Report of the Royal Commission Into Deep Sleep Therapy Volume 1 Introduction 0724087664, 0724087672

Citation preview

17 December, 1990.

Dear Mr. Greiner: In accordance with Letters Patent dated 14 September 1988, 30 August 1989, 20 December 1989 and 16 May 1990, I have the honour to present to you the Report on Term 1(a), (b) , (c) and (d) of the Royal Commission into Deep Sleep Therapy.

Yours sincerely.

The Honourable Nick Greiner, BEc, MBA (Harvard), MP Premier of New South Wales, State Office Block, Macquarie Street, SYDNEY 2000. N.S.W.

INTRODUCTION

VOLUME 1

ISBN 0 7240 8766 4 ISBN 0 7240 8767 2 II

VOLUME 1

CONTENTS Page TERMS OF REFERENCE.........................................................................

1

CHAPTER 1 THE ESTABLISHMENT OF THE COMMISSION...........................

7

The media.........................................................................................

8

The appearances.................................................................................

9

An historical perspective....................................................................

12

The hearing.......................................................................................

13

An open inquiry ..............................................................................

16

Section 17............................................................................................

17

The evidence.......................................................................................

18

A wider view of Chelmsford...........................................................

20

Acknowledgements............................................................................

23

CHAPTER 2 LIMITATIONS ON TERMS OF REFERENCE................................

25

Issues from the submissions ...........................................................

28

Issues raised by Dr Herron..............................................................

32

Compensation....................................................................................

44

CHAPTER 3 AN OVERVIEW OF CHELMSFORD AND DST..............................

47

DST treatment at other hospitals......................................................

53

Particular matters..............................................................................

54

The DST patients..............................................................................

56

Consent...............................................................................................

57

The experts.........................................................................................

58

The deaths.........................................................................................

59

Further proceedings .........................................................................

60

Term 1(c), action to prevent treatment...........................................

61

Term 1(d), Dr Davies.........................................................................

67

CHAPTER 4

Page

CHELMSFORD PRIVATE HOSPITAL..............................................

73

Private Hospitals Act.........................................................................

75

The regulations.................................................................................

77

Chelmsford's licence.........................................................................

78

Other doctors using the hospital......................................................

79

Establishment of DST ......................................................................

79

Hospital equipment............................................................................

81

Chelmsford records............................................................................

85

Quality of nursing records ..............................................................

90

Employment records.........................................................................

94

Ownership and licensing.................................................................

94

Joseph Silbermann............................................................................

99

Mollie Patricia Sansom......................................................................

105

The cover-up.......................................................................................

107

Matrons...............................................................................................

Ill

Elva Dawson Howard......................................................................

112

Wilma Dawn Lowe............................................................................

115

Margaret Rose Nelson......................................................................

117

Sandra Stephanie Robson.................................................................

120

Julie Dulcie Smith...............................................................................

129

Marcia Joyce Fawdry.........................................................................

135

Genevieve Duffy ...............................................................................

142

Suzanne Maree Moroney.................................................................

142

Communication at Chelmsford.........................................................

150

Nurses' discretion...............................................................................

152

Quality of nursing............................................................................

159

Nurses' training.................................................................................

164

Secrecy...............................................................................................

169

Visitors...............................................................................................

169

Consent to treatment.........................................................................

170

Absence of records............................................................................

171

Absence of publication......................................................................

171

Examples of cover-up......................................................................

172

iv

Page Missing files......................................................................................

173

Conclusion.........................................................................................

174

The patients......................................................................................

174

Subsequent DST admissions ...........................................................

175

Variety of patients............................................................................

176

Robert Limb......................................................................................

180

The last patients.................................................................................

183

Drug addicts......................................................................................

184

The doctors' treatments....................................................................

185

Complaints.........................................................................................

186

Evidence not coloured......................................................................

187

Retail chemists....................................................................................

187

Drug manufacturers .........................................................................

191

INDEX.......................................................................................................

193

v

TERMS OF REFERENCE NEW SOUTH WALES Elizabeth the Second, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth. To Our Trusty and Well-beloved: The Honourable JOHN PATRICK SLATTERY, an Acting Judge of the Supreme Court of New South Wales. GREETING: KNOW YOU, that We, reposing great trust and confidence in your integrity, learning and ability, do, with the advice of the Executive Council of the State of New South Wales, hereby authorise and appoint you as sole Commissioner to make inquiry into the following matters in connection with public and private mental health services in New South Wales— 1. (a) The administration of, and the provision of treatment (including the provision of nursing or other care) to patients in(i) the former Chelmsford Private Hospital; (ii) any other Hospital in which the procedures known as "Narcosis Therapy" or "Deep Sleep Therapy" were used to a significant degree in the treatment of persons who were patients of the Hospital, insofar as that administration and that treatment were connected with the use of those procedures, whether as part of them or otherwise. (b) Whether there was any failure (deliberate or otherwise) on the part of any medical practitioner to report accurately to the appropriate authorities the cause or causes of death of a person dying in the course of or soon after treatment at the Hospital, as referred to in sub-paragraph (a), where that medical practitioner became responsible, in the circumstances of the case, for reporting the cause or causes of such death. 1

Royal Commission

into

Deep Sleep Therapy

(c) Whether there was any failure by the State Government, any instrumentality of it (including the Police Force), or any officer or employee of the State Government or any such instrumentality, to take appropriate and diligent action in connection with the investigation of, or the institution of legal or other proceedings in relation to(i) such administration or treatment, as referred to in sub-paragraph (a); or (ii) the conduct of any medical practitioner in relation to accurately reporting the cause or causes of death to the appropriate authorities, as referred to in sub-paragraph (b). 2. Whether there are any improvements that should be made in the regulation and monitoring of the standards of mental health services, whether public or private; and in particular(a) the regulation and monitoring of treatments (including the administration of drugs and the performance of psychosurgery), particularly treatments of a new or experimental kind, in order to ensure their efficacy and safety. In your consideration of these matters you should include consideration of the possible role of official organs of the medical community and of the Medical Board of New South Wales; and (b) the investigation of or taking of other action by the responsible State authorities, including the Complaints Unit of the Department of Health and Government employees, when cases of possible mistreatment are complained of or otherwise arise. AND WE direct that, except to the extent to which you consider it would be inappropriate to do so, your inquiry should be conducted in two phases, the first in relation to the matters set out in paragraph 1 above, and the second in relation to the matters set out in paragraph 2 above, with your report on the first phase being made at the end of your inquiry into that phase. AND WE further direct that, without limiting any discretion vested in you as to the manner of conducting your inquiry, it may be conducted in accordance with the following guidelines— 1. In the absence of exceptional circumstances, leave to persons or organizations to appear in relation to the matters set out in paragraph 2 above should not be granted unless the person or organization concerned has furnished written submissions to you and you have reached the view, after consideration of those submissions, that the person or organization ought to be heard. 2. You are not required to take evidence again on any matter on which evidence has already been taken in any litigation or other proceedings, but you may rely on evidence given in those proceedings, or on findings of fact made by the tribunal before which they were conducted. 2

Volume 1

Terms of Reference

AND OUR further will and pleasure is that you do, as expeditiously as possible, but in any case on or before 31st August, 1989, deliver to the office of Our Premier at Sydney your reports in writing of the results of the inquiry: AND IT IS HEREBY DECLARED that Section 17 of the Royal Commissions Act, 1923, shall apply to and with respect to the inquiry. IN TESTIMONY WHEREOF, We have caused these Our Letters to be made Patent, and the Public Seal of Our State to be hereunto affixed. WITNESS Our Trusty and Well-beloved Sir JAMES ANTHONY ROWLAND, Companion of the Order of Australia, Knight Commander of Our Most Excellent Order of the British Empire, upon whom have been conferred the Decorations of the Distinguished Flying Cross and the Air Force Cross, Our Governor of Our State of New South Wales and its Dependencies, in the Commonwealth of Australia, at Sydney, in Our said State, this Fourteenth day of September, 1988. [J.A. Rowland] Governor. Elizabeth the Second, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth. To Our Trusty and Well-beloved: The Honourable JOHN PATRICK SLATTERY, an Acting Judge of the Supreme Court of New South Wales. GREETING: WHEREAS by Royal Commission by Letters Patent under the Public Seal of Our State of New South Wales and the hand of Sir James Anthony Rowland, Our Governor of Our State dated the fourteenth day of September, one thousand nine hundred and eighty eight, and recorded in the Register of Patents, No. 83, Page 384, you the abovenamed the Honourable John Patrick Slattery were authorised to make the Inquiry therein referred to AND WHEREAS by Our said Commission it was directed that you do, on or before 31st August, 1989, deliver to the office of Our Premier, at Sydney, in Our said State, your reports in writing of the results of the Inquiry AND WHEREAS it is desirable that the time within which you are required to certify to Us what you shall find touching the said Inquiry should be extended as hereinafter appears NOW KNOW YOU that We do by these presents, with the advice of the Executive Council of Our said State, direct and signify Our will and pleasure that you do on or before the 31st May, 1990, certify to Us, in the manner mentioned in Our said Commission, what you shall find touching the said Inquiry AND WE DO HEREBY DECLARE that these Our Letters Patent shall be 3

Royal Commission

into

Deep Sleep Therapy

read with Our said Commission AND IT IS HEREBY DECLARED that the "Royal Commissions Act 1923, as amended", including Section Seventeen thereof, shall apply to and with respect to these presents. IN TESTIMONY WHEREOF, We have caused Our Letters to be made Patent, and the Public Seal of Our State to be hereunto affixed. WITNESS Our Trusty and Well-beloved, His Excellency Rear Admiral Sir DAVID JAMES MARTIN, Knight Commander of the Most Distinguished Order of Saint Michael and Saint George, Officer of the Order of Australia, Governor of the State of New South Wales in the Commonwealth of Australia, at Sydney in Our said State this Thirtieth day of August, 1989. [D.J. Martin] Governor NEW SOUTH WALES ELIZABETH THE SECOND, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth. To Our Trusty and Well-beloved: The Honourable JOHN PATRICK SLATTERY, an Acting Judge of the Supreme Court of New South Wales. GREETING: WHEREAS by Letters Patent issued in Our name by Our Governor of Our State of New South Wales on 14th September, 1988 and varied on 31st August, 1989 We appointed you to be a Commissioner to inquire into and report upon certain matters in connection with public and private mental health services in New South Wales: AND WHEREAS it is desirable that those Letters Patent be varied: NOW THEREFORE We do, by these Our Letters Patent issued in Our name by Our Governor of Our said State on the advice of the Executive Council of Our said State declare that the Letters Patent issued on 14th September, 1988, and varied on 31 August, 1989 shall have effect as if after paragraph 1(c) there were inserted the following paragraph: "(d) the psychometric testing conducted by Evan Davies on patients at the Chelmsford Private Hospital before and after the treatment of such patients by the procedures known as "Narcosis Therapy" or "Deep Sleep Therapy" and the contribution of such testing to the establishment maintenance and justification of the said treatment".

IN TESTIMONY WHEREOF, We have caused Our Letters to be made Patent, and the Public Seal of Our State to be hereunto affixed. 4

Volume 1

Terms of Reference

WITNESS Our Trusty and Well-beloved, His Excellency Rear Admiral Sir David James Martin, Knight Commander of the Most Distinguished Order of Saint Michael and Saint George, Officer of the Order of Australia, Governor of the State of New South Wales in the Commonwealth of Australia, at Sydney in Our said State this 20th day of December, 1989. By Deputation from His Excellency the Governor

[A.M. Gleeson]

By His Excellency's Command. [Nick Greiner] Premier. NEW SOUTH WALES ELIZABETH THE SECOND, by the Grace of God, Queen of Australia and Her other Realms and Territories, Head of the Commonwealth. To Our Trusty and Well-Beloved: The Honourable JOHN PATRICK SLATTERY, an Acting Judge of the Supreme Court of New South Wales. GREETING: WHEREAS by Royal Commission by Letters Patent under the Public Seal of Our State of New South Wales and the hand of Sir James Anthony Rowland, Our Governor of Our State dated the fourteenth day of September, one thousand nine hundred and eighty eight and recorded in the Register of Patents, No. 83, Page 384, you the abovenamed the Honourable John Patrick Slattery were authorised to make the Inquiry therein referred to AND WHEREAS by Our said Commission it was directed that you do, on or before 31st August, 1989, deliver to the office of Our Premier, at Sydney, in our said State, your reports in writing of the result of the Inquiry: AND WHEREAS by Royal Commission issued in our name by our Governor of our said State dated the 30th August 1989 the time within which you were required to certify to Us what you shall find touching the said Inquiry was extended until 31st May, 1990: AND WHEREAS it is desirable that the time within which you are required to certify to Us what you shall find touching the said Inquiry should be further extended as hereinafter appears NOW KNOW YOU that We do by these presents, with the advice of the Executive Council of Our said State, direct and signify Our will and pleasure that you do on or before 5

Royal Commission

into

Deep Sleep Therapy

the 21st December, 1990, certify to Us, in the manner mentioned in Our said Commission, dated 14th September, 1988 what you shall find touching the said Inquiry AND WE DO HEREBY DECLARE that these Our Letters Patent shall be read with Our said Commission AND IT IS HEREBY DECLARED that the "Royal Commissions Act 1923, as amended", including Section Seventeen thereof, shall apply to and with respect to these presents. IN TESTIMONY WHEREOF, We have caused Our Letters to be made Patent, and the Public Seal of Our State to be hereunto affixed. WITNESS Our Trusty and Well-beloved, His Excellency Rear Admiral Sir David James Martin, Knight Commander of the Most Distinguished Order of Saint Michael and Saint George, Office of the Order of Australia, Governor of the State of New South Wales in the Commonwealth of Australia, at Sydney in Our said State this 16th day of May, 1990. By deputation from His Excellency D.J. Martin, Governor. By His Excellency's Command [Nick Greiner] NICK GREINER, Premier.

6

[A.M. Gleeson]

CHAPTER 1

The establishment of the Commission

On 14 September 1988 His Excellency the Governor, Sir James Anthony Rowland, AC, KBE, DFC, AFC, by Letters Patent directed to me a Commission as sole Commissioner to inquire into events which occurred at Chelmsford Private Hospital and into a therapy known as "narcosis therapy" or "deep sleep treatment". I was especially asked to examine the circumstances of a number of deaths which seemed to have been connected to the treatment and the investigations conducted by various government bodies. Part of my terms of reference required me to examine the regulation and monitoring of the standards of mental health services in New South Wales. The terms of reference are set out at the front of this volume. My Commission originally required me to report on these matter by 31 August 1989. His Excellency varied the Letters Patent on 30 August 1989. The variation meant the report was to be delivered by 31 May 1990. By Letters Patent dated 20 December 1989 His Excellency the Governor, Rear Admiral Sir David James Martin, KCMG, AO, declared that the Letters Patent which were issued on 14 September 1988 and varied on 30 August 1989, should include a new paragraph. This sought a report on the role of Dr Evan Davies and his psychological testing in the DST treatment. The Letters Patent were again varied on 16 May 1990. The time for my report to be presented was extended to 21 December 1990. After my appointment by Commission, Mr John McMillan who was appointed secretary of the Royal Commission, arranged for notices to be published in newspapers in Sydney and country areas of NSW and in a daily newspaper published in Canberra and the other capital cities of the Australian States. A copy of the notice published in the newspapers appears in volume 12. On 17 October 1988 the Attorney General, Mr Dowd, asked me, through counsel assisting to inquire into the cause of death and the circumstances surrounding the death of Peter Clarke who died at Chelmsford on 22 April 1974. The Attorney General was approached by Mr Clarke's widow to seek an order from the Supreme Court to hold an inquest into her husband's death. Instead of seeking such an order, the Attorney General considered my terms permitted me to investigate and inquire into the death of Mr Clarke. I have done so. On 11 April 1989 I received, also through counsel assisting, a copy letter from the Attorney General to the daughter of a Chelmsford patients who had died, aged 59,12 days after leaving Chelmsford. The Attorney General 7

Royal Commission

into

Deep Sleep Therapy

informed the addressee of his letter that the Royal Commission's terms of reference were wide enough to allow a thorough investigation and assessment of the circumstances surrounding her mother's death. I was commissioned to investigate deaths at Chelmsford which might have been related to DST. The death of Mrs E.D. was one such death. I interpreted the Attorney General's letter as a request not to overlook the death of that particular person. I have included in the volume dealing with the Chelmsford deaths a chapter reporting on the death of Mrs E.D. The media Media interest in Chelmsford and its DST treatment first appeared in 1967. On 9 November 1967 The Sydney Morning Herald reported the remarks of the coroner at an inquest into the death of Ronald Graeme Carter on 3 May 1967. He had undergone routine sedation treatment for post-traumatic depression at Chelmsford. The newspaper report under the bold heading "Concern at hospital drug policy" referred to dangerous drugs being administered by the hospital nursing staff at their own discretion. These remarks do not seem to have attracted the attention of officers of Health as a matter for investigation. No copy of this publication and no record of its existence within the department was produced on summons.

Thereafter, about 66 articles appeared in the Herald relating to Chelmsford, doctors who practised there and DST. Similar references were also made in other sections of the media. On 11 November 1975 the Herald ran a front page story concerning Mr Barry Hart. He claimed he had been given ECT at Chelmsford against his will. Dr Sydney Hing, the then head of the Private Hospitals Branch of Health, was reported as saying he was convinced that cases of abuse or incorrect treatment were rare and the majority of private hospitals were of a high standard in both care and equipment. Chelmsford again came before the public in October 1978. The Sydney newspaper Sunday reported that the Minister for Justice, Mr Ron Mulock had asked Health to investigate allegations of dangerous deep coma therapy being used at a Sydney northern suburbs hospital. About this time the same newspaper published an article headlined "Zombie room outrage at hospital". It referred to the death of three patients after DST. In February 1980 the Herald highlighted Dr Rankin's evidence in the John Adams inquest. He had said that DST should only be carried out in an intensive care ward and that treatment at Chelmsford with only two nurses on duty at any one time was not a suitable environment. A 60 Minutes programme, "The Chelmsford File", on Channel 9, Sydney, went to air on Sunday, 28 September 1980. It examined the use of DST and ECT at the hospital and featured Miriam Podio's death. This programme evoked letters to parliamentarians complaining about DST 8

Volume 1

The Commission

treatment and requesting an investigation. It also prompted discussion on radio. On 7 March 1982 60 Minutes produced a second report on Chelmsford. A further TV programme on Channel 9 on 19 September 1984 and articles in The Australian and The Sun newspapers in September 1985 called for an inquiry into Chelmsford. Calls for a public inquiry into Chelmsford by the Shadow Ministers for Health in the NSW Parliament in March 1987 and May 1988 were rejected by the respective governments. Shortly after the second rejection a strong newspaper call for a Royal Commission began. On Saturday 30 July 1988 the Herald published the first of a series of articles into Chelmsford by two investigative journalists, Mr Robert Haupt and Mr John O'Neill. In an editorial on 2 August 1988 the Herald called for immediate action in relation to Chelmsford. The last of the articles was published on 6 August 1988 when the paper's editorial called for a Royal Commission. On 16 August 1988 the government announced a Royal Commission. The publication of the articles, the editorials and the television broadcasts together with the active campaign waged by members of the Chelmsford Victims Action Group and others for an inquiry were undoubtedly instrumental in causing the government to review its earlier decisions and to establish a Royal Commission. The appearances The first sitting of the Commission was held on 4 October 1988. My Commission was read and I heard applications for leave to appear from different persons, bodies and government departments who wanted to be represented. Mr B.H.K. Donovan QC and Mr J.K. O'Reilly, also now one of Her Majesty's counsel, announced they had been appointed by the Crown to assist me. Mr T.A. Cunningham was their instructing solicitor. On 14 November 1988 Mr C.J. Geraghty of counsel was also appointed to assist me.

Applications were made by a number of individuals and government departments for my authorisation to appear and to be represented by counsel and/or a solicitor. I deferred these applications to 11 October 1988. Further submissions for leave to appear were made on 11 October, when leave was granted to some applicants and others were deferred to be made at an appropriate time. In some cases no further application was made. Mrs M.J. Bailey who was executrix of the estate of the late Dr H.R. Bailey, sought and was granted leave to appear for the estate only. She did not seek to look after the interests of Dr Bailey or to address herself to treatment of patients or his personal conduct. She was represented by Mr S. Hume when ever she appeared. 9

Royal Commission

into

Deep Sleep Therapy

On 13 July 1989 I was informed that Mrs Brenda Duchen, solicitor for three former Chelmsford patients, Mr B.F. Hart, Mrs D.A. Clarke and Mrs G. Whitty had been directed by her clients to withdraw instructions to counsel, Mr L.D.S. Waddy QC and Mr B. Bromberger. The solicitor applied to the Commission for time to consider her clients' instructions and the problem created by those instructions. The matter was stood over to 17 July 1989. On that date she was granted leave to appear for four other former patients of Chelmsford—Mr G.J.H., Miss K.L.G., Mr R.C.O. and Mrs C.W. who were authorised by me to appear. Leave was granted to Mr Waddy QC and Mr Bromberger to represent these former patients. Later I said: "In my view it is unthinkable that this outlay of public moneys, the marshalling of facts and material which counsel has embarked upon, the information gained, the advantages which counsel derive from appearing in a long Commission and the help which counsel can give at the end by way of submission should be wasted by Mr Waddy, Mr Bromberger and their instructing solicitor disappearing from the scene. On Thursday, I granted Mr Waddy, his junior counsel and solicitor leave to appear for four former patients. In these circumstances the substantial amount of public money expended will not now be lost."

On 17 July 1989 the representation of Mr Hart, Mrs Clarke and Mrs Whitty by counsel and solicitor was withdrawn. However, I authorised them to appear at the Commission. Representation by counsel and solicitor was not allowed at that stage. They were not allowed to examine or cross examine witnesses. It was left open to them to make application to be represented by a solicitor and/or counsel on any particular matter, including final submissions. On 14 August 1989 Mr W.S. Veitch of counsel was granted leave to represent Mrs Clarke and to cross examine two nurses. On 5 September 1989 leave was granted to Mr K.J. Crispin QC, Mr Veitch and Mr A.R. Mallard, solicitor, to represent Mr Hart and Mrs Clarke about matters dealing with Health and the AG's. Leave was also given to make final submissions about Terms 1(a) and 1(b) of the terms of reference. On 15 January 1990 after Mr Mallard's instructions were withdrawn by Mr Hart and Mrs Clarke, his leave to represent them was withdrawn. Leave was given to Dunhill, Madden, Butler, solicitors, to represent them. The leave granted to Mr Crispin QC and Mr Veitch on 5 September 1989 was continued. For a list of legal representatives of persons, bodies or state departments granted leave to appear before the Royal Commission on 11 October 1988 and afterwards see volume 12. 10

The Commission

Volume 1

The Government paid all reasonable costs of both senior and junior counsel and solicitors who were granted leave to represent people authorised to appear before the Commission. These people were represented on a daily basis. Those with limited leave were notified of the times their interests would be raised. Counsel and solicitors were provided with copies of the Commission's daily transcript, most exhibits and a complete list of witnesses and exhibits. The major participants granted leave to be represented were provided with electronic hardware and software through a mainframe computer. This enabled them to carry out an electronic search of the transcript. They had no need to maintain an extensive and unmanageable index. The public transcript of the hearing extended to 18,714 pages. Every effort was made to ensure that the departments and people authorised to appear and their legal representatives were kept fully informed of the Commission's programme, the order of witnesses and the exhibits. Copies of witnesses' statements, provided the witness agreed, were circulated to all counsel and solicitors. Copies of documents shown to witnesses or exhibited at the Royal Commission were made available. An effort was made to meet requests, sometimes worded strongly, for particulars on a wide range of matters and for copies of documents. Attempts were made by some legal representatives to circumscribe and control the Royal Commission or to turn it into adversarial-type proceedings. Requests to provide particulars sometimes extended over many pages; objections were taken to the approach of counsel assisting to courses of action they proposed; requests were received for an extensive amount of material and documents to be obtained and for numerous witnesses to be interviewed. On one occasion the solicitors acting for Dr Herron asked the Commission to issue 300 summonses. Two hundred were issued to ensure that people in the position of Dr Herron were treated fairly. The Royal Commission complied with all requests for access to material held by it. Legal representatives were invariably permitted to inspect and identify material. At times some of those granted leave sought an adjournment to consider their position. On 5 December 1988 Mr Hart was about to give evidence. Mr Sackar QC, for Dr Herron, sought an order that the Mr Hart's name and evidence be suppressed. I refused his request. He asked for an adjournment to consider seeking an order elsewhere. The adjournment was granted and other witnesses were interposed before Mr Hart began his evidence. 11

Royal Commission

into

Deep Sleep Therapy

An historical perspective This Royal Commission is the first full scale public inquiry into mental health practices in NSW since the 1961 Royal Commission on matters affecting Callan Park Mental Hospital. In 1977 a commission of inquiry into psychosurgery was held, but this inquiry entailed a much narrower focus, namely the acceptability of certain psychosurgical procedures in treating psychotic conditions.

The 1961 Callan Park Royal Commission in which, ironically. Dr Harry Bailey played a prominent role, followed widespread allegations of cruelty and misconduct at the hospital. It highlighted the problems of overcrowding, a shortage of professional staff, lack of finance and inappropriate attitudes to mental health. The report of the Commissioner noted that the problems were symptomatic of the mental health system in general and that hospital care of the mentally ill needed to place emphasis on therapy and not custody. Both the 1961 Royal Commission and this Royal Commission arose following public attention being drawn to inadequacies in the provision of care to patients. Tribunals of public inquiry into mental health care are not just a product of recent times in NSW. In 1868 Frederick Norton Manning was commissioned to visit lunatic asylums in the UK, Europe and the US. Based on his investigations he made a number of recommendations on asylum practice and design which became the standard for many years. In 1869 a select committee to investigate laws relating to lunacy commented that further legislation was "imperatively called for". A further select committee investigating the Parramatta Lunatic Asylum in 1877 stated it did not consider any recommendations necessary. Two years later a board was appointed to inquire into the quality of the food supplied at the asylum and the Parramatta gaol. It considered the food was satisfactory. Other commissions of inquiry included an investigation into government asylums in 1887 and a Royal Commission into the conduct and management of the licensed house for the insane at Cook's River, near Sydney, known as "Bayview House". This commission followed allegations of cruelty to certain patients who had been "farmed out" by the government to this private hospital. The allegations of cruelty were dismissed. A Royal Commission on the administration of mental hospitals and the reception house for the insane at Darlinghurst was set up in 1913 to investigate allegations of improprieties of certain nurses with their patients. Again, the allegations were dismissed. In 1923 a further Royal Commission on lunacy law and administration reported on the methods of admitting patients to public and private mental hospitals, treatments and discharge procedures. The defects in conditions 12

Volume 1

The Commission

at mental hospitals were attributed to overcrowding and unsuitable buildings. Allegations of ill treatment were generally found to have been exaggerated. In 1958 a new Mental Health Act was passed and in 1960 a committee was assembled to further consider legislation and administration in regard to mental defectives. This inquiry was followed by the 1961 Callan Park Royal Commission. This series of public inquiries in NSW were required to examine recurring allegations of cruelty and misconduct in mental hospitals. In the present Royal Commission there is again an investigation of malpractice and mistreatment of patients. The hearing The inquiry has been a long and painstaking exercise. I heard evidence over 288 days. Senior counsel assisting gave an opening address on 10, 11 and 12 October 1988. The oral evidence began on 12 October 1988 and concluded almost 21 months later on 9 July 1990.

The principal protagonist of DST, Dr Bailey, committed suicide on 8 September 1985. People who knew him from different perspectives gave evidence about him—his wife Mrs Marjorie Bailey, Dr John Herron, Dr Ian Gardiner, Dr John Gill, his solicitor and friend Mr Jack Levy, the nurses from Chelmsford as well as some of his secretaries at Macquarie Street, Miss Jan Allan and Miss Helen Mac Arthur. A number of Dr Bailey's statements about individual patient's deaths, evidence he gave at the Carter and Hamilton inquests, answers given on oath in the Patricia Vaughan proceedings, his patient records and correspondence with other doctors and a tape of one of his lectures, all contributed to my overall conclusions about Dr Bailey. Two hundred and ninety seven witnesses gave evidence. The 522 exhibits included some very large voluminous, binders and files and an extensive series of documents. Many volumes of written submission were received. A large number of witnesses were either patients or relatives of patients who had been treated with DST at Chelmsford. Their evidence told of tragic events. Probably the best known patient was Mr Hart. He was in the witness box on 11 days. Patients who had experienced DST and their families were given every opportunity to be heard. Not only did many of them have information to contribute to my overall understanding and appreciation of the terms of the inquiry, but those who came forward, however diffidently, seemed to want to share their experience and purge themselves of what had become bitter memories. I decided very early in the inquiry to hear from any ex-DST patient who wished to be heard. 13

Royal Commission into Deep Sleep Therapy

As part of the "open door" approach which was adopted, letters were posted to all former Chelmsford patients who had undergone DST and whose addresses could be found. Letters were not sent to former patients who gave evidence. Some patients were located in the US and the UK. Five hundred and fifty two letters were posted. Seventy nine former patients responded. Fifty nine letters were returned unclaimed. Twenty six other people also replied. (A sample of the letter sent to former patients appears in volume 12 exhibit 425.) Dr Herron gave evidence on 29 days of the hearing. Dr Gardiner gave evidence on 14 days. The shareholders and directors of the company involved in Chelmsford from 1972 to the end of DST in March 1979 were called to give evidence. Dr Gerald Morgan, Dr Alexander Dan, Mr Michael Hershon and Mr Tibor Balog gave evidence only for brief periods but Dr Gill was in the witness box on 20 days of the hearing. Mr Silbermann, who was also an interested party and the licensee of Chelmsford from 1972 to 1978, gave evidence on five days. Doctors associated with Hornsby Hospital gave evidence—Dr David Lind, Dr Albert Himmelhoch. Other doctors associated with Chelmsford but not involved with DST treatment were called, such as Dr Otto Reichard, Dr Brian Boettcher and Dr Elanor Dawson. A number of Health Commissioners gave evidence together with a number of Ministers of the Crown—Mr K.J. Stewart, Mr F.J. Walker, Mr T.W. Sheahan, Mr R. Mulock, Mr L. Brereton and Mr P. Anderson. The chairman of the Health Commission, Dr R. McEwin, gave evidence on five days. Senior officers of Health and of AG's were called about inspections of Chelmsford, the development of the treatment sheets, drug regulations and the investigation of serious allegations involving the hospital and the DST treating doctors. Magistrates who conducted coronial inquests into the deaths of Chelmsford patients or who had dispensed with an inquest were called to give evidence. There were Mr Nash and Mr Schetrumpf. The Royal Commission received evidence from a number of police officers, some of whom were involved in the coronial inquests, others involved in the Chelmsford investigations. One expert police officer examined and reported on documents and handwriting on some patient records. The Royal Commission received a large amount of expert evidence, mainly by written reports rather than hearing oral evidence. Thirty of the Chelmsford nursing staff were called to give oral evidence. These included eight matrons of the hospital. Statements of many nurses were tendered. They were taken by police for inquests, or in their investigations from 1980 to 1985, or by officers of the Royal Commission. 14

Volume 1

The Commission

Attempts were made to contact other important nursing staff. Searches were made throughout Australia but some were not able to be contacted. Matron Marcia Fawdry came from Tasmania. She was in the witness box for nine days. Matron Julie Smith also travelled from Tasmania to give evidence. Matron Sandra Robson came from Queensland for five days of evidence. Counsel assisting the Royal Commission had the general carriage of the inquiry throughout the hearings. They called all witnesses. They examined or cross examined the witnesses before other legal representatives, and re-examined them. All exhibits were tendered by counsel assisting. Where evidence was taken from a person who was represented, or a body or department was under examination, their counsel or solicitor was usually allowed to cross examine last. This course could not be followed with all witnesses. Mr Robert McCormick, Dr Sydney Hing and Dr McEwin, for example, were separately represented even though all three were associated with Health. In these cases the personal legal representation followed Health's counsel. However, where additional matter affecting their interests was to be led from a witness, this material was adduced after counsel assisting had finished leading evidence from the witness. All those granted legal representation were invited to ask counsel assisting to call any witness relevant to the inquiry. Written statements were required from prospective witnesses. They were generally available before the witness was called to give evidence. Dr Herron was one of the exceptions. On the advice of his legal representative he refused to provide any written statement to the Royal Commission. Where statements of prospective witnesses and relevant material were not provided by the legal representatives appearing before the Commission, they were prepared by counsel assisting or the Commission staff. The inquiry proved to be complex and wide ranging. Some people's professional reputations were at stake. Complex medical issues were examined from many perspectives. The evidence of some central witnesses was in conflict. The inquiry looked at Chelmsford, professional standards, nurses, treating doctors, referring doctors, deaths, death certificates, drug regimes, other hospitals, legislation, epidemiological studies, records, psychological techniques as well as at the complexities of at least three government departments—Health, AG's, and police as well as the coroner. The inquiry ranged over a period of almost 25 years, 1963 to 1987. The represented parties were given every opportunity to bring material before the Commission. They were invited to identify any prospective witness so that counsel assisting could call them on summons, or to request the production of documents and material by summons to answer any 15

Royal Commission into Deep Sleep Therapy

adverse or competing claim. All people who wanted to give pertinent evidence were heard. In an endeavour to obtain as much information as possible about DST and particularly its past and possible present use in other parts of the world, the Royal Commission wrote to institutions and doctors in the US, England and various European countries. The many detailed replies are considered in volume 5 of this report dealing with the expert evidence. Senior counsel assisting, in the course of a private visit to the UK, spoke with a number of English psychiatrists who gave considerable assistance. A significant debt is owed to Mr Donovan for undertaking this task. The material he gathered is also treated in detail in volume 5. An open inquiry Chelmsford occupied the attention of the media from November 1975 to the announcement of the Royal Commission. In September 1988 Dr Bailey and Chelmsford were items of considerable public interest. I considered it important that the sittings of the Commission should be conducted, as far as possible, in public. At the same time, steps had to be taken to protect the privacy of former patients who underwent DST and wanted their privacy preserved.

During the inquiry I made orders, when requested, prohibiting the publication of the names and addresses of witnesses who were former patients of Chelmsford and of any information likely to identify them. I made similar orders for witnesses who were relatives of former patients, and also when former patients' names and records were referred to during the hearing. For the most part initials were used instead of their names. Although DST patients felt compelled to speak to the Royal Commission and I welcomed their evidence, many of them had moved a long way from their Chelmsford experiences. Sometimes the episodes of illness had passed. The experiences were a long time ago. People had started again or changed their lives, made new friends, or their children had grown up. Some were still struggling with severe mental illness or episodes of problems. Some were frail and needed to be protected from the public gaze. I considered it essential to protect the anonymity of those who asked for it. Where anyone refers hereafter to transcript and exhibits of the Royal Commission, I ask that great care be taken to ensure there is no publication of the names and addresses or of any material likely to identify any person in respect of whom a non-publication order was made. Evidence of a sensitive nature arose on two separate occasions. It was necessary to determine the relevance of this evidence to the terms of the inquiry. In another instance, when a witness sought to be excused from answering a question, evidence was taken "in camera". In these instances the evidence was marked "confidential" and it was not included in the 16

Volume 1

The Commission

ordinary daily transcript of proceedings. It is not to be published. Of the 18,821 pages of transcript, only 107 pages are marked "confidential". Counsel for Dr Gill submitted that any intended criticism of their client in the Commission's report should remain confidential. At the same time counsel asked that the Commission declare publicly that criminal charges are not now and would not have been available against Dr Gill. I have given long and serious consideration to the extent to which any part of the report might be kept confidential. There is no term of reference in my Commission for any recommendation whether a criminal charge should be brought against any person. There will be no such recommendation in this report. There will, however, be no declaration such as was sought by Dr Gill. Where there is evidence to warrant consideration of a criminal charge, I have stated that the relevant material and documentation should be sent to the appropriate Director of Public Prosecutions for consideration. Section 17 protection Under sl7 of Royal Commissions Act 1923, witnesses can be required to provide evidence unwillingly even though the evidence may tend to show they may have committed an offence. "(1) A witness summoned to attend or appearing before the commission shall not be excused from answering any question or producing any document or other thing on the ground that the answer or production may criminate or tend to criminate him, or on the ground of privilege or on any other ground. (2) An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings.

(3) Nothing in this section shall be deemed to render inadmissible— (a) Any answer, document or other thing in proceedings for an offence against this Act; (b) any answer, document or other thing in any civil or criminal proceedings if the witness was willing to give the answer or produce the document or other thing irrespective of the provisions of subsection (1); (c) any book, document or writing in civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing. (4) This section shall not have effect unless in the letters patent by which the commission is issued the Governor declares that the section shall apply to and with respect to the inquiry." 17

Royal Commission

into

Deep Sleep Therapy

Many witnesses including doctors who attended patients at Chelmsford and nurses who worked there and people who produced material on summons, expressly said they wished to avail themselves of the provisions of si7 and wanted to give evidence or produced documents "unwillingly". As far as practicable all witnesses and people who produced documents did so after being summonsed. This procedure was adopted so that all were on the same footing and could, if they wished, avail themselves of sl7. Apart from false testimony referred in section 21 of the Royal Commissions Act, 1923, any evidence given unwillingly could not be admitted in any criminal proceedings against the witness. Where the material before the Commission called for consideration of criminal prosecutions, the relevant matter has been referred to either the State or Commonwealth Director of Public Prosecutions. The respective Directors will be aware of the evidentiary and any other difficulties which could exist in any particular matter and how the difficulties could be overcome. The evidence I should mention some, but not all of the matters which I kept in mind when I was deliberating on the oral evidence, the extensive documentary evidence and the submissions of those who were represented. Some witnesses were called to give evidence about events which happened as long ago as the 1950s. Former patients and relatives of deceased patients who were given DST gave evidence of treatment and other events in the 1960s and 1970s. The recollection of those who experienced the treatment or who were aware of it through a relative, would undoubtedly have been affected by the long intervening delay. In many cases recollections would have faded, or been excited by subsequent events. In yet other cases media publicity, especially in The Sydney Morning Herald in July and August 1988 and frequent references to events at Chelmsford, could have coloured their recollections or unintentionally resulted in a reconstruction of events. The recollections of doctors, nurses and others who gave evidence about events long ago, could have been tainted, coloured or transformed by time.

Where the credibility of a witness was important, I had regard to the witness' means of knowledge, the opportunities for making observations, the reasons for recollection, the treatment and experiences, the state of health including psychiatric or other state at the relevant times, the effect of medication on perception, the motives and conduct, or any inconsistencies and exaggerations in the evidence. I placed considerable importance on contemporaneous documents such as hospital and medical files and records, departmental, police and court files, other evidence directly or indirectly in support or denial of alleged occurrences and inferences to be drawn from other established facts. 18

Volume 1

The Commission

The demeanour of witnesses, especially during long sessions in the witness box, was helpful. The reliability of their evidence was also tested against other witnesses and documents. The evidence sometimes disclosed serious conflicts between witnesses about a number of particular events at Chelmsford and elsewhere. For example, there was the tampering with Mr Hart's Chelmsford identification sheet or the date Dr Gardiner signed Miss Coralie Walker's treatment sheet. Conflicts were resolved in the same way as matters of conflict of facts are determined in litigation except, when the established facts could give rise to adverse findings, I have approached those matters on the basis of a higher standard of proof, namely a high degree of satisfaction (Briginshazu v Briginshaw (1938) 60 CLR 336). I constantly kept in mind the serious nature of much of the factual material and the serious consequences which could result from particular findings. It should be stressed that where any adverse findings of fact are made against a person it does not amount to a finding of criminality. I have not considered it necessary to resolve every conflict in the evidence nor to refer to and discuss every submission by counsel. I was reminded frequently during the sittings and again in written submissions, that the Royal Commission was looking at treatment which began at Chelmsford in 1963 and ended in 1979. Some of my deliberations and findings of DST treatment were assisted by the candid opinions of counsel for defendant doctors (Mr Sperling QC and Mr Sackar) in advice given in 1983 to 1985 in claims brought in the Supreme Court by two former patients, Mrs Patricia Vaughan and Miss Walker, against Dr Bailey, Dr Gardiner and others. On 24 April 1983 Mr Sperling QC advised, among things, the balance of medical opinion was that sleep treatment, at the relevant time, was so dangerous as to be unjustified. On 6 January 1984 the same counsel advised that the treatment as administered by Dr Bailey and Dr Herron was literally indefensible in that, despite earnest efforts in Australia and overseas, no expert was available to be called other than Dr Bailey and Dr Herron themselves, to say that the treatment they gave was consistent with proper medical practice. On 12 March 1985 Mr Sackar advised it was clear when making a comparison between the form of treatment undertaken by Dr Bailey and the description given to DST in Dr William Sargant's 1973 paper on the subject, that Dr Bailey's treatment was different in a number of respects. The same counsel advised on 11 June 1985 that he could not see how the treatment could be defended. Counsel stressed that the doctor/patient relationship has undergone substantial changes since 1963 and that the Royal Commission had the difficult task of considering available material in the context of the state 19

Royal Commission

into

Deep Sleep Therapy

of knowledge, perceptions, practice and opinion about the treatment current at the time of its administration. I accepted these submissions. They had considerable persuasive value. As counsel for Dr Gill contended: "To do otherwise would be to translate temporal attitudes, knowledge and perceptions unknown and/or not understood at the relevant times with a risk of historical prejudice and bias overlaying necessary objectivity in the consideration of the available material."

I have endeavoured at all stages of my deliberations to keep in mind these and similar submissions. A wider view of Chelmsford The Royal Commission was asked to inquire into and make judgments about a small, suburban, private hospital, and about a relatively small number of patients, staff and doctors. In carrying out this task it has been required to make assessments about the nature of health and medical treatment, about power relationship and control, about reponsibility and care, about the relationship between the treaters and the treated, and between doctors, nurses and patients. It has at the simplest level examined the changing relationship between doctor and nurse and the line of authority and power in the traditional medical and hospital model. It has also had the opportunity to examine the power structure between patients, the nature of influence or control of one patient over another, of one patient group over another, of the strong over the weak. On one level the task of the Royal Commission has been circumscribed, on another, the horizons of the inquiry have been far reaching.

The Royal Commission has examined the area where public and private rights and duties meet and interact. I was confronted with the question of the role of the government. Is it our protector and particularly the protector of the frail and weak? Who supervises the guardians of society? Those elected to positions of power over the community and those officers appointed to the public service to carry out functions as the trusted servants of society, those who accept money and taxes to carry out these functions, owe a duty to society. But what is the nature and extent of that duty? What is the standard of behaviour which should be required of public servants? It is all too easy to judge those who, caught in their own immediate decisions and actions, missed the significance of what was happening near them. Dr Hing and Dr McEwin were two such public servants. It is also easy to criticise those who held a view of their duty different from the view of the duty which may be generally held today. Do we who now accept, for example, the principle of universal education, have the right to criticise an earlier or different society which did not. Universal suffrage, freedom of religion, minority rights and environmental values 20

Volume 1

The Commission

are just a few other examples. How does one look back over a generation and assess and evaluate the actions of people then? This was one of the principal issues between those appearing for doctors and those appearing for patients; between those appearing for government and those appearing for citizens. This Royal Commission developed into a Royal Commission of ideas. This was one of the reasons for its length and complexity. Mr Tobin QC, for example, argued persuasively that I should tread wearily before criticising a public servant or a doctor for something which occurred many years ago, in a different cultural context, with different values and expectations. Rather than demanding the characters of history conform with the values and behaviour patterns of today, he submitted I should carefully attempt to place myself in their shoes and judge them in their own context. While one must always seriously consider the historical context of any action or inaction in an attempt to understand or even to accept, such understanding and acceptance can be paralysing. Some action are heroic in whatever age. Some things are wrong and must be condemned no matter how many people accepted them at the time. There are various levels of responsibility or culpability within the community. It was necessary for me to examine these, however briefly. The questions I needed to ask were: • Was what was done by Health or the doctors, for example, wrong or inappropriate by the standards of our own generation? • Was what was done wrong or inappropriate by standards of previous generations? • Was what was done wrong or inappropriate for the individual doctor, nurse or public servant in accordance with standards of today or previous generations? The nature of the answers to the three questions becomes clear from the following simple example: slavery as it existed in the early 19th century was wrong when judged against today's standards. It may have been wrong also when seen against the standards of yesteryear. But to condemn people now for their ownership and treatment of slaves in the last century, would demand a detailed, factual examination of personal events and the historical context. Value judgments were required of this Royal Commission. I needed to consider what were the standards of previous generations and to find out what they should have been. The former required a wide historical examination. I had to look outside Chelmsford and Dr Bailey to determine the prevailing attitudes at the time. The submission from many doctors, nurses and public servants was that this was as far as any judgment should go; the attitude at the time was the only test to be applied. I was called on to balance the past and the present, to remember the values and attitudes 21

Royal Commission

into

Deep Sleep Therapy

of the 1960s and 1970s to contrast and relate the "here and now" to the "there and then". I considered: • What information, assumptions and understandings were available to professional and lay people in the 1960s and 1970s? • What opportunities were present in the "there and then" to see beyond the immediate events? • What was the responsibility of those people to develop a wider perspective and to take opportunities to see further? • What are the changed attitudes and developed values of the present generation? • What opportunities do the 1980s and 1990s provide us which were not available in the 1960s and 1970s? • How do our present responsibilities differ to those of past generations? I have long pondered these issues. I have concluded that a mere contemporary context and purely historical perspective are not the appropriate standard however much they might be important factors in any assessment. To apply the simple, contemporary practise test to the Chelmsford events and the response of the public service would be to place the seal of approval on mediocrity, lack of initiative and vision. Whatever is the personal culpability of any individual for the events which occurred around Chelmsford and for investigating and supervising those events, I consider that it would be a fundamental error to sanction such standards. In attempting to determine the appropriate standard for professional people and for those in responsible positions, I have had to take a good deal of evidence. What actually took place was often easy to determine. The standard of professional care, the nuances of professional ethics, the relationship between professional bodies and the intrusion of the public sector on private practice prevailing in the 1960s and 1970s, have been difficult to assess. Two overriding principles have guided me in my deliberation. They were the principles incorporated in the notions of justice and truth. Justice requires that the system which takes from the individual citizens in the form of payment, by insurance funds or by taxes, should provide a fair response. The public servants who accept remuneration for services should answer the demands of the community. Determining a fair response may not be easy, although it is often easy to exclude some responses as inappropriate. If a departmental officer in charge of private hospitals is directed to investigate a private hospital and fails to do so, that is not an appropriate response. It is not justice. If the officer investigates but does 22

Volume 1

The Commission

not come to the correct conclusion, that response may be appropriate. That situation is more complex. And the principles of truth? These principles were part of my inquiry, not just in the way Dr Bailey lied to his patients or to the coroner, the way Dr Herron obfuscated before the Commission or the way Dr Gardiner gave false evidence, nor only in the way Health misled those outside the system about what it was doing. The principles also related to the pseudo-research of Dr Bailey and his team, the atmosphere of secrecy which prevailed at Chelmsford, the relationships which developed in the community associated with the hospital, the standards of recording instructions and orders, the artificiality of the consent procedure, the way in which Chelmsford denied any responsibility or accountability to the patients or their relations, the general standards of care and accountability. Many doctors from all parts of the world provided expert opinion about treatments of their time—opinions expressed not always specifically for the Royal Commission. Some opinions were provided on behalf of Dr Bailey or Dr Herron for coronial inquests or for civil litigation. All expert opinions pointed in the same direction. Sometimes doctors gave opinions about individual cases, sometimes about particular procedures. Some opinions were expressed on the basis of scientifically selected samples and statistical records. The rigour of the scientific sampling assessments so carefully carried out by Dr Maurice Sainsbury has enabled this Royal Commission to provide a picture of mental health treatment and conditions and the tension between the patient, professionals and government which is rare. The two overriding principles of justice and truth which guided my deliberations have led to a condemnation of the treatment offered at Chelmsford, criticism of Dr Bailey, Dr Herron, Dr Gardiner and Dr Gill and some others associated with the hospital, criticism of the professional standard of Dr Evan Davies, as well as disapproval and censure of Health's inspection of Chelmsford over the years and especially its failure to investigate complaints. Acknowledgements In conclusion I express my appreciation of the very considerable assistance which has been given by many during a long and difficult and at times troublesome inquiry of two years.

