In layman’s terms Barry Hart has been completely done over by the medical and legal professions.
On February 28, 1973 he walked into Chelmsford Private Hospital. Two weeks later he woke up with double pneumonia, pleurisy, deep vein thrombosis and anoxic brain damage. He had been given deep-sleep therapy and electric shock treatment against his will.
Last week the NSW Court of Appeal brought down a judgment against him with costs. He is left broken, heavily in debt on the verge bankruptcy, his life in tatters. The brain damage was not immobilising, but with the other injuries enough to prevent employment.
On the other hand, his psychiatrist, Dr John Herron, who the Royal Commission 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. Counsel assisting the commission, Brian Donovan, QC, said the evidence was capable of sustaining manslaughter charges against Herron.
Hart took six years to get lawyers to believe his story and to get legal aid. A jury awarded him $60,000 after 64-day trial. But the judge ruled he could have costs only for 30 of those days and each party would have to pay its own costs for the other days. Hart’s award was all consumed in legal costs above what legal aid had supplied. Legal aid now says Hart owes it more than $150,000.
There was an appeal and a cross-appeal which languished. Hart complained to the Medical Disciplinary Tribunal, which sat on the case because it worked on the principle that it was a judicial body not an investigative one. The delay resulted in Herron successfully arguing in the NSW Court of Appeal later that the case against him should be struck out.
After stirring in the media (despite the psychiatrists’ threatening defamation actions), the Slattery Royal Commission was appointed . Its findings are well-known. It slammed the hospital and psychiatrists and sent the papers to the director of public prosecutions who did not prosecute.
This led Hart to pursue his appeal with greater vigour, thinking that the fresh evidence in the Royal Commission would result in much higher damages for a wrecked life. He was especially encouraged by the commissioner’s finding that Herron had lied during his original damages trial.
But the Court of Appeal has knocked him back, with costs awarded against him. Among its findings was one that a jury would not have found any differently with the new evidence.
That ruling was directed solely to the question of exemplary damages and whether Herron actually knew that Hart had not given consent to the treatment. But in a broader layman’s context, the question of whether the Royal Commission’s finding would have made a difference to the jury’s findings, the answer is obvious. Of course it would. The jury would have given Hart much higher damages.
One juror, Paul Bacon, came across Hart purely by accident in the street after the Royal Commission and told him he now thought the original award was inadequate and in any event if he had known that the judge’s costs order would have consumed the whole award, the jury would have awarded more.
He told me this week after the Court of Appeal ruling, “”I am horrified beyond belief.
“”If the jury had the Royal Commission evidence it would have given Barry astronomical damages.”
Bacon said he could not speak definitely for other jurors but he was with them for four months (on and off) during the trial and knew them well and thought they would agree with him. He also complained that after 60 sitting days the jury had only about six hours to deliberate or, they were told, a mistrial would be declared.
Within the context of the law of evidence, costs and the general law, each decision of the legal system can be justified and seem reasonable. But the overall result is a catastrophic miscarriage of what non-lawyers would see as justice.
Lecturer in Health Services Management at the University of NSW, Tom Benjamin, said the Hart case showed embarrassing deficiencies in the legal system, but this had resulted in a rush to replace them with new administrative “”remedies” which were worse than the original system they sought to replace.
You can see what went wrong. Hart, pursuing his damages action and complaint about professional misconduct, came up against the full force of the medical profession, the health bureaucracy and the adversary legal system. He was not only blocked by people with greater resources but not helped by people who should have helped him. It is a flawed system.
On the other hand, the Royal Commission was given resources and power to seek out the truth and it found it.
What is the difference? The Royal Commission has the power to call witnesses, ask questions in any way it sees fit, listen to all the evidence it can get from whatever sources and to drawn inferences from all those sources … but alas unlike the courts has no power to award compensation nor the power to order prosecution. A trial judge, however, sits virtually mute. At a trial the judge allows the two sides to battle it out, only acting to exclude evidence and rule out questions that do not fit technical rules.
The former accords far more closely to the way humans usually search for the truth … the way a parent might elucidate the truth from a child or a scientist from the natural world. The later is not about a search for the truth, but a contest between two extreme constructions. And in the absence of a judiciary empowered to fill the gaps, the party that can afford the better lawyers to create gaps gets a huge unfair advantage. This is because a critical task of the adversary lawyer is to get critical evidence ruled out, usually on technicalities.
The Royal Commission told us what went on. Three psychiatrists used dangerous experiments on patients without their consent, profoundly injuring them. Two psychiatrists are still practising and one committed suicide. We know what should happen. The victims should be properly compensated … not left penniless on a disabled pension while health bureaucrats sit on their comfortable salaries and lawyers get hundreds of thousands of dollars to rake over the coals.
What has happened to Barry Hart shows fundamental weaknesses in the Australian legal system. The system is loaded in favour of the professions and against their victims.
The Chelmsford case remains one of the most shameful chapters in Australia’s legal history … one that reveals how the system protects the strong who do wrong against their weak innocent victims.