The case of Chelmsford Private Hospital is one of the most shameful in Australia’s legal and medical history.
It would be nice to write “”was” instead of “”is”. But the case goes on. Only two cases for damages for patients ever got to court, despite a Royal Commission finding a litany of wrong-doing by the hospital and its psychiatrists in the early 1970s. One of those awaits an appeal to the High Court and the other is that of Barry Hart. Hart heard last week that an appeal and cross-appeal in his case will be heard over five days from August 25.
On February 28, 1973, Hart, then aged 37, walked in to Chelmsford Private Hospital with a moderate case of depression caused by failed plastic surgery. Two weeks later he woke up with double pneumonia, pleurisy, deep-vein thrombosis and anoxic brain damage. He had been subjected to deep-sleep therapy and electric-shock treatment _ all against his will.
The Royal Commission found that his treating psychiatrist was “”manipulative both as a witness and as a person” and who administered at Chelmsford a “”thoroughly dangerous” treatment that killed and injured people.
Disciplinary proceedings against him could never be pursued because the Supreme Court prevented them, citing delay. The delay was caused because the medical-discipline authorities at the time did not act, assuming that it was up to patient complainants to pursue cases of professional misconduct. The psychiatrist is still practising. Barry Hart is an invalid pensioner. His life has been wrecked. His business long lost.
It took seven years for Hart to get legal aid and a lawyer to represent him. And the case has been in the system for a further 15 years – drawn out by legal procedure.
The Australian legal system gives de-facto immunity to anyone who has enough money to pay for it.
Hart won his case before the jury which found the psychiatrist had committed negligence, assault and battery and false imprisonment. It found the hospital had committed false imprisonment.
He got $60,000. But the judge awarded half the costs of $750,000 against him so he had to make a pro-rata contribution from the award to legal aid of $6000. He came away with $54,000 _ enough at the time to lose social security, but not enough to set himself up. That was in 1980. They appealed and he cross-appealed.
The appeals were delayed pending the Royal Commission and sundry defamation actions brought to silence media coverage.
Hart says that the medical-legal system has wrecked his life, but he is going to be in his 60s before there is any resolution. Meanwhile, the lawyers have got nearly $1 million out of his case, at least half a million out of the one other case still running, and as much as $15 million from the Royal Commission.
Sadly for Hart, the case may not make much difference. He has not go legal aid for the appeal and legal aid says he owes it $164,000. Legal aid will take first bite of any increased award he may get.
Even if he does keep his damages or get them increased, there will inevitably be a further appeal to the High Court _ more expense; more delay.
And don’t imagine it cannot happen again. Hart’s MP, Pat Rogan, and many health-consumer groups think the Health Complaints Act passed a year ago 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. The commissioner has too much discretion to decline complaints and there are no watch-the-watchdog provisions.
The only professional to have been brought before a disciplinary tribunal, bizarrely, was the lawyer who stood up for the victims.
It is Dickensian. We have got rid of most of the ills riled against by Dickens: child labour; debtors’ prisons; no women’s property rights and so on. But we have not managed to do much about injustice of the costs and delays of the English legal system.
The principle in of law laid down by Charles Dickens in Jarndyce v Jarndyce last century appears still to apply. It is a legal principle of greater veracity than anything laid down by centuries of judicial pronouncement. The principle is this: the case ends when one side runs out of money or will to pay lawyers, and the winner is the side with the lawyer still standing.