6.6 Professor Ian Hickie
340 Professor Hickie identified coma based therapies as having entered psychiatry in the 1930s and continued until the early 1960s but that the toxicity and potential fatal outcomes involved were recognised and widely reported from the time of their initial use. Fatality rates of 2% to 5% were reported as were other non-fatal but serious medical (eg pneumonia) and neurological (eg hypoxic brain damage) complications at unacceptably high levels. Naso-gastric feeding was not considered desirable or reasonable as it was associated with severe risks (eg aspiration pneumonia). As a result, coma based therapies never entered standard practice as the obvious serious risks clearly outweighed any potential benefits. From the late 1950s onwards various medications became available that provided specific and much safer alternatives. Given the availability of alternative treatments with much lower risks of harm and much greater evidence of benefit by the mid to late 1960s a professional and ethically-based approach would require the cessation of all coma based treatments. From the mid-1960s onwards any further development of coma based therapies could only be considered as experimental and well beyond the scope of normal practice. Any such further experimental practice would have to be carried out at an accredited centre and meet the following requirements: (i) appropriate ethical and clinical governance, (ii) specialist medical and nursing capacity to ensure safety of patients, (iii) provision of clear information to patients about the experimental nature of the procedures and of the likely risks including brain damage and death, (iv) independent clinical and ethical review, and (v) reporting of results including continuous monitoring of adverse events in a clear and transparent manner to the appropriate medical and professional authorities as well as the peer reviewed clinical and scientific literature.
341 Professor Hickie said normal professional behaviour during the period of the administration of DST at Chelmsford required:
i) Detailed medical, psychiatric and neuropsychological assessment of patients prior to administration of the treatment - and exclusion from such treatments of any individuals who would have been at substantially increased risk (e.g. due to age, medical morbidity, previous brain injury) as a consequence of exposure to the treatment;
ii) Clear evidence of the written and informed consent of each patient to the full nature and extent, including the likely risk, of exposure to the treatment;
iii) Detailed written protocols for the general and safe administration of the treatment, including specific modification of instructions for each patient (e.g dosage of medications);
iv) Frequent (ie at least daily) specialist medical review of the medical state of the patients exposed to this treatment;
v) Close supervision of the practices of all other nursing and health staff engaged in the care of these patients;
vi) Detailed medical, psychiatric and neuropsychological assessment of patients at the completion of the treatment;
vii) Systematic collection of clinical data detailing the rates and types of medical complications of treatment; and,
viii) Reporting of serious adverse events to independent clinical governance of the Chelmsford Hospital and independent medical authorities.
342 According to Professor Hickie at the time of administration of DST at Chelmsford the expected ethical and professional standards that were in operation included that:
i) Specialist psychiatrists, and other physicians assisting the administration of treatments, be aware of the commonly accepted forms of treatment (eg psychotropic medications, psychological and behavioural therapies) available for the management of common mental disorders, such as anxiety, depression and related substance misuse.
ii) 'Deep sleep therapy', other coma-based therapies and unmodified ECT, were not among the commonly accepted treatments that should have been offered to patients presenting with these conditions;
iii) If exposing patients to 'experimental' therapies was a proposed course of action, then the specialist psychiatrist should provide patients with all relevant information with regards to the rationale for the recommendation, the proposed benefits of the treatment as compared with standard therapies and, most importantly, the known or likely risks associated with the 'experimental' therapies. Given the long history of these 'coma-based' treatments this would have included detailed information with regards to the fatality rate (2-5%) and the serious medical complication rate (at least 10-20%);
iv) Given the known long history of serious adverse effects of 'coma' therapies, approval for the use of such 'experimental' and high-risk approaches should have been subject to prior approval by an independent medical body and an appropriate ethics and research committee;
v) After commencing the 'treatment' the serious adverse events that occurred at Chelmsford should have been systematically documented and reported independently to relevant medical and professional bodies. The rate of serious adverse events should have led to the rapid cessation of the practice, pending review by independent medical experts.
343 In Professor Hickie's view, for these reasons:
…a clinician (and specifically including a specialist psychiatrist or a general physician) who was providing the 'treatment' described, in the setting provided at Chelmsford Private Hospital, and in the 1970s , was acting negligently, unethically and was engaged in medical malpractice.
…
To have acted ethically, the responsible clinician should have proceeded on the basis that the proposed treatment was 'experimental' and then sought to have the whole process considered to be a clinical trial of this treatment. Within that framework, the 'experimental' nature of the treatment would need to have been set out under an appropriate ethical and clinical trial governance framework. This would have resulted in the proposed treatment, and the administering site for that treatment, becoming the subject of review by independent professional and ethical bodies.
344 He further considered that, for the same reasons:
…the manager of a hospital (given that such a person had medical expertise) that was administering the treatment, (for the reasons outlined for the responsible clinician) would also have acted negligently and unethically, and would also have engaged in medical malpractice.
…
To have acted ethically, the manager of a hospital should have rejected the proposed treatment as standard or acceptable medical practice. Further, the manager should have clearly stated that the facility did not have the required level of medical or nursing supervision in place to manage patients receiving the treatment described. Once the rate of adverse events was clearly evident, including any specific fatality, the manager should have acted immediately to terminate the provision of these treatments in this facility.
345 Professor Hickie started medical practice in 1982 and became a registrar in psychiatry in 1984. He worked in large public hospitals and did not work in any private hospital. He assumed that he could base his opinions about DST at Chelmsford on the allegations of fact in the defences. He agreed he had referred to only one text in his report (Shorter E, The History of Psychiatry in Australia, (John Wiley & Sons, 1997) (History of Psychiatry)) but said his training in these areas is extensive. By this I took it that Professor Hickie considered he had extensive expertise in respect of the history of psychiatry in Australia. Professor Hickie confirmed that the standards are "continuously improving in relation to the regulation of experimental practice in psychiatry, as with the entire field of experimental medicine". However, he also considered that:
…the ethical frameworks have not altered greatly in relation to the obligation of practitioners to observe, particularly in areas of experimental medicine, the accurate recording of the benefits, the risks, the harms that may occur.
346 He said that:
…the accurate recording of benefits or risks is what has driven practice. I would say particularly from periods when there was clearly abuse of psychiatry in certain situations, both during the Second World War and subsequently in the Soviet Union, a great deal of emphasis since the 1950s has been on the appropriate ethical practice, particularly in areas of experimental medicine, in psychiatry in particular, as compared with other areas because of the vulnerability, potentially, of the patient groups that we deal with.
