Zeno's Blog

It’s been a while since I blogged about the progress of my complaints to the GCC and it’s time for an update.

In fact, it’s been a full 12 months — to the day — since I submitted my complaints. How time flies.

I’m sure no one is interested in all the minutiae of this, so here’s a brief summary:

• Hundreds of emails and letters have been received and sent;
• I’ve had two meetings with GCC’s two firms of lawyers;
• I’ve received 11 lever arch files of paper copies of chiropractors’ websites;
• I’ve been sent 290 sets of chiropractors’ observations on my complaints, sometimes at the rate of 40 a day: the postie complained.

Meantime, the GCC:

• have had to get their rules changed by the Privy Council to allow them to survive financially;
• have had to employ six new staff (admins and paralegals) to cope with the workload;
• have commissioned a review into the evidence for chiropractic — the Bronfort report;
• have held lots of meetings with the Department of Health, a QC and their lawyers.

But they have barely started to even consider the first of my complaints.

So, what’s taken all this time, what are the 290 envelopes all about and when will it all be over and done with?

I’ll try to answer these questions. Please bear with me — it’s quite long, but I hope it makes interesting reading. There are many lessons to be learned about how statutory complaint processes actually work (or not).

The complaints process

The boring bit, but necessary to understand where we are and what’s still to come.

When a complaint is received, the GCC have a legal obligation to consider it fully. But after they have made sure they have the details of the complaint they pass it to the Investigating Committee (IC) who decide whether there is a case to answer. The Chiropractors Act 1994 at 20.—(9) states:

(b) take such steps as are reasonably practicable to obtain as much information as possible about the case; and

(c) consider, in the light of the information which it has been able to obtain and any observations duly made to it by the registered chiropractor concerned, whether in its opinion there is a case to answer

I’ll come to (b) later, but the IC does not make any judgement as to guilt or innocence, but they just look at the evidence. If they decide there is insufficient evidence of a breach to make a case against the chiropractor, they declare that there is no case to answer and the complaint is dismissed.

On the other hand, if they think that they have sufficient evidence with which to proceed, the complaint will be passed to the Professional Conduct Committee (PCC).

It is the PCC that will decide whether any of the chiropractors have broken the Code of Practice and are therefore guilty of ‘unacceptable professional conduct’. They then decide on the appropriate punishment.

Since I provided copies of the websites for the vast majority of the chiropractors I complained about, it is clear that they certainly do have sufficient evidence to proceed to the PCC.

Also, I have been working with the GCC, providing them with missed pages, either from cached or current websites. Yes, it may come as a surprise to some to find out that the GCC have been helping me make sure I hadn’t missed any bogus conditions or missed off a chiropractor at a clinic. Communication with the GCC has been polite and professional although sometimes curt and their lawyers have been very professional and courteous.

Lawyers

I met with the GCC’s lawyers twice last September. The first meeting was just to let the dog see the rabbit so to speak and to make sure I understood the complaints process and the role of the lawyers. I was already fairly familiar with the process and had a good idea of what the stages were and what to expect.

The second meeting was to help the lawyers understand the website evidence I had supplied. It had already been clear that the GCC didn’t really know how to deal with the 372.5 MB of data I had sent them in June (using the excellent DropSend service) — this was copies of the websites I had been able to capture. Some of them very simple and complete, but others were a bit more complicated and some incomplete.

I took the lawyers through a few typical websites and showed them how to access them. For some that we were unable to find the claims I had gathered for my complaint document, we looked at the chiropractor’s current website and I showed them how to use Google’s Site Search to help find claims. They were also interested in claims on pages that were not — or were no longer — linked to from the website, but which could be returned by a search engine. I also showed them some examples of where conditions were hidden in meta tags, where search engines might find them and return that page, even though the condition wasn’t shown in the visible page.

We all know that many pages were taken down in The Big Panic, but teh Internets never forget. The superb Wayback Machine at archive.org is an amazing resource, holding cached versions of 150 billion webpages, indexed by site and date. The lawyers were very intereested in this and we recovered quite a few pages from there to add to the growing bundle.

