Former psychiatrist John Herron and Dr John Gill have failed in their bid to sue journalist Steve Cannane and his publisher for a chapter he wrote in his book Fair Game: The incredible untold story of Scientology in Australia.
Case background – an attempt to rewrite history
The applicants (plaintiffs) claimed that their reputations were damaged by the chapter on Scientologists’ involvement in exposing the lethal malpractice of deep sleep therapy (DST) at Chelmsford Private Hospital during the 1960s and 70s. Bungles and delays by health authorities meant the doctors were never brought to justice for their roles in the scandal. A Royal Commission held at the end of the 1980s referred material to the Commonwealth Director of Public Prosecutions and the Medical Tribunal for criminal investigation, however Herron and Gill succeeded in having proceedings against them stayed on the basis that the delays had hindered their right to a fair trial.
Justice Jayne Jagot of the Federal Court ruled that a number of the claimed defamatory imputations (meanings) did not arise from the publications. The defence of truth was upheld for the seven imputations that were found to be carried. As was the defence of statutory qualified privilege, meaning that Cannane’s publishing was found to be in the public interest, and reasonable in all of the circumstances.
Within Justice Jagot’s judgment, she has included reasons against any award of damages to the plaintiffs in the event of a successful appeal. She ruled that Herron and Gill’s reputations were already damaged by the 1989 report of the Chelmsford Hospital Royal Commission. Both Justice Jagot and head of the Commission, Justice Slattery found they’d engaged in unethical conduct and were unreliable witnesses.
A challenge for Cannane in proving the truth of the material he wrote was that a Royal Commission does not have the same rules of evidence and burden of proof as a court. Its findings were therefore not admissable as evidence of the truth of the Chelmsford malpractice. Cannane and HarperCollins were put to the trouble of proving their case from scratch, relying on original documents and witness testimony on events that happened more than forty years ago.
DST was a dangerous experimental treatment for which there was no medical indication for any patient subjected to it at Chelmsford. However, the applicants’ evidence and submissions are fixated on a single objective – to have the findings in this proceeding rewrite history and vindicate their conduct despite the overwhelming evidence to the contrary and the lack of any cogent evidence to support them.Justice Jagot, Herron v HarperCollins Publishers Australia Pty Ltd (No 3)  FCA 1687, para 4
Lane Sainty did a great write up of the trial for The Monthly. Thanks to the coronavirus pandemic and the court’s provision of remote access, I was able to observe most of the hearing via Microsoft Teams. I logged on toward the end of the second week at the opening of the defence but was troubled that virtually no press were covering a trial I considered to be of major public importance and with serious potential implications for journalism. Suffice to say I ended up somewhat overcommitted, observing and blogging about weeks of the proceedings, getting a big headache, and perhaps going into a bit more detail than most news reports. As I saw it, if the plaintiffs succeeded, the public would have little information about the evidence given at trial by former patients, nursing staff, six medical experts and Cannane himself.
The significance for journalists and authors
Journalists had reason to be nervous about the implications of the case. Steve Cannane underwent a repetitive and punishing three day cross examination over a 30 page chapter of his book on Scientology in which Dr Gill’s name is mentioned only once. Herron, who’d been successfully sued by a former Chelmsford patient, and who was later deregistered for unrelated conduct, received more attention. Cannane found himself under attack for relying on the eleven volume report of Justice Slattery following the nearly two year Royal Commission. ‘What’s the point of investigating anything if you’re just going to trust what Justice Slattery said?’ was one of the questions Cannane faced.
To me the cross examination appeared excessive and unnecessarily antagonistic. Although I gave evidence for four plus days, I underwent a single day of cross examination in Benhayon v Rockett, and it was comparatively polite compared to the grilling Cannane got.
Steve, however, remained cool throughout and was rewarded with complete vindication and what amounts to an endorsement of his journalism. Justice Jagot wrote that ‘he consistently appeared as a careful and honest witness who had taken numerous steps to ensure the accuracy of the story he was telling.’ (See paras 805 – 848 for a good tutorial on how to research and defend a publication.)
Given the comprehensive nature of the Royal Commission and its extensive findings, including serious adverse findings about the conduct and dishonesty of the applicants, it was reasonable for Mr Cannane to treat the Royal Commission report as an authoritative source for that part of the Chapter concerned with events at Chelmsford. It is difficult to conceive of a source that an investigative journalist might perceive as more credible or trustworthy. The fact that he described events at Chelmsford as involving atrocities and horrors is because that is what the Royal Commission report found.para 811
Thanks to him, there is now a useful legal precedent for journalists wanting to rely on Royal Commission reports as sources of information.
Personally, I found the plaintiffs’ attitude to the harm done at Chelmsford and the risks of DST deeply disturbing. Throughout proceedings they and their lawyer persisted with baseless assertions that Harry Bailey’s ‘notorious’ DST therapy was a respectable and effective treatment, and that the documented deaths and morbidities were mere coincidence.
