NEWS
UK libel laws risk patient safety
08 Dec 2010
BY INDEX ON CENSORSHIP

Dr Ben Goldacre argues scientists must be able to critique drugs and medical devices without the risk of losing their home in an expensive and time-consuming libel case

It’s common for lawyers to be dismissive of any special pleading for science in the libel reform movement: if you want to step out and make criticisms, they explain, you should be aware of their implications, and ready to defend them. It must be easy to assume, if you’re a lawyer, that everyone understands the rules of the game. Perhaps it all feels easier when you get a large cash sum for every six minutes you spend playing.

But in science, the assumptions and traditions are different, and with good reason. In science and medicine, criticising each others’ ideas and practices isn’t an aberration, or a special occasion: it’s exactly what you are supposed to do, all of the time, and with very good reason.

Medicine is almost unique among all human activities in that it’s possible to do enormous harm even when you set out with the absolute best of intentions, and there are many examples of this, even in mainstream healthcare. On paper, for example, it made perfect sense to give antiarrhythmics preventively, to everyone who’d had a heart attack, rather than just the people who had abnormal hearth rhythms: within a couple of years, to everyone’s surprise, it turned out that this practice had killed more Americans than died in the whole of the Vietnam war.

In medicine, when you make a mistake about whether something works or not, it’s possible to cause death and suffering on a genuinely biblical scale.

That’s why we have systems to try and stop us making such mistakes, and at the heart of all these lies mutual criticism: criticising each others ideas and practices. This isn’t something that’s marginal, or tolerated by the profession. It’s something that is welcomed and actively encouraged. More than that, it’s institutionalised.

Every week, in every academic institution in the country, you’ll find a “journal club”, where research past and present is laid bare and torn apart by eminent professors and first year students alongside each other. Almost every hospital in the world has a “grand round”, where a consultant and their medical team present a difficult case, to the entire hospital, and everyone debates what went wrong and why. The questions after a research presentation at an academic conference are often a blood bath, but this isn’t taken personally, because it’s normal, like some strange kind of consensual intellectual S&M: we do it because we know it’s good for us, and nobody threatens legal action.

In this BBC World Service documentary — made with the BBC Radio Science Unit, rather than Current Affairs – we explain why science is different, and why it is dangerous to have laws that restrict the everyday scrutiny of each other’s ideas and practices that scientists and doctors necessarily engage in.

Under the current libel laws, reading about cases like Peter Wilmshurst’s, Henrik Thomsen’s, Simon Singh’s and my own, scientists and doctors are increasingly aware that every utterance could have bizarre and unpredictable legal consequences; that even if you’re proved right, a case may still take years of working every evening and weekend, unpaid, and hundreds of thousands of pounds you cannot spare.

In science and medicine, mutual criticism has a massive societal benefit, because we all benefit from the way it makes medicine safer, but the burden of libel is shouldered entirely by individuals who are unprepared and often unprotected. You cannot reasonably expect scientists to be experts in the details of libel law as well as their own field, and you cannot reasonably expect people to constantly and unpredictably put their families’ homes at stake, just for doing the job we expect of them.

In my view, as a society, we have to choose. At the moment, we expect scientists and doctors to speak out when they see problems with other people’s ideas and practices, and unthinkingly, not even in the melodramatic sense of a whistleblower: it’s simply the job.

But with the law in its current state, doctors and scientists might be wiser simply to stop giving any view about any drug or health-related product that is marketed for commercial purposes, in any forum, and make it clear that from now on, decisions and utterances about efficacy should be made solely by the manufacturers, or only on very rare occasions, under tightly controlled circumstances, and after extensive legal review.

If that’s what we want, then we should leave the law unchanged, and communicate this fact clearly to all doctors and scientists: because we cannot expect them all to be expert defamation lawyers, and we cannot expect them to shoulder the burden of a law that is expensive, long-winded, unclear, unpredictable, and could destroy you in a moment.

