Chelmsford Private Hospital Patient Compensation

About this Item
SpeakersRefshauge Dr Andrew; Greiner Mr Nicholas; Rogan Mr Patrick; Hatton Mr John; Nagle Mr Peter; Moore Mr Timothy
BusinessMatter of Public Importance

Matter of Public Importance

Dr REFSHAUGE (Marrickville), Deputy Leader of the Opposition [3.19]: I move:
      That this House notes as a matter of public importance the need for the Government to provide ex gratia payments for the victims of Chelmsford Hospital and that a quantum of $10 million be set aside for such ex gratia payments and further, that a committee be established to distribute the ex gratia payments on an equitable basis to the victims of Chelmsford Hospital within three months.

The tragedy of Chelmsford Hospital is still with us. Since 1963 victims have gone to Chelmsford Hospital, have suffered at the hands of doctors at that hospital and have tried to get some form of compensation. The history of what happened there reveals that no one here can take pride at all in the behaviour of the people involved with Chelmsford Hospital. I refer to governments both Liberal and Labor, which were responsible for ensuring safety, particularly in the health area. There is probably only one person in this Chamber who can hold his head really high on this issue, and that is the honourable member for East Hills. The Attorney General, when he was Minister for Health, announced in this Chamber on 18th May, 1988, the following:
      That human suffering occurred is not denied, nor is the fact that the Department of Health failed in its duty to protect patients from potential and real harm as a result of receiving the treatment denied.

The first complaint about Chelmsford Hospital arose in 1970 but there was no investigation of any substance until 1985. The Department of Health failed to categorise complaints, acquire evidence to confirm the complaints or provide evidence to the Crown Solicitor to allow a formal complaint under the Medical Practitioners Act. Despite denials that he had promised to do so, the Attorney General, the former Minister for Health, initially refused to establish a royal commission into Chelmsford. After a public outcry and, I believe, political embarrassment, to his credit he did set up a royal commission. Initially the royal commission was required by its terms of reference to examine psychiatric services generally, but the terms of reference were expanded to include an examination of Chelmsford Hospital and the problems of those who had suffered as a result particularly of deep sleep treatment. It is important to point out that the terms of reference given to the royal commission did not allow for the making of

Page 5087
findings in relation to compensation or ex gratia payments for the victims of Chelmsford. The royal commission left open the question of prosecutions for disciplinary matters, which compounded earlier delays on these matters. The royal commission recommended that the Director of Public Prosecutions consider laying criminal charges against doctors and officials. I believe that an examination of the report of the royal commission clearly indicates that the Department of Health was at fault.

As a result of the pursuit of the Premier by the Chelmsford Victims Action Group, just prior to the last election the Premier met with the victims in private and discussed matters of concern to them. As the Premier has said since, the victims did not merely have compensation on their minds. They were concerned about a whole range of issues which related to whether comprehensive services were available to cope with the problems they were still facing. That is not to say that the victims did not also have on their minds, as they stated clearly to the Premier, that compensation or ex gratia payments were an important aspect of what was effectively a log of claims. As a result of further pressure after the election, the Premier set up a working party to examine the needs of the victims of Chelmsford. After initially denying them access to that working party, members of the Chelmsford Victims Action Group now occupy three positions on it. To my understanding the working party has now met on three occasions. At present members are drafting a questionnaire to forward to all victims of Chelmsford. That questionnaire is designed to examine the needs of the victims of Chelmsford and, when the questionnaires are returned, to consider what policy should be implemented by the Government and what special services should be set up. However, my understanding is that the questionnaire will not refer to compensation.

I am told also that Government policy, and certainly that of Government members of the working party, is not to give compensation to the victims. Further attempts have been made by the victims to obtain compensation. In August this year the Premier recommended that the victims should lodge applications with the Victims Compensation Tribunal. So far 46 victims have lodged applications with that tribunal. However, I point out that the Victims Compensation Tribunal, which was established in 1987, was set up to compensate victims of crime and requires proof that a criminal offence has been committed. The evidence of most victims of Chelmsford is unlikely to meet the standard of proof required in the criminal jurisdiction. Because of private actions against doctors alleging criminal assault, so far only one Chelmsford victim has been compensated through the Victims Compensation Tribunal. I understand that the Premier has suggested privately that the rules of the tribunal may be changed so that the victims of Chelmsford do not have to prove that they are victims of a crime. However, I am told that there is at present a minimum delay of three to six months for even the most simple of cases before the Victims Compensation Tribunal. If this delay is maintained, I do not believe that the victims of Chelmsford individually would receive compensation in appropriate time.

