Exchange with member of 'Phoenix Rising' in 2012 regarding erasure of my work on PACE.

I reproduce here my side (two emails) of an exchange with a member of Phoenix Rising CFS forum from 2012, after a group had published 'an analysis' (though intially 'the analysis') of PACE. I warned them in advance (in 2012) that I would be publishing my own emails to them. However I have redacted their name to preserve anonymity. I believe this exchange demonstrates some key issues around how my work in the area of PACE and on psychogenic explanations for M.E. and other impairments (including the 'biopsychosocial model') has been subject to academic and other forms of erasure* for some time, sadly.

*My grateful thanks to Curls McBobbins (@zaranosaur on Twitter) who has very sagely and succinctly reminded me that "academic erasure is a thing", and the higher risk of it happening to already marginalised academics (as I do indeed consider myself, for various reasons of which some readers will be aware). I'd been struggling to articulate what has been happening to me: her wise words have helped more than she might know.


3 May 2012:

Dear - ,

I am writing because you did invite comments on the above document.

What I am about to write may discomfit you, and I would first like to say I am not intending to write in any hostility, although the points I make here will be necessarily critical.

I should say immediately in the interests of transparency that I have done quite a lot of work over the years on the way psychiatrists have EXCLUDED people with neurological deficits (associated with the neurological illness myalgic encephalomyelitis) from their research cohorts. I have also been a vocal and analytical critic of the PACE trial since its inception. I did try and explain the issues about the criteria to others on the threads about the PACE trial that evolved on Phoenix Rising, but with the honourable exception of one person, was largely ignored.

I am highly concerned that this document may be promoted, especially on PR, as a comprehensive overview of the issues around the PACE trial, when it is nothing of the sort (I note with dismay you claim to have 'done the analysis' - my italics). This would be to the immense detriment to the ME community, and to those of us (even non-ME but supporters like myself) who have worked extremely hard on identifying key problems with PACE since before the trial started in 2004, and the issues we have rightly raised. By claiming or implying it is definitive, you have dismissed serious key issues around PACE that have enormous adverse implications for ME sufferers and their safety, a key point I have raised in my complaint to the Lancet, and which I publicised on the relevant threads on PR.

One major problem with this is the lack of references to the work of others on PACE. There are a number of references I can give you. Just three are here from myself and from Jane Bryant of the One Click Group (when I was working with her), but these are not exhaustive, either of our respective works or of other people:

http://www.theoneclickgroup.co.uk/documents/PACE/BREAKDOWN%20OF%20ISSUES.pdf
http://www.theoneclickgroup.co.uk/documents/PACE/THE%20PACE%20REPORT.pdf
http://www.theoneclickgroup.co.uk/documents/PACE/THE%20PACE%20TRIAL%20IDENTIFIER%20.pdf

I also cannot see references either to my own complaint correspondence, nor Malcolm Hooper's extensive work in this area. At the very least you should have provided a bibliography of the work others have done, especially as your document implies this is a definitive analysis. Obviously this implication is not correct. If you acknowledge it is not then you need to publicise that, and a bibliography is the best way to do this.

One key area in which any implication this is a definitive analysis is particularly problematic is around the issue of the criteria used in PACE. Your document leaves out key issues and is discrepant in some places:

1. A key problem is that my frequently stated point that the Oxford Criteria allowed EXCLUSION of the 38% of clinic attendees possibly BECAUSE they have Myalgic Encephalomyelitis (and neurological deficits associated with such), has been ignored. I did try and explain this at some length to people on the PR threads, and show why this is a possibility that needs exploring by scientists (I'm presuming your document is intended to raise at least some scientific interest in the concerns raised by the ME community and its supporters?) but was largely ignored or dismissed.

2. You have also here - incorrectly - discussed FUKUDA, when in fact the PACE trial used REEVES et al 2003 (different to Reeves 2005), which is actually MORE EXPLICITLY EXCLUSIONARY than Fukuda, although it does look like White et al CHANGED their criteria to Reeves et al 2003 FROM Fukuda at some point in the trial. Though it should also be noted Fukuda and London were NOT EVEN INCLUDED in the PACE Trial Identifier leaked by ONE CLICK in 2004, and appear to have been added in response to criticisms about ignoring the Canadian Criteria - which myself and Jane Bryant raised publicly, as you will see from the above links.

3. You have also not addressed the discrepancies about the LONDON criteria - or that White et all used a 'version' of 'London' of their own making, that excluded people with signs of neurological deficits. In fact, you have not even discussed the discrepancies about the London criteria, period, even before White et al bastardized it to suit themselves.

I should make it quite clear that this is not me being 'huffy' because I've been ignored. My ego is not bruised. But I am frustrated that the key issues I've raised, which are vital to an effective critique of PACE, have been ignored, and the adverse effects that will have on advocacy on this issue and protection of the patient community from the adverse effects of PACE and its promotion. One of the biggest problems this community faces is when people refuse to acknowledge or co-operate with knowledgable others in the community, for reasons of petty prickliness, pomposity, sometimes sexism or classism, or whatever. Even when I've had disagreements with people, if there are areas we can work together, or if someone is being treated unfairly, I will still co-operate and support wherever possible, because cutting one's nose off to spite one's face is not conducive to good advocacy strategy. People should have been working together on this - and I was one of those whose concerns and knowledge (and indeed, even my own complaint to the Lancet) have been largely ignored on the Phoenix Rising forums. While the problems of internet interaction is one thing (and there are a lot of problems in this area on the Phoenix Rising forums), it does not excuse the lack of attention to these important issues that I have raised here.

I hope that you will take my honest and reasonable concerns here on board in the spirit they have been sent, refrain from shooting the messenger, and seek instead to present a bibliography of the work others have done in this area, and publicly acknowledge, in the document itself, that your own analysis in this document is inevitably not comprehensive or definitive, because of the work named others have done. I can provide you with a reasonably wide comprehensive bibliography with links (though even this may not be exhaustive). I would also suggest you remove the term 'the analysis' and replace it with 'an analysis'.

Please do not hesitate to contact me if you need any further clarification. I should let you know I am publicising this email. you have my permission to share this email with others, but I ask it be done so in its entirety, so any part of it is not at risk of being taken out of context.
Best wishes
Angela
-----------------------


14 Mary 2012:

Thank you very much for your reply. I am also very flattered that you have indirectly described me as one of the 'heavyweights' with regard to the knowledge base on PACE - although I note you've referred to me as a 'them', which confused me somewhat at first.

However, I am not reassured by your response for a number of reasons:

1. The issue around the criteria is crucial, because you have ignored the way four criteria (Oxford, a bastardised 'London', the Reeves et al 2003 change to Fukuda, and the NICE criteria) excluded ME patients from the PACE trial, and the various discrepancies around those criteria. Anyone reading your document would believe Oxford were the only criteria used in PACE, and that the excluded 38% DO NOT represent ME patients, when this cannot be said to be the case. At the very least you should be seeking to correct this, because anyone reading your document will not be getting the correct information and may take further action (including advocacy) based on inaccurate information. Currently any psychiatrist wishing to poo-poo your objection to Oxford would be able to do so very easily, because of your lack of accuracy or clarity about the way the various criteria (Oxford, a bastardised 'London', the Reeves et al 2003 change to Fukuda, and the NICE criteria) were used to exclude patients from the research. You also fail to mention Reeves 2003, a crucial 'clarifier' to Fukuda, and the various changes to criteria that were made throughout the PACE trial (at least as important as changes to outcome measures). The lack of clarification on the criteria issue also renders your discussion about the pre-excluded 38% of patients, and the patients included, somewhat confusing.

2. Your 'primary conclusions' are actually wide ranging and authoritative sounding, but you are making claims based on incomplete evidence, particularly in the section on criteria. That is your choice, but in doing so you are doing a disservice to the community itself, other advocates, and any scientists or other parties coming across your work but who are not aware of the key analysis carried out elsewhere. If you had focused on the smaller area of the outcome measures, where your thread was most productive, and acknowledged there were other key issues being looked at elsewhere, I would not have seen this paper as a problem. As you have made wide-ranging conclusions without acknowledging they should not be considered as definitive, readers not aware of the prior work of others will erroneously believe that these are the only crucial points about PACE, when they are not. They are merely SOME points about PACE (and some of them are not quite correct).