The roles of counsel assisting the Commission, Mr B. H. K. Donovan QC, Mr J. K. O'Reilly QC (1990) and Mr C. J. Geraghty require special emphasis. Only those working with them during the last two years could have a full appreciation of the professional manner in which they embarked upon the task of obtaining and presenting evidence to the Commission. The thoroughness of their inquiries, their care and attention to every task and 23

Royal Commission

into

Deep Sleep Therapy

detail and the results of their efforts are manifest in the material which was presented to the Commission. References in the report to the number of witnesses called to testify and the large number of exhibits (some contained in numerous filing cabinets) tendered, provided some understanding of the extent of their collective and individual contribution to the inquiry and this report. The inquiry was ably assisted by Mr John McMillan BA, LLB and Mr T. A. Cunningham, secretary and solicitor assisting respectively to the Commission, who joined it shortly after its announcement. They discharged their respective arduous duties with skill, ability and great patience. They rendered invaluable assistance, guidance and support at all stages of the inquiry. Special mention is made of the success of their respective roles in liaising with the public and members of the legal profession. I am also greatly indebted to: Dr Maurice Sainsbury AM, RFD, MHP, MBBS, FRANZCP, FRC Psych, DPM for his help and guidance as specialist consultant to the Commission; Miss Helene Mountford, Dip Law (BAB), for her worthy service, especially in the tedious task of editing the report; and Miss Heidi Neilson BSc (Hons) for her assistance during the preparation of term 1(d). Further I acknowledge the great help, support and dedication I received at all times throughout the inquiry from all members of the staff, both full-time and casual, the court reporters and typists, police officers who were "seconded" to the Commission and other investigators (see volume 12). They were a hard working and effective group. This report could not have been completed without their contribution. Special mention is made of the support I received from my personal staff. My Associate, Miss Mary O'Farrell's management and documentation of exhibits, her handling of material during the hearing and her comprehensive daily lists of witnesses and exhibits and references to transcript received public acknowledgement from counsel. I add my thanks and appreciation for her invaluable assistance. I also express my appreciation of the support which my tipstaff, Mr T. Kennedy rendered at all times to the inquiry. I also wish to place on record my thanks to the Commissioner of Police for his willingness to release staff to assist the Commission and my appreciation of the services which were provided by State and Commonwealth departments and also to the Sheriff for serving summonses for the Commission. I am also greatly indebted to the Chief Justice of NSW for making a court room in the Supreme Court available to the Commission for almost two years. 24

CHAPTER 2

Limitations on terms of reference

The issue of possible proceedings against doctors or other staff involved in DST at Chelmsford has been most controversial. The campaign in support of action has been thorough and vigorous. In the eyes of many, the Royal Commission came about to answer the cries for action in circumstances where such action seemed to have been precluded by a decision of the Court of Appeal and the refusal by the High Court of Australia to intervene by granting special leave to appeal. It is not for this Royal Commission to lay down what is the law or to give any rulings on the law. In examining issues in the report however, it was necessary to describe the law. Although an Acting Judge of the Supreme Court, any descriptions by me of the state of the law is not a judicial analysis. That is fundamental to this report. Therefore any comments which are made during the course of the descriptions are not judicial comment on the decisions of the courts. There may be times when, because certain facts come to light, some people may wish to argue that particular decisions of the courts were incorrect. They may feel that there are good grounds in the material which is set out in the report. It is inappropriate for me, however, as a Royal Commissioner to suggest that such decisions were erroneous. Any principles of law which may ultimately prove to be erroneous may only be declared as such by the courts or by Parliament. It is not my intention to take over the function of either. Counsel for some patients have suggested that specific charges be pursued against certain people. Counsel for some other patients on the other hand have submitted that specific findings should be made that amount to a finding of guilt for an offence. It is clear that there are many matters which have arisen during the course of the hearings which may suggest possible criminality. It is easy, however, to jump to conclusions about general matters. It may not always be clear to readers of this report that conclusions about general criminality are not relevant to an assessment of individual criminal responsibility or to conclusions about individual acts or omissions by any person. In determining individual responsibility of any person both their intentions and their motivations must be taken into account. Comment has been made from time to time and in submissions that practices associated with 25

Royal Commission

into

Deep Sleep Therapy

giving DST treatment were wrong. Judged objectively, particularly in the state of the knowledge which has come to the Royal Commission, such conclusions or comments may seem reasonable and even correct. This does not mean that individual responsibility follows automatically. Where conclusions about individual responsibility arise I have, therefore, made express comments about them. It is important that it be known that where I have not commented on any particular individuals or incident, even where it may be similar or precisely parallel to another incident on which I have commented, I have made no judgments on the individuals who were involved. There are such a variety of reasons for this that it is not possible to set all of them out here. Central among them are issues of intent and motivation. The reader should realise that frequently what people do is done genuinely and in an effort to help. The fact that such people were wrong does not automatically attract either the criminal law or the disciplinary or regulatory law. It may attract such proceedings and where matters have facts supporting them to a possible level where action could be successful, I have mentioned them. Those who appeared on behalf of people who could be the subject of adverse comment have also strongly urged me not to refer any matters for further consideration by either a prosecuting authority or a regulatory authority. These arguments were forceful and they relied on the development of the law in NSW since 1986. The Royal Commission, some of them said, was established to resolve all these matters and bring them to finality. They said the matters involved occurred many years ago and no useful purpose could now be served by attempting either to punish or to discipline through the criminal law or the regulatory process. The principle is serious but I repeat, the responsibility was never mine for determining who should be prosecuted or disciplined. However much those who were represented criticise the present system of prosecuting or disciplining, the authorities appointed under our laws are the only authorities for making those decisions. I should mention here the role of a Royal Commissioner. By Letters Patent I was authorised and appointed as the sole Commissioner to make inquiry into certain matters and to deliver to the Premier my report of the results of the inquiry. Under the Royal Commissions Act 1923 I have powers which could be used to compel witnesses to answer questions regardless of their rights under the general law. The Royal Commissions Act, however, gives protection to those summoned as witnesses to testify unwillingly if they so wish and thus retain their rights under the general law. At the 26

Volume 1

Limitations

same time it should be said there are limits to what a Royal Commission can determine or recommend. It is bound by the general law and its terms of reference. The only method by which a Royal Commissioner or other person can be given authority to make recommendations for particular prosecutions is by specific power either by legislation appointing that person to an office in the nature of a special prosecutor or by express direction in the terms of reference requiring recommendations about wrong doing by any person. The present terms of reference enable me to refer but not directly to recommend prosecution or disciplinary proceedings. Under the general law, there is a system for prosecuting or disciplining any person who is guilty of any wrong doing. It is for the appropriate authorities to determine whether there is material (subject to the protection of the Royal Commissions Act which has been mentioned) which would merit their action. Further, as a Royal Commissioner I am not conducting a criminal trial nor proceedings to commit people for trial nor sitting as a disciplinary tribunal. I mention this because some readers of the report may feel that the Commission should have punished or disciplined people. That has not the role of this Royal Commission. Responsibility for determining who should be prosecuted or disciplined falls to other authorities appointed under the law of the State, eg, the Director of Public Prosecutions or the Medical Disciplinary Tribunal. In the light of the terms of reference of this Commission it is unnecessary to consider circumstances in which another Royal Commission with different terms might make recommendations about specific offences or prosecutions. In any decision to prosecute or take disciplinary proceedings there are two steps to the decision. One is an assessment of the evidence. The other is the application of a discretion. The discretion is a power which may also be exercised by the prosecuting authority or by a court or tribunal. It was such a power which was exercised in Herron v McGreggor. The factors taken into account in that instance were delay and prejudice but many other factors may be involved and it is not appropriate for me to attempt to list them. Such powers are for the relevant prosecuting or disciplinary authority or for the court or tribunal. Where authorities, courts or tribunals are empowered to make decisions involving discretion, it is impossible for any unauthorised body, including a Royal Commission, to take over that power or make comment which might trespass on the powers of those bodies unless expressly directed by Parliament. If I had been empowered to make specific recommendations about criminal offences, it would have been necessary for me to provide the recommendations and supporting material to the Premier in a private and confidential report. I have adopted a policy and procedure of public hearings and public access to material throughout this Royal Commission, 27

Royal Commission

into

Deep Sleep Therapy

except for a few hours evidence referred to elsewhere. I believe this approach is correct and it is the one I have continued in my report. I say these things because I anticipate that there may be many members of the public, many people who see themselves as victims of Chelmsford or indeed of the mental health system and who cry out for denunciation of the people whom they see as wrongdoers. It is not possible for me to do this. In a similar way those who have been the subject of criticism and attack by many through the legal procedure and otherwise over the last 10 or more years have asked me to step into that area of decision making and either expressly, or by declining to refer the matter, take on myself the decision which rightly belongs to the appropriate authority. I cannot do this. It is for these reasons and after long consideration that I have come to the conclusion that where individual matters of liability may be of interest to the appropriate authorities I have simply referred the matter to them and noted it in my report. Elsewhere in my report I have made particular recommendations that certain matters be referred to the Director of Public Prosecution or to the Medical Tribunal. In those recommendations I have not set out particulars of any of the offences or disciplinary breaches which I had in mind. It is for the reasons set out here that I have not specified those matters. In the way in which I have approached the question of possible prosecution and/or disciplinary proceedings the appropriate Director of Public Prosecutions or disciplinary authority would be greatly assisted in their task by consultation with counsel assisting the Royal Commission. I recommend such consultation to them. Finally, any opinion to which I have come in the course of my inquiry will have no force whatever in the exercise by the prosecuting authorities of their statutory responsibilities. Issues from the submissions Counsel for Mr Hart and others acknowledged in his final submissions that one option available to the Royal Commission was to place the matters concerning any prosecution in a part of my report which would remain confidential until the prosecution process was exhausted or resolved by a "no bill" application. Counsel further acknowledged that option might be urged in the interests of limiting adverse publicity and offering those concerned some protection from prejudicial media statements.

He submitted, however, the option was "most inappropriate". He said in view of the publicity already attending the Commission and submission from counsel in open hearing it was unlikely that additional publicity would be significant. He further said that it would be unrealistic to expect that public concern would be allayed by an approach "which relegated 28

Volume 1

Limitations

the most serious allegations to a further confidential report". He emphasised that it was important for professional bodies, hospital boards, referring doctors "and even intending patients" to be made aware of the full situation. He submitted that there was a risk in such a procedure of repeating errors of the past. He said that criminal proceedings were "bound to be complex and time consuming, they may not proceed because of the decision in Herron v McGregor 1986 6 NSWLR 246 and the practical difficulties involved". He pointed out that manslaughter charges carried a heavy onus and required proof beyond reasonable doubt that the relevant death was caused by grossly negligent acts or omissions: "Such an onus is not easy to discharge especially when there are multiple counts, the charges relate to acts committed on various dates even now more than 12 to 13 years ago and there was either no inquest or one carried out in perfunctory fashion. Furthermore, much of the evidence which so clearly establishes their guilt before this Commission would not be admissible."

He continued: "... in these circumstances there can be little doubt that the process of committal proceedings, review by Director of Public Prosecutions following the inevitable application for nolle prosequi and trial is fraught with difficulties and consequent risk that the charges may not proceed."

He further said: "... it is also imperative that action be taken to remove Drs Herron, Gill and Gardiner from the roll of medical practitioners at the earliest opportunity."

Counsel submitted that since 1987 the procedure for entertaining complaints where criminal proceedings were contemplated was governed by s32 of the Medical Practitioners Act which read: "A complaint may be referred to a committee or the Tribunal and dealt with by the committee, even thought the registered medical practitioner about whom the complaint is made is the subject of proposed or current criminal or civil proceedings relating to the subject- matter of the complaint."

He then referred to the discussion of that section by the Court of Appeal in Edelsten v Richmond (1987) 11 NSWLR 5261 when Mr Justice Hope said: "In the context of the Medical Practitioners Act and the important matters with which it deals, the purpose of the section is clear enough. Despite the concern that the law has long had to protect persons accused of criminal offences in relation to the making of self-incriminating statements, the right to silence, as it is called. Parliament must have considered that there was a public interest 29

Royal Commission

into

Deep Sleep Therapy

in the investigation of a complaint against a medical practitioner which, in a particular case, might outweigh the public interest in the right to silence. The section does not contemplate that the existence of criminal proceedings will preclude the disciplinary proceedings from continuing. The discretion given to the Tribunal involves a balancing of the public interest in the investigation of the complaint with the public interest in the observance of the right to silence."

Counsel submitted that the discretion given to the Tribunal involved a consideration of the nature and gravity of the complaint and of the criminal charge and of the circumstances that while the medical practitioner could not be required to give a self-incriminating answer he or she may be embarrassed in defending the complaint if the doctor did not do so and if the doctor gave evidence it could prejudice any criminal proceedings. Counsel said the decision in Herron v McGregor made it impossible to "justify resuscitating the same complaints". Legislative intervention would be needed. Counsel referred to decisions since Herron v McGregor: Jago v District Court (NSW) 168 CLR 23, Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce 85 ALR 640, Watson v Attorney General of New South Wales (1987) 6 NSWLR 685 and the proceedings in the High Court for special leave to appeal in Herron v McGregor (1987) 20 Leg Rep SL 1. In that unauthorised report the Chief Justice said: "In our view, the court has a discretionary/ supervisory power to stay criminal proceedings unconditionally. Although it is a power which is exercisable sparingly, and with the utmost caution such that the exercise is not encouraged, we are not persuaded that its exercise in the present case involved any question of principle."

I interpose that it may be difficult to distinguish other matters involving Chelmsford from the exercise of the discretion already involved in Herron v McGregor. Although a great deal more factual information is now available about the various matters there may be a strong argument that the same principles apply. It is not, however, for me to make such a decision as I pointed out earlier. As counsel for Mr Hart and others said: "That passage seems to suggest that the High Court had given its imprimatur to the approach of doctors."

He submitted that in Jago's case the High Court held, contrary to the view expressed by Mr Justice McHugh in Herron v McGregor, that there was no common law right to a speedy trial. Counsel continued: "The court affirmed the inherent powers of superior courts to prevent unfairness but stressed that there would usually be other remedies for undue delay and that a stay of proceedings should be granted only in exceptional circumstances." 30

Volume 1

Limitations

Counsel noted that in Grassby v The Queen 168 CLR 1 Mr Justice Deane referred to the inherent jurisdiction to stay proceedings "in the rare case where a trial would necessarily be unfair and an abuse of process". Despite the decision in Jago, Counsel for Mr Hart and others acknowledged that the decision in Herron v McGregor remained "a significant impediment not only in respect of the particular complaint stayed but in respect of others open to attack on the same basis". He said that his submission would be that "some form of legislative intervention should be recommended to overcome this impediment". He forcefully pointed that the evidence before the Royal Commission showed "a vastly different position" to that which was before the Court of Appeal in Herron v McGregor. He submitted in the alternative that the material now available as a result of the Royal Commission would not come in the criteria adopted in Herron v McGregor for granting a stay of proceedings. He suggested that some of that material could well be based on dishonest evidence given before this Commission. The limitations on the use of evidence and material before the Royal Commission may be a significant problem unless action is taken pursuant to s21 for giving false testimony before the Commission. As will be seen from my report and without commenting further on the quality of the evidence generally given before the Commission by the DST doctors and Dr Gill, incidents where prosecutions may even be considered against them for such offences is very limited. Dr Gardiner's evidence about Coralie Walker's treatment sheet was one example. Counsel for Mr Hart and others suggested that s32(o) of the Medical Practitioners Act provided that the Medical Tribunal may conduct the proceedings "as it thinks fit". He suggested that it would be open to the Tribunal to receive and act on the transcript of evidence before the Commission. I think that si7 of the Royal Commissions Act would limit this significantly but ultimately such a decision is a question of law to be determined by the courts. Although the matter is a decision for the courts, the limitation in sl7 is a factor which I must take into account in determining whether matters are to be referred to the relevant prosecuting authority or disciplinary authority for their consideration. If it seemed clear that the material could not be used it would be irresponsible of me to suggest that it could be. Nevertheless, as counsel correctly pointed out there are many parts of the transcript which may be available for use. For example it may be that evidence from Dr Gardiner in the transcript could be used against Dr Herron and vice versa. Evidence from nurses would be available against all the relevant doctors. Counsel concluded: "These are obviously questions for the tribunal to resolve in due course. They have been raised only to refute any suggestion that 31

Royal Commission

into

Deep Sleep Therapy

referral of the papers to the tribunal would be futile but would necessarily involve a virtual rehearing of the Royal Commission."

There is considerable force in this argument. Counsel for Mr Hart and others produced to the Royal Commission a submission covering matters which he said amounted to specific items of criminality. The document was not accepted into evidence and counsel assisting declined to tender it at that time because of its width. Counsel for Mr Hart and others were invited to provide further submissions on these matters. Letters were sent on 21 August 1990 and on 11 September 1990 to the solicitors for Mr Hart and others inviting such submissions. On 14 September the solicitors wrote advising that they still desired to provide the submission despite the fact that the time for its delivery had passed. The lateness of its arrival would cause problems in any answer by those possibly effected by it. The submission in response was received on 8 October 1990. It suggested there had been only limited time available for preparation of the submission. I caused these documents to be sent to the legal representatives of those who were most effected. It was not possible to invite replies from all, including all nursing staff who might only be remotely effected. I will now deal with some specific items in the document not in evidence and with the document received on 8 October 1990. Issues raised by Dr Herron Counsel for Dr Herron took issue with the effect that the decision in Jago had on Herron v McGregor. In oral submissions he forcefully and emotively described the position of Dr Herron and Dr Herron's right to be protected given the passage of time, the loss of certain witnesses and, although he did not use the word, the persecution that Dr Herron had been subjected to.

In his closing address counsel assisting suggested that there were changes in the law concerning abuse of process on the grounds of delay since the decision in Herron v McGregor. He referred to Jago v District Court (NSW) 168 CLR 23. The submission for Dr Herron referred to the history of the three complaints laid against him which led to the decision in Herron v McGregor. The complaints concerned Miriam Podio, Audrey Francis and Barry Hart. The complaint concerning the first was made by Health, the complaint concerning the second was made by the CCHR, and the complaint concerning the third was made by Mr Hart. The submission for Dr Herron set out the passages in the judgment concerning the complaints about Miss Podio and Miss Francis. These read: 32

Volume 1

Limitations

"The complaint alleged gross negligence and a lack of concern for the welfare of Miss Podio while she was a patient at Chelmsford between 28 July 1977 and her death on 12 August 1977. It is alleged that Miss Podio was a patient of Dr Harry Bailey who requested Dr Herron to administer electroconvulsive treatment to Miss Podio on 29 July, 3 August, 10 August and 11 August 1977. In respect of the first two occasions it is alleged that Dr Herron was aware or ought to have been aware that she was undergone deep sleep therapy and that, in respect of the last two administrations of electroconvulsive therapy, she has recently undergone deep sleep therapy. The complaint alleges that Dr Herron was aware or ought to have been aware that deep sleep therapy/continuous narcosis involved the risk of death or serious injury, that he knew that 13 patients had died while undergoing treatment at Chelmsford. The complaint alleges that the hospital records demonstrate that complications developed in the treatment of Miss Podio soon after admission on 28 July 1977 and before electroconvulsive treatment was administered by Dr Herron. It alleges that in the circumstances Dr Herron should have requested Dr Bailey to attend upon the patient, that he should have suspended sedation therapy on 29 July and 3 August 1977, that he should have suspended electroconvulsive therapy, that he should have arranged for the removal of Miss Podio to a general hospital, and that he should have arranged for appropriate treatment for her. In the circumstances it is alleged that it was inappropriate and contrary to proper practice for Dr Herron to administer electroconvulsive therapy to Miss Podio on 10 and 11 August 1977."

The complaint about Miss Francis was described as follows: "It is alleged that on the admission of Miss Francis to Chelmsford Hospital on 12 March 1976 Dr Herron instructed the nursing staff that she was to undergo deep sedation therapy/continuous narcosis and electroconvulsive therapy. The complaint alleged that it was inappropriate to give the instruction because of the risk of death or serious injury to the patient in the light of her psychiatric history and state as revealed by the nurses' notes on admission. The complaint alleged that psychiatric practice demanded that Dr Herron undertake conservative therapy and that he displayed gross negligence and unconcern for Miss Francis' welfare in failing to make a thorough or appropriate investigation of her health. The nurses were given a discretion as to the drugs to administer and the manner in which they were administered. It is also alleged that Dr Herron signed a drug treatment sheet which did not comply with r24 made under the Poisons Act 1966. A further allegation is that Dr Herron described the cause of death in the death certificate as myocardial infarction when there was no adequate basis for believing this was the cause of death . . . Miss Francis was Dr Herron's patient. But in his complaint Mr McGregor also states Dr Herron knew that deep sedation therapy 33

Royal Commission

into

Deep Sleep Therapy

involved a risk of death because a number of patients at the Chelmsford Hospital had died whilst undergoing that therapy or shortly after undergoing such therapy."

The submission said the Court of Appeal made a number of findings in staying the complaints. These were: • The delay of Mr Hart in lodging and prosecuting his complaint against Dr Herron was oppressive and an abuse of process: page 257 F-G, • To allow the proceedings by Mr Hart to continue after the lapse of 13 years would be "tantamount to persecution": page 257 G, • The delay of Miss Eastgate in lodging her complaint nine years after the event coupled with the failure of the Investigating Committee to have the complaint effectively prosecuted made her complaint oppressive and an abuse of process: page 260 B-C, • The complaint by Mr McGregor in relation to Mr Hart amounted to an abuse of process: page 261 A, • The institution of proceedings by Mr McGregor eight years after the death of Miss Podio was an abuse of process: page 266 F-G, • The delay by Miss Eastgate in lodging a complaint against Dr Herron in respect of Miss Podio made the continuation of the complaint harsh and oppressive: page 268 G, and • The complaint by Mr McGregor in respect of Miss Francis lodged more than nine years after Health was in possession of the facts was an abuse of the right to lodge a complaint: page 269 F. The submission then referred to the special leave application for an appeal to the High Court. The High Court's decision is set out in the comments of the Chief Justice in the hearing on 5 December 1986: "The principal question in issue in the present case is not an unimportant one. However, the court, by majority, sees no reason to doubt the correctness of the conclusion reached by the Court of Appeal that it had jurisdiction to interfere in the present case. The matters which the Court should take into account in the exercise of that jurisdiction involve the questions of fact and degree which it would be inappropriate, in the circumstance in the present case, for this Court to consider. The Court, therefore, refuses the application for special leave."

The two foundations of the High Court decision in Jago's case as set out in the head note of the Australian Law Journal Report are: "(i)There is no common law right in Australia to a speedy trial, or to be tried without unreasonable delay, based not on actual prejudice or unfairness but on 'presumptive prejudice'. 34

Volume 1

Limitations

(ii)A stay of proceedings could be available to prevent an abusive process and to ensure a fair trial but that course was not open to appellant who had failed to show error in the decision of the Court of Appeal, who could not identify actual prejudice suffered by him or demonstrate that the Crown's delay would render a trial so unfair as to bring the administration of justice into disrepute, and who at the material time had acquiesced in the delay." Dr Herron's submission said that Jago's case could be distinguished on two factual points. The first was that in Jago the accused did not suggest he suffered any actual prejudice as a result of delay and he did not point to any particular aspect of the delay which either prejudiced his defence or which otherwise would make it unfair to him for the charges to proceed. The submission said that only the judgment of Justice Toohey could be relied on "to support the proposition that it would not be an abuse of process to institute criminal proceedings against Dr Herron". It said that the other judges of the court were "all clearly of the view that in appropriate circumstances the court had the power to stay criminal proceedings". The submission went on to refer to what was seen by Dr Herron's counsel as the salient passages from the decisions of Chief Justice Mason, Justice Deane and Justice Gaudron. The Chief Justice said at page 644: "The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v Wingo (1972) 407 US 514; Bell v DPP (1985) AC 937, as explained in Watson and Gorman v Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256 at 264-264. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton at 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute': Clarkson, at 973." 35

Royal Commission

into

Deep Sleep Therapy

Justice Deane said at page 656: "In his judgment in the present case, Kirby P identified five main heads as relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. As his Honour indicated, the first four of them can be traced to the opinion of the Supreme Court of the United States (delivered by Powell J) in Barker v Wingo (1972) 407 US 514: see also United States v Von Neumann (1986) 474 US 242; Bell v DPP (1985) AC 937 at 951-952; Herron v McGregor, at 252; R v Clarkson at 968; Watson v Attorney General (NSW) (1987) 8 NSWLR 685 at 697-698. I would slightly adapt them to read: (i) the length of delay; (ii) reasons given by the prosecution to explain or justify the delay; (iii) the accused's responsibility for and past attitude to the delay; and (iv) proven or likely prejudice to the accused. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime: see R v Clarkson, at 972; Carver v Attorney General (NSW) (1987) 20 A Crim R 24 at 32. Those five 'heads' provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as code or permitted to divert attention from the fact that will ordinarily to be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf Mills v The Queen at 924-925; Aboud v Attorney General (NSW), at 683-684). Consideration of head (iv) (prejudice to the accused) will involved account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts: see the judgment of Gaudron J on this appeal." 36

Volume 1

Limitations

Justice Gaudron said at page 664: "The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay."

It is not appropriate to attempt to analyse those passages put forward on behalf of Dr Herron to determine whether they would absolutely, as a matter of law or by virtue of the exercise of a discretion of the court, lead to a stay in any of the matters which I have decided to refer. Nor is it fitting for me to undertake a determination of the appropriate weight to be given to the factors outlined in the various judgments. I draw attention however, to the fifth factor put forward by Justice Deane being the public interest in the disposition of charges of serious criminal offences. So far as I can see in the application of the law of abuse of process, resulting in a stay of proceedings because of delay, similar principles have been applied both to disciplinary or regulatory proceedings and to criminal proceedings. The extent of the public interest in the Chelmsford matters is evident from the establishment of the Commission. Just as it was for the executive to weigh the public interest in establishing the Commission so it is for the executive to determine, in accordance with its primary responsibility, whether criminal proceedings or disciplinary proceedings should be maintained. The fifth factor does not, of course, necessarily override the other factors. Given the extent of the public interest in these matters it is one which is of grave significance and must be left to the executive authority. Justice Deane considered it one which should not be with the courts. It could only be in circumstances where it was clear beyond doubt that the court or tribunal to hear the matter must grant the stay that I would be justified in attempting to take the decision from the relevant authority and from the executive arm of government. I deliberately make no attempt to determine the state of the law and the effect of the decision in Herron v McGregor on the matters of Podio, Francis and Hart which were dealt with by that court. Whether there are any regulatory or criminal proceedings still available in relation to those matters is a matter to be determined by a relevant authority and by the court or tribunal itself. 37

Royal Commission

into

Deep Sleep Therapy

Without using any statement from a judgment as an absolute authority it does seem to me that the comment of the Chief Justice, "in any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay will accordingly be rare" is a firm direction to me not to interpret the law in a way which will presume that a court or tribunal must or will grant a stay of any proceedings against Dr Herron or other doctors. I appreciate that there are other matters of prejudice which Dr Herron and the other doctors would point to. Such matters as the death of Dr Bailey and his unavailability to give evidence would be one. The determination of these matters, I repeat, is not for me. In the submissions made on behalf of Dr Herron and Dr Gill to the Court of Appeal in the hearing of Herron v McGregor in 1986 it was said they could not obtain a fair hearing before the Disciplinary Tribunal because the delay in lodging and prosecuting the complaints had been inordinate, unreasonable and unconscionable; the delay had not been explained adequately or at all and was inexcusable and unjustified; the delay had not been contributed to by the doctors; the delay had been prejudicial to the doctors depriving them of evidence of an essential witness. Dr Bailey; reduced their memory and caused them undue concern and anxiety. The 1986 submissions further said the inquiry into the complaints would constitute an abuse of process and a hearing would be oppressive in the circumstances. In his submission to the Commission Dr Herron claimed that the complaint in Herron v McGregor was a detailed and comprehensive one covering all aspects of Miss Podio's treatment: "The complaint was not limited to the administration of ECT nor did it proceed on the basis that Dr Herron had a narrower role at Chelmsford than his evidence in this Commission suggests."

In order to indicate the width of the complaint in 1986 and thereby show the scope of of what was stayed by the Court of Appeal, the submission pointed out that the complaint concerning Miriam Podio relied on: "(i) The fact that Dr Herron was aware or ought to have been aware that the treatment involved risk of serious death or injury; and (ii) The fact that Dr Herron knew that 13 people had died and that two had died immediately after the therapy."

The submission continued that the complaint in relation to Audrey Francis was also a detailed and comprehensive complaint. That complaint similarly did not proceed on the basis that Dr Herron had a narrower role at Chelmsford than his evidence in the Royal Commission suggested. 38

Volume 1

Limitations

Dr Herron's submission strongly urged that it could not be said that the complaints were restricted in scope and not covering all aspects of Dr Herron's role. It also said the complaints were not based on a misapprehension of the role of Dr Herron at Chelmsford. Dr Herron's submission relied in part on an assertion that the evidence in the Royal Commission had not "qualitatively added to the body of information previously available to the prosecuting authorities". It mentioned particular matters and pointed out that these did not justify bringing criminal prosecutions. I do not think that it is for me to determine whether matters have quantitatively or qualitatively added to the knowledge or body of information previously available to prosecuting authorities. If I were to make an assessment, however, it seems it would be difficult to say in the light of all of the material which has been brought forward that the contention there has been both new information at a qualitative and quantitative level cannot be excluded. The material has included opinions about DST treatment involving over 80 specialists with knowledge about the differences between Dr Bailey's treatment and that used anywhere else in the world in the 1970s, including particularly access to vast numbers of records which indicated low treatment standards, lack of communication between doctors, treatment given without treatment sheets or written instructions and finally according to Dr Herron, given without nurses referring to treatment sheets. It may possibly be successfully argued that there is a significant difference now. Dr Herron submitted that nothing in the High Court decision in Jago suggested that the Court of Appeal took into account irrelevant considerations or that its assessment of the factors was incorrect in Herron v McGregor. It is not appropriate for me to analyse the impact of the High Court decision in Jago on the previous decision relating to Dr Herron and Dr Gill. Dr Herron's submission, quite rightly in my view, accepted that a permanent stay is to be granted "only in exceptional circumstances" as was referred to by Chief Justice Mason in Jago and earlier in Cook v Purcell (1988) 14 NSWLR 51 by Mr Justice Clarke in the Court of Appeal. The submission argues, however, that "it is quite clear" that prosecutions against Dr Herron for the Podio or Francis matters would constitute the exceptional case. I do not think the matter is so clear that I should make the decision about it and refrain from referring the papers in the relevant matters. Dr Gill's submission argued forcefully that the time lapse had an effect on the memory of "all witnesses" which could not be "underestimated 39

Royal Commission

into

Deep Sleep Therapy

in our opinion". Counsel further submitted that it was "impossible because of the media effect and the time effect" for any person to state categorically they knew or remembered an event. In support of this proposition they very properly drew attention to a passage of Sir Laurence Street, the then Chief Justice, in the report of the Royal Commission of Inquiry Into Certain Committal Proceedings Against K.E. Humpreys quoted by Mr Justice McHugh in Herron v McGregor. An important section from the lengthy passage quoted in the submission was: "In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection."

Much of the present material which I have had to consider was from records and opinion evidence. That submission concluded on the issue of prosecutions: "We would ask that the Commission declare publicly that criminal charges are not now and would not have been available against Dr Gill."

In the light of what I have said I do not accede to this request. Dr Gill's submission suggested that any intended criticism of Dr Gill in the report should remain confidential. As I am not making recommendations or commenting on prosecutions or disciplinary matters I also do not accede to this request. On 25 January 1990 the solicitors for Mr Hart and other patients wrote to counsel assisting enclosing a copy of their submissions suggesting certain criminality. The form of the submission made it inappropriate for the document to enter into evidence and a further submission was received on 8 October 1990. I have looked at the document and the submission to determine whether there is any matter in it which requires consideration. The document said: "The evidence of former patients and/or members of their families reveals that the overwhelming majority were confined and/or treated against their will, or, at least, without their consent. In these circumstances each administration of ECT would constitute an assault and, in some cases the evidence would support a charge of kidnapping or false imprisonment."

The document made reference to the doctrine of common purpose and the possibility of joint criminal responsibility arising from complicity. It referred to a decision of the High Court in R v Johns. 40

Volume 1

Limitations

The submission received relied strongly on joint criminal responsibility. It said: "In assessing the viability of particular charges it is necessary to consider the possibility of joint criminal responsibility arising from complicity as principals in the second degree or by virtue of the doctrine of common purpose. The distinction was explained succinctly by Stephen J in R v Johns 143 CLR 108 at 118: 'The criminal responsibility here under discussion is not that relating to the crime which is the prime object of a criminal venture. As to that crime, one who, while not actually physically present and participating in its commission, nevertheless knows what is contemplated and both approves of it and in some way encourages it thereby becomes an accessory before the fact. His knowledge, coupled with his actions, involves him in complicity in that crime. But if, in carrying out that contemplated crime, another crime is committed there arises the question of complicity of those not directly engaged in its commission. The concept of common purpose provides the measure of complicity'."

A number of charges were suggested in the submission. In relation to Dr Herron they referred to his involvement in the treatment of Peter Clarke and Audrey Francis. It suggested the financial matters which I have dealt with in volume 6. It suggested false testimony before the Commission. These were, in summary, that he did not remember suing Mr Hart for defamation, he did not remember Peter Clarke at the hospital, he did not remember certain financial details, he said that the voice on the tape of Dr Bailey's lecture was not that of Dr Bailey, he did not know whether Craig McKay had been given DST, he had not "kept tabs" on the deaths over the years, he had not gone through the death certificate book, he did not know who had tampered with Mr Hart's admission form, Mr Hart had asked for treatment and Mr Hart had been well counselled. The document further suggested that Dr Herron had committed perjury before the Supreme Court in Hart v Herron by falsely swearing that pathology results were not available for four to five days, there had been few deaths at Chelmsford and he first became aware of the alteration to Mr Hart's admission form when his barrister drew his attention to it. It further suggested that there was false swearing at the inquest into Miss Francis' death when he allegedly said that there had been few deaths at Chelmsford and that he attempted to pervert the course of justice in relation to the alteration of Mr Hart's admission form and in a letter to the coroner in relation to Miss Francis. Consistently with what I have said before I should not comment on the weight or merit of any of these matters. To suggest that one may have little weight may imply that in my view the others have significant weight. 41

Royal Commission

into

Deep Sleep Therapy

There are some, however, where in my view no offence could be made out. The last in the list is one such. Further proving falseness where there is a stated lack of memory frequently is extremely difficult. Memory is such a complex thing in a person. Finally some matters such as the suggested perjury in Hart v Herron need evidence from the Royal Commission to prove them. Even though Dr Herron admitted he lied on oath in Hart v Herron, in this point that evidence is not available for a prosecution. In relation to Dr Gill the document suggested that criminal matters could lie in relation to the death of Mr Adams. It suggested that there was false testimony before the Royal Commission in that Dr Gill said in evidence that he had met Mr Hart at the reception desk in mid-March 1973 fully dressed and neither physically ill nor distressed, he had not altered Mr Hart's admission and did not know who had, the alteration of the form was never discussed at the hospital. The document further suggested that there was perjury during the course of evidence at the first Adams inquest when Dr Gill said that Mr Adams had experienced no respiratory difficulties during an earlier admission, there was absolutely nothing he could find to fault the nursing care given to Mr Adams, it was apparent that nurses watched the patient all of the time. Finally, in relation to Dr Gill, the document suggested he attempted to pervert the course of justice by being knowingly concerned in the alteration to Mr Hart's admission form. Regarding Dr Gardiner, the document suggested there could be criminal matters in relation to Coralie Walker and Patricia Vaughan, there could be certain financial criminality, there could be false testimony before the Royal Commission when he said he never had any patients under DST and he had signed the treatment sheet for Coralie Walker on 12 February 1978. It further said that there was false swearing in the interrogatories in the proceedings by Patricia Vaughan in the Supreme Court. It is important to note that the document did not suggest Dr Herron or Dr Gardiner be charged over the death of Miriam Podio because proceedings began against Dr Bailey and were considered in relation to the other doctors. The submission said: "However, in defending the inevitable allegation that such a prosecution would involve an abuse of process it would be difficult to refute allegations of unnecessary delay." The submission concluded with comment about the effect of Herron v McGregor: "Whatever the position in relation to disciplinary proceedings it is difficult to envisage Drs Herron, Gill etc demonstrating irremedial prejudice given: 42

Volume 1

Limitations

(a) the relative contemporaneity of coronial inquiries, the Hart v Herron case and adverse publicity which must have placed them on notice that their conduct was being challenged; (b) the fact that most records are still available; and (c) the fact that any records missing were within their custody when they were 'misplaced'."

Attached to the document was an annexure which listed a series of matters referable to the evidence of 102 patients. Most suggested assault on the basis that ECT was given without consent. Some alleged false imprisonment where there was no consent to ECT or patients were shackled to the bed. In the alternative it was suggested in some of the shackling cases that kidnap was a possible charge. Kidnap was also put forward as a possible charge where patients escaped and were forcibly brought back and detained. This large number of allegations was most disturbing. In principle it has been suggested from time to time that incidents of ECT without consent, shackling, absconding and detaining after absconding do indicate criminality. As I see it, however, there is significant difficulty in drawing inferences or conclusions from the general criminality to particular criminal liability of any individual. For example where a patient was shackled there is a conclusion open in some circumstances that the patient had been falsely imprisoned or detained. There may, however, be an argument of necessity. There may in some rare cases even be an argument of self defence or defence of property where the patient was violent. It is impossible just from the mere notation of shackling to draw any inference. Many of the patients did not have strong recollections of these matters. Nursing staff were generally unable to assist because shackling was such a common practice and it was impossible with the passage of years to determine when shackling was carried out in circumstances where criminality would necessarily follow. There was a duty on the hospital to care for the patients and protect them from injury by themselves or through leaving the hospital in such a confused condition. I do not attempt to pass any legal judgment on this matter but it may possibly be argued that there was a duty on a hospital to protect patients placed in its care from injury and the hospital was entitled to take reasonable steps including pressure or even force to fulfil that duty. This of course is always subject to the issue of consent. Again I do not attempt to analyse what consent may mean in these circumstances. Whereas it can be ascertained with certainty that consent forms were or were not filled, out oral consent was less certain. There were situations where some patients, but not all, had some uncertainty or vagueness in their evidence of what happened to them during their time at the hospital. Further even where they did not consent, if the people dealing with them 43

Royal Commission

into

Deep Sleep Therapy

genuinely believed that they had consented, then sufficient criminal intention may not have been established. A further problem arises with consent. This related to evidence put forward by some who worked at Chelmsford. They said they believed that the mere fact that the patients admitted themselves voluntarily to the hospital was an implied consent to all treatment or reasonable treatment which the patient would receive at the hospital. There must then ensue an examination of what was in fact reasonable treatment and what was the belief of the accused about what was reasonable treatment. In determining whether there be any offences, matters of memory become particularly important. I place on record that these matters and possible offences have been brought to my attention. They are noted in the records of the Commission. Although the document I have referred to by counsel for Mr Hart and others has not been tendered it will remain with the Commission records. It is not for me to make any recommendations or general statements that the matters suggested by counsel could not be made out but the matters which have been raised are not such that I should refer them. I do not propose to undertake an analysis of Jago and its effect on Herron v McGregor other than the comments that I have set out. In the circumstances I merely note that I refer an individual matter to the relevant authority when I deal with it without further comment. Compensation Former patients at Chelmsford and their relatives made submissions for the Royal Commission to recommend payment of compensation.

There is no direction or request in the Commission's terms of reference to consider or make any recommendation about compensation. As the question of compensation is outside the Commission's terms it is inappropriate to make any recommendation on this question. This view, however, does not preclude mention being made of the submissions of counsel for former patients and relatives. Mr Waddy QC submitted that a trust fund should be established and its corpus should be provided by various persons, bodies or their insurers against whom adverse findings are made. Any applications to the fund should be restricted to former patients or dependants of former patients who have given evidence or who have made statements to the Royal Commission or such other class of applicant as the Commission decides. Acceptance of limited payment from the fund would also preclude the recipient from pursuing common law remedies. 44

Volume 1

Limitations

Mr Crispin QC submitted that Health might ultimately be liable to individual patients for breach of a common law duty of care. He pointed out that such claims have been made in pending proceedings in the Supreme Court. Counsel contended that putting aside any legal argument surrounding such claims the NSW government had a strong moral obligation to compensate former patients and relatives on the ground that the government bears a significant responsibility for the patients' suffering. Counsel submitted that the government's default is both inescapable and inexcusable and it must decide whether to accept responsibility for its earlier failures and compensate patients or follow the precedent of earlier years by disclaiming all responsibility. In 1980 the case of Hart v Herron which occupied 77 hearing days before a judge and jury in the Supreme Court was directly concerned with the treatment of Mr Hart who underwent DST and ECT treatment at Chelmsford in early 1973. There are about another 10 cases pending in the Supreme Court concerning the treatment of DST patients. Some action by other former patients or relatives may still be brought in the courts. A possible lengthy hearing, as in Mr Hart's action, the ordeal and trauma of litigation and the prospect of having to bear heavy costs would undoubtedly deter some people from pursuing civil claims in the courts. Not only is the question of compensation not within the terms of reference of the Commission but the civil claims now pending in the Supreme Court and the likelihood of other claims being brought provide additional grounds for refraining from making any findings or observations on compensation for former patients or their dependants.

45

46

CHAPTER 3

An overview of Chelmsford and DST

In mid-1963 Dr Harry Richard Bailey started sending patients to Chelmsford Private Hospital. At the hospital he provided them with a special form of treatment which he claimed he developed. He called this therapy deep sedation treatment, deep sedation therapy, deep chemical sleep or deep chemical narcosis. The expression used throughout the report is DST. Dr Bailey claimed to have developed this treatment from two traditional therapies. The first was sleep treatment which after World War II underwent changes to become known as modified narcosis. The second was insulin coma treatment. This had been a well recognised treatment developed by Dr Manfred Sakel in the 1930s and used extensively throughout the world for schizophrenia. The insulin treatment involved patients being placed in a coma by doses of insulin for about an hour and then brought back to consciousness. This procedure was carried out each day for many days. It was a procedure with recognised grave dangers, including death. It would seem that Dr Bailey believed that by using a barbiturate-induced coma, rather than an insulin-induced coma, for a continuous period of about 14 days in conditions similar to the traditional narcosis treatment, he could obtain the same or better results than either insulin coma treatment or narcosis treatment alone. Dr Bailey was the director of the Cerebral Surgery Research Unit at Callan Park in the 1950s and superintendent of Callan Park in 1960. Callan Park was the major public psychiatric hospital in NSW. Dr Bailey was a proponent of physical treatments for mental illness. He combined electroconvulsive therapy with his DST and ECT was administered almost daily to each patient during the period of their unconsciousness. Dr Bailey claimed that his combined treatment provided an 85 per cent success rate for patients who were intractably mentally ill. Dr Bailey never produced any research about his claims. His assertions of success were based solely on what he said was his clinical experience. Dr Bailey was a controversial and flamboyant leader in the public area of mental health before turning to private practice after certain claims he made about Callan Park were mostly rejected by the Royal Commission into Callan Park in 1961. During the subsequent years Dr Bailey withdrew 47

Royal Commission

into

Deep Sleep Therapy

from his colleagues in mainstream psychiatry. He did, however, have a small group of associates. These were mainly people with whom he had worked at the CSRU. Foremost of these was Dr John Tennant Herron who had been his assistant. The other significant character from the CSRU days was Dr Evan Edwin Davies, a psychologist. He later became the subject of the report in volume 9. By the time Dr Bailey established his programme at Chelmsford, insulin coma treatment was outmoded having been overtaken by more modern therapies, particularly drug therapies for the treatment of schizophrenia. Narcosis therapy was very much on the wane. Few text books mentioned it and few practitioners used it. The main exponent who had significance in relation to Dr Bailey's DST was Dr William Sargant, a UK practitioner. His treatment was modified narcosis. Dr Bailey claimed he had a reciprocal treatment arrangement with Dr Sargant but Dr Sargant, not long before he died in 1988 said he did not know Dr Bailey. Chelmsford was a small hospital mainly for geriatric patients before Dr Bailey's arrival there. It was owned at that time by Mrs Elva Dawson Howard, a registered nurse, who was also the matron. The hospital was licensed for 14 beds and one cot. In mid-1963 when Dr Bailey started admitting DST patients they were rendered unconscious by an initial dose of barbiturate and then by regular maintenance doses about every four hours combined with phenothiazine drugs to boost the barbiturate effect. Sister Betty Maria Shea, whom Dr Bailey had previously known, was employed at Chelmsford. She was not the main sister in charge of DST in the early years, but she became so as the years passed. Patients rendered unconscious were generally fed through a naso-gastric tube although they did have periods of semi-consciousness from time to time when they were able to take some sustenance. The manner of toileting was to permit the patients to wet or soil the beds although again, during periods of semi-consciousness, a commode was used. The level of unconsciousness required manual, periodic, repositioning of the patient and routine suctioning of the airway. Dr Bailey gradually took over more and more use of the hospital so that he had almost exclusive use of it by the mid-1960s. At that time the DST patients were mainly in two bed wards throughout the hospital although there was one larger ward at one time. In April 1971 the hospital was expanded to 40 beds. By this time Mrs Howard had ceased to be the licensee and matron. A company known as Fairfield Heights Community Hospital Pty Ltd bought the hospital in 1972. Those who had an interest in that company were Colombia Holdings Pty Ltd, Gerald Morgan Holdings Pty Ltd and John E Gill Holdings Pty 48

Volume 1

Overview

Ltd. Not long after acquiring the hospital. Dr Morgan's company withdrew from the hospital ownership. Dr Gill's company continued to hold shares and he took an active role in the hospital being the de facto medical superintendent and describing himself as director. He was to carry out a successfully obstructive campaign against Health during the 1980s. When the hospital expanded Dr Bailey lost his exclusive use of it and his sedation patients were nursed in what was known as the sedation ward. This was a room for six or eight beds (the number varied) at the very front of the hospital although the patients were sometimes nursed in other rooms. A plan of the hospital as it was in 1988 appears later in this volume. This plan in general reflects the layout of the hospital and its condition during the 1970s after it became a 40 bed hospital. By the 1970s Sister Shea had become the regular nurse for the day shift in the sedation ward. Nurse Margaret Beattie was an unqualified person with 12 months training many years before she started at Chelmsford in 1964. She became the regular nurse in charge of the sedation ward for the evening shift in the 1970s although she was subject to the supervision of the rostered registered nursing sister. Dr Bailey built up an enormous private practice. Much of his practice however, was not by way of referrals from other doctors. He had a very large personal following, he was well known in Sydney and NSW country areas and he had many prominent people among his patients. The files of many of these people were missing when they were delivered by Mrs Bailey to the Royal Commission. It is likely they had been missing for some time. Dr Bailey also treated a number of people with drug addiction problems. Some people were referred to him by their solicitors. There was suspicion that Dr Bailey worked with the criminal element. There were some well known associates of criminals at Chelmsford. Many are still alive. There were also relatives and children of leading criminal figures. These patients are not identified in the report because despite contrary suggestions there was nothing to indicate that Dr Bailey was involved with organised crime or was an associate of criminals apart from his professional treatment of them (see volume 2). It is unlikely that Dr Bailey had any connection with the CIA. Dr Bailey did meet some people who possibly had connections with the CIA during his time in the US in the mid-1950s on his travelling scholarship. Nothing was located which indicated that he had kept contact with those people. His sole regular overseas contact appears to have been Dr Hunter Brown, a neurosurgeon in California, who carried out multiple target psychosurgery at Santa Monica on Dr Bailey's patients. 49

Royal Commission

into

Deep Sleep Therapy

Dr Bailey's interest in organic treatments led him to be a strong advocate of psychosurgery and in particular the procedure known as cingulotractotomy. He did not carry out any surgical procedures but a large number of his patients received psychosurgery and he claimed, probably with justification, to have had more patients undergo the cingulotractotomy procedure than anyone else in the southern hemisphere. As Dr Bailey's practice increased, he relied more on Dr Herron to carry out the day-to-day administration of the treatments at Chelmsford. Dr Herron became the superintendent of Parramatta and then, in 1964, became the superintendent of North Ryde Psychiatric Centre, now Macquarie Hospital. North Ryde was then the most advanced psychiatric institution in NSW and Dr Herron was the youngest superintendent in the state. Dr Herron acted in the role of Dr Bailey's registrar at Chelmsford during the 1960s and 1970s although in the 1960s his employment with the public service prohibited such activity. Dr Herron said he saw the treatment as attractive and the Chelmsford programme as more dignified than public hospital treatment of which he was very critical. During the 1960s Dr Bailey visited the hospital regularly and usually daily but the attendances became erratic and a pattern of visits after midnight became the norm. In the 1970s his visits reduced to one a week. In 1972 Dr Ian Donald Russell Gardiner, who was employed by the Community Health Centre at North Ryde, started to help Dr Herron. ECT was routinely given daily except on Sunday. As Dr Bailey withdrew from regular attendance the load on Dr Herron of the daily administration of ECT became greater and Dr Gardiner was engaged to administer the ECT. There was a difference in evidence about the responsibility of Dr Herron and Dr Gardiner for the medical care of patients, other than the administration of ECT. Dr Herron saw his role as something more and from time to time entered treatment directions in Dr Bailey's book. Dr Gardiner claimed to know little about it and, while aware of its hazards, never believed in its benefits. The benefits which occurred came from ECT. The details of the doctors are in volume 2. DST was a very dangerous procedure. The details of this are set out in volume 3. It was used by Dr Bailey for all manner of psychiatric problems including depression, schizophrenia, anorexia and drug and alcohol addiction. A careful examination of the records shows that 24 DST patients died because of DST between 1963 and 1979 when the treatment ended. Because there were a number of aged patients at Chelmsford who died of natural causes, the DST deaths in the early years were not so readily detectable as being related to DST. 50

