R v Thompson, David; R v Thompson, Phillip

1. [1]

   David and Philip Thompson were arraigned in this Court on 8 October 2019 on a charge that they:

2. [2]

   Both accused entered pleas of not guilty. On an earlier date they had reached agreement with the Crown that the trial should be by judge alone. An order to that effect was made under s 132 of the Criminal Procedure Act 1986 (NSW). The trial proceeded before me over four days from arraignment until completion of counsel’s addresses on Friday, 11 October 2019. The Court’s decision was then reserved to this date.

3. [3]

   The accused are brothers. I will refer to them by their first names only, for brevity. David was 39 years old in 2017 and Philip was 42. Mrs Shirley Thompson, their mother, was 72 years old when she died on 2 September 2017.

4. [4]

   The Crown case is that after their father died in early 2012, the accused assumed responsibility for the care of their mother. Over the ensuing 5½ years all three lived together in a modest three bedroom house in Greystanes in Western Sydney. This had been the family home since the late 1970s. On 23 August 2017 the accused summoned an ambulance. David informed paramedics that Mrs Thompson had been almost continuously bedridden for the preceding 10 days and had been taking less and less food and water. He said that she appeared to be very weak, dehydrated and unwell.

5. [5]

   Upon admission to Blacktown Hospital Mrs Thompson was found to have numerous bedsores in advanced stages. These had not been dressed or kept sterile. Mrs Thompson’s bloodstream had become infected and she died of sepsis on 2 September 2017, 10 days after admission. The Crown case is that as a result of assuming responsibility for their mother’s well-being, the accused came under a duty at common law to exercise reasonable care for her health and nourishment. It is alleged that each accused negligently breached that duty by failing to provide proper care and hygiene for Mrs Thompson’s bedsores, by failing to procure medical treatment for them and by not providing adequate nutrition and hydration. These breaches of duty are alleged to have occurred in the month before Mrs Thompson’s admission to Blacktown Hospital. It is alleged that the deficiencies in care caused Mrs Thompson’s death because an infection that proved fatal entered her bloodstream through the untreated bedsores and because malnourishment and dehydration weakened her.

6. [6]

   The accused do not contest that they owed Mrs Thompson a duty of care with respect to her health and nutrition. They deny negligence. David’s case is that Mrs Thompson was in satisfactory health, although declining, up to one month before her admission to hospital. She developed a single sore on her buttock at that time, the significance of which David did not know and which he bathed every two or three days in the shower and monitored. Mrs Thompson’s already reduced mobility decreased markedly over the next month until, from 10 days before her hospitalisation, she was bedridden. She lost her appetite over that month and was barely taking any food in the last 10 days. Additional small sores on Mrs Thompson’s lower body and legs were first observed by David two days before her admission to hospital, on Monday, 21 August 2017.

7. [7]

   Phillip’s case is that he was much less involved in Mrs Thompson’s care than his brother because he was employed full-time and worked shifts whereas David was unemployed and was at home all day. Phillip became aware of the sore that his mother had contracted on her buttock only in the last few days before she was hospitalised. He also noticed her significant loss of appetite and her reduced mobility later than David did.

8. [8]

   A significant aspect of the case for each accused regarding the reasonableness of the care they provided is that Mrs Thompson was adamantly opposed to receiving nursing or medical attention, either in her own home or as an inpatient of a nursing home or hospital. The accused had deferred to their mother’s wishes in this respect for several years. Only when she appeared to be seriously unwell and losing coherence did they call an ambulance. The accused say that the numerous bedsores observed by medical staff when Mrs Thompson was admitted were not the result of long-term neglect but had developed in the preceding few days as a result of her quite sudden confinement to her bed.

9. [9]

   The accused do not dispute that the cause of Mrs Thompson’s death was sepsis following infection through bedsores. They dispute that the infection resulted from any shortcoming in the care they provided, measured against the standard of reasonable care relevant to two adult sons, lacking medical training, who attempted to maintain an elderly and infirm parent in the family home in the face of her stubborn resistance to outside help.

10. [10]

    I will state my conclusions on the underlying facts in chronological sequence before identifying the legal elements of the alleged offence and considering how the facts bear upon the elements in contest. A chronological account requires that I should begin with the evidence of the only witness called in the defence case, Mr Peter Monaghan.

Mr Monaghan’s evidence

1. [11]

   Mr Monaghan described Mrs Thompson’s apparent loss of the will to live following the death of her husband in February 2012. He was not cross-examined by the Crown and nothing he said was contradicted by evidence in the prosecution case. Mr Monaghan was a sincere and conscientious witness and I have no hesitation in accepting the entirety of his testimony. His narrative of the deceased’s adamant refusal of external help is consistent with the information given to police by the accused when they were questioned on 2 September 2017. He strongly corroborates them.

2. [12]

   Mr Monaghan did not state his date of birth but by his appearance and from the events he recounted I infer that he and Mrs Thompson were near in age. He met her and her late husband, Mr Gordon Thompson, in about 1985. Mr Monaghan was then a religious brother and he had managerial duties at a Catholic church in Greystanes. He was the sacristan of the church. In 1985 Mrs Thompson was a volunteer member of the altar society. She attended the church every day of the week to clean and maintain it and to keep the altar cloths and vestments in good order. She attended Mass on Sundays.

3. [13]

   Mrs Thompson continued in her role with the altar society for 10 years. During that period Mr Monaghan came to know her and her late husband very well. Almost every Friday night and most Saturday nights the three of them and other friends dined together at a nearby golf club or at the Thompson home. After Mrs Thompson had ceased to volunteer at the church, in about 1995, this pattern of regular Friday and Saturday night socialising continued until the death of Mr Gordon Thompson from heart failure in February 2012.

