Jury takes just four hours to find doctor not guilty of manslaughter of disabled child, writes Natasha Reid

AN Offaly doctor has been cleared of the manslaughter of her profoundly disabled daughter by giving her too much sedative.

Dr Bernadette Scully, 58, was charged with unlawfully killing Emily Barut, 11, at their home at Emvale, Bachelor’s Walk, Tullamore.

It was alleged that she killed her by an act of gross negligence involving the administration of an excessive quantity of chloral hydrate on Saturday, September 15, 2012.

The GP had pleaded not guilty and went on trial at the Central Criminal Court two weeks ago.

Emily had microcephaly, severe epilepsy, and couldn’t speak or move. She had been in pain for the last eight days of her life, having had a medical procedure to replace the tube into her stomach, through which she received fluids and medication.

Ms Scully said she had administered chloral hydrate when her daughter became upset at 2am and 6am that day. She said her daughter then had a massive fit after 11am and she administered more.

She said that in those nine hours she had given more than double the quantity she had ever previously given in 24 hours. She told gardaí she knew she had given too much.

Emily died and Ms Scully tried to take her own life twice, the second time by overdosing on medication for which she had written a prescription in her elderly mother’s name.

She had sent her partner to fill the prescription, its purpose unknown to him. He found Emily dead and Ms Scully unconscious that evening.

Laboratory tests showed that Emily’s blood contained 10 times the therapeutic levels of the chloral hydrate’s metabolite and a post- mortem found she had died from chloral hydrate intoxication. The State Pathologist said that, potentially, those levels were fatal.

However, Professor Marie Cassidy said Emily had suffered a seizure six to eight hours before her death and that any of her illnesses could have contributed. She also said that she had been at risk of a potentially fatal seizure at any time.

The State argued that the chloral hydrate was a substantial cause of death. It did not have to prove it to be the only cause.

Tara Burns SC, prosecuting, said it wasn’t in doubt that Ms Scully loved her daughter very much and cared for her to the highest level.

“What this case is about is the events of a specific day when chloral hydrate was administered,” she said, noting the levels Ms Scully had said she had given.

“Any reasonable person in the situation Ms Scully was in, a doctor, would have realised that administering that level of chloral hydrate carried a high degree of risk of causing a substantial risk of injury to her daughter,” she said.

Ms Scully’s legal team argued that there was a clear indication in the postmortem results of the possibility of a terminal seizure and Kenneth Fogarty SC said the traumatic event that had led to the maladministration alleged was indeed a massive seizure after 11 o’clock.

He said it was clear the only reason a person would administer more chloral hydrate was if the initial dose was not achieving the desired result.

He pointed out that other anticonvulsant medications had life-threatening effects on Emily.

Mr Justice Patrick McCarthy told the jury it had to be satisfied that the accused had failed to observe the ordinary and necessary care expected of her to the point that she was negligent in a very high degree.

He said it did not matter what the accused woman’s state of mind was.

The seven women and five men began considering their verdict on Thursday morning.

They returned to court with their unanimous verdict of not guilty after four hours and two minutes.

Gasps were heard at the verdict announcement. Ms Scully acknowledged family members, some of them weeping.

She and her family embraced before leaving court, as wellwishers gathered to congratulate her.

The Partner - ‘I don’t think she saw her life without Emily’

Andrius Kozlovskis, partner of Bernadette Scully. He said Emily was in constant pain and really suffering.
Andrius Kozlovskis, partner of Bernadette Scully. He said Emily was in constant pain and really suffering.

‘I don’t think she saw her life without Emily’

Bernadette Scully’s partner recalled his horror at finding 11-year-old Emily cold in her bed and being unable to wake her mother.

Andrius Kozlovskis said there was never a suggestion of suicide or that their lives would be better without her.

He told of how he lived with Ms Scully and her daughter and had an active role in caring for Emily.

He said Emily was not well and not sleeping in the weeks before her death. She’d had surgery to replace the tube through which her medicine was delivered into her stomach.

“She was in constant pain and really suffering,” he said.

He outlined how Ms Scully had also been under severe pressure in the six months before her daughter’s death.

“She suffered burnout,” he said, adding that she would never just stop and mind herself.

He said she’d also had surgery to check for cancer a few days before Emily’s operation. She went on call as soon as she woke up from the full anaesthetic.

“There was no-one to replace her,” he said.

He said Ms Scully came to him on the Saturday morning that Emily was found dead.

“She was crying and said Emily wasn’t good,” he recalled.

He then attended a memorial service for Ms Scully’s nephew, who had died of sudden adult death syndrome.

“Bernie was very sad she couldn’t go,” he explained.

