During the 1960s and 1970s, patients at a small Sydney
private hospital called Chelmsford were subjected to a treatment known as
deep-sleep therapy.
Patients were kept in a comatose state for days or weeks by
massive doses of barbiturates. They lay naked on beds and were fed through tubes and were sometimes
administered convulsive electrical shock treatment while in a coma.
The treatment’s major proponent, Dr Harry Bailey, claimed
deep-sleep therapy cured depressive illnesses and compulsive behavior such as
drug and alcohol addiction.
Other psychiatrists doubted the value of the
treatment and were concerned about its risks. Dr Bailey and his small group of
colleagues were the only psychiatrists to use deep-sleep therapy with any
frequency.
Over a dozen of the patients given deep-sleep therapy at
Chelmsford died while in a coma or shortly after their release from the
hospital. Other patients at Chelmsford claimed they were inflicted with brain
damage and paralysis as a result of the treatment.
That the tragedy of deep-sleep therapy was finally exposed
to the public owes much to the persistence of two people who subsequently
became clients of PIAC: Barry Hart, a former patient, and Jan Eastgate,
president of the Citizens Committee on Human Rights (CCHR), backed by the
Church of Scientology.
Mr Hart underwent treatment at Chelmsford in 1973 and was
administered shock therapy against his will. In 1974, he spoke to the media of
his ordeal. In 1976, he commenced civil proceedings against Dr Bailey and the
hospital for assault and false imprisonment, which resulted in a damages award
to him of $60,000 in 1980.
In 1980, the CCHR forwarded documents it had obtained from
Chelmsford to the television program, 60 Minutes. The story 60 Minutes aired as a result of those documents was a powerful indictment of Dr Bailey and
his colleagues and of government inactivity. The authorities were finally
stirred to some action, but what followed was a lamentable series of bungles by
different parts of the bureaucracy, which ultimately led to the striking out,
11 years later, of misconduct proceedings against the Chelmsford doctors
because of this delay.
PIAC represented Mr Hart and Ms Eastgate in these
disciplinary proceedings.
Mr Hart and Ms Eastgate had laid misconduct complaints
against the Chelmsford doctors under the Medical Practitioners Act in 1980 and 1982.
About that time, several inquests were held into the deaths
of patients and a criminal charge of manslaughter was pending against Dr
Bailey. The Investigating Committee, which is responsible for dealing with
complaints against doctors, decided to stay its hand until the criminal
proceedings and inquests were completed.
In 1983, Ms Eastgate and Mr Hart came to PIAC for assistance
in getting the Committee to start investigating the complaints.
PIAC wrote to the Committee arguing
that it had an immediate duty to protect the public from unfit practitioners
and that this task was entirely different from the criminal proceedings and
should not await their outcome. The Committee was unmoved and in 1984 PIAC
brought mandamus proceedings in the Supreme Court.
After further courtroom skirmishes, the Investigating
Committee referred the complaints to the Disciplinary Tribunal, the body which
de-registers doctors. After
further delays, the de-registration hearing finally came on in June 1986. Dr
Bailey had committed suicide in the intervening period.
PIAC solicitor, Mark Buscombe, and counsel, John Basten (now
a Justice of the NSW Court of Appeal), represented Mr Hart and Ms Eastgate at
the Disciplinary Tribunal hearings.
The Health Department, which had by then laid its own charges, was
separately represented. At the
opening of the inquiry, counsel for the other doctors involved in the treatment
at Chelmsford argued that the disciplinary proceedings had taken so long to
come on that they were an abuse of process and should be stopped.
The Disciplinary Tribunal rejected the argument that Mr Hart
and Ms Eastgate had not diligently pursued their complaints and held that in
any event the principle of abuse of process was overridden in disciplinary
proceedings by the public interest in protecting further patients from unfit
doctors.
The doctors appealed to the Court of Appeal and won. The
judges gave predominant weight to the perceived hardship caused to the
individual doctors by the long-running investigations and strongly criticised
the authorities for the slowness and ineptitude of their inquiries. They also said that Mr Hart’s and Ms
Eastgate’s reliance on the government to act over Chelmsford was no excuse for
their own delay in prosecuting their own complaints.
An application for special leave to appeal to the High Court
was lost. All disciplinary proceedings in relation to the Chelmsford tragedy
were stymied.
The Chelmsford case was the first time a higher court in
Australia considered the principle of ‘abuse of process’ on the ground of delay
by the prosecution.
Not surprisingly, the judgment generated controversy amongst
lawyers.
The Court of Appeal judgment throws a heavy burden on private citizens
to bring complaints. A citizen
cannot rely on the fact that a government agency will perform its duty, even
though that agency must take individual action at the earliest possible point
after the matter of complaint occurs.
If a government agency is dragging its feet, the citizen must force the
agency to quicken its pace or prosecute the matter without the agency’s help.
But it is difficult to think what more Ms Eastgate and Mr Hart could have done
to expose Chelmsford.
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