I am delighted to publish a guest blogpost by Simon Singh.
Last week the British Chiropractic Association (BCA) hosted one of the world’s biggest gatherings of spinal manipulators, namely the European Chiropractors’ Union Convention in London.
During the coffee breaks, there was probably lots of discussion about the BCA’s decision to sue me for libel over an article I published in the Guardian back in April 2008.
The contentious part of the article questioned whether chiropractors should be treating childhood conditions such as ear infections, asthma and colic.
Last month, after two years of legal wrangling, the BCA backed down and withdrew its libel action. It now has to foot its own legal bill and my legal costs, which I estimate will come to £300,000 in total.
I am sure that the members of the BCA are annoyed that their subscriptions have been wasted on a horrendously expensive libel suit, but at least they can be reassured by some of the comments made in a press statement issued by the BCA last month.
The BCA pointed out that the motivation for its legal action was that it believed that my article alleged that the BCA was a dishonest organisation.
Hence, the BCA attempted to justify its decision to sue me by stating:
“Simon Singh has said publicly that he had never intended to suggest that the BCA had been dishonest. The BCA accepts this statement, which goes some way to vindicating its position”.
This baffles me.
Of course, I publicly stated that I never intended to call the BCA dishonest, because it is completely obvious that the article makes no such allegation. Moreover, and this is the really crucial point, it appears to me that the BCA failed to see any accusation of dishonesty in my article, or at least its solicitor failed to raise the issue when we first exchanged letters.
I must stress at this point that I am not saying that the BCA fabricated the dishonesty allegation at a later stage, but I am saying that the BCA have a very unclear way of communicating their concerns.
This began with its very first letter to me, which was sent on 28 May, 2008 via its solicitor.
The letter does not mention the word “dishonesty” or raise concerns over an allegation of dishonesty, but instead the letter states:
“It is untrue and grossly libellous for you to allege that the claims made by our client happily promotes bogus treatments for which there is not a jot of evidence. There is, as you are or should be well aware, a substantial body of evidence to support these claims”.
In my opinion, the initial letter threatening legal action raises concerns over allegations of a lack of evidence, not dishonesty.
Essentially, the dispute seems to be that the BCA says there is “a substantial body of evidence”, while I maintain that “there is not a jot of evidence”.
This is itself a defamatory interpretation, but one that I would have been delighted to defend at trial; I have examined the evidence and there is indeed “not a jot of evidence”.
By the way, when I use the word “evidence”, I mean reliable/worthwhile/reasonable/good evidence, as opposed to unreliable, unworthy, unreasonable/bad evidence.
There is of course a wealth of bad evidence to support the BCA’s claims, but I assume that anybody with any scientific training (or indeed common sense) would not be interested in bad evidence, because bad evidence is often worse than no evidence.
So why didn’t the BCA raise the question of dishonesty at this stage?
After all, this letter was not sent off in a rush, but rather it was posted over a month after my article was published.
Indeed, a second BCA letter sent to me on 2 June, 2008, also failed to mention dishonesty.
A week later, a Guardian lawyer sent a letter on my behalf to the BCA, which also did not raise the issue of dishonesty, but instead focussed on evidence. After all, evidence seemed to be the crux of the BCA’s complaint:
“We [the Guardian] would therefore be prepared to publish a response from the British Chiropractic Association to Simon Singh’s article in which it, or a representative, could set out the evidence relating to the childhood conditions mentioned above.”
The BCA replied on June 17 and did not accept the offer of a right of reply.
Instead, its solicitor added to the discussion over evidence, but again failed to raise any concern over allegations of dishonesty!
The Guardian responded by offering a clarification, which stated:
“The British Chiropractic Association have told us they have substantial evidence supporting the claim they make on their website that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying. (Beware the spinal trap, page 26, April 19).”
Again, there is no mention of dishonesty from our side, because we still had no inkling that the BCA would ever express any concern over an allegation of dishonesty.