In August this year the Premier also suggested that the victims may like to claim damages by civil actions. According to the Australian newspaper, 70 civil suits have so far been lodged. However, the delays in the hearing of such claims are outrageous. I understand that one victim, Mr Jim Lawler, has been waiting for 13 years. I do not believe, and I am sure the House does not believe, that a delay of that order or anything like it in the hearing of any case is justified, let alone cases involving the victims of Chelmsford, who have already suffered enough. It seems that one victim who has already spent $6,000 on legal fees will now have to pay an additional $100,000 if she wants to continue her civil actions through the courts. Of course, for her that is impossible; she will not pursue that claim through the courts. Legal aid may be an option
Page 5088
for some of the victims, but as many as two-thirds of those who have lodged claims are probably ineligible for legal aid.

There have been further developments in regard to the victims of Chelmsford, particularly the recent court decision that determined that disciplinary action should not be proceeded with against doctors involved in Chelmsford. However, Mr Justice Mahoney dissented from that judgment. He said that the function of the Medical Tribunal was primarily to protect the public and that the evidence assembled by the royal commission provided a reason why it should question the competence, judgment and responsibility of at least some of the doctors. In his comments in the Sydney Morning Herald, John Slee said that horrible violations of human dignity go unredressed if the perpetrators are in a position of privilege such that wealth and power enable them to avoid scrutiny. He said also that privileged professionals have ample mechanisms to avoid the consequences of their actions.

The victims of Chelmsford need a fair go. They cannot say that any party in this Chamber has given them a fair go. To blame one side or the other is totally wrong, but it is now time to say to the victims that we realise the mistakes that we have made, we realise that compensation is appropriate, we realise that the delays have been too long, and we realise that it is important to bring this chapter to an end. This chapter must be brought to an end. Other States and countries have examined similar circumstances and have responded in the way suggested in the motion. In Queensland the fiasco and tragedy of Ward 10B at Townsville Hospital led to the Goss Government deciding on a similar mechanism for ex gratia payments to approximately 75 former psychiatric patients. That Government enabled the community justice centres to look at categories of suffering that should be compensated in different ways. Effectively the committee established three different categories for the making of ex gratia payments: those patients who are comatose, those who had incidental comas and had suffered physical and verbal abuse, and those who had suffered verbal abuse. Similarly in New Zealand two deep sleep patients at Dunedin's Cherry Farm Hospital have been given ex gratia payments believed to be of the order of $20,000. They expect others to file complaints.

The essence of this motion is threefold: first, to say that ex gratia payments must be given to victims of Chelmsford. That needs to be said; it needs to be voted on by this Parliament. Second, I am suggesting a quantum of $10 million be set aside. That figure may be increased if real cause is shown for it to be increased, but I put it at that level because that is the figure we put to the people of New South Wales at the last election as one that we believed at the time would compensate the victims of Chelmsford. I point out in passing that although more than 1,000 patients went through Chelmsford, only 200 appeared before the royal commission. Since I and some of my colleagues have been talking about this issue we have not found many others who suffered at Chelmsford but who did not present or did not have an interest in presenting to the royal commission. Maybe there are more than 200 such people, but I would say that not many more than 200 would require significant ex gratia payments. Therefore, my belief is that if $10 million or a little more were made available that would be sufficient to provide ex gratia payments of the order of $50,000 each for victims of Chelmsford.

