The celebrity medical doctor, Christian Jessen, is facing a £125,000 damages award against him after libelling Arlene Foster. He had claimed in a Tweet, incorrectly, that the former DUP leader was having an affair.
His lawyers argued in court that he was suffering from depression, and that the judge should take this into account. Alas, the judge declined to do so – and Dr Jessen now claims that he faces bankruptcy.
What can we usefully learn from this episode about mental health issues?
Some might argue that it illustrates a willingness within the mental health industry to tolerate definitions of mental disorders so vague that they are becoming courtroom footballs.
Nothing very new
The legal value of mental health problems was demonstrated thirty years ago in the case of Ernest Saunders. A central player in the Guinness Scandal, Saunders was sentenced to five years in prison for share-trading fraud. But he was released from open-prison after just 10 months – having convinced an appeal court and several eminent doctors that he had early onset Alzheimer’s disease. Thirty years on, and several business careers later, Saunders (85) is enjoying a comfortable retirement. His case evokes mostly dark humour today… the only man in history to have recovered from Alzheimer’s disease.
But the lessons of Saunders’ early release have not been lost on lawyers: mental health problems offer a fantastically valuable legal tool. They can be exaggerated – and even made up entirely – to obtain lighter punishments for their clients and sometimes outright acquittal . Unlike most physical diseases, mental health diagnoses are rarely based on any more than expert opinion. This priceless flexibility means that, today, it is rare for a big court case to go by without mental health problems being invoked to mitigate legal liability (or increase an award).
The Oscar Pistorious trial offers an interesting example of the cynicism that is often involved. His defence team claimed that he was suffering from ‘generalised anxiety disorder’ at the time when he killed his girlfriend, Reeva Steenkamp. But his lawyers avoided heavyweight psychotic disorders, such as paranoid schizophrenia. Getting Oscar off the murder rap would have brought no benefit if his supposed mental illness got him banged up for good anyway.
So what of Doctor Jessen, his depression and his lawyers? Did he really tweet the libel against Arlene Foster because he suffers from depression? Only he knows for sure. But when Mrs Foster’s lawyers demanded that he withdrew the accusation early on, he replied simply “LOL”. Perhaps Dr Jessen thought that libel laws only applied to big players, like national newspapers. But with some 300,000 followers, Jessen is a big player – with a duty to the truth.
The humble alternative
Unsurprisingly, not everyone on the Twittersphere is sympathetic. And Dr Jessen might have garnered more sympathy if he had come out before, during or after the trial and said, “You know what, much as I dislike Arlene’s personal and political beliefs, I was completely wrong to repeat malicious claims about her. Even if they had been true, it was none of my business. I apologise unreservedly to her and her family and I urge everyone who uses social media not to be a spiteful twat like me; just be nice to each other.”
Dr Christian might even have acknowledged that gossip-mongering tweets like his could cause other people – like Arlene – to have the kind of depression that he considers so important in his own life.
If he’d done any of that, I might have put a fiver in his crowd-funding pot myself. But no… Having failed to defend his case on the basis that Twitter is intended to be ‘amusing’ and ‘light and frothy’ (a defence that every troll/libeller in the land might use), Dr Jessen and his legal advisers are now back on the attack. The basis of his appeal for crowd-funding seems to be that Arlene Foster is essentially ‘a bad person’ – devoutly Christian, anti-gay and anti-abortion.
Perhaps Dr Jessen will raise enough money to pay his bill. But concreting his life into victimhood is – psychologically speaking – unlikely to resolve his unhappiness with life (assuming it’s true). Perhaps a more positive strategy would have been to try to do some good instead. Apologise profusely for the libel, learn a valuable lesson in humility, and offer use his celebrity status to help people in Northern Ireland. That might even have helped him with his own mental health problems. As for the debt, well, Arlene Foster is a Christian. Although I don’t share a lot of her beliefs, she has never seemed to me to be vindictive. If Dr Jessen had shown some tangible repentance, she might have been inclined to show Dr Jessen the Christian compassion that he denied her.
No one should be very surprised that lawyers manoeuvre depression and mental health problems as if they were just pieces on a legal chessboard. But I think Dr Jessen was very poorly advised here. A sincere and grovelling apology – at any point – might have served Dr Jessen’s cause much better. Willingness to make amends for the libel might have helped too. Instead, his lawyers mounted their doomed ‘light and frothy’ defence that argued that Arlene was, essentially, just making a fuss. And rather than see the errors in that strategy, they have ‘upped the ante’.
It’s an opportunity missed for Dr Christian to get his life back on track, and an opportunity missed for the people he could usefully help and influence.