347 He said that:
…while coma-based therapies were a subject of experimentation, along with ECT and psychosurgery in the 1930s, when there were no other pharmacological treatments available, they largely fell into disrepute because of the adverse effects that they led to. So the issue of experimentation is an important one and of innovation, but that is always weighed up against the risks and the benefit, and the accurate recording of the benefits versus the outcomes and the risks, and the adequate communication to people participating in experimental treatments - that has not changed, and so we had interventions that were trialled in the 1930s, some of which persist. So in the case of ECT, which was also first used at that stage, prior to the modern pharmacotherapy age, it continues in treatment, although modified in its form, because of the risk/benefit ratio. There are some - still some forms of new brain surgery in different form that are still the subject of ongoing experimentation in ways that reduce the risk, so what happens in the process here is a continuous evaluation, an independent evaluation of the risks and benefits under the appropriate ethical framework, so the methods - the ethical processes and the methods for recording haven't changed greatly. The interventions themselves change and are used, and then continued, and modified or ceased, depending on the outcome of that evidence.
348 He rejected the proposition that the ethical standards in the 1960s differed from those today saying:
I do not agree. I think, in fact, it was very important historically here, both what was the situation in the 1930s, what led to the cessation of various treatments, and particularly following the second World War, and particularly psychiatry being particularly sensitive about the extent to which it had been abused in those periods of the middle of the last century. That the ethical framework was well-recognised, and the need if you were involved in any interventions, particularly in these periods, to behave ethically. And that means from a scientific point of view, if you are trialling a new intervention, to accurately record, put the rationale forward and have that reviewed by peers. Describe the protocol, have that reviewed by peers. If you engage in that particular practice, that you record accurately the benefits, the risks and the harms, and you continue to report those externally and transparently. I do not think the ethical framework has changed at all.
…
The methods for recording it have [changed], not the obligations. The issues of ethics committees, independent oversight, journal publications, peer review, protocols has not changed at all. This is a well-established practice in medical research, as it has been. And the abuse, in fact, in psychiatry in the middle of last century, led to generally a greater focus on being careful about these issues, and particularly given the vulnerable populations, and that remains the case today. For ethics committees, for other independent reviews, these things are subject to a great deal more review, and an expert and independent review from those who are actually conducting the interventions.
349 He said:
…Again, the reason why I quote particularly, Professor Shorter's book, is to understand the transition here between the 1950s and sixties, into the 1970s, with the arrival of modern pharmacotherapy. So the other issue in medicine always in standard practice, is what are the alternatives that are available at that period. So the situation in the 1970s through to the 1980s, was very different to the 1930s and forties, and certainly up until the late 1950s, early 1960s.
350 Professor Hickie gave this evidence:
One way to determine whether or not - or how to conduct a treatment is to visit a facility that has been conducting it for some time and to observe and learn from that facility. Would that have been a reasonable step for a practitioner to take in the 1970s?---Yes.
And another step that a reasonable practitioner could take is to identify the fact that eminent psychiatrists were using a certain treatment in a particular way that would be a way for psychiatrists to give him or herself comfort as to whether or not that treatment was acceptable. Is that right?---That may be one more step of many steps that you might take, if you're involved in treatments that you know involve considerable risk - one of many.
And one of the other factors that needs to be taken into account insofar as risk is concerned are - is whether there are reported studies that the treatment in question is indicated for certain conditions; is that right?---That would be one issue. Again, professional practice at the time and what is accepted doesn't necessarily reflect what one particular review or one particular author's view might be, historically, or any particular issues. The issues of best practice in professions is a professional issue, so various bodies do often issue guidelines and issue statements. And there are best practice approaches, particularly in treatments that involve considerable risk, even if those treatments are no longer the subject of experimental enquiry.
351 Professor Hickie agreed that he had not reviewed literature "that applied or was available in the 1960s and 70s as to how psychiatrists should conduct themselves in relation to the use of what [he had] called experimental treatments" and that he was not in practice at that time. However, he said:
No. I haven't referenced it [the literature], but if you go to any standard hospital, in terms of its protocols for delivery - and the hospitals I worked in - in - and as a medical student in the 1970s, as a doctor in the 1980s and onwards, those protocols for those treatments as they surround other protocols for the delivery of anaesthetics, as they … surgery in other areas - what are the standard hospital protocols for delivery of the treatment, also for the recording of effects, also for the availability of staff to monitor those effects, also the qualifications of staff to deliver those particular settings. They are the standard protocols. So I have not referenced each of the protocols in each of the hospitals at those times because that's not a matter of literature review, that's a matter of protocols and professional and ethical practice.
…
So reasonable hospitals and reasonable practitioners have available protocols in their hospitals for what the treatment is, who delivers it, under what circumstances, with what review on an ongoing basis, just as they have protocols for surgery, just as they have protocols for anaesthesia, just as they have protocols for other standard practice. So hospitals have those. They're often overseen and initiated by the clinical leadership and approved by the hospital administrations and they pay respect to professional standards of practice at the time.
…
Now, I could also make the point nothing has changed here. These have been the normal practices in our hospitals for a very long time, and certainly back into the 1970s and 1960s, and really to ensure, particularly in psychiatric practice, that we behaved in ways similar to our surgical and medical colleagues, to make our practices actually transparent and clear and overseen in the appropriate ways, particularly given the vulnerable nature of the populations that we often deal with.
352 Professor Hickie rejected the suggestion that the use of rapid neuroleptization in the treatment of schizophrenia in Australia in the 1970s did not meet the ethical standards he had described in his report, saying:
And I don't agree with you, because the issues around the ethical practice in a particular areas and the adequate and monitoring and recording at the facility level of what is normal practice and making sure that happens in a safe way, I would suggest to you, were followed in the 1970s and through to the 1980s in appropriate facilities by appropriate practitioners.
353 Professor Hickie considered the history of narcosis therapies disclosed that they were focused on restoring a proper sleep/wake cycle rather than sedating a person for 24 hours a day. Professor Hickie explained he had a particular interest in this area of research and a large part of his work over his career had been taken up with the issue of sleep/wake cycles and the attempts over the history of psychiatry to restore these cycles. He said that before the 1960s barbiturates were the principal drug for sedation but by the 1960s many safer and more effective treatments became available and then in the 1970s benzodiazepines and other drugs were also much safer for sedation. As a result, practice moved rapidly away from the prior treatments which were known to have high mortality rates and considerable other risks to more effective and safer methods. He explained that:
What is well recognised about sedation at this level at this period of time in any setting is the potential risks. Suppressing breathing, actually causing other complications of those particular factors, aspiration pneumonia, swallowing your vomit, complications in terms of pneumonia and infection, hypoxia in having low blood oxygen delivered to the brain. There are a range of intrinsic risks associated with it and depending on the setting in which you conduct it, you've got to assume there's at least a mortality rate in the one to two per cent range and depending on how you do it, it may be as high as was reported. This is not simply a function of the drug. It's a function of dose, protocol, safety and monitoring. As with any of these particular treatments or with any other medical treatment that involves this degree of risk. The mortality ratio will be a function. So what this is indicating historically is the range in which this has occurred.