3. At the very least, you should be acknowledging that there is other analytical work being done on PACE by people like myself and Professor Hooper (and mention our respective complaints), if you are determined not to provide a short bibliography of our work. This would allow the reader to understand that your 'middle ground' is not definitive, and will prevent any misapprehension on this issue.

Nevertheless, your decision not to include any bibliography is highly problematic, because the vast majority of discussion about the criteria was actually carried out by myself on the large thread and some other related threads on PR. If this were an academic paper, you would be dangerously close to plagiarism, and to prevent this you would be required to give a bibliography of others work on the subject, especially as you claim to have known about them in advance (as your compliment about the 'heavyweights' implies).

4. I am concerned that, however modestly you regard your document, it will be presented on Phoenix Rising as a definitive analysis of PACE, to the exclusion of vital points made elsewhere by myself and Professor Hooper. PR has become extremely self-promoting, and I can see this problem occurring. I cannot see how you can reassure me otherwise, frankly.

5. I do acknowledge you may not be aware of this, but, it is important that you understand that I was being heavily moderated and also subject to various bans over on PR after protesting against mistreatment of me by others, or defending myself against them after not being protected by moderators. At one point I was falsely accused of threatening the Royal Family. While the problems of PR are neither here nor there as far as you are concerned, and I am certainly not seeking any sympathy from yourself, you should be made aware that I had no awareness that you had proposed any such project. Today is the first time I have been made aware of it. In any case, by not including or acknowledging my work which was actually on this thread (and others), you have ignored it. It was also striking how little people engaged with me on the criteria issue during my time on that thread, when it was clear I had some very specific information that I was imparting to people.

6. I have to say that I did not know that you have been involved in any major critiques of PACE. This would be because you have not made them public? Could you perhaps enlighten me as to which critiques you have been involved in? I feel that this comment of yours is somewhat accusatory. I could not be aware of anything you have been involved in if you did not make it public. I have traditionally shared my work on PACE with the ME community, and indeed shared my work on my complaint, and updates, on your thread, and others, until I was banned from PR.

7. I am glad that you acknowledge that we need to find a way to show why the psychogenic model of ME is incorrect. I don't understand why that would 'bother' you though. I thoroughly agree a multi-pronged approach is needed, but this is EXACTLY why I have needed to write to you about the problems of your document. A multi-pronged approach needs to be done in such a way that others' approaches - where on the 'same side' - are not damaged. If you do not acknowledge the limitations of your report, it will NOT 'engender further interest' very well at all, but could instead proscribe it. This means that key work, that can be used to ultimately show why the psychogenic model is flawed, could be prevented from seeing the light of day following the problems of PACE, because people have been misled into believing that your incomplete (and on the issue of criteria, currently not correct) report is complete and definitive. When I say misled, I do not mean deliberately. I believe that the high potential of your document to mislead people (because I unfortunately do believe this is the case) is because of error only.

However, it really needs more than the changing of one word to correct these problems. A short disclaimer about this not being definitive and complete, and perhaps a short mention of others' work (Hoopers, my own, as just two examples, and where they differ to yours) would not be hard to do, if a short bibliography of links is impossible. This will not in any way compromise your intention to be 'accessible', but will point to the necessarily deeper analyses which are vital tools, as you acknowledge, in the work dismantling the problems caused by PACE and the psychogenic model of ME. I also presume that your desire to be 'more accessible' would not mean you were prepared to be inaccurate, and therefore you understand the need to correct the inaccuracies in your document around the criteria used in the PACE study.

There is much more that I could write about my concerns about your claims to have achieved certain things. But it is really not my intention to attack your paper, or damage any specific points that fall within the remit that you and your colleagues on that thread have undertaken, and that you wish to take ownership of. Not at all. My concern is to ensure you have not damaged the work of others in this field (and that includes my work), which, so far, your document is in danger of doing. A small amount of work will rectify that, as I have shown.

If you cannot see your way to doing this, I will need to point out the problems wherever I see this document being touted as a definitive analysis of the PACE trial, unfortunately. Feel free to reply to me 'officially', but please bear in mind that, as I have no 'right of reply' on Phoenix Rising, I will have to publicise any objections I may have (such as those above) in other places, and explain that I have no 'right of reply' on PR.

I am hoping that you will have some understanding of the importance of what I have endeavoured to explain to you, and that my specific concerns are reasonable, and will take the small amount of work needed to rectify these problems. If I had my way I would re-write the whole way you have described the criteria issue. However I realise this is unlikely to be acceptable.

Best wishes
Angela

Bob Findley Williams on disabled people and 'Godwin's Law'

Disabled academic and activist Bob Williams-Findlay said this earlier on today, in the wake of Matthew Parris's rationale for legalising assisted suicide. The issue is actually much bigger than assisted suicide. Parris's, and others', comments on the Radio 4 programme hosted by Jane Campbell yesterday, and comments elsewhere (The Times Newspaper) illustrate only too clearly why Bob's words below are so apposite:


"May I take this opportunity to thank Matthew Parris for being candid enough to articulate so clearly the Thatcherite ideological position on those of us with impairments. It is rare to read in print how people like Parris see people who in their eyes contribute little to society and therefore should expect to receive little in return.

Why I'm thanking Parris is because I can now say 'up yours', to all those who accused people like me of scaremongering or resorting to Godwin's Law. The position disabled people find themselves in today in the UK of 2016 is almost identical to that of disabled people in the 1920s within the Weimar Republic - their very right to exist and be supported to live rather than encouraged to die is now under debate. This isn't bloody scaremongering, this is reality."

** Same Difference have kindly shared the Parris article here: http://samedifference1.com/2016/01/02/matthew-parris-responds-to-jane-campbell-today-interview/

Statement regarding the series of articles by David Tuller on the 'Virology' blog about the PACE Trial

I have worked since 2004 on identifying and publicising the serious substantive flaws in the PACE trial, as well as other flaws in psychogenic explanations of ME (and where ME is called 'CFS). I have produced a large amount of work on the subject, contributing to below the line comments in medical and scientific journals, and detailing my copious findings in my book "Authors of our Own Misfortune? The Problems with Psychogenic Explanations for Physical Illnesses" (published in 2012). I have also officially and publicly complained about the problems of the PACE trial, both at the beginning of the trial in 2004, and after its publication by the Lancet in 2011. I was therefore dismayed to see my own contributions, but more importantly my substantive findings, ignored in the series of three articles on PACE recently written by journalist David Tuller.

Not only were my findings ignored, so were those apparently of Professor Emeritus Malcolm Hooper, another major contributor to the flaws of the PACE trial. At the same time, there are some points made by Dr Tuller that appear to have originated from work undertaken elsewhere, including the One Click Group from 2004 onwards, and myself, that are not acknowledged as such by him. Neither Hooper's nor my own substantive complaints to Lancet and elsewhere, and the worrying responses, were acknowledged either in the Tuller series. I am not in any position to speak for Professor Hooper at all, and am not doing so here. I do not know his feelings on the matter. Nevertheless, I believe that there are key findings by him and his team, and grave problems in the way he has been treated for daring to bring these findings to official and public attention, that should also have been related in Tuller's series. Doctor Tuller was made aware of one of my own key findings, and my book, by me. I also offered further information. However he did not respond to the initial information at all once he had received it. Nevertheless, if he had, as he implies he did, performed a thorough literature search on advocacy critiques of the PACE trial, he would have become aware of the key work undertaken by myself, the One Click Group, and the Hooper team, as just three examples. A Google search will result in a large number of links to work detailing my own and others work on PACE, and the key, substantive criticisms we have made, above and beyond the outcome measures issue.