4. [14]

   At the date of her husband’s death Mrs Thompson was 67, David was 34 and Philip was 37. Both David and Philip were still living in the family home. Mr Monaghan described the late Mr Gordon Thompson as very hard-working, both in his employment in the clothing industry and also on the domestic front. Mr Monaghan said:

5. [15]

   By the time of Mr Gordon Thompson’s death Mr Monaghan had left the religious brotherhood. He continued to visit Mrs Thompson in her bereavement but he said:

6. [16]

   By about 12-18 months after her husband had passed away Mrs Thompson had severed ties with everyone. She had had a very close friend at the church, Mary Saliba, but within a few months to a year after losing her husband Mrs Thompson had cut Ms Saliba off and ceased all contact.

7. [17]

   According to Mr Monaghan Mrs Thompson declined physically as well as socially after February 2012. Mrs Thompson’s deportment had always been upright until her husband’s passing but thereafter, according to Mr Monaghan, she quickly became:

8. [18]

   Mr Monaghan’s evidence establishes that Mrs Thompson was wilful in relation to domestic issues. After her husband’s death she became markedly more so, in an irrational way to the detriment of her own well-being. Mrs Thompson refused to have her physical surrounds improved or even maintained. Mr Monaghan gave this evidence:

9. [19]

   Mr Monaghan observed that Mrs Thompson abandoned any attempt to keep her house clean after her husband passed away. She allowed her dog to live inside and did not control it. Mr Monaghan said:

10. [20]

    Mr Monaghan offered to Mrs Thompson that he would arrange a team of cleaners to clean the house thoroughly. He urged that after this had been done Mrs Thompson should buy new furniture and make life more comfortable for herself. Her response was:

11. [21]

    Mr Monaghan persisted with attempts to rally Mrs Thompson’s interest in her own well-being right up to his last visit to her in about January or February 2017. Seeing the dilapidation and uncleanliness of the house Mr Monaghan suggested, repeatedly, that she should get outside help. He said:

12. [22]

    Mr Monaghan thought that Mrs Thompson should see a doctor for a check-up because she was heavily stooped and had to hold on to things to walk. He also thought that a doctor would be able to arrange for other more general care services. He said:

13. [23]

    The closest Mr Monaghan came to obtaining Mrs Thompson’s consent for medical attention was that she said she would accept a visit from the general practitioner whom she had seen some 20 years earlier. It transpired that that doctor no longer did home visits. Mrs Thompson would not go to his surgery, nor would she accept anyone else. In an effort to persuade Mrs Thompson to receive professional care Mr Monaghan enlisted another person to come with him to speak with her. He said:

14. [24]

    Mrs Thompson’s rejection of Mr Monaghan’s persevering kindness culminated in her refusal even to admit him to the house. He described his last visit, in early 2017 about six or seven months before Mrs Thompson passed away, as follows:

15. [25]

    The mournful picture painted by Mr Monaghan is of a woman who had been highly dependent on her capable and energetic husband; who on his passing had no further interest in this world and who rebuffed all offers of help to care for herself.

Police interviews

1. [26]

   Mrs Thompson died at 9:00am on 2 September 2017. Police interviewed David for one and a quarter hours late that afternoon. Philip was interviewed for just under two hours into the late evening. Both interviews were electronically recorded. Both accused gave their answers readily and in an apparently frank manner. Each interview has been tendered by the Crown only against the individual accused who was questioned. Insofar as each interview contains admissions against interest or assertions adverse to the other accused, the answers provided to police are admissible only against the interviewee.

2. [27]

   Generally the Crown does not contend that the respective accounts given by the accused of their care for Mrs Thompson are inaccurate. In fact the Crown relies upon many of their answers, particularly regarding events in the month prior to Mrs Thompson’s admission to hospital on 23 August 2017. In favour of each accused the Court is able to rely upon answers at interview that serve the defence case, notwithstanding that neither accused gave evidence in the trial and that there was therefore no testing in cross-examination by Crown counsel: R v Williamson [1972] 2 NSWLR 281 at 295-296.

3. [28]

   The Crown case turns upon evaluation of the care provided to Mrs Thompson measured by the legal standard of reasonable care. Reasonableness depends heavily upon what each accused, respectively, observed of Mrs Thompson’s symptoms at various times and what each of them understood to be the significance of those symptoms. The police interviews did not elicit, from either of them, a clear history of Mrs Thompson’s decline over her last month at home. Also, no doubt because of their different degrees of involvement in her care, David and Phillip did not see the same symptoms in their mother at the same times and they did not draw the same conclusions about the course of her deterioration.

David Thompson’s police interview

1. [29]

   in 2017 Philip was in full-time employment in the uniform branch of the Australian Federal Police and had been since about 2005. David had not been employed since about 2000. Following the death of Mr Gordon Thompson the burden of caring for Mrs Thompson fell mostly to David. He did not receive a carer’s pension for this. Nor did Mrs Thompson receive any form of social services benefit. She had some interest income from funds in the bank. To the extent necessary, Philip supported his brother and mother out of his salary.

2. [30]

   David told police that at some time before his father died Mrs Thompson suffered a knee injury. His father had urged her to see a doctor about this but she would not. The injury caused her to drag one leg and the symptoms became steadily worse after 2012. An x-ray study of the left knee conducted after Mrs Thompson’s admission to Blacktown Hospital in August 2017 showed severe arthropathy and bone-on-bone contact. This confirms David’s description of her loss of mobility as a result of the initial untreated injury. David said that eventually Mrs Thompson had problems with both legs. The x-ray taken shortly before her death also showed moderately severe arthritis in both hips. In about 2015 the two accused bought their mother a walking stick with a small platform at the base, to help her get about the house. She became steadily less mobile. David said that she regularly took paracetamol and ibuprofen over several years to reduce symptoms in her knee.

3. [31]

   David said in his interview that even prior to his father’s death Mrs Thompson had been slowing down in a general sense. From sometime before 2012 until her hospitalisation on 23 August 2017 she rarely left the house. The only occasions were when Philip drove her to the shops. But she would only go from necessity, for example to attend the bank. These visits took place at most a few times each year and were for about 20 minutes each time. The last such visit was a year before her death.