The third part of the motion is to say that this chapter must be closed. We must have it finished and we must have it finished soon. Three months is a reasonable time to assess the problems, the sequelae, of those victims who have been to Chelmsford. Three months is sufficient time to work out, if there are categories, which categories different victims fall into and how much should be paid. I believe three months would certainly show that this Government, this Parliament, believes it is time to tell the victims
Page 5089
of Chelmsford that, though we have failed on numerous occasions, we will not fail them any more. It is time to close this book on the issue of ex gratia payments. It is not the time to make tawdry political points. I congratulate the Government on setting up the working party and I congratulate the working party on the work that it is doing. But that is not all that is required. I believe it is important to give the victims of Chelmsford ex gratia payments. Today the House has a chance to say that that is exactly what should be done.

Mr GREINER (Ku-ring-gai), Premier, Treasurer and Minister for Ethnic Affairs [3.33]: The spirit of the concluding remark of the Deputy Leader of the Opposition is exactly right. There is much in his remarks with which I would have no quarrel whatsoever. There is no doubt that the whole Chelmsford episode over the better part of a quarter of a century is one of great shame to New South Wales as a whole. It has not been addressed properly by succeeding governments until this Government did so, and it should be acknowledged that this Government was the first that was willing to take some action to set up the royal commission in order to set the stage for a factual assessment. In a moment I shall come to the question of criminality in terms of the royal commission report which is directly relevant to that question of criminality, actual or potential. Before I deal with the motion itself, I wish to thank the Deputy Leader of the Opposition for acknowledging that on the broader range of issues the working party, with the co-operation of the victims' action group, is working. He mentioned that a survey will be issued this week followed by a phone-in on 9th and 10th December so that we can start to establish with some greater degree of certainty how many people are involved. One could tell from the concluding remarks of the Deputy Leader of the Opposition that there is no degree of certainty about how many people are involved or what their particular state of damage is, past or present. It is fair to say the working party is proceeding in a way that will be useful and productive for the victims of Chelmsford.

There are broadly three parts to the motion. It deals, first, with the need for ex gratia payments. I point out to the Deputy Leader of the Opposition and to the House that the honourable member seems to refer to ex gratia payments and compensation as though they slip easily into each other, as though they are the same thing. Of course, they are not. There is a world of difference between the notion of ex gratia payments and the question of the payment of compensation or financial assistance. Second, the motion deals with an amount of $10 million which, in fairness to the Deputy Leader of the Opposition, he concedes is basically achieved by assuming that there are 200 people to receive $50,000 which is, not by accident, the maximum amount available through the Victims Compensation Tribunal. That figure may be of the right order of magnitude; it may be too high; it may be too low. The fact is that we do not know. The third part of the motion concerns the establishment of a committee, the composition of which is not spelt out at all either in the motion or in the remarks of the Deputy Leader of the Opposition.

The Government is proceeding with this matter. It has not let die the matter of financial recompense to the victims of Chelmsford. In fact, I believe I have a meeting scheduled this afternoon with some of the Independents who raised some of these issues with me. Part of the reason for that meeting is to address the question of whether there is a role to be played by a parliamentary committee in the process. It is conceivable that there is a role for such a committee, although quite obviously that role will not be to make the sort of detailed assessment that is required. The Government's position is that it is not opposed to the concept of some recompense. I say that quite clearly. On the other hand, it is absolutely opposed, for reasons I hope the Deputy Leader of the Opposition - who hopes to be in government some time in the future - would understand,
Page 5090
to the notion of large-scale ex gratia payments. As a matter of principle it is extraordinarily dangerous to establish such payments, but when they involve events which happened in a private hospital with private doctors, it becomes even more extraordinarily dangerous to pursue that line of payment.

In passing let me say the two examples raised by the Deputy Leader of the Opposition could hardly be described as compelling. In fact, I discussed the Ward 10B situation with Mr Goss recently and he made the point that there was no comparison between the two cases. He said that in that case there was clearly government liability and that the government acknowledged the liability. It was a totally government situation and, in his estimation, the total amount of compensation involved would be considerably less than $1 million. In the New Zealand case I think the amount involved was $20,000 or $30,000. In both a quantum and qualitative sense the payment of compensation to victims of Chelmsford is totally different. The fact that there are no precedents is clear evidence why the notion of ex gratia payments is unacceptable and ought to be unacceptable to any government worth its salt in fulfilling its responsibilities to the citizens of the State it represents. I have dealt with the issue of $10 million. I have advised Treasury, in terms of ongoing reviews of the Budget, that I believe the amount budgeted this year for victims' compensation probably needs to be revised upwards. Though I do not have a figure in mind, I have indicated the order of magnitude proposed is broadly right because, of course, it is the order of magnitude with which the Victims Compensation Tribunal would ordinarily be involved.

