Is it worth legislating science to have science-based regulation?

I’m no fan of quackery, whether it’s of the homeopathic, naturopathic, chiropractic, craniosacral, ayurvedic, or other woo-tastic flavour. I’m even less of a fan when it’s practiced by people with the letters MD or DO after their name. I think it’s deceptive and unethical to promote these unproven and often disproven practices to patients who come to you for professional advice.

Earlier this year, a Florida-based lawyer wrote a piece at SBM arguing that many quacktitioners are likely committing misrepresentation, in the legal sense, and possibly fraud in some cases. This was followed up with a series examining the background and historical legal status of naturopathy, acupuncture, and chiropractic, and now a proposal to enshrine science-based medicine in law.

Read the whole blog post to get a better sense for what’s proposed. The short version is that the proposed law would limit the scope of practice of licensed healthcare professionals by imposing a two-part test to be interpreted “according to its generally accepted meaning in the scientific community”:

1. Is it (a diagnosis, treatment, procedure, medication, etc.) plausible, based on “well-established laws, principles, or empirical findings in chemistry, biology, anatomy or physiology?”
2. If not, is it “supported, to a reasonable degree of scientific certainty” by either “good quality randomized, placebo-controlled trials” or “by a Cochrane Collaboration Systematic Review or a systematic review or meta-analysis of like quality.” If not… it’s verboten.[a trial that would pass the legal test would have a placebo control group, random assignment, no more than 25% attrition, at least 50 participants in each study arm, and publication in a “high-impact, peer-reviewed journal.”]

   If so, has its ineffectiveness been “demonstrate[d], within a reasonable degree of scientific certainty” by the aforementioned controlled trials or Cochrane Reviews? If so, plausibility won’t save it from being forbidden.

With a scheme like this, the devil is usually in the details. In this case, I don’t think one needs to dive in too deep to realize why this is a bad idea.

Politics is a sausage factory, and the science-based medical community should be hesitant to get it unnecessarily involved. Just because something is wrong/a bad idea (like quackery) does not necessarily mean that it should be forbidden in an ideal world. Just because something wouldn’t exist in an ideal world (like quackery), it doesn’t mean that it’s a good idea to use the force of law to ban it.

As narrowly-tailored as it aims to be, this proposed law will have the effect of legislating scientific truth. What constitutes scientific consensus? Plausibility? A high-impact journal? Do we really want these and other scientific questions that are now debated in the literature and the public sphere to be decided definitively by judge and jury? Do we want to give the power to certify science to our legislatures? The same legislatures that have already licensed all sorts of quacks at the behest of their lobbyists?

Science is politicized too easily. Where a scientific conclusion is translated by law into an inevitable legal and policy consequence, the science will make a better political target than the legislation. See this piece on the Endangered Species Act for an example of what I mean.

The best of policies can be undone by politics. I’ve given a fair bit of thought to how one might design an anti-quack law that doesn’t have the potential to go drastically awry. I can’t, though this is likely a result of insufficient creativity on my part.

In general, there are two types of people in government. “Our people” and “their people.” Who they are may vary based on the party or based on the issue, but both types will always be there. And both types win and lose elections.

Here’s the question: do you trust “their people” to exercise good stewardship of scientific truth? If not, let’s not be too hasty in handing over the reins to the politicians.