Thursday, May 21, 2009

Thanks Carl Irwin... whoever you are...

A comment from someone called Mojo on my last post (Chiro-bullies) pointed me in the direction of this ruling from the Advertising Standards Authority who have upheld a complaint against a chiropractic practice for, amongst other things, implying they could treat colic.

It's worth reading. Go on. Then come back.

The bit I find most interesting is this:
We considered that, whilst some of the studies indicated that further research was worth pursuing, in particular in relation to the chiropractic relief of colic, we had not seen robust clinical evidence to support the claim that chiropractic could treat IBS, colic and learning difficulties.

On these points the ad breached CAP Code clauses 3.1 (Substantiation), 7.1 (Truthfulness) and 50.1 (Health and Beauty Products and Therapies).
Now, I'm not a lawyer but surely this casts a really interesting light on the case currently being brought by the Britsh Chiropractic Association against Simon Singh.

I'm trying to keep my thoughts in order here... so I'm going to walk myself through this in baby steps... apologies if you're already familiar with the case and feel I'm just retreading old ground.

I'll start with a rough timeline of events...
1: The British Chiropractic Association produced a leaflet, Happy Families, in which it claimed chiropractic was an appropriate treatment for colic.

2: Simon Singh wrote about this and described the claim (alongside some others) as bogus. (A term he went on to define in the next paragraph.)

3: The BCA sued Simon Singh for libel contending, it seems, that the phrase "happily promoting bogus treatments" meant "knowingly promoting treatments they knew to be bogus". (I don't think that was SS's meaning at all... something I thought was clear from the way in which he defined his terms within the article.)

4: Justice Eady's ruling at the preliminary hearing means that the focus of the case is not whether or not the claims are true, but whether or not they were dishonestly made. (Oh dear.)

5: In the meantime - I'm not sure when - Carl Irwin & Associates (a chiropractic practice based in Edgware) have placed their advert in a magazine mentioning, amongst other things, colic.

6: Someone has complained about the advert and the ASA have upheld the complaint. Carl Irwin & Associates are not allowed to run the ad as it stands again and have been told (amongst other things) not to mention the treatment of colic in future ads.

This much, I believe we know. But I'll continue by offering a few of my thoughts about how this could affect things...
7: Having a complaint against you upheld by the ASA is not good for your business or its reputation.

8: The BCA is a professional body whose role is to look after the best interests of its members. It is not in the interests of its members to have the ASA rule against them.

9: In light of the ASA ruling, it seems to me that when the BCA produced the Happy Families leaflet they were in effect giving their members bad advice - however sincerely meant it was at the time. Surely the BCA should now make best efforts to correct it. I think the only responsible action would be to tell their members not to make such claims because they cannot be substantiated. This is the only responsible thing to do until there is new evidence that can substantiate such claims. To not do so would be to fail to act in the best interests of their members.

10: Which surely means that, even if they believed the claims made in the leaflet at the time, don't they now have to concede that the information was, dare I say it, bogus?

11: Which in turn makes their lawsuit against Simon Singh look, if nothing else, petty. Rather than suing him for - as they see it - calling them liars, they should be acknowledging that he was right - the claims are not substantiated - and offering him thanks for pointing out the falsehood of their well-intentioned but incorrect belief.

12: Had they seen Singh's point at the time, they could have corrected themselves earlier and offered better advice to their members earlier. By failing to do so and filing their libel action they were failing to act in their members' best interests. The longer their leaflet was out there promoting unsubstantiated claims - and even if the leaflet was withdrawn - the longer it remained uncorrected - the longer they were doing their members' a disservice.


I really don't see how they can fulfil their role of serving their members' best interests and not warn them against advertising their services as an appropriate treatment for colic, having previously suggested they could. To not do so would surely be to let their members - and their patients - down. How that can be squared with suing someone who simply tried to point out the fallacy of the claim is beyond me.

26 comments:

Stephen Curry said...

Nicely put! I think you might have some lawyer genes.

Anonymous said...

not too sure that it will help, considering the definition the judge gave to the work 'bogus', and the legal onus that Singh has to prove.

aaronboardley said...

Very well spotted! It is still simple because of the emphasis of the case RE: use of the word bogus ('oh dear' indeed), but having one practice informed by the ASA that they cannot make these claims does add weight to the 'BCA knew it was misleading to say these things' argument. It's nonsense to the rest of us anyway...it's one thing to protest your innocence but quite another to sue for libel. Well done on publiscising this.