He said Ms Scully seemed very distressed when he returned that afternoon and told him Emily hadn’t slept and had a fit. She sent him to the pharmacy for medicine.

“I came back home and Bernie counted the tablets and said there wasn’t enough, and sent me back for the rest,” he said.

When he returned from the pharmacy, she asked him to go out to get something to eat. He got into her car, where he found a brown envelope.

“At that point, Bernie just ran from the house,” he said. “I stopped. There was a commotion. Bernie grabbed the envelope.” He said he had read the top two lines of what was written on it.

He said he tried to convince her to eat something when he returned with the food but she was tired and had only a few chips.

“She lay down on the couch. She was exhausted,” he said. “I covered her until she fell asleep.” He remained in the kitchen for the rest of the evening so he could keep an eye on both of them. He had a monitor for Emily, whom he hadn’t seen at all that day.

“If I couldn’t hear the sounds, that means she’s asleep and everything’s ok,” he explained.

He went to check on his partner when her sisters called to visit but didn’t wake her.

“I found her head hanging down off the couch so I picked her head up,” he recalled.

He went to Emily’s room around 9pm to get her up to give her medicine and a drink.

“I couldn’t hear anything,” he recalled. “I put my ear towards the pillow. I still couldn’t hear anything.

“Then I touched her and she was cold and I panicked and ran back to wake Bernie up,” he continued. “She wasn’t waking up. I rang an ambulance. I understood something had gone very wrong.”

He said he’d noticed that Emily had some froth on her lips so he understood she’d had a fit.

He was asked about a bag he had given to gardaí a few days later.

“I found a bag of stones, rocks from the garden in the car,” he said, identifying it in a photograph.

Under cross-examination by Kenneth Fogarty SC, defending, he said he experienced shock and horror on finding Emily that night.

He said there was never a suggestion of suicide from Ms Scully.

“She would never even dream about it,” he said.

Having described in detail the hours it took to feed and care for Emily every day, he was asked if they had ever discussed that their lives would be better without Emily. He said they had not.

“She was part of our life,” he said.

“How much?” he was asked.

“All of it,” he replied.

He said his partner would never hurt Emily.

“I don’t think she saw her life without Emily,” he said. “Emily was her number one priority.”

The Sister - ‘She just wanted that baby so much’

Teresa Scully: All her sister did all her life was ‘give, give, give’.
Teresa Scully: All her sister did all her life was ‘give, give, give’.

Teresa Scully said her sister was a pillar of strength, who had helped their mother care for her younger siblings when their father died.

“All Bernie ever wanted to do was to have a little baby of her own, and there was no-one more deserving because all she had done all her life was give, give, give,” she said.

She said her sister and her husband had gone through a number of IVF treatments, with the third resulting in the pregnancy with Emily.

“She just wanted that little baby so much and she was over the moon. The sun shone over her and no-one could darken her days,” she said.

She said that soon after she was born, it was apparent that Emily had some difficulties and she was eventually diagnosed with microcephaly.

“Her world went black and she was devastated by the news that her little baby was going to struggle in life,” she said.

“Bernie’s instinct was to care. With her love, compassion and devotion to that little baby ... she decided to use her expertise as a doctor to improve her life, her outcomes,” she said.

She said she would spend up to two hours several times a day trying to feed Emily. However, at any moment, Emily could gag and all that food and nutrition would come back up.

She said she went to a number of clinics in England to try to learn more.

“If she came away with one little bit of information to improve Emily’s life, she’d be happy,” she said, mentioning that the pathologist had noticed no contractions of her limbs despite lack of movement.

“That’s all down to Bernie,” she said.

Ms Scully said she had seen Emily have seizures when her sister and niece had gone to stay with her and her three children in England following the death of her husband. He had died in 2008 while serving in Afghanistan.

“It was very frightening, very severe, very distressing for Bernie,” she said.

“As a doctor, as a human being, she could never bear to see anyone hurting,” she said.

Ms Scully said that the time leading up to Emily’s death was difficult and exhausting for her sister.

“She was already sleep- deprived over many years,” she said.

She told the court about finding a bag of wet clothing in her sister’s bedroom a few days after Emily’s death and she had handed it over to the gardaí.

“I was very concerned about the wetness of the clothes,” she said.

Testimony - ‘My aim was to keep her alive’

Bernadette Scully (blue scarf) with her partner, Andrius Kozlovskis (back left) leaving court after the verdict.
Bernadette Scully (blue scarf) with her partner, Andrius Kozlovskis (back left) leaving court after the verdict.

Bernadette Scully said she did not make a conscious decision to take her 11-year-old daughter ‘out of this world’ when she gave her too much sedative.

The 58-year-old told gardaí she had given her child double what she would have normally given her in a 24-hour period, but said her child’s death was not premeditated.