Let me come to the question of the Victims Compensation Tribunal as an option for dealing with this matter. I say in passing to the Deputy Leader of the Opposition that I would be perfectly happy for him to attend the meeting I have scheduled this afternoon. Given the nature of his contribution today, I should be happy for him or the honourable member for East Hills to attend that meeting and to be part of that discussion, if they so wish. The two criticisms the Deputy Leader of the Opposition made with respect to the Victims Compensation Tribunal not being the appropriate body to deal with this matter were, first, that the victims would not meet standards of proof required in a criminal court and, second, that the delays being experienced in that tribunal are too long. Both are plausible but incorrect criticisms. As to question of proof, the Victims Compensation Tribunal will consider the threshold issue of access on 5th December, and we think it is very likely that that matter will be satisfactorily determined. If not, it is possible to amend the Act. The standard of proof in the Victims Compensation Tribunal is not proof beyond reasonable doubt. It is the civil standard of proof - in other words, on the balance of probabilities - and the tribunal must have regard - and I emphasise, it must have regard - to the findings of the royal commission. Without boring the House by reading large chunks of what Mr Justice Slattery said, one does not have to be a lawyer - and I am pleased to say that I am not - to see the direction which any reading of the royal commission findings would take one on the balance of probabilities as to whether there was a criminal act and whether the injury, either physical or mental, was occasioned as a result of that.

I would have thought the findings did not leave too much to the imagination. It is the view of the Government, on all the best advice, that the question of proof does not represent a problem. On the question of delay I have to say that the new chairman - not so new any more - of the Victims Compensation Tribunal, Mr Brahe, has done a good job reducing the delays involved in that forum. They are now of the order of magnitude indicated by the Deputy Leader of the Opposition - three to six months. Realistically, were the motion to be taken at face value, the three-month requirement is too short given that we are dealing with a whole range of people and a whole range of
Page 5091
damage from very severe to reasonably minor. I do not think that is a realistic time frame. I would have thought that the six months time frame on which the VCT now operates is perfectly reasonable and plausible and as short a time frame as we would get in any alternative process. In my view it would be a waste of time to try to set up a whole separate mechanism to perform this function when the VCT is already set up. I do not think the criticism by the Deputy Leader of the Opposition of the Government's intended approach carries a lot of weight in relation to proof or delay.

I accept that the motion was moved by the Deputy Leader of the Opposition in good faith and not in an attempt to score political points. The Government wants to resolve the matter, or close the book as he would put it. We accept that that is desirable. We do not accept the motion other than as a statement of the House's general feeling but the detail of the motion is unacceptable to the Government. It is not appropriate for numbers to be taken out of the air and for committees without definition to be set up. It may be on for the House but it is certainly not on for the Government to say that ex gratia payments in this case, alone in all the cases in the history of New South Wales, are appropriate. In view of the range of civil claims that abound and are likely to proliferate in the future the notion that the Government should start to deal with them by way of ex gratia payments is very difficult. This Government, and the Labor Party in government, would not accept that as desirable or plausible. I have to say definitively to the Deputy Leader of the Opposition that there is no way that the Government would countenance such payments.

I am prepared to concede that in the past 25 years there has been fault on the part of previous coalition governments and certainly much fault on the part of previous Labor governments. I am happy for this matter to go forward on a bipartisan basis with the Parliament as a whole expressing its desire to have the book closed. I am happy to receive the motion in that spirit but I say to the Deputy Leader of the Opposition that the detail of the motion is not acceptable to the Government. We will proceed on the path we have chosen, which I hope by the middle of next year will resolve the issue broadly within existing parameters with reasonable money being provided to those who are found to be entitled to it but not in such a way as to set an impossible precedent for this and subsequent governments. I hope the matter can proceed in this way. There should not be points to be made on the matter. I have made it clear that the Government sees the desirability of making moneys available but it sees it as being appropriate in every sense for that money to be made available through the Victims Compensation Tribunal, which is set up to deal with criminal matters. I do not think any commonsense reading of the situation would lead to a conclusion other than that there was criminal assault, that there was not proper consent. Indeed, Mr Justice Slattery finds that. The Government proposes to close the chapter on Chelmsford in the shortest possible time frame but in a way that is consistent with the dictates of good intentions - which are certainly important - and good policy.

