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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Le Sauteur and Sunderland v HM Attorney General [2024] JCA 224 (23 October 2024) URL: http://www.bailii.org/je/cases/UR/2024/2024_224.html Cite as: [2024] JCA 224 |
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Court of Appeal - application for leave to appeal.
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Before : |
Sir William Bailhache, President, Ms Helen Mountfield KC, and Sir Adrian Fulford |
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Between |
Tom Le Sauteur |
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And |
John Sutherland |
Appellants |
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And |
HM Attorney General |
Respondent |
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Advocate F. J. Littler for Le Sauteur
Advocate I. C. Jones for Sutherland
Crown Advocate L. Sette for the Attorney General.
judgment
Fulford ja:
This is the Judgment of the Court
1. On 26 June 2024, Tom Le Sauteur (an ambulance technician) and John Sutherland (a paramedic) were convicted by the Royal Court of a single offence contrary to Articles 4 and 21 of the Health and Safety at Work (Jersey) Law 1989 ("1989 Law"). The particulars were that on 18 March 2022 they failed to take reasonable care for the health and safety of a patient in their care, Frazer Irvine, who was aged 39. By Article 4 of the 1989 Law, it is the duty of every employee while at work to take reasonable care for the health and safety of others who may be affected by his or her acts or omissions at work. Article 21 makes it an offence to fail to discharge this duty. Their convictions followed a trial in the Samedi Division of the Royal Court of Jersey before Sir John Saunders, Commissioner, and Jurats.
2. The sentence imposed on 16 July 2024 was a conditional discharge.
3. When announcing the verdict of the Jurats on 26 June 2024, Sir John gave a short explanation of the decision of the Court which he explained was not a comprehensive judgment. Sir John stated, "As I understand the position it is not necessary or even desirable for me to give any sort of reasons but because of the public interest in this case, it seemed to us to be important that we gave you some idea of why the decision has been reached". This explanation was amplified in a written "Sentencing Judgment" when sentence was passed on 16 July 2024. Sir John then explained that in order to put the sentence of the court in its proper context, the Court was providing a further explication of the Jurats' decision to convict the Defendants.
4. The Defendants seek leave to appeal their convictions pursuant to Article 24(1)(b) of the Court of Appeal (Jersey) Law 1961, given the proposed appeal is on questions of fact alone and does not involve any question of law.
5. Mr Irvine died on 18 March 2022. He lived in a first floor flat at Les Greffes Farm. At 22:19 that evening he called for an ambulance, stating he had taken an overdose (he had "taken everything"/"a lot of pills"). At 22.27 the Defendants were instructed to attend. Mr Sutherland and Mr Le Sauteur arrived at Les Greffes at 22.36. Mr Sutherland is a very experienced paramedic who has held senior roles in the Ambulance Service. Mr Le Sauteur is an ambulance technician who has worked in the army medical corps and various medical technician roles in Jersey. He had received less training than Mr Sutherland. They described the conditions on arrival as being very difficult. It was dark, albeit there was sufficient light to enable them to see what they were doing. Access to the flat was by an outside staircase which led, via a small external landing, to the Deceased's front door. It was the Defendants' evidence that Mr Irvine was verbally aggressive when they tried to provide him with initial care and he appeared to be drunk (later tests confirmed he had consumed a significant quantity of alcohol). He did not demonstrate distress or breathing difficulties when he was first encountered by the Defendants.
6. Mr Sutherland and Mr Le Sauteur determined that Mr Irvine should be assessed at hospital. He responded aggressively when they asked him to accompany them, adopting a "boxing stance" and throwing punches which failed to connect. Notwithstanding these difficulties, the Defendants successfully manoeuvred Mr Irvine onto the small landing outside the flat without sustaining any injury to themselves. Nonetheless, due to their apprehension that their safety was at risk, the Defendants decided not to transport Mr Irvine to hospital without the assistance of the police. The Jurats found that in those circumstances the Defendants "were entitled, as they did, not to take any action which might result in a violent response. They were perfectly entitled to call the police and wait for them to arrive before they carried out any treatment or tests. They are under a duty to take reasonable care for their own safety, and they were entitled to conclude that it would not be safe to continue with trying to get Frazer Irvine to hospital until the police came or to do anything which might put either of them in physical danger".
7. The Defendants' case was that they made two telephone calls requesting police backup. The first was shortly after their arrival and the second was a follow up call at 22:52. The Jurats were uncertain as to whether the first telephone call had been made but concluded that even if there was only a single call at 22:52, it had not been unduly delayed.