4. [32]

   According to David his mother ceased to do any housework from two or three years before her death. During 2017, up until a month before her admission to hospital, she was able to get out of bed each day and make her way without assistance slowly to the living room about 6 m away. There she would sit and watch television. With David’s help she was able to get to the toilet. He helped her to have a shower approximately every second day.

5. [33]

   David said that for about one year before her death Mrs Thompson occasionally mixed up her sons’ names. He did not consider this significant and he referred to it as “her slip of the mind, I put that down to old age”. David saw no need to have his mother medically examined with respect to her mental capacity. He was justified in that view. When ambulance officers attended on 23 August 2017 Mrs Thompson was able to answer them appropriately, despite the fact that she was then very unwell and subsequently exhibited delirium consistent with sepsis. Examination of Mrs Thompson’s brain at autopsy did not identify any change from which the Court could conclude that she suffered dementia or that she otherwise lacked mental capacity before her admission to hospital. There is no evidence that she exhibited clinical signs or symptoms that would support such a retrospective diagnosis.

6. [34]

   One month before hospitalisation Mrs Thompson developed a sore on her buttock that David noticed when helping her from the shower. He asked her what it was and he recounted her response as follows:

7. [35]

   David told the detectives who interviewed him:

8. [36]

   David told a police officer who attended the home on the afternoon of 2 September 2017 that the “blister on her bottom … gradually got bigger” from when it first appeared. It was initially about the size of a 50¢ piece. David said later in his interview that he had a concern about the sore but his mother was “always resistant” to going to a doctor or a hospital. He was asked why he did not summon medical help on his own initiative, irrespective of his mother’s wishes, when he first observed the sore. He said:

9. [37]

   In the last month before Mrs Thompson was admitted to hospital David assisted her to shower and did not observe any additional sores. In that period she did not get out of bed every day and when she did David had to assist her to take the few steps into the lounge room. This took about 15-20 minutes. Then from about 10 days before her hospitalisation Mrs Thompson was almost entirely bedridden. David told one of the paramedics on 23 August 2017 that his mother had been able to walk 10 days earlier, but not since.

10. [38]

    On 17 August 2017 Philip recorded a short video of Mrs Thompson being assisted through the house, seated on a chair that had castor wheels. This was only six days before her admission to hospital and it shows that it was still possible to get her up from her bed at that time. I infer that the improvisation of the chair with wheels was necessary to help get her from room to room.

11. [39]

    With respect to the issue of getting medical help when Mrs Thompson was in decline over the last month at home, David said:

12. [40]

    When Mrs Thompson became almost totally bedridden approximately 10 days before hospitalisation, David said he continued to raise with her the subject of getting medical help. He said:

13. [41]

    David prepared his mother’s meals. Until a year before her death she had eaten regularly and sufficiently but over the last 12 months her appetite slowly dropped off. From about a month before her admission to hospital Mrs Thompson lost interest in food still further. She did not take breakfast and would only pick at the lunch and dinner David prepared. During about her last 10 days at home Mrs Thompson would take little more than lemonade. David saw no sign of weight loss until he observed that her arms were thin during the last two days. The absence of significant wasting at this time is supported by the fact that Mrs Thompson weighed 85 kg at autopsy on 4 September.

14. [42]

    David told the police in his interview that in the last 10 days he changed Mrs Thompson’s sheets every day or nearly so. She was incontinent in her sleep “every now and then”. On Monday, 21 August 2017 Mrs Thompson had wet the bed and when David turned her over he observed what appeared to be a large bruise on each leg and a number of additional small sores “starting to pop up”. David got his mother out of bed, changed the linen and put towels down. She returned to bed and he rolled on her side and bathed her with warm water. On Tuesday, 22 August 2017 he got her up and changed the bed again. Once more David bathed Mrs Thompson’s sores while she was lying in bed. At this time he noticed sores on the backs of her heels as well.

15. [43]

    On Wednesday, 23 August 2017 Mrs Thompson stayed in bed in the morning. David went out on an errand and upon his return his mother did not speak to him and did not appear coherent. He said she was “in another world”. She appeared dehydrated but would not take water. He recognised that she had “changed dramatically”. He waited until Philip returned home half an hour later and consulted him before calling and ambulance.

Ambulance attendance on 23 August 2017

1. [44]

   The ambulance officers observed that Mrs Thompson had a greyish pallor and looked frail. She denied any pain but was weak and unable to move herself. She would have been unable to support herself if the paramedics had assisted her to a seated position. Mrs Thompson’s blood pressure and temperature were low. Despite a degree of vagueness Mrs Thompson was able to converse rationally with the ambulance officers. When asked whether the accused lived with her and cared for her she said, “Yes, I am so thankful to have my sons”.

2. [45]

   The officers observed that a towel under Mrs Thompson was soaked in urine and that there was faecal matter over her bottom and crotch. A large red open bedsore was observed with faecal matter in it. With the assistance of Fire Brigade officers Mrs Thompson was lifted from her bed to a stretcher and conveyed to hospital. Upon examination at the hospital approximately 30 bedsores, of varying dimensions and stages of development, were found on her hips, buttocks, thighs and heels. A number of these were contaminated with faecal matter.

3. [46]

   Mrs Thompson’s bed was in poor repair, with a deep indent where she lay. The bed had evidently been in use for many years. The indent was darkly stained. There is no evidence that it was in a permanent state of unhygienic soiling but it had a strong odour. The condition of the bed linen against Mrs Thompson’s skin is of greater relevance. The ambulance officers found this to be wet with urine and soiled, with Mrs Thompson’s underside in contact with a soaked and unhygienic towel. David acknowledged that his mother had become incontinent and that her bedding had to be changed frequently. On his account she could have been lying in this state for up to a day since the last change. It is evident that Mrs Thompson’s deterioration in this respect had begun to exceed David’s ability to keep her clean.

