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Tuesday, 4 August 2009

The Length of Simon Singh's Skeleton: The Reasons for Refusal by the Court of Appeal

The reasons are now available for the Court of Appeal's refusal of the written application by Simon Singh for permission to appeal (PTA).

I blogged on Friday that Simon Singh had failed to obtain PTA on his first application to the Court of Appeal.

I will first set out below the single paragraph of reasons in the relevant Court of Appeal document, and then I will do a sentence-by-sentence commentary.

Reasons

"Despite the length of the applicant’s skeleton, the judge seems to me to have been right in both his decisions. His approach as a matter of principle to the two questions was in accordance with authority, and the absence of any express reference to certain matters of context does not mean that he did not take them into account. Just because it may be difficult to prove a negative such as there not being a “jot of evidence” for a proposition does not mean that it is not an assertion of fact. All in all, I cannot see any realistic prospect of a successful appeal."

Commentary

"Despite the length of the applicant’s skeleton, the judge seems to me to have been right in both his decisions."

The reference to Simon Singh's skeleton is not to his physiology (especially his spine), but to his comprehensive and detailed "skeleton argument" - a document filed with the court outlining his arguments. (This standard legal jargon does, however, seem a bit unfortunate in the context of this particular case.)

The reference to "both his decisions" is (I think) to the decisions of the High Court judge that (a) it was a statement of fact not of an opinion, and (b) what that statement of fact was (ie, an allegation of conscious dishonesty. (However, I could be wrong here, as I do not actually have the skeleton argument.)

"His [the High Court judge's] approach as a matter of principle to the two questions was in accordance with authority, and the absence of any express reference to certain matters of context does not mean that he did not take them into account."

Here it appears that Simon Singh's lawyers had emphasised the article as a whole, for example the paragraph which set out why Simon Singh was describing the treatments as "bogus". The Court of Appeal is stating that the failure by the High Court judge to refer to other passages in the article did not mean that the article as a whole was not taken into account

"Just because it may be difficult to prove a negative such as there not being a “jot of evidence” for a proposition does not mean that it is not an assertion of fact."

Here the Court of Appeal is reinforcing the High Court's ruling that Simon Singh's statements were allegations of fact, not expressions of opinion.

"All in all, I cannot see any realistic prospect of a successful appeal."


Please note it is not stated that the application for PTA was hopeless; so this means that it is still open for Simon Singh to bite again at the cherry of PTA with an oral hearing.

These brief reasons are also perhaps interesting in what they do not explicitly address. For example, there is nothing here expressly about the dishonesty point, that is that the High Court ruled that the words complained of alleged conscious dishonesty on the part of the British Chiropractic Association.

It may be that in any oral application for PTA there is still perhaps some chance of overturning the High Court's ruling on meaning.

These reasons may seem short, though they are longer than others in respect of PTAs.

I understand Simon Singh now has seven days from today to decide whether to make an oral application for PTA.



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10 comments:

SVETLANA PERTSOVICH said...

Aha... At first they sought a libel in his words, and now they are seeking the subluxations in his skeleton... :)

What outcomes will be possible if Simon makes the oral application?

Andrew G - NZ said...

It will be interesting to see if the BCA now offer some sort of Olive branch. Their latest press release suggests one may be imminent. I would think that they would wish to get out of this stoush far more than does Simon. And I suspect they will be under pressure from other chiropractic associations in the world.

Unfortunately, I fear that a few months down the road this will all be forgotten and the chiropractors will still be calling themselves doctors, arguing they have better training in some areas than do orthodox medical practitioners, and making claims to 'not treat' various conditions of a serious nature. And making a lot of money out of people's gullibilty.

In the meantime they widen their scope of practice to further compete with proper healthcare(e.g., chiropractors now have a centre of nutrition! What next? A fertility clinic?!)


And anyway, isn't this whole chiropracty thing rather like the emperor’s new clothes? Why the heck would cracking someone's back do anything. Really? What sense does that make? About as much as doing that jabbing thing with the remote controller when changing TV channels! Just because a magnetic healer thought back-cracking does something good, does not mean that it does. And chiropracty is now the third largest healthcare system in the world!

The Heresiarch said...

Do you know if the skeleton referred explicitly to Article 10? Given the Dutch case (not directly applicable, I know, but it does seem highly relevant nevertheless) a strong argument on that ground might be the way to go. Perhaps also an affadavit from a linguistics professor setting out the sheer perversity of Eady's "bogus" and "happily" definitions might be sought, if there is to be a further appeal. There may be "authority", in terms of legal precedent, for Eady's interpretation (his own?), but SS was NOT writing a legal document, so the legal meaning of "bogus", if any, is surely irrelevant here. What matters is the natural meaning.

Any chance of finding out what was in the skeleton?

Sion said...

Given that the BCA must now, in light of all of this furore, be aware that the treatments which they promote for colic, etc., don't work, can we NOW accuse them of 'promoting bogus treatments'?