Mr ROGAN (East Hills) [3.45]: The motion before the House provides the opportunity in some measure to address the awful injustice suffered by many people as a result of what is now known as the Chelmsford saga. I accept that the Premier is genuine in wanting to arrive at a solution to this whole sorry affair that will provide for justice and compensation for those who suffered so needlessly and so long as a result of Chelmsford. Let there be no doubt that the suffering that these people encountered was a direct result of the neglect of the State. As such, the State now has a moral and legal responsibility - the latter would be challenged by some - to do something about it. This is more than adequately covered in the voluminous report of Mr Justice Slattery, whose findings were brought down nearly 12 months ago, on 20th December last year. The
Page 5092
events in the report read more like a fiction horror story than the real life drama that occurred. Only a person who could not be moved by anything, a cold and uncaring person, would not be touched by the injustice that the victims suffered.

Complaints were lodged with the then Health Commission going back to the very early days - 1967 and 1970. The head of the Department of Health between 1963 and 1973, Mr Rimes, had a responsibility to ensure that the awful events at Chelmsford, having been detected, did not continue. It was very concerning that in his cross-examination at the royal commission, when asked the question concerning whether the public would expect that the Department of Health should safeguard their health and have some care for their well-being - the patients at Chelmsford - Mr Rimes said, "I doubt it". Anybody who is charged with the responsibility Mr Rimes had who answers in that way shows an appalling abrogation of responsibility. Indeed, the government of the day must ultimately accept responsibility for what happens within hospitals, be they private or public, which come under the legislation which this Parliament passes and which becomes part of the law of the land.

I appreciate what the Premier has said about the means by which the Government is seeking to deal with this matter, that is, through the Victims Compensation Tribunal. But as the Deputy Leader of the Opposition has said, there are problems with that. My proposition to the Government early in the piece was that if it was worried about the amount of compensation it should put a cap on it, say, $10 million. The principle was adopted in the Dalkon shield case. All those with a justified claim could be paid out in accordance with the injuries suffered. In the Dalkon shield case there were three categories, from those not seriously injured to those very seriously injured. In my view that would be an ideal way in which to deal with this problem. It would fit in with the terms of this motion, which could be agreed to by this Parliament and by this Government.

Mr SPEAKER: Order! The honourable member has exhausted his time for speaking.

Mr HATTON (South Coast) [3.50]: I agree with previous speakers that this is not a matter for point-scoring; this is a matter of public importance. It is a matter where we can express concern, more than anything else, that something ought to be done, and done quickly. These are matters of undeniable fact. Between 1963 and 1978, 1,127 patients went through Chelmsford. They received deep sleep treatment and barbiturates for simple things such as stress, pre-menstrual tension and fatigue and for more serious problems such as anorexia nervosa, neurosis and schizophrenia. I think it needs to be borne in mind by the Government and by this House that it is a horror story of world importance. Since the convict days we would not find another story in the history of New South Wales that would match this one for sheer horror. We definitely know about 24 deaths, plus suicides, because of deep sleep therapy and possibly well over 40 deaths directly due to what happened at that hospital. Brain damage and other serious physical, mental and psychological problems have been visited upon the victims. Page 187 of the royal commission report states:
      The evidence of complications and problems is overwhelming. The evidence of causation of these problems is similarly overwhelming.