4. [47]

   It is not necessary to refer in detail to the unclean and unhygienic state of the house as observed by the ambulance officers and by the detectives who subsequently examined the property. The carpet throughout was extremely worn and dirty, the bathroom wall tiles had fallen off, there was widespread disorder, mess, dust and dirt. The premises emitted a very unhygienic smell. David told police that cleaning and maintenance was his responsibility. He said he had neglected these duties over the preceding two months because his mother had required more of his time and attention. The state of the house indicates that his standards must have been very poor over a much longer period than the previous two months. I conclude that when Mrs Thompson let things go after her husband’s death David did not step up to clean and maintain the property adequately. But Mr Monaghan’s evidence shows that Mrs Thompson opposed maintenance of the house and that her sons were not “game enough” to go against her.

5. [48]

   Although these squalid conditions made a very unfavourable impression on the investigating police they have nothing to do with the charge of manslaughter. The Crown does not allege that the conditions of general untidiness, disrepair, uncleanliness and bad odour in the house were to any degree causative of Mrs Thompson’s fatal blood infection. No such allegation could have been supported by the medical evidence. Mrs Thompson died as a result of sepsis consequent upon bacteraemia acquired through her bedsores. The only breaches of the accused’s common law duty of care that could be relevant to the charge are any that may have caused the bedsores to become infected. There is no suggestion in the evidence or in the Crown’s submissions that general uncleanliness in the home could have been so causative.

6. [49]

   The evident long-term neglect of the house was not a reflection of long-term neglect of Mrs Thompson’s health. The Crown’s medical evidence is consistent with the deceased having received adequate nutrition and physical care, within the constraints of her self-imposed seclusion and inactivity, until very recently before her admission to hospital. The Crown does not allege chronic neglect. All of the alleged breaches of the accused’s duty of care are said to have occurred in the month before hospitalisation.

Phillip Thompson’s police interview

1. [50]

   Philip told the detectives that after his father died Mrs Thompson “lost all sense of life” and became withdrawn. He said that “she just wanted to be in the house all the time”. She had no contact with anyone outside the home for about two years before she died. Mrs Thompson’s routine had been to get out of bed in the morning and shuffle through the house to the living room where she would watch television. Phillip said that he had provided only 10% of the day-to-day physical care for his mother over the past few years and that David had done the bulk of it.

2. [51]

   From about six months before her hospitalisation Mrs Thompson had become slower in getting about the house and had required David to support almost her entire weight. When this decline became apparent to Phillip he had discussed with David and his mother the possibility of Mrs Thompson moving into a nursing home. There were a couple of conversations about this in which Mrs Thompson said that she did not want to consider it. The possibility of finding a placement for her was therefore not investigated.

3. [52]

   Phillip said that he had seen sores on Mrs Thompson about three months before her death. He was not asked by the police to describe them or to identify where they were on her body. There is no evidence to establish that whatever sores he was referring to in these answers are related to the pressure injuries with which Mrs Thompson presented at the hospital on 23 August 2017. Phillip said that David put antiseptic on these sores and washed them. This was painful for Mrs Thompson. The absence of any description of these sores makes it impossible to connect them with the expert medical evidence. I therefore cannot draw any conclusion about what reasonable care they may have required. There is not sufficient evidence from which I could infer that they may have been precursors to any of the pressure injuries that were later observed at the hospital. The sores observed by Phillip three months before death, whatever they were, cannot be related to the Crown case.

4. [53]

   Phillip said that he observed “the major sore” at least two weeks before Mrs Thompson’s death, that is, during her last four days at home. I am satisfied that that is a reference to the sore on Mrs Thompson’s buttock that David had noticed some three weeks earlier. It is understandable that Phillip should not have become aware of it as early as David, because Phillip was much less involved in his mother’s care. Some answers given by Phillip make reference to a period of two weeks before Mrs Thompson’s admission to hospital, rather than two weeks before her death. But it is not clear that he acknowledged having seen “the major sore” at this earlier time.

5. [54]

   At some time in Mrs Thompson’s last few days at home Phillip observed that she was reluctant to get out of bed at all. When David encouraged her to do so he had to assist her to sit up and then leave her seated upright for at least 15 minutes to overcome her light-headedness before trying to move further. Having regard to the medical evidence I conclude that by this date her blood pressure was low and that this is likely to have been a symptom of sepsis.

6. [55]

   During these last few days David would assist his mother to the living room but she would remain there watching television for only half to one hour before asking to be helped back to bed, where she would sleep. Her appetite had been in decline from at least a week earlier and by these last few days she did not want to eat at all and would only drink when assisted and encouraged. Phillip found her confused at this time, sometimes addressing him as David. He did not say that he had observed such confusion at any earlier date. The medical evidence establishes that Mrs Thompson’s confusion in these last few days is likely also to have been due to sepsis.

7. [56]

   Philip suspected that his mother’s disinterest in food and reluctance to get out of bed in the days before her hospitalisation signified that she was close to death and that “her body’s just shut down”. During those days he noticed blotches of mottled skin on her arms. He thought this indicated poor circulation and attributed this, also, to his mother being “in the process of dying”. Phillip last saw David take his mother to the shower on Sunday, 20 August 2017. He observed his mother to be in pain when he helped David to bathe her. With respect to this he told the detectives:

8. [57]

   Later in the interview Phillip gave the following answers regarding Mrs Thompson’s wishes with respect to her care, as expressed over the years in which her sons looked after her:

9. [58]

   He said that in early August 2017 his mother had said:

10. [59]

    When asked why Mrs Thompson had not been “afforded the opportunity” to go to a nursing home when her mobility noticeably declined 6 months before her death, Phillip explained that he had his own concerns regarding placing her in such care and that these influenced him to accede to his mother’s wishes. He said:

Professor Kurrle’s evidence

1. [60]

   Mrs Thompson’s Body Mass Index of 34 at autopsy indicates no long-term deficiency of nutrition. Professor Kurrle, a geriatrician called by the Crown, noted that the protein levels in Mrs Thompson’s blood were very low when she was admitted to hospital. She said:

2. [61]

   Professor Kurrle later said that the deceased’s blood protein levels may have dropped over one to two months of reducing food intake and that the onset of sepsis would also have reduced the levels. In other words, so far as protein levels are a measure of malnutrition they only indicated reduced food consumption in very recent times, consistently with the history provided by David to police.

