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Issue #1490      23 February 2011

Victim says Australian legal system corrupt

Narcosis victim Barry Hart calls on the gov’t to hold an inquiry into his 37 year legal struggle to get justice

Chelmsford Hospital narcosis victim Barry Hart, former gymnasium proprietor, model, and actor, has written a detailed, damning indictment of our adversary legal system to his federal member of Parliament, Peter Garrett and the Premier of NSW Kristina Keneally calling on the government to hold an inquiry into his 37 year legal struggle to get justice. Mr Hart wants a fair and adequate compensation for the injuries he suffered from the “torturous” psychiatric abuse he was subjected to without consent in what was labelled “deep sleep therapy” in Chelmsford Hospital during February and March 1973.

Barry Hart at 21 years of age.

Mr Hart told The Guardian, “In trying to get justice and adequate compensation for the injuries I suffered which included, life threatening double pneumonia, deep vein thrombosis a pulmonary embolus, hypoxic brain damage and severe, chronic Post Traumatic Stress Disorder (PTSD), I became a victim of our antiquated, oppressive, inefficient and obscenely expensive adversary legal system.

“The legal system, its lawyers and judges became a collaborator in the original abuse, exacerbated my PTSD injury and made it permanent and incurable. This fact is supported by Professor Andrew McFarlane, a world PTSD expert, who said in his 2003 medical report (page 17) that the delays and perceived mismanagement by the legal system had caused a “secondary traumatisation” of my PTSD and continued to “perpetrate his psychological distress”.

Mr Hart cited in support of an inquiry breaches of international human rights covenants ratified by Australia and support from former High Court judge Michael Kirby, Green member of State Parliament Ian Cohen MLC and former Labor politician Pat Rogan MP.

Mr Hart said the judgments in his case were works of fiction not based on truth and that a corrupt legal system affected all the citizens in a democracy.

Although he won a jury verdict in the NSW Supreme Court in 1980 for false imprisonment, assault and battery and negligence against the defendants Dr John Herron and Chelmsford Hospital, the verdict was made empty by the summing up of the judge Fisher. The jury thought they were compensating Hart for the transient injuries of pneumonia and a pulmonary embolus that he had suffered, had no long-term injuries and was fully employable.

Only $36,000 was awarded for general compensatory damages. In reality Hart had suffered brain damage, a severe, chronic post-traumatic stress disorder, was unemployable, lost $1 million in wages and ended up on a disability pension. PTSD – although the symptoms were present – was not a recognised medical illness at the time of the 1980 trial. There were 48 appeal points against the judge.

A 1990 Royal Commission found there were at least 24 preventable deaths from patients undergoing narcosis or so called “deep sleep therapy”, that death certificates were falsified and consent forms forged. In Mr Hart’s case his unsigned consent form for “shock treatment” – Chelmsford claimed they didn’t have a consent form for narcosis – was cut off the bottom of an admission sheet and sent to his solicitor to hide the fact that he had not consented. It was then forged a second time by covering over the space with an x-ray report, photocopying it and then sending the document to the hospital’s insurance company, the GIO.

The Royal Commission found that Dr Herron had deliberately lied during the trial about his knowledge of this conduct and was involved in a conspiracy to pervert the course of justice along with the receptionist and a part owner of Chelmsford to hide the fact that Hart hadn’t signed a consent form. (“The Cover Up”, Vol.6 Royal Commission Report.)

In support of his submission Hart detailed corrupt practices by the judiciary in his case including:

  • Medical reports of eminent plastic surgeons that proved he was not mentally ill when treated without consent but acting normally to the result of botched plastic surgery.
  • This being kept from the jury by the judge during the 1980 trial and then the judge knowing the truth and not mentioning the medical reports, presenting the defendant’s case when he addressed the jury that Hart was delusional about the result, paranoid and psychotic and in need of “considerable treatment”.
  • The criminal evidence from the Royal Commission being rejected by the NSW Appeal Court in 1996 on the grounds that it was merely “Dr Herron acting badly in concert with others” and as Dr Herron hadn’t “confessed” that he had a “guilty mind”, exemplary damages didn’t apply.

There were 50 errors of probative fact in the 2007 judgment of Justice Peter Hall in Hart’s negligence case against his former solicitors Cashman and Partners. They failed to introduce into the appeal proceedings the fresh medical evidence that Hart had suffered a severe, chronic PTSD as well an hypoxic brain damage in Chelmsford that had made him unemployable.

Hart’s submission points out that Justice Hall ignored the negligence of the solicitors and the evidence of Barry Toomey QC and Solicitor David Trainor who said that the defendants failed to perform to the standards expected of competent solicitors: “The thing that strikes me about this case,” Barry Toomey QC said in evidence, “is that the report is received that this man has contracted PTSD and that is where the solicitor stops.”

Instead Justice Hall, without saying what the symptoms of PTSD were, created a theory that Hart didn’t have PTSD caused by Chelmsford. In order to find for the defendant solicitors Hall ignored, misquoted and changed the probative evidence that proved that after Chelmsford Hart had the symptoms of PTSD that were not medically diagnosed by Dr Malcolm Dent until 1993.