Overview

Volume 1

The first patients died in 1964. In the second half of 1964, five patients died during DST and possibly their deaths were also associated with a golden staph epidemic in Sydney. DST made them more susceptible to this infection. Patients died thereafter at the average of one or two a year. During Matron Robson's time, December 1972 to 1976, nine patients died and during Matron Smith's period in 1976, no patients died. Most DST patients who died were aged in their 20s, 30s and 40s. Dr Bailey routinely provided death certificates for these deaths which were often false and avoided any coroner's inquest even though if the true facts were known an inquest should have been held. Of the 24 deaths which occurred. Dr Bailey signed 17 certificates which were probably false. A large number of patients were treated for complications, these being mainly infections, pneumonia and deep vein thrombosis. The unconscious condition and immobile position contributed to these complications. There was incontinence of urine and faeces and impaction and retention. There were restraints used to prevent falling from the bed, fractures and falls, vomiting, skin breakdown and metabolism imbalance. At the end of the treatment there were gross visual distortions and hallucinations and severe weakness. In 1970 a complaint was made about Dr Herron's involvement with Chelmsford to Health and the Public Service Board. (Throughout this report the relevant department has been called Health to avoid confusion.) The complaint was upheld and as a result Dr Herron was given a warning. Official permission was subsequently given for him to engage in private practice for three hours a week at Chelmsford. Dr Herron then began to admit his own patients to Chelmsford and from then until 1979 he gave DST treatment to a number of patients, although not to the extent that Dr Bailey carried it out. In the early 1970s the records show there was a significant increase in the amount of barbiturate being given to the DST patients and the dosage was approximately doubled. Dr Bailey claimed to have a specialised nursing team looking after patients at Chelmsford but this was not so. Nurses were given almost no special training and learned any expertise on the job. They were given a wide discretion in the amount of sedative drugs they could administer to a patient and sometimes even these were exceeded. The DST doctors did not usually check on these matters. They did not read the records but relied almost entirely on what nurses told them. The nurses relied only on clinical observations of the depth of sleep which at times involved levels at anaesthesia and coma. The directions for treatment were set out 51

Royal Commission

into

Deep Sleep Therapy

as a standard regime in Dr Bailey's book and later on a pre-typed treatment sheet to which the patients' names were added as needed. By the mid-1970s there was disquiet at Chelmsford about DST. Although in 1967 there had been a detailed coroner's inquest into the death of Ronald Graeme Carter, no adverse consequences for Dr Bailey flowed from that. By the mid-1970s, however, the nurses were becoming more concerned about the deaths and complications arising from DST. Sister Shea committed suicide in 1977 by taking an overdose of barbiturates which she obtained from Chelmsford. Her actions and departure also affected the nurses' morale. There was concern from certain staff at Hornsby Hospital where some of the patients with complications were transferred and a few had died. Other doctors who started to use Chelmsford for their private psychiatric patients after its expansion, started to become aware of the treatment and its consequences. Dr Bailey's behaviour, which had never been stable and was quite improper in relation to some patients, became worse, leading to his breakdown and admission to Chelmsford for DST in April 1978 after the suicide of one of his patients. Miss Sharon Hamilton, with whom he had been having sexual relations. The Citizens Commission on Human Rights, a body established by the Church of Scientology, received copies of certain records from Chelmsford and in 1978 it made them available to the Attorney General and through him to the Minister for Health. These records were provided by Nurse Rosa Nicholson. Another staff member. Nurse Anna Borner, complained to Health in 1978 about the treatment. The company which owned Chelmsford started to become concerned about Dr Bailey's behaviour and in consequence the DST treatment. Dr Bailey's treatment and behaviour came to a head at a meeting in November 1978 called at the instigation of Dr Brian Boettcher, one of the other doctors who used Chelmsford, in which it was made clear that if Dr Bailey's DST did not cease. Dr Boettcher would remove his patients from the hospital. Some other doctors took the same view. Shortly thereafter. Dr Bailey discharged all his patients from the hospital and he carried out no further DST treatments anywhere. After Dr Bailey left Chelmsford, Dr Herron continued with the DST treatment but there were little more than a handful of patients until the last patient was treated with DST in April 1979. During that period, however, the lack of numbers did not indicate any lack of danger as Miss Walker was severely brain damaged in February 1979. She was one of very few patients treated under the direction of Dr Gardiner over the years. In some cases it was unclear who was the treating doctor for DST 52

Volume 1

Overview

patients. Communications between the DST doctors who shared the treatment of patients was almost totally lacking. During the years that followed the pressure for action against the doctors who were involved with DST at Chelmsford increased, leading to criminal proceedings against Dr Bailey. On 8 September 1985 Dr Bailey committed suicide. Thereafter there were attempted proceedings against the other DST doctors. DST treatment at other hospitals

Part of the terms of reference required examination of DST at other hospitals in NSW. DST has a particular meaning for Dr Bailey's treatments, but the terms of reference were wider than that idiosyncratic therapy. Forms of prolonged sedation and narcosis were carried on at other hospitals in NSW. None was carried out in other hospitals by the mid-1970s. I have not attempted to carry out an exhaustive investigation of all DST or narcosis-type treatments given at all times in NSW, but confined myself to treatments used after 1960. Although there may have been some barbiturate-based coma type treatments at Callan Park, it seems that the therapies there were insulin coma short duration therapies. Hospitals where forms of Dr Bailey's treatment were carried out were those at which he practised through the 1960s and early 1970s. These hospitals were Canterbury District Hospital, Eastern Suburbs Hospital and Crown Street Women's Hospital. Sedation treatments were also carried out at Woodlands and Lingard Private Hospitals near Newcastle, Young District Hospital, Concord Repatriation Hospital, Mt Carmel Private Hospital, Morisset Hospital, Royal Newcastle Hospital and Parramatta Mental Hospital. The last two hospitals gave sleep treatment in the 1950s. Sleep treatments were also given in other states in Australia but I have not investigated these and the detailed nature of the treatments are not known. Chapter 1 in volume 6 sets out the details of the investigation and inquiry into DST at those hospitals. This list is not exhaustive. For example, Dr Gardiner said that on one occasion at North Ryde he attempted to carry out sedation therapy and Dr Barclay said that in 1957 during his early years there was a brief attempt made to use it at Parramatta Mental Hospital. It was impossible to examine all records at every hospital during the 1960s and earlier to locate all the references to such treatment. There was a further difficulty in determining if sleep type treatment was used. The boundary was uncertain between common barbiturate or other sedation which although normal was heavy, and true sleep treatments. 53

Royal Commission into Deep Sleep Therapy

In volume 3 I set out the characteristics of Dr Bailey's idiosyncratic coma therapy which included tube feeding, incontinence, suctioning of the airways and immobility of patients to the point where they had to be manually moved from side to side in the bed by the nursing staff. Generally these characteristics were not part of the sleep treatments used unless Dr Bailey or his associates were giving it. Particular matters In 1964 Mr Antonios Xigis, aged 28, died during DST at Chelmsford. An inquest was dispensed with by the coroner. In 1967 Mr Ronald Graeme Carter, aged 23, died undergoing DST. Extensive specialist evidence was taken before the coroner. The matter was not referred to the Medical Board although there was provision in the Medical Practitioners Act for such referral. The details of all the individual deaths are set out in volume 4. In 1974, a policeman, Mr Peter Clarke, died. His widow subsequently became very active in the campaign against DST.

In 1973 Mr Barry Hart, a patient of Dr Herron was treated at Chelmsford. He also became active in the campaign against DST and began civil proceedings against Dr Herron and the hospital. He obtained damages from a jury in 1980. The matter is still subject to an appeal. Dr Evan Davies gave evidence for Dr Herron. After the verdict Mr Hart campaigned against Dr Davies' psychological assessment practices. In 1976 Miss Audrey Francis, a patient of Dr Herron died at the hospital. Miss Francis died within 48 hours of DST. When Matron Julie Smith arrived at Chelmsford in the middle of 1976 she found the DST ward was not functioning and those involved with DST were awaiting the outcome of the inquest. The inquest was in September 1976. There was no finding adverse to Dr Herron. A second and very lengthy inquest subsequently took place in 1987 after a long campaign. At that time it seemed this second inquest may have been the last word on Chelmsford. This was so until the announcement of this Royal Commission. In 1976 and 1977 Mrs Patricia Vaughan received two courses of DST. During the latter she sustained severe brain damage. She was a patient of Dr Bailey. In August 1977 Miss Miriam Podio died. Her body was taken to Italy by her parents. There was no inquest until 1982. Miss Podio became sick from DST but after some 10 days she was taken out of DST because she was so ill and although no further sedation was given, she died four days later. All four doctors who used DST were involved in Miss Podio's treatment. Dr Bailey, whose patient she was, Dr Herron who treated her on behalf 54

Volume 1

Overview

of Dr Bailey, Dr Gardiner who treated her on behalf of Dr Bailey and Dr Gill who was called in to examine her during her illness because Dr Bailey refused to attend. Her hospital records were included in the bundle of records which came to the Attorney General and Health in 1978 and subsequently her records were available during Hart v Herron as were the records of Miss Francis. Mr John Adams died in September 1977 after being transferred from Chelmsford to Hornsby Hospital. He was a patient of Dr Gill. Dr Gill had no specialist qualifications. He was administering DST for drug addiction. The first Adams inquest made no adverse findings against Dr Gill. After pressure from the media, an application was made to quash the first inquest and a second inquest was held in 1980. That inquest led to no adverse finding against Dr Gill despite trenchant criticism by Dr James Rankin, a medical specialist in drug and alcohol treatment with Health, of Dr Gill's treatment of Mr Adams. In 1979 Miss Coralie Walker was severely injured and suffered brain damage during DST. She was a patient of Dr Gardiner. In Mr Hart's civil proceedings it was alleged that Mr Hart had consented to ECT. At the time the front sheet of the hospital file had an entry for the patient's consent to ECT. That piece of the form had been cut off. The original file and front sheet were sent to Mr Ian Dodd, Mr Hart's solicitor, in 1975. The bottom portion had already been removed by that time. It was almost certainly sent by Mrs Mollie Sansom, the receptionist/ secretary. In 1977 the hospital insurers required the file and Mr Dodd was asked to return it. He copied it and returned the original file. A few days after it was received, a copy of it was sent to the insurers but the portion where the consent form had been cut off had an x-ray report placed in position to replace the missing consent form on the photocopy. That photocopy file was sent out by Mrs Sansom (see volume 6, chapter 8). ECT is discussed in volume 3. ECT at Chelmsford was carried out in an unmodified form, ie, without the relaxant or anaesthetic agents which were introduced as a routine part of the treatment by the 1950s. Dr Bailey's ECT was both conventional convulsive therapy and non-convulsive, high frequency therapy. The nature and extent of the use of the non-convulsive therapy was uncertain. Dr Bailey was involved in the design of the Minecta ECT machine in the 1950s and 1960s. The Minecta or miniaturised electroconvulsive therapy apparatus had a glissando control which enabled the strength of the electrical power to be controlled to reduce the violence of the contractions 55

Royal Commission

into

Deep Sleep Therapy

in the convulsion. Dr Bailey claimed that this made the relaxant and anaesthetic unnecessary. In the early 1970s when Dr Bailey began using the Minecta II prototype he used a wider range of variations to enable more precise control of the contractions but it is almost certain that he never achieved the control that he hoped for. Dr Herron and Dr Gardiner were the main users of the machine as by the 1970s Dr Bailey had reduced his visits to Chelmsford to a trickle. During the late 1960s and early 1970s Dr Bailey attempted to convert premises at Haberfield into his own private hospital to be known as Mandala. It was in fact licensed but it was never completed and the licence lapsed. He had grandiose plans for this luxury private hospital but, although he made extreme claims about it, it came to nothing. Patients worked on it for him and Miss Sharon Hamilton lent $30,000 to Dr Bailey's hospital company for it. The DST patients The available Chelmsford records began on 22 November 1965. There were two and sometimes three DST patients at Chelmsford. In December 1965 the number of patients rose to a maximum of eight and did not fall below two.

By March 1966 there was a maximum of 12 patients at any one time receiving DST. For more than half that month the number was about eight. For 1966-1967, it was usual to see four, five and six DST patients and not uncommon to see eight, nine and even 10. Sometimes the number rose to 12. The average number of DST patients at Chelmsford in 1968 was five or six rising to a maximum of 11. For the period 1969-1972 it was quite rare to see no patients receiving DST at Chelmsford. Sometimes the number rose to 10, it sometimes fell to one or two but mostly there were four, five or six. There was an increase of DST patients in 1973. It was more common to see the number rise to 10, 11 and 12. On 16 September 1973 there were 13 DST patients. 1974-1975 saw a return to the 1969-1972 pattern. In October 1975 there were usually only one to three patients at any one time and sometimes, though infrequently, none at all. That pattern continued throughout 1976, although for three weeks in June 1976 and again for three weeks in July 1976, there were no patients at all. 56

Volume 1

Overview

From January to March 1977 there were one to three patients. The maximum rose to seven in April 1977 but then fell away to about four or five. From May 1977 to the end of the year, there was an average of two or three. During the middle of 1978 there were few DST patients and sometimes none. The maximum was six in August. In October 1978, for nine days there were no patients and for six other days only one. The rest of the period had between two and three. For November there were one or two. In January 1979 the maximum number of patients was two but for a period of 24 days there were no patients. Again in February 1979 the maximum number of patients was two. For 15 days there was none. In March the maximum was one and for 20 days there were no patients. The high point of DST treatment at Chelmsford was reached in about September 1973. There is no doubt that there was a fall away in 1977, which continued into 1978. However, up until November 1978 the treatment continued on a regular basis even if the numbers diminished. After November 1978 the numbers seriously faltered. There were large periods when no patients were receiving DST and within a few months the treatment petered out altogether. There were three nursing experts who found that the general nursing standard was acceptable. The responsibility placed on the nurses was not acceptable. Consent In the course of their admission to Chelmsford many patients received various treatments without their consent. Once they were unconscious they were unable to consent and the DST doctors took on themselves the absolute authority to decide what should be done to them, frequently without consulting them or their relatives.

Although there were forms from time to time for consent to Dr Bailey's special treatment or to ECT, frequently these were not signed and at other times when they were signed they were signed without any explanation being given to the patient or relative. The hospital records showed that there were acts of deliberate deception or fabrication to induce voluntary patients into the programme without their knowing what was to be involved. There were times when consent forms were not filled in, times when consent forms were filled in as a result of misleading information and times when consent forms were falsely filled in either by a signature clearly 57

Royal Commission

into

Deep Sleep Therapy

made when the patient was seriously affected by the drug regime or by a different hand, probably a doctor or nurse, but now unidentifiable. There were also a few occasions when Dr Bailey signed to authorise the treatment. Generally speaking, visitors were excluded during the DST programme and family and friends who sought to obtain information were told little or nothing. There were times when the records showed treatment given even when the very record noted that the patient had expressly refused it. During their DST treatment many patients were shackled to the bed by leather straps. This was because they were restless and it was said they were liable to hurt themselves. Frequently they were conscious, if dazed, and experienced gross restrictions of their personal liberty with consequent severe agitation and anxiety. The experts The Royal Commission was assisted with its judgments about DST and the treatment at Chelmsford from the opinions of many expert medical practitioners in various areas of speciality. The details of these are set out in volume 5. A sample of 200 cases was selected through computer sampling and submitted to a panel of 12 experts—11 psychiatrists and one physician, some of whom were nominated by the solicitors for Dr Herron.

In addition, each death was submitted to a specialist consultant physician for expert opinion about the treatment, the cause of death and the conclusions in the death certificate. Further, one consultant physician examined the totality of that material to express an overview. General evidence was led from specialists in anaesthetics and in gastroenterology. This was to determine the effect of the depression of the body's system from the drug levels. Experts were consulted and provided extensive information and opinion in the fields of neurology and sleep. The whole of the records of drug administration at Chelmsford was analysed by the Department of Clinical Pharmacology and Toxicology at the Royal Newcastle Hospital. An epidemiological study was carried out into all the deaths occurring at Chelmsford and all the deaths of patients who died within one year of their discharge. The solicitors for Dr Herron provided a list of overseas doctors whom they had consulted. They provided statements and interview notes. Many were later personally interviewed for the Royal Commission as were other overseas experts. 58

Volume 1

Overview

Before the Royal Commission, a large number of medical experts were consulted both for the coroner and on behalf of the doctors involved for the purpose of the coronial proceedings into the deaths of Carter, Podio, Francis and Adams. There was opinion material available in relation to a number of past civil claims in the Supreme Court and legal opinion bearing on that expert medical opinion. Out of all of this material no support whatsoever can be gained for the use of DST and with few exceptions, every comment relating to it and its method of administration was condemnatory. The opinion expressed was that DST was an extremely dangerous treatment and was carried out with inadequate facilities, staff and equipment to deal with the risks. It was therapeutically ineffective. The deaths The Royal Commission had access to a large number of records from Chelmsford. Where deaths occurred there was usually an entry made in the death certificate book at Chelmsford, in Dr Bailey's exercise book, in the daily report books in use during the 1970s and in the patient's file. Although the Royal Commission did not have all records for all periods, it did have sufficient records from all periods to make it highly unlikely that any death occurred at Chelmsford which was not noted in one of those records.

There was not quite the same certainty where patients were transferred from Chelmsford and died at other hospitals. In view of the material available from other hospitals to which patients who were in a serious condition were usually sent, it seems unlikely that any deaths were missed. Further a search was made of all patients who had been at Chelmsford and their names were checked against the records of the Registrar General for deaths which occurred during the time they were at Chelmsford or within a year of their leaving. In 1985 Health made a manual check of the Registrar General's records to locate any death certificate recording the death of a patient at Chelmsford. In addition, the Royal Commission compiled a list of all patients who had been admitted to Chelmsford and on this list there was shown the name, sex, age and date of discharge. Where a patient had one or more admission the date of discharge of the last admission was included. A search was then made of the information held at the registry of Births, Deaths and Marriages for any record of the person dying within 12 months of the date of discharge. A search was also made of Dr Bailey's exercise books for names not appearing in the nursing notes and hospital registers. This search located a further 29 patients. A search was made of the patient files from Dr Bailey's practice in the Commission's custody to better 59

Royal Commission

into

Deep Sleep Therapy

identify the patients and the details were forwarded to the registry. The registry of Births, Deaths and Marriages only records deaths which occur in NSW. Term 1(b) required an examination of the certificates of death made out for DST patients who died. Where patients died outside Chelmsford their condition was examined by independent doctors and there was no reason to doubt the veracity of their opinions and their certificates. Nevertheless, investigations were carried out to ensure that no doubt remained. The central issue relevant to Term 1(b) was the death certificates made out by the doctors who practised DST at Chelmsford, ie, Dr Bailey, Dr Herron, Dr Gardiner and Dr Gill. I have dealt with each of the individual deaths and the particulars on the relevant certificates in volume 4. It was not always possible given the distance in time to attribute a particular cause of death to any patient but frequently the medical specialists who examined the deaths took the view that there was a strong probability that a particular death certificate issued by Dr Bailey was incorrect in circumstances where it was not a bona fide mistake. There was only one death certificate issued by Dr Herron for a DST patient. That related to Audrey Francis. The certificate contained false particulars. There was only one death certificate issued by Dr Gardiner for a DST patient, Mrs B.H., but she was not undergoing DST at the time she died and had not received the treatment for more than three months. There was nothing to suggest that the particulars on Dr Gardiner's death certificate were false. Only one DST patient of Dr Gill died. He died at Hornsby Hospital. Dr Gill did not issue a certificate for him. Further proceedings In chapter 2 there is set out an examination of any further proceedings against any person the subject of this inquiry. That chapter explains the limits in this report on comment about such proceedings. Further, the decision in Herron v McGregor prohibits any further proceedings by way of complaint under the Medical Practitioners Act against Dr Herron in relation to the deaths of Podio and Francis, Dr Gill in relation to the death of Adams, Dr Gardiner in relation to the death of Podio and also Dr Herron in relation to the treatment of Mr Hart.

Later in the report there are recommendations that the material gathered during the inquiry in relation to Dr Herron concerning the death of Audrey Francis and Peter Clarke be referred to the Director of Public Prosecutions, Dr Gill in relation to the death of John Adams be referred to the Director of Public Prosecutions, Dr Gardiner for injuries to Miss Walker be referred to the Director of Public Prosecutions and to the relevant disciplinary authority. There is a recommendation that the material relating to any 60

Overview

Volume 1

alteration and false information in Miss Walker's treatment sheet be referred to the Director of Public Prosecutions. This incident may concern Dr Gardiner, Dr Gill and Matron Moroney. Further, I recommend the material about Dr Gardiner's evidence before the Royal Commission in relation to Miss Walker's treatment sheet be referred to the Director of Public Prosecutions and the material concerning Dr McEwin's evidence about his interview with the Coming Out Show on the ABC is also referred. There is a recommendation that the material concerning the alteration to Mr Barry Hart's consent form, which occurred in 1975, and the alteration which occurred in 1977, be referred to the Director of Public Prosecutions in relation to Dr Herron, Dr Gill and Mrs Sansom. During the course of the inquiry, material became available relevant to possible false financial claims for services rendered by Dr Bailey, Dr Herron and Dr Gardiner for ECT and anaesthetic treatments purportedly given at Chelmsford. Recommendations for the referrals of these matters to the Commonwealth Director of Public Prosecutions are in volume 6 chapter 7. The terms of reference did not provide for any recommendations concerning proceedings for compensation or direct payments of compensation. This is explained in chapter 2. Term 1 (c), action to prevent treatment Despite the notification of the deaths of Mr Xigis and Mr Carter to the coroner, no action was taken by any authority against DST in the 1960s. In 1970 a former staff member, Mrs Pett, sent a letter of complaint to the Public Service Board and to Health. The letter complained of Dr Herron's moonlighting at Chelmsford while being employed at North Ryde Psychiatric Centre as the superintendent and complained about the DST treatment at Chelmsford. Action was taken on the moonlighting matter and Dr Herron was warned by the Public Service Board. No action was taken on the complaints about the treatment.

At the time of the Carter inquest. Detective Sergeant Whitfield accompanied Sergeant Pracey who was in charge of the investigation for the coroner, in a visit to the head of the Private Hospitals Branch, Dr Radcliffe. Dr Radcliffe indicated to them that there was no apparent breach of any regulation on the information which they were able to provide to him. It is not known what information was in fact provided. The Health under secretary thought that as the treatment was carried out in a private doctor/patient relationship and was carried out at a private hospital, there was no power in the department to intervene. 61

Royal Commission into Deep Sleep Therapy

The Private Hospitals Branch carried out annual inspections of Chelmsford. Miss Val Oxley, an inspector, did not observe anything untoward during her inspections of the hospital although usually during her visits patients were undergoing DST. She did not notice this. Inspections of Chelmsford by Health's Poisons Branch were not carried out on a routine basis. The branch was only established in 1967 and a routine inspection took place at the end of December 1968 and in mid-1972. Other visits by the Poisons Branch were for specific purposes such as the destruction of drugs of addiction. In November 1975 Mr Hart, who by that time was trying to bring his claim against Dr Herron and the hospital, gave an interview to The Sydney Morning Herald. This appeared on the front page. Inside there was a lengthy interview between the journalist and Dr Sydney Hing. Dr Hing, who was then head of the Private Hospitals Branch, explained the departmental view of DST. No inspection, investigation or other action took place at that time. In 1978 a number of things happened at about the same time which brought the attention of Health to the Chelmsford situation. Firstly, Mr Ron Segal of the CCHR provided copies of 22 patient files and some pre-signed treatment sheets to Mr Walker, the Attorney General. Mr Walker sent them to Mr Stewart, the Minister for Health. Secondly, a media article about the death of Mr John Adams caused the department of Justice to prepare an application for Mr Adams' inquest to be re-opened. The matter was referred to Dr Rankin at Health for his expert opinion. Thirdly, the relatives of Miss Sharon Hamilton pressed the department of Justice and also the Attorney General for a second inquest. Miss Hamilton had apparently died from a self overdose of barbiturate drugs. There was an argument with Dr Bailey shortly before this. There was a long term, if sporadic, sexual relationship between the two. Miss Hamilton had lent Dr Bailey a large sum of money and left the whole of her estate to him in her Will. Fourthly, in November 1978 Nurse Borner formerly from Chelmsford, attended the Private Hospitals Branch and advised Dr Hing in an interview about the situation as she saw it. The matters raised by Mr Segal were referred by Mr Stewart to Dr Hing for investigation. The matters concerning Mr Adams came from Dr Rankin through to Dr Hing to use in his investigation. The letter from Nurse Borner was filed by Dr Hing to use in his investigation. The Sharon Hamilton matters were kept separate and were subject to a police investigation for the coroner, Mr Goldrick. There the matters remained for nearly two years apart from two visits by Dr 62

Volume 1

Overview

Hing to the hospital in which he observed there was nothing improper going on, and possibly four telephone calls from him. The second Sharon Hamilton inquest in 1979 confirmed the finding of suicide. The second Adams inquest resulted in no action about DST, which by that time had ended, or against Dr Gill for his treatment of Mr Adams. It seemed that the matters were condemned to the archives of history until Dr Rankin received a telephone call in August 1980 that 60 Minutes was presenting a programme on DST and that possibly 10 patients had died from the treatment. Dr Rankin brought this to the attention of Health chairman Dr McEwin. At about the same time a formal letter of complaint was sent by Mr Edward St John QC and Dr John Sydney Smith to the Attorney General. Both these men, eminent in law and psychiatry, were involved in Mr Hart's lengthy malpractice suit. Dr McEwin asked for a report from Dr Hing. The programme was presented on 28 September 1980. The next day a video recording was seen by the Health commissioners, including Dr McEwin. Dr McEwin asked for another report from Dr Hing. This was the first time the matter was raised at the commissioners' level. Dr McEwin said he was aware of the matter before 1978 and in various media communications said that he knew of the matters as early as 1975. If he knew of the matters as early as 1975 he did nothing from then until 1980 when he asked for the two reports from Dr Hing. It is more likely that he did not learn of the Chelmsford deaths until 1978 and possibly 1980. Dr McEwin said he received a direction from the Minister, Mr Stewart, not to take action or to take very limited action. He said this was the reason for the inactivity by Health. He also said that Health was active during this time. Nevertheless there was almost no activity until October 1980 when Mr Tim Wootton was asked by Dr McEwin to work with Dr Max Frame on the Chelmsford matter but Dr Frame left Health in December 1980. Mr Wootton was a young trouble shooter. He provided a report for the Minister setting out the alternatives. He drafted a letter for the Minister to send to the Attorney General, which at the very least exaggerated the truth about Health's activity. The letter sent to the Attorney General by Mr St John QC and Dr Smith shortly before the 60 Minutes programme was a careful analysis of the DST programme at Chelmsford. A copy of that letter was sent to Health. That letter was received about the time 60 Minutes was screened. Any doubt which existed about the reliability of the 60 Minutes programme should have been resolved by the weight of opinion from these two men, highly experienced in their respective disciplines. They wrote almost immediately after the conclusion of Mr Hart's proceedings against Dr 63

Royal Commission

into

Deep Sleep Therapy

Herron. They had not been able to draw attention to the matter before then because of their involvement in the case. They wrote a second lengthy submission in February 1981. In October 1980 two detectives from the Homicide Squad were placed on secondment to Health to investigate the deaths at Chelmsford. Mr Wootton arranged for a meeting with them. The police investigations focused on the Podio death. This is not surprising. Miss Podio's patient file was in the bundle of documents received in 1978. She was a young woman aged 26. The records showed she had been sick for a long time. Part of her daily history records were missing from the patient file and although ultimately there was an innocent explanation for most of the missing material, its absence understandably raised grave suspicion in the minds of those who read the file. Dr Bailey provided a certificate to allow removal of her body to Italy where her parents came from. This raised further suspicion. As well, all four doctors. Dr Bailey, Dr Herron, Dr Gardiner and Dr Gill, were involved in her treatment. In the early stages it looked a promising case but in the absence of the body. Detective Sergeant Conwell from the Homicide Squad, although optimistic, expressed some reservations as the investigation proceeded. Nevertheless all the resources were put into the investigation of this case and Health sat back and left the investigation of Miss Podio's death to the police. In the meantime Health had in its possession other files on which expert opinion could have been obtained, material which showed the improper relationship of Dr Bailey with Miss Hamilton and treatment sheets pre-signed by Dr Bailey. There was some thought at the time that the pre-signed treatment sheets would not be sufficient for a complaint before the Disciplinary Tribunal because there had been discussion about them between Dr Bailey and the head of the Poisons Branch, Mr Robert Dash. A rumour developed that Mr Dash had "approved" the treatment sheet and by implication its use in the pre-signed form. This proved not to be true. However, no one at the time inquired from Mr Dash what was the nature or extent of the rumoured "approval". Apart from expressions of concern during 1981 and 1982 that the police investigation was moving slowly. Health did little. The inquest into Miss Podio's death began in 1982 and was terminated by the coroner after hearing only one medical expert. Dr Smith. The coroner formed the view in accordance with sl9 of the Coroners Act that there was a prima facie case for an indictable offence against particular people. The people were Dr Bailey, Dr Herron and Dr Gardiner and the offence was manslaughter. 64

Volume 1

Overview

The papers were referred to the Attorney General who proceeded to lay an ex-officio indictment against Dr Bailey, but because of the absence of medical evidence from the coroner's court the decision whether to lay ex-officio indictments against Dr Herron and Dr Gardiner took longer to determine. In the meantime, after some 12 months and some mentions in the District Court, the matter was listed before Judge Thorley who ordered that there be a stay of proceedings until preliminary committal proceedings were heard so that the medical expert evidence could be examined. No decisions or actions were taken about Dr Herron or Dr Gardiner at this time. Ultimately the Podio committal proceedings for manslaughter against Dr Bailey began in 1984 and were completed in the middle of 1985. Dr Bailey was discharged. Dr Gill was called as a prosecution witness and no charges or complaints against him for Podio were being considered. The decision was made not to proceed with criminal proceedings against Dr Herron or Dr Gardiner. No decisions had been made by Health about lodging complaints against Dr Herron, Dr Gardiner or Dr Gill. Only one limited complaint by Health had been laid against Dr Bailey. This occurred after Mr Menzies of counsel had advised on 13 December 1984 that a departmental complaint would testify to Health's willingness to pursue the matter. On 20 December 1984 Health lodged a complaint against Dr Bailey about the pre-signed treatment sheets and the issue of a death certificate for Miss Podio within 24 hours of an anaesthetic. No complaint about the treatment of Miss Podio could be lodged because of prior Supreme Court proceedings concerning Miss Eastgate's private complaint. Private complaints, however, had been lodged well before Dr Bailey's death in September 1985. On 28 October 1980, Miss Eastgate lodged a complaint with the Investigating Committee against Dr Bailey about Hart and Podio. On March 1982 she lodged complaints against Dr Herron about Hart and Podio. On 21 July 1983 Mr Hart lodged his complaint against Dr Herron for treatment to himself. On 17 October 1985 Health lodged complaints against Dr Herron, Dr Gardiner and Dr Gill about Podio. On 31 January 1986 Health lodged complaints against Dr Herron about Francis. On 10 February Health lodged complaints against Dr Herron about Hart and Dr Gill about Adams. On 6 March 1985 the Investigating Committee completed the hearing of Eastgate v Bailey and referred the matter to the Disciplinary Tribunal. This only involved the treatment sheets and failure to report the death to the coroner because of the Supreme Court proceedings. In October 1980 Dr Smith made a submission to the Royal Australian and New Zealand College of Psychiatrists about Dr Herron. The RANZCP considered the matter and referred it to the Investigating Committee. The committee rejected it because of the failure to lodge the required deposit. 65

Royal Commission

into

Deep Sleep Therapy

The RANZCP sent the deposit but the matter lapsed because the committee apparently did not know if Dr Smith wanted to press the complaint. After Dr Bailey was discharged in the committal proceedings, the matter was raised before Cabinet in August 1985. A proposal was brought forward for a Royal Commission. That was rejected. Instead, a Cabinet sub-committee made up of the Minister for Health, the Attorney General and the Minister for Police was established. They delegated, to what became known as the senior officers sub-committee, the responsibility of recommending where to go next and advising what other actions or proceedings were open. The senior officers sub-committee was made up of Mr McGregor, the acting head of Health and Miss Walton from the Complaints Unit, Mr Webb from the Attorney General's department and Mr Tzannes from the Police department. A police task force was established which was to examine all the papers for possible criminal proceedings and report within a week or so of the end of August. After that task force reported it became necessary to set up a further task force. The second police task force reported in February and April 1986. Meanwhile, the senior officers sub-committee met regularly until 1986 and in August 1986 the last report from the senior officers sub-committee, which was written by Miss Walton from the Complaints Unit, was provided to the Cabinet sub-committee. After the Investigating Committee referred the matters to the Disciplinary Tribunal, the doctors made an application to the Tribunal for a permanent stay of the proceedings on the grounds that the delay and the prejudice which they had suffered because of the time it had taken for Health and the private complainants to bring the proceedings, was an abuse of process. They were unsuccessful. They appealed to the Court of Appeal and were successful in September 1986. At this point, there appeared to be no further action which could be taken against the doctors but there was a campaign for a second Audrey Francis inquest. An order for a second inquest was granted. An application in April 1987 for a stay of that inquest, on similar grounds of abuse of process, was unsuccessful and the inquest proceeded in June to August 1987. It continued in November and the coroner's findings were delivered in June 1988. The Audrey Francis inquest, although critical of Dr Herron, did not make any suggestions about criminal charges or complaints, possibly because at that time the magistrate felt himself bound by the Court of Appeal decision in 1986. This was where the matter rested apart from demands for a Royal Commission during 1987 and more particularly after the coalition government came to power in 1988. 66

Volume 1

Overview

Until 1984 there was no central co-ordinating authority for dealing with complaints about doctors, hospitals or health workers. In 1984 because of concern of increasing medical fraud, the then Health Minister, Mr Brereton, set up the Complaints Unit. That unit took over the management of the Chelmsford matters and in particular, took over the responsibility for lodging complaints with the Investigating Committee for later hearing before the Disciplinary Tribunal. The first manager was Miss Philippa Smith and Miss Merrilyn Walton became the manager in 1985, an office which she still holds. Although the unit was established in 1984 the first year was spent very much in setting up and conducting a very large matter which was already proceeding. The unit should not be criticised for not lodging complaints earlier. It inherited the problems of Chelmsford and it had taken steps to have complaints lodged within a reasonable time in the circumstances. The inaction which led to the delays occurred before its existence. Two solicitors who worked with the unit were critical of the Chelmsford situation. The first, Mr Anthony Restuccia, was seconded from the Crown Solicitor's office. The second, Mr Robert McCormick, took over the Chelmsford matters from Mr Restuccia. He was part of the unit's staff. Their criticisms were carefully investigated and are examined in volume 8 chapter 9. When the Complaints Unit was established, Detective Sergeant Coates was attached to it primarily for the purpose of the medical fraud matters. Detective Constable McNeice who had worked with Detective Sergeant Conwell on the Podio investigation was attached to the Complaints Unit to assist in the Chelmsford matters. Constable McNeice was replaced by Detective Sergeant Tavener who took out a series of warrants to search the Chelmsford premises and subsequently other premises. These warrants were the subject of legal proceedings and the principal warrant was ultimately quashed by Mr Justice Lusher in the Supreme Court in 1986. Term 1(d), Dr Davies Dr Evan Davies was a friend of Dr Bailey. He worked with Dr Bailey at the CSRU. Later Dr Davies was appointed as a lecturer at the University of New South Wales. He carried out psychological testing for Dr Bailey's patients on a part-time basis. He had access to and used Dr Bailey's rooms to carry out his private practice during the period of his appointment at the university which continued until his retirement after DST finished.

Dr Bailey's patients made up the major part of Dr Davies' practice, at least 60 per cent, possibly more. There was a close liaison between Dr Bailey and Dr Davies. 67

Royal Commission

into

Deep Sleep Therapy

Dr Davies also carried out testing and assessments for Dr Herron. Mr Hart was one of these patients. Mr Hart was extremely critical of Dr Davies' testing techniques, procedures and conclusions after Dr Davies gave evidence in Mr Hart's case in 1980. Dr Davies tested Mr Hart at the end of 1972 before he underwent DST. Dr Davies tested Mr Hart again in 1980 before he gave evidence in Hart v Herron. Mr Hart wrote letters to the AG's, Health, the Complaints Unit, the Law Reform Commission and the Australian Psychological Society complaining about Dr Davies' tests. His self proclaimed purpose was to stop Dr Davies from carrying out his practice as a psychologist. At the time there was no provision for registration. Unless a criminal offence was committed there was no procedure equivalent to de-registration which is now available under the present legislation. When the Royal Commission started there was no term requiring it to investigate Dr Davies' psychological assessment practices. As Dr Davies' work might have been relevant to Term 1(a) evidence was taken about alleged defects in those practices and in particular detailed evidence was taken from Mr Hart. To determine the significance of any defective practice, a number of reports were selected at random and were examined by Emeritus Professor Philip Ley and by Mr Norman Rees, a clinical psychologist. They were both critical of Dr Davies' testing practices and in particular the lack of reliability, the lack of information as to validity, uncertain and inappropriate norming standards and the likely idiosyncratic use of tests. Nevertheless these practices could only be within the terms of reference if they were treatments associated with deep sleep treatment carried out at Chelmsford. Taking into account the oral evidence and the expert evidence available at that time, it was determined that Dr Davies' psychological assessments were not within Term 1(a) so they were not investigated further. In December 1989 the terms of reference were widened to include Dr Davies' psychological assessment, to inquire into Dr Davies' psychometric testing of Chelmsford patients and the contribution of the testing to the establishment, maintenance and justification of the treatment. In order to do this, a procedure of expert investigation was set up by the Royal Commission. The details of the procedure used are set out in volume 9. Two experts were engaged to assist the Royal Commission, Professor Ley and Miss Tony Ovadia. Two further experts nominated by Dr Davies joined the panel. The panel examined the totality of the reports of Dr Davies for DST patients to determine if there was any internal evidence indicating a contribution to the establishment, maintenance or justification of DST. 68

Volume 1

Overview

The panel also examined the reports for the purpose of determining their quality in relation to reliability, validity, appropriateness of norming standards, appropriateness of method of administration, appropriateness of particular tests chosen and internal consistency between the conclusions, the scores and material in the body of the report. In coming to conclusions about the contribution, evidence outside the reports was considered; in particular the comments of Dr Bailey in various documents and comments of Dr Herron and Miss Jan Allan in the witness box. In coming to conclusions about the quality of the reports, the panel's opinion was divided. In general, the psychologists assisting the Royal Commission were critical of Dr Davies while the psychologists nominated by Dr Davies thought that much of the criticism was not correct. There were also some individual variations between each of the psychologists on the panel. In coming to conclusions about the quality of Dr Davies' work the views of the various members on the panel were considered as were the views of other specialist psychologists who were engaged by Dr Davies and by Mr Hart and other patients. Dr Davies' assessments did contribute to the establishment, maintenance, and justification of DST at Chelmsford. There was no conspiracy between Dr Davies and Dr Bailey or any other person to use the reports for those purposes. But they were used by Dr Bailey and Dr Herron to explain to patients their psychiatric condition and the consequent need for DST, to explain in various statements that the assessments showed there were no adverse side effects, in particular brain damage from DST, and to explain in litigation that such side effects had not occurred and that DST was a beneficial treatment. Further, there was material from the experts which led to the conclusion that the assessments seemed to over-estimate the patient's degree of abnormality. Although this could not be determined with certainty without an independent assessment of the particular patient at the time of the original test, the likelihood of such over-estimation made the administration of DST more probable than it would otherwise have been. In other words, if Dr Davies made the patient appear worse than the patient in fact was, it was more likely the patient would receive a more serious treatment such as DST. It was also necessary to ascertain whether, if DST was given for particular psychiatric conditions, those psychiatric conditions received over-emphasis in Dr Davies' reports. If they had, it may have been that the assessments erroneously suggested the use of a more serious treatment. Dr Bailey used DST for a very wide range of psychiatric conditions. One condition for 69

Royal Commission

into

Deep Sleep Therapy

which he used it more than others was depression. However, there was no indication of a strong correlation between diagnoses of depression in Dr Davies' reports and the use of DST. Nor was it possible to say that conclusions of depression in Dr Davies' reports would suggest to the psychiatrist the use of a more serious treatment such as DST. Further, Dr Davies' reports themselves did not over-emphasise depression as a diagnosis. Professor Ley and Miss Ovadia provided the opinions about standards which they saw as appropriate to testing procedures in the main report in volume 10. In the report on Term 1(d) (volume 9) I accepted their views. Dr Davies' response was that he took an eclectic approach to the testing procedures. The evidence indicated he took some information from the patient history and some from tests and scores and he combined them together to give conclusions in ways which were idiosyncratic. It was not possible to determine what conclusions flowed from the results of the tests and what flowed from Dr Davies' subjective clinical opinion. The results from the tests were uncertain and the idiosyncratic combination with Dr Davies' clinical opinions taken either from observations or from conversations with the patient made the results uncertain and unsatisfactory. Dr Davies used shortened forms of tests and combined parts of some tests with parts of other tests to form scores for particular traits. The main report criticised this procedure. A significant problem with the test was that Dr Davies used a subjective clinical approach with reference to test results which were themselves uncertain and in general put these forward as objective, statistical findings. Dr Davies used a profile system to describe a patient's condition. The profile was not scientifically tested but it was an impressionistic pattern gained by Dr Davies from combining the inter-relationships of the various traits. Dr Davies' use of history, shortened test procedures, idiosyncratic combination of tests for traits, development of his own names for traits and indeed his own traits and his use of profiles, were all infected by an inappropriate subjective approach. The conclusions about Dr Davies' work should not be taken to suggest criticism of clinical procedures when used in the appropriate psychological setting. The criticism related to the idiosyncratic combination of procedures of the subjective and objective method. On the other hand the two panelists nominated by Dr Davies gave considerable support to the procedures which he used and in particular gave evidence that his practices were of the same standard as other psychologists of the day. That part of their support, however, could only be in mitigation of the procedures and it did not vindicate them. 70

Volume 1

Overview

The way in which Dr Davies used particular tests was criticised. While this criticism was applicable to most tests to some degree, it was said to be particularly applicable to the Zulliger Ink Blot Test, the Motivation Analysis Test and the 16 Personality Factor Test. The criticism about the way the tests were used emphasised that where tests such as these, which were criticised by some psychologists as having a significant element of uncertainty, were used in the way that Dr Davies used tests, the uncertainty was increased to the level which made them useless. In general, the criticisms made of Dr Davies' assessments were his combination of tests and sub-tests to produce scores for a given trait where some of the tests and/or sub-tests were used quantitatively and some qualitatively and the conclusions could not be repeated or checked; his use of clinical judgments about relationships or profiles from combinations of tests without any adequate objective material to support the approach; his use of an unusual range for normality which could lead a reader to misunderstand; his use of combinations of tests which had not been normed; his use of clinical, subjective or historical material without reference to the source of the material; his use of certain tests of questionable reliability and validity. Despite these criticisms it was not possible to say that in any individual case Dr Davies' conclusions did not truly reflect the condition of the patient. Although there was no deliberate conspiracy to use the assessments to influence patients to have DST, Dr Davies may have unwittingly lent himself to erroneous assessments being used to contribute to the treatments. Any contribution which they had on the likelihood of DST treatment was completely inappropriate.

71

72

CHAPTER 4

Chelmsford Private Hospital

Chelmsford Private Hospital was situated at 2A The Crescent, Pennant Hills, close to Pennant Hills Road and the railway station. The original building was constructed in about 1927 for Dr Clyde Davis, a local general practitioner. He used it as a residence and consulting rooms. When DST began at Chelmsford in May 1963, the hospital was of modest dimensions being licensed for only 15 beds and one cot distributed over five wards. From its opening in January 1963, the hospital mainly provided care for geriatric patients but from May 1963 until substantial building extensions in 1970, it was devoted almost exclusively to the care of Dr Bailey's patients. The extensions in 1970 led to licensing of 40 beds on 14 April 1971. From that point on, the DST patients were generally confined to one ward although at times when the number of DST patients exceeded six, an additional ward was used. Before 1971, the DST patients were spread out over the five wards of the hospital. For example, evidence at the Carter inquest showed that Mr Carter was nursed in a small ward with one other patient. This situation made continual visual monitoring of patients impossible. After extensive reconstruction of the hospital, DST was administered in the wards on one side of the hospital, principally in ward 17, and occasionally in adjoining wards 16 and/or 15. Wards 16 and 17 were both licensed for six beds and ward 15 was licensed for three beds. There was ample room, however, for additional beds in ward 17 and on occasions additional beds were placed in this ward to accommodate DST patients (exhibit 258). The general section of the hospital catering for non-DST patients was on the other side of the building. A floor plan of the extended hospital is incorporated in exhibit 7. The building included a matron's flat which had a common wall with the main building but was reached by separate outside access. Chelmsford was licensed under the Private Hospitals Act 1908. Additional to the statutory requirements the operating company was subject to a range of duties imposed by the common law. These duties may be outlined as: • To ensure the selection of competent staff and to provide adequate supervision, direction and control, • To ensure each member of staff works within his or her area of competence. 73

Royal Commission into Deep Sleep Therapy

CHELMSFORD PRIVATE HOSPITAL AS AT

MARCH 1988

74

Volume 1

Chelmsford

• To co-ordinate the activities of staff and the use of equipment so that the patient receives a reasonable standard of care, • To provide proper premises, facilities and equipment and to maintain them, and • To provide adequate food. It is inappropriate for me to enter into the debate on a hospital's liability for negligence on its premises by independent medical practitioners, particularly as former Chelmsford patients have current litigation. I note that the "duty" which arises on the part of any hospital must be a more solemn duty on the part of a physiatric institution. DST patients were quite incapable of taking any steps for their own protection. The decided cases give some useful factual illustrations of problems confronting unconscious or otherwise disabled patients. Private Hospitals Act The Private Hospitals Act 1908 was expressed to be "an Act to provide for the regulation and inspection of private hospitals". These were defined as buildings "... used ... for the treatment for fee or reward of patients //

It was provided by s6 that "No private hospital shall be carried on, used, or conducted except under the authority of a licence granted by (Health)". Section 8 provided for the inspection of the buildings and investigation of the character and fitness of the applicant before a grant of licence. Section 8(4) required the licence should specify the particular class of private hospital or nursing home and the maximum number of patients to be accommodated in each ward. Section 8A(2) imposed a duty on the licensee to notify the department of any change in particulars within 14 days of such a change. Section 9(2) required the licensee to pay the annual licence fee on or before 31 December. Section 9A(2)(a) provided that on the death of a licensee the licence should continue in full force as if granted to the executor or administrator. Section 9A(2)(b) gave Health power to revoke the licence where the executor or administrator had not transferred it within two months. This period could be extended. These provisions emphasise the perfunctory nature of the inquiry which Health was directed to carry out on the suitability of an applicant for a licence under the Act. Sections 6 to 9 A of the Act are contained within a section headed "Licensing of private hospitals and nursing homes". 75

Royal Commission

into

Deep Sleep Therapy

Sections 10 to 19 of the Act are contained within a section headed "Management of private hospitals and nursing homes". The critical sections on management are sslO and 10A. Section 10(2) provided that: "The licensee of an establishment is guilty of an offence against this Act unless(a) there is a person who carries out the duties of chief nurse of the establishment and who is responsible for the conduct of the establishment; and (b) that person is a registered nurse and holds the prescribed qualifications that are applicable to the chief nurse of the establishment."

Section 10(3) provided that: "Notwithstanding subsection (2) where the regulations prescribe qualifications that are applicable to the chief nurse of an establishment, the licensee of the establishment is not guilty of an offence under that subsection by reason only that the person who carries out the duties of chief nurse of the establishment does not hold those qualifications, if there is a person who is a registered nurse and who holds those qualifications and who carries out the duties of assistant chief nurse of the establishment."

