Hesse v. Australia
Communication No. 1087/2002
15 July 2002
Date of registered communication: 26 February, 6 August 2001, and 10 May 2002 The Human Rights Committee, established under article 28 of the International Covenant on Civiland Political Rights, Decision on inadmissibility
1. The author of the communication dated 26 February, 6 August 2001, and 10 May 2002, is PeterHesse, who claims to be a victim of a violation by Australia of articles 7, 14, paragraph 1, and 26 ofthe International Covenant on Civil and Political Rights.1 He is not represented by counsel. The facts as submitted by the author
2.1 The author is a resident of Western Australia. While attending the public hospital Sir CharlesGairdner Hospital in Perth and two other hospitals between 1977 and 1989, the author was given 24Intrathecal spine injections of the drug Depo-Medrol manufactured by the Pharmacia & UpjohnCompany, allegedly without his consent. The doctors informed the author that the injections wereharmless. 2.2 In 1977 the Health Department of Australia advised the Pharmacia & Upjohn Company that theirproduct was unsuitable for Intrathecal use, and suggested that they introduce a warning on the product instructions. This, however, was not done. Then in 1982, the Pharmacia & Upjohn Companyapplied to the Australian Drug Evaluation Committee to have the drug passed for use in epiduralspinal injections. The Committee rejected the application in 1983.2 However, the CommonwealthGovernment Health Insurance Commission continued to pay for these injections. In 1992, the FederalLabour Government Health Minister, Brian Howe, disclosed in Parliament that Depo-Medrol hadnever been passed or evaluated by the Australian Drug Evaluation Committee, and that the drug wasof experimental use. According to the author, Depo-Medrol injected Intrathecally is a known causeof Arachnoiditis, a disease that inflames the arachnoid lining (one of the three coverings that envelopsthe brain and the spinal cord). 2.3 Because of serious pain in back, head and arms, the author had a myelogram carried out inOctober 1979. He was diagnosed as suffering from chronic Arachnoiditis. From November 1980, hereceived full disability pension. The doctors continued to treat the author with spinal injections ofDepo-Medrol up to May 1989, when on returning home from the hospital, the author's right legcollapsed and caused him to fall and break his right foot. 2.4 On 19 November 1990, the author wrote to his treating Pain Specialist, asking him whether hehad used Depo-Medrol and how many injections he had received during the treatment period from1977 to 1989. When the doctor did not reply to the letter, the author phoned the doctor's office on19 November 1991, and was advised that his medical records had been moved, and that the doctorhad died three months earlier. The author then wrote to the doctor's wife, as Executor of his Estate,to the three hospitals where the doctor had treated the author, but received no reply from either. Healso contacted the Western Australian Health Minister's Office, and eventually received replies fromtwo of the three hospitals. On 22 September 1992, an expert in spinal medicine examined the author,and concluded that he would attribute 70 per cent of the author's symptoms to the complications ofArachnoiditis following exposure to Depo-Medrol. 2.5 On 27 June 1991, the author contacted the Law firm Cashman & Partners, which was lookinginto starting a "Class Action" with 122 plaintiffs having received spinal injections of Depo-Medrol,against the Pharmacia & Upjohn Company. Proceedings were initiated in 1993, the author's casebeing one out of six lead cases.3 2.6 In the author's petition to the Supreme Court of New South Wales, the author, together with fourother plaintiffs, claimed that the case should be transferred to the Court of Appeal pursuant to SCRPart 12 rule 20.4 On 29 February 1996, the Court dismissed the case with costs. 2.7 In the Supreme Court of New South Wales' judgement of 22 December 1998, the author andthree other plaintiffs' claim for transfer of their claim to the Court of Appeal was again dismissed, andtheir claim of transfer to their respective regional courts, was postponed.5 2.8 In year 2000, the High Court of Australia interpreted the Limitation Act applicable throughoutAustralia, in a way that returned the author's claim back to the jurisdiction of the Supreme Court ofWestern Australia. According to the author, the High Court ruling implies that his case, whenreturned to the Western Australia Supreme Court, will be statute-barred. Had the author's claimpassed before the Supreme Court of New South Wales, his claim would not have been statute-barred, since in this, and several other Australian states, an applicant is granted a six years' extension to filea claim once he becomes aware that injury has been caused by medical neglect or malpractice. 2.9 In a fax dated 23 February 2001, Cashman & Partners notified the author that they ceased to actas Solicitor for him. However, in a letter from the Supreme Court of South Wales, dated 14 March2001, the Court advised the author that the proceedings were adjourned to 20 July 2001, and thatthe matter would proceed on that date despite the absence of the author or his legal representative.
