Australian defamation law

Gail Graham's 17 year old son, Jimmy, was brain injured when his car ran into a tree in Queensland. The accident was unwitnessed and Queensland has fault-based law and insurance for traffic accidents. Because Jimmy was too injured to say what had happened and no witnesses came forward, he was uninsured. You might expect that medicare would pick up his medical bills, and it did, but the care it subsidised was hardly care at all. In a sublimely logical response to an utterly absurd situation, Mrs Graham came close to murdering her son's doctor.


Gail Graham's 17 year old son, Jimmy, was brain injured when his car ran into a tree in Queensland. The accident was unwitnessed and Queensland has fault-based law and insurance for traffic accidents. Because Jimmy was too injured to say what had happened and no witnesses came forward, he was uninsured. You might expect that Medicare would pick up his medical bills, and it did. The problem was that the medical fraternity failed to recommend Jimmy for any significant rehabilitation and seemed to collude to neglect him so that he would die. Moving from Queensland to Victoria to be closer to his parents made little difference. His mother, Gail, who was a journalist, soon got the message that he was being allowed to die without ordinary rehabilitation services because he only had Medicare. Pure bad luck meant that he fell through the holes in the private accident insurance net and therefore was judged by a series of doctors to be too costly to treat and a drain on the public purse. His mother put Jimmy's pension away every fortnight until she had saved up enough to employ a private physiotherapist. The hospital tried to dissuade her from using a private therapist and pointed out the cost. When Gail told them that she had saved up his pension, they sent her a bill amounting to the total for the use of his hospital bed. Read on:

The End

"It was the end.

There would be no money for occupational therapy, no money for any therapy at all. The administrative officer had been right when she pointed out that occupational therapy cost far more money than the average family - or even the above average family - could afford. And that was just occupational therapy. What about physiotherapy? What about speech therapy?

Frantic, I rang the Mont park Brain Trauma Unit and asked to speak to Diane McLachlan. She'd helped Jimmy once. Maybe she could tell me what to do now.

Diane was sympathetic, and surprised that the hospital would actually do such a thing. But they were quite within their rights, she said. There was nothing she could do about it. There was nothing anybody could do about it. The best thing for me to do would be to stop fighting XX Hospital and either put Jimmy in a nursing home or take him home. Perhaps I could appeal to some of my local charitable organizations for help ...

You keep saying that there's nothing you can do! I screamed at her. Everyone keeps saying that there's nothing they can do! There's nothing the Health Commission can do! There's nothing the politicians can do! There's nothing the lawyers can do! There's nothing the media can do! The doctors can do anything they like and there's nothing anyone can do to stop them!

I'd finally lost control. But I couldn't help myself, couldn't stop myself. I just kept screaming at her.

What are you all so afraid of? I wanted to know. Why are you all so afraid? Doctor F. is afraid of Doctor H. and so are all the rest of you! Why are you all so afraid of Dr H.? I'm not afraid of Doctor H.! I screamed. I'm not! And I'll tell you what I'm going to do! I'm going to kill Doctor H.! I'm going to take a gun, and I'm going to go down to his house and wait for him to come home tonight, and then I'm going to kill him! And I' going to tell everybody why I killed him! I'm going to tell them that I killed Doctor H. because he refused to let my brain-damaged, eighteen-year-old son have any therapy at all, because he's letting my son die like an animal and because I can't stand to watch it any more! and then the media won't have to worry about defamation suits, because it won't be defamation. It'll be murder! There isn't a jury in Australia that'll convict me, and even if they do, all that will happen is that they'll say I'm crazy and lock me up for a couple of years. But Jimmy will get a bed in a rehabilitation hospital, and that's all that matters to me! Do you understand? That's the only thing that matters to me!

I was gasping for breath, almost choking. Diane was saying soothing, reasonable things, but I wasn't even listening to her. In the midst of that uncontrollable burst of anger and hysteria, I'd stumbled on the answer. I would kill DoctorH. And then I would tell the whole world exactly why I had done it.

I'd tell them what it was like to watch my son turn into a living skeleton. I'd tell them what it was like o watch his arms and legs fold up and become useless. I 'd tell them what it was like to beg for the most minimal maintenance physiotherapy, only to be told that he wasn't worth the effort. I'd tell them what it was like to look at his eyes and know that he understood everything that was happening to him. I'd tell them what it was like to be powerless to do anything but watch him die.

If I could tell my story to the public, Jimmy would get the care he needed. I knew that.

Georgina wouldn't approve of murder, but Jimmy was running out of time. He was dying. Already, he was little more than shriveled flesh and bone. He was so weak. All it would take was the slightest germ or virus or infection, and he'd be gone. He couldn't' wait for a miracle, and neither could I. [...]."

Gail Graham's book, Staying Alive HarperCollins Publishers (Australia) Pty Ltd (June 1, 1985), ISBN-10: 020715189X
ISBN-13: 978-0207151897 is a very well written, readable work that grips you from beginning to end with its truth. The author paints a humanistic picture of the moral frailty of health profession teams and the unwillingness of any to break out from the 'just following orders' excuse for standing by and allowing unnecessary suffering. Her account is memorable because she also shows how professionals will not only stand by, but actively defend the indefensible.

The book was written in 1983 but nothing much in the way people with serious brain injuries are undertreated when their injuries occurred outside an insurable situation.

One thing has changed, however, and that is Australia's laws of defamation, due, as I like to point out, since it seems so surprising to many, to the intervention of that much hated 1990s Australian immigration minister, Philip Ruddock.

When this book was written, it was almost impossible to name names even if you had proof and truth on your side. In 1983 Australian defamation laws meant that you could be dragged into court and sued several times over for one document if a party objected to a term used more than once in that document. And it didn't matter if you had right on your side, if the other party had more money, they could drag the matter out and bankrupt you. In 1983 our defamation laws were so bad that even newspapers would not name doctors because it is relatively easy for a doctor to claim large sums in loss of livlihood if the public are alerted to a mistake. So Gail Graham, when she was writing, could only refer to doctors as DrH., Dr F., etc and to specific hospitals as X and XX hospital. If she had written today, with the evidence she had, she could name those doctors. I wish that she would republish and do so. They deserve to be named. Graham does name a couple of politicians, Mr Roper and Mrs Hill, both Labor politicians, describing how she approached them with detailed information and begging for help dealing with the hospitals and doctors in question, yet both Roper and Hill failed miserably to help her. They were not the only ones.

Gail Graham wrote a sequel, which I have not read but have ordered as an interlibrary loan. She has also written several novels and other books, including a biography of Chairman Mao. Her blog is at http://www.gailgraham.net/3.html, and she has just brought out a new novel, which is digitally available.

This article, which is a book review, is the first in a series we hope to invite contributions to, about brain injury. The Australian Government currently has a project to publicly insure all seriously disabling accidents, called the National Disability Strategy.