Communication No. 947/2000*
Submitted by: Mr.
Alleged victim: The author
State party: Australia
Date of communication: 31 January 2000 (initial submission)
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 25 October
Adopts the following:
Decision on admissibility
1. The author of the communication is Barry Hart, an Australian citizen,
born on 20 August 1935. He claims to be a victim of a violation by Australia
of Articles 2(1), (2) and (3)(a), 14, 17(1) and (2), 18(1), 19(1) and
(2) and 26 of the International Covenant on Civil and Political Rights.
The International Covenant on Civil and Political Rights entered into
force for the State party on 12 November 1980 and the Optional Protocol
entered into force on 25 December 1991.
The facts as presented
2.1 In 1973, the author
voluntarily attended Chelmsford private hospital for a psychiatric appointment
with a Dr Herron, a leading doctor in deep-sleep treatment at Chelmsford.
The author contends that he was involuntarily rendered unconscious by
staff at Chelmsford. Over the following 10 days, the author alleges
that he was treated with large and potentially toxic quantities of nasally-administered
drugs (including barbiturates) without his consent. Electro-convulsive
therapy was also administered to the author without relaxants. The author
suffered double pneumonia, pleurisy, deep vein thrombosis, pulmonary
embolis and anoxic brain damage as a result of these treatments. On
20 March 1973, the author was transferred to Hornsby Public Hospital
with bilateral pneumonia and pulmonary embolus, before being discharged
on 3 April 1973. Following discharge, the author suffered convulsions,
sensitivity to noise, heightened startle response, nightmares, dry retching
and continual psychological arousal. This was diagnosed as severe, chronic
post traumatic stress disorder. These effects are stated to have rendered
the author virtually unemployable, with the result that he now lives
on a disability pension. Over the years, the author contends that this
symptom has become exacerbated to the point now of being untreatable.
2.2 The author commenced
legal proceedings by statement of claim in the District Court of New
South Wales in November 1976. These proceedings were transferred to
the Supreme Court of New South Wales in 1979.
2.3 In March 1980, civil
proceedings against Chelmsford and Dr Herron before Judge Fisher and
a jury began in the Supreme Court of New South Wales. The author contends
that the hearing was unfair in a variety of respects. The judge is said
to have excluded important probative evidence as prejudicial, and inappropriate
pressure was placed on the jury to reach a quick verdict. The defendants
adduced no medical witnesses in support of their position, but the judge
directed the jury on the medical evidence unfavourably to the plaintiff.
The author states that post-traumatic stress disorder from which he
was suffering was not a recognised illness at that time. Exemplary (punitive)
damages were withdrawn from the jury by the trial judge on the basis
that there was no evidence of gross and callous malpractice and neglect
which could warrant them. On 14 July 1980, the jury returned verdicts
against Chelmsford for false imprisonment and Dr Heron for false imprisonment,
assault and battery and negligence. The author was awarded damages of
$6,000 for false imprisonment against both defendants, $18,000 for assault
and battery against Dr Herron and $36,000 compensatory damages (for
past and future loss of earnings) against both defendants. In August
1980, the defendants appealed the "excessive" damages, while
the author also cross-appealed on quantum and the withdrawal of exemplary
2.4 In 1983, the author
complained to the Investigating Committee of the Medical Board about
his treatment at Chelmsford and related issues arising out of the 1980
2.5 In March 1986, the Investigating
Committee found a prima facie case of professional misconduct
against Dr Herron warranting reference to a Disciplinary Tribunal. Dr
Herron pursued a claim of abuse of process in the New South Wales Court
of Appeal, which referred the matter to the Disciplinary Tribunal. In
June 1986, Judge Ward of the Tribunal held that there had been no delay
by the author so as to constitute an abuse of process, citing the variety
of legal action during that period.
2.6 In September 1986, on
application by Dr Herron the New South Wales Court of Appeal (McHugh
CJ, Priestley and Street JJA) permanently stayed the disciplinary proceedings,
without reference to Judge Ward's judgement, on the basis that the author
had abused the process by delaying a complaint to the investigating
committee of the medical board for three years. The High Court of Australia,
in December 1986, refused special leave by the author to appeal the
Court of Appeal's judgement.
2.7 In August 1988, a Royal
Commission of Inquiry was commissioned to investigate into practices
at Chelmsford, including the deep sleep therapy practised and the large
number of deaths that had occurred there. The Royal Commission examined
the author's case, among others, in detail. In a very critical report
of December 1990, the Commission considered that criminal conduct had
occurred and that there was evidence of serious psychological damage.
It found the defendants had conspired to pervert the course of justice,
including by threatening an eye-witness nurse, and had forged the author's
supposed consent to treatment, followed by deliberately lying about
the incident of forgery.
2.8 In 1993, the author
states that he was diagnosed with debilitating psychiatric illness for
the first time. In June 1993, the New South Wales Court of Appeal dismissed
Dr Herron's application that the author's appeal from the 1980 trial
be dismissed for want of prosecution.