Anonymous said...

The problem with libel is the requirement of the person making the accusations to substantiate his claim, not the agreived party proving the claims were true and accurate.

This seems to be a case without common sense.

However the negative PR must surely add up and make this case counter productive. This is one reason why comedians are rarely sued. It's seen as someone who can't take a joke and over reacts.

This just reminds me of when Coventry City started proceedings against a fanzine editor who described the chairman as a rouge. After much posturing they climbed down but after the damage had been done to the board's reputation.

They even tried to suggest Geoffrey Robinson was 'unimpeachable'.

Dave Gorman said...

@Anonymous: I understand that the ASA ruling has no direct impact on the case: it won't change Judge Eady's ruling on the preliminary hearing or the fact that - pending appeal - the case now hinges on whether or not the charge was honest or otherwise.

Where I think this has an impact is that I think it would be unprofessional for the BCA not to warn its members that the advice previously given to them was incorrect.

In which case, suing someone who pointed out that it was incorrect makes them look utterly petty. If they proceeded on that basis the impression it would give me is that they are more concerned with defending themselves against a perceived challenge to their integrity than they are with the best interests of their members or their members' patients.

Which in itself seems to be a circular argument because surely an organisation of the utmost integrity would be more concerned with getting to the truth than anything else.

Andrew Hickey said...

If you read the ASA thing though, it doesn't say the treatments are 'bogus' - by any definition of the word - it says that some of the treatments haven't been shown to work in studies they consider robust enough, but that there does appear to be some evidence for them working.

I don't see how you can get from that to the treatments being 'bogus'...

Dave Gorman said...

@Andrew Hickey: I believe you can if you read the original article and see that it defines the terms in which the word 'bogus' is used.

Dave Gorman said...

Besides, I'm not arguing that the ASA ruling directly alters the case as it stands.

But I don't see how the BCA can best represent its members and not advise them not to make the claim that chiropractic is an appropriate treatment for colic.

It previously advised them to do so (via the Happy Families leaflet) but the ASA ruling shows that if they do advertise this service a complaint will be upheld.

Knowing that and having no purpose other than to best advise its members it surely has a moral duty to not just withdraw its leaflet but to actively correct the advice. If it fails to do so, more of its members might falsely advertise this service and damage their reputations as a result.

I think it would be embarrassing to be advising your members that such claims fall foul of advertising standards because they are not substantiated and to also sue someone for libel because he described the claims as bogus - and explained that by that, he meant unsubstantiated.

R Feynman said...

You make a very good point Dave. Irwin certainly isn't the only chiro making such bogus claims.

I'm still waiting to hear back from a chiro local to me who makes similar claims about cholic, IBS etc. and who recommends parents get chiro checks the same way they would get dental checks for their child. I've asked them for evidence, and will be blogging about them soon at http://cargo-cult-science.blogspot.com

dwez said...

Dave Gorman: Look, I don't think it should be a sin, just for saying "bogus".
[Everyone gasps]

Justice Eady: You're only making it worse for yourself!

Dave Gorman: Making it worse? How can it be worse? Bogus! Bogus! Bogus!

Justice Eady: I'm warning you! If you say "bogus" one more time (gets hit with rock) RIGHT! Who did that? Come on, who did it?

British Chiropractic Association: She did! She did! (suddenly speaking as men) He! He did! He!

Justice Eady: Was it you?

Chiropractor: Yes.

Justice Eady: Right...

Chiropractor: Well you did say "bogus. "
[Crowd throws rocks at the Chiropractor]

Justice Eady: STOP IT! STOP IT! STOP IT RIGHT NOW! STOP IT! All right, no one is to stone _anyone_ until I blow this whistle. Even... and I want to make this absolutely clear... even if they do say, "bogus. "
[Crowd stones Justice Eady to death]



Will I get sued for this?

David Colquhoun said...

The ASA has a good record for sound, and reasonably fsat, judgements. The problem with the ASA is that all it can do is ask for advertisements to be changed. It has no legal teeth.

It is quite likely that many claims made by quacks don't just breach advertising standards but are actually illegal -see Most alternative medicine is illegal.

It would be open to Trading Standards Officers to prosecute anyone who makes false health claims under the Consumer Protection Regulations (2008).

It seems that one law contradicts another. It seems odd to me that a judge can come to a conclusion based on one part of the law while apparently ignoring another relevantlegislation.

zeno said...

