Hard cases make ... what kind of law?
Following up on the idea of a special libel code for scientists with a case that even causes problems for the most reasonable suggestion made in comments (that of a very robust public interest defence, much more robust than Reynolds Qualified Privilege, for scientists and journalists writing about matters of scientific interest).
Exhibit: Dr Mohamed Taranissi. Controversial IVF clinician, who won an action against the BBC over a Panorama documentary that very nearly got his clinic closed down. Is he one of the scientists who need protecting, or one of the people that science needs protecting from? In what does the public interest reside here? And, most importantly, how can any of these questions be decided outside a court of law, with all that implies ...
When we're done with that one, we can move on to the fact that the putative reforms in question would give carte blanche to libel climate change researchers, even worse than there is now.
Like in a democratic soicety, in the scientific communuty the free and public discussion should improve the scientific understanding, and that the claims best reflect reality will prevail. Science does not need to be protected from Dr. Taranissi, nor Dr. Tanarissi needs protection from journalists (but, of course, he welcomed it). What scientists need protecion from are laws that stifle the freedom of expression. And, I would add, for analogous reasons, society too would be improved by repealing the libel laws.
ReplyDeleteI keep on bringing this case up, but Lillie and Anor v Newcastle City Council and Ors [2002] really should give Ben Goldacre more pause.
ReplyDeletehttp://www.bailii.org/ew/cases/EWHC/QB/2002/1600.html
Tl;dr version. Two Newcastle nursery workers were accused of ritually sexually abusing children in their care, and acquitted. Newcastle City Council commissioned a report from a body including "Dr [X] the Head of the Division of Child and Family Studies at the University of [X] , [X], a former child protection officer, [X], a consultant clinical psychologist..." (Names deleted as a politeness). This report basically said 'they dunnit really. They did, the bastards'. Which, of course, after the press picked up on it, wrecked the poor sods' lives completely.
The two nursery workers managed to get an [of course, evil] no-win no-fee arrangement and sued the council and the report team for libel as the only way to clear their name.
Judge Eady [boo, hiss] completely exonerated them, in an impressively long and thorough judgement that tore the report to shreds.
One improvement would be to change the law so that it was a lot more difficult to sue people for stuff published elsewhere. I mean the case with the cardiologist should not be an issue here. He wasn't interviewed here, and the publications is not a British one.
ReplyDeleteAnd like I said before. There should be a very high cost for bringing a frivolous case (this being the judgment of the presiding judge) which is met by both the lawyer and client. This would both reduce the likelihood of such drive-bys, and also provide some incentive for no-win no-fee arrangement for defense.
So for example in the case of the cardiologist, he made some claims that not only were true, but known to be true by the company suing him (given that they were involved in the research, hard for them to claim otherwise). That should basically be something for which you pay a very high price.
It's hard to see what the Taranissi case and the Lillie & Anor one have to do with the libel question.
ReplyDeleteScientific debate is surely entirely separable from questions of individual clinical competence or clinical opinion isn't it?
Richard - so the "libel laws give an innocent person recourse for being smeared as a paedo in a way that caused them genuine harm" point that their defenders roll out at every possible opportunity has happened *once* in real life?
ReplyDeleteWhat was our host saying about hard cases...?
PJ: I don't think it is easily separable, given that "entirely separable" would have to mean "separable without anything having to go to court".
ReplyDeleteJohn: this is hardly the only such case; the British newspapers being what they are, there are cases every month where the libel courts have been the only recourse for people who have been badly treated. It's just an amazingly egregious one.
Ooh, the irony: I've just been libelled by the New Statesman. Especially given that it's owned by my not-much-loved ex-boss, I'm almost tempted to give the circus a go...
ReplyDeleteI think you should definitely ask for a correction, that's really quite an egregious misquote.
ReplyDeleteIn related news, I am very close to full "both your houses" mode on this. While it is true that there has been a lot of shameful behaviour on the part of Assange's defenders, I really don't see that there is a feminist case for saying that someone who hasn't even actually been charged with anything ought to willingly walk into what is definitely a media-driven case even if it isn't a politically motivated prosecution (which he certainly can't be blamed for thinking it might be), or that there is something wrong with people who support his bail application, particularly given that this is a pretty critical time for Assange's foundation and he can't run Wikileaks effectively from inside prison.
Quite.