Having armed them with a few essential tools, I left them to go through and print out all pages from all the websites.

Why print them all out? Because their process couldn’t cope with electronic data. Complaints sent to the complainee had to be on paper and posted.

Anyway, once they had gathered the pages from a large number (but not all) of the websites, they sent paper copies to me. By express courier. Next day delivery by normal courier — or even Parcelforce — presumably wasn’t good enough. I suppose that may be the way many City lawyers send documents around London.

But all eleven full lever arch files were duly delivered.

I had then to go through each page to verify that everything was in order. I did find some chiropractors and some additional conditions I had missed first time round. These were duly added to the complaint by the lawyers.

It did take a while, but I got through most of them last November and December before the GCC decided that they wanted to cut out the middlemen at the start of January:

I confirm that in addition to the checks you have been carrying out on the web pages, we have also been analysing the web pages and where we have identified conditions listed on the websites that you had not identified, we have requested the chiropractors observations in relation to these conditions as well. This is because the Investigating Committee, in considering your complaints, will be required to consider the totality of the information you have provided. Section 20(9)(b) of the Chiropractors Act 1994 (“the Act”) requires the Investigating Committee to take such steps as are reasonably practicable to obtain as much information as possible about the case. The Act then requires the Investigating Committee to consider, in light of the information which it has been able to obtain and any observations made to it, whether in its opinion there is a case to answer. I can confirm that the Investigating Committee will not limit its consideration of your complaint solely to the conditions you have identified.

As we explained in our last letter, while it would have been helpful for you to check all the printed web pages that we hold in relation to each of your complaints, it is not essential to the work of the Investigating Committee for you to do so.

You will have noted from our last letter that in addition to the checks you have been carrying out on the web pages, we have also been analysing the web pages and where we have identified conditions listed on the websites that you had not identified, we have requested the chiropractor’s observations in relation to these conditions as well. The Investigating Committee will not limit its consideration of your complaint solely to the conditions you have identified. Where we have also identified further chiropractors working at the clinics, who you did not submit a complaint against, we have been asking you to confirm if you wish to submit a complaint against them. We will continue to manage your complaints in this way.

I can confirm that we will now move to formally notify all those chiropractors that we have not yet formally notified, so that the investigation process can proceed in a timely manner.

As we are now moving to formally notify all those chiropractors that we have not yet formally notified, I confirm that we no longer need to make arrangements for you to receive the remaining web pages that you have not been sent yet.

So, they were going to do the work for me. Great. As long as they are as thorough as I would be. Saves me having to clear more bookshelf space.

Once they had gathered everything, they started sending their formal notice to each chiropractor along with the printed out webpages and asked for their observations on my complaint. I had been told I would be given the opportunity to comment on those observations, but more about that shortly.

At the end of January, I started to receive envelopes that contained these observations.

Observations

Over the next six weeks I amassed 290 of these envelopes (see photo, with a well-known and well-thumbed book shown for scale).

The documents all contain much the same text and presumably come from the same source, with changes to suit individual cases. As an example, here’s one of them (with personal and other identifying details redacted). It’s interesting to read through it to see what kind of arguments were being put up to try to persuade the Investigating Committee that they had no case to answer and throw out the complaint.

All of them had references to various other published papers. One had some 268 references (bizarrely, mostly about the sciency-sounding cold laser therapy, which can treat all sorts of musculosketal conditions, don’t ya know).

Right from the start of the complaint, I was told I would be given an opportunity to comment on these observations and that my comments would be sent to the chiropractors, who would then be given time to comment further before everything was sent to the Investigating Committee. I would not see these further comments.

All well and good. I was given a generous 14 days in which to supply my comments. Apparently, usually only allow seven days is given. It was a tall order, but I responded with a 25 page document, citing 70 references. Again, it’s worth spending the time reading it to get the full measure of some of the ‘arguments’ I had to counter.