354 The reported mortality level from narcosis therapy according to Professor Hickie was between 2% and 5%.
355 Professor Hickie was familiar with the work of Dr Sargant and said that it could not be assumed that the therapies Dr Sargant was using could be compared to DST as practised at Chelmsford. He said that in any event by the 1970s:
…other safer and more effective treatments had delivered, the notion of coma-based therapies and particularly of deep sleep continued unconsciousness as being a way forward had largely been abandoned by the experimental end of the profession and also by common practice.
356 In response to a proposition that Dr Bailey had claimed he had treated 2000 patients with DST since 1951 Professor Hickie said:
I would like to see the systematic evidence. Simply the fact that Dr Bailey made such a claim, I would like to see the details, and not only that, the extent to which - between 1951 and 1967, as you suggest, the method was the same. I would be very surprised if the methods in 1967, were the same as those in 1951. The mortality rates, the outcomes, etcetera. So I think that is simply, as people often do, saying 'I have a lot of experience in a particular area,' without providing the style of information that lends itself to external review.
357 This evidence was then given:
Well, you're not suggesting, are you, that if a practitioner makes an adjustment, any adjustment to a therapy that they've been undertaking for many years, they are required to undergo the protocols that you've discussed today, and in your report?---I am suggesting that if you encourage experimentation with an area, if you are involved in experimentation or significant deviation from accepted practice, I am suggesting you should do exactly that.
So ?---If you are departing from, and particularly if you are exposing people to risks associated, and you know that, and every medical practitioner knows the serious complications of prolonged sedation, from any course. Any medical practitioner is aware of that, that that is a significant risk, that certain groups of patients are in danger as a consequence of that approach, for whatever medical reason it's undertaken. So significant deviations from that, I would expect to be subject to independent review by peers, and where appropriate by independent ethical review committees and tribunals.
358 According to Professor Hickie:
… in relation to the schedule of the treatment provided at Chelmsford Hospital, I think it is clear that it is grossly inadequate for the provision of anything that involves prolonged unconsciousness.
359 This exchange then occurred:
Professor Hickie, you have not done a literature review, have you, of the available literature to a practitioner in the 1970s, in relation to deep sleep therapy or prolonged narcosis, or modified narcosis, have you?---No, I have not done my own literature review. No, but I am a trained practitioner in these areas, with an extensive knowledge of the history of these approaches, and also as a trained physician, of the intrinsic risks associated with prolonged sleep. Also as I've made clear, it is an area of my professional expertise, in terms of the restoration of … cycles and the history of that.
Well, I want to suggest to you, Professor, in order to determine whether Harry Bailey significantly deviated from the practices of others who had published studies, you would need to closely review what those practices of others were, as published in the studies. Wouldn't you?---There are studies. There is also the common practices of other practitioners during this period, and again I refer you back to the Shorter book, that by the 1960s, other safer and effective treatments had emerged.
360 Professor Hickie did not see the existence of other publications after the 1960s (by Dr Sargant in particular) as altering the fact that there had been a:
….fundamental change in the direction of practice away from this style of treatments, due to its morbidity and its problems. The fact that practitioners who - Sargant, who had been practicing in the 1940s, may have continued with some aspects of that, does not indicate the clear change in practice in the late 1960s, mid to late 1960s, away from these styles of treatments due to their risks even in the best of circumstances, because of the development of safer and more effective treatments.
361 When other literature was put to him that he had not read (being that relied on by the applicants to support the asserted efficacy of narcosis therapy) Professor Hickie said:
Again, I would make the general comment here, there are many publications that may have occurred during that particular period. The key issue here, I think well summarised by Shorter, is because of the modern pharmacotherapy era, the movement away - so while studies may well have been conducted during that period, the relevance here is the fundamental shift in a direction towards safer and more effective treatments, with the modern birth of pharmacotherapy.
362 This exchange then occurred:
And if those journals explained - or set out the methods used being used by the practitioners, the results that they achieved and the indications for the treatment - that would be something that a reasonable medical practitioner at the time could take into account in considering whether or not they should use the treatment?---It may - it may be one factor that informs their decision about practice.
Now, in relation to ? ---I would make the comment it's not necessarily sufficient. It may inform, and for many treatments actually simply reading about or knowing that a treatment may be effective doesn't mean you necessarily are able to provide that treatment safely or appropriately in your own setting.
Well, there's no universal agreement, is there, among psychiatrists as to which therapies are medically acceptable and which ones aren't? ---No. I don't agree about that either. I think there are standards of practice and they're agreed in the professional groups. Some are the subject of an external review and regulation, as we discussed earlier on. Some are prohibited in certain circumstances, and, actually, as time develops, what are the appropriate standards of the day - and the general movement towards safer and more-effective treatments and moving away from treatments that may have been effective, but were associated with undue harm is clearly part of the continuing development of appropriate practice.
Well, putting the two extremes aside, banned practices and practices that are widely accepted, the practices you've just referred to at the end of your answer are not at every point in time the subject of consensus in relation to whether or not they're medically acceptable? ---Within - again, I - I don't necessarily agree with you about that. I think there are often a range of practices that are accepted - that are acceptable, but which ones are deployed in certain situations - for example, there are various forms of medication therapies. There are various forms of psychological therapy. They're very different. They may be both appropriate in a particular situation. They're within the range of treatments that might be continued. Some practitioners better trained in one may well deliver one. Some better trained in others may deliver the other. So there's a range of accepted treatments at any particular point in time. So different treatments may be delivered, but there's still often an acceptance of the range of reasonable practice.
363 While Professor Hickie accepted as a generality that some practitioners might engage in a therapy longer than others, it was different if the treatment involved a risk of significant harm. He said:
No. I don't agree with you. No. I don't agree with you on that particular point because if it's - if any of the treatments you're describing runs the risk of exposing the person to significant harm, including death, that is not the same as a debate about one medication versus another or psychological therapy versus another. When there are significant risks and harms at stake, this is not an issue then of just individual decision-making or 'I prefer to continue a practice that I've been continuing since the 1950s or 1940s.'
Well ? ---That is not - where there is significant risk at stake, that is not simply a matter then of individual judgment or opinion or experience.
