It sounds far-fetched enough to become a Jeffrey Archer bestseller. The daughter of a respected pillar of the community goes to hospital complaining of a sore stomach. With no physical diagnosis, she is referred to a psychiatrist. He uses a controversial technique unlocking, through dreams and hypnosis, hidden painful “memories” of brutal and sadistic sexual abuse by her father. The daughter later recovers, and confirms no such thing ever took place. But by then it’s too late – her father’s reputation is already ruined. His family do not trust him. Now he seeks revenge on the psychiatrist.
Far from being a work of fiction, this is the background to a case heard in the Court of Session last week, where James Fairlie sued Perth and Kinross Healthcare NHS Trust over the alleged actings of one of their psychiatrists, Dr Alex Yellowlees, following recovered memory therapy (RMT) on Katrina Fairlie.
Unfortunately for Fairlie, the case was not allowed to proceed to a stage where he would be given the chance to prove that the doctor had been negligent.
Fairlie had chosen to sue on the basis of negligence. To be successful, he needed to establish that the doctor owed him a duty of care. Lord Kingarth held the doctor’s duty of care was to his patient and not to a third party.
One cannot help feeling sympathy for Fairlie. The judge clearly did. If what he claimed was true, then surely someone should recompense him for the wrongs done to him. He never got the chance to argue that the psychiatrist had acted carelessly and without carrying out proper investigation.
The fact that Fairlie chose to sue for negligence was his downfall. It was always going to be an uphill struggle and would have involved changing the law to say that the psychiatrist also owed him a duty of care.
Had Fairlie raised an action for defamation the outcome may have proved different. He could have sued the doctor for repeating and, indeed it was claimed, informing Fairlie’s relatives of the abuse allegations. By its very nature there does not need to be a relationship between the parties in a defamation action. Simply saying something defamatory about another person opens the author of the statement up to libel proceedings.
To have been successful, Fairlie would need to have proved that the psychiatrist had acted maliciously in making the statements. If he had shown, as he claimed, that the doctor had acted without proper investigation and in an entirely reckless manner, it is conceivable he would have been able to get over that hurdle. He would have been able to get to a hearing to establish whether the doctor had acted in this way, rather than having his case struck out on legal argument.
Had he successfully done so, the case may have had considerable consequences for the medical profession. How far can a psychiatrist go in attempting to unlock the secrets of the mind? There is much to be said for the sanctity of the doctor-patient relationship. Is it not right that a doctor with concerns should be obliged to report those matters, without fear of reprisals? If nothing else, the case is a warning against relying on RMT. But that is of little consolation to Fairlie.