2.9 In August 1995, the
author's appeal from the 1980 trial was heard in the New South Wales
Court of Appeal, with the author appealing against an inadequate quantum
of compensatory damages and the withdrawal of exemplary damages from
the jury by the trial judge. Dr Herron's cross-appeal was not pursued.
On 6 June 1996, the New South Wales Court of Appeal (Priestley, Clarke
and Sheller JJA) dismissed the appeal, with costs against the author.
The Court found, inter alia, that reports of psychological testing
done in 1972 showed "many of the symptoms" subsequently attributed
to the Chelmsford treatment. The Court considered that the Royal Commission
of Inquiry's findings, combined with other evidence, only went so far
as to support a conclusion that Dr Herron had "acted badly"
in concert with others. Priestley JA, writing for the Court, found that
"It does not seem to me that the further material relied on by
the appellant could have taken the matter any further than the materials
actually available at the trial". The Court held it could find
no error in the trial judge's conduct.
2.10 In April 1997, an application
to the High Court of Australia for special leave to appeal was denied
(Brennan, Dawson and Toohey JJ), again with costs against the author.
The Court held the author could not pursue exemplary damages so long
after trial. The author states that the criminal activity concerned
was only exposed at the Commission in 1990 and that he had been engaged
in protracted legal proceedings since that point.
3. The author complains
that the State failed to properly regulate the standards and practices
at Chelmsford and to investigate a series of complaints from nursing
staff and State inspectors. The author also complains that the judiciary
and the legal profession was biased against him and stigmatised him
on the basis of his psychiatric treatment, in particular in the 1980
civil trial against Dr Herron. Moreover, the author alleges that the
New South Wales Court of Appeal is said to have ignored relevant evidence,
fabricated facts and evidence and handed down false and misleading judgements
in both the staying of disciplinary proceedings in 1986 and the substantive
appeal in 1996. The author states that the State party has failed to
provide and exercise appropriate regulatory and investigatory mechanisms
over the judiciary and the legal profession. The courts also have failed
to award fair and adequate compensation to him as a victim of stated
psychiatric abuse and torture. The author claims that the above constitute
violations of articles 2, 14, 17, 18, 19 and 26 of the ICCPR.
Issues and proceedings
before the Committee
4.1 Before considering any
claim contained in a communication, the Human Rights Committee must,
in accordance with rule 87 of its rules of procedure, decide whether
or not it is admissible under the Optional Protocol to the Covenant.
4.2 As the Optional Protocol
entered into force for Australia on 25 December 1991, the Committee
is precluded ratione temporis from considering allegations that
relate to events that occurred before this date, unless they had continuing
effects that in themselves constitute a violation of the Covenant. Thus
the author's complaints regarding his treatment at Chelmsford, the civil
trial against Dr Herron and the decision of the New South Wales Court
of Appeal staying the disciplinary proceedings against Dr Herron, which
all occurred before 25 December 1991, must be considered inadmissible.
4.3 As regards the author's
complaints relating to the decisions of the New South Wales Court of
Appeal and the High Court of Australia, the Committee recalls that it
is generally not for the Committee but for the courts of States parties
to evaluate the facts and evidence in a specific case, unless it can
be ascertained that the evaluation was clearly arbitrary or amounted
to a denial of justice. Furthermore, it is not for the Committee to
review the interpretation of domestic law by the national courts. In
the present case, the Committee notes that both the New South Wales
Court of Appeal and the High Court of Australia considered the author's
allegations and, on the basis of the available evidence, refused to
disturb the lower court's findings of facts and law. The author's allegations
and the information before the Committee do not substantiate that the
Court of Appeal or the High Court's decisions were manifestly arbitrary
or amounted to a denial of justice. In the circumstances, this part
of the communication is inadmissible under Article 2 of the Optional
4.4 With regard to the author's
remaining allegations, the Committee considers that the author has failed
to substantiate them, for purposes of admissibility. They are therefore
also inadmissible under Article 2 of the Optional Protocol.
5. The Committee therefore
(a) that the communication
(b) that this decision shall
be communicated to the author and, for information, to the State party.
[Adopted in English, French and Spanish, the English text being the
original version. Subsequently to be translated into Arabic, Chinese
and Russian as part of the Committee's Annual Report to the General
* The following members
of the Committee participated in the examination of the communication:
Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine
Chanet, Lord Colville, Ms. Pilar Gaitan de Pombo, Mr. Louis Henkin,
Mr. Eckart Klein, Mr. David Kretzmer, Mr. Martin Scheinin, Mr. Hipólito
Solari Yrigoyen, Mr. Roman Wieruszewski, Mr. Maxwell Yalden, and Mr.
Abdallah Zakhia. Under rule 85 of the Committee's rules of procedure,
Ms. Elizabeth Evatt did not participate in the examination of the case.