The issue of the outcome measures is important in itself, but nevertheless only forms part of the methodological, ontological and ethical problems of the PACE trial. Flawed methodology and ethical problems dogged the trial from the very beginning. There are enough major flaws and problems within the methodology to render the PACE trial and its resulting literature unsound enough to be retracted. However, Tuller's unfortunate failure to acknowledge some of those key flaws, as found by people like but not limited to myself, weakens what is actually otherwise a strong case for retraction of papers emanating from the PACE trial. It also strikes key events and work from the history of the PACE trial, thus rendering his account incoherent. That his series is being implied as a definitive deconstruction of the PACE trial, and as if Tuller himself had undertaken such a thing, also poses a massive risk to advocacy efforts to expose the many, key flaws of and dangers to patients caused by the PACE trial, which have grave implications for patient safety beyond the issues of the outcome measures.

For my own part, some major problems I have highlighted publicly and which are highly relevant to any discussion claiming to be explaining "the PACE trial: deconstructed" (Tuller's words), include but are not limited to:

1. Serious risks to clinical patient safety caused by unsound claims made about the efficacy of CBT and GET following the PACE trial;

2. Gross discrepancies between research and clinical cohorts, and how clinical patients (and the physiological dysfunction associated with them) appear to have been actively excluded from PACE and other research by the research group involved in PACE, which has, ironically, caused serious resulting risks to clinical patient safety in the UK in particular;

3. Related to the above, gross discrepancies in how various sets of patient criteria were used (and/or rejected), including but not limited to a changing of the London criteria by PACE authors from its original state, a set of criteria which was already controversial and problematic to start with for a number of reasons;

4. Failure of the PACE trial authors to acknowledge the range and depth of scientific literature documenting serious physiological dysfunction in patients given diagnoses of ME or CFS, and how CBT and GET approaches may endanger patients in this context;

5. The inclusion of major mental illnesses in the research cohort;

6. The distortion by PACE trial researchers of 'pacing' from an autonomous flexible management strategy for patients into a therapist led Graded Activity approach;

7. The post hoc dismissal of adverse outcomes as irrelevant to the trial, in direct contradiction to what is scientifically known about the physiological dysfunctions of people given diagnoses of Myalgic Encephalomyelitis or Chronic Fatigue Syndrome ;

8. The instability of 'specialist medical care' as a treatment category, and the lack of any sound category of 'control' group.

Other issues highlighted by other advocates include but are not limited to key conflicts of interest of the PACE trial researchers, and the strange role of the Department of Work and Pensions in funding the PACE trial and the ideological basis of that funding. This in particular is a serious ethical issue, especially in light of subsequent UK state policy toward disabled people, and the proposed use of CBT and coercive 'treatments' in this policy, to the point the UK government is now being investigated by the United Nations for its treatment of disabled people. The problems of the PACE trial are many and complex, which is why it presents such a danger to patient safety, and why a careful, methodical consideration and acknowledgement, by scientists, of all of its flaws, is desperately needed, with a view to urgent retraction of the original paper at least, and preferably all papers emanating from the PACE trial.

Over the years I have worked very hard to find scientists willing to consider carefully the copious evidence I and others have collected about the flaws in the PACE trial, so far without success. There is not even a way to enforce the 'Declaration of Helsinki', it appears. At one point I had a surreal email conversation with the Lancet Ombudsman about his own conflict of interest, where I was left wondering if I had actually conjured up the idea of conflicts of interest myself, perhaps in a fevered dream. The PACE trial and its methodological and ethical flaws provide an exemplar of how principles of science can be corrupted by ideology and power structures within science, a human practice, itself.

Doctor Tuller should have carefully worked to ensure the relevant history of the PACE trial, and all the major substantive concerns made by advocates, were adequately aired in his series, and that the various 'experts' he cites were made fully aware of them. Indeed, he had a ethical duty to the M.E. community to ensure this. In its current state, this series of articles is seriously incomplete at best, and has in effect stricken valid criticisms off the public agenda, which is likely to have a devastating effect on the prospects for safety and fair treatment of an already beleaguered, stigmatised and ignored patient community. I believe at the very least Doctor Tuller has an ethical duty to amend his series to reflect the fact that people such as (but not limited to) myself, Jane Bryant of the One Click Group, and Malcolm Hooper have found major methodological and ethical problems in the PACE trial and made official complaints about them (some even before the trial got underway, as well as post-publication), even if Tuller is unable to discuss or summarise these himself, whatever his reasons. But it would frankly be more useful if he also undertook in the future to consider, understand and wherever possible support the findings of other advocates, if he believes that the issue of PACE and its problems are now important to him.

Submission to the Department of Work and Pensions' Independent review into the impact of employment on employment outcomes of drug or alcohol addiction, and obesity: Call for Evidence July 2015.

**** I have just emailed this submission to the DWP, in response to their 'Call for Evidence' (deadline is today at 5 pm). Please note formatting changed (font etc.) to publish on this blog. ****


Submission to the Department of Work and Pensions' Independent review into the impact of employment on employment outcomes of drug or alcohol addiction, and obesity: Call for Evidence July 2015.

By Angela Kennedy, 11 September, 2015.


INTRODUCTION

I am making here a submission to Professor Carol Black's Call for Evidence in the Independent review into the impact of employment on employment outcomes of drug or alcohol addiction, and obesity.(1) I am writing in the following capacity:

1. As an independent academic researcher in the following areas: Sociology of science, health and medicine; social constructions of various kinds of 'deviance' (including within state policy), social constructions of 'obesity' and their effects on the lived experiences of individuals; disability denial within state and medical discourses and policies; flaws in medical reasoning in diagnosing psychogenic explanations for physical impairments. My book on the last subject was published in 2012. (2)

2. A woman of bigger size due to lifelong thyroid disease, who has other impairments and who, if my situation is considered through a social model of disability, (3, 4, 5) is disabled by others' prejudice towards me because of my impairments, and others' failure to accommodate my needs as a person with impairments.

I will be addressing specifically the call for evidence specifically related to 'obesity' in this submission. However, it is possible that my comments here can also be applied to the issue of 'addiction', or, more specifically, how people suffering with addiction are at risk from some of the beliefs exhibited in the Call for Evidence itself.

This submission has unfortunately been produced under difficult circumstances due to personal and family circumstances out of my control. It is therefore more truncated than it would have been under normal circumstances. Nevertheless it points to other literature and considerations which need to be included in the 'Review'. I am willing to be contacted for further information if necessary.


KEY ERRORS IN REASONING IN THE REVIEW ITSELF

The 'Call for Evidence' itself exhibits a number of key errors in reasoning.

1. The Introduction to the Call for Evidence, in the first paragraph, claims that conditions such as obesity are 'potentially treatable'. By the third paragraph (under 'terms of reference), the conditions are deemed 'treatable', and this continues throughout the review. This is a major leap of assumption that is not warranted by the evidence available about 'obesity', its multiple potential causes, and the various medical and political 'treatments' proposed. It therefore forms a major error of reasoning that has potentially disastrous effects on how people deemed 'obese' are to be treated by the DWP.

2. The Call for Evidence demonstrates an inherent ideological belief system held by its authors that, again, is not supported by the evidence available. The claims below are particularly problematic:

"...[obesity] can have profoundly damaging impacts on individuals and their families, and significant costs for the taxpayer and the economy. The government believes that not enough is being done to ensure people get medical help for such long-term, treatable issues or specialist employment support - even though one or more of these conditions may be the primary reason for being out of work."

There are four main problems with this statement:

(a)The claim that somehow obese people cause 'significant costs for the taxpayer and the economy'.

(b) The assumption that obesity itself can somehow "have profoundly damaging impacts on individuals and their families".

(c) The assumption that there is suitable medical 'help' actually available to the vast majority of people deemed 'obese' to 'cure' them of 'obesity', or indeed, that the government would even be committed to implementing some of the possible effective 'cures' that might be available.

(d) The assumption that obesity is, often enough to warrant intervention, a verifiable 'primary' cause of unemployment.

