Turning the Page (and the Smith): checking the facts – and why we need to broaden the debate

NOTE: for the short version of this post see the next post Page v Smith Explained

This has been a difficult post to write for reasons which will become apparent. I drafted it several days ago but have been debating since then whether or not to go ahead with it. I’ve now decided that, however difficult it is on a personal level, there is a much broader public interest in raising these issues.

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The world of cyberspace is an unimaginably vast store of information. Some of it is excellent, some of it rather less so, some is misleading and the rest pretty much defies acceptable description. Anyone with internet access now has a route into this huge repository which was previously inaccessible; this resource is, on balance, a great gift to all of us. However, it is not always easy to process that information into useful and practical knowledge.

The illness known as myalgic encephalomyelitis or ME (also sometimes known, unhelpfully, as chronic fatigue syndrome or CFS or ME/CFS) is no exception to this rule. There is an article which is currently (March 2014) doing the rounds within the ME community. A few people have asked me for my view on it so I’m offering my observations here. The article appeared recently on an ME website and is entitled “ME/CFS is an organic disorder“. I should make it clear that I have great respect for the author’s work in general but, in my opinion, there are some problems with this particular piece. However, I would not have written this post had I not specifically been asked for my view.

NB. Before finalising this post, I contacted the website’s manager a few days ago and expressed my specific concerns regarding the article. As a result of our communications, one minor alteration was made but otherwise it appears to retain its original text.

Most of the article deals with the series of judgments in the case of Page v Smith (Page v Smith [1995] UKHL 7) , from the mid-1990’s. These were the facts of the case:

In 1987, Mr Page and Mr Smith were involved in a minor road traffic accident which, it was agreed, was the fault of Mr Smith. Mr Page sustained no physical injury as a direct result of the accident but did suffer a major relapse of his ME and so he claimed damages from Mr Smith. The case went all the way up to the House of Lords (which in 2009 became known as the Supreme Court). The House of Lords (HL) found in Mr Page’s favour, although not unanimously. The Law Lords remitted the matter back down to the Court of Appeal for a final determination. The Court of Appeal, having found against Mr Page the first time around, now found in his favour – in 1996.

This was a protracted and complex case. The important points arising from it in the context of its significance to ME patients/advocates are these:

• This is a personal injury (PI) case in which the main legal issues are causation (how the injury was caused), foreseeability and nervous shock.
• For nervous shock to succeed in a claim for damages, it must result “in some recognisable psychiatric illness” (see para 3 of Lord Keith’s judgment in the HL decision).
• Although ME occupied a large proportion of the discussion and certain findings were made, it was not specifically about ME.
• The comments made by the various judges about the nature of ME as a condition are therefore peripheral (“obiter“, in legalese), not central, to the issues.
• Those comments are not legally binding, nor are they medically significant. They were made purely in the context of deciding this case on its particular facts.
• While this is an important PI case, it is from twenty years ago and has been much criticised. The correctness of the decision was doubted in a 2010 article in the Cambridge Law Journal [1]

It is therefore not correct to say “it is enshrined in English case law that ME/CFS is a physical, not psychiatric, disorder although the mechanism by which a relapse may occur following trauma is via nervous shock“. Medical evidence is also required showing a consequential “recognisable psychiatric illness” which, as the Court found in Mr Page’s case, then triggered a relapse of the ME symptoms. That is how he got his damages – via a psychiatric route. This was not a “landmark” case about ME, nor was it a helpful decision.

Obtaining transcripts of judgments 

This is often a laborious process, even for practising lawyers/academics and where the case is recent. However, I retrieved the House of Lords judgment in Page v Smith  without too much difficulty. The link is in that case reference and above and it is available to anyone. The first instance decision (Page v Smith [1993] PIQR Q55) and the second Court of Appeal judgment (Page v Smith (No 2) [1996] 3 All ER 272-280) were only accessible to me via my academic route so I cannot provide links here as they won’t work.

If you have the correct references, all recorded cases in English law are available. However, access may be limited because they are 1) behind a paywall 2) require an academic/judicial status or 3) necessitate a visit to an old-fashioned law library. This is mainly because digitisation of all recorded cases only became standard within the last ten years. Out-of-court settlements of damages (which are frequent in PI cases) are not recorded judgments.

“Gagging orders”

These are more correctly known as confidentiality agreements or non-disclosure agreements (NDA’s). They are not uncommon in cases which involve awards of damages. While they may not be desirable in terms of public transparency, they can serve a legitimate purpose. It does not appear that there was such an agreement in Mr Page’s case. (Gagging orders may also be imposed by a court via an injunction).

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The use of misleading information assists no one – and that includes us as ME patients/advocates. Using incorrect information to support our arguments only helps those who seek to discredit us as ill-informed or deluded conspiracy theorists. It is better that we focus our limited energies on cultivating more robust arguments using the wealth of more accurate information which is readily available.

We need all the tools at our disposal to achieve proper recognition, research and treatment for ME. Whilst we certainly need to know and understand the history of the illness, we also need to focus our efforts on collecting and utilizing accurate and up-to-date information in our advocacy work.

We need to broaden the debate, both internally and externally. Within the ME community, we need to learn how to read and analyse more critically and to engage respectfully in conversations which are founded on disagreement. Conflict and confrontation are inevitable but the less we actively provoke it (or over-react to it), the better. If we cannot do this, then our detractors will continue to retain the upper hand. Ensuring that our information is accurate and not misleading is an essential part of that process.

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Brief update on the Wikipedia topic (see previous post)

I’m grateful to everyone who responded, both publicly and privately, regarding the Wikipedia issue in my last post. I learnt a great deal from all your comments.

I think it’s fair to say it’s unlikely that anyone will be making a serious attempt to update the CFS page (or adding an ME page) any time soon. It’s a sad state of affairs – but one that is all too common in the world of ME patients.

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Footnote:

[1] Stephen Bailey (Professor of Public Law at the University of Nottingham) and Donal Nolan (Porjes Foundation Fellow and Tutor in Law at Worcester College, University of Oxford) concluded a comprehensively critical legal article on Page as a PI decision in the Cambridge Law Journal in 2010 as follows:

The Scottish Law Commission has proposed that the foreseeability aspect of Page be overturned by legislation, and argued that in determining the foreseeability of psychiatric injury an assumption of reasonable fortitude should ordinarily be used. And although the [English] Law Commission in its report on this area did not make a similar recommendation, it said that it appreciated the concerns raised by the critics of Page, and pointed out that at the time of its report insufficient time had passed to assess the impact of the decision. The most likely mechanism of reform is the Supreme Court, and here the omens look favourable. In the two recent decisions of the House of Lords which touched on Page there was a distinct lack of enthusiasm for the decision. In Rothwell, Lord Hope described the argument that the foreseeability aspect of Page should be departed from as “attractive”, while preferring to “leave it for another day”. Lord Mance also left open the correctness of the decision “for another day”. He saw some force in the criticisms that had been levelled against Page and was not confident that it did not cause uncertainty and argument. And while Lord Hoffmann expressed the view that it would not be right to depart from Page, this was only because it did not appear to have caused any practical difficulties and was not likely to do so if confined to the kind of situation which the majority in the case had had in mind. Furthermore, in Corr v. IBC Vehicles Ltd, Lord Neuberger said that, not least in the light of the “trenchant observations” of Lord Goff in White, he would not want to appear to prejudge any decision as to the correctness of the decision in Page if it came to be challenged before the House on another occasion, comments with which Lord Mance expressed his agreement. Taken together, these remarks would suggest that it may not be long before the Page v. Smith saga finally reaches its denouement.