The provisions of sl0(2)(a) make it clear that the position of chief nurse was quite significant and indeed, the Act imposed specific duties on the chief nurse. However, it is clear that there were important duties imposed on the licensee. (See for example ssl0(5) and 10(6)(a). See also sslOA, 14A and 15.) Section 10(10) provided the regulations could make provision to determine the duties of chief nurse and assistant chief nurse. There appear to be no such regulations. So far as the exemption granted by sl0(3) is concerned, the practice Chelmsford adopted appears to have been to have treated the presence of a registered general trained nurse on the premises at all times as being a compliance with the requirement of sl0(2). Section 10A(1) provided that: "The licensee of a private hospital or nursing home shall conduct and manage such private hospital or nursing home or cause such private hospital or nursing home to be conducted and managed in an efficient manner."

Read with sl0(2) which regulated the conduct of the hospital by the chief nurse, sl0A(l) appears to be more concerned with the concept of management. I take the requirement to mean the licensee is responsible 76

Volume 1

Chelmsford

for the overall direction or control. The subsection contemplates the licensee may employ others to assist in the conduct, management or control of the hospital, but a reading of the Act as a whole makes it clear that there remains a range of duties which are personal to the licensee. For example. Health may give notice to the licensee under sl4A to carry out repairs, alterations, additions or improvements. A failure to comply with such a notice renders the licensee guilty of an offence against the Act. Additionally, use of the private hospital for any purpose beyond that for which it is licensed, renders the licensee guilty of an offence (see sl5). Section 16 of the Act permits an inquiry to be made into the management of the hospital which may lead to revocation of the licence. Section 16(3) provided that on revocation no new licence should be granted to the licensee for a period of four years. This provision can be properly regarded as indicative of the serious view the legislature took of the licensee's obligations. Section 16A gave a power of revocation in various instances. Subsection (l)(d) provided for the situation where "the revocation of the licence is necessary in the public interest". It would have been open to Health to attempt to persuade the licensee to either exercise the ultimate sanction, ie, to terminate Chelmsford's association with Dr Bailey and the other DST practitioners, or to endeavour to terminate the licence under sl6A(l)(d). Section 16A(l)(e) provided for revocation where the licensee has been absent from NSW for a period of six months or more without making arrangements for the conduct of the private hospital with Health. This provision certainly contemplates a licensee may be away from the premises for a substantial time and is to be contrasted with other statutory schemes, for example, the Liquor Act 1982, where it is contemplated that a licensee in normal circumstances should use the licensed premises as his or her usual place of residence (see slOl). It should be observed the Private Hospitals Act said nothing about patient care. This subject was a matter of debate during the inquiry and is referred to in detail in volume 8 in respect of term of reference 1(c). The regulations The regulations made under the Act are mainly concerned with physical matters such as the physical structure, bathroom and toilet accommodation, lighting, kitchen and laundry structure and fittings, staff accommodation and furniture, furnishings and linen. Only a limited number of regulations had some reference to patient care. Regulation 13(1), substituted on 22 July 1977, provided that medical and surgical equipment, appliances and materials should be provided in accordance with any directions given by 77

Royal Commission

into

Deep Sleep Therapy

Health. I note here that there was no evidence of Health giving any such notice. There was evidence that following periodic inspections Health issued Chelmsford with notices which dealt with physical matters such as painting, appliances, cleanliness, etc. Regulation 14 required the nursing staff should be "sufficient in number to fully perform nursing duties necessary for the proper care of patients . . . ". The staff numbers were to be as directed by Health. Regulation 19 dealt with overcrowding of patients and r23 prohibited the performance of major operations except in private hospitals licensed to admit surgical cases and containing an operating theatre equipped in accordance with the regulations. Beyond these few instances, however, there is no doubt that the general thrust of the regulations was concerned with matters relating to the premises' structure and fittings. Chelmsford's licence Regulation 5 set out the prescribed classes of private hospitals as follows:

(a) (b) (c) (d) (e) (f)

Medical, Post-operative, Surgical, Lying-in (maternity), Psychiatric, A combination of two or more of the above other than (d) and (e).

Chelmsford's original licence was as a medical and post-operative hospital. It was not until 20 August 1975 that it was re-classified as medical and post-operative plus psychiatric. Since it appears that a significant number of patients from May 1963 to August 1975 were psychiatric, there may have been a breach of r5. Correspondence between Health and licensee Mr Joseph Silbermann between November 1972 and February 1979, which was located after the conclusion of the public hearings and which is now exhibit 258, sheds some light on Health's process of inspecting Chelmsford. A notice dated 30 July 1973 refers to licensing the hospital as medical and post operative and points out that according to the staff roster, five members of the nursing staff, including the chief nurse, were only psychiatric trained. The notice then referred Mr Silbermann to r6 which set out the qualifications appropriate for appointment as chief nurse or assistant chief nurse. So far as Chelmsford was concerned, the requirement was for a general certificate. Mr Silbermann wrote on 31 July 1973 advising, "The hospital has a significant number of psychiatric patients". 78

Volume 1

Chelmsford

The proportion of psychiatric patients in the hospital continued to be a matter of some debate in the correspondence until 7 December 1973 when Mr Silbermann applied for the additional classification of psychiatric. Mr Silbermann wrote again on 6 June 1975 making another application for the additional classification. He said, "The past and present patients are substantially psychiatric in nature, in fact at present 98 per cent are psychiatric patients". He also said, "I therefore request that Matron Sandra Robson, who is psychiatric trained, continues as chief nurse". The re-classification was approved on 20 August and communicated by letter dated 2 September 1975. This letter made no mention of the position of Matron Robson as chief nurse. Inferentially Health acceded to Mr Silbermann's request as there was no change in the registration particulars of chief nurse until Matron Smith's application was approved on 20 October 1976. Other doctors using the hospital No Chelmsford patient records were available for the years 1963 or 1964 and very few records were available for 1965.

The Commission has only 29 recorded admissions between 1965 and 1969 inclusive by doctors other than Drs Bailey, Herron and Gardiner. Of these, only two were admitted by a psychiatrist (Dr Huppert). In 1970, there were 63 admissions by other doctors including 11 by Dr Huppert and 24 by Dr Zilliacus who was also a psychiatrist. From 1971 when the number of licenced beds increased from 15 to 40, there was a substantial increase in admissions by non-DST practitioners. The details of these admissions are set out in the consultant psychiatrist's report (see appendix). Dr Blows (psychiatrist) admitted 56 patients between 1975 and 1978. Dr Boettcher (psychiatrist) admitted 86 patients, mainly in the years 1977 and 1978. Dr Dawson (psychiatrist) admitted 172 patients between 1973 and 1979. Dr Huppert admitted 620 patients between 1965 and 1979. Dr Reichard (psychiatrist) admitted 488 patients between 1971 and 1979 and Dr Zilliacus admitted 284 patients between 1970 and 1974. Some of the above figures may be inflated as a day patient receiving ECT was counted as an admission (see consultant psychiatrist's report, volume 11). Establishment of DST Dr Bailey's first order book indicates that deep sleep treatment began on 18 May 1963. Before that. Dr Bailey rang Matron Elva Howard who was the licensee and registered chief nurse to inquire whether he could admit patients to Chelmsford. Although Matron Howard informed him she was not psychiatric trained he expressed a preference for general trained nurses in any event (see Mrs Howard's statement exhibit 232). Matron Howard's recollection was that the first patient was a puerperal psychotic, but Dr Bailey's order book suggests the first patient was a compensation case with post traumatic depression following a head injury. 79

Royal Commission

into

Deep Sleep Therapy

Dr Bailey discussed his treatment regime with Matron Howard. He also wrote an outline of his method in the first few pages of the treatment book. The range of patients was described as being, "depressives; acute anxiety states; early schizophrenics; agitated depression". As detailed elsewhere, this range of appropriate diagnoses for DST was later extended to every known abnormal psychological condition, including some areas perhaps outside the range of psychiatric diagnosis, such as obesity. Dr Bailey wrote the DST regime in the book as "a continuous narcosis—7 to 10 days". He then wrote, "TLC" (presumably, tender loving care). The medication which he directed was six grains of Tuinal to begin, then three grains four hourly until sedated and as required to maintain sedation. Three grains was equivalent to 200mg. Dr Bailey told Matron Howard that he wished to "gradually take them down into a medium sleep and keep them at a certain level". The Tuinal was to be combined with a phenothiazine. Matron Howard's description of the appropriate depth of sedation was that the patient had to be rousable, "where possible walking them to the toilet". Dr Bailey later opted for a substantially deeper level of sedation. The records show that in the early 1970s the daily permitted dosage of Tuinal increased from l,200mg to an average 2,400mg. In May 1963, Dr Bailey wrote a general direction for ECT in his order book. He required pre-medication of Atropine together with a muscle relaxant and a short acting anaesthetic. However, Dr Bailey did not insist the injections be given where the patient was sufficiently deeply sedated. The following month, 17 June 1963, Dr Bailey wrote an instruction to day staff in his order book that sedation patients were to be kept sedated, "so that they are sleeping for 23 out of 24 hours". He wanted this instruction to be interpreted without reference to meal hours or other hospital requirements. Dr Herron's role in the programme, indicated by entries on page 3 of Dr Bailiey's first book, show he began attending Dr Bailey's patients from 18 May 1963. Page 9 of the book shows within 10 days Dr Bailey's patients had taken up 13 of the 15 available beds in the hospital. The implementation of the DST regime at Chelmsford was assisted by the presence of Sister Betty Shea who had already participated in the treatment at St Anne's Hospital, Killara. 80

Volume 1

Chelmsford

Hospital equipment Equipment available at the beginning of the DST programme was primitive. Dr Herron wrote in Dr Bailey's order book on 15 June 1963: "Matron: could you please obtain a re-breathing bag and face mask for the oxygen cylinder in case resuscitation is necessary after ECT."

It is clear from this request that about a month after the treatment started there was no facility to reinflate a patient's lungs. On 7 July 1963 Dr Herron, who conceded in evidence the hospital's facilities were lacking in the early years, requested a sucker, suggesting an " Ambu" model which was mechanically operated so did not require electrical power. Therefore, at that time there was no facility for removing secretions from a patient's respiratory tract. In due course a re-breathing bag was obtained together with an "Ambu" sucker and two electrical suckers. One of these electrical suckers was kept in the sedation ward. Individual sucker heads were provided for each patient. Matron Smith's evidence was that individual suction equipment should have been provided for every unconscious patient as another patient may go into respiratory distress while the sucker was in use. Professor Douglas Joseph's evidence about the minimal requirements for the treatment of unconscious patients in 1963 is referred to in volume 5. It is plain from his evidence that a great deal of equipment appropriate to what would now be described as an intensive care situation was available in 1963 but was not provided at Chelmsford. One such piece of equipment was a Bird's respirator. This equipment was in the hospital apparently for a limited time "on approval". There is no evidence that it was used, except once. Such equipment would have permitted positive pressure ventilation of a patient. Sister Goedde gave evidence that Dr Gill said "it was too expensive" and "we wouldn't have the experience to use it". Dr Gill rejected a financial motive in returning the respirator. He said "The Bird's machine is complex. We did not continue with it". He believed Dr Zilliacus (who previously practised as an anaesthetist) was privy to the decision to return the machine. Dr Gill's view of the Bird's complexity was weakened by his evidence that, "There were a few patients at Villawood in the nursing home who taught themselves how to use it for emphysema ... I am sure some general nurses could use it". The failure to persist with the machine and to institute a staff training programme for its use shows Dr Gill had a basic misunderstanding of the dangers facing DST patients. 81

Royal Commission

into

Deep Sleep Therapy

Other matters which Professor Joseph regarded as basic requirements for the management of the unconscious patient were: • Monitoring equipment such as electro-cardiograms, • Endotracheal tubes and laryngoscopes, • Appropriate equipment to ventilate the patient, • Suction and oxygen outlets to every bed, • Emergency oxygen cylinders on stand-by, • A nursing ratio of at least one general trained nurse to two patients, and • Medical supervision available at all times. Matron Howard described an electrical sucker which was incorporated into a trolley with an oxygen cylinder and mask. It was customary, for example, for this trolley to be available when ECT was being administered. The hospital kept a tray of equipment specifically for resuscitation but, by late 1976 when Matron Smith started at Chelmsford, it was not usual to keep this tray in the sedation ward. Instead, it was kept in a treatment room behind a locked door. Obviously this was a most unsatisfactory situation firstly, because vital time would be wasted getting it and secondly, because the nurse had to leave the patient in respiratory distress while she got the tray. In the early years, the emergency tray was kept on the trolley which also carried the oxygen bottle and the electrical sucker (see Matron Howard's statement, exhibit 232). When required, oxygen was given to the patient usually by nasal catheter. Over the period 1963 to 1979 different equipment was available at different times. Dr Gardiner, whose attendances at Chelmsford for DST patients was from 1977 to 1979, summarised his memory of the equipment there during those years: "As I remember equipment at CPH included oxygen cylinders, reduction valves, masks—at least two sets—suckers, equipment for anaesthesia—syringes, needles, drugs, laryngoscope, magills tubes, airways of various sizes, forceps, swabs, kidney basins, skin cleansing swabs, ECT machines (Minecta Mark II, Both), stethoscope, sphygmomanometer."

A variety of equipment was tendered as exhibit 176. This included Guedel's airways of various sizes, a laryngoscope and an endotracheal tube. Dr Herron was referred to this equipment and said it was available at Chelmsford. Dr Herron said at the present time intensive care nurses and emergency para-medical personnel could place an endotracheal tube but 82

Volume 1

Chelmsford

in the Chelmsford situation it would have been inserted by a doctor. An Air-Viva bag, which could be used with or without oxygen, came into use at the hospital later. Matron Fawdry referred to the equipment in the following terms: . . each patient had their own tray ... it was kept on an overbed trolley . . . Q. . . . what was on the tray, each patient's individual tray? A. The Guedel's airway, a Y suction catheter which was for sucking aspirate from the pharynx, throat, mouth, toilet equipment which was a little bowl with some glycerine or Borax or hydrogen peroxide or whatever we happened to be using on that particular person and the swabs to do their mouth, artery forceps which was used to attach the swabs to, cotton swabs, cotton wool swabs which were used to do their eyes with and sterile water sachets which we did their eyes with . . . and, of course, their syringe for their IG feeds. Q. During the time the patient was there for example, the syringe, was that sterilised from time to time in between feeds? A. No, because it was only going to the stomach. It's the same as sterilising our knives and forks. Q. The suction catheter, what about that? Was that ever sterilised in between uses? A. No. it was cleaned after use by dipping it in water and cleaning it right through and when they got a bit grotty looking we would just give them a new one. They were disposable, plastic disposable. Q. How long would it take them before they became grotty, a week or -? A. It really depended on the amount of aspirate you were getting from the individual person, but I don't know, I really can't remember how many they would have in a sedation period, but I think they would probably have more than one. Q. The Guedel's airway, what was that used for? A. It was there as an 'in case' really. Sometimes you couldn't get the suction catheter down their mouths because they had clenched teeth or they would fight with you and sometimes we used the Guedel's then because we could put the suction catheter down the Guedel's, still clear their throat, so it was used for that. Sometimes it was used just for people to maintain a clear airway because people tended to obstruct with their tongues anyway just in normal sleeping patterns, deep sleeping patterns; so sometimes it was just kept in situ for people and it was always there for an emergency as well. Q . . . how far down the throat did this airway go? A. Just to the back of the pharynx. It doesn't go into the trachea at all. 83

Royal Commission

into

Deep Sleep Therapy

Q . . . the central trolley, what was the equipment kept there? A. On the bottom of it there was a suction machine. Q. How was that operated? A. By electricity. Q. Just the one? A. Yes, I think there was only one. There were some drawers underneath the top of it and that was where all the laryngoscopes, the endotracheal tubes, I think all that sort of equipment was in one drawer and in the other drawer were the emergency drugs that were required in case of an emergency, like Atropine, Digoxin, Sodibic.

As to the use of oxygen at Chelmsford, she said: . . there were little nasal prongs that we used to use as well for continuous oxygen. The mask, usually a lot of people find that masks are a little bit cumbersome and keep pushing them off, so often the nasal prong was preferable; but yes, either the mask or the nasal prongs for continuous oxygen, but it was always the black mask for resuscitation purposes with the Ambu-bag on it. Q . . . When was the black mask and the bag used? A. Only when someone had stopped breathing or was having some difficulty breathing or was unconscious, like for instance in ECT, the non-sedation psychiatrists they would use that bag and like the patient had been paralysed by the muscle relaxant so they weren't spontaneously breathing and so they used to give them four or five deep puffs with the Ambu-bag through the black mask, then give the ECT and then do that again just occasionally until they breathed up spontaneously."

So far as Chelmsford's medical equipment is concerned, the most significant shortcomings were: • The failure to provide oxygen and suction outlets to every bed, • The failure to provide for continuous cardiac monitoring, and • The failure to provide equipment capable of providing positive pressure ventilation of patients. Matron Fawdry in an interview with 60 Minutes gave this summary of the equipment available: "Q. But this was not an intensive care hospital, this was a psychiatric hospital? A. Yes, that's right. The unit was set up as an intensive care in terms of it had all resuscitation equipment, like you know a 'resus' trolley as they call them in general hospitals and it had everything you needed on that, we had sucker machines, and we had Air-Viva bags and all the sort of resuscitation equipment needed, but we didn't have monitors or respirators or things that are in general hospitals." 84

Volume 1

Chelmsford

Chelmsford records In the 1960s the following records were kept:

• Admission books, • Dr Bailey's exercise books, and • Hospital patient files including nurses' notes, drug sheets showing drugs administered, and charts for temperature, pulse and blood pressure. In the 1970s the hospital used: • Admission registers, • Dr Bailey7s exercise books, • Hospital patient files including identification sheets, history sheets, treatment sheets, drug sheets, charts for temperature, pulse and blood pressure, fluid balance sheets, temporary ward sheets, sometimes pathology or x-ray reports, sometimes other correspondence including documents such as Dr Davies' reports, • Daily report books and • Nurses' message book. There was a drug register as required by the poisons legislation for drugs of addiction throughout the whole period. The admission book of the 1960s and the admission register of the 1970s were similar. The former was an exercise book. The latter, in a printed form specified by the regulations, was in foolscap size and had two entries to a page. Entries in both books required a description of the diagnosis. These were very brief. The 1960s form had a section in it titled "Consent to Dr Bailey's Treatment ..." followed by the patient's signature. It is not stated what this meant, presumably DST with ECT but there is some doubt how much was explained to the patient. There was also a note about the source of payment of fees. Dr Bailey's used his exercise books throughout the 1960s and 1970s. All save a very small number were produced to the Royal Commission by Dr Davies. The remainder have never been located. The contents are in various handwritings, much of it Dr Bailey's. There are also a considerable number of entries by Dr Herron. Various matrons wrote messages in it for Dr Bailey and a few sisters also wrote in it. The book contains Dr Bailey's directions for drug treatment and other treatment including ECT for each individual patient. Sometimes he simply directed routine deep sedation. Sometimes he wrote in what drugs and 85

Royal Commission

into

Deep Sleep Therapy

amounts he wanted the patient to receive. It also notes his comments to the staff on the treatment or problems being encountered. For example, there is a warning about foot drop, there are directions about food, there are directions about equipment. The first book contained a number of pages setting out the DST regime as it was to be practised at Chelmsford in the early 1960s. This was written by Dr Bailey. The ECTs given each day to DST patients are noted and by whom they were given. These were written by nursing staff. Dr Herron's variations of Dr Bailey's treatments and directions about his own appear in the book. There are extensive entries by some matrons, eg, Howard and Robson and a few by others. They are mainly messages for the doctors. Until 1972 this book was the sole written medical authority for the administration of drugs and DST. The hospital file until 1972 was brief. During the early period the nurses' notes were written on white foolscap sheets with an entry for each shift, sometimes only a couple of words, sometimes a few lines. They noted physical condition and usually if ECT was given and by whom. The drug sheets were on white foolscap sheets with three ruled columns usually for capsules, tablets and injections. In the injection column there was a note of each ECT given with its number in the treatment sequence. There was also a note whether a relaxant or anaesthetic was given. If neither was given there was a note, "injection not given". Also written on these was a summary of the extras to be charged to the patient. The charts for temperature pulse and blood pressure were on graph paper with record times of 2am, 10am, 2pm and 10pm. Temperature and pulse were recorded on the graph and the blood pressure was written in. In 1971 Matron Nelson introduced a new and more detailed set of records. In 1979 Matron Moroney revised these and introduced more detailed records. Matron Nelson introduced a treatment sheet which the doctor was required to sign. She had difficulty in getting Dr Bailey to sign them. Two new record books were introduced: a printed form admission register so the form of admission complied with the regulations, and a daily report book. This was known as a "red book" being usually a foolscap bound red plastic cover book, although other colours were also used. This also was required to comply with the regulations to ensure there was each day a report for every patient in the hospital. The sister in charge of each shift entered up the report against each patient's name for the day shift and reports were apparently entered up for significant matters for each 86

Volume 1

Chelmsford

patient during other shifts but not for every patient in those shifts. Arrivals and departures were noted and ECTs were recorded. Generally, the DST patients did not have a report of their condition in this book. They sometimes had a note to record ECT or if there were complications which led to their being taken out of the sedation ward eg. Miss Podio. Sometimes a death of a DST patient was recorded in this book but usually it was recorded in the nurses' notes in the patient file. This was done sometimes by the doctor and sometimes by the sister eg. Dr Herron for Miss Francis. When DST patients were recovering in the general wards their reports were in these books. Part of the reason for the separation seems to be that during the day shift the sister in charge of the general ward worked independently of the sedation ward. Usually for this shift a separate sister was allocated there. The sedation sister then entered up the patient reports in her records. The use of Dr Bailey's book did not alter significantly in the 1970s except that Dr Bailey's writing appears less frequently in line with his reduced attendance at the hospital. The Admission Register of the 1970s no longer had a consent to Dr Bailey's treatment. This was recorded elsewhere. The patient file had at the front an identification sheet. A blank copy appears at the end of this section. This had an important feature. The sheet contained an authorisation for ECT. From October 1973 the form had the authorisation printed out as part of the form. Before that date it had a stamp which was pressed on it in blue ink. The stamp form was: "AUTHORISATION FOR E.C.T. I hereby authorise the doctor in charge to administer a course of Electro Therapy treatment and such anaesthetics as maybe necessary for this. Signed..................................................................................

............................. 197 .... Relationship............... " Mr Hart's form was the stamped style. By 1975 and 1977 when the problems concerning Mr Hart's form arose, the stamped style of form was no longer available. The treatment sheet was also contained in the file. The form of this is also set out at the end of this section. A patient history was written by the admitting sister on the blue nurses' notes. This was usually a page or a little over. The drug charts were in printed form with separate pages for tablets, capsules and injections. Again on the injection sheet the ECTs were noted and whether an injection was given. The nurses' notes were on the blue record forms and were a little more comprehensive than in 87

Royal Commission

into

Deep Sleep Therapy

the 1960s. The pattern indicates the day report routinely was filled in by Sister Shea until she died. This is consistent with the pattern of non-use of the report book. Non-DST patients did not have reports for any shift written in nurses' notes and nurses' notes for these patients were very rare. When patients entered the DST ward their daily reports were kept in their file, not in the daily report books as required under the Private Hospitals Regulations although there were sometimes supplementary notes there also. A matter for concern is that Nurse Beattie routinely wrote out the evening reports. But she was an unqualified nurse. Whatever her experience, and she denied she had any expertise in DST, she should not have been authorised to write the reports. There was a day, evening and night report written up for every DST patient. A summary fluid balance sheet was in a significant number of files but it was missing from most of them. This had one record for each day indicating the amount of millilitres taken per day and the total number of times that day the patient passed urine. The amount was never recorded. These were usually written on a sheet from the nurses' record but sometimes, later on, they were on a printed fluid balance chart. There were more detailed temporary sheets which are described below. On rare occasions when a patient was very ill there was a page for recording hourly temperature. There was however, a routine four hour graph chart with places for entries for temperature, pulse, respiration, bowels, antibiotics and weight. The graph entries made related only to temperature and pulse. Also written on the sheet was blood pressure. Low blood pressure was a problem and there are regular entries in the nurses' notes of beds being blocked. There were also sometimes pathology and x-ray reports where a patient had become ill. There were also sometimes letters and other reports such as those of Dr Evan Davies. These were infrequent. The temporary records only came into possession of the Royal Commission through their preservation in the Carter and Podio inquests. In the former, they were part of the records produced to the coroner by the hospital. In the latter they were produced to the coroner by Dr Bailey and the hospital late in the inquest. They are presumed to be temporary for the reason that no others have been found. These may be what Nurse Borner called temporary. Although photocopies only have been seen, they do not appear to be in pencil as she claimed. 88

Volume 1

Chelmsford

These temporary records are sheets for sedation times/urine output and sheets for temperature, pulse and respiration/fluid intake. The above details of all the patients in the DST ward are on the one sheet. They may be described as ward sheets. The details were transferred to the four hourly TPR graph for each individual patient later as sometimes was the fluid balance. It is not known when the permanent sheet for the fluid balance summary was filled out, nor why. There is no clear pattern although it is usually in the file where a patient has been seriously ill. The first sheet for "sedation times" has each patient in the left column and across the page a note of the drugs, quantities and times. The lower half has the heading "urine output" which is not an accurate description of the contents. Again each patient is in the left column and in the lines across the page there is a note of passing urine, wetting bed or opening bowels with the times. The second sheet has TPR at the top and fluid intake at the bottom. Rather than describe it see the example. A similar form of record to these sheets is the temperature, pulse and respiration book. Only two of these have been located and it is not known for how long they were used. One is for part of 1967 and one is for part of 1968. It is a little uncertain whether these books contain records of every patient at Chelmsford or only every DST patient. They generally contain more than a dozen names which, given the hospital was licensed for 15, suggests it was for all patients. As almost all patients at Chelmsford in the 1960s had DST this is not certain. As some patients have only one entry a day it seems likely that it covers all patients at Chelmsford. The entries in these books are otherwise four hourly and contain temperature, pulse and blood pressure. Curiously they also contain four hourly respiration rates. These are the only records ever located recording such rates. One nurse's message book was located. This was produced by Sister Jackson who quite by chance had kept it over the years. It covers late 1976 to early 1979. It deals with such things as rosters, holidays and repairs to premises. In a very small number of Dr Bailey's exercise books in 1972 and 1973, there are entries at the end for what is believed to be ECT. There are only two or three pages. There are numbers there but I was not able to discover their meaning. The numbers range from 190 to 300 and there is one entry per patient per day. Dr Herron could not assist nor could I ascertain who had written them. They may have been associated with the subconvulsive ECT experiments but this may be speculative. 89

Royal Commission

into

Deep Sleep Therapy

One ECT treatment book, in very fragile condition, was located for the period August 1976 to December 1977. This was in the material produced by Miss Jan Eastgate and PIAC. It contained entries for all ECT patients of both the DST doctors and the other doctors using the hospital. It records the patient, the time of ECT and who gave it. The police had great difficulty in 1982 and again in 1985 obtaining any documents from Chelmsford. They did for a short period have a large amount which they had taken on a warrant. When these were returned to the hospital by order of the court they were stored at Newcastle. It is very surprising the Royal Commission was able to gather together such a large variety of Chelmsford documents and so many Bailey books, nurses' notes and registers. They have been a rich source of information. They are the principal source of the detailed knowledge and understanding of what occurred at Chelmsford over the years. Many months were spent examining these, comparing them and showing them to various witnesses. Quality of nursing records Two nursing experts, Mr Roy Weatherhead and Mr Stanley Alehin (see volume 5) each examined 25 files taken at random from the records of patients admitted to Chelmsford between 1965 and 1979 for the purpose of commenting, among other things, on the standard of nursing reports and chart keeping.

Mr Weatherhead expressed concern about the 1966 reports in that there was an absence of use of fluid balance charts and that a number of potentially confusing abbreviations were used, eg, 8909 as a code for Neulactil. He commented that sleep charts, which he expected to be kept, would have been quite important considering the large amount of sedation being used and the nature of the treatment. These were available in the 1960s and 1970s. He added that in the 1966 reports there was little mention of patients' psychiatric conditions or diagnoses. DST was commenced without a patient's history and often with little information other than the referring doctor's instructions by telephone. He thought nurses were diligent in observing and reporting complications that arose during the course of treatment. He said he had never encountered anywhere the Chelmsford practice in the 1960s of recording the number of times a patient urinated in bed. He considered it was useless. When considering files and notes which were made between 1972 and 1979 when the notes included written nursing histories on admission, there were proper printed observation and fluid balance charts and typed details of the standardised sedation regimes. He said the fluid balance charts were disappointingly used, or misused, to record items to be charged to patients. He noted also that some entries were not signed, especially 90

Volume 1

Chelmsford

consent forms, and patients' signatures were not always witnessed. He expected each doctor who examined a patient or provided services for patients in the 1960s and 1970s would have made a written record of it in the patients' notes. Mr Weatherhead said from 1972 there were adequate nursing histories and good records of nurses' physical observations. When the Commission informed him on 17 October 1989 (exhibit 356) that over 15 years there did not seem to be any consistent record of any treatment of patients by any doctor except an order book in which Dr Bailey and Dr Herron wrote instructions, Mr Weatherhead thought this was "appalling care". He regarded the absence of records and any established means of communication between the two or three doctors who were treating the same patient at Chelmsford as unacceptable. Mr Alehin referred to an almost total lack of psychiatric nursing reporting especially in the 1966 notes and no indication of why patients were admitted or of any improvement during or at the end of treatment. The reporting was totally concerned with the patient's physical condition. He reported the 1976 to 1978 notes had a short admission history but nothing else about the patient's psychiatric condition before or after treatment. Mr Alehin reported: "The impression from the notes is that the nurses were doing routine tasks in a matter-of-fact way. There did not seem to be any flavour of high responsibility life threatening treatment or anything unusual at all. I was struck by the similarity of the nursing notes, which apart from more admission information in the '70s, remained much the same in format and style over the 13 year period."

He continued: "The reports appeared average particularly in the context of the years 1966-79. One glaring factor was a seeming disinterest in the patients' mental state, either before or after treatment. Here was a patient admitted for this profound (my word) treatment and who had sometimes gone through a very difficult time and not a word written about the reasons for him being there or results of that treatment. I found this constantly worrying. As far as physical care was covered, such things as thick foul smelling mucus, vomiting blood stained fluid from the stomach, pains all over, high temperatures, rigidity and cyanosed extremities were treated in routine style, ie, brought to the attention of a doctor and treated accordingly to instruction. Things such as these were expected and dealt with seemingly efficiently." 91

Royal Commission

into

Deep Sleep Therapy

Professor Douglas Joseph, an intensive care expert, who regarded records as very important, said that in 1963 he would have insisted on records being kept of all observations including temperature, blood pressure, respiratory rate and fluid balance charts. He queried how nurses could estimate urinary output when patients urinated in bed as happened at Chelmsford. He reported on 26 July 1989 (exhibit 342) that there should have been a detailed record of drug intake. He said there should also have been detailed chart keeping of the state of a patient's consciousness and reflexes in the 1960s and 1970s. In the course of a general submission that nurses' records were adequate for the relevant time, counsel for Dr Gill contended there was no evidence that either the treating doctors or the nurses believed at the time this treatment warranted any further, extra or different type of note from the nursing staff. There is no evidence that the hospital's management, its nursing staff or the psychiatrists who attended patients for DST ever discussed or applied their minds to the need for any special records or different type of notes for patients undergoing DST treatments. Generally nurses working in the DST ward at Chelmsford seem to have made notations in the nurses' records in the manner in which they had been instructed while undergoing training at other hospitals. The submissions, which captured Dr Gill's attitude towards a doctor's role generally, the management of Chelmsford and the possession of patients' records, continued: "It is the treating doctor who must ensure that he is receiving sufficient, useful and meaningful information and reports on the observations to enable him to continue to be able to diagnose properly and prescribe treatment."

Without debating the validity or otherwise of this submission the theory espoused was not practised at Chelmsford. In fact it was just the opposite as is mentioned elsewhere in this report. The three psychiatrists who attended and treated patients in the DST wards from 1963 to 1979 very rarely looked at nurses' notes and records for any purpose let alone to use them for diagnosis or prescription or to check the quality and value of the information and the reports. Dr Gill further submitted: "An efficient working arrangement amongst one group can be confusing to others. Often outsiders do not understand why certain steps are taken or procedures followed in that unique environment where those procedures have developed gradually over the years 92

Volume 1

Chelmsford

and which are or were working in an established and apparently efficient environment."

This submission erroneously assumed the working arrangements at Chelmsford between 1963 and 1979 were efficient. It seems intended to meet and rebut the criticisms of the experts who examined patients' records including nurses' notes and also to remind and warn the Commission not only of the purpose of hospital records but of its difficulty in understanding what happened at Chelmsford over the years. It shows regrettable stupidity on the part of Dr Gill that he suggests the records were not intended to be understood by other professionals. If this were so then as the doctor de facto in charge of the hospital I would have expected him to intervene and require adequate records to be kept. When considering the quality of the nursing records regard must be had to the condition of the patients being treated. In the light of their treatment and condition in the sedation ward and the risks involved, I am satisfied that the nursing records were not adequate. Further, in some instances the records were either false (Coralie Walker) or improperly altered (Barry Hart). The absence of records in respect of very many patients who died at Chelmsford, or following treatment there, provided too much of a pattern to be classed as "missing" due to mishandling. The absence of such records deprived the Commission of undertaking a critical analysis of how such vital records were kept. Further, methods of recording patients' admission forms which were often only completed sporadically regarding clinical particulars, the treatment sheets and the prescribing of medication were inadequate. General statements in nurses' notes such as "for deep sedation", "for routine sedation", "deeper" and "keep deeply sedated over week-end" gave an unintelligible discretion in the administration of medication to different nurses with different skills. This was inadequate recording in the circumstances. Nurses' notes rarely recorded the depth of sleep. Any doctors' entries available in the records were mainly directed towards treatment and medication and provided no indication of a patient's condition. Further, the use of treatment sheets (from 1971) which were generally prepared in advance in a standard form and pre-signed by Dr Bailey or Dr Herron, was reprehensible and it was not a proper and safe way of recording the medication which nurses were required to administer to each patient for DST. 93

Royal Commission

into

Deep Sleep Therapy

The DST patients' records which reflected the above defects were not as detailed and informative as they could have been. The records themselves were capable of containing much more useful material and information and other charts were also then available, eg, neurological observation charts (exhibit 39) in use at Royal North Shore Hospital in July 1966 could have been beneficial in recording DST patients' neurological signs. Employment records The Commission's inquiries were greatly assisted by the availability of the staff time sheets from 1972 and salary records from 1974. This material was particularly useful in locating former staff members. It also assisted greatly in establishing which staff members were on duty at critical times—for example, when deaths occurred. The employment records were also used to test evidence. For example, it was possible to demonstrate Mrs Sansom was on duty when the original Hart hospital records were forwarded to his then solicitor, Mr Dodd.

As I indicated earlier, the registered particulars kept by Health about the appointment of chief nurses were often inaccurate. The records of employment enabled the dates of commencement and termination to be established with precision. The fact that Matron Moroney began her employment not long before the catastrophe which befell Coralie Walker is but one example of the great utility of the employment records. Ownership and licensing John Howard and Elva Dawson Howard bought Chelmsford on 20 August 1962. It was licensed under the Private Hospitals Act on 8 January 1963 as a medical and post-operative hospital of five wards containing 15 beds and one cot. Mrs Howard was the first licensee and she remained so until 12 January 1966. Matron Howard was also the first chief nurse.

Tabulated below are particulars of all changes in registration from 1963 to 1981. Date of change in registered particulars 8.1.1963

Nature of change (Asterisk denotes deceased or unable to be located) Interim licence issued to Mrs Howard for medical and post-operative private hospital—5 wards of 15 beds and 1 cot.

13.2.1963

Elva Howard is first chief nurse. Full licence issued.

10.4.1963

Annette May Foley* licensed as chief nurse.

13.11.1963

Elva Howard licensed as chief nurse.

11.11.1964

Mary Beck* licensed as chief nurse.

9.12.1964

Beverley Edith Edwards licensed as chief nurse. 94

Volume 1

Chelmsford

Date of change in registered particulars

Nature of change (Asterisk denotes deceased or unable to be located)

10.3.1965

Jennifer Ruth Field* licensed as chief nurse.

12.1.1966

Allen Edward Parkes* becomes licensee. Wilma Dawn Lowe licensed as chief nurse. Licensed beds reduced to 14.

10.8.1966

Elaine Tarplee* licensed as chief nurse.

14.12.1966

Barbara Gai Connell* licensed as chief nurse.

11.10.1967

Robert Maurice Hackney* becomes licensee. Elva Howard licensed as chief nurse.

11.9.1968

Licensed beds increased to 15.

12.2.1969

Anne Daczko* licensed as chief nurse.

14.5.1969

Leonard Sydney Richardson* becomes licensee. Elva Howard licensed as chief nurse. Judith Norma Fox* licensed as assistant chief nurse.

10.2.1971

Licensed wards increased to to 14. Licensed beds increased to 20.

14.4.1971

Licensed beds increased to 40.

12.5.1971

Margaret Mary Marzol licensed as assistant chief nurse.

8.9.1971

Margaret Rose Nelson licensed as chief nurse.

15.11.1972

Joseph Silbermann becomes licensee. Naomi Margaret Reis licensed as chief nurse.

13.12.1972

Sandra Stephanie Robson licensed as chief nurse.

20.8.1975 20.10.1976 22.6.1977 8.2.1979

Hospital re-designated as medical, post-operative and psychiatric. Julie Smith licensed as chief nurse. Marcia Fawdry licensed as chief nurse. Suzanne Moroney licensed as chief nurse.

30.3.1981

Tracey Alexandra Brown licensed as chief nurse.

12.5.1981

Change of name to "Pennant Hills Community Hospital".

Messrs Parkes, Hackney and Richardson, the owners before Fairfield Heights Community Hospital Pty Ltd are dead. Fairfield Heights Community Hospital Pty Ltd bought Chelmsford on 27 July 1972. This company was incorporated on 14 February 1966 under the name United Meat Exporters Pty Ltd. At the time of acquisition, the company was already conducting a private surgical hospital at Fairfield. Diagram 1 sets out particulars of the directors and shareholding as at July 1972. Dr Gerald Morgan through his holding company, relinquished his interest in the hospital in 1974 when Columbia Holdings Pty Ltd and John E. Gill Holdings Pty Ltd bought the shares. The respective shareholdings were then two thirds and one third. Diagram 2 sets out the corporate structure. 95

Royal Commission

into

Deep Sleep Therapy

July 1972—ownership of Chelmsford Fairfield Heights Community Hospital Pty Ltd Operating as Villawood Nursing Home

Fairfield Heights Community Hospital

Chelmsford Private Hospital

Ownership 1 l

1

2

4

Columbia Holdings Pty Ltd

Gerald Morgan Holdings Pty Ltd

Directors: Alexander Dan Tibor Balog Michael Hershon Joseph Silbermann

Shareholders Janette Dan Theodor Silbermann Progress & Securities Arthur Silbermann Invest Balfour Constructions Hershon Investment Progress & Properties

14

John E. Gill Holdings Pty Ltd

Directors: Gerald John Morgan Susan Elizabeth Morgan

Directors: J. E. Gill V. J. Gill

Shareholders: Gerald John Morgan Linley Francis Morgan

Shareholders: J. E. Gill V. J. Gill

Holding 5 5 5 30 30 25 100 200

Diagram 1 96

Volume 1

Chelmsford

September 1974—ownership of Chelmsford Fairfield Heights Community Hospital Pty Ltd Operating as Villawood Nursing Home

Fairfield Heights Community Hospital

Chelmsford Private Hospital

Ownership

11

2

j 3

3

Columbia Holdings Pty Ltd

John E. Gill Holdings Pty Ltd

Directors: Alexander Dan Tibor Balog Michael Hershon Joseph Silbermann

Shareholders Janette Dan Theodor Silbermann Progress & Securities Arthur Silbermann Invest Balfour Constructions Hershon Investment Progress & Properties

Directors: J. E. Gill V. J. Gill Shareholders: J. E. Gill V. J. Gill

Holding 5 5 5 30 30 25 100 200

Diagram 2 97

Royal Commission

into

Deep Sleep Therapy

Between February 1976 and February 1978 Somers Pty Ltd conducted the business of Chelmsford. This company also carried on the businesses of Fairfield Heights Community Hospital and the Villawood Nursing Home. Diagram 3 sets out the ownership of Somers Pty Ltd.

February 1976 to February 1978 Somers Pty Ltd 1 Operating as Villawood Nursing Home

Fairfield Heights Community Hospital

Ownership

Diagram 3

98

Chelmsford Private Hospital

Chelmsford

Volume 1

The trading results of Somers Pty Limited for the year ended 30 June 1977 and the seven months to 15 February 1978 were: Gross income Net operating profit

30.6.77 $2,194,340 $592,537

15.2.78 $1,547,907 $513,520

These results included both the hospitals and the nursing home and no information was available which would isolate the Chelmsford trading results other than an estimate by Dr Gill that Chelmsford's contribution to profit would be slightly less than a third. I note that from the net profit of more than $1.1 million for the above periods, tax paid was $43,040. The evidence of accountant Mr Richard Arnold was that this was the result of using a Curran-type tax minimisation scheme. He said Somers Pty Ltd was eventually "dissolved". This brought to an end Australian Taxation Office action for about $500,000. On 22 March 1979 Fairfield Heights Community Hospital Pty Ltd sold Chelmsford, together with the other properties, to Community Hospital (Fairfield) Pty Ltd. The latter company was trustee of the real estate for one unit trust and trustee of the business for another. Subsequently, it is probable that Fairfield Heights Community Hospital Pty Ltd, Somers Pty Ltd and John E. Gill Holdings Pty Ltd were stripped of their assets. Diagram 4 sets out the ownership after March 1979. Finally, the real estate, licence and business were sold on 11 May 1988 to Bajool Pty Ltd. Joseph Silbermann Before joining Dr John Gill and Dr Gerald Morgan in the business venture which led to the opening of a private hospital at Fairfield, Joseph Silbermann was the licensee of the Parkdale Nursing Home at Waverley and the Strathdale Nursing Home at Strathfield. He also had an interest in these nursing homes through shares in Columbia Holdings Pty Ltd. As to the parties interested in the various corporate structures for the years 1972 to 1979 see earlier.

Fairfield Heights Community Hospital Pty Ltd, which operated the private hospital at Fairfield, bought the real estate and business of Chelmsford in July 1972. Mr Silbermann became its licensee and remained so until the real estate and licence were sold on 11 May 1988. At all relevant times he was also the licensee of the hospital at Fairfield and another nursing home at Villawood. Mr Silbermann was a businessman with no qualifications in medicine or nursing. He lived at Vaucluse. The evidence was that his visits to 99

Royal Commission

into

Deep Sleep Therapy

February 1979 to May 1988 Ownership of Chelmsford

Chelmsford (real estate) 2a The Crescent Pennant Hills

Chelmsford Private Hospital (business)

Fairfield Heights Community Hospital P/L sold real estate and business

Community Hospital (Fairfield) Pty Ltd trustee company

Unit trust real estate 2 units Columbia Holdings P/L

Unit trust (business) 1 unit

2 units

John E. Gill Operations P/L

Columbia Holdings P/L

Directors Alexander Dan Joseph Silbermann John Gill Shareholders Columbia Nursing Home Pty Ltd 4 shares John E. Gill Operations Pty Ltd 3 shares

Diagram 4 100

1 unit John E. Gill Operations P/L

Chelmsford

Volume 1

Chelmsford were infrequent and brief, never exceeding an hour. Between 1972 and 1979 he only visited the DST ward about six times and then only for a few minutes. He noticed nothing unusual about the patients in this ward, for example, that they had naso-gastric tubes in place. Apart from the infrequency of his visits to Chelmsford, a measure of his role as licensee and his general interest is demonstrated by his lack of knowledge of some of the key persons either employed at Chelmsford or attending patients there. He had never met Sister Betty Shea who was regarded as the central figure in the administration of DST treatment in the 1970s. He did not meet Dr Bailey until 1977 and then only at an inquest. He did not meet Dr Ian Gardiner until the sittings of the Royal Commission. Further, he did not know Julie Smith, who had been matron. Mr Silbermann's main practical function, apart from renewing the Chelmsford licence each December, was to act on the hospital's behalf in its formal dealings with Health. Whenever Health inspected the hospital premises, it usually sent him a letter listing any matters requiring attention. On receipt of these letters he attended Chelmsford and discussed relevant matters, presumably with the chief nurse and Dr Gill, and he then replied to Health. At times he also entered into general correspondence with Health. For example he made application on 7 December 1973 and 6 June 1975 for an extension of the licence to include a psychiatric classification (see exhibit 258). The clearest description by Mr Silbermann of his approach to his duties as licensee was given in the second Audrey Francis inquest where he said: "I delegated nearly all my duties to Dr Gill who lives nearby in Wahroonga, I live in Vaucluse as I stated and Dr Gill had the medical knowledge and expertise. Doctor Gill signs all wage cheques as he stated, and paid all bills. I maybe four times, five times a year, I go to Chelmsford and I sign the annual licence fee for my, to be the licensee of that hospital."