Indeed, had the BCA raised this problem, then it would have been simple to have added a line to the suggested clarification, i.e., “The Guardian and Simon Singh would like to confirm that the article did not intend to imply that the BCA is acting dishonestly”.
(By the way, I am sorry if this is getting boring, but imagine what it was like for me dealing with this sort of tedium for two years, and having to pay for the experience.)
The offer of a clarification was not accepted, but instead a couple more letters went to and fro until 2 July, when the BCA became even more obsessed about the issue of evidence.
The BCA went into great detail about the question of evidence, citing various pieces of research, including the research I discussed in my original article.
The BCA’s solicitor reiterated: “At the heart of our client’s complaint is Dr Singh’s assertion that ‘there is not a jot of evidence’ for the claims made by our client that chiropractic ‘can help treat children with colic’ and other conditions listed by him”.
Eventually, on July 10, the BCA decided (for whatever reason) to suddenly raise the issue of dishonesty.
It formally issued a writ against me, which meant crossing the legal Rubicon.
A legal document called the Particulars of Claim stated that my words clearly implied that the BCA “knowingly promotes bogus treatments”.
It seemed ludicrous to me that anybody could interpret my article in this way, and to base an entire legal action on such an interpretation struck me as mind-boggling, especially when dishonesty had not previously been mentioned in any correspondence.
Many people have asked me why I did not settle the case at this point by clarifying that I had never intended any implication of dishonesty.
Unfortunately, the situation was not quite so simple.
First of all, I am confident that the BCA would have demanded that I pay its legal bills and probably some damages on top. I am guessing, but I think I would have ended up with a bill for £20,000, purely to clarify a sentence that I had always thought was obvious from the very beginning, and which the BCA had not previously framed as an accusation of dishonesty.
Moreover, the issue of evidence, or lack thereof, would have been left hanging.
It is impossible to work out what was going on at BCA HQ, because we now have statements that contradict actions.
For example, this year the BCA issued a press release that stated:
“The motivation for this action was always to clear our good name, particularly in respect of the implication that we acted dishonestly”.
Well, it wasn’t always clear to me! It took three months after my article was published for the BCA to indicate that it interpreted my article as an attack on its honesty. If anything, it appears that the issue of dishonesty was an afterthought.
This paradoxical behaviour was raised by my barrister Adrienne Page QC in the Appeal Court hearing earlier this year:
"What I wish to draw attention to in the early correspondence is that the complaint was a complaint about the assertion that there was not a jot of evidence, and the complaint was that there is in fact a substantial body of evidence… Now there was no complaint there -- there was no complaint at any stage in the correspondence prior to the issuing of the claim form -- that the allegation was one of dishonesty or knowledge of absence of evidence on the part of the BCA".
The Appeal Court went on to rule in my favour, with the three appeal court judges being equally perplexed by the interpretation of dishonesty that was being pushed by the BCA.
They agreed with me that my article accused the BCA of being reckless, but not dishonest.
It was soon after this Appeal Court decision that the BCA dropped its libel action, thereby allowing my accusation of recklessness to go unchallenged.
However, I remain befuddled by the contrast between the BCA’s recent press release (focussing on dishonesty) and the BCA’s original letter (focussing on evidence), so I asked the BCA why it did not raise the allegation of dishonesty in its initial letter.
Unfortunately, the BCA declined to offer an explanation.
So I asked my solicitor, Robert Dougans (Bryan Cave LLP), about the BCA’s sudden and belated obsession with supposed accusations of dishonesty:
"When the BCA’s letter before action came in, it did not mention dishonesty. The first mention of this came with the Particulars of Claim, after they actually commenced proceedings. My thoughts were that this was a common pleading trick in defamation law - that you plead as serious a meaning as you can. This means that if the Defendant tries to deal with the case quickly and honourably under the Offer of amends procedure, they will be bound by the more serious meaning. In my mind then, this meaning and the fact that the BCA made an early offer to settle with a short deadline, meant that they were playing hardball from the start".