I reminded the IC of their obligations; I pointed out some of the relevant ASA guidance and how they have interpreted it; I gave some detail of the well-known hierarchy of evidence with systematic reviews and meta-analyses at the top and case reports at the bottom; I quoted the ASA’s guidance on substantiation and how they viewed situations where scientific opinion was divided. I also addressed some of the general observations made by chiropractors:

• Some of the observations supplied by chiropractors cited the CoP’s glossary entry for Evidence-based care.
• Some chiropractors claimed that there was far more to chiropractic than spinal manipulation. The list included massage and nutritional advice.
• Many chiropractors claimed they were relying on the claims made in the GCC’s ill-fated Patient Information Leaflet.
• Many chiropractors claimed that they were only self-employed chiropractors, employed by a clinic’s owner and therefore had no control over the website claims.

It took the GCC a while to pull together all the references. Yes, they collected copies of all the references I had cited. All 70 of them. I had to supply a couple of emails I had received from the ASA, but warned them they would need to redact the personal details of the ASA Investigations Executive. Most of the citations are available in PubMed, and I’m sure there would have been someone close at hand who had access to that valuable research resource! It was left to them to arrange appropriate copyright and licence clearance.

The idea seemed to be that were going to send my comments and full copies of all references to the chiropractors. As promised.

Broken promises

It was not to be, however. On 10 March, I received the following:

We previously wrote to you inviting your comments on the observations on your complaints received by the GCC from a number of respondent chiropractors.

In a document dated 11 February 2010 “Response to observations on my complaint” you set out your perspective on a range of matters, including:

• the responsibilities of the GCC’s Investigating Committee and how those responsibilities should be discharged
• the scope of ASA guidance
• the responsibilities of chiropractors

You also provided a bibliography of 70 references, which has encompassed a total of 68 documents. We have printed copies of all of them, having purchased a copy of item 18, which concerns ‘Users’ guides to the medical literature’.

It seems that the only direct comments on the observations from respondent chiropractors contained in your response and the 68 documents are as follows:

• paragraph 3 and 4, section 2.4, page 3 “I note that some chiropractors have claimed that they are self-employed chiropractors, working for a clinic owner and therefore had no control over the website. The contractual arrangements entered into by chiropractors and their clinics are irrelevant. The CoP clearly says that chiropractors are responsible for any advertising done on their behalf.”
• paragraph 4, section 2.6.1, page 5 “I note that some chiropractic websites seem to use the same testimonials and they are therefore possibly fictitious”
• paragraph 2, section 2.7, page 6 “In their observations, I note that chiropractors appear to have only included what appears to be positive evidence in support of their claims, frequently introducing such evidence with: There is evidence to support this approach.”
• paragraph 2, page 7 “I note that chiropractors have only provided bibliographic references to evidence they believe should be considered by the IC.”
• paragraphs 1 and 2, section 2.13, page 11 “I note that some chiropractors have expressed their personal views about the use of the courtesy title “Dr”. Their views are irrelevant as the question at hand is whether the use of the title meets the ASA guidance (7) and the CoP.”
• paragraphs 1 and 5, section 4.3, page 14 “Many chiropractors have said they have relied on statements made in the GCC’s own leaflets relating to claims for chiropractic, particularly those for some childhood ailments….However, ASA guidance mandates that advertisers hold robust evidence for claims made and it would be erroneous to rely on in formation given in a patient information leaflet, whether from a statutory regulator or not.”
• paragraphs 2, 5 and 6, section 6, pages 15 and 16 “Many of the chiropractors I complained about made claims about the requirement for on-going sessions and ‘adjustments’ couched in language such as ‘wellness’ or ‘maintenance care’….Additionally, many chiropractors’ websites seem to prey on the vulnerability and anxieties of parents, understandably concerned about the health of their babies, infants or children by trying to persuade them that chiropractic is necessary for their babies’ health….Thus, chiropractors who advocate continual repeat visits or whose websites target pregnant women and new Iparents are breaching C1.3 of the CoP and cannot be acting in the best interests of the welfare of their customers. This betrayal also puts them in breach of C1.1 and ASA guidance.”