A licence was necessary under the Private Hospitals Act 1908 for the carrying on, use or conduct of a private hospital (s6, s8). The Act and Regulations cast obligations on a licensee who was required to satisfy Health about the licensee's character and fitness. A licence was also required to specify the class or classes of hospital for which it was issued and the maximum number of patients lodged at any one time in each ward. Under the Act the licensee was required to notify Health of any change in the class or classes of the hospital and also to pay an annual licence fee to the department. Mr Silbermann was present at a departmental inspection of the hospital premises on 6 June 1975. It is plain that he left the day-to-day administration 101

Royal Commission

into

Deep Sleep Therapy

of the hospital in the hands of others, namely, the chief nurse and Dr Gill. In the early stages of the inquiry Dr Gill endeavoured to resist the proposition that he was the de facto manager or chief executive officer of the hospital. The evidence, however, was wholly against him. As early as 27 September 1972 Dr Gill assumed the responsibility of giving written notice of dismissal to Matron Nelson. In early 1977 Mr Silbermann signed a form for the appointment of Sister Fawdry as chief nurse on Dr Gill's suggestion. Her employment was later terminated by Dr Gill. As late as 12 October 1979, in a letter to the Commonwealth Director of Health, Dr Gill described himself as "Proprietor" of the hospital. Under the part of the Act headed "Management of private hospitals and nursing homes", the licensee of a private hospital was guilty of an offence unless there was a person who carried out the duties of chief nurse and who was reponsible for the conduct of the hospital and that person was a registered nurse holding the prescribed qualifications. There was an exculpatory provision available to a licensee where the person who carried out the duties of chief nurse of the hospital did not hold the requisite qualification if a registered nurse with those qualifications was carrying out the duties of assistant chief nurse (s 10(3)). There was also an obligation on the licensee to notify Health forthwith in writing when a person began to carry out the duties of chief nurse or assistant chief nurse (sl0(5)). Section 10A of the Act, which was in force before to Mr Silbermann was granted the licence of Chelmsford, provided that the licensee of a private hospital should conduct and manage the hospital, or cause the private hospital to be conducted and managed, in an efficient manner. The same section also provided that the licensee of a private hospital should ensure that a registered nurse was on duty in the hospital at all times (sl0A(2)). The licensee was required to report to Health in writing any damage to the premises through fire (slOA(4)). The licensee of a private hospital was also guilty of an offence if he failed to comply with a notice in writing from Health requiring him to make repairs, alterations, additions or improvements to the hospital (sl4A). Further, a licensee who used a private hospital during the currency of its licence for any purpose other than that for which it was licensed, was guilty of an offence (sl5). The Act empowered Health or the Minister to inquire into and report on the management of a private hospital and to revoke its licence if it thought fit (sl6). Health was also empowered to revoke a private hospital licence if, among other things, in the opinion of Health the premises of the private hospital were unsanitary, insufficiently equipped or it was managed or conducted in such a way that revocation of the licence was necessary in the public interest (s!6A(l)(d)). 102

Volume 1

Chelmsford

As licensee Mr Silbermann was under a personal obligation to conduct and manage Chelmsford in an efficient manner or to arrange for it to be so conducted and managed. This meant that, although he could delegate within the right or permission conferred by the phrase "cause to be" run efficiently in slOA, if it was so delegated he was the person liable for its breach under the section. Mr Silbermann agreed that he had left the conduct and management of Chelmsford to some degree to Dr Gill, who saved him a great deal of involvement there, and he accepted that as licensee he was bound to see that the hospital was run efficiently and in the public interest. He accepted these concepts as including matters of life and death. Mr Silbermann stated he relied totally on the judgment of both Commonwealth and State Health Departments to alert him to anything which was wrong there. He also accepted that, as licensee, he had an overriding interest in conducting Chelmsford in the public interest. He was also aware that mishaps could occur in the hospital which would not be known to him unless he checked on what was happening. While Mr Silbermann could engage the services and assistance of others to help him to fulfil his obligations under the Act, the statutory duty remained in him. Hence, even though Mr Silbermann allowed Dr Gill, who had a financial interest in Chelmsford, to take over many aspects of its conduct and management over several years he, as licensee, remained responsible to carry out his statutory obligations. If this were not so, a licensee could delegate his statutory responsibility to different persons not known to Health and indeed to persons it would not have approved as being fit to be granted a licence. The statutory provisions as to the requisite qualifications for chief nurse at Chelmsford were not always adhered to. On 30 July 1973, following an inspection of the hospital. Health noted that five members of the nursing staff including the chief nurse. Matron Robson, were only psychiatric trained. Even though Mr Silbermann's attention was drawn to r6(l) which required the chief nurse to be general trained. Matron Robson continued as chief nurse. No action was taken against the licensee. Following another inspection by Health on 6 June 1975 (exhibit 258) Mrs Robson was described as "Administrator" while Mr Kai Meng (Mark) was described as chief nurse. His evidence was that he occasionally acted as relief matron while Mrs Robson was on holidays. There was no evidence that he was ever appointed chief nurse. Mrs Robson was also described as "Administrator" in a report by Health following an inspection on 21 May 1976 (exhibit 258). This report also included under the heading "Other Comments": "The approved chief nurse Mr M. Kai Meng (sic) has left and no one has been appointed as yet. Form 7 is enclosed for approval of the new chief nurse." (Exhibit 258) 103

Royal Commission

into

Deep Sleep Therapy

Miss Fawdry who was not general trained and therefore not qualified for appointment as chief nurse under r6 was approved as chief nurse by Health on 22 June 1977 "subject to a continuing effort to obtain a general trained nurse and subject to all patients being psychiatric" (exhibit 258). Reference has been made to Mr Silbermann's reliance on Health notices following inspection of the hospital. With few exceptions these notices gave attention only to physical matters, for example, painting, cleaning, etc. One substantial exception was a communication from Health dated 30 July 1973 which notified that there were seven patients in ward 17 which was only licensed for six patients. Mr Silbermann was directed to remove one bed. At that time ward 17 was used for DST patients. It is plain from these events that the ward was inspected by Health officers. Under the Private Hospitals Act (sl6A(l)(d)) Health was empowered to revoke a licence where the premises of the hospital were unsanitary, insufficiently equipped or it was managed or conducted in such a way a revocation of licence was necessary in the public interest. Under this subsection it was necessary for the hospital and management to be at a certain standard. This should have ensured that Mr Silbermann visited the premises regularly and made himself familiar with the state of the hospital and how it was being managed and conducted by the chief nurse and staff. Other provisions, for example, rl5 and rl9 reinforce the need for the licensee to visit the hospital premises and to inform himself of what was happening there. By only visiting Chelmsford infrequently and not keeping in touch with the chief nurse and staff Mr Silbermann placed himself in a position where he was largely unaware of the conditions of the premises and its services, the qualifications of nurses on duty and whether the hospital was being managed and conducted for him in accordance with his statutory responsibilities. By leaving these matters to Dr Gill he had left himself without this knowledge. If he had regularly attended Chelmsford to satisfy himself about the use and conduct of the hospital, especially after its psychiatric classification, he could have established at an early stage how unusually some patients were being treated. One would expect him to react to the sight of six comparatively young unconscious patients with Ryles tubes in place. This scene was quite foreign to what he would have encountered in the other private hospital and the nursing homes of which he was licensee. It should have prompted inquiry on his part. Further, if he had inspected the register of patients, Form 12 between 1972 and 1979 and Form 12A after 1977 under the Private Hospitals Act together with the requirement to make 104

Volume 1

Chelmsford

morbidity returns of patients being discharged, transferred to another hospital or dying (r26(2)) he would have gained patient information, especially of deaths and transfers to other hospitals. While Mr Silbermann must bear a measure of criticism for the manner in which Chelmsford was managed and conducted when he was licensee, especially between 1972 and 1979, the limited role adopted by Health in supervising and inspecting the hospital and allowing DST to be practised there cannot be passed over without adverse reference or challenge. Although there was evidence from Dr Hing that Health had power to satisfy itself that the quality of patient care was adequate. Health's reports manifest an interest only in physical matters relating to the hospital's premises and equipment. (See also Term 1(c), volume 8 regarding Health's role at Chelmsford.) I accept that Health's role during the relevant period could have misled Mr Silbermann and staff into thinking Chelmsford was being conducted in a satisfactory manner. In reviewing Mr Silbermann's conduct as licensee of Chelmsford between 1972 and 1979 it is apparent he played no more than a nominal role eg, paying the licence fee, being the person to whom notices under the Private Hospitals Act could be given and the conduit to the board of directors of the company carrying on the business. On looking critically in 1990 and with the benefit of hindsight at the legislation regarding the licensing of private hospitals over the past 30 years, it is extraordinary that a lay person with no medical or nursing knowledge or any special qualification or training relevant to running a private hospital such as Chelmsford, should be licensed to conduct and manage two private hospitals and three nursing homes in the context where these were a relatively small part of an overall business with diverse property, building and other interests. Mollie Patricia Sansom Mollie Patricia Sansom was employed at Chelmsford as secretary/receptionist from February 1970 to about May 1978.

the

Her work station was near the front door of the premises. She attended to patients' admissions, obtaining formal particulars and preparing drug charts and daily nursing note forms in order to make up a file. From 1971 she prepared an identification sheet containing formal particulars and space for a diagnosis. There was also a rubber stamp dealing with consent to ECT. A printed ECT consent replaced this stamp in late 1973. It was part of Mrs Sansom's function to prepare the hospital's patient accounts. For this purpose she perused the patients' files so she would have been aware of discharge and transfer details and particulars about deaths in 105

Royal Commission

into

Deep Sleep Therapy

the hospital. She may not have been directly informed if patients had died elsewhere after discharge or transfer. For admissions during normal business hours it was part of Mrs Sansom's function to obtain a signature on the consent for ECT. This was not required "if the patient was upset and did not want to sign it. The matron would look after that and settle them down ..." she said in evidence. She professed no knowledge that pre-signed DST treatment sheets were used although this practice was in existence for about seven years during her employment. Generally Mrs Sansom typed up a batch of 15 or 20 DST regime treatment sheets which were then kept adjacent to her desk and signed by Dr Bailey (or Dr Herron) when the doctor was next at the hospital. They remained in the same place until Mrs Sansom or a staff member used them for a patient's DST admission when the incoming patient's name was added to the sheet. Mrs Sansom knew of the practice and her denials are untrue. It was part of Mrs Sansom's responsibility to carry out any necessary typing on the only available typewriter at the hospital. She was not aware of any other person likely to carry out this function. When typing batches of standard drug regimes from time to time Mrs Sansom made errors. For example, Miriam Podio's treatment sheet did not refer to Sodium Amytal. In spite of this, she was given a number of injections of this drug. Obviously some nursing staff did not study the standard treatment sheet. Having established that there was such a sheet in the patient's file, the staff simply proceeded to administer the medication which they knew or believed was set out in the sheet. Mrs Sansom recalled that there were only one or two private rooms in the hospital and that Mr Arnold St Clair went into room 13 on admission. This memory for detail is inconsistent with her otherwise almost global lack of recollection. Mrs Sansom believed there were about three deaths from DST during her eight years at Chelmsford. She expressed surprise to learn that there were 13 deaths caused by the treatment, three of which occurred at other hospitals although she believed that "maybe deep sedation was a little bit dicey". She gained this impression from discussions with the nursing staff who were not happy working in the DST ward. She said, "I think if you are going to be in hospital flat on your back for a fortnight you need to be pretty strong and healthy". 106

Chelmsford

Volume 1

Evidence Mrs Sansom gave later about visiting the DST ward made it clear that this was her impression of the way the patients were nursed, namely, on their backs with nasogastric tubes in place. In view of the incidence of secretions and aspiration, the patients should not have been permitted to remain in this position. Her impression of discharged DST patients was that "they would seem brighter and they would seem better than the person who came to be admitted". I do not attach any significance to this answer. In view of the enormous risks involved in the treatment, a carefully conducted programme of follow-up assessment would be required before drawing any conclusion as to whether DST was beneficial or not. The DST practitioners' records give no indication of any attempt to assess the psychological impact of the treatment on the patients. Mrs Sansom gave some evidence as to the staff change-over procedures. The day shift came on at 7am. She began duty at 9am and so had knowledge only of the 3pm nursing change-over. The practice was for the afternoon shift nurses to come on duty half an hour earlier in order to exchange information with the day shift staff. This process took place in the matron's office. Her recollection of Sister Shea was that she worked the day shift in the DST ward from Monday to Friday. She described her as "pretty strict and she would want things done a certain way". As to Matron Fawdry, she recalled, "Marcia had major problems with her marriage. It was really fiery. She was most unhappy ..." She also remembered going with Dr Gill to see Matron Fawdry one morning when she did not come on duty, but she did not recall she and Dr Gill taking her to lunch. She gave no evidence as to Matron Fawdry being affected by liquor. The cover-up The critical part of Mrs Sansom's evidence related to the circumstances surrounding the mutilation of Mr Hart's identification sheet in April 1975. The blank ECT consent section was cut off. Photocopying in March 1977 was designed to conceal this or to conceal the fact that Mr Hart had not signed the consent for ECT.

Mrs Sansom recalled that she filled out the identification form but she had no memory of whether the sheet contained an ECT authorisation stamp. When she conferred with Mr T.E.F. Hughes QC, counsel for Dr Herron, about Mr Hart's civil case in 1980, the identification sheet she was shown did not contain an authorisation form for ECT. 107

Royal Commission

into

Deep Sleep Therapy

Mrs Sansom was asked: "So you do not know anything about him (Mr Hart) suing the hospital?"

She answered: "Only what I have read in the papers."

This answer I find to be deliberately untruthful. Mr Hart's statement of claim in the District Court was served in January 1977 and Mrs Sansom played an active role in recovering the original hospital notes from Mr Hart's solicitor, Mr Ian Dodd, in March 1977. Later she spoke to a Mr Delaney of the Government Insurance Office and sent him a copy of the hospital records and day book extracts by letter dated 18 March 1977. The day book copy entries had been typed out and she was the only typist routinely at the hospital. She dealt with all mail. Matron Fawdry's evidence of the conversation between Dr Herron, Dr Gill, Mrs Sansom and herself about whether a form could be photocopied over the bottom of Mr Hart's identification sheet, was read to Mrs Sansom. Her answer was, "I do not remember that conversation". Later she said, "I do not know". It was said again, "I put it to you there was a conversation?", she answered, "No, I disagree". Later again she said, "I really cannot remember". She sought to explain her lack of recollection by the lapse of time and by the statement, "A lot has happened in my life after Chelmsford, and it has not been (in) my circle of thought all the time". In answer to a question: "Was there ever any conversation at the hospital at which you were present between staff and possibly doctors in which the topic or the fact that Mr Hart had not consented to ECT was discussed?"

She replied: "No, I was the receptionist and I wasn't really privy to their conversations. I mean the girls and I used to talk at morning tea."

Her attention was drawn later to an unsigned statement made to the police (part exhibit 185) where she was recorded as saying: "I do not recollect him refusing to sign the form but I do recall a discussion at the hospital with some nurses subsequently, whose names I do not remember and who said that Hart had refused to consent to ECT." 108

Volume 1

Chelmsford

She said, "Possibly I could have said that". She was asked whether she had heard any discussion about the document being tampered with at any time. She said, "No, I didn't hear anything about it". Later she said, "We talked about the document maybe not being signed or he didn't sign for his treatment". This is but another example of a complete about face in Mrs Sansom's testimony. As a document from the Attorney General's department said of her: "Mollie has every detail about the Bailey-Hamilton love affair in her memory and is hard to get information out of. She is very secretive and can convince you she knows nothing when later it is found she knows it all."

Mrs Sansom was a most reluctant witness. She was prepared to change her evidence when faced with previous inconsistencies. It is obvious that the Hart matter would have been the subject of intense discussion among the staff particularly between when the District Court statement of claim was served in January 1977 and when she sent copies of the hospital records to the GIO on 18 March 1977. There can be no doubt that Mr Hart's refusal of ECT was discussed. The insurance company's request for the records and the condition of the identification sheet must have created panic. Mrs Sansom's role in any discussion was obviously central. It was part of Mrs Sansom's function to open the incoming mail but, when pressed about Mr Dodd's letters of 7 March and 4 April 1975 requesting Mr Hart's hospital records she said, "I might not have been there. I have a family. I may have been sick. My children may have been sick. I may not have opened it". She was also asked, "Were you sick whilst at the hospital?" and answered, "Possibly". Later she agreed that it was rare for her to take days off. Mrs Sansom's wages records for 1975 show she worked 40 hours a week in March and April 1975. These answers indicate Mrs Sansom's reluctance to tell the truth. She tried to suggest Dr Gill or the matron may have opened incoming correspondence. It is extremely probable that Mr Dodd's requests came to Mrs Sansom's attention and that she sent the original Hart records together with the mutilated identification sheet to him in April 1975. Mrs Sansom said that she would not have sent the records out without the authority of the matron or Dr Gill. 109

Royal Commission

into

Deep Sleep Therapy

In a series of answers on the subject of phoning Mr Dodd at the beginning of March 1977 to have the records returned, Mrs Sansom said: "I do not remember ringing him up to ask for the documents back." "I can tell you right now I did not ring." "I am saying I do deny it because I cannot remember it."

She then positively denied making the call. These answers demonstrate that her evidence on critical issues is completely unreliable. She swore that she had never seen Mr Hart's identification sheet with the x-ray report photocopied over the bottom. This answer cannot possibly stand as it was she who sent the document in that form to the GIO on 18 March 1977. They were sent with the letter signed by her. Later she said,"Yes, I obviously have put them in an envelope and sent them out". Mrs Sansom agreed that when Mr Dodd returned the records it was obvious the bottom had been cut off the identification sheet. She endeavoured to retreat from this later by saying, "I mean, I may not have opened the mail when it came back". Apparently, appreciating that her credibility was at a low ebb, she said, "I mean, obviously my memory is very faulty," and later, "I probably did open it, but I can't remember it". Matron Robson suggested some underlying pathology to explain her almost global memory impairment. Mrs Sansom has not pointed to any basis for her claimed lack of memory. I find that she has been consistently untruthful in her evidence. Mrs Sansom professed in evidence that she could not really tell this Royal Commission anything which would be of assistance. This response typified the extent of her co-operation with the Commission. Her answer would have been more truthful if she had said she would not assist the Commission. Her evidence was completely unreliable and, to a large extent, untruthful. She was also quite indifferent to the allegations made against her. She nonchalantly rejected suggestions she might obtain legal advice or make a final submission to the Commission. I am also satisfied that she knows a great deal more about the events at Chelmsford from 1970 to 1978 than she told the Commission. I am also satisfied that: She sent Mr Hart's records to Mr Dodd probably on Dr Gill's instructions in April 1975, knowing of the mutilated identification sheet. 110

Volume 1

Chelmsford

She was party to the decision in March 1977 to photocopy the x-ray report over the bottom of Mr Hart's mutilated identification sheet, and She sent the photocopied documents to the Government Insurance Office on 18 March 1977 knowing of their condition. See this volume about possible further proceedings and volume 6 about the alteration of Mr Hart's form. Matrons On many occasions the dates appearing in the licensing records do not correspond with the actual dates the matrons began or ended their employment. For example, contrary to the registration particulars Matron Fawdry left Chelmsford in mid-1978, when she was replaced by Genevieve Duffy.

In August 1975, Chelmsford was re-classified as medical, post-operative and psychiatric. Prior to this the hospital had been licensed as medical and post-operative. Section 15 of the Private Hospitals Act provided that it was an offence for a private hospital during the currency of its licence to be used for any other purpose than that for which it was licensed. Regulation 6, required the chief nurse to be general trained. This requirement was not affected by the August 1975 classification. Of the longer serving chief nurses. Matrons Howard, Nelson, Smith and Moroney were general trained, while Matrons Robson and Fawdry were only psychiatric trained. Plainly while DST was being undertaken a general certificate was not only a legal requirement but an essential qualification for the senior member of nursing staff in charge of managing unconscious patients. Health did not object to Matron Robson's application for registration which was lodged at a time when the hospital was still classified as medical and post-operative. Miss Fawdry became matron in January 1977 when DST was still being administered. Genevieve Duffy, who became matron after Miss Fawdry in July 1978 was not general trained. Health refused her registration application as chief nurse. This refusal followed discussion of the matter between Matron Duffy, Dr Hing and other Health officers on 30 October 1978. Nine people died because of DST during Matron Robson's term and two people died during Matron Fawdry s term (see volume 4). There is a strong inference that a chief nurse more experienced in the management of ill

Royal Commission

into

Deep Sleep Therapy

medical conditions could have reduced this toll either by personal intervention or by staff instruction. Elva Dawson Howard Mrs Elva Dawson Howard was the first licensee and registered chief nurse of Chelmsford. At the time of the Royal Commission hearings she was a resident of Coffs Harbour. Mrs Howard provided the Commission with a medical report by a physician which suggested giving evidence could put her cardiac state at risk. So she was interviewed by Commission staff at Coffs Harbour twice. These interviews, comprising 150 pages, became exhibit 232. Mrs Howard supplemented the interviews with two further letters.

Matron Howard completed her general training at Newcastle in 1946. She and her husband conducted a nursing home at Burwood for 10 years until 1961. They bought Chelmsford in 1962 and opened for business on 23 January 1963. The first patients were medical admissions by local doctors. She had not had previous psychiatric experience. Dr Bailey simply telephoned her one day inquiring whether she would admit his patients. Her lack of experience in psychiatry did not deter Dr Bailey. His preference, in any event, was for general trained nurses. Dr Bailey discussed his treatment method with her. As to pathology Mrs Howard said, "Dr Shipton or one of her off-siders came daily and took nose and throat swabs, urine testing and if any patient had any infections they were never deepened, they were only kept in a medium sedation". Her memory of ECT was that a relaxant was not given if the patient was "deep enough". Oxygen was not given routinely after the treatment. Matron Howard recalled Dr Bailey would sometimes "take them back down again into a slightly deeper sleep". As to records, she said every patient had a temperature, pulse and respiration sheet, a drug sheet and a fluid balance chart. The measure of urinary output was not an exact science. It was written up simply as "wet bed". The average duration of DST in the early years was six to eight days. Contrary to Dr Bailey's evidence in the Carter inquest, whenever any complications such as pneumonia developed the nursing staff would lighten the patient, perhaps with the assistance of an injection of Megimide. In the early years of the hospital. Dr Herron was regarded as Dr Bailey's protege. He gave ECT and in emergencies he would attend if Dr Bailey was unavailable. 112

Chelmsford

Volume 1

Dr Bailey at no time discussed the danger involved in depressing a patient's respiration. Matron Howard spoke of a golden staph epidemic when "Hornsby Hospital was full" and a number of local general practitioners admitted patients to Chelmsford. She remembered a great deal of oxygen was used at this time and special nurses were brought in. When asked about Dr Bailey, Mrs Howard said, "I felt he was a very caring, conventional practitioner who thought, well, his patients came first". Matron Howard recalled the death of Mrs Muriel Isobel Kell (see volume 4). Matron Howard showed that the account of Mrs Kell's death which Dr Bailey wrote up subsequently was untrue. She did not recall Antionios Xigis but she remembered Kelvin Frank Kingston quite clearly. At Dr Bailey's request she travelled to Callan Park and arranged for Mr Kingston's discharge from that institution and his admission to Chelmsford. She had a recollection of finding Mr Kingston dead in bed at a time when his sedation had been lightened. Matron Howard was also present at the death of Frederick Eckardt. Her recollection was that he died suddenly after talking. She did not recall the death of Muriel Rodgers in December 1964. It was likely that she was on leave at that time. She recalled an incident in 1965 when she was assaulted by a female patient. Following this the hospital was placed on the market. Health's licensing records show various other people were licensed as chief nurse from 1964 to early 1965. Matron Howard confirmed that at that time she was living at Breresford Road, Normanhurst. Matron Howard said Sister Shea had undergone surgery at St Vincent's Hospital for a brain tumour. (See the report on the death of Mrs Shea, volume 6.) Mrs Howard remembered two patients (although not by name) who were sent to the US by Dr Bailey for psychosurgery. She described them as "zombies" and as "pathetic". When Chelmsford was sold to Mr Allen Parkes in January 1966, Matron Howard left the hospital. She returned there as registered chief nurse in October 1967 when Mr Robert Hackney bought it. Mrs Howard remembered Bobby Limb's admission in February 1968. "He wasn't in a deep state (of sedation)," she said. Mrs Howard's attention was drawn to an entry in Dr Bailey's order book where he spoke of suspending all admissions until full day staff were 113

Royal Commission

into

Deep Sleep Therapy

available. He asked that Mr Hackney be informed. She recalled Mr Hackney, who sold the hospital to Mr Len Richardson soon afterwards, was only rarely seen. He entrusted the whole of the management to her. When asked which matters would be checked by the Health's inspectors, Mrs Howard said: "The general cleanliness, the books, the patients' beds, the bed linen, the linen supply, the food, the kitchens, the cupboards. They also came at meal times to see what the meal was."

Their inspections included the sedation area. I note here that Matron Howard was away from the hospital at the time of the deaths of Mr H.C., Mr T.C., Graeme Carter and Julia Thompson. Mrs Howard's attention was drawn to the admission of Mrs E.J. on 31 May 1970. The patient suffered a grand mal fit without any history of epilepsy. Matron Howard said this was something which sometimes occurred during the lightening process particularly if the patient was exposed to direct sunlight. She was shown the hospital notes of Mr D.P. admitted on 25 July 1970. This patient had a history of asthma and colitis. Dr Bailey prescribed DST. Matron Howard said, "I can't see us starting a patient with asthma into a deep sedated stage, I cannot see that I would have done that or I would have allowed it". Mrs P.L. was "shifted into a new section" on 14 September 1970. Matron Howard recalled that the building extensions were completed about that time. Miss S.B. "was the longest one we had asleep—28 days". Mrs Howard did not recall the death of Raymond Frank Vassallo and she had a very limited recollection of Craig McKay. The hospital admission records suggest that Matron Howard left the hospital about 19 April 1971. Health's records show that Sister Margaret Marzol was licensed as registered assistant chief nurse on 12 May 1971. The evidence of Matron Nelson suggests Sister Marzol was living in the matron's flat in April 1971 or earlier. In summary. Matron Howard was in charge of the hospital at a time when, on the evidence the standard of nursing was adequate. The nightshift was shared by Sisters Shea and Stephenson, both of whom were competent. The three deaths of which she had direct knowledge, namely Mrs Kell, Mr Kingston and Mr Eckardt all occurred after DST. 114

Chelmsford

Volume 1

Some submissions were critical of Mrs Howard on the basis that she permitted Drs Bailey and Herron to continue to admit patients to Chelmsford. In the light of the enormous subsequent pressure required to halt DST, I think these submissions impose too heavy an onus on a matron. Wilma Dawn Lowe During Matron Howard's ownership of Chelmsford, there came a time when she ceased to live in. From that time there followed a number of registered chief nurses who were required to live in to comply with the Private Hospitals Act. Among these chief nurses was Wilma Dawn Lowe who was both general and psychiatric trained. After Chelmsford, she continued nursing and her experience included about four years in an intensive care unit in the US. Miss Lowe gave evidence.

From September 1965 until January 1966 Sister Lowe was the registered nurse in charge of the afternoon shift. When Mr Allen Parkes became licensee in January, she became licensed as chief nurse and lived in the flat attached to the hospital. She remained until June 1966. She usually worked a day shift. Matron Howard, Sister Shea and Sister Woolfe instructed her on DST. She was told the patients had to be turned at least every two hours, thenpressure areas rubbed and massaged. Particular attention was required to mouths, ears and eyes: "Most patients used to become very mucousy because lying prone all the time used to cause chest congestion and their bowels and bladder was always a problem ..."

She could not recall Dr Bailey explaining the treatment. The DST diet was Sustagen with fresh fruit juice. If the patient's swallow reflex was too depressed, feeding took place through an intra-gastric tube. This was inserted only for the feeding period. Matron Lowe was aware of the side effects of the drugs used for sedation but she had no knowledge of any potentiating effect. Dr Bailey's insistence that the patients sleep for 23 out of 24 hours she thought was unattainable. It was her practice not to re-sedate a patient until the patient was awake. At no time was she aware of any practice of giving sedation through an IG tube. She succinctly expressed the primary dangers of DST in the following terms: "To nurse a patient prone for 24 hours under deep sedation, deep sedation depresses your respiration and paralyses your chest muscles to a degree and you have got no hope of getting up your 115

Royal Commission

into

Deep Sleep Therapy

mucus whilst ever you are lying prone, so you had to let the patient wake up, to sit them up in a chair so as they could cough up some of that mucus and get rid of it."

In her view the only way to nurse a patient who was sleeping for 23 out of 24 hours was to provide mechanical ventilation. She drew a significant distinction between comatose patients generally on the one hand and comatose patients whose respiration was depressed by sedation on the other. She drew attention to a conflict between Dr Bailey and the staff in that the staff was not prepared to keep the patients sedated as deeply as Dr Bailey required because it was dangerous. As to records, she said a temperature and blood pressure chart was kept and sometimes a fluid balance chart for patients with difficulty in taking nourishment or voiding. In the latter case it was usual to catheterise. Temperature charts were usually kept on a four hourly basis. In the case of a hypotensive patient, or in the event of pyrexia, the observations would be made more frequently. The time between waking and re-sedation, during which the patient's physical needs were attended, was "hardly ever under 30 minutes". Matron Lowe recalled the average number of DST patients was between six and eight. The treatment was given in two wards, one for males and the other for females. There was an oxygen cylinder on a trolley and a mask in each of these wards. If a patient developed an elevated temperature and was seen to be extremely mucousy, it was usual to take a swab for pathology and, in the meantime, obtain Dr Bailey's approval for a broad spectrum antibiotic, such as Reverin. The nursing staff applied a rule of thumb that any patient with a temperature above 39 degrees was lightened. Matron Lowe's evidence is consistent with Mrs Howard's account and demonstrates the untruth of the evidence Dr Bailey gave in the Carter inquest that pneumonia did not generally interrupt DST. Matron Lowe recalled the death of Mr H.C. in December 1965 (volume 4). Mr H.C.'s blood pressure dropped at about 4am on 29 December 1965. Dr Bailey ordered (by telephone) an intravenous drug. The staff was unable to locate a vein and it became necessary for Dr Herron to bring cut-down equipment from North Ryde Hospital. Matron Lowe and other staff members suggested to Drs Bailey and Herron that the patient be transferred to a general hospital but "they said there was no need to. They had everything under control". 116

Volume 1

Chelmsford

Plainly the staff was very concerned that Mr H.C. was subjected to the treatment because of his general condition. The failure of the doctors to transfer him to a general hospital was inexcusable. As to equipment, she noted there was no steriliser beyond a "little dish" in which instruments could be boiled up on the stove. The staffing levels during her term of duty involved the chief nurse together with a registered nurse and an enrolled nurse on the day shift. On both other shifts there was only a registered nurse and an enrolled nurse. It was impossible to monitor continuously unconscious patients because they were in two wards and "because the nurses worked together, there couldn't have been one nurse present in each room". She felt there was a high standard of nursing and this opinion is a fair statement of the situation as at 1965 to 1966. Miss Lowe's evidence provided a useful link between the written material from Matron Howard and the evidence of Matron Nelson. Margaret Rose Nelson Mrs Margaret Rose Nelson gave evidence that she obtained her general certificate in England in about 1946 and came to Australia in 1947, obtaining her psychiatric certificate at North Ryde between 1965 and 1967.

She worked as a registered nurse at Chelmsford from February or March 1971. She had applied for an advertised position as receptionist but when it was discovered that she was qualified both in general and psychiatric nursing, she was persuaded to accept a nursing position. She usually worked either the day or the evening shift. Initially she worked only a few days a week. Matron Howard was the registered chief nurse although Sister Margaret Marzol, the registered assistant, was living in the matron's flat. The hospital was licensed for 20 beds at the time Sister Nelson began and in April 1971 it became licensed for 40 beds. She was aware Matron Howard was leaving and the hospital had been advertising for a matron without success. The licensee, Mr Len Richardson, asked her to become matron. She reluctantly accepted. She was concerned there was a potentially dangerous situation because there was no medical officer immediately available for emergencies. Mr Richardson told her Dr Bailey was building his own hospital and he and his DST would be gone in a matter of months. In order to satisfy herself, she went to Haberfield and established building work was in progress at Mandala. 117

Royal Commission

into

Deep Sleep Therapy

Matron Nelson recalled the usual number of DST patients was six. Sometimes there were more, in which event two wards were used. When this occurred, additional staff were employed. There was a strict instruction that a staff member was to be present in each of the DST wards at all times. At the beginning of her employment, there were no treatment sheets written up for Dr Bailey's DST patients. The drug regime was to be found only in Dr Bailey's order book. Soon after she became matron she asked Dr Bailey to prepare a separate treatment sheet for each of his DST patients. He said that it was the first time he had been asked to sign anything in 12 years, but he eventually complied with her request. At first the treatment sheets were handwritten, see for example, the treatment sheet for patient K.l admitted on 3 June 1971 (part of exhibit 255) but later the sheets were typed up by the receptionist, Mollie Sansom. The only explanation of the treatment Dr Bailey gave was that "it rested everyone mentally and physically, and the ECT disturbed their memory". He explained the memory disturbance on the basis that in effect patients forgot their worries. Matron Nelson had very little contact with Dr Bailey beyond the telephone and much of this was by way of messages relayed through his secretary. As matron, she worked during the day and when she did see him, Dr Bailey was usually in a rush. As to depth of sedation, Dr Bailey liked his patients to be kept unconscious. If they responded to vocal stimuli "there was a great deal of fuss". The level of consciousness varied during the course of the day. When the patients were due for more medication they were lightening to some extent. If it was possible, the staff would get them out of bed and on to commodes. If not "they were incontinent, if they were very deeply asleep". In common with Matron Howard, she recalled there was an emergency trolley which was used for ECT. On the question of staffing. Matron Nelson said nursing agency staff were used to fill in but they were not used in the DST wards. When patient numbers declined, Mr Richardson would panic and want her to dismiss staff. Sister Marzol left and was replaced by Sister Sandra Robson in about November 1971. She lived in the flat attached to the hospital from the beginning. Matron Nelson said Sister Robson only had a psychiatric certificate. In her opinion, a general certificate was essential to nurse Dr Bailey's DST patients. 118

Volume 1

Chelmsford

Matron Nelson recalled, probably close to when Mr Richardson sold the hospital, she sent a Clements' sucker for repair. At the time there were two sedation wards operating and one sucker was broken. In her view, it was essential to have suction available in both wards. Mr Richardson was angry the sucker had been sent out for repair without consultation. When Fairfield Heights Community Hospital Pty Ltd took over Chelmsford in July 1972, Dr Gill initially asked Matron Nelson to remain. Later he described her as "autocratic" and said the hospital management wanted the matron to live in. Matron Nelson's view was that Dr Gill was annoyed she was not prepared to have another sedation ward opened until the return of the repaired Clements' sucker. Matron Nelson's recollection was that it was Dr Gill's attitude combined with her assessment that Dr Bailey's dream of Mandala seemed unlikely to become a reality which prompted her to resign in September 1972. There is some evidence, however, that Dr Gill dismissed her summarily by written notice on 27 September 1972. She was replaced for a time by Naomi Margaret Reis whom she described as "a very timid little person . . . and she wasn't very well . . . ". (exhibit 321) When Matron Reis took over. Sister Robson was on holidays. When she returned from her holidays, she became matron. Matron Nelson gave evidence about the death of Mr G.N. who died on 25 June 1971. This patient was admitted with a history of allergic reaction to Ampicillin and recorded a blood pressure reading of 180/130. This was a high reading. Dr Bailey ordered moderate sedation over the telephone without regard to the patient's medical condition. On the night of his admission, he was given oxygen and nurses recorded blood pressure readings as high as 200/140. Dr Bailey saw the patient and, despite the reference to allergic reaction, he prescribed 11/2 mega units of penicillin. This quickly produced a reaction in the form of a rash. Matron Nelson was shown Dr Bailey's death certificate for Mr G.N. which stated he had a cerebral haemorrhage of seven days' duration. She found nothing in the nursing notes to support this opinion. Matron Nelson pointed out that although Mr G.N. was given Tuinal he was not put on the full DST regime. The difficulty is that Mr G.N. was in a very precarious state of health and should not have been subject to any sedation. What he required was competent assessment by a physician and urgent admission to a major hospital. (For a full discussion of Mr G.N.'s death see volume 4 and exhibit 319.) Matron Nelson also gave some evidence about Janice Nam's death on 20 April 1972. She was recalled to the hospital and tried to help resuscitate her. She said Mrs Nam's face was extremely cyanosed. Because of this, the certified death by cerebral haemorrhage was likely, but the death should have been reported to the coroner. Matron Nelson said Dr Bailey's 119

Royal Commission

into

Deep Sleep Therapy

certification of cerebral haemorrhage and cerebral angioma was impossible without a post-mortem. She was shown a document written by Dr Bailey after Mrs Nam's death in which he spoke of an instruction that Mrs Nam be kept under intermittent light sedation. Matron Nelson did not recall any of Dr Bailey's patients being kept in such a condition. She recalled there were instances where she did not act on Dr Bailey's instructions for immediate sedation. For example, a particular patient obviously had hepatitis. She arranged his transfer to Prince Henry Hospital. As to equipment. Matron Nelson said that she had on occasions borrowed lumbar puncture instruments from Hornsby Hospital. There was no autoclave at Chelmsford for sterilisation. She said (wisely): "... psychiatric patients do get examined for physical causes of various things too because there is a very fine line at times between neurological disorders and psychiatric disorders and it can be—and they are not mutually exclusive of course."

She recalled Health's inspections and that staffing on each shift was subject to their scrutiny. She also thought the standard of nursing care at Chelmsford was very good. Matron Nelson gave evidence about a rumour that there was a complaint about DST to Health around 1970. She said: "Somebody had made a complaint about what was going on at Chelmsford and it was being looked into. And apparently it was alright."

This does raise a problem for Health under term of reference 1(c). The rumour of which Matron Nelson spoke is clearly a reference to the complaint by Mrs Pett. If staff members were under the impression that Health had investigated the treatment and, in effect, approved it, then it was asking too much of the nursing staff to vigorously oppose the treatment. Sandra Stephanie Robson Sandra Stephanie Robson undertook her psychiatric nursing training at North Ryde and Gladesville Hospitals during the 1960s. She was originally employed at Chelmsford during Matron Nelson's period as assistant matron to replace Sister Marzol who was then living in the matron's flat and was the registered assistant chief nurse. It is impossible to establish with precision her starting date as the wages records before August 1972 are not available. It is likely that she began some time between November 1971 and May 1972. She did not remember.

After Fairfield Heights Community Hospital Pty Ltd bought Chelmsford she continued as assistant chief nurse for some weeks, then went overseas for a few months. Matron Nelson left the hospital in September 1972 and was replaced by Sister Naomi Reis who lived in the matron's flat. Matron 120

Volume 1

Chelmsford

Robson replaced Matron Reis in early November 1972. Matron Robson worked at Chelmsford for almost four years until August 1976 and lived in the matron's flat during that time. During her term as matron, there were nine DST deaths. Of these, two deaths, Mrs E.D. and Mr Arnold St Clair, occurred at other hospitals after the patients were transferred. I encountered difficulty with Mrs Robson's evidence because of her almost global lack of memory of her years at Chelmsford. The only death she remembered was of a large woman dead in bed. It must be kept in mind there were many other deaths from natural causes at the hospital. Many patients were elderly. Matron Fawdry, in drawing a distinction in personality between Matron Robson and Matron Nelson described Matron Robson as: "Really bubbly and bouncy and go go go ... I thought she was really terrific. She was very supportive of the nursing staff at the time. I thought she had a lot of knowledge and skills and she obviously had a lot more than me because she had been there for some time because I think she was more or less considered the deputy matron even when Myra (sic) (Nelson) was there and used to relieve Myra when she went on annual leave; but in retrospect she was more of a businesswoman . . . her persona was more in the business aspect of the running of the private establishment and the PR you know with the doctors, it was always gushy, gushy, all over the doctors and that sort of thing you know."

Mrs Robson's demeanour in the witness box was in stark contrast to Matron Fawdry's description. Apart from some perceptible change in answering questions from Mr Waddy QC, she appeared to be rather flat in affect and her mentation seemed slow. After leaving Chelmsford, she suffered some medical problems, an orthopaedic injury and a severe emotional shock when her husband, who was a comparatively young man, suffered a heart attack and died. She was present at the time and tried to resuscitate him without success. This event probably brought about a more prolonged grief reaction than usual. During the course of her examination in chief, she was asked about cyanosis and became distressed because she was reminded that her husband was in this condition when she tried to resuscitate him. She then left the witness box and arrangements were made for her to be seen by Dr Michael Pasfield, a psychiatrist, who had seen her before. His reports dated 30 May and 5 June 1989 became part of exhibit 264. Dr Pasfield diagnosed her condition as one of "major depression" but said she should be able to continue with her evidence. He thought her condition "could be likened to a clouding 121

Royal Commission

into

Deep Sleep Therapy

effect over her recall of long term memories. The recall, even when successful, may be much slower and less precise ..." I find it difficult to relate this opinion to the way in which Mrs Robson gave her evidence. One understands there may be no surface memory even for significant events such as the deaths of comparatively young people, but one expects the memory to be stirred, for example, by a reminder of the name of a patient, or the precise terms of an entry in the nursing notes. This was not the sequence of events with Mrs Robson's evidence. Her counsel submitted she could not be expected to recall individual patients in a busy hospital with a high occupancy rate and therefore, thousands of patient movements. This does not seem to have been a problem for other staff members who gave evidence. I note particularly that Mrs Howard remembered precise names and events occurring some 25 years previously. Mrs Robson's counsel has relied on the significant emotional shock following the death of her husband in 1983. It would be unusual if her emotional reaction was still present six years later. During those years Hydebrae Hospital, in which she bought an interest after leaving Chelmsford, was sold for a very substantial capital gain. Her remarriage in 1986 and subsequent move to Queensland should also have been of some therapeutic value. It is not suggested that she has ever suffered a head injury or an episode of hypoxia. Even in cases of severe head injury, it is most unusual to find a long term memory disturbance as gross as she claimed. I will return to counsel's submissions at the conclusion of this section. Matron Robson's experience in departmental institutions was that barbiturates were used as a night sedation. Sodium Amytal was used to sedate an aggressive patient. She had not heard of Tuinal before Chelmsford. She knew barbiturates suppressed the respiratory system. Her attention was drawn to her statement that the patient care at Chelmsford was superior to that provided at departmental hospitals. She said the departmental wards were very large. As an example, she recalled on one night shift during her training period, she and one other junior nurse were in charge of 130 patients. She referred to the dormitory style accommodation, lack of screens and no privacy in the bathroom. This island of recollection taking her back some 25 years, I find incongruous. Ward 17 was the only DST ward she recalled. When the patients were approaching time for their next charted sedation, "they were lighter . . . you could get them to the toilet with a commode". She did not recollect checking any DST patients for their response to painful stimuli before resedating. Nobody warned her against the danger of sedating too deeply. 122

Chelmsford

Volume 1

Sedatives were given via a Ryles tube. She recalled it was usual to nurse the patients on their side "for their breathing". There was another apparent island of recollection in that she was able to say there was no routine antibiotic cover during her term. As to staffing, she said there were two registered nurses on duty during the morning shift together with the matron who was on duty from 9am to 5pm. For the evening and night shifts there were two assistant nurses and one registered nurse. A nursing agency was used to provide casual staff. Sister Shea always worked in the sedation ward Mondays to Fridays together with nurses Maggie Beattie and Anne Adams. The morning shift was 7am to 3.30pm. The afternoon shift was 1pm to 9.30pm and the night shift was 9pm to 7am. In her evidence at the Francis inquest, she said there were seven or eight registered nurses employed by the hospital and more than 20 nursing staff as well. Each shift wrote up nursing notes for the DST patients. Staff maintained four-hourly charts for pulse rate, temperature and blood pressure. Respiration was not recorded. Staff wrote up separate drug charts for injections, capsules and tablets and she recalled a fluid balance chart which recorded observations for all DST patients. There was a death certificate book kept at the hospital which she would have seen. She recalled an antiseptic, Hibitane, being used to prevent infection getting into the sucker. There were two electrical suckers, one in the DST ward and one on the other side of the hospital. There was also the emergency trolley which was described by Matrons Howard and Nelson. She was asked about the Bird's respirator and she recalled that "it was for approval or something". In addition to the sucker machines, there were oxygen cylinders. The emergency trolley was equipped with Guedel's airways, a laryngoscope and probably an endotracheal tube. I note here that the witness' islands of recollection in non-sensitive areas do not rest well with her claim of gross memory impairment about the deaths. She said at one stage while she knew some patients died, she had no recollection of any patients dying while she was at Chelmsford. Soon afterwards she said she did not remember talking to anyone about the deaths. I will come to some specific matters, but I must say that I am unable to accept these two answers. She said that she had never done a round of the hospital at night although on occasions she would "talk with the night staff and have a cup of tea". It follows that since the majority of deaths occurred during the night shift, there must have been some discussion about it. 123

Royal Commission

into

Deep Sleep Therapy

She also said that she did not remember any difficulties with DST. She did not see any dangers or risks attached to the treatment. After some prompting, however, she gave evidence of being aware of the problems of embolism and deep vein thrombosis. She remembered the nurses gave some passive leg movements for physiotherapy. There were departmental inspections. The inspector, who was present for about two hours checked roster and report books, the names of the registered nurses and assistant nurses together with their hours of work to ensure the correct patient/staff ratio was being maintained. The inspector also went into the DST ward and checked the drugs in the drug cabinet against the drug register. She had no forewarning of these inspections. She was asked about the treatment: "Q. What were you told about what this deep sedation was supposed to do with the patients? A. Make them more physically relaxed to have treatment. Sometimes doctor would give some other treatment as well, you know, some Stelazine capsules as well whilst they were having their treatment and that it had this relaxing effect on the patient which helps them to recover faster."

This interpretation of DST bears no relationship to the way in which Dr Bailey put it forward, nor does it bear any similarity to Dr Herron's suggestion that it was an adjunct to ECT. She recalled Dr Herron and Dr Gardiner both attended the hospital frequently in contra-distinction to Dr Bailey. Overnight on 1 June 1989, Mrs Robson had access to all written material then available on the deaths of patients which had occurred while she was matron. The next day she said there was nothing in the written material which helped her memory. She was questioned about the deaths of Peter Clarke and Mrs E.D. but professed no recollection. She did not recall any patient being transferred to Hornsby Hospital. Matron Robson was asked about the death of Reginald Atkinson which occurred at 9.30am on Saturday, 30 December 1972. She did not recall ordering his wife out of the sedation ward on two occasions, nor did she remember phoning her at about 9am on the day he died, telling her that her husband was coming out of the sleep treatment and "he is quite good". Again, she did not recall ringing the deceased's wife at 11.30am that morning to advise he had died. It is quite unlikely this series of events would have been forgotten. When counsel for a small group of patients cross examined her on Peter Clarke's death, there seemed to be an improvement in her attitude. She 124

Volume 1

Chelmsford

was willing to consider the clinical observations from time to time and, although denying recollection, venture opinions as to the proper course which should have been taken. She agreed that, on the observations made on 20 February 1974, Peter Clarke should have been lightened and a doctor called. She also said Dr Bailey was spasmodic in his attendance at the hospital. She was asked questions about Sister Crozier's description of the Mr Clarke's death. The patient, a very large man, suffered an arrest soon after ECT. Sister Crozier and Nurse Puz were unable to lift him on to the floor to give external cardiac massage. Matron Robson was called and assisted. She then rang Dr Bailey. By the time he arrived the patient was dead. Dr Bailey and the witness went into the matron's office and shut the door. Later the police arrived and were in an aggressive mood, having been telephoned by the deceased's family. (Peter Clarke was a policeman.) These events were quite unlikely to be forgotten. Matron Robson's evidence about conversations with Dr Bailey at times such as these could have been of great assistance to this inquiry, particularly as to the process which led Dr Bailey to issue death certificates. I do not accept Mrs Robson has no recollection of these events. When she became acting matron she would only have had about four or five years' experience. She had never done any training in intensive care or in the operating theatre, nor dealt with anaesthetic except in the context of ECT. "General nurses would have far more medical and surgical and theatre experience than we (psychiatrically trained nurses) had," she said. Counsel took the witness to a series of observations recorded in the nursing notes of various patients and in the capacity of a nursing expert, she agreed at various times the matron or the treating doctor should have been informed of the patient's condition. But a reading of the observations did not assist her actual memory of the events. She recalled Dr Reichard delivered a lecture on schizophrenia and Dr Bailey also gave a lecture at Chelmsford. She denied any complicity in the Hart identification admission sheet mutilation which occurred in April 1975. Curiously, she said at Hydebrae Hospital, when she received a request for nursing notes, she sent out the original. She did not think the registered nurse on duty had any authority to go to the filing cabinet and send out patient records. She believed Mrs Sansom did all the filing. Mrs Sansom had access to the cupboard containing the patient files. In response to Mrs Sansom's suggestion that the matron may have opened the mail she said, "No, 125

Royal Commission

into

Deep Sleep Therapy

never". She regarded Mrs Sansom as a reliable employee who enjoyed good health. I note here that this is a rather specific recollection of a rather humdrum matter and does not rest well with the witness' claim of general memory impairment. I accept the fact that the witness was away in Europe for about six weeks in August-September 1975 as she was there attending her brother's wedding on 1 September. She may, therefore, have been away when Mrs Margaret Dawson died on 4 August 1975. In agreeing with the proposition that Mr Hart should have been transferred to a general hospital at a much earlier time, she answered the following question: "Q. Nowadays I imagine the nurses would insist upon it? A. They have changed their attitude a lot."

It was also suggested: "Q. In those days the doctors reigned supreme in the system? A. You could put it like that."

While there is some room for this attitude, it does draw attention to the independence displayed by some of her predecessors who used their own judgment to withdraw or limit sedation rather than act mechanically on Dr Bailey's instructions. It emphasises the determination displayed by her successor. Matron Julie Smith. Returning to counsel's submissions, I accept that Matron Robson was not assenting to the proposition that she went into the matron's office with Dr Bailey after the death of Mr Clarke. Plainly, she was referring back to the previous evidence. I also accept that there is no evidence linking Matron Robson with altering the Hart identification sheet in April 1975. Her practice at Hydebrae Hospital of sending the original notes raises only a speculative possibility. Mrs Robson's counsel also submitted that I should not make a finding against her because of any inadequacies in patient care. I have difficulty with this submission. For example, Mrs T.H. died at Chelmsford on 22 November 1973. She was admitted on 20 November and began DST the same day. She was not seen by her treating doctor. Dr Bailey, at any time before her death. Matron Robson knew Dr Bailey's attendance at the hospital was poor. She must have known there were dangers associated with the treatment. 126

Chelmsford

Volume 1

It should not have been allowed to continue without an examination by a doctor. Mr Arnold St Clair died at Hornsby on 24 May 1974. He was admitted to Chelmsford on 16 May. He was critically ill for several days before his death and clearly should have been transferred to Hornsby. Sister Ailsa Provest said in her statement that she expressed concern to Matron Robson. Sister Provest and Sister Shea suggested to Matron Robson that Mr St Clair was very ill and should be transferred. "She (Matron Robson) thought we could manage him," she said. In my view. Matron Robson should have played a more assertive role in endeavouring to have the patient transferred to Hornsby at an earlier time. Mrs Stavroula Leousis who died at Chelmsford on 19 September 1974, was a very obese lady with a short neck. Any person with general nursing experience should have appreciated it would have been very difficult if not impossible, because of her stature, to insert an airway. It was highly dangerous to keep her in a sedated state. If her behaviour was a sufficient problem, she should have been scheduled to a departmental institution. There is evidence elsewhere that Matron Robson was called to Mrs Leousis when she died. Therefore, she is probably the large woman the witness conceded vaguely recalling. Mrs Ann Bennett died at Chelmsford on 31 October 1975. Dr Bailey had not seen her between the time of ordering DST and her death. She was very mucousy and drowned in her own secretions. Again, it seems to me to be poor patient care to permit a dangerous therapy to continue in the knowledge the treating doctor spasmodically attended his patients. There is also evidence that Matron Robson was present at the death of Audrey Francis. In an interview with Detective Sergeant Wright on 23 October 1987 concerning Mrs Francis' death, Matron Robson did not concede any recollection of the death but she agreed with Sister Helen King's statement she was called to the ward while staff were attempting to resuscitate Mrs Francis. Before this inquiry she denied any memory of being called to any death except that of the "big lady". She had no recollection of being called to an emergency where a nursing sister and aide were attempting to resuscitate a patient. However, at the Francis inquest she said she might have been called back to the hospital to assist "a couple of times a year" (page 1076, exhibit 223). 127

Royal Commission

into

Deep Sleep Therapy

At page 1086 of the Francis inquest she said: "Yes, it was requested that there always be a nurse in there (the DST ward)."