Ian (Ann Arbor, USA) said...

Thanks for the update, as always interesting and I find your blog a facinating insight into Libel proceedings.

I'm a little unclear as to what you mean by your comment towards the end, that they do not explicity address the dishonesty point. Given that the Court of Appeal agrees with both Eady's decisions, and we presume the second decision was the meaning of the statement of fact, are they not agreeing with Eady's ruling that the BCA were being accused of deliberately selling treatments they knew to be ineffective?

Is it simply the fact that they do not explicitly address the detail of why they agree that leaves a small sliver of hope that an appeal may be granted.

Simon Waltho said...

Re: Andrew G - NZ's comment "What next? A fertility clinic?!" - sad to say, my local chiropractic clinic might be ahead of you there : go to http://www.chiropractic4health.co.uk/backpain_26.html and scroll down to the "diseases/conditions" conditions section.

I can only assume they've been a little careless with their wording and meant to follow "people consult chiropractors for..." with "...but shouldn't, 'cause we can't".

With apologies for the shameless self-promotion, the Think About Health network have rather generously allowed me some space to post an analysis of the case from the point of view of someone with a background in philosophical medical ethics. It's in the "Comment & Opinion" section at www.thinkabouthealth.org, if anyone's interested.

sceptic said...

Many honest chiropractors clearly believe in these treatments in spite of the problems with the evidence. I personally would keep away from any choice of words that implied they believed the treatments were bogus.

Another issue would be that some chiropractors take the view that it's fine if these treatments are only placebo (they routinely under estimate cognitive bias). They could accept the evidence and still believe that they are 'helping' with colic etc...

BadlyShavedMonkey said...

sceptic said;

"Another issue would be that some chiropractors take the view that it's fine if these treatments are only placebo "

Yes, this is a problem.

More than once I've seen a quack therapy defended because 'even it's just a placebo it's still having an effect'.

Quacks basically fail to understand what a placebo effect actually is. At its worst, they lump together everything that contributes to post-treatment improvement including spontaneous recovery, regression to the mean, reporting bias and act as if the whole lot is a 'placebo effect' from treatment.

But even if some can comprehend the idea that for real effects to be shown you need to compare treatment and control groups not just to compare pre and post-treatment of one group, I think, alt.meddlers can't really grasp the fact that the placebo effect really is just the non-specific effect of being treated in a manner that mimics the therapy under test while omitting its supposedly active principle.

If you have a three-arm trial, Untreated, Verum, and Placebo, any real effect of the therapy is Verum minus Placebo. If this is zero then there is no specific effect from the therapy under trial in and of itself, it is a useless therapy. The pons asinorum for the alt.meddler is that Placebo minus Untreated is the conventionally defined placebo effect but the existence of such a difference does not mean that the specific therapy makes valid claims. If V-P is zero their specifc claims are still invalid. I say "conventionally defined" because patients wilfully lying to please the therapist and any other reporting biases created by the fact that the participants know they are part of a test are wrapped up with any 'real' placebo effect and are very hard to tease apart. Comparing the relative effects of different placebos is easier. Measuring the placebo effect absolutely is really not possible. This inability to define the absolute magnitude gets rather lost in the discussion of the relative effect of green sugar pills versus red, or placebo pills versus placebo injections.

And always remember, for there to be large P-U difference you, more or less have to be dealing with a condition centred largely on subjective reporting of symptoms. P-U is going to be small for serious organic diseases. It ain't gonna save you from cancer.

I think some sceptics, and I think Ben Goldacre is one who has over-played this aspect, have not helped by trying too hard to be reasonable by emphasising the mysteriously powerful nature of the placebo effect, when really it only has some effect in conditions that are largely psychosomatic to begin with.

Another thing that gets lost is that all these comparisons and definitions are valid only within the timescale and context of a trial, which is not usually the same as the rest of a patient's life. Because the placebo effect cannot be defined separately from patients' willingness to please the experimenters, it must be easier to sustain a good 'placebo effect' in relatively short-lived trial. Conversely showing a strong 'placebo effect' in a trial does not mean that one could expect a patient to sustain a permanent benefit once the clipboards have been put away.

If you want to see how an alt.med practitioner views the placebo effect, follow this link and download the PDF of "Halloween Science".

http://www.homeopathyworkedforme.org/#/halloween-science/4533482584

Search the text for all mentions of the word placebo for an overview of how the concept can be thoroughly misunderstood.

robert said...

Does the refusal of PTA mean SS automatically has no leave to appeal to the House of Lords (or 'Supreme Court' as I suppose we should call it now)?

Failing that, what would be the likelihood of a petition to them succeeding? Is this destined to go all the way to the European Court of Human Rights, where they may finally declare English libel law incompatible with Article 10 and demand it's killed off?

(A lot to hope, though!)

sceptic said...

I tried to read Halloween Science. My main reaction was amazement that somebody went to all the effort of polishing that many turds and then presenting them to the public.