Nevertheless, your response will be considered in full by the Investigating Committee and copies of all the bibliography documents will be available to them.

We will now proceed to provide a copy of your response and bibliography documents to the relevant respondent chiropractors, who will be given an opportunity to submit any additional observations they may wish to for the attention of the Investigating Committee. In line with our normal process, you will not receive a copy of any additional observations the chiropractors choose to make and these complaints will proceed to be considered by the Investigating Committee.

The purpose of this letter is to keep you informed of progress and the Chair of the Investigating Committee is aware of its contents.

It was good of them to try to summarise my comments wasn’t it? And at least the IC was going to consider my document and all its references, weren’t they?

However, my response was:

Although you say that the letter was intended to keep me informed of progress, I am unsure of the purpose of the majority of it.

Specifically, I do not understand why you have chosen to attempt to summarise just some of the material I included in my document, nor why you have highlighted seven short extracts and labelled them as ‘the only direct comments’.

It is essential that the Investigating Committee considers the evidence put before it in an unbiased manner. It certainly would not be appropriate for some evidence to be excluded from their purview. Nor is it appropriate for some particular evidence to be highlighted — or other evidence to be deprecated — by anyone outside of the IC. I consider any attempt to influence them in such a manner to be a very serious matter.

I note that you have made the Chair of the IC aware of the contents of the letter.

I can see nothing in the legislation that supports the Registrar or others summarising my comments or making such determinations as to what are ‘the only direct comments’ and there may well be a case for any IC member who is aware of the content or substance of your letter to now be prejudiced by these actions.

I would be grateful, therefore, if you could explain in detail why you took the actions you did.

Please acknowledge receipt of this email by return and I look forward to receiving your prompt reply.

Had I caught them breaking the rules again?

It all went quiet for a few weeks.

On 9 April, I received this:

I am writing on behalf of the Investigating Committee, to advise of you of a decision it has taken with regard to the investigation of your complaints following receipt of legal advice.

As you are aware, on receipt of an allegation the Investigating Committee is required by section 20(9) of the Chiropractors Act 1994 (“the Act”) to notify the chiropractor concerned of the allegation and to invite that chiropractor to provide observations upon it. In practice, the Committee has taken further steps beyond those required by the Act of disclosing the chiropractor’s observations to the complainant, inviting the complainant’s comments upon the chiropractor’s observations and of then disclosing any such comments to the chiropractor. The chiropractor then has the opportunity to make further observations in light of those comments.

The Investigating Committee is aware that the disclosure to you of a number of respondents’ observations, in accordance with the further non-statutory steps referred to above has resulted in the submission by you of a number of lengthy documents ‘Response to Observations on my Complaint’ that include a bibliography, the documents in which once printed make up a substantial volume (almost 500 pages).

The Investigating Committee has come to the view that the disclosure of your ‘Response’ to the chiropractors in accordance with the non-statutory practice described above would both (a) impose an unacceptable burden on the chiropractors; and (b) substantially interfere with the Investigating Committee’s management of your complaints, as chiropractors may require substantial further time to read and prepare further responses to your observations and supporting documentation. This in turn is likely to delay the Committee’s consideration of the complaints. Furthermore, the volume of material submitted with your responses places a real burden on members of the Investigating Committee in terms of the time that would be required to enable members to read the material placed before them. This is likely to delay its consideration of your complaints and has serious implications for the Committee’s ability to deal with the complaints in a timely and effective manner, which would not be in the public interest.

In these circumstances the Investigating Committee has agreed to a variation of its practice, so as to omit the further non-statutory stage of the observations process in relation to your complaints. The Investigating Committee has decided that this is an appropriate step to take to ensure that these complaints can be progressed in a reasonable and timely manner. The Committee has received legal advice that this is a course of action which is compliant with its statutory obligations under the Act and the General Chiropractic Council (Investigating Committee) Rules 2000.

