A decision of the Supreme Court of Queensland, Court of Appeal (R v Jones [2011] QCA 19 (18 February 2011) would, on first reading, cause some concern for paramedics.  The headnote (that is a brief summary published with the case) says:

“CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was an ambulance officer – where the appellant was found guilty of indecent assault while performing an electrocardiogram on the complainant – whether the trial judge erred in directing the jury that the appellant’s intention was irrelevant in determining whether the assault was indecent”

Lexis/Nexis, a commercial law publisher, provided an abstract of the case, they say:

“The Queensland Court of Appeal has allowed a paramedic’s appeal against his conviction of indecent assault on a patient. The paramedic had placed sticky pads on the patient’s upper and lower breast tissue while performing an electrocardiogram (ECG) on the patient. The Court found that the trial judge had erred in directing the jury that the paramedic’s intention had been irrelevant in determining whether the assault was indecent. Accordingly, the Court set aside the conviction and ordered a re-trial.” (Lexis/Nexis Legal Express, 22 February 2011).

 

Standing alone, these abstracts would suggest that the paramedic was prosecuted for making contact with the complainant’s breasts when performing an ECG.  If that was true, and if the contact occurred in the normal course of ambulance treatment, that would have serious implications for all medical and paramedical treatment.  Contact with the patient’s body, including areas that have a sexual connotation, are an essential and daily part of patient/carer contact.  How could such a matter ever have been the subject of a prosecution let alone a conviction and then appeal to the Court of Appeal?

Reading the judgment does, however, tell a different story.  What has to be stated up front is the defendant paramedic has had the original conviction set aside and a new trial ordered.  He retains therefore the presumption of innocence.  What follows is a discussion of the judgement in the Court of Appeal and that, in turn, is based on the facts as found by the trial court or inferred by the Appeal court.  Those factual findings will again be open to challenge in any re-trial (if there is one) and so nothing said here should suggest what findings of facts the trial court will find or that the defendant is guilty, or not guilty, of any of the offences charged.

According to the Court of Appeal, the appellant paramedic, working alone, attended the complainants house when she telephoned for an ambulance, complaining of chest pain.  The appellant arrived, took her blood pressure and an ECG which he determined was unusual.  The complainant was transported to hospital for further examination. After a period of one to two hours she was discharged, advised to seek further medical care from her own doctor, and transported home by the appellant.  None of that conduct was the subject of the complaint.

The complaint was made that the appellant paramedic returned to her home two days later and told her that he had been sent by the doctor to do another ECG (it should be noted that he denied that he said he had been sent by the doctor).  He then performed another ECG but this time put the electrodes on her breasts, at one point looking up her shirt as he did so.   He also, allegedly, brushed her breast with his wrist.  He provided no treatment or transport.

The inferences that lead to the complaint and the prosecution were that this conduct was not part of ambulance care, but was done for his sexual gratification.

At the trial, the judge had told the jury that the appellant’s motives were irrelevant.  If they found there was:

  1. Touching;
  2. Without consent or where consent was obtained by fraud; and
  3. The touching had a sexual connotation which could be inferred by the area of the body touched (ie the breasts);

Then the offence was made out and the accused was guilty, regardless of why he did it.

The jury convicted.  There was a touching; if the jury accepted that he said he had been sent by the doctor and that the procedure was actually part of medical care then her consent was induced by fraud.  The reference to the area of the body touched is consistent with an earlier case, R v Harkin (1989) 38 A Crim R 296, where it was said:

“It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl … that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent…”

However the Court went on to say:

“But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.”

On the appeal the appellant argued that his motives were relevant; the mere touching of the complainant’s breasts did not have an unequivocal sexual connotation and so the jury had to consider his reason for returning and placing the ECG pads on her.  In support he was able to bring evidence of his interest in ECGs and their understanding. He had followed up on other patients and discussed ECGs with the local doctors and undertaken further training in ECGs and their reading.  In the context then this fitted that further paragraph from Harkin (above), that is the “the assault alleged [in context] … does not unequivocally offer a sexual connotation” so the question of his intent became relevant and the Crown needed to prove that it was “accompanied by some intention on the part of the assailant to obtain sexual gratification”.

The Court of Appeal agreed that the trial judge had made a mistake; the appellant’s intention was relevant.  White JA (with whom the Chief Justice and Fraser JA agreed) said (at paragraph [32]) “The quality of “indecency” is pre-eminently a question for a jury and where there is evidence capable of casting doubt upon the sexual quality of the alleged assault, the motive of the alleged offender must go to the jury for their deliberation and decision.”

In the context the nature of the touching was ambiguous, ie not clearly sexual, so the jury had to consider the appellant’s motive for going to the house and applying the ECG pads.  If they were satisfied beyond reasonable doubt that it was for sexual gratification he could be convicted; but if they had a doubt he was entitled to that doubt and an acquittal.  The jury had not been instructed in those terms and so a retrial was required.

Discussion

Working alone must be difficult for paramedics particularly when people and the media are on the lookout for any suggestion of sexual impropriety.  The summary of this judgement would cause great concern if there was a suggestion that applying ECG pads to a female patient complaining of chest pain could be an indecent assault.  That is not, however, what the case was about.

The unusual circumstances of this case were that the paramedic returned two days later, took it upon himself to do a further ECG and placed the pads on the patient’s breasts.   (There was detailed discussion about whether the placement was reasonable or to be avoided.  Some witnesses said it was clearly the wrong place to put an ECG to get an accurate reading, others were not so categorical about that).

One has to commend a paramedic for taking an interest in attempting to continue his professional education. Without in any way commenting on the appellant’s motives in this case however, one has to think that there would be more appropriate ways to do that.  Whether one was following up for interests sake, or because he was really concerned about her medical condition and the anomaly that was first observed, that would need to be explained to the person to ensure that they knew why they were being examined and could give effective, informed consent.  Telling a lie (and remember it is disputed whether he said he had been sent by the doctor) can never by justified.

It would certainly have helped, given there was no urgency, if he did  wish to follow up on the patient, if he discussed it with a colleague, made a record of the visit and did not travel alone.

Another context of this case needs to be noted.  It occurred in a country town where paramedics were rostered to work alone.  We can infer there was a hospital and private medical facilities but it is known that in towns where these facilities may not be available, paramedics are taking a larger role in providing community health services (see for example the NSW Ambulance Extended Care Paramedic program).    It may be that a paramedic who is aware that a patient has an anomaly may well be the best person to follow up and provide further care, but that issue was not explored.  In this case the patient was told to follow up with her doctor and there was no evidence that she could not do that or that she asked for the paramedic’s assistance.  In a different context the lack of alternative health care options may well be relevant but if the care that is being provided is part of an extended care programme, that would need to be fully documented and in accordance with organisational protocols.

In the Court of Appeal it was noted that the paramedic was not charged with common assault, that is an unlawful touching without consent or consent obtained by fraud, which may well have been established even if his motive was to follow up on her and see if there was any further anomaly in her ECG.

There are in fact detailed protocols and laws in place governing research and patient consent.  It is not appropriate to touch people or to ask for their consent where the motive is not to act in their best interest.   If the motive here was further learning about ECGs, that should have been explained otherwise any consent obtained is at least unethical, if not legally irrelevant.

Lesson learned

If you do want to follow up on a patient, ideally do so in a way that is consistent with your service protocols.  In any event, make sure that the patient knows why you are there, that your colleagues know what is going on and the reason for the visit is documented.  Anything less will at least create suspicion.