Abstract
Fear of legal action is jeopardising scientific discussion. When the open exchange of ideas is stifled we all suffer, writes
Experiments and data ruin the best of theories: it was once deemed impossible that BSE could be transmitted from cattle to cause prion disease in humans, that the earth could be 4.5 billion years old and that many stomach ulcers are caused by bacteria, not stress. Science is a pursuit of true accounts of the natural world. It advances through troubleshooting, disputing and refuting, in open debate.
Peer-reviewed journals, rights of reply, conference papers and scientific training, faulty and uneven as they may be, are founded on the aspiration to advance ideas, share evidence and minimise the distraction of other interests, egos and dogma.
It is not just in the rarefied atmosphere of specialist research conferences and publications that we expect to see open debate about evidence. Where medical science is concerned, if doctors didn’t voice reservations and medical publishers air disputes, we would have good reason to accuse them of being irresponsible. They would be failing patients. We expect that when medical regulators determine whether a medicine should be licensed, or when Home Office officials review the categorisation of a recreational drug, they have access to the full range of what is known about it – research results, records, expert opinions.
It is only in recent decades that we have come to expect scientific debates to be routinely shared with the wider public. Traditionally, public communication about science tended to be limited to ‘diffusing the knowledge … of useful mechanical inventions and improvements’, as the founders of the Royal Institution put it in 1799, and it has taken a concerted effort to persuade scientists and research organisations of the need to communicate evidence. Multiple vaccines, use of genetic modification, stem cell treatments, the consequences of climate change, and fears about radiation were just some of the issues that cried out for more public discussion of evidence. And now that is what we expect. Since the BSE crisis there has also been greater recognition in government of the need for independent scientific advice, and new rules require this to be open to public scrutiny.
Sense About Science, the organisation for which I work, has spent much of the past decade urging scientists to address pseudo-science and misrepresentation of evidence publicly, instead of grumbling in private, and urging the public to ask for evidence. Others have successfully pushed for more transparency, particularly around the use of science in policy-making, and scientific journals have sought more systematic declarations of competing interests.
Here the good part of the story ends. While scientific evidence is being more clearly expressed and shared, we are also becoming increasingly aware of the forces that suppress open debates about it. The expansion of science communication has been met by efforts to close down inconvenient evidence – through commercial pressure, intimidation, vandalism of research, sackings and threats of court proceedings. The value of scientific evidence in policy-making may now be recognised, but it seems to have brought with it increased political attempts to suborn or silence that evidence.
Professor David Nutt, the former chair of the UK government’s Advisory Council on the Misuse of Drugs (ACMD), learned this to his cost in the autumn of 2009, when his views that LSD, ecstasy and cannabis were less harmful than alcohol and tobacco were published, causing a storm in the British media. He was sacked by the then home secretary, Alan Johnson. Many scientists involved in drug research saw his dismissal as sadly consistent with the government’s continued attempts to get the scientific view on drug harms to match its press releases rather than the data.
Yet Nutt might consider himself lucky. In the months leading up to April 2009, a region of central Italy had seen an increase in seismic activity. In the face of several false alarms, seismologists advising the Italian government through its Major Hazards Committee met to review the evidence. They concluded that there was no reliable predictor of earthquakes and, despite the small-magnitude events in the region, the probability of a major quake remained low. Then, on 6 April, the city of L’Aquila, and several towns nearby, were struck by a devastating quake that killed more than 300 people and destroyed 20,000 buildings. No one has disputed the seismologists’ conclusion that it was impossible to predict such an event, but the Italian government’s response was to put them on trial for manslaughter.
In the same year, a scientist in Peru, who is an advocate of GM, was arrested for defamation following his public criticism of a report by a fellow Peruvian scientist on the genetic modification of crops. It was also in 2009 that civil libel actions and threats against scientists and medics in the English courts began to emerge.
The government’s response was to put them on trial
Many people will be aware of the case of the science writer Simon Singh, who was sued by the British Chiropractic Association for his critical comments in the Guardian about the lack of evidence for claims by chiropractors that they could treat infant conditions such as ear infections. Many will also know that his appeals against the meaning given to his words by the judge were eventually successful, making him one of relatively few defendants to win a libel case. It cost Singh £200,000 and 18 anxious months just to reach that ‘early’ resolution. Singh will not recover all of these costs and he will never recover the hundreds of hours spent preparing legal documents and correspondence on every aspect of his short article. A prolific popular science author, he wrote no further books in that time.
Eighteen months is quite quick for a libel action, though. A case brought against the British cardiologist, Peter Wilmshurst, by the now defunct US implant manufacturer NMT Medical, continued for almost four years and only came to an end very recently because the company collapsed. Dr Wilmshurst was sued for making comments at an American cardiology conference, to a Canadian writer, about a clinical trial of a heart device in which he had been a principal investigator. He had refused to put his name to a paper publishing the results in a clinical journal because he felt that it overstated the benefits and understated the risks of the procedure. The US company sued him in England. After he had refused other inducements to agree to the company’s interpretation, and talked publicly about his case, they sued him again. He and his lawyers incurred around £300,000 in costs and yet never got any further than dealing with the preliminary legal exchanges. No statements were served, no experts reported, and it was only at the start of 2011 that NMT was forced to pay money into court as security for costs – money which, now the company is defunct, will not meet the bill so far.