These claims are unsafe for a variety of reasons, only some of which are delineated here. Firstly, ALL people cause ''significant costs for the taxpayer and the economy', as this is the nature of state policy (i.e. the UK is a democracy with a welfare state that enables people to attend school, claim child benefit, pensions and obtain health care). Obese people are also tax-payers, and the vast majority of obese people appear to be working. The idea that obese people singularly cost the taxpayer a large amount, over other groups of people, exhibits an ideological and incoherent train of reasoning, not supported by the empirical evidence available.

Secondly, the 'damaging effects' of 'obesity' appear to be related to prejudice against fat people and the effects of this. Prejudice against fat people is embedded in UK and other cultures at all levels, including state and medical. (6, 7, 8) Prejudice against people deemed obese is often referred to colloquially as 'the last safe prejudice'. Applying a social model of disability (3, 4, 5) to obesity, it becomes clear that the ill-treatment of people deemed 'obese' causes damaging effects. Yet it is actually very difficult - and sometimes impossible - to establish any clear 'damaging effects' from the physical condition of obesity itself. (6, 8) Mortality and morbidity rates do not soundly establish such, for example. (6, 8) Even the notion that obesity is 'harmful' per se is open to challenge. For example, research appears to show that often higher weights are 'protective' against certain cancers and other illnesses (if the logic of the research is followed), and obese people do not actually live shorter lives per se. (6, 8) Ironically, the figures quoted in the Call for Evidence itself actually show, proportionally, a rather small amount of people claiming benefit due to 'obesity', if one actually considers the amount of people of working age deemed obese, and yet NOT claiming benefits. The notion that obesity is a verifiable 'primary' cause of unemployment is untenable. This may appear counter-intuitive a situation to consider, but I would argue that this is because of the ideologically informed prejudice against fat people, which has permeated even scientific research and state and medical policy. This has caused many unsound assertions and fallacious reasoning to be made on inadequate evidence within the literature.

Thirdly, as will be demonstrated in this submission, the idea that the government would actually be committed to 'curing' obesity, or intervening to improve quality of life chances, including opportunities to work, for people deemed 'obese', is currently not supported by the evidence available. The 'Review' that the government has asked Professor Black to produce appears merely a measure to support punitive, prejudicial state policy akin to racism and disableism, in line with copious other recent attacks on vulnerable people, such as disabled people and those in poverty.


THE IDEOLOGY OF BLAME WITHIN GOVERNMENT DISCOURSE

'Obesity', as a research subject and domain of knowledge is still very much incomplete. It is also subject to various errors of reasoning in academic, scientific and lay discourses, including political. (6, 8) Potential causes of 'obesity' are varied and multiple, and still not fully elucidated. Yet most often the focus of state and medical intervention or attention is to blame the victim and treat them as psychologically deviant, as greedy and/or lazy. But actual and potential actual causes of obesity include (though are not limited to):

1. Physical dysfunction such as but not limited to thyroid disease: especially as these conditions are often inadequately treated, or misdiagnosed.

2. Conflicting advice around nutrition from state and medical agencies. For example, it is now known that diets higher in protein but lower in carbohydrates can help maintain a lower weight.

3. Lack of access to high protein, low carbohydrate foods because of poverty (foods with carbohydrates are the cheapest and most accessible)

4. Loading of carbohydrates in the process of food product manufacture.

5. A possible genetic propensity towards bigger size, though this may not be necessarily harmful (other animals appear to experience this, for example).

6. Overeating due to psychological problems related to serious adversity, including but not limited to experiences of being denied food as a simple and justified need, or as a form of comfort in extreme adversity, such as suffering sexual and other abuse.

If the government, and those of the medical establishment who support government ideology, were actually seriously committed to making life opportunities better for obese people, including in order to keep them in work, or help them get work, they would be approaching the issue from a different standpoint, i.e. that of a social justice framework, and producing key policies based on that. Policies might include but not be limited to, for example:

1. Offering liposuction and other related surgery, through the National Health Service, rather than just bariatric surgery. Liposuction appears to have no less of a 'success' rate than bariatric surgery, and appears not to have as the risks of iatrogenic injury, including fatality, as bariatric surgery. (8)

2. Legislating against abuse of fat people and discrimination, especially but not exclusively in the area of work and workplaces, similar to other equalities legislation related to race and disability.

3. Promoting positive body images of fat people in all aspects of culture.

4. Designing public spaces and travel systems that all disabled people can access, including people deemed obese. This may include ensuring chairs are suitably sturdy as an inherent feature of design, for just one example.

6. Funding adequate research into thyroid and other metabolic dysfunction.

7. Immediately medically investigating treating physical impairment as it arises in people deemed 'obese' (e.g. knee problems, arthritis), and not blaming the person for being both fat and active (wear and tear on the body indicates a person is active, whatever their size) and assuming being 'obese' is the primary cause of an impairment.

8. Offering supportive, non-coercive psychotherapy, such as non-directive counselling (rather than coercive forms of cognitive behavioural therapy, which fails to address causes of any underlying distress, but instead demands regimented behaviour that appears untenable).

9. Ensuring people deemed obese, like other people, are not suffering poverty and deprivation, so that they have the economic ability to make healthier food choices.

10. Changing food production practices to reduce amount of unnecessary carbohydrates in food.

11. Ensuring advice about food choices is sound, coherent and based on empirical adequacy.

However, sadly, the evidence available indicates that the government intends to adopt a punitive, victim-blaming approach, instead of the above, far more reasonable, measures. This seems to be in keeping with their treatment of disabled people, unemployed people, and people in poverty, and seems part of a neoliberal ideological worldview also shared by previous UK governments since the late 1970's, including 'Labour' governments. In this way a politics of resentment is being engendered, with already actual disastrous effects, but potentially even more disastrous effects, occurring, leading to a break-up of social cohesion and increasing social exclusion. The results of such implementation of a politics of resentment on human societies are likely to be catastrophic in many ways, too profound and wide-ranging to be discussed here, but which do need to be considered urgently at the level of public discourse.


'TREATMENT' AS COERCION

Treatment of people who are poor, disabled, and unemployed, has become extremely punitive and coercive. Depriving vulnerable people of the actual means of survival has become government policy, particularly in the form of 'sanctions'. Copious evidence of the harms related to this measure are available. Coercive psychological interventions as state policy are also being explored by the government.

In the case of obesity, the only 'treatments' currently offered on the NHS are cognitive behavioural therapy, and bariatric surgery. If the 'logic' of sanctions and coercive demands to undergo treatment are followed, people deemed 'obese' may be forced to undergo surgery, and surgery with a high risk of fatality and further morbidity and failure rate. They will therefore be undergoing coercion, by the state, into putting their lives at risk and having surgery they would not otherwise accept. Or they may be coerced into undertaking psychological intervention that may not be right for them and that they would otherwise not accept. This is a fundamental abuse of state power, and that this is implied as reasonable within Professor Black's Call for Evidence should be causing profound concern to all people who wish to maintain the UK as a social democracy, rather than allowing it to disintegrate into a totalitarian state containing elements of fascist ideology.


CONCLUSION

In conclusion, the ideas exhibited in Professor Black's Call for Evidence, and in the government's quotes reported in the media, are extremely unsound and dangerous, and should be abandoned. If the government and their supporters, including some medical doctors, are serious about improving conditions for people deemed 'obese', the above measures I have alluded to would have positive outcomes, instead. But, unfortunately, it remains to be seen whether this is actually the current government's intent.


NOTES

1. DWP Independent review into the impact of employment on employment outcomes of drug or alcohol addiction, and obesity: Call for Evidence July 2015.

2. Kennedy, A. Authors of our own Misfortune? The Problems with Psychogenic Explanations for Physical Illnesses (2012) Market Rasen, Village Digital Press.

3. Scope 'The social model of disability: What is it and why is it important to us?' http://www.scope.org.uk/about-us/our-brand/social-model-of-disability (Last accessed 15 September 2015).

4. Thomas, P. Gradwell, L. Markham, N. 'Defining Impairment within the Social Model of Disability' GMCDP Coalition Magazine July 1997.

