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Issue #1444      24 February 2010

The Chelmsford disgrace – no justice for Barry Hart

Chelmsford deep sleep victim Barry Hart’s 34-year fight for justice came to an end in the NSW Supreme Court on February 9. He collapsed on hearing the verdict of Justice Handley which dismissed with costs his application to appeal his negligence case against his former lawyers Cashman and Partners. He was taken by ambulance to St Vincent’s Hospital and admitted to its psychiatric emergency care ward. Hart suffers from severe, chronic Post Traumatic Stress Disorder and brain damage, legacies of his treatment without consent at the Chelmsford Hospital in 1973. Doctors at St Vincent’s are very worried about his ability to cope with the injustice he has suffered at the hands of the legal system.

Barry Hart, gymnasium proprietor, model and actor was subjected without consent to Chelmsford Private Hospital’s discredited narcosis or so called “deep sleep therapy” combined with repeated electrical shocks to the brain for 10 days during February and March 1973. According to the evidence of eminent medical practitioners the repeated chemical and electrical abuse continued even though Hart was seriously ill with pneumonia, had gone into shock and became cyanosed. He suffered as a result, life threatening double pneumonia, deep vein thrombosis, a pulmonary embolus and because of a depletion of oxygen in his blood anoxic brain damage.

Hart then 36, who had appeared in over a 130 television commercials was referred to Dr John Herron by a general practitioner for anxiety and distress symptoms caused by botched plastic eyelid surgery. Despite the fact that he had reports from three eminent plastic surgeons verifying his botched surgery, and unknown to Hart at the time, these were diagnosed by Dr Herron as symptoms of delusions, paranoia and psychosis. Feeling confused and anxious over contradictory medical opinions as to whether his eyelid deformity could be fixed he telephoned Dr Herron in late February 1973 and was referred on the telephone to the Chelmsford Private Hospital. After waiting an hour to see Dr Herron, and becoming anxious because of patients he saw who looked to be in a state of sedation, he decided to leave. He was then given a tablet by a nurse on the pretence it was to settle his anxiety which rendered him unconscious.

After much difficulty in obtaining lawyers willing to take on his case he received a jury verdict in the NSW Supreme Court in July 1980 for false imprisonment against Chelmsford Private Hospital and for false imprisonment, assault and battery and negligence against Dr John Herron. Hart and other victims could not get a doctor here or overseas to go to court in their defence.

Damages were made empty by judge Fisher’s summing up, the jury believing they were only compensating Hart for the transient damage of pneumonia and an “unpleasant” stay in hospital and that he was fully employable. Just $6,000 was awarded for false imprisonment, $18,000 for the assault and battery and $36,000 for general compensatory damage.

Hart’s out of pocket legal expenses, which he never recovered, were more than $6,000 and $18,000 was taken by legal aid as a part contribution towards costs, leaving him with $36,000 in compensation and because of his injuries unemployable. The overall costs of the four month trial were $750,000.

The judge blamed Hart’s barrister Edward St John QC for the length of the trial and awarded half the costs against Hart. Legal Aid claimed Hart owed it $151,000.

Appeals by the Defendants wanting a new trial and cross appeals by the plaintiff followed the verdict, Hart claiming that damages were inadequate. In late 1981 he was informed that Legal Aid would not fund his appeal. The defendant’s appeal was financed by their indemnity insurance, the Medical Defence Union.

Prolonged narcosis had been discredited and had fallen out of use in the rest of the world in the 1950’s as being a dangerous treatment with little or no therapeutic value. It was also expensive requiring one-on-one 24 hour nursing care by experienced nurses trained in the care of unconscious patients.

Its use by Dr Bailey and his DST colleagues Drs Herron, Gardiner and Gill in the 1960s and ’70s at Chelmsford was not even conducted under those limited conditions.

