An unfree NHS and medical press in an unfree societyBMJ 1994; 309 doi: https://doi.org/10.1136/bmj.309.6969.1644 (Published 17 December 1994) Cite this as: BMJ 1994;309:1644
Last year I wrote an editorial on free speech but was stopped from publishing it. Our lawyers and insurers advised against publication. The full story still cannot be told. I will say, however, that the editorial was written in a white heat after receiving faxes from two sets of lawyers saying that if we published anything on a particular topic without consulting them legal action would follow. I had never heard about the topic until we received the faxes, and my instincts were to find out everything I could and publish a full story. Unfortunately that could not be, but much of the editorial I wrote concerned the general issue of free speech within the NHS and in medical journals. A revised version of that editorial is printed below.
Free speech has probably never existed within the NHS, and seven years ago we gathered together 20 examples of where attempts had been made to suppress important health information.1 Today we publish a second set of examples (p 1640),2 and most NHS employees feel that restrictions on freedom of speech have become much more severe since the health service has become more commercial.3 4 Speaking up on deficiencies within a hospital was once a public duty; now it is viewed as a betrayal of the competitive interest of the NHS trust. Gagging clauses have been written into the contracts of NHS consultants and other employees, and there have been several high profile cases of whistleblowers being persecuted.6 7 8 Public anxiety that matters of great public importance were being suppressed compelled the government to produce a “whistleblowers' charter,”9 but many observers thought that the charter made life easier for those who wanted to suppress information rather than for those who wanted to blow whistles.10
Effective organisations encourage internal debate and dissent,11 and the NHS Executive wants NHS employees to talk to their managers about problems in the service.8 Unfortunately, employees are sceptical about this message of glasnost from the top because of aggressive local managements,12 instructions not to talk to anybody outside the service without consulting management, gagging clauses written into contracts, and clear examples of persecution of those who take their worries to the stage of talking to the press.
Britain: a society with an unfree press
Yet we in Britain should not be surprised that NHS managers attempt to restrict free speech—because we live in a society that sets a low value on free speech. NHS managers are learning from their superiors. The United States has freedom of speech written into its constitution and a Freedom of Information Act, whereas Britain has no written commitment to free speech and a vast array of restrictive laws and practices that culminate in an Official Secrets Act. We at the BMJ see this most clearly in terms of freedom of the press. Britain, argues the Columbia Journalism Review, the world's leading scholarly publication on journalism, has an unfree press that is facing a crisis.13 “What has happened,” the review asks, “to the land of Magna Carta?”
A free press lies at the heart of a free society. When the United States Supreme Court allowed the publication of the Pentagon papers by the American press, it said:
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfil its essential role in our democracy. The press was to serve the governed, not the governors. The government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.
British courts are much more circumspect in their recognition of the importance of a free press, and a thicket of libel, copyright, and confidentiality laws stop free speech.14 Because of a fear of libel, said the newspaper owner Cecil King, “inefficient hospitals are not named, doubtful share flotations pass without comment, and some fraudulent individuals go unexposed until it is too late and someone has been hurt.”13 King made these comments many years before the case of Robert Maxwell, who used the libel laws to silence the press and so hide extensive illegal activities until after his death (when libel laws no longer apply). What's more—in the judgment of most international observers of press freedom—the position in Britain is becoming worse.12 14
Gagging the medical press
Many doctors naively imagine that these restrictions do not apply to the medical press—but they do. The BMJ was the defendant in one of the longest running libel actions in British legal history. We receive many letters from lawyers threatening libel, and one or two cases have run for years. We spend thousands on lawyers' advice (thousands that many publications cannot afford), and every week articles and letters from readers are emasculated for fear of libel.15 The BMJ Publishing Group's special journals live under the same threat, and it looked at one stage as if publication of our journal Tobacco Control would be prevented by British libel laws. Regularly I have to justify to the American editor of Tobacco Control changes in text that are dictated by British libel law but which are inexplicable to him: no such changes would be necessary in the United States.
Editors seem to be indulging themselves when they write of the importance of freedom of the press, and the British public is more concerned with our debased press than with editorial freedom. Britain has the worst of both worlds: a squalid, prurient tabloid press and a muzzled quality press. Unfortunately, the two go together, as the Columbia Journalism Review explains: “The British press holds itself in such low esteem because it lacks a proper constitutional function. Humiliated at every turn, it has incentive to behave badly—like a juvenile responding to disapproval with delinquency.”13 We are in this sorry state because of our rigid class system. The sociologist Edward Shils observed in 1956 that “the acceptance of hierarchy in British society permits the government to retain its secrets, with little challenge or resentment…. The deferential attitude of the working and middle classes is matched by the uncommunicativeness of the upper middle classes and of those who govern…. No ruling class discloses as little of its confidential proceedings as the British.”16
What Britain needs is a culture, an NHS, and a legal system that values free speech and debate. To help us on our way we need a bill of rights that enshrines free speech.