5. Crow, L. 'Including All of Our Lives: Renewing the Social Model of Disability' in
Morris, J (Ed) (1996) Encounters with Strangers: Feminism and Disability, Women's Press, London

6. Gard, M. Wright, J. (2005) The Obesity Epidemic: Science, Morality and Ideology London: Routledge.

7. Bovey, S. The Forbidden Body: Why Being Fat is Not a Sin (1994) Pandora, London.

8. Sandy Swarcz, 'Junkfood Science' Blog contains many resources on the empirical evidence available around 'obesity' (including bariatric surgery), and critiques of where fallacies of reasoning occur in policy and science around 'obesity': http://junkfoodscience.blogspot.co.uk/ (Last accessed 11 September 2015).

My submission to the Law Commission asking for them to work on repealing BSL

Below is a cut and paste copy of the text of the Law Commission's consultation programme form, together with my submission within the rubric of the form, asking for them to work to repeal UK Canine Breed Specific Legislation. They rejected this, and their rationale contained various problems, as outlined in my previous blog post here "Canine Breed Specific Legislation and Irrationality in UK Law" (Monday 14 April 2014).

I have left out my personal details such as address and telephone number only.
I have bolded my own writing for ease of reference.
*************************************************************************


The Law Commission
Steel House
11 Tothill Street
London
SW1H 9LJ

020 3334 0252

programme@lawcommission.gsi.gov.uk
Dear consultee

The Law Commission carries out law reform projects with the aim of making the law fair, simple, clear and cost-effective.

We are currently consulting on what new areas of law should be addressed in our next programme of law reform. To do this, we are asking: where is the law failing to work properly? Please use this questionnaire to tell us where you think there is a significant problem with the law. We want to know what you think is wrong and what practical problems arise. Please give us as much information as you can, even if you cannot answer all the questions. If we need to know more, we may contact you.
What types of problem will we investigate?

Not all legal reform is suitable for the Law Commission. Please tell us about a problem only if it relates to the law and is:

causing substantial unfairness, or

widely discriminatory or disproportionately costly, or

caused by laws or policies that are complex and hard to understand or

caused by laws or policies being out of step with modern standards.

Please also tell us if you think it would be beneficial to bring together (consolidate) a number of statutes that all deal with the same area of law into a single new Act. That might just require the relevant legislation to be redrafted or might involve reform of some of the underlying law. Proposals for consolidation that do not involve substantial law reform will be considered separately from the law reform programme, but we are happy to receive suggestions for such work as part of this consultation.

Our law reform programme will not include subjects where the considerations are shaped primarily by political judgements (for example, abortion, immigration, membership of the EU, the Human Rights Act, capital punishment, decriminalisation of drug use) or issues of established Government policy, such as taxation. We will not consider problems that relate only to a particular individual’s experience of the law as opposed to a more general problem. We do not work on issues that arise only in Scotland or Northern Ireland.

How we make decisions

When considering a potential law reform project, we are guided by our Protocol with Government (see http://lawcommission.justice.gov.uk/docs/Protocol_Lord_Chancellor_and_Law_Commission.pdf) which is intended to ensure that our recommendations have the best possible chance of becoming law. Some key points that we will look at when considering a project are:

How important is the project: to what extent is the law unsatisfactory (eg, unfair, unduly complex, inaccessible or out of date)? What are the potential benefits of reform?

Is the independent, non-political Commission the most suitable body to conduct the project?

Are the necessary resources (for example, sufficient relevant experience, project-specific funding) available to enable us to carry out the project effectively?
Would the project require involvement from the Welsh Government and/or the Scottish or Northern Ireland Law Commissions?

We will also assess whether there is likely to be Government support for a project. In order for a project to form part of our programme, a Government department must confirm that it has a “serious intention” to take forward law reform in that area. If Government does not seriously intend to see the law reformed there is no realistic prospect of any recommendations we make becoming law.

What happens next?

We will review all responses before drawing up a list of potential projects, where appropriate working with the relevant Government departments. As set out in the Law Commissions Act 1965, the Lord Chancellor will decide the final contents of the Twelfth Programme. We expect this to be during 2014.

We are likely to receive a large number of responses but can only accept a small number of projects for the Twelfth Programme; for our Eleventh Programme we received over 200 responses, which led to 14 new projects. We understand you may be disappointed if your proposal is not taken forward but please be assured we are grateful for your contribution. If you have any questions about the consultation process, please contact us on 020 3334 0252 or via programme@lawcommission.gsi.gov.uk.

Kind regards


The Law Commission

Please send us your response no later than
Thursday 31 October 2013.
Twelfth Programme of Law Reform consultation response

Please answer as many of these questions as you can, as fully as you can. If necessary, continue on additional sheets. Please also indicate where you are not able to provide an answer.

Please tell us about yourself:
Name: Angela Kennedy
Address


(Please tick one or more box)

Member of the public Yes
Third sector/voluntary sector Commercial sector/business
Nature of third sector/business organisation:
Practising lawyer Academic Yes
Specialist area: Specialist area:
Member of the judiciary Government official
Court or tribunal: Department:
Local authority staff member Parliamentarian
Other (please state):

Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at:

https://update.cabinetoffice.gov.uk/resource-library/consultation-principles-guidance.
We treat all responses as public documents in accordance with the Freedom of Information Act and we may include the names of respondents and attribute comments in any publication relating to this consultation. If you want your submission to remain confidential, you should contact us before sending your response. (Please note that we disregard automatic IT-generated confidentiality statements.)

In general terms, what is the problem that requires reform?

Specific Legislation (BSL), that is, part 1 of the Dangerous Dogs Act, needs to be repealed. The legislation can be demonstrated to be perversely unfair and irrational, does not provide safety for the public, has led to many dogs being destroyed needlessly, or have their lives severely proscribed leading to adverse quality of life, criminalises people unfairly, and is causing widespread, needless distress to many families in the UK. I believe the BSL can be demonstrated by the evidence below to be causing substantial unfairness; to be both widely discriminatory and disproportionately costly; and to be irrational (and therefore incoherent and difficult to both enforce and understand).

Can you give an example of what happens in practice?
For example, if you are a solicitor or barrister, you might describe how the problem affects your clients.

I am a dog owner and an academic, a social science lecturer and researcher, with a research interest in the social and material effects (on both people and dogs) of breed specific legislation (or BSL), and in public and state construction and management of risk. I made a submission to the Select Committee on Dog Control and Welfare last year which was published by them (see below). I believe this submission provides a more detailed summary than I can give here, and would advise that it be read in its entirety.

The general problems of BSL in practice are as follows:

Family dogs of 'bull-breeds' ('molosser' type, of all shapes and sizes and various breed mixes, but even including pedigree, Kennel Club registered Staffordshire Bull Terriers), are being seized just for looking a certain way (the so-called 'pit-bull type'), according to a highly subjective standard (there is no such genetic breed of 'pit-bull'). These dogs have been killed summarily if signed over by the owners to police in good faith, leading to dog welfare organisations, and solicitors, to advise owners never to sign over their dog to police on seizure.

In the court process, they are either ordered to be killed (for example because one owner was disabled - the case of Lennox the dog in Northern Ireland), or forced to wear a muzzle and lead in public for life (and be tattooed). The burden of proof that a dog is NOT a 'pit-bull type' is on the owner-defendant (which I have been given to understand, though am not sure, might be unprecedented in British criminal law), and this is - logically - impossible to disprove because the assertion of 'pit-bull type' is not done in a scientific way - but is instead subject to subjective beliefs of the 'enforcer'. It is rather like trying to disprove the existence of God to a believer. DEFRA's guidance refers to a 'pit bull' fancier's magazine from the 1970s: the "American Dog Breeders Association standard of conformation as published in the Pit Bull Gazette, vol 1, issue 3 1977". To date I have not been able to access this document. DEFRA have so far failed to respond to my request for this, failing their own targets for response. I contend that this is odd in itself: a document ostensibly needed by law enforcers should be easily accessible.

