the bank of a world renowned scientist, author, producer and brother to one of the richest men in the UK.

15 000 signatures from a group of people who have been romanced and mislead by the whole freedom of speech issue is nothing to brag about. It is barely the sum of one of our reasonably sized GP surgery patient bases.

Anonymous said...

Jack

Having re-read my previous comment (15 July 22:36), there is an error in the last sentence “It is barely the sum of one of our reasonably sized GP surgery patient bases.” It should read: “It is barely the sum of our practices patient base or a reasonably sized GP surgery patient base.”

Apologies, it is late.

Chris K said...

RE: Anonymous

1. Here is a link which discusses the offers presented to the BCA:
http://www.senseaboutscience.org.uk/index.php/site/project/340

I can't really understand the line "he knew of its existence and could have therefore presented it to the world". What is 'it'? The court case? His evidence? He mentions his evidence in the article and he published a book with a chapter dedicated to reviewing the clinical evidence for chiropractic.

2. A few posts ago you were claiming that Simon had promoted the libel case to increase sales of his book. Now you are suggesting that money is no object to the man. Ever heard of consistency?

Also, I kind of think that even when you a re a succesful science writer £100,000 is a lot of money to throw down the drain. Especially considering the costs will only rise in the appeal.

3. A fair amount of the signatories are influential scientists and journalists. I suspect many of them have a firm grasp over what is going on. As for 15,000 being insignificant amount. For a libel case about an article in a newspaper published over a year ago I think 15,000 is indeed significant. If it's that easy to gather 15,000 supporters I wonder why the BCA hasn't done so?

Dr Aust said...

Indeed, Chris. The BCA could doubtless count on the signatures of the 1000 registered chiropractors who constitute its membership.

Unless, of course, even some of them think the BCA's decision to sue was less than astute? (Not to mention stupendously counter-productive)

By the way, I've signed the Singh statement of support and I don't think I have been either "romanced" or "mislead". And there is so much opinion on the case around, much of it on blogs written in very deliberately simple language and with the purpose of explanation, that (like Chris K) I very much doubt many people have signed "in ignorance".

Rogue Medic said...

Anonymous,

This has nothing to do about freedom of speech, he has been caught out and is hiding behind it.


You are correct Simon Singh has been caught out. Simon Singh is certainly guilty of telling the truth. We just need to determine the appropriate sentence for such a crime against bogus claims.

BCA would probably prefer 'Sentence first - verdict afterwards.'

As for clarifying his position on the use of the word bogus, Simon Singh did that in the paragraph immediately following the offending bogus. The bogus dripping with imaginary libel.

How do you clarify a statement that is the equivalent of "The Tooth Fairy is bogus. This is just your parents sneaking into your room and leaving some money under your pillow"?

The claims of the BCA are similarly bogus. The result is just the placebo effect that one gets from believing in this particular Tooth Fairy, only the transfer of money is in the other direction.

Dr. Brian Blood said...

For those wishing to get a taste of the behaviour of Eady, the judge who is hearing the BCA vs. Singh case, I recommend Roy Greenslade's account of the Desmond vs. Bower case which has just concluded. The reference is: http://www.guardian.co.uk/media/greenslade/2009/jul/23/richard-desmond-express-newspapers

Dr. Brian Blood said...

Further to Ben Goodacre's well-timed appreciation in the Guardian newspaper of the significant contribution of the 'science' blogging community in 'outing' the BCA following their ill-judged recourse to the English law of libel as a means of 'puffing' the reputation of their profession, maybe it would be appropriate to turn our attention to the other areas of 'alternative' medicine promoted by professional bodies that might also be considered scientifically dubious or 'bogus', as Simon Singh might define the term.