The judge excused the defendant solicitor swearing a false affidavit on August 25, 1995 as to why the application to amend to include the fresh medical evidence was “so late”. The solicitor claimed that he was not aware of how the relevance of the PTSD and brain damage evidence in combination affected Mr Hart’s employment and the appeal until it was raised in conference by Mr Hart on the August 17, 1995 four days before the appeal commenced.

This was not correct. Both the medical reports obtained by the solicitor said that because of the Chelmsford injuries Hart was virtually unemployable. The solicitor had also served the fresh medical reports on the solicitors for Dr Herron (Dr Phillips, September 1992 and Dr Dent February 1994) and used them again (June 1994) to try and get a settlement of the case for $330,000 plus costs, pointing out the two injuries brain damage and PTSD had made Mr Hart unemployable.

Mr Hart points out in his submission that deliberately swearing a false affidavit is a “criminal” offence.

Hart also pointed out that Justice Hall, practising as a barrister during the Chelmsford Royal Commission, defended the NSW Attorney General’s Department and had cross-examined him about complaints he had made to the AG about his treatment in Chelmsford. The failure of the government departments to act on Chelmsford were within the terms of reference of the commission.

Justice Hall’s published his judgment finding for the defendant solicitors on March 21, 2007. On the March 23, Hart collapsed in his general practitioner’s surgery and spent six weeks in hospital with suicidal depression and another six months as a hospital out patient.

Mr Hart, a pensioner, has spent over a hundred thousand dollars on his appeal – money he received from his late mother’s estate – with no return and huge legal debts. His barrister Peter Arden SC retired to his farm and the junior barrister gave up law because of health reasons. On October 12, 2007 his solicitors ceased to act for him.

On October 16 and 29, 2007 Hart whilst under psychiatric care had to appear by himself in court to explain the delay in his appeal.

On February 4, 2008 the Peoples Solicitor filed a draft notice of appeal. The defendant solicitors moved to have the appeal struck out for being out of time and having allegedly no merit. The matter was heard by the Registrar Schell of the Appeal Court on the July 21.

Mr Hart told The Guardian, “My case is political. It took Registrar Schell almost 12 months (July 9, 2009) to dismiss my appeal claiming that it was out of time and that I had been allegedly compensated in 1980. The decision was appealed and heard by a judge Handley on September 7, 2009. He brought down his judgment on February 5, 2010. Justice Handley said that the appeal was out of time and had little merit. He claimed that because the symptom of PTSD were allegedly the same as hypoxic brain damage, for which I had already been allegedly compensated that I shouldn’t be compensated twice for the same injury”.

“This is pure fantasy and is not supported by the evidence. The symptoms of PTSD are entirely different from those of hypoxic brain damage.

“There was also the updated 2003 report of world PTSD expert Dr Andrew McFarlane who said that one of my PTSD symptoms, based on the observations of medical witnesses, was flashbacks and the reliving of the convulsions of electrical shock. This was supported by the 2003 report of Professor Clark. Objective EEG brain wave tests, which can’t be malingered, showed ‘significant abnormalities’ that were ‘strongly consistent’ with PTSD.

“I once again collapsed in court on the February 5, 2010 and was taken by ambulance to St Vincent’s Hospital and admitted to the Psychiatric Emergency ward.

“Although I am very vulnerable and psychologically fragile I was informed by the People’s Solicitor if I wanted to appeal it would cost me $10,000 a day for senior counsel. I am a pensioner. The adversary legal system has destroyed me financially and emotionally. So much for the system’s propaganda about human rights, access to justice and the rule of law.

“I am presently undergoing a PTSD management course at the Westmead Hospital PTSD research clinic. I am not being treated for the symptoms of hypoxic brain damage – short-term memory, new verbal learning etc. My PTSD injury is unique. It was caused by members of the same profession who treat it. It makes treatment very difficult if not impossible.

“This has never been argued by any of my lawyers. In 37 years of this legal nightmare no lawyer has ever been able to fully understand my human rights case or taken the time to find out. One of them said I had a ‘chip on my shoulder’. Another sat on the case for two years and hadn’t bothered to look up relevant case law. I was not listened to and generally treated as a cross between the village idiot and a naughty child.

“I have flashbacks and the reliving of the convulsions of electrical shock, heightened startle response and nightmares, all observed by witnesses. I sleep with my hands clenched in a defensive position across my chest. I have fallen out of bed during a nightmare and on one occasion ended up in casualty at Prince of Wales Hospital with a large blood clot on my hip. I have received no legal recognition for the illness or compensation.

“The judiciary is an arm of government and it is important in a democracy that the legal system is in fact not only delivering justice but is also be seen to be doing so.”

Andrew Allan, Secretary of the Medical Consumers Association who has been following the Hart case for many years said: “The judgments in the Hart case are so far from truth that they offend community standards. They are works of fiction that would not stand up to public scrutiny. They are an indictment of our legal system”.

When the courts and legal system refuse to deliver justice and go out of their way to hide the truth then it is up to the Government in a democracy to correct the situation. Hart has not received justice. An inquiry by either the federal or state government to correct this injustice is long overdue. In the words of Justice Sir Anthony Mason: “Nothing is more likely to bring about an erosion of public confidence in the administration of justice than the continual adherence by the courts to rules and doctrines which are unsound and lead to unjust outcomes”.  

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