She retreated from this evidence at page 1097 when she said: ". . . one would have to be in the sedation ward ... or close, right at the door."

This statement accords with the evidence of Matron Fawdry. The number of deaths which occurred during her term may bear some relationship to the fact that the basic dosage of Tuinal was increased from 1.2g to 2.4g, but it may be partly due to inadequate observation and non-selective medication. I note that in the two and a half years of treatment following August 1976 there were but three deaths. At page 1101 of the Francis inquest she said: "If somebody was just due for sedation, maybe they were very restless, they might have some PRN medication but basically it was due every (4 to 6 hours)."

In the light of the expert evidence about the early signs of barbiturate intoxication, this answer gives some insight into the nursing staffs basic misunderstanding of the sign "restlessness". In summary, Mrs Robson was appointed matron of the hospital when she was quite young and relatively inexperienced. In particular, she was untrained and uncertificated in general nursing and completely inexperienced in the management of unconscious patients. She was quite unsuitable for the position and as her appointment was contrary to law. Health should not have accepted her registration application. I have made some comments about the responsibility she may have had for inadequate patient care, but these criticisms should be kept in perspective. She was a person placed in a position beyond her competence and far beyond her experience. Any responsibility which she bears pales into insignificance in the context of that borne by the medical practitioners involved in the treatment. I have criticised her claims of memory loss. One aspect which was not debated during the inquiry nor referred to in the psychiatric opinions tendered, is the possibility of sub-conscious denial. It is possible that the enormity of the events of 1972 to 1976 with the gift of hindsight and her appreciation that her inexperience may have played a part, have brought about a sub-conscious process of memory dysfunction. I make no finding one way or the other but simply record this possibility. In the 128

Volume 1

Chelmsford

circumstances, I am unable to make a finding the witness was deliberately untruthful. Julie Dulcie Smith Julie Smith was the first member of the nursing staff called to give evidence. She finished her general training at Bathurst in 1966. She obtained her obstetrics certificate at St Margaret's Hospital, Sydney, in 1968. She concluded her psychiatric training at Callan Park in 1970 and worked for two years at Hughlings, a private psychiatric hospital. Then she worked as a nurse educator at Rozelle Hospital for some years until she began her employment at Chelmsford on 10 August 1976. She remained for five months until 14 January 1977. She encountered deep sedation therapy only when she studied the history of psychiatry.

Dr Gill and receptionist, Mollie Sansom, interviewed Miss Smith for the matron's position. After the first interview, she mentioned the application to friends at Callan Park and was told that Chelmsford was the hospital where Drs Bailey and Herron practised deep sedation therapy. During her second interview with Dr Gill and Mrs Sansom she asked about DST. "Dr Gill told me Dr Bailey was getting old and he would be shortly retiring, and they were phasing out deep sleep sedation treatment," she said. She saw the DST ward which was empty. About two weeks after she started work, the first Audrey Francis inquest took place. Then, within one or two days patients began to be admitted to the DST ward. She referred in evidence to a staph aureus infection in the hospital when the DST treatment was conducted in ward 17. Dr Gill supported her in closing ward 17 so it could be swabbed by pathologists and appropriately treated to combat the infection. I note that a patient. Miss J.B., was said as at 24 September 1976 to be not yet moved to ward 15. This information is sufficient to place the temporary closure of ward 17 as at or shortly before that date. Matron Smith had a stormy relationship with Dr Bailey. There came a stage when, "I stopped ringing him and I would review the position and make decisions on my own, and then tell him I had taken people out of sedation and stopped medication". She formulated a strict rule that a temperature in excess of 37.5 degrees centigrade would result in sedation being withdrawn. Matron Smith gave evidence of an incident during the course of her disagreements with Dr Bailey. A time came when Dr Bailey ordered all his patients be lightened from sedation ready for immediate discharge. 129

Royal Commission

into

Deep Sleep Therapy

She discussed the matter with Dr Gill. He was "very concerned, but laughing too". He indicated that Dr Bailey's use of the hospital was very important financially because so many of the patients were patients of either Dr Bailey or Dr Herron, "the majority of them". Dr Bailey was unsuccessful in finding another hospital to admit his patients and he withdrew the order. She was disappointed Dr Bailey decided to remain at Chelmsford. She said, "We couldn't have had a better opportunity to run a proper psychiatric hospital". Matron Smith confirmed Dr Bailey's language left something to be desired on occasions: "He talked badly when he got angry. Dr Bailey was a very powerful looking man, very tall, very big, so he could—I mean, there was a certain level of intimidation by his physical presence, also by the types of words he used, the screaming, the hurling of abuse, you know, really bad language and lack of control really; yes, he was certainly intimidating, you could allow him to be intimidating and I am sure he found it easy to intimidate people. I certainly saw him do that to a lot of people."

Mollie Sansom encouraged her not to make trouble with Dr Bailey. She was approached by Sister Betty Shea who had at that time been working in sedation for about 14 years. Sister Shea was feeling guilty and very distressed about the patients in the sedation area and wanted a change. So Matron Smith rostered her for duty in the other wards for a time. Matron Smith heard casual conversation among staff about the deaths of patients. She looked at the death certificate book and found unusual entries. Her attention was attracted by the youth of the people who died, and the common causes of death which were being certified such as coronary occlusion, myocardial infarction, cardiac failure and broncho-pneumonia. These were all quite unusual causes of death in the young. She confirmed the general evidence from staff that patients were not given a physical examination before DST began. Her attention was drawn to a particular patient who was admitted with a history of bronchitis and chest infections and who had just recovered from the flu. This patient was not examined by a medical practitioner before DST. She gave evidence Dr Herron visited the hospital regularly and always responded to calls from staff who were concerned about the condition of his patients. On the other hand, apart from the early period of her employment. Dr Bailey rarely came. "There were times when it would be three or four weeks before these people were seen by their psychiatrist, Dr Bailey." 130

Volume 1

Chelmsford

She recalled a consultant physician. Dr David Lind, frequently visited patients. On a few occasions she called Dr Gill but she did not have much confidence in his medical knowledge. Dr Gill frequently attended the hospital especially "if there were problems". She was asked, "You mean medical problems?" and answered, "No, just administrative problems". On many occasions Matron Smith expressed her concern about DST to Dr Gill: "Dr Gill always seemed to be highly amused by what I told him about what was happening. His response to me was very inappropriate."

One feature of DST which she noticed was the treatment was administered to a wide variety of patients irrespective of diagnosis. She discussed this question with Dr Gill. "He laughed. He did not seem to understand the importance of what I was saying." Her evidence was that Dr Gill ignored what she said about the conditions of patients. He didn't seem to be aware of the seriousness of possible complications. "He would respond but in an inappropriate way." Matron Smith said she found the Chelmsford practice of not giving a muscle relaxant before ECT unacceptable, so she spoke to Dr Gill about it. She said in evidence that subsequently the doctors used relaxants and anaesthetics. The records showed they did not, but for most of the time ECT was given to DST patients outside her hours of duty. Dr Gill quoted a 25 bed occupancy as the minimum required to cover costs. He encouraged Matron Smith to recommend the hospital to other psychiatrists. She declined this suggestion since other practitioners, in her view, would not wish to hospitalise where DST was being practised. Dr Gill tried to impress on her the importance of Drs Bailey and Herron to the financial viability of the hospital. He tried to persuade her not to be so outspoken in her feelings about sedation and Dr Bailey's methods. As to equipment, she said that when she began duty there was a resuscitation tray but it was kept in a clinic behind a locked door which meant to get it the nurse had to leave the patient. There was also only one sucker machine in ward 17. There was a second sucker but it was kept in the treatment room. She believed it was not adequate to have the DST patients observed by an untrained nurse. There was only one registered nurse on duty during the night shift and she was responsible for the whole hospital. 131

Royal Commission

into

Deep Sleep Therapy

In her opinion a general certificate was an essential qualification for a nurse entrusted with the care of DST patients. She recalled Dr Bailey ordered ECT even though the treatment was refused by patients. She noticed some patients who did not belong to a hospital insurance fund were enrolled for membership of a fund by Mollie Sansom. They were then immediately admitted to hospital. It is difficult to understand how this could happen as it was usual at that time to have a lengthy waiting period and require the disclosure of known illnesses. There was some evidence given that, at times, the funds waived the waiting period. Mrs Sansom was described by Matron Smith as Dr Gill's "eyes and ears". Counsel for Dr Gill urged on the witness that he was a very occasional visitor to the hospital and only visited his patients. Her reply was, "No, I would not accept that". Dr Gill's counsel also cross examined her about a shouting match between her and Dr Bailey at which he was present. She said Dr Gill was "Giving some maniacal laughter when it was going on" but he was not embarrassed by the scene. As to Dr Gill's administrative position, she noticed him often walking around looking at equipment. She said, "He was the manager. To me he was my boss. He employed me. I knew he was a part owner, and he would wander around and talk to the kitchen staff". Dr Gill's counsel put to her that she never suggested to Dr Gill a separate sucking machine was required for each patient. She rejected this suggestion. Dr Gill's counsel also suggested her recollection about the staph aureus outbreak was defective and in truth a firm of pathologists routinely swabbed the hospital. She also rejected this idea. Her view of Dr Bailey was that he was insane and he would commit suicide before going to court. Dr Gill was hostile to Matron Smith. In his statement to the Royal Commission he declared he knew of concealment of improper or inappropriate conduct by Matron Smith, Matron Fawdry and Nurse Nicholson. Nurse Nicholson had taken files from Chelmsford, copied them and given them to Mr Segal of CCHR. It seemed Dr Gill was trying to damage Matron Smith in the eyes of the Royal Commission by associating her with the CCHR and the Scientologists. Dr Gill never provided any detail. 132

Volume 1

Chelmsford

I reject this imputation without reservation. Following the Hamilton inquest Matron Smith, who by then had left Chelmsford, spoke to the CCHR after she had read about them in the newspaper. She thought it was an official organisation supported by the Government: "That report in the media about Sharon's death, they quoted a group called the Council of Civil Liberties. It is funny, because the director of nursing and I did not realise that it was not a government department. To me it sounded like a government supported department, and I made a statement to these people, and then realised who I had been talking to. I refused to sign it. Q. Why was that? A. Because the group I had been talking to were the Scientologists, and I did not want to have anything to with the Scientology people at all."

Documents in the possession of the Royal Commission support her evidence that she never signed the statement. Police investigating the death of Sharon Hamilton in 1979 spoke to Matron Smith. In her statement to them she was most outspoken about Chelmsford. In view of her high nursing qualifications and her nursing experience, her comments carried great weight then and now. This was the first time there was material from a senior Chelmsford staff member criticising the hospital. Her statement, which was made very early in the history of the Chelmsford matter on 25 February 1979, raised specific issues which became significant before the Royal Commission. Although it is clear that her impression about the age of the ECT machine was mistaken, she questioned the claims about how it worked and what it could do. The relevant part read: "I resigned from the hospital because I was not getting on with Dr Gill, who is the owner. I disagreed with the sedation therapy practised at the hospital. I disagreed with Dr Bailey and Dr Herron. I felt that I could not accept the responsibility of the patients that were receiving sedation therapy. With sedation therapy a patient is placed under heavy sedation so that the patient is unconscious for approximately 10 days. From Monday to Saturday the patient is given a form of ECT from a machine which is very old and that is owned by Dr Bailey. This machine is not like the standard ECT machine used in other psychiatric hospitals that I have worked at in that the amount of current introduced cannot be monitored. Very often the patients that received sedation therapy were not given a prior physical examination of their general state of health and I 133

Royal Commission

into

Deep Sleep Therapy

considered this to be extremely dangerous, patients frequently became physically ill whilst under sedation, they would require Tightening'. Whilst I was in charge and if I considered that a patient was becoming ill under sedation I would remove them from it and then contact Dr Bailey and tell him what I had done. Dr Bailey would not attend if one of the patients appeared to be ill but he would give his instructions by phone and if I rang back and pressed him he would instruct me to contact a physician."

I consider it most important that she raised these matters long before Mr Hart's case came to court and before Matron Fawdry made her public statements. In final submissions Dr Gill's counsel said Matron Smith attempted to impose certain changes which precipitated staff unrest and that she did not do anything to impose her "ex post facto opinion" while she was there. These two submissions are inconsistent. She did attempt to change some problem areas. These did not cause staff unrest. Although staff unrest may have been developing at the time, it was in response to Dr Bailey and concern for the patients' welfare. Miss Smith was a most impressive witness. In terms of nursing training she was very highly qualified when she began her Chelmsford duties. She exhibited an inquiring mind and I suspect Dr Gill perceived in her a threat to the financial viability of the hospital because of her concern about DST. Patients spoke highly of her. One said he heard her voice when he was in a crisis. It was "just calm, firm, but very assured, distressed but still compassionate towards my position". Her evidence about Dr Bailey's declining attendance is consistent with the evidence of other members of the nursing staff and the entries in the Bailey books. I accept Miss Smith as a witness of truth. She has not set out to give a coloured version of the events. She has praised Dr Herron for his attention to his patients and she also praised Dr Gill for his support for her in the early stages. Dr Gill has given evidence contrary to that of Miss Smith. I reject his evidence where it conflicts with hers. Miss Smith attended the Royal Commission from her home and work in Tasmania. She was of great assistance to the inquiry. 134

Volume 1

Chelmsford

Marcia Joyce Fawdry Marcia Joyce Fawdry trained as a psychiatric nurse at Gladesville and Rydalmere Hospitals obtaining her certificate in 1968. In 1972 she was seeking part-time work as a psychiatric nurse. She telephoned Chelmsford and spoke to Matron Nelson. She began part-time employment in July 1972, shortly before Fairfield Heights Community Hospital Pty Ltd took over the hospital.

The records show Sister Fawdry worked either day or afternoon shift for the first few months. Later she worked night shift with the assistance of two nursing aides for the whole hospital. When she began this shift, she encountered DST for the first time, although Sister Shea taught her its basic nursing principles in one day. As time went on, she acquired more information by discussion with the staff and the DST practitioners. In late 1976, Matron Smith spoke to Sister Fawdry, saying she had decided to leave and suggested that Sister Fawdry apply for the matron's position. Dr Gill interviewed her and the agreement was she would take the position for a few months on a trial basis. Dr Gill wanted someone who had a psychiatric certificate. He was not concerned by the fact that she did not have a general certificate. She was appointed matron on 19 January 1977 after Matron Smith left. As with Matron Robson, Sister Fawdry was not legally qualified for appointment as she had no general certificate. Health should not have accepted her appointment as chief nurse. Matron Fawdry was concerned from the beginning that although she had some skill in cardio-pulmonary resuscitation, there was no doctor on the premises to administer drugs if resuscitation failed. She recalled Dr Bailey's instructions were written in his book. He never wrote in the patients' nursing records. From 1972 both Dr Bailey and Dr Herron visited the hospital at night. Dr Herron changed to day visits after he went into full time private practice in 1976. Initially Dr Herron visited the hospital every day of the week. His visits diminished somewhat when Dr Gardiner began to help with ECT. She recalled that about January 1977 Dr Bailey stopped attending at night and began to attend Chelmsford weekly on Wednesday mornings. There was no formal roster system to contact the DST doctors for out of hours emergencies. This caused Matron Fawdry concern which she expressed to Dr Gill on a number of occasions. Dr Gill's view was that a formal medical back-up service was unnecessary because of the small number of crises occurring. 135

Royal Commission

into

Deep Sleep Therapy

She remembered Dr Gill approached Dr Bailey on a number of occasions asking him to attend patients more regularly, but without success. She was satisfied with the services Dr Herron provided. Matron Fawdry confirmed Dr Bailey's practice of pre-signing treatment sheets in bulk, but she said Dr Herron individually signed treatment sheets for each patient. He would also sign any additions or alterations. In a record of interview dated 13 November 1985 (part of exhibit 175), Matron Fawdry was asked: "Q. During your time a number of inspections were carried out by Health Department officers. What was the purpose of those inspections? A. They were carried out for the purpose of continued licence as I understood, and such things as numbers of nursing staff to patient ratios, patient records and register were inspected, the Schedule 4 drugs and corresponding register were inspected and the premises were inspected, both the patient environment and the kitchen area; this included the sedation ward and facilities available. As far as I am aware there was no negative response to the procedure we were engaged in, as we were licensed every year."

This answer gives some cumulative weight to Matron Nelson's interpretation of the departmental inspections. It also supports an argument that the nursing staff were entitled to rely on the inspections as constituting an approval of DST. Matron Fawdry recalled inspections by Health's Miss Val Oxley. These were not impromptu visits. The staff knew in advance she was coming. Matron Fawdry confirmed most patient crises in the DST ward occurred on night shift and more often than not after the 6am medication which, involving as it did the administration of both Tuinal and Neulactil, caused a reduction in blood pressure. She thought when the number of DST patients exceeded six, an additional ward was opened. This was not a common event, "because we only had one suction trolley and we did not have enough equipment to furnish two rooms safely, so it didn't go on all the time," (Eatts tapes transcript part exhibit 175). In her time, the bed occupancy rate was high. It very rarely fell below 20. She recalled one occasion when there were 48 patients. Having the DST ward in operation meant the hospital needed to employ one additional nursing aide on the evening and night shifts. This totalled 18 hours a day at the mid-1970s rate of about $6 an hour. 136

Volume 1

Chelmsford

When Sister Fawdry began work the DST ward was located in the front of the building in ward 17 with a capacity of eight beds, but it later moved towards the rear of the hospital to ward 15 (six beds) and later still to ward 16 (six beds). She recalled when Miss Smith was matron the DST ward was swabbed and the patients were moved out while the room was treated. The hospital records suggest this occurred in September 1976. She did not remember any other occasion when the DST ward was swabbed. When she started at Chelmsford, Sister Fawdry was aware of the synergistic operation of phenothiazines and barbiturates in combination which caused a fall in blood pressure. She received no instruction as to the amount of drug which would cause difficulties. In view of the fact that 13 people died because of the treatment before she started there, this shows the DST practitioners callously disregarded their patients' welfare. Matron Fawdry's account of the admission procedure was if the admission occurred during normal hours, receptionist Mrs Sansom took the formal particulars. She often obtained the authorisation for ECT. The registered nurse on duty took the patient history. If the patient was incapable, sometimes a history would be obtained from a relative. The non-sedation doctors had a practice of telephoning the hospital and giving a brief patient history before admission. They often prescribed a small quantity of Valium to be given on admission. Dr Bailey's patients were sometimes admitted out of hours when often little history was available. The instructions to begin DST would be "already there". In these cases no patient history was available until staff contacted Dr Bailey's rooms the following day. I note that this unsatisfactory and dangerous practice was clearly a factor in a number of deaths. Patients who were physically unsuitable for the treatment were begun on DST without any assessment by a medical practitioner (see volume 3). Matron Fawdry said the records of the DST patients were kept in that ward. The doctors rarely wrote in the nursing notes because they kept notes in their own surgeries. She contrasted this with state hospitals where doctors wrote in the nursing notes almost as much as the nurses. Matron Fawdry's evidence about the appropriate level of sedation which she tried to achieve (approved by both Drs Bailey and Herron) was where the patient should be asleep but not rousable in the sense of "getting restless and writhing around the bed and . . . (trying) to get out of the bed and opening their eyes and calling out, probably hallucinating . . . ". She said Sister Shea "certainly gave more sedation than I did. She was 137

Royal Commission

into

Deep Sleep Therapy

prepared to give it to them at sedation time even if they weren't awake . . . She probably used PRN more often". The drugs were administered through the Ryles tubes. Matron Fawdry made the point that the suction equipment for the removal of secretions went down only to the back of the pharynx or perhaps to the beginning of the trachea but no further. She was asked whether a blockage could occur at a lower level. She said, "I suppose that is what happened in a lot of cases where we have not been successful in resuscitating the people. I mean I can only assume that". This answer is in accordance with expert opinions on many of the DST deaths (see volume 5). DST patients' observations were generally taken at four hourly intervals, occasionally more often. Staff recorded them first on a running sheet, then later transposed them on to a graph which formed part of each patient's records. Matron Fawdry thought some patients appeared better after the treatment but she believed this apparent improvement was due to the ECT. Matron Fawdry spoke about the admission of non-psychotic patients who gave firm instructions that they did not want to have DST. Staff contacted Dr Bailey who insisted DST be administered. The treatment would then begin by deceiving the patient. On the 60 Minutes programmes she agreed ECT was sometimes given to patients who had refused the treatment. This evidence raises an issue of general importance. The patients were voluntary. They had a complete freedom of choice about their mode of treatment. It was quite wrong for DST or ECT to be administered to them against their will. If their treating doctor considered a particular form of therapy to which they objected was essential and the circumstances warranted, then they should have been scheduled to a state institution. Matron Fawdry said when she became Matron she introduced a practice which allowed the nursing staff to sit outside the DST ward as they wanted to smoke. They were instructed to do a round of the patients every 15 minutes. While in this position the staff may well have been able to hear patients in distress because of respiratory secretions but they would be unable to detect the visible signs of oxygen deprivation caused by a gradual depression of respiration. Matron Fawdry understood the purpose of Dr Bailey's order book was primarily for billing and to update his Macquarie Street records. 138

Chelmsford

Volume 1

She mentioned that one or two of Drs Huppert's and Reichard's patients may have been moved into the DST ward at the request of staff, for observation purposes. She recalled that Drs Boettcher and Blows gave instructions that none of their patients were to be allowed to see the DST ward or patients. Matron Fawdry gave evidence about the circumstances in which the identification sheet of patient Barry Hart was tampered with in 1977. She said during a meeting at which she was present. Dr Herron, Dr Gill, and Mrs Sansom discussed how best to hide the evidence that Mr Hart had not consented to ECT. Senior counsel, Mr Barker QC for Dr Herron, extensively cross examined her but she adhered to her evidence and explained: "The fact of the matter is this: I've always known that the conversation took place . . . Because of the fact that I was in the room, I heard the conversation. I was in a responsible position. I was reticent about volunteering information about that meeting because I did not know what happened subsequently ... Whenever I could get the opportunity of playing with semantics so that I did not have to bring that evidence forward then I did. In the conversation with Dr Herron I was very much guarded, because he was one of the players and he was also a friend and he said he was very depressed. He also said that if that story was true that I would hang along with them ..."

Later she said: "I was relying on the inaccuracies in Rosa Nicholson's statement to allow me to not come forward with that evidence unless I was really compelled to."

(See volume 6 for more detail on the Hart identification sheet cover up.) Matron Fawdry was asked whether it was dangerous to supply patients with a quantity of drugs when they were discharged from Chelmsford. She agreed it was usual to supply 10 to 14 days' requirements of Tuinal and Dalmane or Mogadon which, although enough to cause death if taken on one occasion, was not more than a general practitioner could prescribe. This raises an important general issue about the supply of dangerous drugs to psychiatric patients. A significant number of patients discharged from Chelmsford after DST suicided, many of whom died of barbiturate poisoning. This matter will be addressed in my report on the second term of reference. 139

Royal Commission

into

Deep Sleep Therapy

As to Matron Fawdry's experiences with Dr Gill during her term as matron, see volume 2 and as to his involvement in the treatment of John Adams see volume 4. Dr Bailey's admission to Chelmsford for DST in April 1978 took place during Miss Fawdry's term as matron. On this subject see volume 2. There was considerable ill will between Dr Gill and Matron Fawdry. He said in his statement about her, Matron Smith and Nurse Nicholson: "I now have knowledge of concealment of improper or inappropriate conduct by Matron Smith, Matron Fawdry and Nurse Nicholson as is referred to in their evidence before this Royal Commission."

Nothing of this allegation was suggested to either Matron Fawdry or Matron Smith. The material concerning Nurse Nicholson involved her taking records from Chelmsford copying them and giving them to Mr Ron Segal of the CCHR. When Dr Gill gave evidence Matron Fawdry and Matron Smith had returned to Tasmania. Dr Gill was therefore able to make whatever attack he wished in their absence. He never provided any detail nor did he expand on his allegations in evidence except in the limited way I have described in the chapter about him. As to his attack on Matron Fawdry, the furthest it could go was to suggest she had a conversation with Miss Jan Eastgate and an unnamed Scientologist at some unspecified time and place. Initially he refused to name other people because he said they were afraid of the Scientologists. Later he named two of them. He claimed Helen MacArthur witnessed the conversation. It was easy to allege this unfounded innuendo. I reject it as an imputation of his suspicious imagination. Matron Fawdry was in Dr Gill's sights—he dismissed her without giving an explanation. He claimed there were incidents adverse to her. He said there was a witness who could corroborate him, Mrs Sansom. Mrs Sansom was not adverse to him, but she did not corroborate him. I reject his allegation. He clearly wanted some revenge for her public statements on 60 Minutes and The Coming Out Show. In September 1980 Matron Fawdry was interviewed for the television show 60 Minutes. During that programme she spoke about what had occurred at Chelmsford during her time there. Much of what she said was supportive of the hospital but it seems that the public statements themselves were sufficient to stir up Dr Gill. She said, however, that the DST unit was set up for intensive care but the nurses were not trained in intensive care. 140

Volume 1

Chelmsford

She said she could think of five deaths during her time there but not on her shifts. She mentioned Dr Gill used DST. She disclosed the use of pre-signed treatment sheets and the failure to obtain signed consents for ECT. She was asked: "Would you be surprised to learn that there were patients at Chelmsford who specifically said they didn't want ECT and were given ECT?"

She paused to consider this question and answered: "Would I be surprised? No. No. That happened."

This was the first public statement by anyone who had worked at Chelmsford. Not only that, it was by the most senior nurse. Despite Dr Gill's allegation this was part of a conspiracy to give false information against the hospital or part of a personal vendetta by her, I think she showed considerable courage in speaking out. It also showed that as she gained an understanding of what had occurred, she reassessed the problems which arose while she was in charge. Matron Fawdry also spoke out on the Coming Out Show broadcast by the ABC in October 1985. In that she said: "I was gullible maybe, gullible due to lack of knowledge."

This passage was broadcast in the programme at the beginning. I note she had only her psychiatric qualification at Chelmsford and she achieved her general qualification later. In the programme she spoke out about Miriam Podio: ". . . she died because the doctors didn't seem to be reacting in the same way as the nurses were."

She said Miss Podio was treated by Dr Bailey and: "Dr Gill had seen her as well."

When asked how long it took these two doctors to respond she said: "They never did, they never did respond in real terms ..." I think she is quite correct. Dr Gill, however, sued her for defamation over the programme. Those proceedings are still pending. Matron Fawdry became an important figure in bringing the problems at Chelmsford to public attention. She was interviewed and gave evidence before the Royal Commission. She was interviewed by police in connection with Podio and gave evidence at the inquest and the committal. She was interviewed by Miss Toni Eatts, a journalist, in 1983 and there were copies of extensive taped conversations with Miss Eatts. There were further interviews in 1986 concerning the Francis inquest and the police task forces into Chelmsford of 1985 and 1986. 141

Royal Commission

into

Deep Sleep Therapy

No deaths occurred on Matron Fawdry's shifts but she did help the cardio

pulmonary resuscitation of John Adams and Patricia Vaughan. Reginald Atkinson died when she was on leave. She recalled Ann Bennett as a lady "who got very congested. She was what we used to call 'gluggy', a lot of mucus and she required a lot of suctioning". Margaret Dawson she recalled as "a slight woman with a drinking problem". Stavroula Leousis she remembered as a short, very obese lady who caused concern among the staff about whether she was suitable for DST. She had no recollection of Julia Thompson. She had no direct knowledge of the death of Peter Clarke but was informed of it by her friend. Sister Val Crozier. She knew nothing of Mrs E.D. but she recalled Arnold St Clair "had a drinking problem and he used to get pretty 'gluggy' under sedation". Matron Fawdry was a forthright witness, very much a nursing professional. I formed a favourable opinion of her credibility. Her evidence, spanning as it did more than six years practice of DST was of great assistance to the inquiry. Her nursing experience and general training after Chelmsford enabled her to look critically at the medical and nursing practices which she inherited from 1972 and, more particularly, from January 1977. Her evidence about the difficulties of secretions obstructing airways was most relevant and helpful in determining the cause of death of several DST patients. She came from Tasmania to give evidence to the Commission. Genevieve Duffy Miss Genevieve Duffy was Chelmsford's matron from 17 July 1978 to 24 January 1979. She was only psychiatric trained and was not registered as chief nurse with Health. There were no deaths or major incidents during her time. Dr Gill gave her notice because Health required a matron who was both general and psychiatric trained. Suzanne Maree Moroney Miss Suzanne Maree Moroney was employed as Chelmsford's chief nurse from 5 February 1979 to 4 March 1981. She obtained her general certificate after training at St Vincent's Hospital from 1965 to 1969, later obtaining registration in midwifery, mothercraft and psychiatric nursing and a diploma in nursing administration.

She heard of the vacant matron's position from a friend. Sister Pauline Beecraft, who was employed by Chelmsford. Dr Gill and the 142

Volume 1

Chelmsford

secretary/receptionist, Mrs Mabel Brouwer, interviewed her at some length. She was told Dr Bailey practised DST at the hospital. She was also informed Dr Gill was available as a medical back up if it proved impossible to contact a patient's treating doctor. She worked the standard matron's hours of about 9am to 5pm Monday to Friday and began to live-in within two weeks of starting there. She was asked, "When you went to the hospital was the sedation treatment being carried out?" and answered "No". This answer was incorrect. She also said, "I knew nothing about deep sedation. There was only one patient who had deep sedation when I was there". She identified this patient as Coralie Walker. As to the circumstances in which Miss Walker suffered severe brain damage through DST and a false treatment sheet was written up by Dr Gardiner and backdated to the beginning of her DST, see volume 6. Matron Moroney's evidence was that Coralie Walker was admitted only five days after she became matron: "Dr Gardiner said he was admitting her for four days to four weeks while waiting to go to another hospital and he would decide on her management later, but just to get her in and settled down."

Coralie Walker was the only patient then fed by way of a naso-gastric tube. She was in room 12. She said: "Before she came in when I was on duty on a week day Dr Gardiner had rung and said he was sending her in but had not worked out her management. When she came to the hospital she said she was going to have deep sedation treatment. When I spoke to Dr Gardiner and asked him, he said it was still to be sorted out. It may be."

This answer is unacceptable. The fact was that Coralie Walker was admitted on Saturday 3 February 1979 to the general side of the hospital and given what might be described as routine psychiatric care until being discharged on 8 February. There was no reference in the records of that admission to any prospective DST. She was re-admitted on Saturday 10 February at a time when the witness was not present. At that time Matron Moroney was still living at West Ryde and was not on duty. As well, since Miss Walker's Chelmsford admissions were simply a holding exercise while she was awaiting a bed at Royal Prince Alfred Hospital, it is unlikely that Dr Gardiner would have envisaged submitting her to DST. 143

Royal Commission

into

Deep Sleep Therapy

The nursing records for the admission on 10 February make it clear that DST had begun by 1.30pm on 10 February. It is obvious that Matron Moroney would have become aware on Monday 12 February when she began work that Miss Walker was undergoing DST. She said: "I cannot recollect anything. Only that I would have gone on Monday and found somebody there or had been told on the weekend that somebody was having sedation."

Matron Moroney, as she said, had no memory. It is plain from her later answers that any evidence prefaced by the phrase "I would have" is based on a reconstruction of events in such a way as to place herself in the best possible light. Matron Moroney was asked about the pro forma DST treatment sheets. She said that she had never seen a pro forma sheet before but after the Coralie Walker incident, she found a number of them when cleaning out a drawer and she disposed of them. Some of these were unsigned and the others were signed by Dr Bailey. It was put to Matron Moroney that either Dr Gardiner had deliberately lied about writing up and backdating the treatment sheet, or the nursing staff had administered DST drugs which were not authorised. Her answer was: "I accept one sister may make a mistake but sisters on different shifts would not make the same mistake. Having worked with these people I imagine someone would have said along the line, 'What is going on?'."

Again, this is simply part of a reconstructive process and is of no assistance in determining when the treatment sheet was written up. Matron Moroney became aware of the nature of Miss Walker's treatment on Monday 12 February 1979 because: "She was in her room, prone in bed, curled up asleep and there was a special with her."

The evidence about the special nurse was later withdrawn as incorrect. Her evidence was that she first became aware of the serious deterioration in Miss Walker's condition about mid-morning on Wednesday 14 February. She said: "Coralie's colour went from pink to grey, a massive change of colour, as they rolled her over." 144

Volume 1

Chelmsford

Her belief was that the patient had suffered a pulmonary embolism. Matron Moroney said that she rang Dr Gardiner and an intensive care ambulance. Dr Gardiner arrived just as the ambulance officers were connecting Miss Walker to an ECG machine. She asked Dr Gardiner to inform Hornsby Hospital the patient was coming and she denied she saw Dr Gardiner again that day. Specifically, she denied she was ever together with Drs Gill and Gardiner on that day. Dr Gardiner's evidence that Matron Moroney and Dr Gill were both present when he wrote up and signed the treatment sheet on 14 February was put to Matron Moroney. She said: "I say on oath, it did not happen."

I find this answer to be untrue. It is unclear when Matron Moroney first met Dr Bailey. He was on holidays when she began at the hospital. When he started visiting his patients at Chelmsford again, she left a message with staff so she could meet him. A message was conveyed to her that: "Dr Bailey was not interested in meeting (her). He said matrons were a dime a dozen in the hospital and he was not going to waste his time talking to me."

Eventually, she had a two-hour discussion with Dr Bailey at about 10.30pm one week night. He told her that he would be sending patients in for DST, the therapeutic effects of which he described in glowing terms. His description of the treatment, coming as it did almost 16 years after it began and after 24 deaths, I set out as follows: "His idea was when patients were in turmoil, being psychotic, drug addiction, chronically agitated, and he gave a full range of psychiatric disorders that by . . . giving them a good sleep over a number of days it allowed them to come out very similar to somebody who was in cardiac arrhythmia, stopping their heart and letting it start again, and that is the way he said it at the time, when the patient had the sedation they had gone to sleep for two weeks and when they came out of it, after a couple of days of confusion, and getting the drugs out of their system, they went about their lives in the normal range. Agitated people became less agitated or nil agitated. Drug addicts did not have cravings. Psychotic people had settled down completely without major disturbance to their life and lifestyle."

I note here there is no evidence whatever to support any of Dr Bailey's claims (see volume 2). 145

Royal Commission

into

Deep Sleep Therapy

In this conversation, Dr Bailey "... was saying he would be seeing all his patients before they came out (to the hospital)". In addition to obtaining this assurance. Matron Moroney claimed that as a precondition to receiving any DST patients from Dr Bailey, she insisted on a number of matters, namely, an examination by a physician, together with a chest x-ray, the presence of the admitting doctor at the time of admission to settle the patient down and write up a treatment sheet. At the time of this discussion, she thought Dr Bailey's patients comprised about half those in the hospital. When she gave this evidence she thought Dr Bailey had not admitted any DST patients after returning from holidays. This proved to be incorrect. During the conversation: "He talked about a group of doctors who had banded together to try and force him not to use that treatment in the hospital and that the outcome was that they went and he stayed, that the hospital needed him is the way he put it."

The conversation concluded with Dr Bailey saying: "Go and pack your bags matron, you will not be around in the morning."

Next day. Dr Bailey rang Dr Gill seeking Matron Moroney's dismissal. On this occasion. Dr Gill supported Matron Moroney and Dr Bailey immediately discharged all his patients except two who came under the care of Dr Herron. After Dr Bailey withdrew his patients, there were about four or five people admitted on the basis that they were patients of Dr Herron. Matron Moroney said of Dr Gill that he was always very accessible and easy to deal with. She also found him supportive. The only exception related to his behaviour at her farewell party when he was informed she was, in effect, going over to the enemy by joining the Health Department's northern metropolitan region. Matron Moroney knew Matron Robson as a young person and by reputation. She described her in terms similar to those used by Matron Fawdry: "She was a very charismatic, alive, vital person. She attracted interesting nurses. People enjoyed working with her."

Matron Moroney was on an overseas holiday during part of the time Mr Hart's case against Dr Herron and Chelmsford was being heard. When she returned the case was finished. She found that the staff morale was 146

Volume 1

Chelmsford

at "zero level". She made up her mind to leave but stayed on for about six months out of some sense of obligation to the hospital and to Dr Gill. She was asked about Chelmsford's facilities for treating unconscious patients. She believed it was essential each patient have a separate sucker machine with the plastic end attached ready for immediate use. This was the appropriate equipment in use for unconscious patients from the time she began training in 1965. She would have also liked to have had a Bird's positive pressure respirator. She said (wisely), "my nursing experience had taught me to expect the worst, not hope for the best". Matron Moroney claimed to have introduced a practice from the beginning that no ECT treatment would be given without an anaesthetist being present. This evidence was immediately withdrawn when her attention was directed to the nursing records of Miss R.E. (exhibit 288) who had ECT without an anaesthetic injection. Miss R.E. underwent DST from 16 to 21 February 1979. Matron Moroney's explanation was that the requirement for the anaesthetist was put in force two or three weeks after she began there. This afterthought does not rest well with her previous answer: "One of the practices I brought in from the day I started was that no ECT treatment would be given without an anaesthetist being present ..."

Her attention was also drawn to exhibit 154, the nursing records of Miss S. M. She was admitted on 21 March 1979 as a patient of Dr Herron who gave instructions by phone to begin DST. This is quite inconsistent with the rather exacting practice standards that Matron Moroney said she had laid down for Dr Bailey. Miss Moroney's attention was drawn to the admission on 9 February 1979 of patient Mr T.W. who began DST on Dr Bailey's orders on Saturday 10 February. There were, then, a total of three patients Miss R.E., Miss S.M. and Mr T. W. in addition to Coralie Walker who underwent DST. It is difficult to understand how Matron Moroney could have failed to remember any of these three patients particularly in the light of the catastrophe which befell Coralie Walker. Plainly, Matron Moroney would have been aware soon after starting duty on Monday 12 February that DST was being practised in the hospital. With her strong background training and her views as to the essential equipment for such treatment, it is inconceivable that this state of affairs would not have had a dramatic impact on her. 147

Royal Commission

into

Deep Sleep Therapy

Her attention was drawn to an entry in the nursing records for 4 April 1979 (part of exhibit 154) which was in Dr Bailey's handwriting. This appears to be the only occasion on which Dr Bailey wrote in the nursing records. Part of his entry reads: "All the indicators point to her having had O/D of some sedative ?? Tuinal, ?? Mandrax. Continue observations. Notify Dr Herron of episode."

This strongly suggests that although Dr Bailey's patients had been removed from the hospital by this time, this particular patient was admitted under Dr Herron's name but in reality remained a patient of Dr Bailey. Matron Moroney was asked questions about Miss R.B. who died in Royal North Shore Hospital following a cerebral haemorrhage. This was not a DST related death but it does raise a general issue in that the patient suffered a cerebral haemorrhage and complained of headaches for some days at Chelmsford. Her condition was not recognised as a physical problem because of her past psychiatric history. A somewhat similar problem of diagnosis arose in the case of Mrs E.D. (see volume 4). Matron Moroney's evidence about departmental inspections was that they were spot inspections without any prior appointment. "Three people would turn up on your doorstep." The visit of Mrs Lois Gubbay in May 1980 relating to Health's census requirements was exceptional in that an appointment was made. She recalled Dr Gill came to the hospital "and he immediately berated this woman. He only ever had two verbal outbursts in the two years I knew him, and one was on this occasion where I was dumbfounded with my mouth open. The other was on my last day of duty when I was berated by Dr Gill". The subject of Dr Gill's outburst was perceived harassment of the hospital by Health and his belief the Church of Scientology had pressured Health into trying to close the hospital. Matron Moroney was extremely embarrassed at Dr Gill's outburst. Miss Moroney drew attention to a change in attitude in and towards the nursing profession in the mid-1970s. When she began her training in 1965 it was "an era where nurses walked with their hands behind their back behind the doctor, never spoke unless spoken to, and it goes downhill from there . . . you did not get in the same lift with the doctor . . . ". In her words, "nurses were allowed to think, around about 1976 She thought this process was more rapid in the public hospitals, probably relative to staff turnover. 148

Chelmsford

Volume 1

Sister Patricia McDougall's evidence was that after Coralie Walker's transfer, another of Dr Bailey's patients was in the same bed and about to undergo DST. Sister McDougall confronted Matron Moroney and said the staff would not give DST to the patient. Miss Moroney was later recalled and had the opportunity of responding to Sister McDougall's evidence. She was asked, "Do you remember that?" and she said, "No". She was then asked, "Do you deny that?" and replied, "Yes". Further questions made it clear that her answer was based on her belief that Sister McDougall would not stand up to anyone. In view of the considerable problems of recollection Matron Moroney exhibited, I prefer the evidence of Sister McDougall. She was further examined about a conversation over the telephone with Dr Gardiner when she was apparently seeking details of the proposed treatment for Coralie Walker. She agreed this conversation must have taken place between Monday 5 February and Thursday 8 February 1979. During this conversation he did not specify a treatment plan. She was unable to explain why it was that there was nothing in the nursing notes about DST. The following question was put to her, "What is your evidence now?" She answered: "When I came here before I was duty bound to help the Commission, and I would give all my recollections and all my opinions. I guess it was a mistake."

She was then asked, "Why was it a mistake?" She answered: "I gave a lot of opinions which were not now based on fact. I would have done things on how I would have behaved and they were not my distinct recollections on being there at the time. I would stand by what I said. Legally I do not know how it stands up."

I have already expressed the view that, on many occasions when Miss Moroney purported to give evidence of her recollection of facts, she was doing no more than giving a beneficial reconstruction of what ought to have been. Her general evidence on nursing practices was useful but I cannot attach any credence to her professed recollections of the treatment of Chelmsford's last DST patients nor to her memory of the precise chain of events surrounding and following the transfer of Coralie Walker to Hornsby District Hospital. 149

Royal Commission

into

Deep Sleep Therapy

Communication at Chelmsford

The method of contact between nurses and doctors attending patients undergoing DST at Chelmsford varied between 1963 and 1979. In the earlier years Dr Bailey used an exercise book to record his instructions and to illustrate by diagram the modes of treatment for patients. He had very little direct communication with nurses. Any discussions about patients during day time visits were usually conducted with the matron. When in the late 1960s Dr Bailey began to visit patients at Chelmsford around midnight or the early hours of the morning, there was virtually no communication with the nursing staff. At times Dr Herron also wrote instructions in the book at the hospital but otherwise he spoke with nursing staff. Dr Gardiner spoke with staff during his visits, which were mainly to give ECT. There were no established procedures, guidelines or means of communication between nursing staff on various shifts between 1963 and 1979 and between them and the treating and attending doctors. Again, to add to the problems, there was almost no communication between Dr Bailey, Dr Herron and Dr Gardiner about their patients. In one instance Dr Herron and Dr Gardiner each gave conflicting directions about a patient's treatment. In another case Dr Gardiner ordered a patient to be taken off a drug but he failed to let the hospital staff know. Another patient was given ECT in the morning by Dr Gardiner and by Dr Herron in the evening without the latter being aware, through the nursing staff or otherwise, of the duplication. The treatment of Coralie Walker in February 1979 and the catastrophe which befell her highlighted a serious breakdown in communications between Dr Gardiner and the nursing staff. Dr Gardiner claimed he gave certain instructions about her treatment, but they were not written down and not communicated to anyone other than the nurse to whom he allegedly spoke. While Dr Gardiner wanted Coralie Walker to be treated in a certain manner she was given a different treatment. She was given full DST treatment even though Dr Gardiner claimed he only wanted her to be given light sedation. When Dr Gardiner attended Coralie Walker on 12 and 13 February, 1979 she was in deep sedation with a naso-gastric tube in place, but he failed to realise her condition. Also he did not discuss this patient with the nursing staff. Another extraordinary feature of this case was that Dr Gardiner presumed Miss Walker was being looked after by a special nurse who was not told about this role and who did not consider herself to be specialling this patient. 150

Volume 1

Chelmsford

Miss Jan Allan, a secretary of Dr Bailey's, described the communication from Chelmsford to Dr Bailey's rooms in Macquarie Street about patients undergoing DST. She said that on the patients' admission to Chelmsford, the matron telephoned Dr Bailey for instructions about their treatment. Some other evidence indicated this was not the practice at times. She stated that when there was any change in a patient's condition the registered nurse in charge contacted Dr Bailey, which was generally through Miss Allan. According to Miss Allan the matron or one of the senior sisters telephoned her each day for billing purposes to advise which patients had had treatment by Dr Herron or Dr Bailey and whether there had been an individual consultation or hospital visit. The practice of nurses notifying a doctor when any unusual change occurred in a patient's condition seemed to depend on the attitude of particular nurses. Matron Fawdry said it was the nurses' responsibility to bring anything abnormal, such as a high temperature, to the attention of a doctor either in writing or by telephone. A number of other nurses followed this course. A number of nurses gave evidence that a doctor was generally available and easy to contact about a patient's condition. In cases where a patient's treating doctor was not available there was usually another doctor who could attend, eg, Dr Herron or Dr Gardiner for Dr Bailey's patients. In the event of none of these doctors being available Dr Gill or a local general practitioner was telephoned. In the 1960s and early 1970s Dr Bailey usually responded personally to calls from Chelmsford when an adverse change occurred in a patient's condition but thereafter he was often unavailable. There was evidence from a number of nurses that the condition of patients and their problems were discussed with nurses who were starting work at the change over of the different shifts. Other nurses gave evidence that before ECT was given, Dr Herron discussed the patient's condition with them and looked at relevant records. There were exceptional occasions when this treatment was postponed. On the evidence, Dr Gardiner usually visited Chelmsford three or four mornings a week, giving ECT over a period of about half an hour to patients, sometimes as many as three or four, one after the other in the sedation ward. While giving this treatment he was accompanied by a member of the nursing staff. It was Dr Herron's practice to attend Chelmsford in the evenings, on alternate days to Dr Gardiner to give ECT to patients undergoing DST. He too was accompanied by a nurse on his rounds. 151

Royal Commission

into

Deep Sleep Therapy

Apart from the above contacts and attendance at an occasional social event mostly organised by Dr Gill, there was no other contact between nursing staff and the three psychiatrists attending patients in the sedation ward at Chelmsford. This lack of proper contact or communication was especially blameworthy in the light of the large amount of evidence that DST patients who were given ECT when deeply sedated had depressed breathing, depression of other vital reflexes, high temperatures, elevated pulse rates, falling blood pressure and other adverse conditions. Nurses' discretion

Although I have touched on the nurses' discretion in relation to drug administration in volume 3,1 will deal with it in more detail in this section. On the patients' records, especially the treatment sheets and in the evidence, nurses had a wide discretion in the treatment and care of patients and the administration of drugs at Chelmsford. Dr Herron's counsel, in accepting that nursing sisters had some discretion in the administration of medications, submitted it was limited by the treatment sheet completed by the doctor and the patient's condition. Although there was evidence that medication was frequently administered in accordance with signed treatment sheets which specified the drugs to be taken, the dosage and at what intervals, this was not so in very many instances as the evidence disclosed. There was evidence, which I accept, that drugs in excess of the prescribed amount and the prescribed times as well as drugs which were not prescribed or were not the subject of signed treatment sheets or a patient's consent, were given to patients. Counsel for Dr Herron also submitted that nurses did not make the choice of what drugs to use, they played no role in the selection of drugs, they only gave medication on doctors' instructions and would not have given something not prescribed. There was reliable evidence that nurses followed a traditional drug regime for DST patients which had grown up at Chelmsford. They administered drugs in the absence of any signed treatment sheets or contrary to them. Although many examples could be given of this practice, one is sufficient to totally reject the submission. A 13 year old 5 stone (36.3kg) anorexic female, Miss M.W., who was a patient in Chelmsford in October-November 1972, was given DST and 10 ECT treatments without an anaesthetic or muscle relaxant. This young patient was not only given drugs which were not prescribed, eg, Placidyl, Cogentin, Reverin and Largactil but dosages of Tuinal which exceeded, without any doctor's orders, the prescribed dose of "200mg four to six hourly" by as much as three times the rate prescribed (see exhibit 242) on 27 October 1972 when 600mg of Tuinal was given in three and a half hours. 152

Volume 1

Chelmsford

This example was typical of the treatment of many DST patients. The nurse's night report of 18 October 1972 for Miss M.W. included the following instructions from Dr Herron: "Miss M.W. to be sedated: use Tuinal 100mg to sedate patient until tolerance to same increases—may need additional phenothiazines to supplement Tuinal PRN."