364 He continued:
…I'm referring to the schedule and what is described as the treatment because in that area I think it is absolutely clear that what is described in the treatment provided to me I would consider entirely unacceptable by comparable standards in the 1970s, and it doesn't just relate to whether a practitioner was trying to induce sleep or a condition of prolonged sleep. It refers to the entire setting and the risks associated with that, which strikes me, frankly, as something that you would have seen perhaps in the 1930s or forties, and even then, and as pointed out by himself in the Slater article [Sargant W and Slater E, An Introduction to Physical Methods of Treatment in Psychiatry, (5th ed, Science House, 1972 (Introduction to Physical Methods of Treatment in Psychiatry))], that actually people did not attempt to keep people asleep for actually 24-hour periods or prolonged periods. The development of these areas - and as pointed out by Shorter, by the end of the 1960s, that whole concept had been moved away from. So the issue here of what is described in the schedule, which is not just a focus on sleep; it's prolonged unconsciousness and ECT and, in my view, grossly inadequate supervision of that particular set of circumstances - is clearly a variation. That does not require a review of the previous 50 years of deep sleep therapy. It requires comparison with normal practices for any of those particular issues. Firstly, what's the justification since, as well described by Shorter, the rest of practice had clearly moved away a decade earlier from that particular set of areas? Second, even if it was continued, was it done with reasonable consideration to the safety of the actual patients subject to that? You've raised other issues as to whether it is actually comparable, even as indications with the very severe illnesses of people who, in earlier periods, were hospitalised, often permanently, for their conditions, as distinct from people attending outpatient practice, coming along in a voluntary condition to receive treatment. So I think I don't agree with - I agree certain aspects - comparability with the day, yes. In terms of actually being able to assess that, that doesn't require a complete review of what was normal practice in the 1930s, but actually what would have been safe practice in the 1970s and the justification for that practice and the adequate supervision of that practice, and what would have been the view of external colleagues during that particular period with regards to the treatment as its described here. Not a focus on sleep, but a focus on the entire way in which the treatment has been delivered, supervised and monitored.
365 The schedule Professor Hickie is referring to is a schedule provided to him in his letter of instruction about DST as practised at Chelmsford. That schedule is annexed at Annexure A to these reasons for judgment [EXP 56.3 to 56.6]. Based on the whole of the evidence (including my examination of numerous nursing notes from Chelmsford and the expert evidence) I consider that the matters described under the heading "Treatment" in that schedule are a generally accurate description of DST and ECT as administered at Chelmsford other than to the extent that the evidence discloses:
(1) the level of sedation of patients varied over the course of the 24 hour period but the inferred objective of the polypharmacy involved was manifestly to achieve as near as possible 24 hours of deep sedation where patients would tolerate a naso-gastric tube and often be incontinent. At this level of sedation some patients would have been unresponsive to painful stimuli but as dose periods came to an end, depending on the individual patient, patients may have become rousable and, on occasions, were capable of being assisted to a commode for toileting;
(2) ECT was not administered every day to every patient, although it was administered daily to some patients. It was routinely administered to DST patients without a muscle relaxant, oxygen or anaesthetic, contrary to standard practices at the time;
(3) the nurses conducted an admission process in which they would take a patient history to some extent and order a range of routine tests. Doctors were not generally present at the admission and thus the patient would be admitted without a doctor giving the patient a physical examination at that time. Some patients may have been the subject of physical examination by a doctor in their private practice suites before admission but none of the results of those examinations form part of the continuous medical record of care at Chelmsford, contrary to standard practice at the time;
(4) it is not entirely clear whether there was always only one registered nurse on duty for the entire hospital. Some evidence suggests that there were shifts when two registered nurses were on duty; and
(5) it may have been that there were six rather than eight patients undergoing DST at any one time. The evidence is unclear.
366 I do not consider any inaccuracy in the description of the "Treatment" in the schedule to be material by reason of these matters. The essential aspects of the description accord with the weight of the evidence. The applicants' submissions to the contrary are unpersuasive. Accordingly, Professor Hickie's evidence cannot be discounted due to any unreliability in his assumptions. It is also evident that his assumptions were confined to DST as practised at Chelmsford - the balance of his evidence about narcosis therapy and it being outmoded by the 1960s was based on his medical expertise.
367 Professor Hickie explained that with the availability of alternative treatments in the 1960s and 1970s he could not see:
…any conditions would be appropriate for deep sleep therapy. I don't believe there are any indications for deep sleep therapy. I don't believe there were any indications in the 1970s for deep sleep therapies. In fact, the issue that you've raised - for each of the conditions named, more specific treatments at lower risk had already emerged.
…
We had the development of many, many other classes of drugs that, for the great majority of practitioners, meant there was no indication for anything - anything even mildly resembling deep sleep therapy.
368 Professor Hickie refuted the notion that the new drugs that became available from the 1960s were themselves experimental, saying:
No. It was not experimental. So this is an important point. When things moves from experimental to regulatory practice, there are things and areas of experiments at certain points and we have regulators in Australia. We have the Therapeutic Goods Administration. We have the Food and Drug Administration in the United States, elsewhere. That things have reached a certain level of safety by continuous evaluation and efficacy. They are then regulated to move into normal practice. They're then regulated and - and supplied that they are fit for practice in those areas. Now, what happens in post-surveillance of that regulation is things may well then emerge when 10,000 people are exposed to that treatment when previously there may have only been 1000 and that is the post-marketing or the post-treatment surveillance that goes on. That is not experimental. That is the appropriate surveillance of that common treatment in common practice.
369 He explained that with respect to DST by the 1960s and 1970s:
I cannot think though in my whole professional experience of a scenario in which any of those treatments in terms of the risks involved or this would be the next reasonable step… I cannot think of a possible scenario in which what you describe would result in the offer of this treatment.
370 As to consent, Professor Hickie said:
The standard of consent, again, is not something that has fundamentally changed over that period. The standards of providing consent - how you're providing consent and the way in which you may be required to do it, but the fundamentals of informing people about the options available in terms of treatment and the risks of which are you exposing them and also what is common practice in that area and if you are exposing them to something that is not in common practice - it's not something happening at another hospital down the road or in three other places or where you could go to four other practitioners and have the same treatment, then the issues in relation to informed consent, I would suggest, have not changed at all.
Well, I want to suggest to you there was, in fact, substantial legislative changes made on the question of consent as a result of a review of consent procedures in 1986. Are you aware of that? ---That's the legislative change. I'm referring to here the practices in the … for what medical practitioners would be reasonably expected to do. The fact that legislation has moved over time and we have seen - this goes back to a methods question of some hours ago - as to how we record these things and how we document and how we provide information to people, but the fundamentals, I would suggest, have not changed at all. The medical issues here - and I go back again to the period - just to go back to - particularly in relation to psychiatry, back to the periods - the very adverse experiences that we had in the 1930s and subsequently the Eastern Bloc countries. The issues of vulnerable patient populations being provided with adequate information about alternatives, about the nature of the treatment, about the risks and the onus on any psychiatrist in this area to be particularly vigilant around the issues of consent to treatment, particularly where the treatment has clear risks, I would suggest, have not changed at all.
