On February 28, 1973, Barry Hart, then aged 37, walked into Chelmsford Private Hospital.
Two weeks later he woke up with double pnuemonia, pleuresy, deep vein thombosis and anoxic brain damage. He had been subjected to deep-sleep therapy and electric-shock treatment _ all against his will.
Most people think that the Chelmsford episode is closed, that a Royal Commission exposed the malpractice, that procedures were fixed, that victims compensated and that it could never happen again. Wrong.
Twenty-one years later Hart’s case is still in the courts. It took seven years to get it to court and it has been there for a further 14 years, with no end in sight.
Indeed, the Royal Commission into Chelmsford said in 1988 that it would be the mid-1990s at the minimum before it were resolved.
If you transposed someone from Victorian England to modern Australia, the place in which they would most familiar would be the courtroom.
Charles Dickens exposed the evils of child labour, orphans’ schools, slum clearance and insanitary horrors of his day, perhaps best in Bleak House. These evils are long gone.
But he also wrote about the scandal of the courts, of cost and delay. “”Jarndyce v Jarndyce still drags its dreary length before the Court, perenially hopeless,” he wrote.
It ended only when the costs outstripped the money being fought over after more than a decade in the courts. At least that case was about an estate and the assets of the dead.
Barry Hart is alive. The case goes on. This week he explained how he had a struggle to get the case into court. Lawyers did not want to take it on. Psychiatrists did not want to bag one of their colleagues in court.
But he finally brought his case and after 74 days of hearing and 2000 words of transcript won his case and was awarded $60,000 less $6000 in contribution to legal costs.
Then an appeal was lodged. And actions for defamation and contempt when Hart went to the media to expose what he said was the failure of NSW medical authorities to bring the psychiatrist to book. Hart’s attempt to have the psychiatrist dealt with by medical authorities resulted in inaction, delay and further appeals and no result.
Yet he walked in to Chelmsford Private Hospital with depression and walked out with brain damage. Before Chelmsford he ran his own business and had never been out of work since leaving school; he is now on a disability pension.
The legal system, the wealth of the doctors and the Medical Defence Union have made it a very one-sided contest.
Barry Hart’s story shows how the Australian legal system grants de-facto immunity to those with the money to buy it. If you have enough money you can take endless legal points and stalling actions until the other side is exhausted.
That is what is happening to him. His life has been ruined by the medical and legal system. Perhaps as much as $1 million has been spent in legal fees in his case. He had legal aid for much of it, but he now stands with personal legal debts of $35,000 and the psychiatrist, who a jury found negligent in his case, is still practising.
Justice Michael Kirby, now president of the NSW Court of Appeal, told Hart, “”I am afraid that the story you tell, though not entirely atypical, brings no credit on the legal profession of this country.”
That was in 1983, when Justice Kirby was chair of the Australian Law Reform Commission.
Barry Hart’s case is still in the courts. And the laws and procedures which have made it so difficult for him to get justice remain unreformed. Indeed, the substance of his complaint and many other users of the legal system is the same as it was in Dickens’s day: costs and delay that deny justice.
As Kirby said, Hart’s case is not atypical. Indeed, there are many cases in our court system where costs outstrip the amounts at stake and delays make victories pyhrric.
In 1972 Hart got depression because of failed plastic surgery on the eyes which he had because much of his income was from being a photographic model. He went to a psychiatrist who after some consultations sent him to Chelmsford on February 28, 1972. The psychiatrist was not there. Hart looked at some of the patients wandering about and decided he did not like the place and decided to leave.
He said to a nurse he was going to leave. The nurse asked if he was anxious, to which he said Yes. He was offered a sedative and that was the last he remembers for 10 days.
He was put into deep sleep theraphy with barbiturates and electric shock treatment against his will. He suffered brain damage from loss of oxygen among other things. Over the years his condition has improved, but his earning power have been severely cut.
Hart unsuccessfully tried to get 10 solicitors and six barristers to pursue his case and for a specialist to testify for him. He was told he would not get more than $7000.