ReplyDeleteAlso, I'm pretty sure that most celebrity Assange defenders (in the sense of people who appeared in print after the bail hearing to say he wasn't accused of rape) were relying on the PA's frankly dreadful and incomprehensible report of said hearing, which made that take on things reasonable having read it.
The fact that Australian Private Eye, Crikey, was the only organisation that actually made clear that the charge which sounded like a weird joke in the PA reporting (which was reproduced by *everyone*) actually meant rape is a distinct Nick Davies moment. Even then, you'd expect the London papers would send *someone* to the court to write down what was said.
But yes, there's also no reason to deny him bail. Overall, this fucking thing is fucking shameful.
(John B - blogger is being exceptionally lame. Can I restate my opposition to captchas, here? They do no good, and much harm)
"I don't think it is easily separable"
ReplyDeleteSure it is. The Lillie and Anor case has nothing to do with scientific debate at all as far as I can see. Some people wrote a report saying they thought someone did something and those people sue. That isn't a scientific question at all. It may be a clinical opinion but there is a whole separate set of rules and norms for that compared to science.
The Taranissi is not necessarily a harder one and I'm unclear what you want to say, that he should have been able to sue for libel or that he shouldn't? Because a wide drawing of the idea of scientific protection for libel would obviously protect the BBC and HFEA and I bet Goldacre would be very happy with that. Other people, I guess myself included, would wonder where the line between accusing others of fraud and frank scientific debate should be drawn* but I don't think those arguing for libel reform are going to be bothered by niceties, particularly when the accusation against Taranissi that he was offering "unnecessary and unproven" treatments is pretty much demonstrably true and thus a further argument for libel reform.
* Worth noting that if you work in many fields like mental health or evolutionary psychology the accusations of some kind of widespread institutional fraud and conspiracy are relentless so maybe the climate researchers should just man up.
John: this is hardly the only such case; the British newspapers being what they are, there are cases every month where the libel courts have been the only recourse for people who have been badly treated. It's just an amazingly egregious one.
ReplyDeleteI'd have more sympathy for this argument if I didn't know of two people to whom this happened, who were unable to access libel courts on account of being merely of average means.
PJ:
ReplyDeleteWell there has to be something to explain all the crap that Evolutionary Psychologists are able to publish.
particularly when the accusation against Taranissi that he was offering "unnecessary and unproven" treatments is pretty much demonstrably true
ReplyDeleteI certainly don't agree, if "demonstrably true" means "so obviously true that it doesn't need to go to court".
Worth noting that if you work in many fields like mental health or evolutionary psychology the accusations of some kind of widespread institutional fraud and conspiracy are relentless
ReplyDeleteAlso worth noting that in the specific field of mental health, provable and documented instances of institutional fraud and corruption are also relentless (although there are also lots of false accusations, hence the need for courts). Evolutionary psychology ... least said soonest mended.
"I certainly don't agree, if "demonstrably true" means "so obviously true that it doesn't need to go to court"."
ReplyDeleteHe puts in multiple embryos during IVF leading to the accusation of "unnecessary" treatment (usual practice is to limit numbers due to the high risk of multiple pregnancy versus the tiny gain in pregnancy rate) and he gave people a treatment that is widely recognised to be "unproven". I don't think there should be a libel action to determine 'truth' in this case, indeed it is just the sort of case that libel reformers are worried about. It sounds more like your position is that you actively want the libel courts (rather than say the CQC, NICE, the HFEA, or the MHRA) to be deciding these questions. The only difficult thing in this case seems to be unsubstantiated accusations of fixing figures and other fraud.
"Also worth noting that in the specific field of mental health, provable and documented instances of institutional fraud and corruption are also relentless"
Really, I'm not aware that mental health research is particularly prone to fraud and corruption. What makes you say that?
But the HFEA actually did end up deciding that Taranissi was acting within the bounds of acceptable clinical practice. So if they're deciding that question, do they also get to decide what the BBC is allowed to say about him?
ReplyDeleteI thought the case was basically the HFEA using the BBC to have a go at Taranissi then backing down when he got all legal about it.