I understand that litigation is an adversarial system but, in my opinion, the badgering, repetitive and protracted cross examination of expert witnesses on minor clinical details was uncalled for. Their lawyer continued the blasé dismissal of the death and suffering caused by the Chelmsford malpractice, and denial of any culpability on the plaintiffs’ part in her closing argument. It came across as an arrogant and callous attempt by the plaintiffs to erase their terrible legacy and made for depressing viewing. Unfortunately the closing address coincided with the anniversary of my father’s death, so it was pretty difficult to take and I had to log out after a while. The mounting, preventable, coronavirus death toll probably didn’t help.
It was therefore a great relief to me too that Justice Jagot’s ruling was a rejection of that cold-blooded attitude to human suffering.
Incontrovertible expert evidence
Under cross examination, each of the experts for the defence was asked if they were aware of minor journal papers and medical text book entries on apparent benefits of sedation therapies. Most examples had only a passing resemblance to the astonishingly dangerous regime practiced at Chelmsford under Dr Harry Bailey. Either the plaintiffs’ lawyer does not understand the way that medicine is practised, or she was acting under instructions to pursue a misguided line of questioning. Each of the experts rejected the presumptions. A responsible clinician doesn’t adopt a potentially lethal procedure on the basis of a minor journal article. They consider medical literature in the context of a body of studies and their own clinical training and experience, which includes sober assessment of medical risks. Professors Hickie and McGorry both commented on the questionable quality of many journal papers and spoke of the responsibility to weigh potential harm against potential benefits. The experts said that it was well known in the 1960s that there were safer alternatives to sedation therapies. Professor McGorry spoke of the primary duty to first do no harm.
Herron and Gill had argued throughout the case that the clinical care at Chelmsford could not be faulted, primarily the high standard of care provided to DST patients by nursing staff. However, the expert witnesses all criticised the pro forma administration of heavy barbiturates and the lack of a supervising doctor on duty at all times. At para 43, Her Honour found that the nursing staff, unbeknownst to them, were ‘asked to perform an impossible task – to try to safely administer a highly dangerous regime which a qualified anaesthetist in an intensive care unit would have had difficulty in managing.’ She said that this was not the nurses’ fault as they did not have the qualifications to assess the risks.
Ultimately, the expert evidence for the defence was unanimous and unchallenged by any evidence brought by the plaintiffs. Her Honour concluded that DST was practiced without any medical justification; patients were not informed of risks and were therefore unable to give informed consent.
A significant number of patients died while under or immediately after the administration of DST in circumstances where it should be inferred from the evidence that DST caused their deaths. Mr Herron and Dr Gill continued to administer DST despite knowing of the deaths and took none of the steps that would have been necessary at the time to investigate the cause of death and suspend or cease the treatment if the cause could not be mitigated… The conclusion which must be drawn on the evidence is that DST should never have been performed at all at Chelmsford. To subject patients to it as occurred at Chelmsford in the 1960s and 1970s was unethical, grossly negligent and involved sustained medical malpractice by reference to the applicable standards at the time.Para 3
The high price of publishing
I can recommend Fair Game as a well written, meticulously researched and fascinating read. Former Australian of the Year, Prof. Pat McGorry was asked under cross examination if he’d read it and he also gave it a glowing review.
Thanks to Steve, and now Herron and Gill’s ill conceived defamation action, more people will know about the horrific events at Chelmsford. As his defence lawyer, Tom Blackburn SC said, ‘these events should never be forgotten’.
Unfortunately writers sometimes pay a high price for making sure that happens. I know how punishing it is to defend years of litigation brought by a thoroughly disreputable person. Steve Cannane handled it like a champion. Until the trial of his failed defamation action, plaintiff Serge Benhayon had never faced the scrutiny he deserved, and as with Herron and Gill, that was partly due to the failure of health authorities to do their job of protecting patients.
It was a grave injustice to the Chelmsford victims that Herron and Gill did not face proceedings decades ago, but thanks to the hard work of Steve Cannane, his publishers at HarperCollins Australia and his legal team, he’s finally achieved the outcome that eluded those harmed. He’s surpassed the findings of the Royal Commission to unequivocally prove the negligence and malpractice in a court of law. Herron and Gill cannot sue anyone ever again for publishing the substance of the court’s findings.
Australian journalists should also thank Steve for establishing a legal precedent on the reliability of Royal Commission findings, and for setting a great example on reasonable conduct in reporting and publishing.
Although the defence has been awarded costs, those are unlikely to cover their outlay. From my own experience I estimate that the legal costs are likely in the vicinity of $2m per side. That, along with the time, work and worry involved is far too high a price to pay for publishing the truth.
- The Monthly |Chelmsford Revisited Sep 2020 (writeup of trial)
- news.com.au | Doctors lose defamation case against Steve Cannane and HarperCollins Australia 25/11/2020
- Sydney Morning Herald | Chelmsford doctors lose bid to ‘rewrite history’ in defamation case 25/11/2020
- Tony Ortega |Steve Cannane vindicated as Australian judge denounces ‘Deep Sleep Therapy’ doctors 25/11/2020