Friday 28 October 2016

'HSE's alleged culpability should have been considered' for death of MS sufferer - Court of Appeal hears

Ruaidhrí Giblin

Published 07/10/2015 | 14:00

The late Evelyn Joel with her daughter Eleanor, grand daughter Jessica and Eleanor's partner John Costen, in 2004.
The late Evelyn Joel with her daughter Eleanor, grand daughter Jessica and Eleanor's partner John Costen, in 2004.

The jury which convicted a couple of killing a 59-year-old MS sufferer by neglect should have been allowed to consider the HSE's alleged culpability for her death, the Court of Appeal has heard.

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Evelyn Joel's 41-year-old daughter, Eleanor, and her partner Jonathan Costen (43), with last addresses at Cluain Dara, Enniscorthy, had pleaded not guilty to the unlawful killing of Evelyn by neglect in Co Wexford in January 2006.

Following a retrial, they were found guilty by a jury at Wexford Circuit Criminal Court and were given a two year suspended sentence on condition they carry out 230 hours of community service by Judge Seán O'Donnabháin in March 2013.

The pair moved to appeal their convictions on Tuesday on a number of grounds involving negligence of others including the HSE, true cause of death, the trial judge's refusal to transfer the retrial out of Wexford despite “shocking” local newspaper reports, the trial judge's replacement of a juror in the absence of defence solicitors as well as the question of Costen's duty of care to Mrs Joel.

The Court of Appeal heard that Mrs Joel was a “very sick woman” when she was admitted to hospital in December 2006.

Counsel for the Director of Public Prosecutions, Justin Dillon SC, said Mrs Joel had been immobilised by MS resulting in bedsores which became infected by the conditions in which she was living.

“Maggots were found in her bedsores” and reports from the hospital laboratory found "possible fecal contamination".

In replying submissions today, counsel for Costen, John O'Kelly SC, said the evidence of State Pathologist Dr Marie Cassidy was clear.

Mrs Joel died from pneumonia due to her underlying illness - MS - and in addition to that, the pneumonia organism was different to the organism contained in her bedsores, counsel said.

That was a break in the chain of causation, Mr O'Kelly submitted, and at the very least the jury should have had that explained to them.

Refuting the suggestion that Mrs Joel was child-like, Mr O'Kelly said she had a very clear view of her own rights and knew she was entitled to refuse medical treatment.

She threatened to have nothing further to do with her daughter and Costen if they called a doctor, Mr O'Kelly said.

Furthermore, a garda sergeant confirmed in evidence during the trial that the couple made numerous efforts to get Mrs Joel to leave and go to a nursing home, Mr O'Kelly said.

Counsel for Eleanor Joel, Rosario Boyle SC, said it was the professional and legal duty of the HSE's public health nurses to look after Mrs Joel's sanitary needs and attend to her mobility needs.

The authorities knew she was their patient, that she was in the house and that she was deteriorating, Ms Boyle said.

If the jury could have asked themselves 'well maybe the biggest culprit here is the HSE', that might have been sufficient to raise doubts about the culpability of Eleanor Joel, Ms Boyle submitted.

Counsel said she he was entitled to raise that as a defence in that context but the trial judge told the jury that the negligence of other people was not a matter for their consideration.

As a result of the judge's direction, Ms Boyle said the defence was set at nought.

Mr Justice George Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, said the court would reserve judgment and deliver it as soon as possible.

Mr Justice Birmingham told the parties that they had “given us a lot to think about” and there were a number of discreet points the court would “address our minds to”.

Counsel for Eleanor Joel, Rosario Boyle SC, said that during the 14 months Mrs Joel stayed in her daughter's home, she was a patient of the HSE public health nurses and her GP.

The care of Mrs Joel was their legal and professional responsibility during that time, Ms Boyle said. They knew she had a serious disease and knew that Eleanor Joel “wasn't coping” but left the patient there without assisting her for four months.

Despite being aware in early September 2005 that Mrs Joel's health had declined significantly, the only thing her professional carers did for her was to leave incontinence nappies behind the wheelie bin in Eleanor Joel's house, Ms Boyle said.

However, the jury were told to not consider whether the HSE were negligent or not, Ms Boyle submitted.

Counsel further submitted that the jury's verdict was annulled by depriving her client's solicitor the chance to challenge a juror when one of the original 12 jurors was discharged and another sworn in.

Counsel for Costen, John O'Kelly SC, submitted that Costen had no duty of care to Evelyn Joel such as a blood relationship, contractual relationship or voluntary duty of care.

Despite that, Mr O'Kelly submitted, the trial judge misstated Costen's defence to the jury and effectively told them that the accused had assumed a duty of care and was trying to get out of it.

Costen “never wanted her” in the house, according to Mr O'Kelly. “He said repeatedly, because of her condition, (that) they couldn't cope and she should be in hospital. He kept asking her to leave,” Mr O'Kelly said.

He said Evelyn Joel was a strong, independent woman who didn't like doctors and did not like hospitals. At one stage she had thrown the forms for an old folks home back at them, Mr O'Kelly said.

Counsel further submitted that the trial judge erred in refusing to transfer the case out of Wexford when just 12 months previously they had endured a very long trial out of which came a considerable amount of local and highly prejudicial publicity.

The local reportage of the first trial was “shocking”, Mr O'Kelly said.

The idea of a woman – Mrs Joel – being brought to hospital weighing 3 stone, as was inaccurately reported at the time, he said, looking like somebody out of Belsen was so shocking that it was impossible to obtain a neutral jury in Wexford for the couple's retrial.

Counsel for the Director of Public Prosecutions, Justin Dillon SC, said the judge's refusal to transfer the case out of Wexford was not appealable and the mathematics of an 11-1 verdict were against the appellants' submission that they were deprived a chance to challenge a juror.

Mr Dillon said there came a point when a duty of care towards Mrs Joel arose for Costen.

Mrs Joel was helpless, she was childlike, and when Costen saw her he knew she needed help. He acknowledged during garda interviews that he should have acted and believed she was not going to survive beyond Christmas, counsel said.

All of this was happening under his roof and he could have called an ambulance, Mr Dillon said.

Likewise, if Eleanor Joel “had made a phone call we would not be here today,” counsel said.

Mr Dillon further submitted that there was not just local reporting of the case but nationwide coverage and the first jury could not have been influenced by adverse publicity because they could not reach a verdict.

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