Is it possible that the BCA threw in the interpretation of dishonesty merely as a tactical trick?
Or, is it possible that the BCA was right (albeit late) in arguing that my article contained an accusation of dishonesty?
Do the words “happily promote bogus treatments” imply dishonesty?
It depends on the context, and for me the context clearly points towards an organisation that is naïve and reckless in promoting treatments that I believe are ineffective.
For example, earlier in my original Guardian article I had written about chiropractors who have “quite wacky ideas”, which implies eccentricity or stupidity rather than dishonesty.
I had also written about some chiropractors being “fundamentalists”, and there is never any question about the integrity of a fundamentalist.
And immediately after writing “bogus treatments”, the article went into the question of evidence in detail, thereby explaining that “bogus” means lacking in evidence, and not fraudulent.
I think it is fair to say that the vast majority of people agree with my interpretation of my own article.
For example, when the article was originally written and edited, neither I, nor the Guardian’s Comment editor, nor the sub-editor, nor the in-house lawyer saw anything that might imply dishonesty.
The article was also given to Professor Edzard Ernst for feedback – Edzard and I had co-authored “Trick or Treatment? Alternative Medicine on Trial” – and he also did not see anything that might trigger a libel suit.
Nevertheless, the BCA’s current interpretation of my article was famously backed by one person, namely Justice Eady, who presided over the case and who gave a very important preliminary ruling on meaning.
By forcing an accusation of dishonesty onto my article, Justice Eady was asking me to prove something that I had never intended to write.
His ruling almost caused me to buckle, abandon my defence, and question my sanity.
Fortunately, three of the most senior judges in the land overturned his ruling in the Court of Appeal. This reassures that (on limited data), 75% of judges agree that the article did not contain any allegation of dishonesty.
I apologise again for the fact that this is a relatively dull blogpost about one small aspect of the whole “BCA v Singh” libel case, but I want to show how some of the BCA’s legal correspondence with me has not been consistent with its more recent press releases, and this should be of particular interest to its members.
So far, chiropractors have been hearing the BCA’s version of events (i.e., Simon is nasty because he called us liars), but they have not seen the initial correspondence which paints a different picture (i.e., Simon is a problem because he is questioning our evidence).
Perhaps these inconsistencies merely highlight the need for the BCA to have a better press officer or a solicitor who more clearly expresses the BCA’s views, or maybe there are deeper problems at the heart of the UK’s biggest professional body for chiropractors.
In the wake of the BCA’s failed libel action, there is an opportunity for the members of the BCA to look at their professional body and re-examine how it could act radically and rapidly to improve itself and the chiropractic profession more generally.
This will only be possible if the BCA is able to publicly acknowledge its own failings and the unacceptable behaviour of some of its own members.
For example, since my article was published and the ensuing libel action, the BCA website has quietly withdrawn from its website claims that its members can help children with colic, asthma and ear infections.
I am glad that I have helped the BCA develop its policy on limiting the ambitions of chiropractors, but I would have liked to have seen a press release on this significant policy change.
Also, it strikes me that the BCA could have issued a press release about the fact that 1 in 4 British chiropractors (including many BCA members) are currently being investigated for allegedly making misleading claims in advertisements and on websites.
Indeed, the misleading claims at the centre of many of these investigations relate to treating the very same childhood conditions that I discussed in my original article. Why did the BCA not deal with this problem five years ago, rather than waiting for bloggers and skeptics to highlight the issue by submitting formal complaints?
The European Chiropractors’ Union Convention is now over, but if there is space for an extra pair of speakers at the next big chiropractic conference, then I hope that the BCA will get in touch.
I would be delighted to tell the chiropractic community more about the libel case from my point of view, and I know that Professor Ernst would be very willing to present an overview of the latest evidence for and against spinal manipulation.
If the chiropractic profession wants to move forward then it is crucial that the BCA engages with its critics in a wide-ranging, public and robust dialogue, as opposed to tackling criticism with a libel action.
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