This entry, which allowed this fragile patient to be treated by nurses mixing drugs on a PRN basis or as required in 1972, is evidence of the wide discretion vested in nurses and the nature of their role at Chelmsford. In the final submission for Dr Gill, counsel claimed that nurses were aware of the discretion which was available to them when treating and caring for patients and they applied their training and experience in accordance with the matron's directions. Emphasis was placed on the psychological differences between patients with different personal and historical factors which required variables in the treatment, and in the exercise of a nurse's discretion in administering drugs to patients. Counsel also submitted that if a nurse was concerned about the condition of a patient or of the dosage, the maximum dosage would not be given. Also nurses considered a patient's condition and circumstances before administering medication, eg, age, size, body weight, physical condition and tolerance to medication, level of consciousness, appearance and rouseability and they made a clinical assessment of the patient before giving each dosage which would be determined from the range given on the treatment sheet. Unfortunately, the matters Dr Gill and Dr Herron regarded as important in the treatment including the condition of patients, were not often obtained. In most cases physical and/or psychiatric examinations were not carried out by a doctor before or on admission of the patient to Chelmsford. Some tests such as liver function tests and full blood counts were carried out but these were not done until DST treatment had begun and frequently several days passed before the results were available. While there was some evidence that doses of drugs were restricted or not given when the patient's condition was not satisfactory there was quite an amount of reliable evidence of drugs being administered to patients whose condition was such that it was inappropriate for any medication to be given. The case of John Adams is but one answer to counsel's submissions. When he was a patient at Chelmsford from 21 September to 23 September 1977, Mr Adams had a high temperature and was febrile during the 30 hours before his collapse and transfer to Hornsby District Hospital. During this period he was given 2800mg of Tuinal together with 90mg of Tranxene, 1000mg of Amoxil, 6mg of Serenace, 10mg of Neulactil, 7 Palaprin tablets and Disprin. About two and a half hours before his collapse, which was reportedly due to respiratory failure and cardiac arrest. 153

Royal Commission

into

Deep Sleep Therapy

he was given 400mg of Tuinal, the Neulactil referred to above and 250mg of Amoxil and one Palaprin tablet. None of this medication was prescribed in writing by his treating doctor. Dr Gill. Dr Gardiner claimed that during the time he was attending patients at Chelmsford to give ECT, his instructions about the drug regime and the depth of sedation were not being carried out by the nurses. He thought the staff were just doing their own thing. Before 1971 there were no treatment sheets at Chelmsford. Patients were admitted for DST with little mention of their history or psychiatric conditions or diagnoses. In general they were treated on a pre-determined standard basis. There was a written regime of instructions on the front page of Dr Bailey's first book at Chelmsford. Frequently the drug regime was specified only by reference to this but sometimes Dr Bailey did specify the individual drugs and dosage for the particular patient. During this period patients were frequently admitted with general instructions that sedation was to be given and nurses decided on the nature of the drugs and the amounts to be given. It was left to the nurses who were expected to know the levels of doses which were required to provide the necessary sedation. According to Dr Herron the nurses learned over the years the effects the drugs had on patients and they were able to adjust the doses of those drugs accordingly. After 1971, treatment sheets in most cases contained a standard regime of medication for patients, eg, Tuinal 200 to 400mg 4 to 6 hourly, which meant a nurse exercised a discretion of giving 800 to 2400mg of Tuinal a day. In the case of Sodium Amytal, usually prescribed as 500mg IMI PRN in treatment sheets, no maximum amount was set for its administration. Nurses were also given a discretion to vary doses above a prescribed minimum and up to a prescribed maximum. Additional drugs were included in the treatment sheets that could be given by nurses PRN, or as required. The nurses in general exercised their discretion to administer maximum doses of the cocktail of drugs over a specified period. In a lecture to nurses at Chelmsford in 1977, Dr Bailey told them that the sedation programme confronted nurses with a monstrous problem and for the first time in the history of nursing, doctors relied on nurses to make a judgment whether a patient was to be given medication. Dr Herron also agreed that nurses had to make a judgment about giving medication to patients. He said some of them were not very good at administering DST. He acknowledged that a pool of well trained nurses was crucial to the DST programme. Dr Gardiner conceded during his evidence that there was some danger in the treatment sheets because they gave too much discretion to nurses 154

Chelmsford

Volume 1

and they were not sufficiently tailored to the individual needs and conditions of patients. A written entry by Dr Herron in the notes of a patient, "Deep sedation and ECT", without any written or typed treatment sheet including all the usual DST drugs and signed by a doctor, was described by Dr Gardiner as inadequate. The direction, "Deep sedation and ECT" and other expressions which were used in the records, like "For deep sedation" or "For routine sedation", would not have been understood by a nurse who was not familiar with the specific culture at Chelmsford or experienced in DST or in assessing the depth of sedation. In my view directions of this type were grossly inadequate and gave too much discretion and responsibility to the nurses. Dr Gardiner also agreed that the average daily dose of amylobarbitone administered by Dr Bailey in the 1970s was close to fatal. Professor Douglas Joseph was the Nuffield Professor of Anaesthetics at Sydney University from 1963 until his untimely death in 1989 shortly after giving evidence to the Commission. He was also head of the Department of Anaesthetics at the Royal Prince Alfred Hospital. He had almost daily experience since 1950 in the care of anaesthetic agents and the care of patients under anaesthetics. He had also given anaesthetics for ECT and had experience in the use of barbiturates and intoxication by barbiturates. When he was asked about the distinction between the person prescribing and the person administering drugs. Professor Joseph said: "... if you (a doctor) order a drug and you know somebody else is going to administer that drug, you must be quite satisfied in your own mind that that person to whom you delegate that authority is capable of carrying out that treatment. That should be a principle of any doctor in any situation ordering a drug. I think if he orders a drug, then it is up to him to see that the conditions under which that drug is administered are safe for the patient."

Professor Joseph said he started the first recovery ward at Sydney Hospital in 1957 which turned into a sort of intensive care recovery ward. He added that patients were being treated in an intensive care situation when he went to Royal Prince Alfred Hospital in 1963. The Commission provided Professor Joseph with the drug regime for a patient, a pro forma treatment sheet signed by Dr Herron, charts indicating tablets and injections and a list of the daily intake of drugs. He was also given a schedule of five female and five male patients and their ingestion of drugs under deep sleep for the first, third and 10th days. Professor Joseph described the ingestion of 2400mg of barbiturate in 24 hours as extraordinary. He said: "A patient can be unconscious to a point that is dangerous to their survival and react to a painful stimulus. I think that is what we 155

Royal Commission

into

Deep Sleep Therapy

should state. In other words the reflex activity of the patient is depressed, the vital reflex activities, such as the cardio vascular system, the respiratory system and more importantly in this case the pharyngeal and gastro-enterinal system because of regurgitation of stomach contents and not being able to cough out their secretions which will accumulate is of vital importance, and jumping ahead and looking at some of these cases, and we have very high barbiturate intoxication, there are two ways in which patients die from overdoses of barbiturates. One is pneumonia, which is statis of secretion in the lungs not being able to cause the cilia which are the means which we bring sputum to our mouth so we can spit it out, the reflex activity is depressed. The other one is regurgitation of stomach contents, which is extremely dangerous, and one of the great dangers of anaesthesia, and these people are virtually anaesthetised. The other one, as I was going on to say, is cardiovascular because the barbiturates are cardiovascular depressants ..."

Professor Joseph referred in his evidence to a number of matters which created problems for nurses when called on to make judgments about medication for patients. He said that a patient could be profoundly unconscious, particularly with barbiturates and yet respond to a painful stimuli. He also said that the amount of barbiturate ingested by deep sleep patients at Chelmsford highly exposed them to pneumonia. According to Professor Joseph if nurses or doctors were to administer drugs PRN they needed to be knowledgable and discriminative. He was asked whether sisters at Chelmsford would have been in a position to assess sufficiently the depth of sedation of patients and said: "... I would not like any relative of mine to be assessed like that or myself, if I was in that situation, because I do not think their knowledge would be enough of those drugs and of medicine generally, as good nurses as they may be, and some of them obviously were, to make that assessment. I would consider that is a medical assessment and by a qualified, experienced medical practitioner."

Mr Roy Godfrey Weatherhead, a registered nurse, registered psychiatric nurse and a Fellow of the NSW College of Nursing with a Diploma of Nursing Education, in a letter dated 13 February 1989 to the Commission said: "In the 1966 reports, there is very little mention of the patients' psychiatric conditions or diagnoses. Nurses commenced deep sleep sedation with no patient history and often little information other than the referring doctor's telephone instructions. It would seem that nursing staff had enormous responsibilities for establishing, maintaining and reversing sleep therapy. Apparently 156

Volume 1

Chelmsford

they worked with predetermined, standard medication regimes and were required to exercise their own judgments about the drugs and doses required. This situation was surely unique to Chelmsford Hospital."

When referring to the discretion given to nurses administering DST at Chelmsford, Mr Weatherhead said (exhibit 356) that he was very uncomfortable with the whole medication regime, the whole idea of the cocktail, because he thought that nurses would have little experience of the possible interactions between those drugs. Juggling so many different drugs seemed to him a highly specialised activity in which he would expect a pharmacist to be involved. He added that as a nurse even now he would not want the responsibility of trying to manage that medication patient regime. He was also critical of engaging club agency nurses who would not be able to make much sense of the DST drug regime. Miss Linda Salomons, a registered nurse, a registered psychiatric nurse, the holder of a Diploma in Nursing Education and in teaching nursing and a Bachelor of Education of Nursing was shown during an interview in October 1989 the treatment sheet signed by a doctor for a 29 year old female patient. The sheet was one which was available for patients undergoing DST at Chelmsford. When she was asked "What do you say about the discretion that was reflected in that cocktail of drugs?" she answered "I would not expect a nurse to have worked with that kind of medication sheet, if you're talking about the 1970s". She said that nurses were not adequately trained in the 1970s to exercise a discretion to give Sodium Amytal 500mg IMI PRN, and they did not have the knowledge to understand the potentiation of drugs. She described the discretion in the treatment sheets to give 200 to 400mg of Tuinal 4 to 6 hourly as very wide. It was the kind of discretion which nurses should not have been asked to exercise. When the Professor of Pharmacology at Sydney University, Professor Roland Thorp, was asked in the Carter Inquest 1967 about nurses giving Sodium Amytal PRN, he said that as a pharmacologist he thought this discretion was asking a very great responsibility of a trained nurse. Sister Patricia McDougall, a registered nurse since 1969, who worked at Chelmsford two days a week from late 1978 until early 1981, said that the treatment sheets for DST provided a lot of discretion to nursing staff. To a question "Did you consider yourself suitably experienced to exercise the discretion reflected in that treatment sheet?" she answered: "Before I went there I certainly had nothing to do with barbiturates in those quantities. In fact I hadn't even heard of half of those drugs. I guess that was another thing that worried me too. I mean I don't think nurses should have that sort of discretion and this is where 157

Royal Commission

into

Deep Sleep Therapy

I felt the doctors should have been taking more of a part in what was happening."

The evidence made prominent many of the difficulties which confronted nurses in giving drugs to DST patients. Nurses were required to exercise their discretion, without any steps being taken to ensure they were informed about problems arising out of the combination of drugs used in the drug regime for DST and without any control or constant medical supervision in their administration. Generally nurses were unaware of the dangers and interactions of the various drugs used in the regime. They were not instructed about the propensity of the drugs used to mask side-effects. When they were not experienced in assessing the depth of sedation, they were required to assess and judge an unconscious patient's suitability for drugs merely on their observations of the patient. To add to the problem, nurses on occasions were engaged from club agencies or seconded from sections outside the sedation ward, to care for sedated patients. They were not told that restlessness of patients undergoing DST could be an indication of barbiturate intoxication and additional doses could lead to much greater levels than were safe. It would have been difficult for them to distinguish restlessness due to lightening out and restlessness as a sign of barbiturate poisoning. Notwithstanding the grave inadequacies of medical and pharmacological training at Chelmsford in the administration of drugs for DST patients, the nurses at Chelmsford from the beginning of that treatment in 1963 until 1979 were given a very wide discretion which they exercised with minimal direct medical supervision. To add to their problems no history or adequate patient history was recorded and treatment sheets were not sufficiently tailored to a patient's individual needs and conditions. Among other things, nurses initiated drug treatment to patients soon after admission, acting very often on drugs prescribed by a doctor in pre-signed treatment sheets with the patient's name subsequently added and sometimes before drugs were actually prescribed by and the appropriate sheet signed by, a doctor. They administered drugs which were not authorised to be given and they determined drug doses. Unhappily and contrary to claims by many nurses that they never gave medication except on the advice of doctors, they administered drugs which were not authorised in writing by doctors and they gave drugs which exceeded, sometimes by as much as 50 per cent, the doses prescribed by doctors. Further, the decision to give additional drugs was not always made by a registered nurse. Reliance was often placed on untrained but experienced nursing assistants and sometimes on inexperienced and not sufficiently qualified nurses. At the same time, the psychiatrists who were admitting and/or attending patients undergoing DST, rarely physically examined or psychiatrically assessed them, or read relevant nurses' or other notes or charts or made their own clinical notes when visiting patients or giving 158

Volume 1

Chelmsford

ECT. There was no resident doctor at the hospital. Nurses monitored the levels of sedation and the physical condition of patients. The conclusion is inescapable that in the absence of regular attendance of doctors at the hospital to oversee the treatment of patients and on the evidence generally, the clinical responsibility for DST patients at Chelmsford was left to nurses and the nurses virtually ran the sedation section of the hospital. This was an unreasonable and intolerable burden for the nurses. The terrible tragedy is that Dr Bailey and Dr Herron, who were aware of the "monstrous problem" which confronted nurses when exercising their judgments in the administration of drugs allowed the hazardous treatment to continue without any real changes or direct medical supervision. It was a deplorable situation. Quality of nursing The nursing care at Chelmsford during the relevant period has been described by doctors, matrons and many nurses as generally good. Mr S. Alehin, who examined 25 sets of nurses' notes, thought they indicated a reasonable standard of nursing care. Mr R.G. Weatherhead, after examining a similar number of notes, adverted to the limitations to what could be understood solely from notes and charts. He thought the hospital's patient records indicated a conscientious level of physical nursing care and a high level of observation existed. He reported, "The overall indications are that the nurses performed well under difficult circumstances".

Notwithstanding these opinions there were many shortcomings in the level of nursing care of patients in the DST ward due in no small way to the level of unconsciousness of patients for whom a considerable amount of physical care, similar to intensive care, was required from both general and psychiatric trained nurses. In a report dated 26 July 1989 on the first three days of Dr Herron's evidence, profiles of his patients and a pro forma drug treatment sheet from Chelmsford, intensive care expert Professor Joseph said: "The doses of sedative and tranquillising drugs, particularly the barbiturates, were of such massive proportions and in some instances in patients of slim build, that they could be regarded as tantamount to those doses seen in intoxication. It would appear that no blood levels were ascertained although such technology was available at the time. In such instances, one would suspect marked depression of respiration with accumulation of secretions to alveolar collapse and 159

Royal Commission

into

Deep Sleep Therapy

hypoxia in patients breathing air and ultimately areas of pulmonary consolidation and pneumonia. In addition barbiturates are well known to cause a fall in blood pressure which would result in lack of perfusion of organs, a number of which would be vital. Barbiturates and tranquillisers would, in the dosages used, give depression of pharyngeal reflexes, regurgitation and aspiration of gastric contents and result in marked respiratory insufficiency. The fact that many patients required intra-gastric Ryles tube inserted for feeding would suggest this depression of pharyngeal and swallowing reflexes and although it is stated that the tests were carried out by nursing staff to ensure that the Ryles tube was in the stomach, the feeding mixtures passed down the tube were such that under these circumstances of markedly depressed reflex activity, I would be most surprised if regurgitation and aspiration did not occur in a number of instances. In fact one of the main features in treating barbiturate intoxication is keeping the stomach empty. This then is the background of the condition in which these patients must have been with the typical doses of drugs as recorded, being administered on a regular basis. There is no doubt patients in this condition require skilled medical personnel present to avoid complications. Even though it would appear there were occasions during the day and night that reflex activity was allowed to return, there would still be many periods during the treatments when the patients would be placed in a hazardous situation . . . Under the conditions described it would be essential that there be constant and regular review of the patients' state of consciousness and reflex activity by qualified and experienced medical practitioners who should be within immediate calling distance. This appears not to have been so."

Professor Joseph gave evidence that unconscious patients in the sedation ward were in an intensive care situation and should have been nursed in a minimum nurse-patient ratio of one nurse, especially trained in treating patients who were intoxicated with depressive drugs, to two patients. He expressly excluded nursing aides for work in an intensive care situation. He said that before patients underwent the sedation regime, an assessment of their physical health was essential. Other investigations were also necessary, eg, x-ray and pathology tests. In his report Professor Joseph continued: "It would also appear that the nurse-patient ratio for patients in such a condition was insufficient although it has been difficult to assess from the records available to me how many people were being nursed in the 'deep sleep ward' at any one time. Patients with the degree of central nervous depression that must result from 160

Volume 1

Chelmsford

the dosages of the drugs recorded require virtual intensive care nursing conditions."

In an analysis prepared by the consultant psychiatrist of the number of nurses in the sedation ward in two periods, namely, four weeks in September-October 1973 and for the same period in 1974, he said that at most there were two nurses in the sedation ward when the numbers of patients under DST in the eight beds varied from four to eleven. The consultant psychiatrist commented: "Only one thing seems sure, and that is the staffing of the sedation ward remained at two (or even one) in spite of large fluctuations in the number of patients having DST at any one time." (See volume 11.)

There were cases of patients undergoing DST being left in conditions of danger with barbiturate intoxication. Further, patients were often left without adequate or proper nursing supervision or any visual observation. A practice of nurses inspecting patients only at intervals or listening to unconscious patients breathing from a position in an adjacent hallway, office or kitchen, could not qualify as adequate nursing care. The quality of the DST treatment depended to a large measure on nurses being present in the sedation ward all the time. But there were instances when the only nursing supervision in the sedation ward was provided by either a registered nurse or an untrained person. Matron Julie Smith said she was worried about the number of staff on night duty in 1976. She thought that having one registered nurse on night duty was inadequate because of the demands of the sedation area where a registered nurse was needed all the time. There were other instances when an unregistered assistant nurse was on duty in the sedation ward during the evening and night shifts and the services and attention of the only registered nurse on duty were needed in another part of the hospital. When this occurred the patients in the sedation ward were left without proper minimum qualified care. There were also numerous instances of patients not being monitored, eg, John Adams, Coralie Walker, Graeme Carter and Mrs R.I.M. Dr Gardiner recalled one occasion when there was no nurse in the sedation ward. Nursing care was inadequate and the patients' health and welfare were at risk when, as happened at different times the nursing staff did not follow the doctors' written instructions on the drug regime. They sometimes made their own selection of medication, did not pay attention to the risks and dangers of DST in individual patients and nursed sedated patients in a flat position. Invariably the maximum dosage of drugs in a standardised drug regime was used indiscriminately on most patients. High doses of barbiturates were, therefore, given to patients without any 161

Royal Commission

into

Deep Sleep Therapy

attempt to adapt them to a patient's particular requirements. Further DST and ECT were given when a patient's condition was unsatisfactory and nurses were often not aware of the nature of the condition being treated or its severity. Dr Ronald Vickery, a psychiatrists and an expert consulted by the Commission, was critical that both forms of treatment were continued with patients despite pyrexia, cyanosis and hypotension, without any appropriate physical examination. Deficiencies in the treatment and nursing care of DST patients became even greater after the death in July 1977 of Sister Betty Shea, who was a registered nurse and experienced in DST treatment including the doses of drugs. Chelmsford was then deprived of her expertise, skill and ability to instruct and guide other members of the nursing staff. Dr Gardiner thought that Sister Shea's role in DST was crucial and the treatment became more hazardous after her death because there were fewer nurses experienced in the treatment and their judgment about the doses was not as good. After Sister Shea's death some of the registered and assistant nurses in the sedation ward lacked the requisite training and experience to carry out DST treatment. Both Dr Bailey and Dr Gardiner believed that the nursing staff when Patricia Vaughan was a patient in October 1977, was not sufficiently skilled to maintain patients at a very deep level of sedation (see volume 6). Dr Gardiner came to the conclusion that there was not one nurse at Chelmsford in October 1977 who was sufficiently trained to maintain a patient at the level Dr Bailey required. He thought a nurse may have been able to do it for a day or so but not for the length of time DST usually lasted. It has been said that a decline in morale at Chelmsford occurred about this time. Notwithstanding some of the favourable comments which were made by a number of experts about the nursing standard as reflected by the nursing notes and some of the charts, the standard of nursing care fell short of the high standard which was necessary for patients who were undertaking a dangerous treatment like DST. Further examples of defects in the nursing care are: • No appropriate treatment was given to a substantial number of patients who developed pneumonia which was known as the main danger to patients, • There was no provision of necessary facilities to treat effectively the likely complications in DST treatment or to respond to any emergency which might occur, such as treatment similar to an intensive care facility. 162

Volume 1

Chelmsford

• There was failure to terminate DST-ECT treatment when complications occurred, eg, when there were marked falls in blood pressure, pulse, and respiratory complications, and • There was an absence of personal and emotional support and psychotherapy. I am satisfied that the nursing care which was given to DST patients at Chelmsford over the relevant period did not measure up to the standards of nursing care which were then practised in hospitals where patients were in a long term unconscious condition. The nursing staff working in the sedation ward should have been aware of the DST treatment and its shortcomings since a wide range of barbiturates, other drugs and injections were administered to patients very often in excessive amounts and contrary to instructions. Further I find it difficult to accept that many of the nursing staff at Chelmsford at the time of the deaths and grave illnesses would not have been aware of these events. There was evidence of conversations among nurses as to what had happened to patients and there was also "tea room" gossip about patients. In adverting to shortcomings in the nursing standards and the overall nursing care at Chelmsford, I am not criticising the actual physical care of patients by very many of the nursing staff who were dedicated to their welfare and care. They endeavoured to carry out their normal duties for which they were trained and qualified. Problems arose, however, when they were required to perform tasks for which they were not especially trained or qualified, such as the administration of a cocktail of drugs to patients at times and in quantities determined by them without medical assessment. However, nurses generally carried out their duties well under difficult circumstances. Without the efforts of these nurses, the tragedies, the deaths and catastrophes, which befell patients at Chelmsford would have been much greater. In their care of patients in the sedation ward the nurses made every effort to uphold the traditions of the nursing profession. Many were undoubtedly embarrassed by the nature of the DST and ECT treatments. Some resigned their employment, while others accepted the treatments due to the need to work, the lack of employment opportunities, for financial reasons, or they tolerated the DST believing that as it was prescribed by specialist doctors and the hospital had been visited and inspected by officers of Health, there was little that could be done. While there was a dearth of nurses complaints to Health, the Nurses' Association or doctors, the nursing staff's dilemma at the time is understandable. It is nevertheless 163

Royal Commission

into

Deep Sleep Therapy

a little surprising that only two nurses during the period 1963 to 1979 were known to have complained to Health about events at Chelmsford. Nurses' training Nurses fulfilled an important role at Chelmsford between the years 1963 and 1979. But the adequacy and sufficiency of their training, especially for the care and nursing of DST patients, was challenged. It was claimed that many had only psychiatric and not general training and many were not registered nurses and only had nursing experience. An extensive search was made by the solicitor assisting to determine what qualifications nurses held. There was a mix of general and psychiatric nurses with a large support of assistants. However, of the seven matrons who gave evidence, three were only psychiatrically trained.

Dr Herron claimed and it is accepted that the training of psychiatric nurses in the 1960s included recognition of levels of consciousness and taking observations of patients' respiration and colour. Professor Joseph gave evidence that nurses caring for and treating unconscious patients in the 1960s and 1970s would have had to be generally trained first and: "... they would have to in fact undergo special lectures and special supervision and supervisory training to treat the unconscious patient and to recognise danger signals, that is very important . . ."

Apart from informal lectures by Dr Bailey in 1977 and 1978 and a couple of lectures by a visiting doctor at the request of Matron Fawdry about resuscitation of patients, there were no formal lectures, talks or instructions by doctors, matrons or others to the nursing staff at Chelmsford in the administration of DST and the care and nursing of patients undergoing it. From time to time in the 1960s specific instructions for nursing care, treatment and medication for a patient were made by a doctor or matron in a book at the hospital. Dr Bailey claimed he especially trained nurses for DST at Chelmsford. This was never the case and nurses did not regard themselves as such. The stand seems to have been taken by the hospital management and the doctors who were treating and attending DST patients that nurses could only be trained at the hospital bedside by other nurses. This was usually done by a new nurse at Chelmsford working for a week in the sedation ward with Sister Betty Shea or a senior nurse. Over the years the nursing procedures and techniques for DST were acquired from a number of senior and experienced nurses who were referred to as "culture carriers". Among this special category was Sister Shea who had followed Dr Bailey from 164

Chelmsford

Volume 1

St Anne's Hospital, at Killara in 1963, and had worked at Chelmsford mainly in the DST ward until her death in 1977. She and one or two others, for example. Nurse Margaret Beattie, worked virtually as full time nurses in the sedation ward. They were aware of the techniques which were used for DST patients. Although these nurses were available to train and offer guidance to others, they did not undertake an educative or teaching role. At the most they and other nurses with some experience with DST answered questions from new nurses about the nursing care, treatment and medication of patients. This method of training nurses for the care of patients undergoing a hazardous treatment was most inappropriate and totally inadequate. Matron Fawdry, who began duties at Chelmsford as a sister in August 1972 with Matron Nelson, referred to Sister Shea as the "whiz kid" of sedation. She said the nurses had dialogue with Sister Shea on an informal basis but she could not remember being instructed formally in terms of how to deal with DST. She thought the matron must have given instruction to nurses about DST. When she was matron in 1977-1978 she arranged for a doctor to give the same lecture a couple of times about cardiac pulmonary resuscitation techniques in the sedation ward with its equipment. Sister James, who was at the hospital in 1963 said: "Q. When you went there were you given any training in sedation therapy? A. I received no training whatever."

Later she was asked: "Q. Did Dr Bailey say anything to you or the other nursing staff during the time you were there about the effects of the drugs? A. Dr Bailey did not respond particularly well to questioning, particularly by the nursing staff."

Sister Beverley Edwards said when she started at the hospital in late 1964, she did not have any previous experience of deep sedation treatment. No doctor instructed her in it. She said: "I imagine someone must have taken me into the sedation room and explained what it was all about, but it is not very clear in my mind at the moment. Q. How did you learn about that treatment? A. I think learning about the treatment was just a matter of being there and experiencing it with others who were familiar with it, asking questions and getting answers."

Sister Kai Mark said in evidence that no one explained anything in any great detail or the purpose of the sedation treatment and he could not 165

Royal Commission

into

Deep Sleep Therapy

recall being told the pharmacology. In his written statement he also said Matron Robson told him something about it but he acquired his knowledge by "I guess, mainly on the job training". Sister Brian Dilworth said in his statement: "There was not really any organised training procedure and there were no lectures. There were no discussions about it or staff meetings or the like to discuss changes in procedure or anything like that."

Sister Susan Stewart in her statement said that she worked with somebody else for her first three or four nights. Betty Shea did not give her any training but she implied she was given some sort of assistance or training from the other person with whom she worked during that first week. She said during the first week she learned: "Basically the sedation regime, how we looked after the patients under sedation, what was required there. The general nursing care, the role care and the sedation procedure, feeding the IG tubes down."

Sister Stewart was asked in an interview: "Q. Who was the person who gave you directions about what should be done in the sedation ward or after you had the training? Was it completely up to you? A. Well, there was a guideline to follow, a basic guideline. I mean, medication times were basically four hourly. A routine oral clean, checking the patient's bed because they weren't catheterised."

In talking about complications she was asked: "Q. What were you told about what to do when that happened, did you rely on your prior—? A. I would have been told but I would have relied on my own previous training as well."

Sister Peta Horsley said in her statement she was employed as a general trained nurse and that Sister Shea "was the one that went through the procedure of the work I had to do". She said she recalled these words: "It is the care, general care of an unconscious patient."

She went on: "So that was basically my job."

Her job was to care for only those patients in the intensive care programme. She said: "Betty Shea, who was the sister in charge of that ward, really was a very, very good teacher and I felt I was taught properly and felt confident in handling that work." 166

Volume 1

Chelmsford

Nurse Pamela Lucas had almost eight years psychiatric nursing experience without receiving a qualification certificate when she began her duties at Chelmsford for eight months in 1973. She had no previous experience with DST. During this employment she nursed mainly in the DST ward. She said she had not been given any training at Chelmsford for duties in the DST ward, no one explained what the treatment was about and her only information about it came from sisters in the course of her work. She was not given any written instructions or invited to read anything about the treatment. No lecture was given by Dr Bailey or anyone else during her employment. Sister Leonie Kuznetsoff said in her statement that Matron Fawdry showed her all around the unit and she couldn't really remember what she said, "But I know it was quite comprehensive". She said at some stage after she started, there was a lecture given by Dr Bailey and Matron Fawdry may even have organised it so that people who were a bit apprehensive could be made aware of the treatment. On the other hand Sister Patricia Rogers said in an interview: "A general trained nurse should know what she is doing anyway. You have already had the experience during the four years as to how to care for comatose patients so I knew what to do."

She did not suggest that at any point there was any training about what to do. She explained further: "Well, (Matron) gave me a form to fill out to get my experience and told me that the position would be a matter of nursing in a sedation ward where the patients were kept under sedation for up to two weeks and you did the observations of the patients welfare—washing, toileting and keeping observations on them for my shift."

She continued that she had experience in nursing unconscious patients from her general nursing in theatre. Patients could be unconscious for quite some time but by this she meant an hour or two, never days, but there was no difference in principle. Nurse Beattie who only had about 18 months nursing training in the 1940s was asked in her interview with counsel assisting: "Q. Do you remember whether anybody explained to you about the drug regime, about the—A. No, because I would not have had anything to do with that. 167

Royal Commission

into

Deep Sleep Therapy

Q. You would not have understood the pharmacology, the drug regime? A. Not in the early days, no. Q. Gradually of course you picked up the information as you went along? A. Yes."

In evidence she was asked: "Q. Do you have a recollection of whether the sleep treatment was explained to you before you started work? A. I feel it would have been but I do not remember."

Later on she said: "... I had not nursed after I got married until I went to Chelmsford but you can still remember the general nursing, washing, bathing and making them comfortable and all that type of thing. But the medication is something I had to learn. Q. How did you learn about the medication? A. Dr Bailey did give a lecture on his treatment and the medication, but it was mainly through the sisters."

The lecture she was referring to occurred in either 1977 or 1978. In the 1960s and early 1970s she said: "If I gave it (medication) out before then it would have been under the sister's instructions and she was in the room with me."

Dr Bailey said in his statement for the Carter and Podio inquests that he maintained an instruction programme for the nurses working in the sedation ward. He also claimed at different times he had trained very many nurses including new staff in DST techniques at Chelmsford. Apart from instructions and explanations to Sister Shea in 1963 and a couple of lectures to staff, there was nothing to indicate any generally trained nurses had undergone any training mentioned by Professor Joseph, or that Dr Bailey had an instruction programme for nurses working in the sedation ward, or he trained staff in any way in the DST techniques. Nursing staff were assisted to a certain extent by working with others who had had experience of varying degrees in the nursing of patients undergoing DST. Some nurses who were not fully certificated nurses never felt comfortable with the treatment, while others went along with it. Any claims that the nurses who cared for patients in the DST ward at Chelmsford were especially trained for the procedure and formed an invaluable team, were gross hyperbole. 168

Chelmsford

Volume 1

Secrecy With the widespread criticism and abhorrence of DST expressed by so many former patients of their treatment at Chelmsford, and the intense interest which it has attracted in the media and elsewhere in recent years, the question arises as to how the DST treatment of more than 1,100 patients and with the deaths of many of them, DST could have been given daily during the years 1963 to 1979. In the early years of the treatment patients did not complain publicly about it. Their initial reluctance to do so, may have been due to a fear of being forced to disclose the nature of their illness and treatment, that no one would listen to them, that they would be ridiculed by others or the likelihood of treatment being withdrawn by their doctor or the hospital. There could have been many other reasons.

It would be wrong to accept, as has been submitted, that they were initially satisfied with the DST treatment at Chelmsford and changed their attitude towards it at a later stage. Some explanation for the absence of complaints may be found in looking at the measures which were taken by the admitting and treating doctors and the hospital's administration and staff. Visitors The prohibition or discouragement of DST patients receiving visitors, when undergoing treatment at Chelmsford, went a long way towards concealing the real nature of this treatment. Doctors and staff usually instructed patients that there was no point in visitors coming to the hospital or telephoning, because they would be asleep for about two weeks. At times families were misled as to the nature of the DST treatment being administered, they were not informed when complications arose and were treated very poorly, or given limited information when deaths or serious complications occurred.

Before the deaths of one 22 year old patient Mr T.C. on 27 November 1966 and Janice Catherine Nam, aged 35, on 20 April 1972, the family of the former and the husband of the latter, were told the patients were not allowed visitors. Within a few days of their admission to hospital and without any prior warning of complications, the family and the husband respectively were informed of the deaths of the patients. In the case of Mrs Nam, Dr Bailey said he would arrange the funeral. Evidence was also given that the sedation room door, which was near the main entrance to the hospital, was always kept closed during the day. It was off-limits to other patients. It would have been disturbing for them to see it. The non-DST doctors were concerned about their patients seeing it. There was an ethos that non-DST doctors also did not go in there. 169

Royal Commission

into

Deep Sleep Therapy

At times, families of patients were locked out of the hospital and access was denied to more persistent visitors who wanted to see patients. The father of a 20 year old patient, Mr P.W. who was admitted to Chelmsford on 10 July 1972, was refused entry to the hospital by a member of staff. He wanted to see his son without Dr Bailey's permission. His many attempts to speak to Dr Bailey by telephone were unsuccessful. The father visited Chelmsford each day and remained the whole day from about 7.30am to 6pm each day for eight to 10 days. During his daily attendance at Chelmsford he sat on the fence outside. He rang the doorbell every couple of hours and each time it was answered he was informed he could not see his son without Dr Bailey's permission. On the many occasions he tried unsuccessfully to speak by telephone to Dr Bailey he was told it would be two to three weeks before he could obtain an appointment. Conscious patients were excluded from the sedation ward. Prospective patients for this ward were given their initial drug treatment in another section of the hospital before being transferred in an unconscious state to the sedation ward, where they were stripped of clothing and a naso-gastric tube inserted. When patients were lightening out in the sedation ward they were then transferred to another part of the hospital. Consent to treatment All persons who were admitted to Chelmsford were classified as voluntary patients. In the early admission books, provision was made for a time, for patients to give consent to Dr Bailey's treatment. From 1971, there were admission identification sheets for written consent to be given by a patient or a relative for ECT. There was never a similar provision for DST. On the evidence a patient's consent to DST did not seem to have been regarded as a necessary pre-condition of its administration. Some nurses thought the acceptance of admission to hospital implied consent to all subsequent treatments.

The evidence before the Commission indicated DST treatment was rarely if ever fully explained to patients or that they were ever given an account of it by admitting or treating doctors, nursing staff or the receptionist at Chelmsford. At the most, patients were told on admission they would have "a sleep" or "a good rest so their brain could be turned off" or some similar glib phrase. There was evidence patients were often tricked into accepting treatment. There was also evidence Dr Bailey stated they were not to know what the treatment was and they must have it. Some patients were deceived by staff, being told they were having an injection to put them to sleep and to rest or to quieten them down, when in fact they entered the DST treatment. In one instance in 1972, an entry recorded a patient did not know she was to stay in sedation and she thought an injection was for epilepsy. The staff were exhorted to keep up the pretence. Some patients were given the treatment when they had expressly stated 170

Volume 1

Chelmsford

that they did not want it (exhibit 73, exhibit 96). Others were asked to sign the form when they had been temporarily lightened in the course of the sedation treatment. Even when patients or relatives signed the treatment sheet, some patients were not aware they had been given ECT until they approached the Royal Commission office. Absence of records

There was an absence of doctors' personal records of visits to Chelmsford, attendance on patients, their examination of patients immediately prior to or during admission, their observations and treatment. Apart from a specific instruction by a doctor in a notebook kept at the hospital, only nurses' entries in the hospital files for patients, were available as records of the doctors' attendances, treatment or orders. The doctors' notes and observations regarding the nature of the treatment being administered to patients, their assessment of patients medically or psychiatrically and monitoring of the treatment, would have provided an invaluable record of the treatment. This could have been discussed with other doctors who were attending the patient and for disclosure to any doctor who referred a patient for treatment at Chelmsford as well as for professional or academic study. There was also no proper or effective communication between the doctors who were attending and treating patients in the sedation ward and there were very few apparent communications between the doctor who admitted the patient to Chelmsford and the referring doctor. Absence of publication

The air of secrecy which surrounded the DST treatment at Chelmsford was increased by the absence of any lectures to psychiatrists or other medical practitioners, or any writings in medical journals or elsewhere, especially those dealing with psychiatry. The only known lectures touching on the DST-ECT treatment were given by Dr Bailey to a small number of nursing staff at Chelmsford about 1977. He gave some lectures to groups of general practitioners in the country in the 1960s but it is unclear what, if any, detail of DST was described. There were, therefore, no publications to professional bodies or the general public of information regarding an unusual treatment, albeit, an experimental one. The immediate benefit of the publication and full disclosure of the nature and type of DST-ECT treatment, the nursing care and attention which were being given at Chelmsford and the problems which were being experienced there, can be readily appreciated. 171

Royal Commission

into

Deep Sleep Therapy

Examples of cover-up The examination of many death certificates and the avoidance of coroners' inquests for patients who died at Chelmsford provided further examples of the screen of secrecy which was erected around the treatment. Numbers of death certificates for patients were signed by Dr Bailey and once by Dr Herron, contrary to statutory regulations in cases where deaths occurred within 24 hours of an anaesthetic being administered. Death certificates also listed as the causes of death, conditions which were not supported by the available evidence and not related to DST-ECT treatment (see volume 4).

The absence of reference in Peter Clarke's nursing notes to his mode of death, or of any facts relating to his death and a hurried consultation between Dr Bailey and Matron Robson behind closed doors at Chelmsford soon after his death, lead to concern about the appropriateness of his treatment, the cause of death and the probability of a "cover-up" (see volume 4). The conduct of Dr Bailey and some of the hospital staff immediately following the deaths of a number of patients, supports a finding that true facts about DST treatment at Chelmsford and its results were kept hidden from the relatives of the deceased and in some cases from the coroner. Further, on the evidence, there was a general air of silence over the years at Chelmsford about the deaths of patients. The DST doctors and many nurses purported in their evidence to know very little about the deaths at Chelmsford. Before Matron Julie Smith took up her duties at Chelmsford in August 1976, Dr Gill told her they were phasing out DST. When, at her request, she was shown DST ward 17 she thought there were none or hardly any patients undergoing DST. Soon after she began work she attended the Audrey Francis inquest with Sister Helen King. Within a few days of the close of the inquest on 3 September 1976 a number of patients were admitted for DST. An examination of the calendar of DST patients for the relevant periods prepared by the consultant psychiatrist, shows a pattern of reduction and absence of DST patients during the times described by Matron Smith. The reduction of patients for DST during the hearing of the Francis inquest leads, in the absence of any other explanation, to an inference that it was brought about by fear and to avoid any disclosures in evidence about the current treatment, or on any inspection by the coroner. 172

Volume 1

Chelmsford

Sister Beverley Edwards, who was living at the hospital when Mrs Mary Rodgers died in the early hours of 23 December 1964, disagreed with the version of events recorded in Dr Bailey's book (exhibit 173). He had arrived within 20 minutes of Mrs Rodger's death. While Sister Edwards was writing out an entry in the records of the deceased. Dr Bailey entered the office, looked over her shoulder and inquired what she was doing. On being told she was writing out a report on the deceased. Dr Bailey grabbed the book and tore up the pages. He told her to mind her own business. Dr Bailey then noted particulars of drugs administered to Mrs Rodgers, her condition at the time of death and that in view of her previous history, he was issuing a certificate for coronary occlusion. Sister Edwards expressed an absence of knowledge of any coronary difficulty with the deceased. For another example of doctors and the matron meeting behind closed doors at the hospital for consultation following the collapse of a patient see Coralie Walker (volume 6). Missing files

Among other matters reflecting secrecy surrounding the treatment at Chelmsford are the great number of missing files of patients (apparently 18 out of 26) who died during or soon after DST. On examination of hospital files after 1965 they seem to be mainly the ones which are missing. Although it was suggested they may have been the subject of theft by an outsider this seems most unlikely. Either they were removed over a period of 15 years, or they were all taken about the same time, ie, towards the end. The only outsiders whom it has been suggested, would have been interested in such thefts were the CCHR and the Scientologists. It would have been in their interest to provide them to the Royal Commission as they have provided other documents. There were also files removed where they related to prominent people who were Chelmsford patients. The Royal Commission received information strongly suggesting this. As the records were missing and any such people did not come forward voluntarily, the information was not clearly confirmed. A further example of action to maintain the secrecy of the DST treatment, is Dr Gill's refusal in 1983 to provide census information to Health. The manner of his refusal and his attitude, made the refusal more likely related to hiding what was happening at Chelmsford than his concern, as he claimed, for the privacy of patients there. 173

Royal Commission

into

Deep Sleep Therapy

Conclusion The evidence satisfies me that virtually from the beginning of the administration of DST and ECT at Chelmsford in 1963, there was a systematic cloak of secrecy about the treatments, a blanket on the disclosure of information relating to it and a fraudulent cover-up of deaths and other incidents at the hospital. The patients Dr Bailey first admitted patients to Chelmsford for DST in 1963. Due to the absence of hospital nursing notes and other records very little is known about them.

Sister Helen Edith Dickenson, a trained nurse who worked at Chelmsford for most of 1963, described it as a convalescent hospital before Dr Bailey's arrival there in May 1963 with patients having their own doctors who visited and gave instructions. She had no knowledge of DST until Dr Bailey gave a brief outline of the treatment when his first patient was admitted. In his outline Dr Bailey stressed he wanted his patients to be kept sedated 23 hours out of 24. Patients were not always sedated to the level he required. She gave evidence that in 1963 patients were admitted to Chelmsford without a history and without reference to their condition. On examination of the few records available for 1963, that is the Chelmsford admission register and Dr Bailey's treatment books (exhibit 173), it would seem that a 34 year old female was probably Dr Bailey's first admission. Staff were cautioned to watch for temperature rise and respiratory distress when writing up notes. A 31 year old female medical secretary was admitted to Chelmsford for DST on 5 December 1963 on referral from her employer. She was diagnosed as having a reactive depression. She was given treatment described as "moderate deep sedation" and ECT. While an in-patient she developed pneumonia. She was also found after tests to have glandular fever. Dr Bailey informed her during convalescence that it was a miracle she was alive (see exhibit 97). A 33 year old man who was admitted on 20 January 1964 for DST was given DST and ECT. He expressed surprise he was given ECT when he read it during the Commission. This man, who had been a patient of Dr Bailey7s since 1951 and had received insulin coma treatment and ECT, became friendly with Dr Bailey and his family and sent fruit and fish to him from Cairns. Copies of correspondence between Dr Bailey and this patient in 1980, 1981 and 1985 disclose the nature of the close relationship between them. In June 1985 three months before his suicide Dr Bailey wrote to this patient: 174

Chelmsford

Volume 1

"She (a person in North Queensland) would like to hear from a fan of the 'Mad Doctor of Chelmsford and Callan Park'." (Exhibit 68.)

The year 1964, the second one in which patients were admitted to Chelmsford for DST, was noteworthy for the number of deaths of patients who received DST and ECT. Although the hospital's nursing notes and drug treatment sheets were not available to the Commission, information gathered from other sources disclosed that at least five patients died at Chelmsford in the cause of or soon after DST at the hospital between 16 July 1964 and 23 December 1964. No coroner's inquests were held in respect of any of these deaths. Subsequent DST admissions In the years 1966 to 1970 when Chelmsford comprised only 15 beds , 486 patients were admitted for the first time for DST. The largest number of admissions (138) occurred in 1966. All except two of these admissions were Dr Bailey's patients. There were five deaths from among DST patients during this period.

Between 1971 and 1975 when the number of beds were increased to 40, 475 patients were first admissions for DST. Of this number 398 were Dr Bailey's patients, 66 Dr Herron's and 11 for other doctors. There were nine deaths among these patients. Between 1976 and 1979, 142 patients were first admissions for DST made up of 104 of Dr Bailey's patients, 36 of Dr Herron's and two of other doctors. Four of these patients died at Chelmsford. The admission of patients for deep sleep therapy ceased in March 1979 following a meeting of doctors at Chelmsford in November 1978, an inspection of the hospital by Health and the objection of a number of directors of the company which owned the hospital and land on which the hospital was built. The consultant psychiatrist to the Commission examined referral letters, patient registers, nursing notes and the files of patients of Dr Bailey and Dr J. Herron relating to 1,115 patients who were given DST at Chelmsford. In 105 of these patients a diagnosis could not be made about the nature of their condition. 175

Royal Commission into Deep Sleep Therapy

The 1,010 other patients were classified into six diagnostic categories. As a result of this research the percentage of each and the treating doctor were as follows: Bailey

Herron

Other doctors

9.4

6.3

7.1

Depression/mania %

61.9

55.2

57.1

Drugs alcohol %

15.5

25.0

21.4

Neurosis/anxiety/ situational stress %

5.1

4.2

7.1

Post partum disorder %

4.3

7.3

7.1

3.8

2.1

-

Schizophrenia %

Personality disorder. other %

Variety of patients A number of former patients of Chelmsford gave evidence of vivid accounts of unusual events associated with their treatment. The accounts of treatment for some of these patients are referred to elsewhere, especially where deaths occurred and an inquest was held. While it is not possible to direct attention to all cases, the evidence relating to eight patients is referred to as an example of the variety of patients and the nature of the treatment they underwent.

