WA Negligence - Liability of Drug Overdose?

[JOW]

My daughter died after using methadone with a companion.

Her companion admits that he knew she was overdosing (he has been involved in several others) but rather than call an ambulance he put her in the recovery position and went back to sleep for quite some hours. After finally waking he found my daughter stiil unresponsive so he forced her mouth open and administered another drug, which he stated he thought would help her.

After waiting nearly another two hours he left her, even though he had seen no improvement and admitted her breathing was very laboured.

After almost another two hours he phoned a gentleman staying at the house and asked him to check on my daughter. He found her dead and paramedics were unable to revive her.

She died from broncho pneumonia as a result of opioid toxicity, so not technically a drug overdose. She basically drowned because of the many hours she was left unassisted with a depressed respiratory system caused by the opiates.

This man was only charged for supply of the first drug, methadone. No charges were laid for administering the second drug while my daughter was unconscious. This drug by the way, toxicology determined to be a lethal dose.

I've been told by detectives who apparently have consulted widely that a case of criminal negligence - manslaughter would unlikely be successful in court because a) the man had no duty of care for my daughter and b) being a drug user it would be impossible to deem him a 'reasonable person'.

I believe a duty of care can be established because he was an occupant of the house (have seen a precedent but sorry I can't cite it atm). I also believe he can be seen as reasonable in that he was able to go about his business on that day with no apparent problems.

I also believe he was well aware of the severity of my daughter's condition. Not only has he been involved in several other overdoses as I've stated, but has attended two naloxone training courses at which he was trained in the signs overdose and what to do and not to do. I also believe, given many years of involvement in the drug scene, that he would have been well aware that the second drug would not help my daughter and at the high doses given, would actually be lethal.

He may well have got away with murder.

I have requested a coronial inquest.

I would be grateful for any help.

Nothing will bring back my daughter and I'm not about vengeance. I just hope that something can be done to avoid this happening to anyone else!

I'm also interested in any opinions regarding Duty to (easy) Rescue laws such as those in the Northern Territory which I believe were brought in to combat just this sort of thing.

Thanks.

 

[Rod]

What state did this happen in?

 

[Iamthelaw]

I'm sorry for your loss. Please see my responses below:

I've been told by detectives who apparently have consulted widely that a case of criminal negligence -

Firstly it's not up to the detectives (police) it would be up to the DPP to bring about the most appropriate charge. Have you spoken with them directly?

I've been told by detectives who apparently have consulted widely that a case of criminal negligence - manslaughter would unlikely be successful in court because a) the man had no duty of care for my daughter and b) being a drug user it would be impossible to deem him a 'reasonable person'.

Working backward:

Re: b) There is no requirement that the accused be that of a reasonable person. I suspect that they're confusing the notion to that of the standard of criminal negligence with regard to the breach of duty owed; which requires the accused's act or omission to fall so far below the standard of care a reasonable person would have exercised.

The test is an objective one, meaning the jury must compare the act of the accused against the behaviour expected of a hypothetical, reasonable person in the situation of the accused...

Re: a) Whether a duty was owed would be the key issue - Manslaughter by criminal negligence requires a duty of care to exist between the accused and the deceased, ordinarily meaning that the accused must have owed a legal duty to take reasonable care and to avoid harm to them.

There was a closely related case a few years ago that involved methadone supply and a charge of manslaughter that reached the High Court. If you're interested in reading more about it, I've placed a link to it here. The citation is for your reference is: Burns v The Queen [2012] HCA.

Briefly, the accused supplied methadone to a man who subsequently died. The prosecution argued that the accused was guilty of manslaughter either by unlawful dangerous act or criminal negligence. In that the accused's actions in supplying him the methadone constituted an 'unlawful and dangerous act' which brought about his death or that the accused had acted negligently in failing to provide medical assistance for the deceased after it was clear that they were suffering a bad reaction.

The High Court rejected this and held that drug dealers do not owe their customers a legal duty of care, even if the buyer consumes the drugs in their presence. The Court also held that supplying a prohibited drug does not amount to a 'dangerous act', finding that it was the deceased's decision to consume the drug that constitutes the dangerous act. This also reflects the UK's position in similar instances (See R v Kennedy No 2).

However, the similarities in your particular case and the case example I've provided above end more or less at the basic fact of a person supplying methadone with tragic consequences. I suspect Burns would have been decided differently if the deceased was forced to consume drugs, unaware that they were consuming drugs, or if the supplier mixed a dose they knew would be lethal.

You say that this person administered a drug to your unconscious daughter - a lethal dose at that - If it could be proven that the administration of this 2nd drug was the direct, substantial or operating cause of her actual death - Then I would be inclined to say that there is merit in pursuing manslaughter (not by criminal negligence though).

 

[JOW]

Thank you very much for making the effort to respond! I'm floundering here and you may never know how much your response means.

It will take me a bit to get my head around what you have written but I can tell you that I have not spoken directly with the DPP, only told by the detectives (yes, police) that they have run the case by the senior DPP in my state - decision - No case.

I have cited the Burns case to them.

Thank you so much.

 

[JOW]

What state did this happen in?

Western Australia

 

[JOW]

I've questioned the coroner regarding whether it could be determined that the second drug was responsible for her death but received no answer as yet. I suspect it will be impossible to say.

I also understand from what the detectives told me that the man would be protected from prosecution because he was acting as a 'good samaritan' in that he states he gave her the second drug to my daughter while she was unconscious in the belief it would help her come out of her overdose. This is hard for me to believe but of course there isn't a lot I can do to prove otherwise.

He did mix the initial dose of methadone but again, how do we prove he knew it was too much.

He would have also injected her, which he denies doing, so yet again have no way of proving that.

This case was only presented to the DPP because I pushed and pushed them to look at it from every angle. In the beginning the detectives decided it was a tragic accident and no charges could be laid.