As Irish society ages, issues of care and neglect will be thrown into sharper relief

BACKGROUND:The outcome of lengthy proceedings relating to the death through neglect of Evelyn Joel seven years ago has major implications for the health service and for family members caring for a loved one.

For the first time, a conviction for manslaughter through neglect of a family member has been secured in the Irish courts.

The decision of Wexford Circuit Criminal Court to sentence Ms Joel’s daughter Eleanor and her partner Jonathan Costen to do 240 hours’ community service rather than a custodial sentence clearly reflects the tragic and complex circumstances of this case.

Significant penalty

Yet the fact remains that a jury convicted the couple for this rarely tried offence and a judge then imposed a significant penalty, despite the arguments of the defence. It had sought to place the blame on State agencies and highlighted the dysfunctional background of the defendants but these pleas were rejected.

There is now an increased onus on carers to ensure the wellbeing of those they mind, even in circumstances where this might be a difficult task. In the current case, the court heard claims that Evelyn Joel, who had multiple sclerosis, was difficult to mind and did not want to be helped. Meanwhile, Judge Seán Ó Donnabháin described the Health Service Executive as being “as removed from this case as from Rockall”.

Eleanor Joel and Costen, who had direct care of her mother, were being sentenced this week, but what of the social workers, nurses and other professionals who had or might have had a surveillance role in this case?

Duty of care

“There is much we still do not know about this case,” says Eamon Timmins, head of advocacy at Age Action Ireland. “Was anyone in officialdom aware that Evelyn Joel needed help? The State has a duty of care to vulnerable people, even if they refuse help.”

Mr Timmins says lessons have to be learned from the case. “This person cannot die without us learning something from this. It needs a thorough review, to be carried out by the HSE or some other agency.”

Following Ms Joel’s death, the HSE did establish a review of the “scope, range and level of services” available to her during the two years prior to her death.

The High Court was told in 2009, however, that the review had been suspended at the request of the Garda, pending the outcome of their investigation into Ms Joel’s death.

In May 2011 the Supreme Court ordered that documents concerning the review be provided by the HSE for the trial of Joel and Costen. The couple sought the documents on grounds they were required to ensure a fair trial.

As our society ages, issues of care and neglect will inevitably be thrown into sharper relief. Many more of us, while not ill, will have to cope with the effects of degenerative diseases such as the multiple sclerosis Evelyn Joel had.

Coinciding with the proceedings taken by Marie Fleming, who also has MS, the Joel case has put the plight of those suffering with degenerative conditions in the limelight. Yet the very use of terms such as “suffer” and “plight” arguably gives a misleading impression of the vast majority of people with MS and other conditions who are managing their symptoms effectively.

Breach of duty

The charge in this case, gross negligence manslaughter, is a form of involuntary manslaughter. It occurs where the accused owes a duty to the deceased, with their negligent breach of that duty causing the death.

In situations where patients are being cared for in hospital, it is clear that they are owed a duty of care by the health service. We know little about the circumstances of many hospital deaths – no national figures are published – but it is safe to assume that the families of at least some of those who have died in questionable circumstances allege culpable neglect.

The focus on such situations is likely to increase as a result of these proceedings.

Thus, the Joel case raises the bar for the HSE, which must ensure that the circumstances which give rise to neglect do not arise, insofar as this is possible in our large and often unwieldy health system.