An entertainer who was a singer with a number of rock and roll bands before having his own band experienced many bouts of pneumonia after 1958. He presented as a colourful and entertaining witness. He became involved with drugs in the late 1960s and again in the early 1970s when he was introduced to heroin to which he became addicted. While on a methadone programme at a city clinic for his addiction he sought advice from a counsellor as to how he could stop taking methadone. He was advised that the easiest way was a two week programme with Dr Bailey at Chelmsford where he could have DST, wake up at the end of it and "kicked" the habit. This patient did not see or meet Dr Bailey before attending Chelmsford on 22 February 1976. He did not undergo a medical or psychiatric examination at Chelmsford and he did not sign a consent form to undergo treatment (exhibit 99). His Chelmsford notes included an admission sheet authorising ECT and signed "A.Gardiner" who, under the heading "Relationship", had added "Staff Nurse on behalf of patient's wife. Permission given by phone". The 176

Volume 1

Chelmsford

patient said his wife took him to Chelmsford for admission. This is confirmed by the hospital file. He also felt confident that his wife had not give permission by phone or any other way for consent to ECT. His drug treatment sheet appeared to be pre-signed with the addition of other drugs as prescribed by telephone on subsequent dates, but not signed by Dr Bailey. According to his nurses' notes within three quarters of an hour of his admission he was given 500mg of Sodium Amytal and Dr Bailey was notified. He was given a further 500mg of Sodium Amytal two and a half hours later. On the same night without an examination by Dr Bailey or any other doctor he was given ECT treatment by Dr Herron. A nurse recorded that following sedation he was "hard to get deep". Thereafter DST continued until 24 February 1976 before Dr Bailey was notified and examined him. On 25 February 1976 the patient was attended by Dr David Lind, a physician. On the same evening he absconded through a side window of the hospital wearing only a nurse's cardigan. He was found later near a pharmacy in Pennant Hills and returned to Chelmsford. He absconded on the following evening, but was again returned. He left the hospital on two further occasions, being returned each time. He then underwent further DST before being discharged on 19 March 1976. This patient still has a drug problem. (See also volume 3, DST, the patients' version.) One of the youngest patients admitted to Chelmsford was a 12 year old boy. In September 1966 a general practitioner referred this patient to Dr Bailey with a ticklish cough. He was also asthmatic which caused him to miss school. On 13 September 1966 Dr Bailey, who expressed agreement with the opinion the boy had a well-developed habit spasm related to his school situation, thought he should be hospitalised in an attempt to break the pattern of snorting and coughing. Dr Bailey, who arranged for his admission to Chelmsford to undergo a regime of deep sedation for about seven to 10 days (exhibit 40) informed the referring doctor that he had used this treatment "quite satisfactorily with several other children with intractable habit spasms". According to the boy's mother. Dr Bailey said her son would be hospitalised for three weeks and he would be given DST for about 18 days to see if it would help him. ECT treatment was not mentioned. The boy became aware for the first time on the day he gave evidence that he had been given nine ECT treatments (some twice in one day) by Drs Bailey and Herron, without anaesthetic injections being given. His parents were told not to visit him in hospital. The nurses' notes contained references to 177

Royal Commission

into

Deep Sleep Therapy

"Maintain deep sedation, do not let (patient) lighten out so that spasm occurs ... To be resedated down and kept down. Sedation level to be deepened for 3 days. Do not allow him to wake out of sedation". The boy was discharged on 4 October 1966. Chelmsford records referred to two episodes in which the boy fell onto the floor grazing his forehead and he also fell bumping his head. His mother noticed an indentation on his forehead on discharge. Dr Bailey described the treatment as a clinical failure. Mr Leo J. Ortado, had been dux of his final year at High School completed first year of Science at University before transferring to second year Medicine, but after two days he gave up the course. He attributed his decision to lack of motivation. On 14 March 1967 when he was aged 18 he was referred to Dr Bailey who advised his admission to Chelmsford for sleep. He could not remember his admission next day to Chelmsford, whether he had then signed anything or what treatment he had received. He stayed until 5 April 1967. His nurses' notes disclosed that he had DST and at least four ECT treatments which were given by Dr Bailey without injection. This patient last consulted Dr Bailey in January 1972. During his visits to Dr Bailey's surgery he saw a human brain in fluid on his desk. Dr John Dowling performed a cingulotractotomy on him in February 1972 at Prince Henry Hospital. Mr Ortado had numerous other admissions to hospitals in the 1970s and 1980s, but not to Chelmsford. Dr Retallack, a psychiatrist who had been treating Mr Ortado from 1981 until recently, said it was extremely difficult to sort out how much of his problem since 1967 was attributable to ECT, psychosurgery and other treatments in Chelmsford or elsewhere. Under vigorous cross-examination by Mr Sackar QC counsel for Dr Herron, Mr Ortado expressed strong resentment at counsel's manner and mode of questioning. Mr J.K., born on 19 February 1941 was a patient at Chelmsford on at least 13 different occasions but he was only given DST and ECT on his admission from 28 March 1977 to 22 April 1977, when he was given 12 ECT treatments without injections between 30 March and 12 April 1977. He was Dr Herron's patient. His first admission to Chelmsford was on 6 May, 1976 for about 18 days for and was for alcoholism. He also had admissions to Callan Park. He stated that Dr Herron did not explain DST to him but he had heard about it and its complications at Chelmsford and he did not want it. He had 178

Volume 1

Chelmsford

no recollection of signing the hospital's authorisation for ECT on 28 March 1977. This patient's hospital drug chart disclosed a very high dosage of Tuinal beginning with 2800mg on 30 March 2000mg on 31 March and 1 April and then 2400mg each day from 2 to 9 April. On 10 April he was given 3200mg of Tuinal and 2800mg the next day. The charts indicated he was also given other drugs, eg. Sodium Amytal, Serenace, Neulactil and the 12 ECT treatments over this period. Reference should also be made to another unusual type of patient at Chelmsford. In October 1977 a 17-year-old female who then weighed about 28kg, with a history of anorexia, vomiting and considerable loss of weight, was referred by a general practitioner to Dr Bailey after being treated at Royal Prince Alfred Hospital. Dr Bailey, who confirmed anorexia nervosa told her that her only hope was to go to his hospital. She rejected this course but continued to consult Dr Bailey who informed her he had a new experimental drug which he wanted to try on her to see if it worked. She was given injections of this drug in his surgery. The patient claimed this drug did not help her to gain weight and it had adverse reactions, eg, growth of hair on her face and fluid on her elbows and knees which caused difficulty in moving about. In late December 1977 she was admitted to Chelmsford for a rest and to stop vomiting. She was not told about any treatment. Injection of the new drug ceased on her admission to Chelmsford and over a period of several months the problems associated with the drug disappeared. During this admission, between 31 December 1977 and 9 February 1978, she was given 13 ECT treatments in 19 days in January and a further six ECT treatments in nine days in February. She claimed she was not told ECT was to be administered. She was given an injection of Brietal before each ECT. Another patient told her she had been given ECT. In a second admission between 14 March 1978 and 21 April 1978, this patient was given deep sleep treatment and 10 ECT treatments (four with and six without an anaesthetic). On a third admission to Chelmsford on 10 May 1978 she was not given these treatments. On a fourth admission between 3 June 1978 and 21 July 1978 she was given DST and 12 ECT treatments between 22 June and 5 July 1978 (five with and seven without an anaesthetic). Her last admission to Chelmsford was on 1 August 1978 on transfer from St George Hospital (via Canterbury Hospital) where she was admitted following an overdose of Tuinal (exhibit 44). 179

Royal Commission

into

Deep Sleep Therapy

Robert Limb A number of former patients have told the Commission in writing or in evidence that they were satisfied with Dr Bailey's treatment at Chelmsford and they supported their treatment either wholly or in part. It is not possible to refer to each one here. (See also volume 3 DST, the patients' version.)

One of the more outspoken patients was and still is a well-known entertainer, Mr Robert (Bobby) Limb, who has spoken publicly on radio and television and in the print media about his treatment at Chelmsford and especially Dr Bailey. He also offered to assist Dr Bailey when proceedings were brought against him in the Medical Disciplinary Tribunal in 1985. Mr Limb first met Dr Bailey in 1964 when he was counselled. He attributed his cure in 1968 to Dr Bailey's treatment. After an operation for cancer in 1967 followed by cobalt treatment he developed symptoms of a nervous breakdown in early 1968. He suffered depression which gradually worsened. Following an episode of crying and stomach pains he consulted Dr Bailey in his Macquarie Street surgery for some weeks and he took medication as prescribed. Dr Bailey informed him prior to his admission to Chelmsford he should have treatment there where he would be given a "cocktail" and put to sleep. Mr Limb was assured he would be cured. Mr Limb, although admitted under his own name, was then given the pseudonym of Mr R. Roberts while he was an in-patient at Chelmsford from 3 March to 19 March 1968. At Chelmsford he was nursed in a private room. Although Dr Bailey directed Mr Limb undergo DST, his treatment mainly between 3 March and 11 March when it was suspended, should not be compared with that undergone by most of the DST patients. Shortly after his admission Dr Bailey was telephoned and medication was prescribed. According to Mr Limb, Dr Bailey visited him in the evening of his admission and gave him an injection. The following day he was visited by Dr Kovacic, when an ECG was given, and also by Dr Bailey. Throat and nasal swabs and urine samples were taken for pathology tests and a haematological examination was made. His blood pressure was then low (78/50). The nasal swabs showed some golden staph infection. The drug treatment continued. The hospital notes recorded that Dr Bailey visited this patient on six occasions, he was consulted by telephone three times and Dr Herron attended him twice. On his visit on 7 March 1968 Dr Herron prescribed medication. The hospital notes also included many references to Mr Limb passing urine and attending or being taken to the toilet. There was no mention of incontinence. He was given an enema once. 180

Volume 1

Chelmsford

The hospital drug chart also disclosed that the administration of drugs to him was light. The largest dose of Tuinal, 1600mg was given on 5 March followed by 1200mg on each of the next three days and on 10 March. On other days the doses ranged from 800mg to 200mg a day. According to the hospital notes he was given, Placidyl which ranged from 2000mg on 12 and 13 March (days when his wife visited) to 1200mg on two days and 1000mg on five days. There is no reference to Mr Limb being given Sodium Amytal, a moderately rapidly acting sedative or hypnotic with a duration effect of eight to 11 hours. This drug was usually given to patients undergoing DST. Further, he was not given ECT and there is no record of the use of a Ryles tube for intravenous feeding. The hospital notes do not contain any reference to Mr Limb sleeping continuously. On the contrary, reference is made to the patient sleeping part of the day and being awake or not sleeping very well and also attending the toilet. He recalled that when he was undergoing treatment there were times when he was conscious. On the evidence, Mr Limb was given sedation therapy but he was kept much lighter than most of the other patients and it was not the DST which was ordinarily administered at Chelmsford and discussed elsewhere in this report (see volume 3). He could be regarded as a special patient who was given anonymity, a private room, light sedation and exceptional attention by Dr Bailey and others. Another patient Miss M.W. was a 13 year old girl who had been treated by Dr Herron for anorexia nervosa since 19 September 1972. On 17 October 1972 she was admitted as his patient to Chelmsford at about 9.30pm for DST and ECT as treatment of depression. Her weight was then 5 stones (36.3kg). She was seen the same evening by Dr Herron who administered ECT without an injection. (Dr Herron had difficulty in accepting he had given a conscious patient this treatment without an injection.) He also prescribed drugs in his own handwriting and signed a treatment sheet. Largactil was added on 29 October 1972. Other medication was suspended on 30 October 1972. These amendments with a doctor's signature, were unusual among DST patients at Chelmsford. Miss M.W. was given 10 ECT treatments without an anaesthetic or muscle relaxant up to 30 October 1972. A Ryles tube was also passed through her nose. From 18 October 1972 she was given Placidyl, Largactil (before 29 October), Cogentin and Reverin, which were not authorised by a doctor. Dr Herron also authorised staff to administer additional phenothiazines to supplement Tuinal as required. The patient's father was discouraged from visiting. 181

Royal Commission

into

Deep Sleep Therapy

There were a number of instances in the patient's hospital notes where the administration of Tuinal and Serenace exceeded greatly Dr Herron's authorisation. For example, on 21 October 1972 she was given 2300mg of Tuinal together with other drugs and 1800mg of Tuinal and other drugs on 1 November 1972 when the maximum daily dosage authorised was 1200mg. In some instances a second or third dose of Tuinal was given within an hour and a half or two hours of a previous administration when the drug was only to be given "4 to 6 hourly". This patient may not have been the youngest one given DST as Dr Bailey is alleged to have stated he had given patients DST as young as 10 years of age. It is incomprehensible that a 13 year old anorexic should have been subjected to DST and ECT. She was given drugs which were very much in excess of her doctor's authorisation and drugs which were not prescribed. These excesses by nursing staff indicate a lack of proper supervision of the patient by Dr Herron. The community is entitled to question, as I do, how such a young patient who was frightened of the dark, incontinent and hallucinating, could be given ECT without an anaesthetic or a relaxant especially when conscious, shackled for long periods, denied visits by her father and nursed in a state of nakedness with male and female adults in the same room. If in the opinion of Dr Herron this young patient required DST/ECT she could have been treated and cared for under conditions similar to Mr Limb. Her overall treatment was disgraceful and undignified even for the medical and nursing standards alleged to have been acceptable in 1972. Another patient, Mr M.B.M. is noteworthy for an incident which occurred very early in his treatment at Chelmsford. A 28 year old Vietnam veteran who sustained serious back injuries in 1976 was admitted as Dr Herron's patient to Chelmsford at 11.15pm on 11 October 1978 for DST. In his admission form a nurse noted "Deep sedation hold until Dr Herron contacted". At the end of his admission history there is a note, "Known by staff member to be a 'con man'". After DST began the following day the patient was seen by Dr Herron. DST continued on 12 and 13 October when Dr Herron gave ECT. In her nurses' notes for the evening roster for 13 October, Nurse Beattie reported "Per phone Dr Herron treatment lighten out (in red) as (Mr M.B.M.) is unfinancial". In the day report for Saturday 14 October a nurse noted, "S/B Dr Herron—for discharge until able to pay fees. For ? re admission Monday". The patient was discharged the same day. He was re-admitted at 11.30pm on Monday 16 October 1978 when he produced a cheque signed by another person payable to HCF. DST began within half an hour. 182

Chelmsford

Volume 1

In evidence Dr Herron, who frankly admitted he put the interests of Chelmsford first, took responsibility for removing the patient from his course of treatment. He agreed he would make the same decision again if he was asked to do so by the hospital and he deemed it appropriate to treat the patient. I find it surprising that Chelmsford, being aware the patient was an alleged "con man" admitted him, began DST treatment then stopped it and discharged him until he could pay the necessary fees. In these circumstances the financial interests of Chelmsford prevailed over the health and welfare of the patient whose condition was thought a few days earlier sufficiently serious to require the DST-ECT treatment. The last patients In late 1978 a number of events which opposed to DST treatment, especially by Dr Bailey. The other psychiatrists who attended patients at Chelmsford and by the directors of the company which owned Chelmsford decided DST had to stop. This opposition and the withdrawal of patients by several of the psychiatrists did not result in an immediate halt to DST treatment. Two patients were admitted in January 1979, two in February and one in March 1979 for DST. Brief reference will be made to three of the last four patients. The fourth patient, was Coralie Walker whose treatment and its consequences are detailed in volume 6.

Mr A.W. a 26 year old male has been mentioned as occupying a bed and undergong treatment in the same two bed ward as Miss Walker in February 1979. He was given the routine DST drug regime from a treatment sheet signed by Dr Bailey. Miss R.E., a 22 year old female, was admitted to Chelmsford by Dr Bailey for DST on 16 February 1979 and discharged on 26 February 1979. Her drug regime was contained in a treatment sheet signed by Dr Bailey. Deep sedation began on the evening of her admission. On 17 February the first of three ECT treatments was given. Brietal was given for this treatment but not for the subsequent ones. Within two days of her admission she became very congested and ECT was not given on 19 February when her temperature was elevated, she was restless and she was vomiting large quantities of bile. Her nurses' notes for 22 February 1979 referred to "shallow laboured breathing especially when lying on side. S/B Dr Gardiner: ECT not given. Patient to be lightened. Dr Bailey notified". Miss S.M. a 28 year old female who had an addiction to drugs, mainly heroin, for about five years, was admitted to Chelmsford on 18 March 1979 as Dr Herron's patient. She had had a cap of heroin the afternoon before her admission. On 21 March 1979 a form headed: "Authorisation for ECT and sedation (full) treatment" was signed with her name. The 183

Royal Commission

into

Deep Sleep Therapy

witness to her signature was Matron Moroney. Dr Herron signed a treatment sheet for Tuinal and Sodium Amytal and other drugs on 21 March 1979. Sodium Amytal injections began on 20 March and Tuinal was given on 21 March. She was also given nine ECTs, the first on 22 March and the last on 31 March 1979. When the lightening process began at the direction of Dr Herron she was described as experiencing hallucinations on the evening of 31 March and on 1 April. Dr Bailey wrote in the nurses' notes on 4 April 1979 after seeing her at 1.05am: "Previously said to be comatose but fairly easily roused . . . Speech slurred +++. All the indications point to her having had O/D of some sedative ?? Tuinal ?? Mandrax. Continue observations. Notify Dr Herron of episode". Later the same day she was seen by Dr Herron. Miss S.M. said in evidence that she remembered being taken into a room and Dr Herron sitting next to her in the morning and saying "You had me worried. We nearly lost you". This incident probably occurred on the morning of 4 April 1979. She was said to have been a difficult patient over the next two days. On 6 April she was seen by Dr Gardiner who sent her by ambulance to Hornsby Hospital for the drainage of an abscess on her right hip. Pathology tests found that it was positive for golden staph infection. She was discharged from Chelmsford on 2 May 1979. Miss S.M. was again admitted on 31 August 1979 where she was an in-patient until 10 September 1979. She thought that she had DST and ECT on this admission but the nurses' notes do not support her. However, she was given large doses of Sodium Amytal beginning on the day of her admission, through to 2 September 1979. According to the nurses' notes she was not given any Tuinal or any of the other drugs usually associated with DST treatment. Miss S.M.'s treatment in March/ April 1979 probably resulted in her being the last patient to undergo DST and ECT as practised at Chelmsford since 1963. Drug addicts Suggestions were made before the Commission began that Chelmsford was used for the treatment of patients who were associates of the criminal element or drug addicts. There was no evidence before the Commission to suggest that Chelmsford was ever used for the former type of patients. However, there was evidence that drug addicts were admitted to Chelmsford for treatment of their problems on reference from solicitors, police and others. The reference of such patients to psychiatrists before court appearances for sentence is a well recognised procedure in this state. In this matter too there was no evidence which could lead to a finding of impropriety in the admission of these patients to Chelmsford. 184

Volume 1

Chelmsford

The doctors' treatment The actual treatment given by Drs Bailey, Herron, Gardiner and Gill to many patients is considered in volume 2. The attendances and visits of these doctors on their own patients and the patients of their colleagues varied considerably. In the 1960s Dr Bailey visited Chelmsford more regularly and at reasonable hours but in the 1970s he attended them irregularly and when he did it was usually late, after midnight. Especially in the 1970s, there were occasions when he failed to respond personally to calls from the hospital's staff. It was then left to another doctor, often Dr Herron or Dr Gill to attend the patient.

Dr Herron attended his patients more regularly and nearly always when he was called by the nursing staff. He had a reputation among staff of not letting them down. He was also more easily contacted and more accessible than Dr Bailey, especially in the 1970s. He often substituted for Dr Bailey when attending Chelmsford or when requested. Dr Gardiner at times also substituted for Dr Bailey or Dr Herron. Dr Gill, who was frequently at Chelmsford on administrative and other matters, was available not only to attend to his own patients but also to substitute for Dr Bailey and Dr Herron. Dr Bailey and Dr Herron were very different in their attitude towards patients. Dr Bailey visited his patients at irregular times. He often kept his patients in suspense as to when he would visit them and he failed to attend at times. He frequently attended Chelmsford in flamboyant attire but more noteworthy is that when he did, he seemed to pay little attention to patients and their problems. His consultations, if they could be called that, were cursory and rarely supported by his own entries in the hospital records and nurses' notes. It is possible he consulted with nursing staff but, as he seemed to have had little rapport with the matrons and senior staff at Chelmsford, this should not be rated too highly. There is evidence that he was arrogant and rude and he used disgusting and offensive language to patients. Dr Bailey was also prone to talk in a derogatory manner about his patients. On the other hand Dr Herron acquired a reputation of being more attentive, concerned and caring about his patients and less arrogant than Dr Bailey. Dr Gardiner who visited patients mostly to administer ECT, attended his patients regularly. He was said to be both caring and concerned about his patients but he was not always so as the evidence about Coralie Walker disclosed (see volume 6). While Dr Gill was quite often available to attend patients on behalf of his colleagues or in an emergency, he too was not always caring about his patients' welfare, eg, John Adams. 185

Royal Commission

into

Deep Sleep Therapy

One common feature of the doctors was their apparent indifference in their approaches in the treatment of patients. None of the doctors made personal notes of their consultations, prescriptions of drugs or treatments. They claimed they relied on the nurses' notes or oral reports by nurses. However, on the evidence a doctor who attended a patient undergoing DST rarely consulted nurses' notes or the various charts, eg, temperature, pulse, respiration and fluid balance charts, for whatever assistance they could have provided. Further the doctors had no x-rays available at the hospital for reference. Pathology tests were requested at or soon after the admission of patients but the results were mostly not available until after DST begun. Complaints Allegations and complaints regarding the administration, treatment and nursing of patients at Chelmsford between 1963 and 1979 were numerous and are catalogued here:

• Patients were not informed by a psychiatrist or hospital staff of the nature of their treatment, • Patients were not medically and / or psychiatrically examined before or on admission to Chelmsford, • DST was given before patients were seen or examined by a doctor, • DST and ECT were given without the written consent of patients or someone acting on their behalf, • ECT was given when patients expressly requested such treatment be not given, • Many patients were unaware ECT was administered until they gave evidence before the Commission, • Patients were nursed naked, shackled and had naso-gastric tubes inserted, • Patients experienced high and low temperatures, significant fluctuations in blood pressure, vomiting, inhalation of vomitus, urinary and faecal incontinence, cyanosis, hallucinations, faecal impaction, deep venous thrombosis, breathing difficulties and pneumonia, • Patients were kept in continuous sleep for long periods, sometimes up to three weeks, • ECT was given when patients' temperatures were low or elevated, • ECT was given without an anaesthetic, • Female patients feared they may have been sexually molested whilst sedated heavily, • Psychiatrists, especially Dr Bailey, attended at the hospital late at night or in the early hours of the morning, • Patients were able to abscond due to lack of supervision. 186

Volume 1

Chelmsford

• Patients frequently fell out of bed, • An insufficient number of nurses was provided especially on night shifts, • Dangerous drugs were administered to an excessive degree, • Psychiatrists, especially Dr Bailey, failed to visit patients regularly, • Pre-signed standard drug treatment sheets for DST treatment were prepared and available at the hospital for patients on admission, • There was a blanket prohibition against visits during the treatment, and • Patients suffered pain and adverse effects from ECT. Additional allegations and complaints related to the quantity and calibre of equipment and Dr Bailey's suggestions that female patients "take lovers". Evidence not coloured Patients who were members of the Chelmsford Victims Action group and who gave evidence to the Commission were cross-examined about their attendances at meetings, discussions and celebrations (following the announcement of the Royal Commission) leading implicitly to the suggestion that they may have entered into a conspiracy to give coloured evidence to the Commission. No final submission was made in support of this implication.

I found nothing in the testimony of any former patients or other evidence to suggest there was ever any agreement among them to give exaggerated or coloured evidence. Mention has been made elsewhere that when considering the testimony of patients, I have had regard to patients' state of health and the effects of the treatment and medication which they were given (see volume 3). Retail chemists Inquiries were made to ascertain those pharmacies and pharmacists who supplied drugs to Chelmsford.

All pharmacists and where necessary, former pharmacists, in the Pennant Hills, Beecroft and Thornleigh areas were contacted and of these, four had direct knowledge of the supply of drugs to Chelmsford. Mr Trevor Patrick, of the Pennant Hills Pharmacy, said he bought the pharmacy as a deceased business from the estate of a Mr Grimshaw in August 1975. Shortly after taking over the business, Mr Patrick recalled a doctor from Chelmsford visited the pharmacy and spoke to him about supplying drugs on a contract basis. He declined. He did not recall the name of the doctor, but describes him as being tall and thinish with dark 187

Royal Commission

into

Deep Sleep Therapy

hair. It could have been Dr Gill as he was aware of the physical builds of both Dr Gardiner and Dr Bailey and said it was neither of those men. Before taking over the business, Mr Patrick was the manager of the UHS Pharmacy at Ryde for eight years and it was from there that he had come to know Dr Gardiner. He was unaware that Dr Gardiner was involved with Chelmsford. Mr Stuart Hutchinson, who was in partnership with Mr Graham Hurd from the early 1970s to the early 1980s, ran their business, Hurd and Hutchinson, Chemists, from 427A Pennant Hills Road, Pennant Hills. This pharmacy seemed to have supplied the majority of retail drugs to Chelmsford. He said Tuinal was not stored nor dispensed in large amounts from the pharmacy and he believed Chelmsford may have bought it in bulk from one of the wholesalers. He recalled that injectables were the major drug dispensed to Chelmsford. The Chelmsford account was retained by the pharmacy as a matter of course and there was no need for it to be renegotiated. There was no written agreement between the pharmacy and the hospital. Written instructions were forwarded to the pharmacy with individual patient names and medications. The list, written on a sheet of paper, not on prescription forms, was dispensed and delivered to Chelmsford. The relevant prescriptions were usually sent to the pharmacy within a week. There was a regulation under the Poisons Act which stated schedule 8 drug prescriptions must be returned within 24 hours and the time period for schedule 4 drug prescriptions was slightly more lenient. Mr Hutchinson could not recall dispensing schedule 8 drugs to Chelmsford and said it would not be normal practice to dispense to an individual without a prescription, but it was quite common practice to do so when supplying a hospital. As far as he was aware, the list was written by the nursing staff on the instructions of a doctor. It was common practice for Drs Gill, Gardiner and Herron to send a list to the pharmacy every week and they were always prompt in returning corresponding prescriptions. He recalled collecting the list from the hospital at about 11am and the drugs would be dispensed and delivered that afternoon. One of the pharmacy staff would usually attend Chelmsford every day to collect the list. Dr Bailey usually sent his scripts, often in the post, about once a month. The method of dispensing was the same. Dr Bailey was not always as prompt in returning prescriptions as the other doctors, although he was regular. Mr Hutchinson could not recall any time when he did not return a script to cover the dispensed drugs. 188

Volume 1

Chelmsford

Mr Hutchinson thought Dr Bailey was the only doctor who prescribed Tuinal and he could not remember whether he carried large stocks of this medication. It was the first occasion in which he became involved in dispensing Tuinal in any quantity. It was mainly the injectables which were dispensed in large amounts. These were Keflex, which was not widely used at that time, Reverin and occasionally Dr Bailey would prescribe an unusual injectible which he would have brought in from the manufacturer. It was a pure antibiotic and was manufactured, not experimentally, but he could not recall the name. At the time of dispensing the drugs, there were no specific instructions to be included on the label about their administration. The tablet medication was labelled "to be taken as directed". Mr Hutchinson understood any specific instructions were explained to the nursing staff by the prescribing doctor. Mr Hutchinson had little contact with the prescribing doctors of Chelmsford but attended Christmas parties with the hospital staff. On these occasions he did not discuss the treatments at Chelmsford with the doctors or staff. He met Dr Bailey at these functions, but did not find him approachable. At no time did he feel alarmed about the amount or type of drugs being prescribed for patients at Chelmsford. Before moving to the pharmacy at Pennant Hills, he was the pharmacist at Andrew Hollis and Co, Goulburn. This pharmacy dispensed drugs to Kenmore Psychiatric Hospital. The main drugs dispensed for this hospital were the major tranquillisers Largactil, Melleril and Serenace. These were dispensed in large doses and he was, at the time, surprised at the amounts as he was only newly registered. He had also worked as a pharmacist in the dispensary at the Parramatta Psychiatric Hospital. It was there that he became accustomed to large doses of major tranquillisers and barbiturates being prescribed for patients. Many of the drugs dispensed there were experimental drugs not yet manufactured and named in a code. The pharmacy operated seven days a week and at odd times there would be phone calls from Chelmsford for medications when the hospital had run out of stock. The medications would be dispensed and the prescriptions would follow. As best he could remember the cheques for the hospital's account were signed by Dr Gill. He could vaguely remember an instruction from the hospital asking not to dispense to patients if they came to the pharmacy. This instruction could have arisen because the patients were going to outside doctors for prescriptions. They complied with this instruction. They 189

Royal Commission

into

Deep Sleep Therapy

knew the Chelmsford patients usually by their name from the hospital lists. Mr Hutchinson was unaware of any incentive offered their pharmacy by anyone attached to Chelmsford to continue the contract. Mr Hurd recalled one cause for complaint was that Dr Bailey prescribed injectible "authority" drugs. These drugs required the prescribing doctor to apply for an authority to prescribe from Health which then allowed the dispensing pharmacist to claim a rebate from the government. Dr Bailey did not apply for the authority before prescribing the drug so Mr Hurd was unable to claim the rebate and was left out of pocket. The "authority" drugs Mr Hurd recalled were Keflex, Garamyacin and Brietal. He could not recall an injectible prescribed by Dr Bailey which needed to be especially obtained for the pharmacy. Mr Hurd recalled drugs such as Mogadon and Tuinal were supplied to Chelmsford via a wholesale company. Only small stocks were retained at the pharmacy in case Chelmsford ran out and needed urgent supplies. Mr Hurd's and Mr Hutchinson's pharmacy eventually took over some of the supplies to Chelmsford which had previously been provided through a wholesaler, but this was not until about 1979 or 1980 and was mainly limited to bandages and butterfly clips. Mr Hurd recalled the main doctor who prescribed for deep sleep therapy was Dr Bailey although in the latter years. Dr Herron also prescribed for this therapy. Mr Hurd had little contact with the prescribing doctors as he found they were never available. If it was necessary to query a script, he contacted the nursing staff and he assumed they contacted the relevant doctor and phoned back the information. He did not feel there was any onus of responsibility on him as the dispensing pharmacist to ensure the medications were taken in the appropriate manner or doses. The patients were in hospital being cared for by nursing staff under the direction of the prescribing doctor. Mr Hurd would ensure such measures were observed if he was dispensing to individuals. Mr Hurd said the main "injectible" dispensed by the pharmacy to Chelmsford was Amytal. He once questioned the hospital as to its use of this drug, so if necessary he could answer any government inspector who might question him on this point. He could not recall the specific nursing staff members spoken to nor their answer, but he recalled they said the drug was necessary for the treatment in the dispensed quantity and it 190

Volume 1

Chelmsford

was administered by nurses. He was satisfied that the quantities prescribed and their use were legitimate. Mr Patrick McGirr, the pharmacist from whom Mr Hurd and Mr Hutchinson purchased Hurd and Hutchinson in 1975 said the Chelmsford account was established when he offered to stock Sodium Amytal ampoules after a conversation with the then matron whom he recalled was called Sandra (Robson). He said there was no "deal" struck with Chelmsford to establish or retain the account. Mr Noel Fraser, the former owner of Fraser's Pharmacy at 558 Pennant Hills Road, West Pennant Hills, was interviewed. He worked in the Pennant Hills area for 30 years and is now retired. He said he did not dispense directly to Chelmsford although he sometimes dispensed prescriptions to individual private patients being treated at the hospital. On no occasion was he approached regarding dispensing for Chelmsford although he recalled that Mr Patrick of the Pennant Hills Pharmacy was approached. He was never asked by Chelmsford not to dispense prescriptions nor sell goods to Chelmsford patients as Mr Hurd and Mr Hutchinson were. He said that the business of dispensing to Chelmsford was kept very tightly in the area and there was profit to be made by making offers, however, he did not expand his comments on this area. He was not subject to compulsory process during the interview. As he had not supplied to Chelmsford, the matter was not pressed. At no time did he make any complaint to Health about Chelmsford. Drug manufacturers Royal Commission investigators were able to locate representatives of two drug companies who had dealings with Dr Bailey. They were Mr Samuel B. Dole and Mr Peter da Roza.

Mr Dole began work with Abbott Laboratories Pty Ltd in 1951 where he held the position of medical representative. That work involved detailing pharmaceutical products to persons in the medical profession. He thought he first met Dr Harry Bailey in the late 1950s. He remembered he interviewed him at Callan Park and he recalled Dr Bailey as being a psychiatrist who seemed to have quite a lot of authority. He said Dr Bailey had a detailed knowledge of the workings of the institution and was able to answer most questions Mr Dole asked of him. In an interview, which lasted about four or five minutes, Mr Dole would introduce himself then explain his product. He would outline the chemical composition of the drug, the side effects, contra indications, dosage and the cost. Dr Bailey was quite actively involved in these conversations and asked questions. He saw Dr Bailey about twice a year. He saw a doctor 191

Royal Commission

into

Deep Sleep Therapy

if he had a new product to detail or a routine call. When detailing a new drug he explained in detail the dosages required by patients and possible variations. Dr Bailey always seemed interested in what he had to say and always struck him as being a person who believed that business was business. Mr Dole said Abbott's products for use with psychiatrically ill patients was limited in Australia, its main lines in this area being Placidyl and Nembutal. In about I960, he became the NSW state manager for Abbott. His responsibilities were administration and sales. He supervised the medical representatives and only visited clients personally if there was some trouble. He did not have any further contact with Dr Bailey after he became state manager. Between 1962 and 1969 Mr da Roza worked for Smith, Kline & French Laboratories (Aust) Ltd., as a medical representative. During that time he spoke with a number of psychiatrists about Dr Bailey who, at that stage, he did not know. He said Dr Bailey was the medical superintendent at Callan Park and according to whom you spoke, he was not very popular with psychiatrists. He was next employed by Roche Pharmaceuticals from 1969 to about 1976. He was initially employed as a detailing representative then moved to the hospital division, where he saw the consultants who were in contact with the specific drugs. It was when working in this area that he first met Dr Bailey in about 1970. He made an appointment with Dr Bailey's secretary and saw him in his Macquarie Street rooms. He saw Dr Bailey three times a year. The purpose of the visit was to sell certain products. Roche at that time was marketing the psychotropic drugs Librium, Valium and later on Mogadon. Librium in 1970 was superseded by Valium and it was the Valium and Mogadon which were detailed to Dr Bailey. He continued to detail these two drugs to Dr Bailey for the next six years. Mr da Roza found Dr Bailey to be an affable person and very likeable. His meetings usually lasted about 10 minutes and Dr Bailey asked questions about the side effects of the drugs and would comment on any clinical papers saying whether he agreed with the findings and so on. He would also ask about dosages and when to use the drug, but Mr da Roza would not "tell" him when to use it or how much. Dr Bailey usually seemed conversant with the drugs he was detailing and did not take any notes regarding the side effects or dosages. Dr Bailey never discussed his deep sleep therapy although he did ask about superficial uses for the drug. 192

INDEX A Abscess: 184 Absence of publication: 171 Absence of records: 171 Acknowledgements: 23

Adams, Nurse Ann: 123 Adams, John: 8, 42, 55, 60, 62^-63,140,142, 153, 161, 185 Age: 21, 59, 133, 153, 182 Alehin, Stanley: 90, 159 Allan, Janet Rosalind: 13, 69, 151 Amylobarbitone: 155 Anaesthetic: 55-56, 58, 61, 65, 80, 86-87, 125, 131, 147, 152, 155, 172, 177, 179, 181-182, 186 Anderson, Peter Thomas, MP: 14 Anorexia nervosa: 179, 181 Antibiotic: 88, 116, 123, 189 Appearances: 9

Arnold, Richard Thomas: 99,106,121,127 Atkinson, Reginald James: 124, 142 Authorisation for ECT: 87, 137, 179, 183

B Bailey, Dr Harry: 9, 12-13, 16, 19, 21, 23, 33, 38-39, 41-42, 47-62, 64-67, 69, 73, 77, 79-81, 85-89, 91, 93, 101, 106, 112-120, 124-127, 129-138, 140-141, 143-151, 154-155, 159, 162, 164-165, 167-192 Bailey, Marjorie Jocelyn: 13, 49 Balog, Tibor: 14 Barbiturates: 52, 122, 137, 155-157, 159-161, 163, 189 Barclay, Dr William Arthur: 53 Beattie, Nurse Margaret Joyce: 49, 88,123, 165, 167, 182 Beecraft, Sister Pauline Anne: 142 Before and after: 4 Bennett, Ann: 127, 142 Blood pressure: 85-86, 88-89, 92,116,119, 123, 136-137, 152, 160, 163, 180, 186 Boettcher, Dr Brian Michael: 14, 52, 79, 139 Brain damage: 52, 54-55, 69, 143 Breathing difficulty: 84 Brereton, Laurence John, MP: 14, 67 Brown, Dr M. Hunter: 49

C C, Mr H.: 114, 116-117 C, Mr T.: 114, 169 Callan Park: 12-13, 47, 53, 113, 129, 175, 178, 191-192 193

Carter, Graeme: 8, 13, 52, 54, 59, 61, 73, 88, 112, 114, 116, 157, 161, 168 Catheterisation: 82-83, 116, 166 Chelmsford Private Hospital: 1, 4, 7-10, 13-16, 18-23, 25, 28, 30, 33-34, 37-39, 41,44-A5,47-64,67-69,73,75-86,89-95, 98-106, 108, 110-113, 115, 117, 119-123, 125-127, 129-135, 137, 139-143, 145-159, 162-165, 167-191 Chelmsford's licence: 78

Chest infections: 130 Cingulotractotomy: 50, 178 Citizens Commission on Human Rights (CCHR): 32, 62, 132-133, 140, 173 Clarke, Denise Anne: 10 Clarke, Peter: 7, 41, 54, 60, 124-126, 142, 172 Coates, Bruce: 67 Columbia Holdings Pty Ltd: 95, 99 Combinations: 71 Communication at Chelmsford: 150 Compensation: 44 Complaints: 186

Complaints Unit: 2, 66-68 Complications: 33, 51-52, 87, 90,112, 131, 160, 162-163, 166, 169, 178 Concord Repatriation General Hospital: 53 Confusion: 51, 145 Consent: 57

Consent form: 43, 55, 57, 61, 91, 176 Consent to treatment: 170 Continuous narcosis: 33, 80

Conwell, Keith Ronald: 64, 67 Cover-up: 107

Crown Street Women's Hospital: 53 Crozier, Sister Valda Anne: 125, 142 Cyanosis, cyanosed: 91, 119, 121, 162

D D., Mrs E.: 8, 121, 124, 142, 148 Dan, Dr Alexander Morven: 14 Dash, Robert McDonald: 64 Davies, Dr Evan Edwin: 4, 7, 23, 48, 54, 67-71, 85, 88 Dawson, Dr Eleanor Mary: 79 Death certificates: 15, 51, 60, 125, 172 Deaths: 7-8, 13-15, 41, 50-52, 54, 58-61, 63-64, 94, 105-106, 114, 121-124, 128, 130,137-138,141-142,145,163,169,172, 174-176 Deep venous thrombosis, DVT: 51, 124

Royal Commission into Deep Sleep Therapy

Depression: 8, 50, 58, 70, 79-80, 121, 152, 159-160, 174, 176, 180-181 Depth of sedation: 80, 118, 154-156, Diagnoses: 70, 80, 90, 154, 156 Diagnosis: 70, 80, 85, 92, 105, 131, 175 Diagnostic categories: 176 Dilworth, Sister Brian William: 166 Disciplinary Tribunal: 27, 38, 64-67, Dodd, Ian John: 55, 94, 108-110 Dougall, Marie Elizabeth: 149 Drug addicts: 145, 184 Drug dosages: 158

138, 158 148,

180

Drug manufacturers: 191

Drug regimes: 15, 106 DST, duration of: 112 DST, establishment of: 79

G G. , K.L.: 10 Gardiner, Dr Ian Donald Russell: 13-14, 19,23,29,31,42,50, 52-53,55-56, 60-61, 64-65, 79, 82, 101, 124, 135, 143-145, 149-151, 154-155, 161-162, 176, 183-185, 187-188 Gill, Dr John Ewan Macdonald: 13-14,17, 20,23,31,38-40,42,49,55,60-61, 63-65, 81, 92-93, 99, 101-104, 107-110, 119, 129-136, 139-143, 145-148, 151-154, 172-173, 185, 187, 189 Gill, John E., Holdings Pty Ltd: 95, 99 Goedde, Sister Beatrix: 81

H

DST patients: 56 DST treatments at other hospitals: 53

Duffy, Matron Genevieve P.: Ill, 142

E Eastgate, Janise Wendy: 34, 65, 90, 140 Eatts, Toni: 136, 141 Eckardt, Frederick: 113-114 ECT: 8, 33, 38, 40, 43, 45, 47, 50, 55, 57, 61, 79-82, 84-87, 89-90, 105-109, 112, 118,124-125,131-133,135,137-139,141, 147, 150-152, 154-155, 159, 162-163, 170-172, 174-179, 181-187 Edwards, Sister Beverley: 94, 165, 173 Embolism: 124, 145 Employment records: 94

Equipment: 8, 59, 75, 77, 81-84, 86, 105, 116-117,120,131-132,136,138,147,165, 187 Establishment of DST: 79 Establishment of the commission: 7 Evidence: 18 Examples of cover-up: 172

H. , Mrs B.: 60 H., G.J.: 10 H., J.: 10 H., T.: 126 Hallucinations: 51, 184 Hamilton, Sharon: 13, 52, 56, 62-64, 109, 133 Hart, Barry Francis: 8, 10-11, 13, 19, 28, 30-32, 34, 37, 40-45, 54-55, 60-63, 65, 68-69, 87, 93-94, 107-111, 125-126, 134, 139, 146 Heart attack: 121 Herron, Dr John Tennant: 11, 13-15, 19, 23, 31-35, 37-39, 41-42, 48, 50-52, 54, 56,58,60-62,64-66,68-69,80-82,85-87, 89, 91, 93, 106-108, 112, 116, 124, 130, 133-136,139,146-148,150-155,159,164, 172, 175, 177-178, 180-185, 190 Hershon, Michael: 14 Himmelhoch, Dr Albert: 14 Hing, Dr Sydney Robert: 8, 15, 20, 62-63, 105, 111 Historical perspective: 12 Hospital equipment: 81

Hospital file: 55, 86, 171, 173, 177 Howard, Elva: 112 Hughes, Simon Laurence: 107 Hydebrae Hospital: 122, 125-126

Exercise Books: 59, 85, 89, 150 Experts: 58

I Incidents: 31, 43, 140, 142, 174 Incontinence: 51, 54, 180, 186 Infarction: 33, 130

F Faecal impaction: 186 Faecal incontinence: 186 Fawdry, Matron Marcia Joyce: 15, 83-84, 95,102,104,107-108, 111, 121,128,132, 134-142, 146, 151, 164-165, 167 Fox, Dr Richard: 95 Frame, Dr Max Childs: 63 Francis, Audrey Florence: 32-34, 38, 41, 54-55, 60, 66, 87, 101, 127, 129, 172

J Jackson, Sister Denise: 89 James, Sister Eileen Frances: 165 Joseph, Prof Douglas: 81-82, 92, 155-156, 159-160, 164, 168 Justification (of DST): 68-69

Further proceedings: 60 194

Volume 1

Index

Nichols, Dr James J.: 52 North Ryde Psychiatric Hospital: 50, 53, 61, 116-117, 120

K K. , J.: 9, 178 Kell, Muriel Isobel: 113-114 Kingston, Frank Kelvin: 113-114

Nurses' discretion: 152

Nurses' training: 164

L

o

L. , P.: 114 Largactil: 152, 181, 189

O., C: 10 O., R.C.: 10

Last patients: 183

Open inquiry: 16

Leousis, Stavroula: 127, 142 Levy, Jack Holloway: 13 Ley, Prof Philip: 68, 70 Light sedation: 120, 150, 181 Lightening out: 158, 170 Limb, Robert: 113, 180-182

Ortado, Leo Joseph: 178 Other doctors using the hospital: 79

Ovadia, Tony: 68, 70

Overview or Chelmsford and DST: 47 Ownership and licensing: 94

Oxley, Valerie Marie: 62, 136

Limitations on terms of reference: 25

Lind, Dr David Evatt: 14, 131, 177 Lowe, Matron Wilma Dawn: 95, 115-117 Lucas, Nurse Pamela Dorothy: 167

M M. , A.: 6 M., M.B.: 182 M. , R.I.: 161 MacArthur, Helen Winifred: 13, 140 Macquarie Hospital: 50 Mandala Hospitals Pty Ltd: 56, 117, 119 Mania: 15, 132, 176 Mark, Sister Kai Meng: 165 Matrons: 111 McCormick, Robert Russell: 15, 67 McDougall, Sister Patricia: 149, 157 McEwin, Dr Roderick Gardner: 14—15, 20, 61, 63 McGregor, Robert Donald: 29-34, 36-40, 42, 44, 60, 66 McKay, Craig: 41, 114 McNeice, Stewart Donald: 67 Missing files: 173

Moderate sedation: 119 Modified narcosis: 47-48 Mogadon: 139, 190, 192 Morgan, Dr Gerald John: 14, 49, 95, 99 Morgan, Gerald, Holdings Pty Ltd: 48 Moroney, Matron Suzanne Maree: 61, 86, 94, 143-149, 184 Mulock, Ronald Joseph: 8, 14 Muscle relaxant: 80, 84, 131, 152, 181

P P„ D.: 114 Particular matters: 54

Patient files: 59, 62, 85, 125 Patient register: 175 Patients: 1, 4, 7-10, 12-14, 16, 18-21, 23, 25, 29, 33-34, 40, 42-45, 47-54, 56-60, 62-63,67-69, 71, 73, 75, 78-82, 84, 86-94, 101, 104-107, 111-118, 120-125, 127-139, 141-142, 145-177, 180-187, 189-192 Personality disorder: 176 Placidyl: 152, 181, 192 Pneumonia: 51,112,116,130,156,160,162, 174, 176 Podio, Miriam: 8, 32-34, 37-39, 42, 54, 59-60, 64-65, 67, 87-88, 106, 141, 168 Post partum disorder: 176 Prince Henry Hospital: 120, 178 Profiles: 70-71, 159 Provest, Sister Ailsa: 127 Psychiatric hospitals: 133 Psychosurgery: 2, 12, 49-50, 113, 178 Public Interest Advocacy Centre (PIAC): 90 Pulse: 85-86, 88-89, 112, 163, 186 Pulse rate: 123, 152 Purchell, Sister Margaret: 39 Puz, Nurse Danica: 125 Pyrexia: 116, 162

Q Quality of nursing: 159 Quality of nursing records: 90

N N. , G.: 119 Nam, Janice: 119-120, 169 Narcosis therapy: 1, 4, 7, 48 Nash, Leonard James: 14 Nelson, Matron Margaret Rose: 86, 95, 102, 111, 114,117-121,123,135-136,165 Neulactil: 90, 136, 153-154, 179 195

R Rankin, Dr James: 8, 55, 62-63 Ray, Matron Clare Alice: 114 Rees, Norman: 68 Regurgitation: 156, 160 Reichard, Dr Otto: 14, 79, 125, 139

Royal Commission into Deep Sleep Therapy

Reliability: 19, 63, 68-69, 71 Report books: 59, 85, 88, 124 Respiration: 88-89,112-113,115-116,123, 138, 159, 164, 186 Restlessness: 128, 158 Restuccia, Anthony: 67 Richmond, David Thomas: 29 Robson, Matron Sandra: 15, 51, 79, 86, 95, 103,110-111,118-122,124-128,135,146, 166, 172, 191 Rodgers, Mary Isobel: 113, 173 Rogers, Sister Pamela Mary: 167 Royal Newcastle Hospital: 53, 58 Russell, Dr John: 50 Ryles tube: 104, 123, 138, 160, 181

T Tavener, Kevin Michael: 67 Telephone calls: 63 Temperature: 85-86, 88-89, 91-92, 112, 116, 123, 129, 151-153, 174, 183, 186 Term 1(c), action to prevent treatment: 61 Term 1(d), Dr Davies: 67 Terms of reference: 1, 7-8, 10, 25, 27, 44-45, 53, 61, 68 Thompson, Julia: 114, 142 Thrombosis: 51, 124, 186 Tranxene: 153 Tuinal: 80, 119, 122, 128, 136, 139, 148, 152-154,157,179,181-182,184,188-190

s

V

Retail chemists: 187

Sainsbury, Dr Maurice: 1, 23-24 Salomons, Linda: 157 Sansom, Mollie Patricia: 55, 61, 94, 105-110,118,125-126,129-130,132,137, 139-140 Sargant, Dr William: 19, 48 Schetrumpf, Harold W.: 14 Schizophrenia: 47-48, 50, 125, 176

Validity: 68-69, 71, 92 Variety of patients: 176

Vassallo, Raymond Frank: 114 Vaughan, Patricia: 13, 19, 42, 54, 142, 162 Vickery, Dr Ron: 162 Visitors: 169

Vomiting: 51, 91, 179, 183, 186

Secrecy: 169 Section 17: 17

Sedation: 8, 33, 47, 49, 53-54, 80-85, 87, 89-90, 93, 106, 112-116, 118-120, 122-124, 126, 128-131, 133-134, 136-138, 142-145, 150-152, 154-156, 158-171, 174, 177-178, 181-183 Segal, Ronald Hyam: 62, 132, 140 Sex: 52, 59, 62, 186 Shea, Sister Betty Marie: 14, 48-49, 52, 80, 88, 101,107,113-115, 123,127, 130,135, 137, 162, 164-166, 168 Silbermann, Joseph: 14, 78-79, 95, 99, 101-105 Situational stress: 176 60 Minutes: 8-9, 63, 84, 138, 140 Smith, Dr J. Sydney: 63-66 Smith, Matron Julie Dulde: 15, 51, 54, 79, 81-82, 95, 101, 126, 129-135, 140, 161, 172 Smith, Philippa Judith: 129, 134, 137 Somers Pty Ltd: 98-99 St Anne's Hospital: 80, 165 St Clair, Arnold: 106, 121, 127, 142 St John, Edward QC: 63 Stelazine: 124 Stewart, Kevin James: 14, 62-63, 166

W W., C: 10 Walker, Coralie: 19, 31, 42, 52, 55, 60-61, 93-94, 143-145, 147, 149-150, 161, 173, 183, 185 Walker, Francis John, MP: 14, 62 Walton, Merrilyn Margaret: 66-67 Weatherhead, G.: 90-91, 157, 159 Webb, Peter John: 66 West, Dr Eric: 143, 191 Whitty, Gwenneth: 10 Woodlands Hospital: 53 Wootton, Timothy Charles: 63-64 Wright, Geoffrey: 127

X Xigis, Antonios: 54, 61, 113

Y Young District Hospital: 53

Z Zulliger: 71

Subsequent DST admissions: 175

196