Well, Professor Hickie, you weren't in practice in the 1960s and '70s; correct? ---No. I was a medical student in the 1970s and doctor practicing in my own right in the 1980s.
And the question is, what are ? ---Yes, but on a qualification of that, the teaching of consent, the history of consent, the history of medical practice did not radically change in those periods of the ethical - I think the big changes I've alluded to, and particularly in psychiatry, which is a particularly sensitive issue for those of us trained in the 1970s, was to be extremely aware of these issues because of the very adverse effects on the practice of psychiatry, and the reputation of psychiatry out of the Nazi period and the Soviet War period. So I think the issues were well-known and taught to practitioners like myself in the 1970s. That these were issues that, in practice, required a great deal of attention for all medical practitioners, but particularly for those dealing with vulnerable populations.
And what I want to suggest to you, if there was a specific requirement as opposed to best practice in relation to issues of consent at that time, there would be literature available to those practitioners practicing in the 1960s and seventies, to have regard to on that issue? ---Well, they may or may not refer to the literature on the issue. But again, the issues of the ethics of practice as a practitioner, within the professions that you were dealing with, were well-taught to medical practitioners, and the high standard at which they were expected to behave, and I would say particularly for those of us training in and practicing in psychiatry, these issues were, and continue to be, emphasised. This was not something that just happened in the 1980s or the 1990s, or subsequently. These were issues that were unfortunately highlighted for us by what happened in the 1930s and onwards, elsewhere in the world, and the issue of vulnerable populations and appropriate practice was, as I say in my own experience of being taught when I was a student in the 1970s and into practice, it wasn't something that was just invented at a later period, or simply became the subject of a legislation at a later period.
Well, first of all, you were being taught it in the 1970s, but you don't know what was being taught in the 1940s or fifties, is that right? ---I would hope that what was being practiced in the 1970s, reflected the practice of the 1970s, and not what was taught in the 1940s or fifties.
And there's ? ---And I don't accept your proposition, actually, I don't accept that actually, there are many issues of ethical practices that have continued. I think what was [said] for psychiatry, is that in certain parts of the world, in fact, practice deviated significantly, and particularly in Nazi Germany, and particularly in some Soviet bloc countries. The ethics of this run back over a long period. So even in the 1940s, I would expect that the same things were taught. It has a long tradition, and the issue of vulnerable populations has a long tradition.
…
If you are practicing as a medical practitioner throughout the whole of your education and ongoing practice, you would be aware of the stems of these issues. It's not simply a matter of what is written down at a particular point, these are continuing ethical principles. They were not invented in the 1980s or the 1970s. They applied in the 1930s, so we apply them, and we abhor the practices that undertook it under countries at that time, which clearly broke those principles. And we see them in other situations, where we think they have again been ignored, and I'm afraid to say that appears to be the case in Chelmsford, in the 1970s.
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Well, I want to suggest to you that as far as informed consent is concerned, in Australia at least, the notion of informed consent from a legal perspective, didn't develop until the 1980s? ---The legal stance, the way in which the methods were required to be recorded and acted, have been subject to continuous review. So we find ourselves now in a situation where the degree of reporting, recording of changes and standards, have been set down, where they've been set down in regulation, where they've been set down in legislation. That hasn't changed the ethical principles that have underpinned practice.
371 As to the fact that muscle relaxants were not routinely used at Chelmsford in administering ECT (a fact apparent from the medical records), Professor Hickie gave this evidence:
…if you assume please, I don't know if it's in there, but if you assume for a moment please that there was no fractures, and no dislocations evidenced amongst thousands of ECTs performed at the hospital, over a period of years. Would that be relevant in your assessment, as to whether or not muscle relaxant was a necessary part of the provision of ECTs to sedated patients?--- No.
372 Professor Hickie was not familiar with ECT using the glissando technique but said:
An important clarification. If a person has a convulsion by whatever method, by whatever machine, the issue of complications is not simply one of fractures.
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A fracture is one complication of the lack of muscle relaxants. If you have a seizure, if you have epilepsy, if you fall in the street, if you have - the issue of muscle contractions and their adverse effects. So if you are delivering ECT by whatever method that results in a seizure, the standard practice would be to provide muscle relaxants… Not simply to avoid fractures, to avoid a whole range of injuries… Including dislocation… Including tissue damage.
373 This exchange occurred:
…if you assume, for a moment, that amongst thousands of ECTs, there is either no evidence or no evidence of any significant reporting of such results, as a result of ECT. You couldn't exclude, could you, the possibility that the fact that the patients were sedated, meant that the impact of the seizure was different to how it is conducted by other practitioners? --- I can't accept your assumption. I can't see evidence of what you're saying, assuming that for that many ECTs, as if there were no actual adverse events. In the material provided, there's listed a random sample of 200 patients, and this would depend, of course, on the recording. This would depend on the open and transparent recording in real time of the complications, including the range of complications from unmodified ECT. So you know, I think the assumption that you've asked me to make, are not assumptions that I could accept without seeing actually adequate evidence to support those assumptions.
So you refuse to accept those assumptions? --- I can't see - the proposition you're putting to me is nonsensical, in terms of the risks associated with unmodified ECT. But there is some form of ECT that results in a seizure. There are different - now, it's important to say here, there are different kinds of brain stimulation techniques, so that many situations now don't require - that involve brain stimulation in one sense or another do not resolve in a seizure. So I'm not sure whether what you're suggesting is that the ECT that was delivered did or did not result in a seizure.
Well, what I'm suggesting, Professor, is that Dr Bailey used an ECT machine that's not standard and as used by other practitioners at that time. --- But as I understand it, you're not familiar with how that ECT machine operated; is that right? I'm asking you, did it result in a seizure?
I'm not sure I have to answer questions, Professor. But what I'm asking ? --- I can't answer - I can't answer your question without knowing - when you say he used an ECT machine, assume it had no effects. There's a chain of events. If he's using an ECT machine to induce a seizure and a patient has actually had seizures, then I would find it hard to assume - and unmodified, without appropriate muscle relaxant - that there would be no complications of that. That would be highly inconsistent with the rest of the professional literature about unmodified ECT.