The Investigating Committee advises you therefore that it will no longer continue to provide you with a copy of the respondent chiropractors’ observations and the responses you have submitted to date will not be disclosed to the relevant respondent chiropractors. Nor will the Investigating Committee take account of your responses when it considers your complaints.

So, instead of addressing what I saw as a serious and prejudicial breach of their rules, they were now refusing to even pass on my comments to the IC. I was denied the promised opportunity to counter the assertions, claims and evidence made by the chiropractors as I had been promised.

Not persuaded

I found this behaviour abominable, so I responded. The full letter is here.

I eventually got a reply on 24 May and it seems they were not persuaded by my erudite arguments:

I am writing on behalf of the Investigating Committee to advise you of its response to your letter dated 10 May 2010, which you sent in response to our letter of 9 April 2010.

As I advised you in an email dated 13 May 2010, the Deputy Chair decided that your letter should be considered by the Investigating Committee at its meeting on 17 May 2010, your letter was considered at this meeting. Having given consideration to your letter, the Investigating Committee decided that its decision, as communicated to you in our letter dated 9 April 2010, stands.

The Investigating Committee wishes you to note that its letter dated 9 April 2010 did not cite the burden of printing your response to the observations of the chiropractor, together with the associated references, as a reason for its decision. It noted rather that the letter stated that the disclosure of your ‘Response to Observations on my Complaint’ would both

“(a) impose an unacceptable burden on the chiropractors; and (b) substantially interfere with the Investigating Committee’s management of your complaints, as chiropractors may require substantial further time to read and prepare further responses to your observations and supporting documentation. This in turn is likely to delay the Committee’s consideration of the complaints. Furthermore, the volume of material submitted with your responses places a real burden on members of the Investigating Committee in terms of the time that would be required to enable members to read the material placed before them.”

Printing your response and associated references was not a factor in its decision.

The Investigating Committee did not consider that your letter raised any points that it had not given careful consideration to when making its decision and its decision remains as communicated to you on 9 April 2010.

What they have done is completely disregard what they have been telling me for the past 12 months that I would be given an opportunity to respond to the observations. Are they hiding behind the ruse of sticking to the absolute minimum of what the law says they have to do, rather than what they had promised me?

The Investigating Committee’s obligations

The General Chiropractic Council (Investigating Committee) Rules 2000 at 5(2) states:

Nothing in Rule 4 shall prejudice the power of the Committee to make such further investigations as it considers are reasonably practicable for the purposes of fulfilling its functions under section 20(9)(b) of the Act.

And the referenced 20(9)(b) of the Act (which I mentioned above) states that the IC shall:

…take such steps as are reasonably practicable to obtain as much information as possible about the case;

So even if I had not supplied the GCC with sufficient evidence, they have the duty to take all reasonable steps to obtain that evidence. Have they done so? How does that duty fit in with their refusal to consider my evidence?

Everything hinges on whether I believe their last statement above:

The Investigating Committee did not consider that your letter raised any points that it had not given careful consideration to when making its decision…

Decisions

The IC have, in fact, already started to consider some of my complaints. They have told me:

At its meeting in April, the Investigating Committee considered a number of the complaints you submitted. In the majority of cases considered, no final decision was reached by the Investigating Committee. It has requested further information in relation to some cases and until it receives this information, it is not possible for it to consider the particular cases further. Until such a time when a final decision is reached by the Investigating Committee in respect of a complaint, we cannot provide any further information to you.

I have now had the opportunity to consider the position in respect of each complaint considered by the Investigating Committee in April and confirm that it did reach a final decision in respect of a number of your complaints. I anticipate that we will have communicated these decisions to you within the next couple of weeks.

At this time, there is no further information for me to provide to you. You will be provided with further information as it becomes available.

That was on 7 April and I’m still waiting — I was subsequently promised a reply last week. I’m still waiting.

Options

I have a couple of options: I can accept that they have, in fact, taken into account the evidence I submitted (and their first IC decisions may tell me something about that), or I can seek a Judicial Review.

I have other options available to me, but I’m sure you’ll understand if I keep my powder dry for the time being.

Watch this space. This is getting interesting.

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