There may be some good news on this front via Jack of Kent's forthcoming blog post. It'll significantly change the way we complain about the chiros - for the better - and may have other ramifications. Watch this space!

Jonathan Hearsey said...

After listening to a clip of Singh at the meeting I am reassured that he appears to view this whole issue as a small battle in a massive war. I'm inclined to agree with him - the sooner all CAM practitioners view criticism as a positive thing and defend it with evidence the better we will all be for it.

I feel that I am ample qualified to state this...(!)

JH

Karl Craig-West said...

A classic case of 'litigation before substantiation'. A very good way of shutting up critics (even if they're right) and oft used in the American court system.

It's a sad day when it becomes an easy option here in the UK.

Thankfully, I hope, it seems to have backfired somewhat for the BCA.

Anonymous said...

Dave, I think you do yourself a bit of a disservice. In libel a decision is made on the "ordinary and natural" meaning of the words. SS said that there was "not a jot of evidence" and that chiropractors claims were "bogus". Also having been asked SS to apologise at the outset he chose not to. He could apologise and seek to clarify his statement but again has not.
In that sense the BCA are perfectly entitled to seek redress through the courts given SS' stance. Also you have chosen to ignore the BCA's Reply to the Defence (as has Jack of Kent). If you read the Reply you will see the BCA has set out a number of studies and published papers in support of chiropractors' claims. To say they have provided no evidence in support is just wrong. You cannot chose to criticise the BCA for picking and choosing points to complain about and yet not see their 'bigger picture' yourself.

Dominic said...

I'm not sure I get the point of your post, Dave. You seem to be holding the BCA up to some standards of professional and ethical conduct that would be appropriate for, say, a medical body.

The BCA are a trade association for people who are selling a service. They are not a medical governing body because chiropractic is not medicine.

If there was any logical basis for the existence of chiropractic or its trade association then it would be appropriate to hold them to this standard. I think your expectations of them are unreasonable - there are many organisation promoting services that have no apparent value: why should this one be different?

I just don't see what you're getting at.

Dave Gorman said...

@Anonymous said "the BCA has set out a number of studies and published papers in support of chiropractors' claims."Me: My understanding is that the evidence in support of chiropractic treatment for, say, colic doesn't meet the standards that would be required for, say, a new drug etc.

If you said, "I know this red pill works because my mate took it and it worked for him" but the red pill hadn't been proved to work by proper randomises, controlled tests, I would say the statement "there isn't a jot of evidence" is still true.

They might have more than "my mate took it and it worked for him"... but I believe there is still no substantiated evidence for chiropractic as a treatment for colic.

Or is this about the definition of the word 'jot'? If the idea is that while the evidence can't be substantiated but that at least a jot of it exists then yes, you might have a point. They have a jot of evidence. It doesn't meet scientific standards, but it's a jot.

In which case, I would suggest that promoting a treatment that involves manipulating a baby's spine when there's but a mere jot of evidence to support it is probably more concerning than anything else.

I can see no positive - for the BCA or anyone else - in bringing the case. It won't help them establish that chiropractic is a treatment for colic etc. because that's not what the case is actually about. And surely that's the case they'd want to prove.

The "evidence" that they've brought forward in their reply to the defence could have been brought forward in public discourse instead of in courts. If they were interested in debating whether or not chiropractic was an appropriate treatment for the things they suggested that would be the way to do it.

But by taking their legal action it is no longer to do with the efficacy of chiropractic and only to do with whether they believed they were telling the truth at the time. That's a completely different issue.

If they win the case (and if it proceeds as it is, they almost certainly will) we will only know that the BCA believed colic and childhood asthma etc could be appropriately treated by chiropractic. The case won't establish whether or not that is true.

I would have thought in the bigger picture - establishing what is true - not just who believes it - would be in the interests of everyone involved. Especially as this is a matter of public health.

Anonymous said...

@Dave Gorman “or is this about the definition of the word ‘jot’?”

You are exactly right. The context is critical. SS said “there was not a jot of evidence” and that their claims were ‘bogus’, he did not say “there is no substantiated evidence” and/or “I do not believe them” hence Mr. Justice Eady found his was a statement of fact and not comment. As you can see the choice of words is very important.

If I wrote “you have never told a funny joke” (statement of fact) you could rightly argue against me and produce evidence to refute my statement. If I wrote “I don’t believe you have ever told a funny joke” (comment) you would find it much more difficult to prove otherwise.