3. [62]

   The deceased was found to be anaemic on admission to hospital. Professor Kurrle said this was not an indicator of long-term malnutrition or other neglect. The autopsy revealed a pre-pyloric stomach ulcer that had been bleeding into the bowel. Professor Kurrle said that this may have been a side-effect of Mrs Thompson’s long-term use of Ibuprofen and that bleeding from it may have occurred intermittently. She said that even a small bleed from this ulcer over time could have caused the anaemia.

4. [63]

   On admission to hospital Mrs Thompson’s vitamin D was extremely low, at a measure of 6 compared to a normal of above 50. This had nothing to do with lack of care but was attributable to lack of exposure to sunlight, an aspect of Mrs Thompson’s reclusive habits of life over the preceding few years.

5. [64]

   Professor Kurrle explained that bedsores or pressure injuries occur on parts of the body where a bony prominence is close to the skin. The body weight of a bedridden patient exerts pressure on the tissue between the skin and the underlying bone, preventing adequate perfusion of blood. Older people are more prone to loss of blood supply in such areas because the epidermis is thinner than in younger patients. The lack of “padding” more readily permits pressure to interrupt the flow of blood through small vessels.

6. [65]

   A stage 1 pressure injury appears as a blister or bruise or reddened area. When the skin breaks it is categorised as stage 2. This progression occurs more readily in older patients because their skin is thinner and more fragile.

7. [66]

   Low blood protein may contribute to the development of bedsores because it leads to retention of fluid in subcutaneous tissues. In turn, swelling caused by the retained fluid may interrupt the normal connections between the dermis and the epidermis and lead to skin slippage. Under these conditions there is a greater likelihood of a pressure injury arising and of it progressing to stage 2. Pressure injuries may occur in a patient lying in a perfectly dry and well maintained hospital bed. But the presence of moisture on the skin, including urine or sweat, may in combination with other factors be a cause of sores of this nature. Excess moisture starts to break down the integrity of the skin’s outer layer and this may contribute to the commencement of a sore and to its development to stage 2, where the skin breaks.

8. [67]

   Stages 3 and 4 are progressive developments of pressure injuries, down through the underlying tissue. Stage 4 refers to sores that have progressed so far as to reveal bone or tendon at the base of the injury. Slough, comprising dead tissue, bacteria and fluid, may accumulate in a pressure injury. This is an indication of infection and tissue breakdown. The slough provides a bed in which bacteria can live and multiply. If it is not cleaned out and a dressing applied over the injury, the slough can promote entry of bacteria into the bloodstream. Slough may obscure the depth of the injury and impede an assessment of the stage it has reached. Unstaged pressure injuries, which the clinician cannot categorise as either stage 3 or stage 4, are often considered the most serious because of the presence of slough.

9. [68]

   The bedsores that were catalogued at autopsy on 4 September 2017 would have been present when Mrs Thompson was admitted on 23 August 2017. Professor Kurrle described them fully in her evidence by reference to the autopsy report. Two of them were approximately 12cm x 7cm, a number of others were in the order of 7cm x 5cm and there were many smaller ones. They ranged from stage 1 to stage 4 and some had slough at the base and could not be staged. The Professor gave the following evidence about the timeframe over which these sores may have developed:

10. [69]

    This evidence is very important. The pressure injuries with which Mrs Thompson was admitted to hospital were extensive and unsightly. The photographs of them are confronting. They might cause a layman to assume that Mrs Thompson must have been grossly neglected for a long time to get into that state. But that is not the case. Professor Kurrle’s evidence that injuries of this type may develop within hours even in sanitary conditions shows that the number and severity of the bedsores is consistent with David’s statements to police that all but one of them first appeared two days earlier and that they arose despite his efforts to keep his mother clean and dry.

11. [70]

    Of the numerous pressure injuries exhibited by Mrs Thompson on admission, Professor Kurrle said it was not possible to say which had arisen first. She said:

12. [71]

    Professor Kurrle explained that human skin carries a high volume of bacteria and that this readily invades the bloodstream through pressure injuries that reach stage 2. Urine and faecal matter contain bacteria. Contact of these substances with a pressure injury of stage 2 or above will increase the likelihood of bacteria entering the blood but such contamination is not a necessary precondition for bacterial blood infection to occur. The Professor said:

13. [72]

    On admission of Mrs Thompson her blood tests showed the presence of bacteria. The infection was at a level that had become symptomatic and was therefore referred to as sepsis. Professor Kurrle explained in the following answers that it was impossible to say how long prior to her admission Mrs Thompson may have contracted this bacterial infection:

14. [73]

    Professor Kurrle used the term bacteraemia to refer to asymptomatic bacterial infection of the blood. By the time Mrs Thompson was admitted her symptoms of sepsis that had developed from her bacterial blood infection included low blood pressure and delirium. The Professor said that these symptoms could have had a sufficiently rapid onset to have reduced her to an inability to leave her bed approximately 10 days earlier, as described by David. Her evidence was as follows:

15. [74]

    After admission Mrs Thompson would have had to undergo a general anaesthetic to have her pressure sores debrided and, possibly, repaired by skin graft. A surgeon concluded that she would not be likely to survive a general anaesthetic. Attempts were made to administer intravenous antibiotics. After a few days in hospital she was managed under palliative care. Professor Kurrle said:

Conversations between accused

1. [75]

   Having thoroughly examined the home of the accused on the afternoon of the day Mrs Thompson died, police returned on 6 October 2017 to execute a crime scene warrant. At about this time a listing device was placed in the home under warrant. The Crown tendered portions of conversations between the two accused recorded on 8 October 2017, 25 October 2017 and 2 January 2018. In the first of these conversations Phillip said that he did not know what the police were looking for. In each of the first two conversations he referred to the desirability of getting rid of his mother’s bed and in the third conversation he said he was glad he had disposed of it and wished he had done so earlier.