You have assumed, haven't you - and this is no criticism, Professor - that the ECT technique being used by Dr Bailey and the other doctors at Chelmsford was the same as - putting aside, of course, the muscle relaxant issue, the ECT machines being used by the doctors at Chelmsford have the same effect by way of seizure as other ECT machines being used at that time? --- I am assuming that when someone uses the term ECT, they're involved in a procedure that causes a seizure. If the patients actually had a seizure which has actually got to do with the therapeutic effect of the treatment, and that was unmodified without muscle relaxants, I would find it astonishing if there were no actual musculoskeletal complications of that treatment.
374 It may be recorded here that there is no doubt that the ECT machine used at Chelmsford was used to induce a seizure in the patient.
375 As to the practice of DST at Chelmsford involving patients being incontinent and wetting the bed, Professor Hickie said:
There are two aspects here. It goes back, in fact, to your earlier reference to Slater [Sargant and Slater, Introduction to Physical Methods of Treatment in Psychiatry]. In most of the areas in which anyone is using any modification of any kind of sedation therapy, the usual practice would be, in fact, that people are not so sedated that they cannot, in fact, toilet themselves or be assisted to toilet. The idea that they would lie incontinent, from either their bladder or their bowel in that situation, would be entirely unacceptable - not only from a patient dignity point of view, but form a medical complication. The issues related to infection relating to that - now, in situations in intensive care … where people are actually sedated for long periods, then the issues of catheterisation or of using other collection techniques where someone is so deeply sedated are commonly used. So the issue here of simply being left to soil as normal practice I find astounding.
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It's the whole treatment. The idea that you would leave someone - and I think it's commonly said, even in the early literature, the emphasis on not actually leaving people to soil but actually to assist them through mobility, through toileting, through other practices to avoid further medical complication is clear.
376 Professor Hickie did not think it mattered that Kylie sheets were used at Chelmsford for DST patients (I note this occurred after Dr Gill became a part owner in 1972 and that Kylie sheets drew moisture away from the top of the sheet). Professor Hickie said he had assumed there would be some period of time in which the patients would be left in a soiled bed before they were attended to. He agreed that catheters should only be used when absolutely necessary because of the risk of infection. As I understood this evidence as a whole Professor Hickie's fundamental view was that sedating patients to the point where they were unable to be assisted to the toilet was itself an unacceptable practice.
377 Professor Hickie did not accept that when he referred in his report to "requirements" he meant "best practice". He said he meant "minimum standards" which he did not believe were time specific. When it was put to him that he had not practised in a private hospital he said:
…I think it's important to say a hospital is a hospital. Whether it has a private funding mechanism, a public funding mechanism, from the point of view of professional practice, is not relevant. The issue of professional practice is not dependent on whether you practise in the private sector or the public sector, as we define it in Australia.
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There's no suggestion that people operating in the private sector - or in private hospitals in Australia are subject to less review or can undertake processes that are more risky or put their patients at greater risk than those who are practising in the public sector.
378 As to the operators of a hospital, he said:
The operators of a hospital - and this is very clear. The operators of a hospital - and whatever the arrangements are between the practitioners and the professional practice, it's not a matter of which company, whether that be a private company or New South Wales Health or other facility owns a hospital. It has got to do with the professional practices within that hospital and what are the oversight mechanisms and the responsibility. And very clearly, in medicine, this is transacted every day of the week, in the 1970s and now, of individual practitioners wishing to carry out certain activities within those facilities, and what is the oversight, so that individual doctors do not engage in activities that may place their patients at undue risk, without apparent oversight, without those issues being subject to continuous review by peers and by professional … consistent with standards of practice, as one would expect for a profession that is engaged in these activities.
379 When it was put to him that in the 1970s there was no requirement for a medical practitioner to have oversight of a private hospital Professor Hickie said:
Again I - again I suggest to you it's irrelevant to say 'in the private hospital'. The issue is a practice issue. Practitioners in a private hospital are operating under the same ethical standards - and private hospitals, of which there are many excellent ones in Australia, operate with standards that are entirely equivalent and did in the 1970s with public hospitals, and they make a really important decision typically, which is not to undertake in their facility practices for which they do not have adequate facilities, staff, monitoring, reporting, so to not place people at undue risk. So typically many more complex or risky procedures in medicine are largely conducted in the public sector or only in private hospitals that actually can meet the same standards. There is no difference in standards between the public and private sector for medical practice.
380 This exchange occurred:
Now, in relation to the private system, there was no requirement for there to be any medical superintendent or any doctor to oversee private hospitals. Can you please assume that for a moment. And the only - the only qualified person that was required for the conduct of a private hospital was a registered nurse. And what I'm suggesting to you is the people who are responsible for conducting themselves ethically within the private system were the doctors, including specialists, who admitted patients into that private hospital. Do you agree with that? --- No. The legal issue you describe is not the practice issue. I'm sure what you say legally - in terms of what person were legally required to do, but I'm saying that practice of - simply saying the practice only - or the practitioner only is responsible for what takes place in that facility wasn't true in the 1970s and it isn't true now. The legal - whether the legal requirements were different in the 1970s is a different issue. The issue of ethical practice of oversight by other practitioners within the facility and that the facility itself meet the standards of the day was true in the 1970s and is true now.
And what I'm suggesting to you is I could have owned a private hospital in 1970. Are you suggesting that a non-medical officer was somehow required, as the owner and operator of a private hospital in 1970, to supervise the conduct of specialists in the admission and care of their patients? --- You just made a key distinction between the owner and the operator. Does the operator have a responsibility? Yes.
I'm ? --- They had a responsibility in the 1970s ethically. They have a responsibility now. Now, what processes they use to ensure that has varied over time and … but it's clear that the operator - not the owner, the operator. Whoever is purporting to operate that facility, independent of the practitioners who actually conduct activities, in my view, had a clear ethical responsibility then and they do now, and this has been well looked at. There was no difference - to suggest it depended on whether you were in the public and private sector, I reject. The onus of the ethical responsibility for an operator, a hospital operator - the same.
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Well, what I'm putting to you, Professor Hickie, is that there was absolutely zero requirement in the private hospital system in 1970 - in the 1970s for any supervision of the care and conduct and admission of patients by private practitioners into that hospital? --- No, I disagree with you again. Ethically, the operator of the hospital, whoever that may be, as far as I'm concerned, had an ethical obligation to provide a facility that was safe and met the standards of the day for the activity that was being conducted, whoever admitted those people. If you think about it in surgical terms or any other terms, you could admit a person to a hospital. If that hospital doesn't meet infection control standards, if it doesn't have appropriate recovery standards, if it doesn't have appropriate ventilators or oxygen machine, that's the responsibility of the operator, to provide the environment that is safe, including staffing levels, actually provision of adequate staff - that is the responsibility of the operator. That is not the responsibility of the practitioner who refers their patient to that hospital. That is different to the owner of the hospital, which may well be an independent company that has no expertise in such matters, and so typically, an owner would employ an operator, whoever that operator is, that meets the standards of the day in terms of professional practice.