8. CCTV footage from a camera directed at the front of the building reveals that although Mr Irvine, once outside, was initially standing between the Defendants, in due course he sank to his knees, thereafter laying, partially or wholly, chest down on the landing at the top of the stairs. Any movement on his part lessened as time passed. Mr Sutherland walked down the stairs to collect a jacket from the ambulance at 22:58 and Mr Le Sauteur went inside Mr Irvine's flat at 23:04 to collect a duvet which was placed over Mr Irvine. The clear implication is that by that stage they did not consider it unsafe for either of them to be left alone with Mr Irvine prior to the arrival of the police, at least after 22:58, and in this context we note that the Defendants' cases were that the risk to them was simply from renewed aggression from Mr Irvine if he regained full consciousness.
9. Two police officers (Police Constables Wilton and Buckley) attended the scene shortly after 23:13, turning on their body worn video cameras which have provided extremely clear footage and a broadly comprehensive record of what occurred outside Les Greffes following their arrival. At this time, Mr Irvine was lying face down on the landing, vomiting repeatedly and copiously with the defendants standing on either side of him. He was essentially unresponsive to the various attempts to rouse him, albeit on occasion he slightly lifted his head before his face fell back into his vomit. The Jurats noted that "over this period the condition of Frazer Irvine was deteriorating. His consciousness level had changed to the extent that the police were told by the Defendants when they arrived that Frazer Irvine had fallen asleep. He had started to vomit during this period, as can be seen from the body worn video images taken by the police when they arrived."
10. At 23:17, both Defendants walked to the ambulance and began to put on their personal protective equipment ("PPE"). At 23:23 a stretcher was placed at the bottom of the staircase. An attempt to wipe the vomit away from the mouth and face area of Mr Irvine occurred for the first time, at the suggestion of PC Wilton, at 23:23.
11. At 23:24 and repeated at 23:25, PC Wilton asked Mr Le Sauteur whether he considered Mr Irvine had "turned purple" and furthermore queried with Mr Le Sauteur as to whether Mr Irvine was breathing properly. These concerns were initially dismissed by Mr Le Sauteur before he carried out an assessment as to whether Mr Irvine's condition was indeed deteriorating. He then called for Mr Sutherland - who had gone inside Mr Irvine's flat with PC Buckley at 23:24 to investigate what substances Mr Irvine had ingested - to join him.
12. Mr Irvine went into cardiac arrest at 23:29 and, despite attempts at resuscitation, his life was pronounced extinct at 00:03 on 19 March 2022.
13. It follows from the nature of the charge that the Defendants were not accused of bearing responsibility for the death of Mr Irvine. Instead, they were alleged to have failed to take reasonable care for his health and safety, in that they failed:
(a) To assess and manage Mr Irvine's airway prior to his cardiac arrest;
(b) To undertake initial clinical observations of Mr Irvine prior to his cardiac arrest;
(c) To undertake initial and ongoing assessment of Mr Irvine's physical condition;
(d) To assess and manage a patient with a reduced level of consciousness;
(e) To observe clinical practice standards in delivering resuscitation;
(f) To provide a reasonable standard of care without any unreasonable delay; and
(g) To take steps to protect Mr Irvine from harm which may lead to loss of life.
14. The Jurats were sure that particulars (a), (d), (f) and (g) were proved and that, on the basis of those findings, both Defendants had failed to take reasonable care for the health and safety of Mr Irvine.
15. The Jurats determined, as set out in the written Judgment of 16 July 2024:
16. The Jurats observed that if Mr Irvine was to be taken to hospital in order to carry out tests on the way, it was important that he was moved as quickly as possible, as patients who have taken an overdose may deteriorate very quickly. In this context, the Jurats noted that whilst Mr Irvine was lying in or close to vomit, making noises that indicated his breathing was being obstructed and in a low level of consciousness, both Defendants left him with a police officer whilst they simultaneously donned their PPE. Against that background, the Jurats took into account the fact that:
17. As to the second manner in which the Defendants fell below the standards to be expected of them, the Jurats set out:
18. The Jurats, accordingly, concluded that the Defendants should have ensured that there was no risk of Mr Irvine aspirating vomit, as far as that was possible prior to him reaching hospital. They emphasised that both Defendants were well aware of the need for the airways of a patient to be kept clear and they failed to check for signs of deterioration and, at the least, to clear the vomit away from Mr Irvine's mouth. They further concluded that by the time they had put on their PPE clothing, it was readily apparent that Mr Irvine's condition had deteriorated. Mr Sutherland went inside the flat to check on the drugs that may have been consumed and Mr Le Sauteur failed to respond with sufficient promptitude when he returned to the staircase to join PC Wilton, in the circumstances already set out above.