2. [76]

   The Crown submitted that these conversations amounted to an implied admission that the condition of the mattress “had the potential to raise an issue in regard to an aspect of Shirley Thompson’s care prior to 23 August 2017”. It was also contended that the conversations concerned disposal of evidence that might otherwise have been seized in an ongoing investigation. I emphatically reject these submissions. The conversations between the two accused are consistent with both of them believing that they had committed no wrong and that the ongoing attention of police over three months following their mother’s death was unwarranted. Both accused cooperated fully with police at every stage of their investigation. The suggestion that they even considered destruction of evidence is unfounded.

Elements of the offence

1. [77]

   The elements of the offence of manslaughter in the circumstances alleged against each of the accused are as follows:

   1. (1)

      The death of Mrs Thompson.

   2. (2)

      A common law duty of care owed to Mrs Thompson by the accused.

   3. (3)

      Negligent breach of the duty of care

   4. (4)

      The negligent breach of duty by the accused being a substantial cause of death.

2. [78]

   There is no dispute by either accused about elements (1) and (2) and the Crown has proved them beyond reasonable doubt. The duty of care (element (2)) arose from each accused having accepted the role of looking after Mrs Thompson. They resided in the same house with her and were well aware that she had no contact with anyone but themselves. There was no one else from whom she could expect care and assistance. By late July 2017 both accused knew that Mrs Thompson was more in need of them than ever because of her diminished mobility.

3. [79]

   Formulation of the elements of the offence in the above terms is supported by the High Court’s approval of the jury direction considered in The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). See also R v Edwards [2008] SASC 303 at [414]-[423]; R v Thomas Sam (No. 17) [2009] NSWSC 803 at [9]-[14]. The Queen v Lavender establishes that the question whether there has been a breach of the duty of care sufficiently serious to merit criminal punishment (element (3)) is to be answered by comparing the conduct of the accused with that of:

4. [80]

   It is not necessary for the Crown to prove, in relation to either of the accused, that he knew either that his conduct fell short of the standard of reasonable care or that he was acting in breach of his duty to Mrs Thompson.

The Crown’s particulars of alleged negligence

1. [81]

   The respects in which the Crown alleges that the accused’s duty of care was breached are:

2. [82]

   Each of these will be addressed, below, in relation to the separate body of evidence that has been tendered in the case of each accused respectively. I will first provide the following overview of how the evidence relates to the particulars.

3. [83]

   Although particulars (a)-(c) refer in the plural to “pressure sores” and “bedsores”, there is no evidence that either accused knew of any more than one sore until David noticed additional small sores about two days before the ambulance was called. The accused were not asked in the police interviews when if at all they had first seen the multiple, advanced sores that were photographed and documented in the emergency department. Reference has already been made to the medical evidence that these additional sores could have formed and developed within as little as the preceding 48 hours.

4. [84]

   As for the single sore of which both accused were aware, David had observed it on his mother’s buttock about a month earlier. There is no evidence that he knew at any time prior to Mrs Thompson being hospitalised how medically significant it was or that it carried a risk of causing blood infection. The only evidence of Phillip having seen any relevant sore prior to the attendance of ambulance officers is that he observed “the major sore” about four days earlier. Again, there is no evidence that he knew its medical significance.

5. [85]

   For the purposes of the Crown’s particulars (a)-(c), the extent and nature of the care that a reasonable person in the position of either accused should have provided for Mrs Thompson’s is, as noted earlier, entirely dependent upon what each of them observed, when they observed it and what significance they should reasonably have attached to their observations.

6. [86]

   With respect to particulars (a) and (b), for reasons explained in more detail below, it has not been shown that David’s direct efforts to care for the single sore that he knew about were less than reasonable over the month up to the day the ambulance was called, given his lack of medical knowledge about its potentially serious implications. It has not been shown that Philip’s direct efforts were less than reasonable over the few days in which he was aware of “the major sore”.

7. [87]

   With respect to particular (c), again because of the limited period in which each accused knew of the sore on Mrs Thompson’s buttock and their ignorance of its medical significance, it has not been shown that either of them exhibited less than reasonable care in failing to procure medical assistance until 23 August 2017. This allegation of negligence by failing to get medical help cannot be sustained for the additional and independent reason that Mrs Thompson adamantly withheld consent to treatment.

8. [88]

   In Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; [2009] NSWSC 761 McDougall J considered the efficacy of a written directive that had been prepared in advance by a patient, nominating forms of medical treatment that he would not accept. One of them was renal dialysis. The patient had suffered septic shock that caused renal failure. He was unconscious and on life support. McDougall J made a declaration that the hospital would be justified in acting upon the directive by withholding dialysis, as a result of which the patient would die.

9. [89]

   At [40] his Honour’s judgment includes a summary of principles, some of which may be extracted so far as presently relevant, as follows:

10. [90]

    With appropriate adaptation these principles are relevant to the efficacy of an oral refusal of consent to medical intervention, conveyed by a conscious patient with full legal capacity. Mrs Thompson’s refusal of care was effective even if it was “unsupported by any discernible reason”.

11. [91]

    Part 5 of the Guardianship Act 1987 (NSW) provides for third parties to give consent for medical treatment of a patient who is incapable of giving his or her own consent: s 34(1)(a). Consent may be given by the “person responsible” for the patient: s 36(1)(a). By the combination of ss 3D and 33A(4)(c), both David and Phillip were “person[s] responsible”. But none of these provisions was engaged so long as Mrs Thompson was conscious and capable of making her own decision to refuse medical attention. She was so capable throughout the several discussions in which she rejected her sons’ urging that she should be attended by a doctor, right up to 23 August 2017. They called an ambulance when they perceived her becoming incoherent.