And I want to suggest to you that under the relevant scheme, the operator, in the relevant sense, being the supervisor of the nursing care and the other facilities in the hospital, was a nurse? --- Whoever is the operator of the hospital - and I - I would reject the notion in terms of being an operator - is ever going to be a single individual, since it's actually the staffing, the facilities, the infrastructure, the monitoring, the reporting, as we have in - in hospital standards, who oversees the quality control of services is never an individual, or it's certainly not a nurse who's overseeing the operations of the facility for the conduct of whatever the activity is that's planned. So typically, what you see in the private sector is a relationship between what activity and the risks associated and what level of staffing, infrastructure, facility is required to conduct that so that people can admit this - their patients to that hospital and expect it to meet the reasonable standards. It's not a legislative issue. It's actually a medical practice and ethical issue. The operator has a responsibility. Separately, they have a legal responsibility - they may have legal requirements of the day. But there are straight medical practice issues that are the responsibility of the operator.
So I think in the answer you have just given, you have referred to the facilities that are available in the hospital. Are you saying that when you're talking about the manager of a hospital as a general practitioner, that that person was ethically obliged to provide adequate facilities so that the specialist admitting had appropriate facilities in which to treat their patients. Is that what you're saying? --- Yes.
You're not suggesting, are you, that such a general practitioner was in a position to question the diagnosis that a psychiatrist made in relation to their private patient? If they - no. In fact, if they felt that they should, yes. Of course they could. Another doctor can question another doctor. It's not a matter of simply saying, because one is a psychiatrist and the other is a medical practitioner differently, that one is without question. One of the issues is, of course, if you are the operator of a hospital, whether you're - whatever the construct is, is the person being referred for the appropriate treatment suitable for that treatment? --- That's entirely something that should be also overseen independently of the practitioner. If you think of any medical procedure, you want to make sure that the people being admitted to the hospital - they are going to receive a treatment that is relevant to the problem that they have. And if that requires oversight, well, that is contestable or that needs to be reviewed by independent others, you would have processes in place to do that.
So your ? --- So this notion that an independent practitioner is just to admit people into private hospitals and no one ever did challenge them or ever was challenged, I would reject.
Well, Professor, are you seriously suggesting that the operator of a hospital needed to look behind every admission by individual doctors to determine whether or not that doctor had engaged in a proper diagnosis of the patient in relation to the treatment? --- So most hospitals in these situations will require people to provide evidence that they are admitting people to their facility with the appropriate condition and for - in appropriate circumstances, be that surgical, be that medical, be that psychiatric in a particular way. And what is the evidence of that, that [the] appropriate person is coming for the appropriate treatment? Now, in this situation, that has to do with the indications for treatment. Why are people coming in to this hospital for this proposed treatment? So this issue that the independent practitioner can simply admit and do as they feel free to do or as they have done elsewhere, independent of the operator of the hospital, I would suggest is not true.
Well, I suggest to you, Professor Hickie, that it is quite ridiculous, in fact, to assert that a general practitioner would need to go behind every single admission by the many specialists admitting into the hospital that he operates or owns - as you have assumed, operates. That would be completely unreasonable and, in fact, was not the practice in the 1970s? --- The way that you have described it, it's not a matter of going behind. It's a matter of documenting for what purpose the justification and for what treatment the person is actually being admitted to the hospital. And as - rather than say it's the responsibility of a general practitioner, it's the responsibility of the operator to make sure that their facilities are being used for the appropriate purpose. And that is what they have set the facilities up for, so there is a match between the patient need and what they can actually provide.
Well, I suggest to you that wasn't the practice in 1970 and it's not the practice now? --- It is the practice now and it's an ongoing practice that these subjects are reviewed. So we have systems - and often in these days I would suggest they are better documented because of the ... systems that we now have - of who is being admitted. And they are continuously reviewed by, in fact, private hospital operators as they are. So it's not a matter of what you're asserting, that you check on every individual occasion. You are looking at the body of practice that is taken. Are the people being admitted to an appropriate facility? So you see this all the time, in fact, in private hospitals. If people are too complicated - it's too complex, it goes beyond what that hospital can provide, then many private hospital operators will say, 'No, we cannot deal with that level of complexity in our facility.' And they say to the operator - so it's very common for doctors, in fact, to admit to public and private hospitals or to private hospitals with different levels of services, relevant to their patient needs.
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Well, Professor, I want to suggest to you that the opinions you just expressed in answer to that question, as to the manager of a hospital, are not supported by any literature available or applicable to the relevant time period? --- I don't accept that proposition, and if you have evidence of that, I would like to see it. I don't see the proposition you're putting as being at all consistent with my understanding of the operation of private hospitals over a long period in Australia, or in other private hospitals at the same time, or in terms of - I think you've referred to legislation as distinct from practice, in these particular areas.
Given you weren't, and have never, practiced in a private hospital in the 1970s or 1980s, what I'm suggesting to you is absent any review of relevant literature which sets out what the standards were at the time, you can't possibly and fairly express that opinion? --- I'm expressing the view on the basis of my knowledge of practice over a long period in the Australian health care sector, not having simply worked primarily in the public - private sector, does not mean that I'm not aware of continuously, the practice of my colleagues in both the public and the private sector, over this prolonged period, and including back into the 1970s.
And I want to suggest to you that not only was it not incumbent upon a general practitioner to question the diagnosis and treatment of a patient engaged in - by a specialist psychiatrist, it would have been quite improper for that practitioner to question a specialist, when that practitioner had no direct knowledge about the previous care or condition of that patient? --- No. As I said earlier, I reject that notion. I think any doctor with knowledge of the complications of putting - making a patient deeply unconscious, and in this setting, with limited capacity to monitor, would be able to - and would be expected. I actually would expect that any doctor would challenge any other doctor. This is not a matter of specialist and non-specialist. This is a situation all the time of respect for colleagues, of mutual respect and explanation, and often a reaching then of consensus, as to what are the appropriate conditions for what level of severity in relation to this facility, in relation to this treatment, can reasonably be undertaken.