Due to the author being unable to obtain legal aid and to travel, a barrister advised him that his claimwould be lost on "technicality", and therefore that he should cease his case.6 The author laterdiscovered that the Court on 26 October 2000 had ordered the author to pay two of the defendants'costs from 7 July 2000. Complaint
3.1 The author claims that since his claim against the Pharmacia & Upjohn Company is statute-barredin Western Australia, whereas a similar claim in New South Wales would not be statute-barred, heis being discriminated against, in violation of article 26 of the Covenant. The author submits that theState party's discriminatory practice continued after the Optional Protocol entered into force forAustralia. 3.2 The author claims that he was submitted to medical experimentation without giving his consent,in violation of article 7 of the Covenant. 3.3 The author claims that by transferring his claim from a state where it was not statute-barred toa state where it was statute-barred, the Australian courts have violated his rights to equal access tothe courts under article 14, paragraph 1 of the Covenant. Furthermore, the doctors' and hospitals'delay in submitting his medical records, caused him to fail to comply with the Limitation Act, andconsequently deny him his rights under article 14 of the Covenant.
Issues and proceedings before the Committee
4.1 Before considering any claims contained in a communication, the Human Rights Committeemust, in accordance with article 87 of its rules of procedure, decide whether or not it is admissibleunder the Optional Protocol to the Covenant. 4.2 With regard to the author's claim under article 26 of the Covenant, that the State party'slegislation which bars the author's claim against the Pharmacia & Upjohn Company in WesternAustralia, whereas a similar claim in New South Wales would not be statute-barred, the Committeefinds that the author has not substantiated for the purposes of admissibility, that differences in thestatute of limitations in different parts of a federal state would as such raise an issue under article 26.
4.3 With regard to the author's claim that he was subjected to medical experimentation withoutgiving his consent in violation of article 7 of the Covenant, the Committee notes that the allegedmedical experimentation took place in the period from 1977 to 1989, which is prior to the entry intoforce of the Optional Protocol for Australia. This claim which relates to the actual treatment administered before September 1991 is therefore inadmissible ratione temporis. 4.4 With regard to the author's claim that by transferring his claim from a state where it was notstatute-barred to a state where it was statute-barred, the Australian courts have violated his rightsunder article 14, paragraph 1 of the Covenant, the Committee finds that the author has notsubstantiated for purposes of admissibility that he would have had a right under article 14, paragraph1 to pursue his claims in the courts of New South Wales or that the High Court ruling that the casefell under the jurisdiction of the courts of Western Australia would raise an issue under article 14 ofthe Covenant. The Committee also finds that the author has not substantiated for the purposes ofadmissibility that his claim that the doctors' and hospitals' delay in submitting his medical recordswould raise an issue under article 14, paragraph 1, of the Covenant. (a) That the communication is inadmissible under articles 1 and 2, of the Optional Protocol; (b) That this decision shall be communicated to the author, and, for information, to the State party.
* The following members of the Committee participated in the examination of the presentcommunication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal Bhagwati,Ms. Christine Chanet, Mr. Louis Henkin, Mr. Ahmed Tawfik Khalil, Mr. Eckart Klein, Mr. DavidKretzmer, Mr. Rajsoomer Lallah, Mr. Rafael Rivas Posada, Mr. Martin Scheinin, Mr. HipóólitoSolari Yrigoyen, Mr. Patrick Vella and Mr. Maxwell Yalden. ** Pursuant to rule 84, paragraph 1 (a) of the Committee's Rules of Procedure, Mr. Ivan Shearer didnot participate in the consideration of this case. 1 The Optional Protocol entered into force for Australia on 24 September 1991. 2 This is confirmed in a letter to the Hon. Judi Moylan MP, Member for Pearce, from Ministry forHealth and Ageing, dated 29 April 2002. The letter includes a reference to a letter from the author.
3 The only information submitted on the proceedings are the two judgements described below. 4 There are no explanations as to the name and the contents of the law. 5 The author's claim for damages was directed at the Pharmacia & Upjohn company, the threehospitals where he was given the injections of Depo-Medrol, and five doctors who were involved inthe administration of the injections. 6 There is no information on whether the author followed the barrister's advice.

Source: http://www.bayefsky.com/pdf/australia_t5_iccpr_1087_2002.pdf

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