Victims were strapped to their beds naked; they were left lying in their own excreta; they died of pneumonia; and they were pumped full of barbiturates. Some had assaults on their dignity. Victims had shock treatment, which burnt part of their brains, and they
Page 5093
were emotionally, physically and mentally shocked. I know that ex gratia payments are dangerous. However, I would like the Government to consider that this matter is of world standing. This matter is unique in the history of this country, not just in the history of this State. I do not accept that it involves just private hospitals and private doctors - the comparison that was made with Queensland. The New South Wales Department of Health and the bureaucrats did not exercise a duty of care. Under the Act they have to exercise a duty of care. One of the findings of the royal commission was that the Mental Health Act was not observed; it was ignored. This State is involved - not marginally but importantly. This matter is important. Ordinary citizens being admitted to a private or a public hospital have a right to expect that the Government, which is responsible for supervising those hospitals, will exercise seriously its duty of care and responsibility. The Government did not do that. A series of Ministers of all political persuasions often were not informed of the facts but, when they were informed of the facts, they did not take action. The bureaucrats lied, prevaricated and avoided their responsibilities. This State has a responsibility in regard to this matter.

Many people did not give permission for the treatment administered, but some did. Therefore, they cannot satisfy the requirement of assault. If we refer this matter to the Victims Compensation Tribunal, or if we do something about it by early December, and if we have civil standards of proof, as the Premier said, all those things are quite supportable. But if to do these things we need to amend the Act, in this session of Parliament we simply do not have the time to do that. We all recognise that no amount of money will compensate the victims. One has only to meet the victims and one is brought to tears. The whole point is that the victims cannot handle this whole question. We have to find a mechanism to handle it for them. Individually, they cannot justify what is wrong with them. They no longer have the physical or emotional strength to fight. They need this mechanism now. In my view Dr John Tennant Herron, Dr Ian Donald Gardiner and Dr John Ewan Gill are criminals. These three people have escaped the law. Too much time has gone by and, according to Mr Justice Kirby, the revival of proceedings would be "unjustifiable and oppressive". Those doctors participated with Dr Bailey and with some members of staff. They lorded it over many members of staff in the killing and maiming of people; therefore, they are criminals.

Mr SPEAKER: Order! The honourable member has exhausted his time for speaking.

Mr NAGLE (Auburn) [3.55]: When will this chapter of misery, despair and distress come to an end? It started in 1963 and ended in 1970. Yet the people who suffered then are still suffering today. We have to ask ourselves: when will we put an end to this misery? During that time did we ever try to mediate or use counselling procedures to help these people? Why was there no justice years ago from a Labor or Liberal government? I refer to the old cliché that justice delayed is justice denied. This is a tragic set of circumstances. Politicians in this Parliament and in many parliaments in Australia and throughout the world have a great fear of criticism. They stand apart when confronted with issues and ponder what should be done. Time has beaten us. We know what should be done. Let us act now. Let us show that we care about these people and what they have gone through. Let us show our honesty. Let us forget about giving 10 good reasons why we cannot give ex gratia payments. One overriding reason why we should give ex gratia payments is Christian charity. We should be able to say, "In this case we should help these people". Admittedly, governments are not in the business of handing out ex gratia payments, but they are in the business of doing right. Nothing screams out more in this Parliament today than that right should be done to those people who have suffered. The deed is done. It occurred from 1963 until 1970. The
Page 5094
die was cast in 1970. We have crossed the rubicon. Today every member in this Parliament should say, "Let right be done".

On 18th May, 1988, the then Minister for Health said, "The Government has a direct liability". Taking that as a standpoint, if the Government has a direct liability, why can we not now deal with that issue? Complaints were received as early as 1970 but they were not fully investigated until 1985. Many questions which refer to the legal complexities of this issue remain unanswered. A royal commission was appointed but it did not examine the issue of compensation. The cost of that royal commission was approximately $15 million. We have said to people, "We will send you to the Victims Compensation Tribunal so that the matter can be examined". But under the legislation someone has to commit a crime before that tribunal can give a definitive answer as to whether people can receive compensation and whether that compensation should be $1 or $50,000. The Victims Compensation Tribunal is a mechanism that will enable us to determine the extent to which the victims of Chelmsford have been hurt. But negligence is a civil remedy. It is difficult to prove gross criminal negligence. Because of the decision of Mr Justice Kirby and Mr Justice Gleeson - Mr Justice Mahoney dissented from the decision - one way or the other people will be criminally prosecuted. I do not disagree with what those learned judges have had to say; I understand why this has come about. But it is important to ensure that people who go to the Victims Compensation Tribunal do not fall into legalism - like the 48 people who have already gone to it - and their cases are lost. Large-scale ex gratia payments may be a problem for governments today and in the future. But the Victims Compensation Tribunal may create more damage than it will achieve. In these circumstances legalities and legislative powers should be overridden for the benefit of the people.