ReplyDeleteBut my point is that (a) certainly it is the job of the HFEA or similar regulators not the libel courts to determine acceptable clinical practice or questions of medical efficacy. (b) there is not necessarily a contradiction between the charges of "unnecessary and unproven" treatments and acceptable bounds of clinical practice (god knows if we banned doctors from giving unproven treatments we'd see the medical system collapse). (c) it is the insistence that accusations like this can be easily proved or disproved that makes libel courts exactly the wrong place to decide scientific questions which seem to be approached in a much more black and white way than we would expect in other areas (you wouldn't expect, say, Judge Eady to sue because someone said he got a case wrong but somehow fair comment just doesn't seem to have so much traction for scientific cases, probably because of the illusion that science deals with objective truth therefore there should be definitive answers).
Really, I'm not aware that mental health research is particularly prone to fraud and corruption. What makes you say that?
ReplyDeleteThere's the whole issue of the corruption of drug research. Mental health research is at the sharp end of that.
"There's the whole issue of the corruption of drug research. Mental health research is at the sharp end of that."
ReplyDeleteBut that wouldn't single mental health research out from any other area of pharmaceutical research. As an aside, I think the collusion of governments (including our own) in the suppression of pharmaceutical data is the real crime. It wouldn't take much to insist that all data on drug licensing is both provided and made public but the vested interests and laughable idea that we're protecting a domestic industry seem to triumph. And we're getting rid of the cost-effectiveness role of NICE. Brilliant.
But that wouldn't single mental health research out from any other area of pharmaceutical research.
ReplyDeleteExcept that this problem is far far worse in the realm of mental health than anywhere else. And mental health professionals are heavily involved in this.
I can think of other examples, but this is one which just happens to stick out.
Except that this problem is far far worse in the realm of mental health than anywhere else. And mental health professionals are heavily involved in this
ReplyDeleteReally? Can you give an example? Or ideally a few examples.
Even before checking the actual data, you'd expect the problem to be worst in branches of medicine with the least consensus about how to determine outcomes, and where you are most heavily dependent on subjective measures (both on the patient's and the researcher's part). Which puts mental health drugs firmly in the frame.
ReplyDeleteFor a cancer drug, you can see how big the cancer is, how much it's spread, and whether or not the patient is dead. The scope for researchers to manipulate these measures, other than outright falsification of data, is limited.
For an antidepressant, all you can do is report how the patient says they feel, trying to follow the most accurate and up-to-date diagnostic criteria. The scope for researchers to manipulate these measures, stopping short of outright falsification of data, is as significant as in any questionnaire-based study.
" The scope for researchers to manipulate these measures, stopping short of outright falsification of data, is as significant as in any questionnaire-based study."
ReplyDeleteI believe this is the rationale behind double blind randomisation. And the use of subjective outcome measures is hardly unique to psychiatry - pain is one of the most common outcomes in medical research in fields from orthopaedic surgery to rheumatology. And of course I'm not really looking for an a priori explanation.
Really? Can you give an example? Or ideally a few examples.
ReplyDeleteRight now, no, I don't have the time to dig this stuff up. In fact I don't really have time to post this, but procrastination waits for no man.
But if you're really interested, rather than just being defensive about your own discipline, a good place to start is paediatric psychiatry.
Then I suppose on could move on to the continual denial about the lack of efficacy of anti-depressants. And then there's the Freudian stuff. I mean seriously. In this day and age?
Freud isn't psychiatry but psychoanalysis although some useful ideas he came up with are used (like counter-transference).
ReplyDeleteAnti-depressants are effective, not very effective, but they are effective. The paper from Irving Kirsch added nothing to the existing NICE guidelines despite the media furore.
I'm not clear what your problem with child and adolescent psychiatry is so I can't really comment on that.
There have been a number of scandals in the US to do with drugs, the psychiatry profession and kids (adults too, but the kids stuff is worse).
ReplyDeleteMy point is more that psychiatry is perceived as being more corrupt or whatever because it is inherently more controversial, not because it necessarily has a higher rate of "provable and documented instances of institutional fraud and corruption".
ReplyDeleteI was merely seeking any evidence that I'm wrong but no one seems to have it available. Which doesn't mean I'm not wrong but doesn't exactly challenge me to change my views.
I was actually referring to clinical practice in mental health, and mainly thinking of the practice of punitive medication. I think we were a bit at cross purposes there.
ReplyDeleteOh, in that case, yes, I agree there have been some problems in mental health to do with the unfortunate need for an element of compulsion that isn't found in other areas of medicine.
ReplyDeleteBut I was actually thinking of accusations that all psychiatry is a BigPharma conspiracy to lock-up and zombify people who are just 'different'.