Meritless case cries out for reform of defamation laws

The two Chelmsford Hospital doctors who sought vindication of their “deep sleep therapy” in the defamation courts must be wondering what hit them.

Federal Court judge Jayne Jagot delivered a scathing rebuke of the men, describing the case as an attempt to “rewrite history” over the “dangerous experimental treatment” from which at least 24 patients died.

The doctors had claimed to be the victims of disgruntled patients and a Scientologist smear campaign against psychiatrists.

Instead, Justice Jagot found one doctor, John Herron, had “no residual reputation to be protected” and the other, John Gill, was already “held in very low estimation”.

That Justice Jagot delivered such a forensic debunking of the doctors’ claims is to be applauded. But it should never have got to this point.

A royal commission in 1990 had roundly condemned Herron and Gill over their deadly deep sleep therapy at Sydney’s Chelmsford Private Hospital in the 1960s and 70s.

But both men avoided disciplinary proceedings, and in one case criminal charges, because by then the case was too far in “the distant past” for them to receive a fair hearing.

Yet here they were, 30 years after the royal commission — and almost 50 years after many of the events in question — demanding the right to sue author Steve Cannane and publisher HarperCollins over a book about Scientology that briefly touched on the horrors of the deep sleep wards.

Astoundingly, they were allowed to do so. In any sane legal system, the proceedings would have been thrown out of court the minute they were filed, as an abuse of process.

That the case went forward is no fault of the judge. In allowing the case, Justice Jagot noted the extraordinary difficulty “if not the impossibility” of the task facing Cannane and his publisher.

The royal commission findings were not admissible as evidence. Potential witnesses had died, disappeared or were in poor health. Documents had gone missing. But she found that, as defamation law currently stands, “these are triable issues”. Cannane would have to prove the truth of it all.

The trial took eight weeks, during which several now elderly former patients took the stand to repeat harrowing testimony given decades before.

Steve Cannane was lucky. He had a publisher behind him willing to take on committed and wealthy adversaries. Many other journalists and authors don’t. And when a court agrees to hear a case even as lacking in merit as this one, they may feel compelled to agree to settle.

Rarely has there been a case that cries out more for reform of our archaic defamation laws.