19. Mr Edwards, when addressing the decision to take Mr Irvine to hospital rather than treat him at the scene, considered the Defendants had failed to implement this step sufficiently quickly. For their part, the Jurats, having looked with care at the speed at which steps were taken at the scene, particularly by reference to the camera footage, considered there was a lack of urgency - constituting a failure to provide reasonable care - in preparing to remove Mr Irvine to hospital. This included the Defendants' failure to explain the need for expedition to the police officers.
20. On this basis the Jurats concluded the Defendants' care of Mr Irvine fell well below the standards expected of them, to say nothing of their own very high standards; they did not take their patient's condition as seriously as they should have done; and they failed to respond to the standard and with the urgency that was required in these particular circumstances.
21. Counsel for both Defendants closely analyse aspects of Sir John's description of the conclusions of the Jurats in the Sentencing Judgment of 16 July 2024. By way of general matters, Mr Ian Jones, on behalf of Mr Sutherland, emphasises that the relevant timespan was the 16-minute period between the arrival of the police at 23.13 and 23.29 when Mr Irvine went into cardiac arrest, in that the Jurats did not suggest that the standard of care was wanting before or after that period. He emphasises that the Jersey Ambulance Service Personal Protective Equipment (PPE) Policy dated August 2021 was mandatory as regards the use of "standard universal precautions" viz. a disposable plastic apron or full-length fluid impermeable gown, surgical mask, face shield, visor or goggles (if there was a risk of splash or spray), and patient gloves if there was a risk of contact with body fluids, secretions, excretions or a mucosal surface. It is highlighted that the Jurats did not criticise the Defendants for not putting on their PPE clothing earlier and it is argued that the Court was wrong to suggest there was no dispute that it was safe to carry out at least a superficial examination once the police had arrived.
22. Mr Jones highlighted that within 9 minutes of the police arrival, they had "formulated a plan" and were ready to implement it, by then wearing protective clothing. The Jurats are criticised for relying on the fact that the position of Mr Irvine was "not ideal" for ensuring his airway was kept clear, in that it is suggested the literature does not reveal such an ideal position. The Crown, it is argued, had tried to hold the Defendants to an "illusory standard" and there was no requirement to place Mr Irvine in an "exotic position". It is averred that the Jurats had made their assessment using the benefit of hindsight. Mr Jones contended that despite the views expressed by the experts, the Defendants were observing Mr Irvine and checking on his condition, including when Mr Sutherland returned to the landing having donned his PPE. In this context it is argued by Mr Jones that it was unfair to suggest that Mr Sutherland had "instead" gone into the flat to assess what drugs may have been consumed, as opposed to monitoring the condition of Mr Irvine. Mr Jones criticises the Jurats for observing that "(w)hatever the Defendants were thinking about whether Frazer Irvine had taken a drug overdose, there was no basis on what they found to assume that he had not overdosed" when they were clearly acting on the basis that Mr Irvine was suffering the effects of ingesting drugs. In all the circumstances, it is contended the reasoning set out in the Sentencing Judgment does not withstand proper scrutiny.
23. Ms Frances Littler, on behalf of Mr Le Sauteur, joins Mr Jones in his submissions and focussed on two discrete issues. First, it is suggested that contrary to the Jurats' findings, once Mr Le Sauteur had put on his PPE and returned to Mr Irvine on the landing, he responded appropriately to the situation by collecting wipes from the ambulance at PC Wilton's suggestion, thereafter wiping the area around Mr Irvine's face and otherwise, and in responding to the concerns expressed by PC Wilton as to Mr Irvine's deteriorating condition, focussing on his breathing and colour. It is argued these steps were undertaken without delay, following a "step-wise" approach which demonstrated he was continually assessing and managing his patient. Second, Ms Littler emphasises that in a case where reasons are given by the Court for a decision, it is possible on an appeal to review the process of reasoning, and to consider whether, by that process, a verdict has been reached which is unreasonable, or was one which cannot be supported having regard to the evidence or whether on any ground there was a miscarriage of justice (see Guest v Law Officers, 2003-04 GLR N [7]; Guernsey C.A ., January 9th, 2003; Criminal Appeal No 290 at [12]).
