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The Singh Ruling – Why Does It Matter?

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The legal ruling yesterday to allow the appeal of Dr. Simon Singh against the libel action brought against him by the British Chiropractic Association is of course excellent news for us all. It allows for the journalists, academics, science writers, and everyone else who is critical of unevidenced medical claims to argue the public interest defence, and it stops organisations and businesses from censoring comment by threatening libel action in the UK.

But there is a wider significance as well. For the last thirty years, there has been a growing industry of alternative therapies in which marketers have been able to claim all manner of therapeutic benefits without needing to show evidence of efficacy. Instead of providing evidence prior to the claim, their position has been that others needed to show that their claims were false.

Reiki practitioners claim to harness undetectable healing energy, acupunturists claim to be able to detect meridians, chiropractors claim to be able to detect subluxations, and so it goes on. Unevidenced, unjustified claims presented as if they were fact, used to promote and market alternative medical therapies, leave the consumer unsure as to whether what is offered is something real, or just some fanciful marketing hype.

Instead of having to demonstrate the truth of their claims, as is the case with most consumer legislation covering saleable products, the alternative medicine industry has played the doubt card – if you can't prove it doesn't happen, it must be acceptable. Translated into the debate about evidence, that means a constant claim that more research is necessary in order to find the evidence that supports these claims. And in the meantime, the claims despite lack of credible evidence, stand.

Science doesn't work like that, and particularly medical science doesn't work like that. We don't start selling a drug treatment based on the belief that it works, and then argue that we need to finance research to find out if there is any evidence. Instead we insist that there has to be reliable information that it has the desired effect, document any side effects and contraindications, conduct safety trials and apply suitable standards to its manufacture. Only then do we feel able to say it is appropriate for use in medical treatment.

Such a process is of course open to abuse, and even when it works, there are unexpected side-effects which have to be dealt with. Sometimes the testing is inadequate. Sometimes the claims are exaggerated. Sometimes drugs have to be withdrawn. Sometimes drugs are prescribed for conditions not listed in the original licence. But there is at least the requirement of prior evidence of efficacy shown in controlled, randomised, double-blind trials.

The claims of alternative medicine typically argue the other way. The assumption is that "it might work" and that therefore, it should be allowed. The burden of proof is assumed to be on those who argue that it doesn't work. Homeopathy is a classic case, in which after more than a century, there is no credible evidence that it has any effect and every scientific reason why it cannot work. Nevertheless, the homeopaths simply say that we haven't yet found the evidence.

In the meantime, people, often desperate people, are offered and charged for treatments for which there is no credible evidence of efficacy. The marketing hype is given free rein and customers have effectively no consumer rights. If a Reiki practitioner says they have "downloaded healing energy" into you, unless you can prove they haven't, you can't do anything. And of course since the "healing energy" is undetectable, you can't do that.

But we should all understand that it is never possible to prove a negative. Whilst we can say that there is no known evidence that homeopathy works, no-one can claim that there will never be evidence. And it's the assumption of that negative burden of proof that was implicit in the libel case against Dr. Singh.

In UK libel law, you are assumed to have libelled unless you can prove that what you said wasn't libellous. You are guilty until you prove yourself innocent. The equivalent for the alt-med industry in terms of evidence is similar: they assume their claims are valid unless or until you can prove they are false.

But it doesn't even stop there. Because even if there are extensive trials demonstrating no efficacy, the alt-med industry simply calls for more research.

Dr. Singh argued that there was not one jot of evidence to support the use of chiropractic in the treatment of childhood colic. In the legal decision on 1 April, it was made clear that the opinion expressed, the judgement about the available credible evidence, was not a statement of fact since what constitutes evidence is a matter of scientific opinion.

An anecdotal account from someone who claims to be better after someone has waved their hands over them would not be acceptable as scientific evidence, though it may convince a believer in healing touch. It's a matter of scientific judgement about what constitutes evidence. And the scientific judgement has to meet stringent requirements which is why it is so valuable.

For chiropractic, just as with all alternative therapies, instead of the burden of proof being on the critic, having to prove that there never will be any evidence, the actual burden of proof must be with the sales department to justify the claims made for their product. If they claim efficacy in the treatment of some condition, the burden of proof is with them, to show that they have credible evidence.

The judgement in the libel case now explicitly says that the criteria for assessing evidence is a matter for scientific practice and not the interpretation of words by a judge. This is a landmark ruling because it now makes it clear that alternative therapies, wacky treatments, and unsubstantiated medical claims can be criticised against the standards of scientific evidence. People promoting dodgy therapies and treatments can and will be challenged for making unfounded claims, and they can no longer hide behind the cloak of a censorial libel law.

Of course Dr. Singh still has to win his libel case and the BCA are currently "considering their position". If they have any sense at all, they'll cut their losses, but given their aggressive attack on Dr. Singh over an article that they could have replied to in the first place, they may still decide to appeal the ruling and pursue the case.

Whatever they decide, this is excellent news for the growing quacklash and all those peddlars of unfounded alternative therapies can expect a much greater focus on their claims and especially what they offer as credible evidence. It is no bad thing that they too now have to "consider their position".

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About Bob Lloyd

  • http://drdreadful.blogspot.com Dr Dreadful

    The right judgment and good news for freedom of speech in the UK. Hopefully the BCA, like any bully, will now back down.

  • STM

    My understanding is that truth is an absolute defence under libel and defamation laws in the UK, as is “public interest”.

    If what Dr Singh says is a) true, and b) thought to have been spoken in the public interest, then a group like the BCA has no leg to stand on.

    The problem is, you have to go through the courts and spend a fortune to establish that, which is why people so often resort to threats of libel and defamation action as a bullying tactic to keep people quiet.

    It doesn’t silence Fleet St, though, and it doesn’t fool the judiciary. More people who are bullied in this fashion should stand up for their rights.

  • http://drdreadful.blogspot.com Dr Dreadful

    The problem has been that the UK libel laws are structured such that the burden of proof, which should be on the claimer, is instead placed on the sceptic.

    The result has been that we get ridiculous situations like a Saudi businessman suing an American journalist in the English courts – purely because the book she’d written might potentially be read in Britain.

    Luckily, precedent carries a lot of weight in English law, so this decision should help to put a stop to a lot of this sort of malicious litigation.

  • http://www.leavingthelandofwoo.com Bob Lloyd

    Simon Singh still has to win the libel case itself but until now, the scientific evidence wouldn’t have had any impact since it all rested on the interpretation of comment versus statement of fact.

    It’s the requirement to prove a negative which has always been the stumbling block. Claiming there’s no credible evidence in support of chiropractic in the treatment of childhood colic is a scientific opinion based on understanding the nature of evidence, but the libel laws were concerned with the meaning of the word “bogus”.

    Since opinions about what constitutes evidence vary enormously, claiming there is “not a jot of evidence” can never be proved, so anyone asserting it can end up in the libel courts. This ruling at least puts the scientific evidence back into the argument.

    On the question of precedent, I doubt that this ruling constitutes that kind of precendent. I think the ruling applies to the Singh case. It might be cited in other cases but it doesn’t have any real force. That’s why the libel laws have to be amended to provide for a “public interest” defence.