2021-01-07 18:53:37
The tort of defamation (usually involving libel) does not often impinge on pharmacy law. It is covered in the current edition of Dale & Appelbe’s Pharmacy and Medicines Law, but the forthcoming 12th edition will feature other torts instead. The recent case of Onwude v Dyer, Godlee and BMJ Publishing Limited [2020] EWHC 3577 (QB) may be of some interest to members as well as providing comfort to journalists who report fitness to practise cases in the pharmacy press.
Mr Onwude is a gynaecologist. He treated two patients with whom he had had an unrelated busines arrangement. Allegations were made about the treatment and his invoicing. The Medical Practitioner Tribunal (MTP) found allegations of misconduct, including an allegation of dishonesty, were proved. It directed that Mr Onwude’s name be erased from the medical register.
The decision was reported in the British Medical Journal (BMJ) under the headline “Gynaecologist is struck off for dishonesty and intention to cause distress”. The report that followed did not mention that the decision would not take effect until the expiry of a 28-day appeal period. The MPT directed an immediate suspension pending any appeal.
In the event, Mr Onwude appealed to the High Court and his appeal was upheld. The BMJ reported the successful appeal. Mr Onwude sued the BMJ and two journalists for libel, based no the report of the original hearing which had not mentioned that the decision and findings were subject to appeal.
The major issues related to the defences of statutory qualified privilege under section 15 of the Defamation Act 1996 and a public interest defence in section 4 of the Defamation Act 2013.
Mr Onwude told the His Honour Judge Richard Parkes QC (sitting as a High Court judge) that the essence of his complaint was that he had never been struck off: he had been suspended pending appeal, but his name had not been erased.
The judge found that the journalist’s decision not to mention in the first article the existence of a right of appeal was reasonable because this was generally known and understood by the readership. He said that “the reasonable reader is not naïve, nor unduly suspicious”.
Although Mr Onwude complained that the BMJ had declined to publish a corrective piece he had submitted, the BMJ’s refusal to do this was reasonable because it had already published a report of his successful appeal.
To rely on the public interest defence, the journalist had to show that she reasonably believed that publishing the statement complained of was in the public interest. She gave evidence that she reported MPT decisions which related to professional practice because they raised issues from which other doctors could learn, and thus avoid getting themselves into situations where their fitness to practise might be brought into question. The judge said that the decision to erase a doctor from the medical register was “of the highest public interest”. He accepted the journalist’s evidence and decided that the public interest defence was made out.