381 Professor Hickie reiterated that:
…The hospital operator, I think, has a responsibility to know what treatments are being provided in its hospital and under what conditions and how will they be monitored. Is it reasonable or not to provide that in this facility in the first place? Now, many treatments are rejected on that basis. Somebody might want to do treatment X, and others will say, 'Not in my hospital.' Now, I don't see a sufficient argument for it. So that separation between the operator because of their … their - it's not a matter of being a general practitioner or not. It's the operator. And the operator should, in my view, employ sufficient medical expertise, in house or independently, to reach that conclusion. Second of all, then, if you decide to go down - you can provide a treatment in a facility, if there are significant risks, and anything that involves this degree of unconsciousness over this particular period - any medical practitioner would understand there are significant risks, and given the background in terms of the literature of the range of mortality and morbidity, there are risks. An … would be monitored, and the operator - the operator and those responsible for that operation, particularly those with medical expertise, would be expected to behave ethically, in a public hospital or a private hospital. This is not a time-dependent notion. It's that what was practice in the 1970s - you can see in private hospitals around Australia in terms of what they did in psychiatry, what they did in surgery, what they did in medicine - they had different levels of provision of care because often they could not provide the level of support that was required to actually monitor and evaluate different levels of risk and care. Then the people who admit to those hospitals also have a responsibility to ensure that they are bringing patients to facilities where those patients will be treated in the most appropriate and safest fashion. So typically, operators in many of these areas, in many areas of medicine, including psychiatry, would admit - and to this day, would admit different patients to the public sector, where there may be greater facilities and greater oversee by nursing and other staff or greater other aspects of provision of physical treatments, including complicated pharmacotherapy, versus private hospitals.
382 I do not accept that any of the applicants' criticisms of the evidence of Professor Hickie have merit. From his evidence it is apparent that none of the matters on which the applicants relied undermine the fundamentals of Professor Hickie's opinions. It is immaterial that Professor Hickie was not admitted as a psychiatrist until 1984. He had knowledge of the history of psychiatry and in particular of the history of narcosis therapy. It is immaterial that Professor Hickie had not practised in a private hospital. He had knowledge of the Australian hospital system as a whole and did not accept the distinction in standards the applicants sought to draw between public and private hospitals. Nor did he accept that the legislative regime for managing private hospitals in the 1970s determined acceptable practices at the time. Professor Hickie did not accept that he needed to conduct a literature review to express the opinions he gave. I agree with this view. Professor Hickie's expertise and particular interest in sleep/wake cycles and the history of psychiatry in dealing with the issue meant that he was well qualified to give the opinions he did. I do not accept that Professor Hickie's opinions were not based on his specialised knowledge. They manifestly were based on his highly specialised knowledge about the history of psychiatry in respect of sleep/wake cycles.
383 The applicants' submission that Professor Hickie's opinions were baseless because of his lack of personal expertise in relation to private hospitals and psychiatric practice in the 1960s and 1970s entirely overlooks the sound foundations of his evidence - his particular expertise in the history of psychiatry in respect of sleep/wake cycles.
384 The applicants' submission that Professor Hickie referred to ethical protocols at hospitals in the 1970s that had not been produced misunderstands the effects of his evidence that there were long-standing standards of acceptable management of vulnerable people which became a focal point for ethical conduct after abuses in psychiatry including in the Second World War and in the Soviet Union.
385 The applicants' submission that having not done a literature review Professor Hickie merely assumed that no conditions were indicated for DST involves a misrepresentation of the effect of his evidence. Professor Hickie considered that there were no indications for DST by the 1960s because of the manifest risks associated with the procedure when other safer and demonstrably more effective treatments had become available. He relied on the whole of his expertise to express this view. It did not matter that he had not done a literature search for the purpose of his report. Further, no literature was put to him suggesting his opinion might change if he had reviewed the literature.
386 Professor Hickie's evidence was not heavily influenced by the details in the schedule under the heading "Treatment". It was clear that his primary assumption about DST was correct - that its basic object was using barbiturates for deep sedation over the best part of each 24 hour period. His evidence was primarily based on his expert knowledge of the history and risks associated with coma-based therapies and the alternative treatments which had become available from the 1960s onwards. Professor Hickie did not refuse to make assumptions inconsistent with the schedule. The evidence to which the applicants refer is to do with ECT where Professor Hickie's basic point was that there was no evidence of the absence of complications from unmodified ECT at Chelmsford and if the ECT was inducing a seizure (which it was) it was necessary to use a muscle relaxant. The fact is no assumptions inconsistent with the schedule were put to Professor Hickie. Accordingly, I reject the applicants' submission that Professor Hickie doggedly adhered to the schedule and was thus incapable of being an independent witness.
387 Further, the fact is patients were left to soil their beds. Professor Hickie was right that there must have been some period of time before each patient who had soiled the bed had their sheets changed. Even if the period was brief because nurses or nurses' aides were continuously monitoring the patients (which the evidence does not suggest was the case) it does not change the fact that DST caused many patients to be incontinent most of the time as they were incapable of being roused sufficiently to be assisted to a commode. The applicants have missed Professor Hickie's basic point that there was no justification for sedation of this kind for psychiatric illnesses by the 1960s.
388 Professor Hickie did not need to have worked in a private hospital to give evidence about the Australian hospital system as a whole. He was making the valid point that the legislation relating to private hospitals and their funding is one thing; the way in which those hospitals operated in practice as part of the overall health system in Australia was another. Nor was the thrust of Professor Hickie's evidence about the obligations of the operator of a private hospital in any way absurd. It makes perfect sense for the system to involve the operators of private hospitals ensuring they made appropriate decisions about the kinds of treatment the hospital could responsibly offer. It is difficult to see how any private hospital could function at all but for the existence of such a responsibility. If the operators required medical expertise to fulfil this responsibility then it was a matter for the operator to ensure such expertise was to hand, as Professor Hickie said. It was not self-evidently ludicrous for Professor Hickie to give evidence that a person in the position of an operator who had medical expertise should have ensured that DST was not permitted to be carried out at Chelmsford. This does not mean that the operator had to go behind every diagnosis for every patient admitted to Chelmsford. It means that the operator was responsible for ensuring that treatments offered at Chelmsford could be safely provided in the environment of Chelmsford. Professor Hickie was not alone in reaching the conclusion that DST could not be safely provided at Chelmsford. All of the relevant experts expressed the same conclusion.
389 I found Professor Hickie's evidence cogent and persuasive. I accept his evidence including that by the 1960s coma-based therapies (of which DST was one) could only be considered as experimental and well beyond the scope of normal psychiatric practice. By the 1960s there was no indication which justified the administration of DST in any setting outside that of a clinical experiment (with the associated requirements of such a setting). As such, a clinician (be it a psychiatrist or general physician) providing DST at Chelmsford in the 1960s and 1970s was negligent, unethical and engaged in medical malpractice. A manager of a hospital at that time with medical expertise would also be negligent, unethical and engaged in medical malpractice by permitting DST to be administered outside of the setting of a clinical experiment.