The DEFRA 'guidance for enforcers' (listed below in the literature section) gives, on page 16, guidance for identifying 'pit bull types'. The language used is overwhelmingly subjective in its description. Examples of this include (but are not limited to) 'good', 'light', 'fine', 'about equal', 'nearly', 'old-fashioned pump handle', 'athletic appearance' [One could immediately ask which 'athletic' appearance? The weightlifter? The sprinter? The footballer? The sumo wrestler?]. In addition, certain characteristics can be said to be present in many dogs. There is no unique characteristic of a 'pit bull', especially as there is, genetically, no specific breed of 'pit bull'. The so called 'pit bull' (or even the 'American Pit Bull Terrier') is not recognised by the Kennel Club as a breed in the UK. Nor are the other three breeds that are deemed 'illegal', However, it is also noteworthy that DEFRA give no 'standards' to identify the three other 'illegal breeds': the Japanese Tosa; Dogo Argentino; Fila Brasileiro. Even pedigree Staffordshire Bull Terriers are apparently not protected under the law from being subjectively deemed 'pit bull type', even if they are genetically demonstrated to be such, or are Kennel Club registered.
The stigmatizing effect for families is great, and the opportunities for socialising and exercise for dogs is severely curtailed: and these measures are available only for dogs with impeccable records of non-aggression. If a dog is 'dog-reactive' (even if not a threat to humans) they may be killed. Yet all dogs are potentially dog reactive in certain circumstances. Dog-owners are criminalised for owning a dog that by genetic chance, has grown to merely look like a subjectively asserted 'type'. It can be (and has been) argued there is a form of canine 'racial profiling' going on, an irrational process.

There is evidence to suggest that BSL is often passed as an example of 'panic policy making', or even as 'policing a crisis', i.e a show of political force (of being 'tough on law and order') on an easy target, which has very little to do with the issue of risk management.

Injuries to humans by dogs need to be considered in a risk management and epidemiological context. Dog-bite fatalities are, for example, extremely rare. According to DEFRA's website in 2012, there were 5 fatalities from 2007-2012 (an average of one a year). To put the relative risk of death from dog-bite into perspective: In 2010, 1,850 people were killed in road traffic accidents, with 1,901 killed in 2011, according to government figures. North American figures show that one of the largest source of lethal danger to children is from family caregivers (see Bradley, 2008: 21-22). To compare the two categories of causes of death in children would require a graph 8 feet tall in order to incorporate the ‘death by caregiver’ category. Figures from the Home Office indicate that on average 2 women a week are killed by a male partner or former partner. To place the risk of injury from dog-bite into perspective, as with all injuries, the description of ‘serious injuries’ is itself subjective and subject to instability in definition, but life-threatening injuries due to dog-bite also appear to be rare. The relative risk of dog bites was studied, for example, by Kahn et al (2003) who found dog bite injuries were about one quarter as frequent as road traffic casualties and about one third as frequent as burns at home. Child attendance at Accident and Emergency departments due to dog bite equalled less that 0.24% of all children attending Accident and Emergency departments. This is not to trivialise dog-related injuries, especially in children. However the low relative risk of dog-bite injuries has to be taken into context if rational and safe social policy and law are to be made. This information may seem counter-intuitive to the perception of risk from ‘dangerous dogs‘, but this is likely to be because of the moral panic (Cohen, 2002) around dogs that is a common feature in current media reporting practices, where rare events are reported, but appear to be more frequent in occurrence because of the frequency of reporting in the media.

With fatalities being so rare, and in general, the relative risk of dog bite being so low (especially considering the enormous amount of dogs and dog-human interaction in the UK) it is impossible to provide a scientifically rigorous, let alone definitive, relative risk related to breed. It is also relevant, for example, that of the four so-called ‘banned breeds’ in the UK, there has been, to my knowledge and after research, no fatalities recorded from dog-bites from any of the Japanese Tosa, Dogo Argentino or Fila Brasileiros breeds. As regards the category of so-called ’pit-bull’, because of the gross discrepancies in how this so-called ’breed’ in conceptualised in the UK, the establishment of a scientifically rigorous, let alone definitive, relative risk related to 'pit bulls' or even 'pit bull types' is impossible.

Ironically, the prohibition of organised fighting does not appear to be specifically delineated within British law. Very little, if any, positive progress to eliminate organised dog fighting has apparently been made.

To which area(s) of the law does the problem relate (please tick one or more box)?
Administrative or public law YES Criminal law YES
Property or land law Family law
Trusts and wills Commercial or contract law
Consumer law Regulatory law
Planning and environment YES Don’t know POSSIBLY
Other (please state):

We will be looking into the existing law that relates to the problem you have described. Please tell us about any court/tribunal cases, legislation or journal articles that relate to this problem.

You may be able to tell us the name of the particular Act or a case that relates to the problem.

Below is a list of selected publications. There are many more, and I and others can certainly point towards more literature if required, or provide at least some of these as PDFs:

1. My submission to the Select Committee on Dog Control and Welfare is available via this URL: http://www.publications.parliament.uk/pa/cm201213/cmselect/cmenvfru/writev/dogcontrol/dog27.htm

Other submissions can also be accessed via this link.

2. The Select Committee's report can be accessed here: http://www.parliament.uk/business/committees/committees-a-z/commons-select/environment-food-and-rural-affairs-committee/inquiries/parliament-2010/dog-control-and-welfare/

3. The Dangerous Dogs Act 1991 can be accessed here: http://www.legislation.gov.uk/ukpga/1991/65/contents

4. Discussion of problems of Breed Identification template in Victoria, Australia, with similar problems to the UK:

http://bslaustralia.org/blog/2011/07/01/breedidtemplate/

5. Article on the problems of Breed Specific Legislation and how it affects pedigree dogs such as Staffordshire Bull Terrier. Although Australian, very similar problems are presenting in the UK:

https://attachment.fbsbx.com/file_download.php?id=621669067877955&eid=ASsoLVdUolGx_LVaWaSif29hNQDumGCt7lVs4ML8DSnzR43IUkhfnxjeTNuayEuFjlA&inline=1&ext=1375614422&hash=ASuNWAjrIJ6zMZz1

6. Bradley, J. (2005) Dogs Bite: But Balloons and Slippers are More Dangerous Berkeley: James and Kenneth Press. (Amazon link supplied here for convenience):
http://www.amazon.co.uk/Dogs-Bite-Balloons-Slippers-Dangerous/dp/1888047186/ref=sr_1_2?s=books&ie=UTF8&qid=1373792694&sr=1-2&keywords=Janis+Bradley

7. Delise, K. (2007) The Pitbull Placebo : The Media, Myths and Politics of Canine Aggression New Jersey: Anubis. Also available as a free pdf at:
http://nationalcanineresearchcouncil.com/publications/ncrc-publications/

8. Kahn, A., Bauche, P. Lamoureux, J. (2003) ‘Child victims of dog bites rated in emergency departments: a prospective survey’, European Journal of Pediatrics 162:254-258.

9. Kaspersson, M. (2008) 'On Treating the Symptoms and not the Cause:
Reflections on the Dangerous Dogs Act' Papers from the British Criminology Conference British Society of Criminology Vol. 8: 205-225.
http://www.britsoccrim.org/volume8/13Kaspersson08.pdf

10. Lodge, M. and Hood, C. (2002) ‘Pavlovian policy responses to media feeding frenzies? Dangerous dogs regulation in comparative perspective’ Journal of Contingencies and Crisis Management 10, 1: 1-13.

11. Article on BSL in the U.S. by a North American lawyer:
http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/pitbull.html

12. Information from a dog breed genetic testing company about the impossibility of establishing a genetic 'breed' of 'pit bull' (see FAQ answer to the question "Does Wisdom Panel (TM) Insights test for "Pit Bull"?) :
http://www.wisdompanel.co.uk/faq.html

13. DEFRA's "Guidance for enforcers" (particularly note page 16):
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/69263/dogs-guide-enforcers.pdf

14. DEFRA's guidance refers to the "American Dog Breeders Association standard of conformation as published in the Pit Bull Gazette, vol 1, issue 3 1977" To date I have not been able to access this document.