24. Article 26(1) of the Court of Appeal (Jersey) Law provides:
25. Our attention was helpfully drawn by Mr Sette, Crown Advocate, to the decision in Lewis Christmas, Foot and Cameron v. Attorney General [2013 (1) JLR 325], in which the Court of Appeal considered an appeal against the verdict of Jurats in a trial before the Inferior Number. The judgment, delivered by Nutting JA, considered the approach to a suggestion that a verdict was unreasonable and/or could not be supported having regard to the evidence:
26. There is, as submitted by Ms Littler and as set out in Guest v Law Officers, a distinction to be drawn between cases when the reasons upon which the verdict is based are undisclosed and cases when the Jurats are "speaking", in the sense of explaining the reasons for the conviction, and in this context it is of note that Beloff JA in the Guernsey Court of Appeal Judgment of Taylor v. Law Officers, 2007-08 GLR 207 cited Guest v. Law Officers without demur. In the present case, the Jurats provided their reasons and, accordingly, we are in a position to consider whether the verdict was unreasonable, was one which could not be supported by the evidence or there any other grounds to conclude there has been a miscarriage of justice.
27. Nonetheless, it is one thing to examine the reasoning to ensure there is evidence to support it, and quite another to sift through the whole of the evidence and seek to work out for ourselves what we think the decision should have been or to evaluate the weight of the evidence which the Jurats found convincing. The latter exercise is no part of our function and would usurp the Jurats' role.
28. It is to be emphasised, furthermore, that if some aspect of the factual findings made by the Jurats is essential to their verdict, in the sense that the verdict cannot stand without that finding, then if the appellant can successfully demonstrate that the Jurats have erred in their reasons on that issue, so that that finding is unreasonable, then an appeal may succeed on that basis. But if all that an appellant can do is cast doubt on one or more of the supporting factual findings, and there remains evidence upon which the Jurats have relied and which could properly support a reasonable finding of facts sufficient to uphold the verdict, then the appeal is unlikely to succeed.
29. Focussing first on the period before the Defendants put on their PPE, in the Joint Agreed Statement prepared by Dr Jeffery and Dr Fegan-Earl dated 14 June 2024, they importantly set out that:
"III. It is clear from body worn video footage that Mr Irvine was suffering from a significantly impairment of conscious level and vomiting in the lead up to his cardiac arrest. The objective medical assessment of this is best addressed by clinicians.
[...]
XI. Any patient with a reduced conscious level is at greater risk of aspiration due to losing their ability to protect their own airway. The risk of aspiration of gastric contents increases as the level of consciousness decreases.
[...]
XIV. During the available footage Mr Irvine could be seen lying with his face in a pool of vomitus and vomiting with his hand up against his face. This represents a high risk scenario for aspiration of vomit.
[...]
XVIII. Prompt effective medical attention will always give a patient the best chances of recovery but it is not possible from the pathological findings to determine whether or not a different approach by paramedical staff would have altered the fatal outcome."
30. It was reasonably open to the Jurats to determine at [38] of the Sentencing Judgment that once the police had arrived and were near the top of the staircase, there was no danger involved in providing reasonable care to Mr Irvine and that neither Defendant had suggested that they were prevented by Mr Irvine at that stage from providing such reasonable care. This Court has watched the video footage. We are of the view that it was entirely sustainable for the Jurats to find, as they did, that from the point of the commencement of police body worn camera footage, reasonable care was not provided to Mr Irvine (see [16] and [18] above). The agreed evidence at trial supported the conclusion that no attempt was made to improve Mr Irvine's airway by positioning or moving him into the recovery position until Mr Le Sauteur finally took certain inadequate steps following the prompting of PC Wilton once he was appropriately clothed. Although no criticism was made by the Jurats of the Defendants prior to the arrival of the police officers, it is clear from their findings that the Defendants should have appreciated the urgency of the situation and, moreover, it is readily apparent that from the moment the police arrived it would have been possible for one of the Defendants to don PPE in order immediately to start attending to Mr Irvine's airway. Even taking the Jurats' lack of criticism of the Defendants before the police arrival at face value, it was clearly a reasonable conclusion that 9 minutes to put on PPE after that time was indicative of the lack of urgency which they found proved. Indeed, it might be said that the decision on whether the Defendants were to be criticised for their actions or lack of them prior to the police arrival was one which could reasonably have gone entirely the other way. This is particularly the case given the lack of risk to the Defendants if one of them left Mr Irvine's side as is well demonstrated by the fact that both of them were absent for a period prior to the arrival of the police officers. However, we accept without reservation that these were matters for the Jurats to determine.
