Today’s correspondent asks:

Are there any lessons to be learnt for Paramedic practice in Australia following the conviction of the two Paramedics in Colorado involved in the death of Elijah McClain?

They give the following links to news stories to provide the background:

The ABC (US) news story says:

A jury found two Aurora, Colorado, paramedics charged in connection with the 2019 death of 23-year-old Elijah McClain guilty on Friday of criminally negligent homicide.

Peter Cichuniec and Jeremy Cooper were accused of administering an excessive amount of ketamine to sedate McClain after an encounter with police on August 24, 2019.

Cichuniec was also found guilty of assault in the second degree unlawful administration of drugs.

The deceased was stopped and forcibly restrained by police. The fact that the police had no grounds for that action could not have been known by the paramedics. The ABC (US) report continues:

When EMTs arrived at the scene, McClain was given a shot of 500 milligrams of ketamine for “rapid tranquilization in order to minimize time struggling,” according to department policy, and was loaded into an ambulance where he had a heart attack, according to investigators….

The prosecution argued that Cichuniec and Cooper failed to give McClain adequate medical assessments before administering the ketamine when they arrived at the scene.

“Didn’t ask the police a question about it. Didn’t speak a single word to him. Didn’t get a piece of equipment out of the bag. Didn’t kneel down to look at him. Didn’t lean over to look at him. Didn’t put a single finger on him. Didn’t take a single vital sign,” a prosecutor said in closing arguments.

“They knew nothing. They learned nothing. They asked no questions. They didn’t care,” the prosecutor added…

“Elijah is on the ground, barely moving. He does not need to have struggling, minimized,” prosecutors said. “There was not one reason that the defendants needed to make any one of these terrible decisions. There was no justification not to assess Mr. McClain. There was no justification to give someone who is not moving a sedative. There is no justification to ignore a lifeless patient for six minutes before you try to take his pulse.”

McClain weighed 143 pounds, but was given a higher dose of ketamine than recommended for someone his size and overdosed, according to Adams County coroner’s office pathologist Stephen Cina.

Cooper’s defense attorney argued there is a lack of protocol for the situation these paramedics found themselves in, citing the aggravated police presence, the way paramedics say they had to estimate McClain’s weight with police on top of him, the way to determine who had authority at the scene, and the protocols to accurately assess if a patient is suffering from excited delirium…

“There is no protocol in effect in August 2019 that tells paramedics: ‘What do you do when police are all over a potential patient.’ How do you deal with that? There’s been no training there’s-no protocol,” the defense said.

The defense also addressed the six minutes in which paramedics neglected to check McClain for a pulse following the ketamine injection, arguing that McClain was still in the hands of officers on the scene.

“Six anxious minutes for that. Six excruciating for Mr. McClain — who was still being manhandled and restrained by not one, not two, three officers,” the defense said.

There is an offence in Australia of manslaughter by criminal negligence (Wilson v R (1992) 174 CLR 313). I have explained the difference between criminal negligence and civil negligence in earlier posts (see for example Professional discipline after serious criminal conviction – lessons from the UK (January 29, 2018)).

It is hard to draw lessons from jury trials as jury’s do not give reasons and even more in Australia than the US they do so in private. Australian jurors cannot comment to the press in the way it seems that US juries do.  We therefore do not know what evidence was accepted and what was not, how the juries assessed the defendants’ credibility etc.

In Australia negligent manslaughter is established where the death was caused ‘in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment’ (Nydam v R [1977] VR 430).  The question for paramedics wondering whether there are any lessons for Australia is to ask whether the conduct of the two Colorado paramedics meets that test.

If an Australian paramedic overdosed their patient, gave a sedative when the patient ‘was on the ground, barely moving’, conduct no examination of the patient and ‘ignore [their] lifeless patient for six minutes before you try to take his pulse’ would that be ‘such a great falling short of the standard of care’ with ‘such a high risk that death or grievous bodily harm … that the doing of the act merited criminal punishment’?

Police and paramedics need to work together but paramedics also need to advocate for the patient. They may not be able to stop the actions of police, but they may be able to warn the police and urge them to step back so they, the paramedics can do their job. Dealing with police who may be anxious to make an arrest may put pressure on paramedics – particularly if they see themselves are part of the same ‘thin blue line’ – but it does not detract from the paramedic’s duty to their patient (see An earlier (2002) Victorian case on ambulance and police negligence (December 26, 2016)).

What is negligent depends on all the circumstances. Some may think that the circumstances, in particular the police actions, justified the paramedic’s actions (or inaction) or stopped the paramedics doing their job. There is no lesson in that however, that just means you would disagree with the jury’s verdict but without hearing the evidence. The jury did not accept that submission.

Conclusion

Negligent manslaughter is an offence known to Australian law. The circumstances described in the news reports might be sufficient to lead to a conviction in Australia, but it would depend on all the circumstances and the view of the jury.  We cannot really draw lessons from media reports on cases as they report the various arguments but not how the evidence was perceived by the jury. 

Given that the jury returned a conviction, they found the allegations proved beyond reasonable doubt.  The fact that others reading the media reports may think that is a wrong verdict is beside the point. Given that the allegations were established it is up to paramedics, not me, to identify what lessons they think can be learned about how to treat a person in custody and how to deal with overly aggressive policing.

Remember too that jury verdicts, whether from Australia or the USA, do not create a precedent.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.