Citation: R v Thompson, David; R v Thompson, Phillip [2019] NSWSC 1396
Court: Supreme Court of New South Wales
Date: 18 October 2019
Judge(s): Fagan J
Background
Two brothers, aged 39 and 42, were charged with the manslaughter of their 72-year-old mother by gross criminal negligence. The brothers had lived with their mother in the family home in Western Sydney since their father's death in 2012, and had assumed responsibility for her care. Their mother became increasingly reclusive and physically frail in the years following her husband's death, and had consistently and adamantly refused any form of external medical or nursing assistance.
In August 2017, the brothers called an ambulance after their mother had been largely bedridden for ten days and was barely eating or drinking. Upon admission to Blacktown Hospital she was found to have multiple bedsores in advanced stages. She died of sepsis ten days later on 2 September 2017.
The Crown alleged that the brothers had breached their common law duty of care by failing to properly treat or seek medical attention for the bedsores, and by failing to ensure adequate nutrition and hydration. The brothers accepted that a duty of care existed but denied negligence, arguing that their mother had resisted all outside help, that the bedsores had developed rapidly, and that they had provided care that was reasonable in the circumstances.
Legal Issues
- Whether the accused breached their admitted common law duty of care to their mother in respect of her hygiene, wound care, nutrition, and hydration in the weeks before her hospitalisation.
- Whether any such breach amounted to gross criminal negligence, being a departure from the standard of reasonable care so serious as to warrant criminal punishment.
- Whether any proven breach was a substantial cause of the mother's death, given that she may already have been suffering sepsis in her final days at home.
- What weight should be given to the deceased's own sustained refusal of medical attention when assessing the reasonableness of the accused's conduct.
Decision
Fagan J acquitted both brothers, finding that the Crown had not proved the essential elements of manslaughter by gross criminal negligence beyond reasonable doubt.
On the question of the bedsores, his Honour accepted that the brothers' account was at least reasonably possible: the multiple sores observed at hospital had likely developed rapidly in the days of acute confinement rather than representing months of neglect. The initial sore on the buttock, of which David was aware, was bathed regularly, and David had no medical training that would have alerted him to its serious potential. Once Mrs Thompson became seriously unwell and appeared to be losing coherence, the brothers promptly called an ambulance.
On the deceased's refusal of care, Fagan J held that the standard of reasonable care had to be assessed against the reality confronting the accused: two adult sons without medical training, attempting to maintain an elderly parent at home against her persistent and irrational resistance to outside help. David's conclusion that his mother was dying as she had long wished, and that she did not want medical intervention, had not been shown to be so obviously unfounded as to render his conduct a criminally punishable breach of duty.
On causation in respect of Phillip, his Honour found an additional obstacle for the Crown: it was at least reasonably possible that Mrs Thompson was already suffering sepsis in the final days before she was admitted to hospital, being the period during which Phillip first observed her decline. Any failure by Phillip at that stage had therefore not been shown beyond reasonable doubt to have been a substantial cause of death.
Orders Made
- Verdict of not guilty entered in respect of each accused.
Key Takeaways
- The Supreme Court confirmed that the standard of reasonable care in a gross criminal negligence manslaughter case must be assessed against the actual circumstances facing the accused, including their lack of medical training and the deceased's own sustained refusal of external assistance.
- A common law duty of care was accepted to arise where adult children assumed ongoing responsibility for the welfare of a dependent elderly parent living with them, but the existence of that duty did not resolve whether it had been breached.
- Where a deceased person has consistently and adamantly refused medical intervention, that refusal is a material circumstance in evaluating whether a carer's response to declining health fell below a criminally culpable standard.
- On causation, the prosecution must establish beyond reasonable doubt that any proven breach was a substantial cause of death. Where the deceased may already have been suffering the fatal condition at the point a carer first became fully aware of the deterioration, that causal link may not be made out.
- In acquitting both accused, the court observed that an elderly person's insistence on dying at home without professional assistance can place an unfair burden on caring relatives, and that terminal dignity and comfort may be unachievable at home without detached professional support.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), s 132 (trial by judge alone)
- Guardianship Act 1987 (NSW)
Cases:
- Hunter and New England Area Health Service v A (2009) 74 NSWLR 88
- R v Edwards [2008] SASC 303
- The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
- R v Williamson [1972] 2 NSWLR 281
- R v Thomas Sam (No. 17) [2009] NSWSC 803