12. [92]

    With respect to particular (d), for reasons given in more detail below I find no evidence to support the Crown’s contention that the accused failed to provide adequate nutrition or hydration for their mother. She simply became unwilling and then unable to take food or drink, as a result of advancing bacteraemia and then sepsis.

Elements (3) and (4) in relation to David Thompson

1. [93]

   For the purpose of comparing the care David Thompson provided to his mother against the objective standard of reasonable care, I take into account his personal attributes and circumstances so far as relevant. These are that he was aged 39 years; that he had been educated to Higher School Certificate level and that he had no medical training. I also take into account that Mrs Thompson did not have a treating general practitioner and that she had resisted over several years all suggestions that she consult a doctor or consider nursing home care. I am comfortably satisfied that David had no reason to think his mother was not of sound mind and able to make decisions about her own care right up until the day of her admission to hospital. I am equally satisfied that in the last month David knew that Mrs Thompson still did not wish to see a doctor despite the sore that had appeared on her buttock and her loss of appetite and mobility.

2. [94]

   When David first observed a sore on Mrs Thompson’s buttock she applied ointment to it and thereafter he showered her about every other day. I accept David’s statement to police that he did not know what the sore was. He acted reasonably by commencing to treat it as a skin lesion, bathing it periodically and keeping an eye on it. I infer that his endeavours to keep the sore clean reflected an instinctive understanding that this would reduce the risk of it becoming infected and would promote healing. The Crown case that from the outset he should have done more and/or sought medical assistance is premised on an assumption that David knew or ought to have known that this sore was a serious condition. That unjustifiably assumes that an ordinary reasonable person should have much of the knowledge concerning pressure injuries that would be possessed by an experienced geriatric nurse or clinician.

3. [95]

   I do not accept that a reasonable person in David Thompson’s position should be taken to have known that a sore such as the one he first observed on his mother’s buttock would be a pressure injury as opposed to a superficial skin lesion; that it would be likely to worsen unless specialised dressings and a careful treatment regime were adopted or that it posed a risk of permitting the entry of bacterial blood infection that might progress to septic shock. These matters are well understood in nursing homes and hospitals. There is no basis for attributing such knowledge to the ordinary reasonable man caring for his mother in her own home, confronted with a sore on her skin and soon thereafter unexpectedly having to manage her as a bedbound patient.

4. [96]

   In submissions the Crown asserted against both accused “an abandonment of care as to the hygiene of a person who has wounds over a period of weeks”. The evidence does not establish, to any standard of proof, that there was such abandonment by David (or Philip). It shows that in about the last few days at home, when it was extremely difficult to get Mrs Thompson up and when she became increasingly incontinent, David could not maintain sanitary conditions. Professor Kurrle’s evidence about how quickly pressure sores may develop and become infected precludes any inference that her condition on arrival at the hospital must have resulted from her being abandoned to the suffering of wounds over weeks.

5. [97]

   The Crown’s submission that Mrs Thompson “spent the majority of her time in the weeks and days leading up to 23 August laying in filthy and unsanitary conditions” is not sustained by the evidence. The assertion is put forward upon photographs of the stained mattress and upon the paramedics’ evidence as to the condition of the linen and towels under Mrs Thompson when they arrived in the mid-afternoon of 23 August. The submission takes no account of David’s description to police of the frequency with which he changed Mrs Thompson’s bed linen. It ignores the fact that the soiled condition in which she was found may have arisen shortly before, given that she had been immovable for the whole of that day.

6. [98]

   Over the days subsequent to David first noticing the sore it did not heal and in fact grew larger. In his answers during the police interview David recognised in retrospect that there had been a change in his mother’s general well-being at some undefined time after the sore first appeared. It is apparent that the unresolved sore, the decline in Mrs Thompson’s appetite and her increasing immobility became, in combination, a significant health concern. The timing of these developments was not established with any certainty in David’s interview. I infer that the symptoms had progressed and combined to a stage where they should have caused significant concern by the time Mrs Thompson became substantially bedbound, 10 days before hospitalisation. I do not consider that David breached his duty of care by failing, at that point, to summon professional medical assistance or to have his mother removed to a hospital. That is because Mrs Thompson maintained that she did not consent to treatment.

7. [99]

   Mrs Thompson’s refusal of medical intervention was not an ill-considered or momentary whim that a reasonable person in David’s position could have disregarded or persuaded his mother to abandon. It was an entrenched and determined set of mind. Mrs Thompson had not only stated and restated her resolve not to have medical help over the preceding 5½ years. She had lived out that resolve, dragging herself about the house as the arthritis in her knees and hips crippled her and progressed to what must have been painful bone-on-bone contact in the left knee. Mrs Thompson dosed herself with painkilling medication, in all probability to the point of causing the stomach ulcer that was later found, rather than accept the urging of her sons and of Mr Monaghan that she should see a doctor.

8. [100]

   Professor Kurrle identified a Commonwealth Government telephone health advisory service that could have been contacted in this situation. It would have been futile for David to have tried to circumvent Mrs Thompson’s refusal of medical attention by seeking advice from such a health service and attempting to implement the advice. The evidence and common sense make it perfectly clear that the only proper advice he could have received would have been that his mother should be seen by a doctor and moved into care as soon as possible. Once Mrs Thompson had developed what turned out to be a pressure injury and had become bedbound, the strict regime of hygiene and specialised dressings that would be required to avert infection could not possibly have been maintained by David in the family home. There was no breach of David’s duty of care in failing to seek advice, which would merely have left him in the same impasse with his mother.