Protesters demand the reinstatement of former government drugs advisor Professor David Nutt, Downing Street, London, 7 November 2009
Credit: Dominic Lipinski/PA Wire
It might be tempting to think that courts, used to handling evidence, would throw light on disputes about science. They are liable to have the opposite effect. The defensiveness that they induce, with selective presentation of evidence to fit the case being made, stands in complete opposition to the open presentation of evidence and willingness to revise ideas that are essential to advance scientific debate. Had Dr Wilmshurst’s case eventually come to court, we may have learned more about the risks and benefits of NMT’s device or we may have learned nothing, and it is highly unlikely that a cardiologist anywhere would have been following the legal debate to ascertain the safety of the device for patients. It was equally unlikely that climate science would have been advanced by the trial threatened by the US Chamber of Commerce two years ago, where it envisaged a judge presiding over witnesses to pronounce on whether humans are warming the planet in what it billed as ‘the Scopes monkey trial of the 21st century’ (John Scopes was a teacher in the 1920s at the centre of a case which threw light only on the law regarding teaching evolution in American schools and no light at all on the science of evolution; see pp. 87–98).
More importantly, the damage to scientific debate from intimidation and court actions is not confined to the scientists being sued, bad as that is. The very threat of the libel laws in England means robust criticism brings a risk of ruin that is chilling scientific and medical debates more widely. The last government’s plans to roll out a new lie detector for pension and benefit claimants were developed in the absence of a critical review by language experts, because a libel threat from the lie detector’s manufacturer had caused the journal to withdraw its paper. The consumer magazine Which? struggles against legal threats, sometimes unsuccessfully, in order to discuss the safety of products. Science journals confess that their news and comment writers do not investigate many stories of fraud or misconduct because they would risk being bankrupted by a libel action before they ever got to defend themselves in court.
Aftermath of the earthquake in L’Aqila, Italy, which struck on 6 April 2009
Credit: Action Press/Rex Features
The consequence is that we are now reading or hearing only the sanitised, ‘legalled’ part of many stories, and not hearing about some issues at all. That is particularly alarming when it comes to subjects such as a clinic offering pseudo-scientific advice about nutrient deficiencies to parents of autistic children, which no one will report because the clinic’s owner is a notorious litigant, or the unwillingness of researchers to speak out when they think that funders misrepresent data from a clinical trial, since Wilmshurst was sued for doing so. As Fiona Godlee, the editor-in-chief of the British Medical Journal, wrote in 2009: ‘Weak science sheltered from criticism by officious laws means bad medicine.’
Dr Wilmshurst felt he didn’t have a choice when faced with libel action. As a doctor registered with the General Medical Council, he is obliged to act in the best interests of patients rather than in fear of his own financial security. A radiology professor faced the same obligation in a case brought (and dropped) by the US company GE Healthcare, when he criticised the contrast agent used in medical scans. The medical writer Ben Goldacre fought an action by a German vitamin salesman because the alternative would have been to fall silent about the man’s promotion of vitamins as an HIV medication in Africa.
We heard about these cases because the scientists involved fought back. Many can’t and don’t. Others look at what happened to Nutt, the Italian seismologists or Goldacre and decide to take no chances in the public domain. If Simon Singh’s case is what ‘winning’ amounts to, it is not surprising that the threat of such a libel action chills others into silence and self-censorship. What will be the impact on the next person who contemplates voicing concerns about a medical device or contradicts evidence that underpins government policy? What will happen the next time the Italian government tries to convene a disaster management review? And we already know from the resignations from the ACMD after Nutt’s sacking that securing independent scientific advice on drug policy has become more difficult.
While we press for greater communication of evidence in scientific discussions, we are facing a situation where the obligation to speak up is frequently overwhelmed by attempts to suppress that evidence. Perhaps these attempts are the consequence of the more open communication of science and the disruption that can cause to settled thinking and authority. Whatever the reason, as debates disappear behind the doors of Whitehall, the lab and the court room, we need to defend open scientific discussion.
Some have suggested that perhaps science is a special case for free speech. If it is, it is not by virtue of being a genteel practice of exchanging polite, balanced views in which all the evidence has been accumulated before a public pronouncement is made. It might be reasonably well disciplined and organised, but scientific debate is just as likely to be rude, unfair and one-sided. Every Friday at all major hospitals, Grand Rounds take place, in which consultants pick over and criticise the treatment of a case, and in which the reputations of those concerned are firmly secondary to the aim of improving knowledge and patient care. In most scientific journals the correspondence pages carry critical disputes about the conclusions of recent research papers, mortifying to some researchers but necessary to advancing knowledge in the field.
Science is not an esoteric category of speech. Rather, what science does is most clearly articulate the collaborative open exchange that is needed in the pursuit of a true picture of our world. It brings into sharp relief the dangers of suppression and it reminds us, as the English philosopher Thomas Hobbes wrote in 1651, at the birth of scientific inquiry, that: ‘True and False are attributes of speech, not of things. And where speech is not, there is neither Truth nor Falsehood.’ □