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Feature Libel laws and scientific debate

An old battle: England’s libel laws versus scientific debate

BMJ 2010; 340 doi: https://doi.org/10.1136/bmj.c1227 (Published 10 March 2010) Cite this as: BMJ 2010;340:c1227

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Beating the drum again

Beating the Drum, Again

I think this must be a case of déjà-lu – I have read this before.
Prof Strunin commented on the cause célèbre of Drummond Jackson in
Anaesthesia in 2007. I prepared a piece such as this as a comment but the
then editor of Anaesthesia declined to print on the grounds that it didn’t
comment on a previously published article. We readers all know how editors
live in a world of their own.

The short story is that the Drummond Jackson case bankrupted the MDU
and changed their policy to boot. After Drummond Jackson, the MDU would
not support libel actions of medical practitioners. Every now and then, of
course, they break their own rules (1) because insurers are allowed to do
that sort of thing.

But that is not all. Those doctors who enjoy aging libraries can live
again the days of their medical school when this story was fresh, even
more so now that the BMJ archive electronically goes back to the year dot.
Mr Drummond Jackson had published his technique of intermittent
methohexitone and Prof Robinson printed a paper (2) criticising it in
1969. The result was a libel action between Drummond Jackson and the BMA
along with the four authors of the paper. The case was heard in the high
court in the summer of 1972. Looking back, the case concerned a single
handed dentist giving methohexitone to a dental patient sitting in a
dental chair and whether that technique was an unacceptable cause of
cardiac arrest.

The preliminary action was whether a scientific article should be the
subject of a libel action. I would have thought (since that was the year I
was reading law in Cambridge) that the answer was pretty obviously ‘yes it
can’~ nonetheless it is the subject of a separate court hearing that went
to the Court of Appeal. The MDU applied for the action to be struck out on
this ground and it was refused. This went to appeal which failed – Lord
Denning as usual dissenting. He commented that it would be a sorry day if
scientific research were impeded through court actions.

The stage was now set for the parties to slog it out in the High
Court and Heavens ! didn’t the lawyers coin money from that one. It was
almost as good a payer as medical regulation is nowadays in 2010.

The accounts of the oral testimony are numerous and are to be found
in the BMJ, 1972 at the following pages. Vol 2. at page 772. Vol 3 at
pages 60, 122, 184, 245 300, 360, 423. Clearly this case ran and ran. Vol
4, There are reports at pages 246, 254, 308, 313, 364, 372, 494. The case
claimed the attention of every member of the medical profession during
that summer. Mr Drummond Jackson used intermittent methohexitone for his
dental work in an upright dental chair and this was associated with two
deaths.

The ‘Lewes’ case involved woman of forty who ruptured her berry intra
-cranial aneurysm during this. The case took weeks to be stated and then
cross examination began. By the summer recess, there were still months to
go – the lawyers obviously rubbing their hands with glee and running off
to the bank with their pockets stuffed with gold. The report of page 423
involves Dr Bourne’s evidence and his cross examination was not finished
by the time the court rose for the summer. How times change – he is
reported to say: “It is better to have the patients pink as a cherry and
sick as dogs with cyclopropane than black as your hat with gas” (nitrous
oxide). Dr Bourne had first described fainting in the dental chair (3) and
was appearing for the plaintiff. When the case reopened in the autumn,
the Judge made a statement to the court (page 254) where he pointed out
that if the plaintiff established his case , the damages were likely to be
small. He also pointed out that not all the witnesses for the plaintiff
were wholly in favour of the technique

The result of this judicial intervention – carefully phrased so as
not to prejudice the case - was that the plaintiff (Drummond Jackson)
withdrew his complaint of libel and on agreement, both sides would meet
their own costs. It was ‘well known’ at the time that this case had
virtually bankrupted the MDU and this was associated with the annual
subscription rising from £25 to £40 per annum. They also abandoned around
that time the life time subscription to the MDU which represented ten
years subscription of £250. But now, fifty years later, if it bankrupted
the MDU, how did the plaintiff pay his lawyers, you may ask? The plaintiff
may well have been supported by the makers of drug he was using –
methohexitone.

The BMJ printed a pompous editorial about freedom of the medical
press just after that (page 313). An editor’s estimation of his own worth
never changes and he grandly quoted Lord Denning on the subject that
scientific research should not be impeded by libel action omitting to
mention that this was a minority judgement and so did not represent the
law of England. Dear Dear, we have got through a few editors since then,
and previous performance has not caused me to change my views of them for
the better.

A more important case at the time – the thalidomide case – merited
one page in the BMJ. The thalidomide litigation had stretched out for ten
years, bogged down with very little happening. The lawyers applied for
gagging orders banning comment pleading that the case was sub judice and
therefore must not be discussed. On appeal, Lord Denning (again) declined
to make the gagging order, on the grounds that there had been so little
progress. If Lord Denning saw further than others because he stood on the
shoulders of giants, all the more we can understand what pygmies we have
as judges now.

And finally as if one needs one – there was even a novel written
about all this. ‘Hall of Mirrors’ by John Rowan Wilson who I think was a
sub editor on the BMJ for some time during the action. Not one I can
recommend I regret, but that does not mean others will not find it
riveting.

Oliver Dearlove FRCA

Refs 1. Review Surgeon hits back at bullies in the press –BMJ 1998
317 1326

2. Wise CC Robinson JS Heath MJ Tomlin PJ Physiological responses to
intermittent methohexitone for conservative dentistry BMJ 1969 ii 540-543

3. Bourne Lancet 1957 (2) 499

Competing interests:
None declared

Competing interests: No competing interests

22 March 2010
Oliver R Dearlove
Consultant Anaesthetist
Royal Manchester Children's Hospital