9. [101]

   The Crown’s allegation that David failed to provide Mrs Thompson with adequate nutrition and hydration is unsupported by the evidence. David told police that at all times until the ambulance was called he offered his mother adequate food and tried to encourage her to eat. There is no evidence to the contrary. David said that she commenced to lose appetite about one month before she was hospitalised and refused almost all food during her last 10 days at home. It is an irresistible inference that she had acquired bacteraemia through one or more pressure sores, most likely through the first one that David had observed on her buttock, and that the blood infection had progressed to sepsis by the time she stopped eating. The evidence affords no other explanation for Mrs Thompson’s abrupt refusal of food.

10. [102]

    The descriptions given by both accused of their mother’s weakness, inability to support herself and increasing immobility enable me to infer that she was also suffering low blood pressure within the last 10 days before she was hospitalised. This additional symptom supports the conclusion that the bacteraemia had led to sepsis by that time. Thus, Mrs Thompson’s lack of food intake was a symptom of her disorder, not a cause for which David could be criminally responsible. Once the bacteraemia had taken hold Mrs Thompson’s failure to eat may well have increased her vulnerability to further pressure sores developing during her last few days at home.

11. [103]

    Mrs Thompson’s unresolved sore, her diminished food intake and her confinement to bed combined into a substantial concern at a date that is uncertain but which, on the evidence admissible against David, I could not be satisfied was any earlier than 10 days before hospitalisation. During those 10 days a reasonable person in David’s position would have known that he was dealing with something more serious than just a persistent skin lesion. But even if Mrs Thompson’s obdurate refusal to see a doctor could and should have been overcome, or if David should have done something more for her, I cannot be satisfied that any inaction on his part in these last 10 days was a substantial cause of Mrs Thompson’s death. I cannot be satisfied that Mrs Thompson was not already by this time suffering from sepsis that would prove fatal. There is every indication that sepsis had taken hold.

Elements (3) and (4) in relation to Phillip Thompson

1. [104]

   The personal attributes of Phillip Thompson that I should ascribe to a reasonable person in his position, for the purpose of determining the reasonableness or otherwise of the care he provided to his mother, are much the same as those that should be ascribed to David Thompson. They include that he was aged 42 years, that he had attained his Higher School Certificate and that he had no medical training. Like David he knew that Mrs Thompson had not seen a general practitioner in many years, that even from before her husband died she had resisted suggestions that she see a doctor or accept nursing home care and that she remained fixed in that attitude. Phillip had no reason to think that his mother lacked capacity to make decisions about her own circumstances up until the day of her admission to hospital.

2. [105]

   The evidence admissible against Phillip Thompson does not establish beyond reasonable doubt that he became aware of a sore on his mother’s body about which he should have been concerned, as a reasonable carer, until the last few days before she was hospitalised. He had noticed Mrs Thompson’s loss of mobility and appetite over these last days. The Crown correctly submits that his duty of care was not discharged by delegating to David. But that submission does not make up for the absence of any proof that Phillip knew, earlier than a few days before the ambulance was called, that his mother had a sore that was not healing.

3. [106]

   On this state of the evidence there is no foundation for the Crown’s first three particulars of negligence insofar as they are alleged against Phillip. The Crown case regarding Phillip’s knowledge of his mother’s condition comes entirely from his police interview. His answers to police do not establish that he was aware, even in Mrs Thompson’s final days at home, that she was suffering from a treatable illness for which he should have exercised more direct care or sought assistance. Phillip understood that his mother’s body was simply “shutting down”. He interpreted her lack of appetite, immobility and unresponsiveness as signs that her life was close to expiry simply by progression of old age. Consistently with this he interpreted the blotches that appeared on her skin as a symptom of failing blood circulation.

4. [107]

   Phillip Thompson told police that his mother had lost her will to live more than five years earlier. As a person responsible for her care, in the last few days that she was at home it was not unreasonable for him to have assessed that his mother was in an inexorable terminal stage, that this was a natural course and that there was no question of treatment. That is the clear effect of his answers to police. I infer that his agreement with David to have an ambulance called on 23 August 2017 was not a belated attempt to secure treatment but an endeavour to have his mother made more comfortable in her last moments.

5. [108]

   If, contrary to my view, Phillip’s assessment of the situation involved less than reasonable care, it was not gross negligence. His conclusion that his mother was simply dying, as she had long wished, and that she did not want medical intervention has not been shown to have been so obviously unfounded or outlandish as to render his inaction a criminally punishable breach of duty.

6. [109]

   With respect to the allegation of failure to provide sufficient nutrition, there is no sustainable case against Phillip. The conclusions expressed earlier in relation to David also apply to him. Food was not withheld from Mrs Thompson. Her declining intake, particularly over the last 10 days at home, was a symptom of the bacteraemia she had contracted.

7. [110]

   As I have earlier indicated it is at least reasonably possible that Mrs Thompson was already suffering sepsis in her last few days at home, being the time at which it became apparent to Phillip that she was not eating, rarely getting out of bed and becoming unresponsive and confused. Thus, if there was any failure by Philip to exercise reasonable care for his mother at this stage it has not been shown beyond reasonable doubt that any failure on his part to act was a substantial cause of death.

Conclusion and verdict

1. [111]

   The evidence brought before the Court in this prosecution has illustrated the great burden that may be imposed on caring relatives by an elderly person who insists upon dying at home. Most human beings hope that death will be dignified. Many also hope to pass their last days in familiar surroundings amongst loved ones. But at the stage of terminal bodily collapse, dignity and comfort may not be achievable at home without the aid of detached professional support.

2. [112]

   Mrs Thompson’s choice placed upon her sons a responsibility for geriatric nursing that demanded unfairly of them at the end. The law’s requirement of reasonable care, according to the standards of the community, is directed to maintaining health and prolonging life. Mrs Thompson set impossible terms for the achievement of those objects in her own case. The accused made no complaint, did not begrudge her and gave care that was no less than reasonable in the circumstances.

3. [113]

   Essential elements of the charge of manslaughter have not been proved against either of the accused and they are entitled to be acquitted. There will be a verdict of not guilty in respect of each of them.