It may be possible that the hospital in Queensland did involve itself technically in ex gratia payments but that is history. There is no legal reason that ex gratia payments cannot be made by this Parliament. This Parliament, by virtue of its Constitution Act, is at the beginning and the end of the law of New South Wales. There is nothing to say that such payment would create a precedent. It is time to forget the technical reasons and to remember the concept of Christianity. It is time to forget legalism and evidentiary rules. In ancient England when persons wished to have a wrong rectified, they would petition the King for justice and equity. That is what the Chelmsford Hospital victims have done. They have petitioned us to give them justice and compensation.

Mr SPEAKER: Order! The honourable member has exhausted his time for speaking.

Mr MOORE (Gordon), Minister for the Environment [4.0]: This debate reflects the great tenacity of the honourable member for East Hills, to whom an extraordinary degree of credit is owed by the people who have been victims of Chelmsford Hospital and who were shamefully neglected by almost a full statistical generation of medical administrators in this State. I did not propose to speak in this debate because I had thought that prior to the intervention by the honourable member for Auburn the debate had progressed on a basis that did not involve a political slanging game. I do not propose to take great issue with the honourable member for Auburn, but it is fair to say that unlike the honourable member for East Hills or the honourable member for South Coast, the honourable member for Auburn has come late to this debate. The measures outlined by the Premier in his contribution to the debate and the fact that it was this side of the House that initiated the royal commission into Chelmsford Private Hospital after considerable pressure by the representatives of the victims and the honourable member for East Hills, indicate that this Government is entitled to claim a record of concern,
Page 5095
compassion and understanding. The Premier expressed his frustration with the slowness of the pace and the steps that the Government is taking to deal with the matters.

The Premier said that the Victims Compensation Tribunal is to deal with the matter on Thursday, 5th December. At that time we will have an indication of any technical difficulties, which the Premier has said he would be willing to remedy. If there is a minor defect in the law, which I am presently unable to foretell and for which thus I cannot give any certain remedial undertaking as this Chamber and another place are working on a much more co-operative basis, I assume there would be bipartisan support for remedying such a defect. I would venture from the contribution of the Deputy Leader of the Opposition that that would be the case. That being so, I would do my best to introduce on Monday or Tuesday of the following week, if it were possible, a tidying up bill. I cannot imagine that the difficulties would be very great. Such legislation would be passed by consent almost instantaneously for there would be no need for speeches, this being a humanitarian measure that need not take the time of the House.

I give the House the undertaking that if those difficulties arise on 5th December, and if it is possible to do so, I will pop into the program, on the clear understanding that it will take 10 or 15 minutes, such tidying up legislation. The honourable member for Auburn should reflect a little on any balance of guilt in these matters. He took the Government to task far harder than it deserved on these issues. In measuring the balance of guilt, as the Premier said, the fault lies with the former Government and the Government before that rather than with the present Government. Had it not been for the tenacity of the honourable member for East Hills, there might well have been more guilt on the present Government, but this Government responded to those concerns and is endeavouring to deal with this problem in as fast, responsible and humane a fashion as is possible. The Premier has outlined why the Government believes it is inappropriate to deal with the matter by an ex gratia payment. However, the Government will do everything that is reasonable and possible to ensure that these matters are dealt with expeditiously.

Dr REFSHAUGE (Marrickville), Deputy Leader of the Opposition [4.5], in reply: I thank honourable members who participated in this debate. The issue seems to be, first, whether ex gratia payments are appropriate or whether claimants should go to the Victims Compensation Tribunal, and, second, whether the time suggested in this motion is too short. I turn first to the merit of claims being made to the Victims Compensation Tribunal versus ex gratia payments. It cannot be said that the Government has not provided ex gratia payments before. There are plenty of examples of ex gratia payments having been provided, two of which stand out. The first was the payment to Mr Philip Arantz; the second, to the Ananda Marga trio who were released from prison after what was perceived to be an inappropriate decision by the courts. Those ex gratia payments were of significant size, but certainly not of the size we are talking about here. To some degree those payments destroy the Premier's arguments.