15. R v Knightsbridge Crown Court ex p Dunne; Brock v DPP [1993].

16. Statement by Sarah Fisher about her role in the case of Lennox the dog:
http://www.tilleyfarm.co.uk/News.shtml

17. Huffington Post article on the widely covered case of Lennox:
http://www.huffingtonpost.co.uk/joan-k-smith/an-outrage-in-belfast-the_b_1504739.html

18. Article on kennelling costs incurred by the police: http://www.bbc.co.uk/news/uk-16972657

19. Statement by the American Humane Society on uselessness of BSL, with other references:

http://www.americanhumane.org/animals/stop-animal-abuse/fact-sheets/breed-specific-legislation.html

20. Klaassen, Buckley and Esmail academic article in 'Injury' journal:
http://www.dogtrainingireland.ie/documents/klaussen1.pdf

21 American Bar Association Report to the House of Delegates:

http://www.mspca.org/programs/animal-protection-legislation/animal-welfare/companion-animal-welfare/american-bar-association-resolution-on-repealing-bsl.pdf

22. Cohen, S. (2002) Folk Devils and Moral Panics: 30th Anniversary Edition: Creation of Mods and Rockers London: Routledge.

23. Cohen, J. Richardson, J. (2002) ‘Pit Bull Panic’ Journal of Popular Culture 36, 2: 285-317.

24. Statement by the Kennel Club about BSL:

http://www.thekennelclub.org.uk/item/3227/23/5/3

25. Lord Redesdale's Dog Control Bill:

http://services.parliament.uk/bills/2010-11/dogcontrolhl.html

Can you give us information about how the problem is approached in other legal systems?
You might have some information about how overseas courts or tribunals approach the problem.

I have included information in the literature section here: items 4, 5, 6, 7, 11, 21, contain relevant information about other legal systems. I should point out that the problems in BSL in UK are found in other legal systems, and that some legal systems are repealing BSL in favour of 'breed neutral' dog control laws.
Examples where BSL has been repealed (or voided), and 'breed neutral' legislation passed (often after studies demonstrating the futility of such legislation) include but are not limited to: the Netherlands (2008); Italy (2009); Administrative Court of Berlin (2002); certain U.S. regions (e.g. Ohio); certain Canadian regions (e.g. Calgary). Organised objections to BSL can be found in nearly all countries that have BSL, my research has found.

Within the United Kingdom, does the problem occur in any or all of England, Wales, Scotland or Northern Ireland?

This problem occurs in all of England, Wales, Scotland and Northern Ireland.

What do you think needs to be done to solve the problem?

I believe complete Repeal of the Breed Specific Legislation (that is, Part 1) of the Dangerous Dogs Act is needed, and continued evolution of rational breed neutral legislation to ensure safe and responsible dog ownership. Crucially, I believe that very little needs to be done to reform the legislation in this way.

What is the scale of the problem?
This might include information about the number of people affected this year or the number of cases which were heard in a court or tribunal over a particular period.

As far as I know and after research, there are no figures for national rates of seizure and prosecution of owners of bullbreeds under Breed Specific Legislation. However, there is some evidence available that might given an indication of the scale of the problem nationally:

1. There was a recent 'blitz' in Liverpool (which appears to be a regular occurence) by the police, in which just under 50 dogs were seized, though the breakdown of how many were due to BSL and how many due to other reasons has not been publicised. In 2011, it was reported that 'hundreds' of dogs were seized in a similar 'blitz':
http://www.liverpoolecho.co.uk/news/liverpool-news/hundreds-dangerous-dogs-seized-merseyside-3364951

2. In 2012, the Metropolitan Police are reported as seizing 'nearly 800' dogs:
http://www.bbc.co.uk/news/uk-england-london-21485508

3. There is the apparent evidence obtained by FOI of the following:
http://www.endangereddogs.com/EDDRDDAShocker.htm

"A Freedom of Information (FOI) request, submitted by a member of the Pet Owners Parliament, has revealed that a total of sixty dogs have died while under the care of the Metropolitan police force in little over a year...Figures released earlier this week show that on average, the Met Police seized one dog each day under the Dangerous Dogs Act between April 2007 and 23rd May 2008 and an average of one in every seven dogs held, or one dog each week, died during their time in kennels. The FOI reply also revealed that the “majority” of these deaths were from illnesses although specific statistics on causes of death are not kept."

What would be the benefits of reform? In particular, can you identify any:
economic benefits (costs of the problem that would be saved by reform); or
other benefits, such as societal or environmental benefits?
For example, if the problem is one which must usually be resolved in court, court fees might be payable; this money might be saved if the problem was reformed. If it involves consulting a solicitor or barrister, legal costs might be relevant. Or, if the problem was one which caused significant costs to businesses, you might be able to tell us how much time or money businesses would save.

I believe the benefits of reform would fall in the following areas:

1. Repeal of BSL would save on court fees and legal costs, costs of police and other agencies manpower on a useless objective (for example, the most recent blitz on 'pit bull types' undertaken by Liverpool police), kennelling costs etc.

2. Dog welfare - as dogs will not either be killed, or have their lives severely proscribed, needlessly. This will also mean families will not be subject to enforced seizure, killing, or severe limitations imposed on their loved pet. They would also not be forced to pay for exorbitant insurance fees, or tattooing their pets (currently required under the legislation).

3. Public safety and welfare- the focus on certain breed types, and what they look like, appears to have caused a tendency for other dog breed owners to downplay their own responsibility for control of their dogs. Fair and equitable treatment of bull-breeds will enable all owners to develop their skills as responsible dog owners. Currently (especially as there is a large amount of media hype around bull-breeds) people are demonized if owners of bull breeds such as Staffordshire Bull Terriers, American Bulldogs, and their many crosses, especially if owners are working class males. This is not conducive to safe and responsible dog ownership for such owners, who may be afraid to seek advice on dog behaviour, training techniques, even vet care, once they realise their dogs might be summarily seized if they are noticed. Fear among the bull-breed owning community (in all demographics) of having their non-aggressive dogs summarily seized and killed appears very high at present. This is very evident among social network users, for example. There is evidence of some people committing suicide and developing mental health problems due to grief, after their dogs have been killed under BSL.

4. It should also be remembered that the relative risks of dog attacks are actually small, and what is more there is no sound evidence that bull breeds of any type (including any dog subjectively deemed 'pit bull type') pose more risks than other, permitted breeds. Therefore a large amount of money is being wasted on policing non-aggressive dogs (and their owners) purely because of their looks.

5. The relatively small amount of work needed to repeal the BSL part of the DDA, in relation to the benefits and cost savings, would be highly cost-effective, I would argue.

If this area of the law is reformed, can you identify what the costs of reform might be?
The costs of reform might include, for example, the cost of the legal profession and judiciary undertaking training to learn about a new statute.

I do not foresee any costs of reform apart from the cost that would apply to repealing any other law.

Does the problem affect certain groups in society, or particular areas of the country, more than others? If so, what are those groups or areas?
As an example, if the law relates to agricultural land, it might affect farmers and their families more than the general population.

This legislation appears to disproportionately affect working class people of all demographics (though especially young males), as bull-breeds (especially the Staffordshire Bull Terrier) are popular with working class people, although more and more people of other demographics appear to have become enamoured with them, especially as so many bull-breeds appear to come into animal rescues.

In your view, why is the Law Commission the appropriate body to undertake this work, as opposed to, for example, a Government department, Parliamentary committee, or a non-Governmental organisation?

Successive governments appear to be swayed by the "ideology" of the issue - including media misrepresentation of bull-breeds as 'devil dogs', problematic use by police of the term 'status dog', and some public (I would argue misguided) perception of risk and consequent fears. There may be a vested interest in parading a 'tough on law and order' facade, though using a very easy target, even if there is no resulting actual gain in public safety. There does appear to be a 'moral panic' (Cohen, 2002) with regard to bullbreeds. I believe that the Law Commission would inevitably be working on examining the issue from a specifically rational perspective pertaining to jurisprudence, and that this methodical work will uncover how problematic BSL actually is, and why it should be repealed. This would be in marked contrast to Government and Parliamentary approaches so far. Many non-Governmental organisations globally have analysed BSL, found it unfair, irrational and not useful to public safety, but have been unfortunately ignored by governments.