Ben Goldacre’s documentary Science and Libel airs this morning at 10.32 on BBC World Service and is repeated later in the week

Goldacre is a doctor and scienctist, visit his website, Bad Science where he unpicking dodgy scientific claims made by scaremongering journalists, dodgy government reports, evil pharmaceutical corporations, PR companies and quacks.

7 responses to “UK libel laws risk patient safety”

  1. Esso Blue says:

    There comes a time when medicine is clearly not doing the what it says on the tin, but instead of banning certain the drugs it appears it is being milked at the taxpayers expense and the death they cause mean nothing. I would also say that if you want to trial drugs then do it (medicine) on yourself.

  2. yourhavinalaugh says:

    Sorry, meant wouldn’t.

  3. yourhavinalaugh says:

    Sorry, I meant wouldn’t.

  4. yourhavinalaugh says:

    In years to come it would surprise me if these institutions become the new death chambers where they cart people off to finish you off. The hierarchal structure appears to be a negative place now.

  5. Maybe the Libel Reform Campaign needs to think about the reasons why it is not attracting support from this quarter.

    Disability groups are like many other organisations. Libel is not a top priority for the charities themselves and the membership are for the most parts blithely unaware of libel even though many of them use the internet. That is the same for many other communities in society. Such sectors need to be targeted in a different kind of way to the mainstream audience of the Libel Reform Campaign. They do not get so excited by Wikileaks. Relate more to their needs.

    There are some supporters of free speech who totally reject the idea of any curbs on hate speak of any nature. Most of the people to whom I have spoken in the Libel Reform Campaign have shown little understanding of my concerns as a person with a disability with regard to libel. They do not appreciate our concerns over disablist abuse. I feel I am being dismissed as a weak and thin-skinned woman by people in the campaign who know nothing about life with a disability.I suspect the reception would be different if I were talking about racist abuse.

    Yesterday away from the Libel Reform Campaign I had a good conversation with a senior psychiatrist at the Royal College of Psychiatrists on reputation and what it means for people with mental health difficulties. We are pacing the ground to see if we can hammer out some concept which would be of use in a libel reform debate. Our notion is inclusive. We want a law which is accessible to everyone in society no matter their state of health.

    I have tried but so far I have not been able to engage anybody in the Libel Reform Campaign in a conversation about how you create a law which works for people with disabilities along with everyone else. Could there be an element of snobbery here? The Libel Reform Campaign seems to like posh lawyers, name journalists and celebrity scientists. Do you jib at contact with someone with a disability?

    I appreciate that individuals may feel reticence about discussing such a delicate subject such as mental health but a campaign group of this nature really ought to be willing to engage with disability activists. I am sympathetic to the campaign’s overall aims but I feel repelled by these people who parrot “free speech” without realising that we face a huge of discrimination. There are real legal issues which need to be thrashed if reform is to work for us. We have our own networks so we can use other lobbying tactics but is that the best use of our respective resources? Can we not reach some form of accommodation?

  6. Rhiannon Morgan says:

    Beatrice,

    The list of supporters is of those organisations who have agreed to support the campaign – not a list of special “invitees”. My assumption is that I can only assume disability charities have not yet got around to signing up to support the campaign. If you care concerned about lack of representation, why not get the charity/charities you support to sign up?

  7. This is a one-way appeal. Dr Goldacre and his scientific colleagues want support so they can continue their research. He makes a good case but I do not see much sign that he or any of the other leading lights are prepared to consider the interests of other communities.

    My background is in disablity. We are the people after all who will be chiefly affected by medical research and as Dr Goldacre well knows service user involvement is commonplace in psychiatry. However the Libel Reform Campaign does not work that way.

    The list of supporters page on the Libel Reform Campaign web site lists no disability charities as far as I can see. Some disabilities are highly stigmatised. Those people affected have huge reputational issues but does anyone in the Libel Reform Campaign want to know?

    It is as though free speech only matters to scientists, journalists and lawyers. Get real. I mention disability because that is my background but there are heaps of other communities that are being excluded from this rather elitist campaign.