The other argument that the Premier put against ex gratia payments was that they would lead to many more applications being lodged. I do not mind if other claims are submitted. They should be judged on their merits. I hope there will never be another claim of the size of that of the victims of Chelmsford Private Hospital, where governments, and in particular our Government, failed dismally and constantly to provide an adequate response to those victims. If there are to be any other examples again I would be in there batting very strongly for a significant ex gratia payment, but at present I believe and I sincerely hope that there never will be anything to rival the disaster that occurred and was compounded by governments to those who attended Chelmsford
Page 5096
hospital. The Premier said, "Why not go to the Victims Compensation Tribunal?" At the end of this week a meeting will be held to determine whether there is any problem with that tribunal. However, we should all be mindful that in the past few weeks we have all been expectant of another court to determining another case, that of by-elections for the seats of The Entrance and Maitland. If that decision comes down tomorrow, there will be an opportunity for the Government to say, "Let us have a general election. Let us close Parliament", and I would be surprised if that were not an option that the Government would take. How then can we have a guarantee from the Government that, whatever the Court of Disputed Returns decides, the Parliament will continue to sit until the Victims Compensation Tribunal has decided whether or not there is a problem. I do not think there is a guarantee in that. That would delay the matter for another three months.

The Premier said that three months was too short, that it should be six months. I would have made it six months. But on 19th August, when I tried to move suspension of standing orders to get ex gratia payments for the victims of Chelmsford Private Hospital and to set up a mechanism and report back to Parliament, the Premier said, "No, we do not do that". Had my motion been successful, some form of ex gratia payment would be paid to the victims next January or February. Had the Premier believed that that was the way to go, he would have done it when it was first debated. I believe the Premier is genuine. Today, for the first time, I heard the Premier say that a number of people who attended Chelmsford Private Hospital should receive some compensation and that the matter should be heard before the Victims Compensation Tribunal. But I am concerned that each and every former patient at Chelmsford hospital will have to apply to the Victims Compensation Tribunal to ascertain whether he or she is eligible for compensation. I suggest that every former Chelmsford patient has the right to apply to the tribunal, and that a mechanism should be established to determine the degree of long-term disability that should be compensated.

The Opposition is willing to see a cap placed on the amount of compensation payable. I do not believe that the victims would be overjoyed about a $10 million cap. Perhaps they should put a case that the figure be increased to $12 million or $15 million. However, the Opposition agrees that there should be a cap. The Premier says that the victims should apply to the Victims Compensation Tribunal, without knowing what the total payout might be. I believe that that destroys his own argument about precedent and the amount of compensation. I included in the motion the figure of $10 million, not as a maximum but as an amount to be set aside. I did so because that has been the Opposition's attitude since prior to the last election. I am willing to listen to argument that the limit should be increased, but I think it appropriate for a matter such as this that a significant amount be set aside as the ceiling, to be distributed among those affected moderately, significantly or severely. The Government and government agencies have failed these people. Although these incidents occurred in a private hospital, governments have failed these people.

It is time to stand up and say that the problem should be fixed, that this chapter should be closed, with some honour. As members of Parliament we cannot walk out of this Chamber with the honour that we should have; but at least we can now, although belatedly, retrieve some honour by saying that it is time to right this wrong as much as we can. I urge honourable members to vote for the motion, even though its effect is only to express the concern of the House. If the Premier were to accept the general thrust of the motion, but seek a period of four or five months, he would at least show a commitment to doing something for the victims of Chelmsford. The Leader of the House said that generally this debate has been bipartisan. I am encouraged that on this occasion
Page 5097
the debate has reflected a commitment by the working party on behalf of the Government to take action with regard to matters other than compensation. That is important and should not be downgraded in any sense. The victims should have an ex gratia payment, and it is time for the Parliament to so determine. It is time for the Parliament to endeavour to give these people a fair go at last, belated as it is. I urge all honourable members to vote for the motion.

Motion agreed to.