Have you been in touch with any part of the Government (either central or local) about this problem? What did they say?

Appeals and petitions, in a wide variety of forms, have been made to successive governments since 1991 by many people. In recent years, nation wide demonstrations have been regularly held in protest at BSL. There has been a remarkable intransigence by government representatives on this issue. As just one example (and as is evident in their Report and Executive Summary included in the literature bibliography above), the recent Select Committee on Dog Control and Welfare, despite repeated calls from dog behaviourists, and organistions such as the Dogs Trust, Kennel Club, and the RSPCA to repeal BSL, and evidence supporting the repeal of BSL being brought to their attention, nevertheless recommended extending BSL as the government wishes. Various organisations and individuals such as the Dogs Trust, Battersea Dog's Home, and solicitor Nick Freeman have worked to promote the Staffordshire Bull Terrier breed (a breed inordinately adversely affected by both the legislation and consequent moral panic), yet this appears to have fallen on deaf ears as far as most government representatives are concerned.

Is any other organisation such as the Government or a non-Governmental group currently considering this problem? Have they considered it recently? If so, please give us the details of their investigation of this issue, and why you think the Law Commission should also look into the problem.

I have mentioned the Select Committee on Dog Control and Welfare above. Various organisations and individuals both nationally and internationally have considered the issue - some of which are stated in the relevant literature section of this form.

Thank you for your response.
Please send it to us by Thursday 31 October 2013.

Send to: Twelfth Programme Project Officer
Law Commission
Steel House
11 Tothill Street
London SW1H 9LJ
Tel: 020 3334 0252
Email: programme@lawcommission.gsi.gov.uk
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Carers should act in solidarity - not martyrdom

Regarding the deaths of the three disabled children in New Malden, Surrey, and the apparent charging of their mother with murder, and the media coverage of the case, I felt the need to say this yesterday elsewhere:

"As some people will know, I am a carer, to my daughter Stevie. My own and my daughter's lives (since she got ill in childhood) have been made hell, both by the illness, but particularly by Social Services and the NHS, throughout and ongoing. My daughter and I are in solidarity with each other, have always been, and place the blame/anger where it belongs, and fight those agencies as best we can. Some others don't however, internalising the prejudice and callousness they suffer, turning it in on themselves, or worse, the people they are caring for. It doesn't help that we (carers) are constructed as martyrs either, especially in the press (as is currently happening) and few are able to resist that construction. And the state benefits from all of that, while lives are destroyed. In my opinion, carers need to become more politically organised, within a rights-based discourse (and not a 'martyr' discourse) in solidarity with the disabled people they care for. We've certainly been doing this since Stevie got ill, and intend to continue. There is a lot that can be said about this latest case, or more accurately perhaps, the media coverage of it so far (also some chilling 'comments by the public'), though this status may not be the place. What I will say though is that it is based on a lack of respect for both disabled people and carers, despite the hand-wringing and crocodile tears. When taken with the 'scrounger' rhetoric employed by the government, and the 'authors of your own misfortune' rhetoric that gave rise to that (yes, that's where my book comes in): it indicates some extremely sinister attitudes towards vulnerable people. If I appear a little too 'political' for some, there's obviously good reason for my actions."

Friends also pointed out to me some other issues:

1.That disabled people and carers have been positioned as competing groups, their need for support most often seen as an 'either or' situation;

2.That is is actually an issue of domestic violence when intimate caregivers harm or kill those close to them, with the dynamics of spouse-battering, as the media uses similar victim-blaming language and language that supports the violent person who snapped ("it was a crime of passion," "he just loved her so much he snapped," etc.);

3.Care is actually a crisis situation, and caregivers need more support, but also to not be depicted as martyrs or heroes but rather as allies and given additional outside support as needed, so that disability is not always thrust into a dynamic where one or more parties stay powerless, but rather true support and enabling of freedom stay at the forefront, so that disabled who need care and their caregivers are mutually supported and given what they need;

4.That most literature on caregivers is based largely on unsafe assumptions i.e. that a caregiver will even be available (when for some disabled people they are hard to come by and nobody in a family 'steps up' indeed there may be problems in family relationships preventing this etc), and that there will be financial support from some mysterious sources.

5.That both disabled people and their carers often live in fear and in crisis because of the lack of resources and support accessible to them;

6. That there has been an implied justification of these apparent killings, whereas if the children were not disabled, there would be an outcry.

These voices will likely not be heard in mainstream media. The seductive discourse of carer as (potentially violent) martyr has so far prevailed, hence my need to include my own and other, more critically analytical and political voices, here.

Canine Breed Specific Legislation and Irrationality in UK Law

In my last post here, I wrote about Bob Crow's support of my attempts to get canine breed specific legislation (BSL) repealed, and mentioned one strategy I had undertaken, the result of which I was awaiting at the time of Bob's death.

A few days later, that result came through. I had written to the Law Commission, in response to their call for proposals, to get certain unfair laws changed. I demonstrated why Section 1 of the Dangerous Dogs Act (the part pertaining to BSL) is unfair, irrational, wasteful of resources, and a futile way of dealing with any problems that may (or indeed may not) be related to dog welfare and control, or public safety.

The Law Commission turned down my proposal. The reasons for this rejection are, in my opinion, inadequate, lazy and irrational in a number of ways. Their rationale for the rejection was as follows:

"We have decided not to include your project in our 12th Programme because it is fundamentally a practical matter better dealt with by veterinary experts, and others with expertise in dog breeds and behaviour, in conjunction with the Government."

The problems with this rationale are:

1. Law is not made by any sort of 'expert' as such, but within a judicial system. Therefore repeal of BSL was within the remit of the Law Commission.

2. The evidence that I supplied (from myself and others) constituted an adequate form of expertise which could have (indeed should have) been taken into consideration by any party in a position to repeal the legislation.

3. By deeming BSL a 'practical matter' by the logic of the Law Commission, ANY law is merely a 'practical matter best left to the experts and the government', meaning no-one should even bother asking the Law Commission to examine problematic legislation, and no legislation should ever be repealed by the judicial system or subject to public objection and campaigns to change. Rape in marriage could still be legal because "it's fundamentally a practical matter".

4.By the Law Commission's logic, laws on driving safely constitute "fundamentally a practical matter" best left to Casualty doctors and surgeons to deal with.

The following was the remit of consideration for proposals by the Law Commission:

"Please tell us about a problem only if it relates to the law and is:

causing substantial unfairness, or

widely discriminatory or disproportionately costly, or

caused by laws or policies that are complex and hard to understand or
caused by laws or policies being out of step with modern standards."

As the consultation period is now over, I am making public my proposal, made to the Law Commission last year, which followed the rubric of their questions. I will exhibit this on this blog in another post, and have already exhibited it on my facebook group "Strategies to repeal BSL UK" (searchable on Facebook). Alternatively, people may request a copy by various routes (I'm @academicange on Twitter, for example) and I can arrange.

Since I sent this proposal to them last year, I have learned two things. One is that the "burden of proof" on the defendant, while condemned by lawyers, is not unprecedented, as I had originally believed. See A. Ashworth and M. Blake, 'The Presumption of Innocence in English Criminal Law' [1996] Crim LR 306 for more on this.

The second is, that due to the efforts of another person using the Freedom of Information Act, and to whom I am extremely grateful, I was finally able to access the unstable and poorly sourced document used by police, and recommended by DEFRA, to deem a dog of 'pit bull type'. This document is from a 1970's pit-bull fancier newsletter of all things, and frankly has to be seen to be believed. It demonstrates how utterly unstable the category of 'pit bull' actually is, to the point that any dog could be said to be one, and this ties in with both what is known about canine genetics and the so-called 'pit bull', and the issue of function versus form, as discussed in Karen Delize's The Pit Bull Placebo.

Canine breed specific legislation can be demonstrated to be perversely irrational in many ways. The Law Commission's decision to ignore appears part of a tapestry of irrationality in UK law, that I've only in recent years perhaps come to appreciate more fully.