An Enclosures Act of the Mind? Libel and the NHS

Here’s an article I posted yesterday on the OurNHS section of OpenDemocracy.


In many ways, the Defamation Act 2013 was good for medicine. During the course of the Libel Reform Campaign, English PEN met dozens of doctors and medical journalists who had been silenced by the famously restrictive English libel law. Pharmaceutical companies used the archaic law to prevent the publication of valid criticism by medical professionals. Fiona Godlee, editor of the British Medical Journal, told a Libel Reform rally how factual reports on medical treatments had been ‘softened’ or even spiked because of libel fears.

The Defamation Act 2013, which English PEN and the Libel Reform Campaign spent three years fighting for, gives strong legal protections to peer reviewed articles. Patients and commissioners should be able to learn of any doubts that doctors have about pharmaceuticals and new treatments. The Act also includes measures to limit the progress of trivial claims, and a new public interest defence. In 2007 Goldacre faced a libel claim from vitamin pill manufacturer Matthias Rath after he used his ‘Bad Science’ column to critique claims that these pills could cure AIDS. Although Goldacre eventually won the case brought against him, the battle left him significantly out of pocket. The new Act should help journalists like Dr Ben Goldacre see off the pharmaceutical libel bullies.

Unfortunately, when we look beyond the pharmaceutical companies to healthcare more generally, the new Act is missing a crucial provision. Case law rightly prevents the government (including bodies like the NHS) from suing its citizens for libel, recognising the public interest in unfettered criticism of our public services is just too great. But private companies taking over government work and delivering health and other public services can still use libel law to silence this criticism.

When few public services were contracted out, this loophole mattered less. But in recent years large corporations have wormed their way deep into public service provision.

The Labour party proposed amendments not just to encode the case law protecting open criticism of public services (the Derbyshire principles) in the statute books but also – crucially – to extend the law to private companies performing contracted-out public work. But government MPs and Peers voted against these amendments.

Citizens are now discovering that that some areas of public interest have been suddenly and unexpectedly cordoned off – an Enclosures Act of the mind.

During the final Defamation Bill debates, Justice Ministers Helen Grant MP and Lord McNally rejected the amendment to extend the Derbyshire principle to corporations. Thye argued that criticism of a company on the public work they performed might affect their shareholders and other parts of their business operations.

These are weak arguments. Many of these companies have been established only to bid for public contracts.

More importantly, if you take the public pound, you should be open to public criticism. Winning a public contract confers many benefits that a private contract does not. Risk is low and you often win an effective monopoly. Why should companies not be held to the same standard as NHS hospitals and other public bodies that would otherwise deliver the service?

A clear example is Atos Healthcare. Contracted to perform disability benefits assessments by the Department of Work & Pensions, Atos became the target of criticism from those living with a disability and their carers, who posted their concerns on the CarerWatch forum. Atos lawyers wrote to the forum platform operator and the entire forum was deleted. The criticism of Atos is no longer available online.

Had the DWP performed the assessments we would still be able to read the carers’ concerns about disability living allowance assessments. When we know crucial voices are missing from the conversation, how do we know whether Atos have done a good job or not? How can civil servants in the DWP make a decision on whether to award more contracts to the same company? Imperfect information leads quickly to bad decisions.

Another journalist I met during the course of the Libel Reform Campaign asked not to be identified. He works for a large UK-wide media outlet, and experienced great difficulty in publishing a story about a chain of private care homes that accepts placements from the local authority. A Freedom of Information request to a local hospital revealed an unusually high number of A&E admissions originating at one particular care home. Following a legal exchange, the in-house lawyer recommended that these facts were removed from the story, which was weaker as a result. The company has succeeded in laundering its reputation and is now bidding to deliver more care services.

Parliament’s failure to protect our right to criticise corporations is an affront to free expression and the public interest. The free marketeers and efficiency tsars argue that with enough transparancy, markets can work efficiency in healthcare. But our libel laws are a curtain over that transparancy. In reality British citizens face what I have described previously on openDemocracy as a “looming democratic deficit”, where criticism of public services becomes off-limits.

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