Until about a fortnight ago, I assumed that Chiropractors and Osteopaths were medical doctors who dealt with spinal problems and back pain… you know, branches of orthopaedics in the same sense that orthodontists are a sort of super-dentist. In the past, I’d heard friends say they had an appointment with ‘the chiropractor’ and I assumed they were getting treatment for a slipped disc or a massage for muscular pain. I had absolutely no idea that chiropractice was a branch of “alternative treatment” like homeopathy and aromatherapy. I honestly thought it was a branch of conventional medicine, and that a chiropractioner was a specialist with a medical degree.
Thanks to a recent lawsuit making headlines, I – and I suspect a great many others – have learned the truth. I had no idea that claims were made to be able to cure ailments not related to the spine or back. Did you?
Now, you may think that this is just an uninteresting example of legal fisticuffs, but the implications of the case reach far wider than disputed claims over science and health. Free speech, international crime and terrorism, the UK’s legal reputation abroad, and the so-called chilling effect on public discourse are all equally important issues. Ultimately, free scientific inquiry and frank and honest peer review will be sideshows to these broader issues.
To get to the bottom of the issue, Nick Cohen’s article over at CiF is a must-read.
This week, Simon Singh, one of Britain’s best science writers, will decide whether to carry on playing a devilish version of Who Wants to be a Millionaire? He has already lost £100,000 defending his right to speak frankly. He could walk away. No one would think the worse of him if he did. Or he could go on and risk losing the full million by ensnaring himself in the rapacious world of an English judiciary that seems ever eager to bow to the demands of Saudi oil billionaires, Russian oligarchs and the friends of Saddam Hussein to censor critics and punish them with staggering damages and legal fees.
Nick Cohen covers the central issues better than I can, so I don’t want to go over the same ground. Instead, I’d like to explore one aspect that that interests me from a philosophically inquisitive point of view. Nevertheless, it is central to the way the case is being prosecuted. Nick notes:
In 2008, the British Chiropractic Association (BCA) announced that its members could help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying. Writing in the Guardian, Singh said the claim was “bogus”. Chiropractic treatments may help relieve back pain, but Professor Ernst had examined 70 trials and found no evidence that they could relieve other conditions … Because Singh used the word “bogus”, the judge said he had to prove that chiropractors knew they were worthless but “dishonestly presented them to a trusting and, in some respects perhaps, vulnerable public”.
If I have understood it correctly, the gist of the supposed libel is the suggestion allegedly implicit in the word “bogus” of dishonesty: that a chiropractor knows that the treatment doesn’t work, but promotes it nonetheless. In other words, is acting in bad faith, carrying out a deception or, at worst, perpetrating a fraud.
I think keeping to philosophical areas is probably prudent, given the legal minefield surrounding the case. So let’s steer clear of specifics. In fact, let’s not talk about this case at all. Let’s just muse philosophically on some of the interesting issues using completely fictitious cases and scenarios with only the vaguest relevance to the case of Dr Singh vs the Chiropractors.
A hypothetical case: Imagine you’re out with a friend who collapses and appears in some distress. You sit him up and attempt to make him comfortable. But sadly he drowns in his own vomit… because the correct thing to have done – please leap in here if you are a trained paramedic and I have this wrong – would have been to lie him on his side with his head turned to the ground. Not being medically trained though, people would accept that you acted in good faith. You did your best. You did what you thought was right, even though it was wrong.
Imagine another scenario where none of this happened, but instead you had a theory that people feel faint because their windpipes aren’t straight. The more you think about this, the more convinced you are, so you promote this treatment on TV in all cases where people are unsteady or have collapsed, selling, perhaps, a medical T-square to assess conditions of tracheoperpendicularaberrationism. Predictably, after following your advice, there is a fatality.
In this case, people will be far less forgiving. Why? What’s the difference. In both cases you acted in good faith based on a sincere belief.
Well, in the second case, obviously, you had a duty to test your theories before peddling them to the public. Not having done so, your action was reckless and wanton. Indeed, you did not know it was an ineffective and potentially dangerous treatment, but – and this is the key point – you made no effort to find out. You failed in an obligation implicit in the public promotion of a product or service. It may have been (in the broadest sense) honest, but it was negligent.
A similar example might be this: you fear receiving a piece of information so you deliberately do not open your mail. But avoiding unpleasant information is not the same as not being informed. In fact from the standpoint of the moral philosopher, this negligence is a form of dishonesty. Any deliberate omission – a deliberate attempt to avoid the truth – is a passive dishonesty. It’s like Nelson putting the telescope to his blind eye and honestly saying he saw nothing. But would any worthy judge accept that he was being honest?
In this day and age, we have blind testing, peer reviews, scientific method, and a good understanding of proven physiological cause and effect that the argument from “honest ignorance” can’t stand up.
I would hope that Dr Singh’s lawyers are able to present to the court a line of defence based on this hypothetical and purely philosophical exercise. Have the Chiropractors made every effort to aggressively test their claims so that if – as Dr Singh alleges – their treatments actually don’t work, they can honestly say they left no stone unturned. To the best of their knowledge – as far as it was humanly possible to know – they not only believed, but had very reasonable ground to believe, that the treatments they prescribed were effective and safe.
The prosecution might argue that whether a treatment works or not is irrelevant (because the issue is the ‘good faith’ in which it was promoted). But on the on the contrary, it is relevant because anyone promoting public health practices has a duty to test their claims and thus should not be able to claim lack of knowledge as proof of good faith. It is only possible to administer an objectively ‘bogus’ treatment in good faith if you had no duty – and no means – to test its effectiveness (i.e. you couldn’t have known better at the time). People selling heath services to the public have both means and duty.
Well, that’s the interesting part. Now the worrying bit. If sincerity of belief or a deeply felt confidence in the efficacy of a practice or treatment is the legal yardstick with which one can beat off one’s critics, who will sue next? Faith-healers? Those outfits that go around trying to ‘cure‘ gays and lesbians? Exorcists who drive our evil spirits? Who else will run around suing?
The road to hell is paved with good intentions, the saying goes. Has Judge Eady just installed a bus lane?