31. The prosecution in their submissions and the Jurats by their verdict did not impose an illusory standard but instead reflected the evidence given by the joint experts as to the risks involved in leaving Mr Irvine in the position shown in the video footage, with all the dangers for him that that entailed. It was not contended, as submitted by Mr Jones, that Mr Irvine should be placed in an "exotic position"; instead, it was obvious (and the joint experts and the JRCALC Guidelines both indicated) that his evident airway problems should have been corrected immediately by a "head tilt, chin lift and jaw thrust" (see [16] above) - i.e. his head needed to be moved to avoid him lying with his face in a pool of vomit as well as vomiting with his hand up against his face, which represented a high risk scenario for the aspiration of vomit. The allegation the Jurats were influenced by hindsight in this and other regards is without any sustainable foundation.
32. Turning to the period once the Defendants had donned PPE, the attempt by Mr Jones to focus narrowly on the precise language used by Sir John, in particular the Commissioner's inclusion of the word "instead" as described in [23] above, leaves wholly unaddressed the broader reasons for the Jurats to reach the conclusions as to the inadequacy of the care provided. For this latter period, we consider it was wholly open to the Jurats to conclude, particularly on the basis of the agreed evidence and the video footage, that there was an evident lack of care for Mr Irvine and a notable lack of urgency in the steps taken to transport Mr Irvine to hospital.
33. We have already set out above at [16] aspects of the conclusions of Professor Charles Deakin and Mr Timothy Edwards. To this we add that they concluded at [2.5] of their joint report:
"Both Prof Deakin and Mr Edwards agree with the latter's statement that "On returning to Mr Irvine after donning personal protective equipment, I am of the view that signs of significant clinical deterioration were missed, resulting in some delays in undertaking time-critical interventions relating to airway management, oxygenation and ventilation. In my opinion these aspects of care would not be regarded as within the bounds of reasonable and responsible practice.""
[...]
"Prof Deakin also agrees with Mr Edward's statement that "Whilst I regard repositioning and tilting Mr Irvine's head as consistent with initial actions described in relevant guidelines, it is my view that there are subsequent delays collectively on the part of Paramedic Sutherland and Technician Le Sauteur to escalate airway management, oxygenation and ventilation immediately prior to cardiac arrest.""
34. We found Ms Littler's attempt for this period, following the donning of PPE clothing, to break down the relevant sequence of events into individual sections ultimately unhelpful, in that the video footage provided, by a significant margin, the best means of assessing whether timeous steps were taken. Even allowing for the need to remain calm, there was a strong basis for the Jurats to conclude at [24] that the actions of Mr Sutherland were non-existent: "he did not make any examination of Frazer Irvine to ensure that his airway was clear ... and (h)e then went to check in the flat to see what drugs had been taken by Frazer Irvine". We emphasise he spent two minutes on his own at the top of the steps while Mr Le Sauteur donned his PPE without taking any steps to clear vomit from Mr Irvine's face, and thereafter entered the property to search for drugs instead of giving immediate attention to Mr Irvine's seriously deteriorated condition, steps he candidly regretted during his evidence. Mr Le Sauteur acted in a lackadaisical manner, and the key steps he took at this stage were only initiated at the prompting of a police officer. Both Defendants' actions fell well below the standards that properly could be expected in these circumstances. Indeed, the joint experts set out their conclusions in this context as follows:
"Both Prof. Deakin and Mr Edwards agree with the latter's statement that " On returning to Mr Irvine after donning personal protective equipment, I am of the view that signs of significant clinical deterioration were missed, resulting in some delays in undertaking time critical interventions relating to airway management, oxygenation and ventilation. In my opinion these aspects of care would not be regarded as within the bounds of reasonable and responsible practice." Prof Deakin also agrees with Mr Edward's statement that " ... failure to make arrangements to record further clinical observations following the arrival of the police would not be regarded as within the bounds of reasonable and responsible practice."
35. These conclusions are of high relevance to this aspect of the appeal.
36. The Jurats were the judges of fact, assessing the expert and witness evidence they saw and heard, and as is common ground, they were correctly directed on the law by the Commissioner. We are unhesitatingly of the view that their verdict was reasonable as regards the Particulars a), d), f) and g); it was supported by the evidence; and there are no other grounds to conclude there has been a miscarriage of justice. Indeed, bearing in mind the body-worn footage and the agreed evidence this was an overwhelming case. We therefore dismiss these applications for leave to appeal.