A Royal Commission in 1988-1990 found that there were at least 24 known deaths caused directly by the treatment. False death certificates were signed by the Chelmsford narcosis doctors to cover up the true cause of death. The consent forms were often forged. A further 25 patients committed suicide within 12 months following the DST treatment at Chelmsford – one, a Mr A, committed suicide on the day after receiving the deep sleep. There were well over a hundred injuries caused by negligence. Patients were placed in a coma at Chelmsford with toxic and potentially fatal dosages of barbiturates combined with other drugs and electrical shock treatment for up to two weeks, and fed through a stomach tube. Its proponent Harry Bailey committed suicide in 1985 on the eve of a civil case against him and was facing disciplinary proceedings by the Medical Board over the grossly negligent death of his narcosis patient, 26-year-old clerk Miriam Podio.

Although the treatment was highly dangerous and a threat to health and life there were no doctors at the hospital in case of emergencies and the unconscious patients in the sedation ward were mostly nursed by unqualified nurse’s aides. Chelmsford was not registered to take psychiatric patients until 1975 and although the hospital was regularly inspected by the Health Department and had received numerous complaints nothing was done. The Royal Commission also found that there was a conspiracy to pervert the course of justice in the 1980 trial by the fraudulent removal by the defendants of Hart’s unsigned consent form in order to “cover up” the fact that treatment had been given without consent. No criminal prosecutions followed the Commissioners’ recommendation that the evidence be sent to the DPP. None of the surviving narcosis doctors were brought to justice for the deaths which have been called “murder” in various books and publications.

Symptoms from which Hart suffered that the judge called “bizarre” which could not be diagnosed in 1980 were medically diagnosed in 1993 as severe, chronic post traumatic stress disorder. They include heightened startle response to noise, flash backs and clonic convulsions which mimic the convulsions of electrical shock, nightmares and hyper psychological arousal. PTSD as it is known was not a recognized illness in 1980. Despite his repeated written instructions to include the fresh medical evidence into his appeal on inadequate compensatory damages, his lawyers failed to do so. Hart lost the appeal with costs against him. A consequent case against his lawyers for failing to introduce the PTSD evidence into the appeal in which Hart had the support of an expert legal witness, Barry Toomey QC, who was highly critical of Hart’s lawyer’s failure to properly prepare his case, was also lost. The judge in the trial, Justice Hall, acting as a barrister during the Chelmsford Royal Commission defended the Attorney General’s Department and cross examined Hart on its behalf. There were almost 50 errors of fact in his judgment which Hart called a “work of fiction” and in which the judge excused the defendant solicitor swearing under oath a false affidavit. An attempt to appeal the decision was stopped by the registrar Scheller of the appeals court on the grounds that the application was out of time and the appeal allegedly had little merit. It took him 12 months to make his decision.

On the September 7, 2009 Justice Handley heard an application by Mr Hart that his appeal had merit and he an arguable case. Five months later Justice Handley brought down his judgment.

Hart lost with costs, the judge claiming the appeal had little chance of success. Justice Handley said that the defendant had already incurred substantial costs without any prospects of recovery because the complainant was “impecunious” (had no money).

Barry Hart told The Guardian “I have expert medical evidence that I suffered anoxic brain damage and severe chronic post traumatic stress disorder as a consequence of the abuse in Chelmsford – the symptoms which I have had since Chelmsford which have been observed by friends, relatives and others affect me daily and which the medical experts claim I will have for the rest of my life. I often wake up in the morning screaming with unbearable anxiety. I haven’t been compensated for these injuries. I am unemployable and have lost over a million dollars in wages.

“For many years I lived on a disability pension, I had never been unemployed in my life before the abuse in Chelmsford and had an exemplary employment history The legal system has according to medical experts exacerbated my illness and it is now incurable. It has become an accessory to the torture I suffered in Chelmsford. This is a human rights case. Why can’t I get justice?”

Good question.

Hart owes more than $400,000 in legal costs. He receives a pension. He spent $70,000 on his case against his former lawyers – money he received from his late mother’s will.

Jurist, Brett Dawson, author, former lecturer in law and police prosecutor agreed with the 1983 comment of Justice Michel Kirby that the Hart case “brings no great credit on the legal profession of this country”. Dawson, expressing concern about the 34 years that Hart has been caught up in an adversary legal quagmire fighting for justice and quoting Charles Dickens said, “The law is not about justice, the business of the law is to make business for itself”.

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