As I understand from the Reply after the article was written the BCA asked SS to apologise or clarify his article to acknowledge that his statement was wrong and that there was some evidence (however you wish to define that) in support but crucially he refused to do so. You yourself have acknowledged that there is some evidence albeit it may not be as conclusive as that required for a new drug.

As the body representing chiropractors it was clearly in their member’s best interests to clarify this issue. As SS had refused to provide the clarification voluntarily the BCA had little alternative but resort to the Courts. The reason being is that if they did not everyone who read the article would believe that there was no evidence to support what they do (and thus they acted dangerously and/or not in the interest of their patients) when clearly there is; this in turn could affect all its members businesses and livelihoods.

This is not a case about proving chiropractic therapies work. Nor should that ever be something for the Courts to decide upon. Only medical evidence and years of studies can show this. In that sense I agree with you entirely.

However at the same time I believe that a trade association should be allowed to stand up for its members rights when a well regarded scientist has refused to acknowledge that evidence exists to support its claims whether he agrees with it or not. Otherwise surely we are not hearing both sides of the argument which are required if everyone is to make an informed decision?

Dave Gorman said...

@Anonymous: we disagree. I believe that some-evidence-that-doesn't-meet-scientific-standards is the same as not-a-jot-of-evidence.

More importantly, in bringing the case the BCA are doing nothing to prove the efficacy of the treatments mentioned in the leaflet. That's simply not what the case is about.

If they are interested in proving that chiropractic is an appropriate treatment for colic, childhood asthma etc. then this case will not - indeed cannot - do that. It's not what the case is about.

If their concern is - as you say - that people reading the article would think there wasn't a jot of evidence then their lawsuit does nothing to alter that.

The lawsuit is about whether or not the BCA believed they were right. Not about whether they were right. That's what makes the use of libel so cowardly. The case will not help establish any fact about chiropractic one way or the other.

Anonymous said...

@Dave Gorman. We clearly do disagree about the meaning of "not a jot of evidence"; I have not read the evidence, and am not a medical practitioner so cannot comment on its veracity. However this would appear academic now the Judge has ruled on this point.

The purpose of a libel claim is vindication. If the BCA obtain a judgment from the Court which states that SS was wrong and there was some evidence to support their claims and/or awards damages reflecting this fact, they can point to to this when people question them about SS' statement. Without it or any clarification from SS they have no come back whatsoever.

I do however strongly disagree with your more general point about libel being a cowardly way of making this point if someone refuses to apologise or clarify.

By your rational libel is a crude tool to use and the burden of proof should be on the Claimant as with most other legal claims?

In these circumstances you would be asking claimants such as McCann's to prove their innocence rather than the newspapers to prove their guilt.

Dave Gorman said...

Anonymous wrote: "If the BCA obtain a judgment from the Court which states that SS was wrong and there was some evidence to support their claims"Me: The point I've been trying to make is that the outcome you describe here isn't even a possibility. The case is not about whether there was some evidence to support their claims. It is not about whether their claims are true. The only thing it is about is whether or not they believed it to be true.

As it stands the BCA could be 100% wrong in their beliefs but still win the case unless Singh could demonstrate that they knew they were wrong and were therefore dishonest.

This view of what the case is about isn't open to interpretation.

Winning the case won't prove them right. It will only prove that their belief is honestly held. Unfortunately, lots of people - no doubt you and me included - believe in all sorts of things that turn out not to be true.

Think Logic said...

Hi Dave,

you will be interested in this:
British Chiropractic Association

Think Logic said...

D'oh!

http://www.guardian.co.uk/commentisfree/2009/may/27/health-nice-chiropractic

Nick Smart said...

Thanks for raising this issue.

Susi said...

This may be of interest:
http://www.mrw.interscience.wiley.com/cochrane/clsysrev/articles/CD004796/frame.html

The Cochrane Library aims to provide systematic reviews into interventions (treatments)to assess the evidence in order to inform clinicians and patients.

Susi said...

Sorry, the link didn't work correctly:
http://www.mrw.interscience.wiley.com/cochrane/clsysrev/
articles/CD004796/frame.html

Also, I should point out that the review is not yet complete, but the fact that it has been identified as a topic for review is very important; clearly there is concern that parents and clinicians should have access to proper evidence to make their mind up in an informed way.