He began an action in the District Court in late 1976. For three years the cases languished because he could not get committed legal representation.
As Justice Kirby said: “”Your quite proper insistence upon the pursuit of your legal right was out the ordinary for lawyers caught up in routine and profitable activities.”
In August 1979 the case was transferred to the Supreme Court. In February 25, 1980, the trial was aborted because of Hart’s lawyer’s opening address. A new trial began on March 3, 1980.
After a 74-day hearing and 2000 pages of transcript, the jury gives a verdict for Hart against the pyschiatrist on grounds of negligence, and false imprisonment and assault and battery. He is awarded $60,000.
But the judge awards half the costs against him. he has to pay legal aid $6000.
On August 8, 1980, the psychiatrist lodged and appeal, and Hart cross-appealed.
Between March and August, 1980, other Chelmsford victims begantheir cases.
On September 28, 1980: 60 Minutes does a story on Hart. Five days later Chelmsford and the psychiatrists lawyers write to the Attorney-General seeking Channel 9 be dealt with for contempt and restrained from further publication, including viewers’ feedback.
On December 11, 1981, Legal Aid told Hart it would not fund the appeal or cross appeal. It now says Hart owes it about $100,000.
In March, 1982: Coroner Terry Forbes found a prima facie case of negligence against three Chelmsford doctors, including Hart’s psychiatrist.
After both the jury verdict and the coroner’s finding medical authorities and professional bodies promised early action.
Hart and another patient also lodged complaints in March 1982 and October 1983. However, the the NSW Medical Investigating Committee regarded itself as a judicial body and only acted on material put before it by complainants. It did not investigate itself. It expected the patients to run the case.
On September 19, 1984, Hart went on the Willessee program. The program dealt with the jury verdict and discussed the powers of Medical Investigating Committee.
Five days later the psychiatrist sued Hart and Channel Nine for defamation with Hart named First Defendant. It has not been pursued.
In 1986 the Medical Disciplinary Tribunal began to hear complaints by Hart and other Chelmsford victims.
The doctors objected because of delay. They presented 398 pages of affidavits and 620 pages of documents. The hearing (just on the premliminary delay issue) took 11 days and 547 pages of transcript.
The tribunal found Mr Hart believed health authorities were doing something about the doctors when they had been idle.
The doctors appealed on the delay point to the NSW Supreme Court, and won.
End of case. The Medical Disciplinary Tribunal does not get to hear the case against the psychiatrist. The psychiatrist, who the Royal Commissioner described as “”manipulative both as a witness and as a person” and who administered at Chelmsford a “”thoroughly dangerous” treatment that killed and injured people, is still practising.
His receptionist said he was with a patient when I called and would I call back, which I did.
The psychiatrist said that as far as he was concerned “”the thing is dead in the water; it is dead wherever these things die”.
However, if Barry Hart persisted with his appeal then it would be revived.
Asked if he had anything else to say about the case he said: “”What can I say?”
The NSW Parliament, late last year, more than a decade after the coroner’s findings passed Health Complaints Bill. Everyone now thinks Chelmsford is fixed. Hart’s MP, Pat Rogan, a many health-consumer groups think the new Act has serious defects. It has a restricted freedom of information provision only giving patients a right to access to their medical files after the files have been closed.
He says the commissioner has too much discretion to decline complaints.
There are no watch-the-watchdog provisions.
He does not think it would prevent another Chelmsford.
He argues that a proper health-complaints system would have dealt with complaints by Chelmsford nurses in the early 1970s and much of the anguish could have been avoided. Instead, those complaints had not been dealt with properly and the nurses had nowhere else to go.
The position now is that Hart has had his verdict paid with interest, but has had to pay $18,000 to legal aid leaving him $54,000. Of that he has paid out $34,000 in the appeal. He has no legal aid. He is on a disability pension.
The principle in of law laid down by Charles Dickens in Jarndyce v Jarndyce will inevitably apply. It is a principle of greater power and duration than anything laid down by centuries of judges. The principle is: if you run out of money for lawyers the case ends and the side with lawyers still at the ready wins.