The court heard Emily had severe epilepsy, microcephaly and cerebral palsy. She had the mental age of a six-month old, and couldn’t move or speak.

Ms Scully told gardaí her daughter had been in a lot of pain for the last two weeks of her life, after a procedure to replace the tube into her stomach through which she received fluids and medication.

It was just the two of them in the house. Her partner was at her nephew’s funeral.

She said she had given her chloral hydrate when she became upset at 2am and 6am, and had given it again when she had an ‘unprecedented’ seizure around 11am: “My whole aim had been to keep her alive and keep her going.”

She told gardaí that she had never given that much chloral hydrate before and accepted she gave too much: “What was I to do, stand there and watch her fit?”

She said ‘her little lips went blue’ when she gave her the final syringe: “I’m not sure how long it took. It seemed like an eternity. My hands were shaking. I took her up in my arms and she died in my arms.”

It was put to her she was relieved when it was over, but she said that’s not how she felt: “I wanted to go with her. Even to this day, I didn’t want her to be on her own.

“At the time, I didn’t stop to think. I had nothing else to give her.”

She said she hadn’t slept in eight days and that Emily was roaring: “I just saw my child having a fit. I was frightened and wanted to stop it. I wasn’t a doctor that morning.”

She said she now knows she wasn’t able to look after Emily that morning. Her reserves were gone.

It was put to her that, as Emily’s doctor, she had been reckless. She said: “It was a larger dose than I had ever given her, but they were different circumstances.”

It was suggested that she was as low as she had ever been that morning, that Emily was living in extreme pain, and that she had made a conscious decision to take them both out of this world.

The court has already heard that Ms Scully made two suicide attempts that day: “I did not make any conscious decision to take Emily out of this world. I did make a conscious decision after Emily died to take myself out of this world,” she said.

There was a note written by Ms Scully found at the scene.

She denied writing it before Emily died. It was put to her the note suggested premeditation.

She said she wrote the note after the child had passed away.

“It wasn’t premeditated about taking Emily’s life,” she said, saying she loved the child “more than life itself”.

Emily didn’t cry when she was born but the doctor told her she had a lovely, quiet, baby girl.

Emily had difficulty feeding and when she was two weeks old, she fell asleep and wouldn’t wake up.

Ms Scully drove her to hospital in Dublin and said she fell into the arms of the doctor she met in Crumlin and began crying.

Measurements were taken and tests carried out.

“It was awful to watch her going through that,” she said.

A doctor then showed her a centile graph for measurements. “Emily was about this much below the graph,” she said, indicating with her fingers.

“I fell back into the seat and I just said: ‘Oh, my god’. When I saw it, I could understand,” she recalled.

Another doctor told her that Emily’s head was significantly small.

“He said: ‘She’ll have severe mental retardation. She’ll probably develop epilepsy. She may not walk. She may not talk. She may have difficulty hearing’. This all just came out just like this. He said a few more words and he just left,” she recalled.

“He came back into the cubicle and he said: ‘I mean severe retardation, not mild’. My world just fell apart… I just said: ‘You don’t know. She’s too small. You can’t know all that’.”

She described the following years with Emily, including her development of epilepsy and having 30 to 50 small fits a day at one stage.

She was asked about the hours leading up to her death on that Saturday.

She said she had been off work for six months, but had returned to work shortly before Emily died.

The Friday was her second day back.

She said Emily went to sleep about 9pm and Ms Scully went to sleep in the bed beside her about 11pm or 12am.

She said: “She woke at 2am, upset, crying. It was building up to a crescendo. I got her in beside me, massaged her, walked around a bit with her. She liked to have her head in my chest.”

She said she couldn’t settle her, and she was beginning to cry louder and louder: “I said I’d have to help her rest.”

She said she didn’t want to give chloral hydrate, which she kept for emergencies, without having tried other things.

She said she gave it to her at that stage and Emily fell asleep.

She said she had given her a 10ml syringeful: “I didn’t sleep after that. I cried. I just felt so sorry for the poor little thing. It was hard to sleep when she’d be in beside you but she just needed warmth.”

She said Emily was whimpering in her sleep and woke again around 6am, and was really upset: “She was sort of stiffening a little as well. You might have said she was fitting at the same time. She was crying and distressed.”

She said on that night the cry was like that of a baby with colic, who couldn’t be consoled. She did all the ordinary things again to try to comfort her: “Ordinary things didn’t do anything for Emily. They wouldn’t stop it. The consultants couldn’t stop it. I gave her some more chloral hydrate. I think it was about 7ml.”

She said after 11am, Emily cried loudly again and she again tried to comfort her: “It was just relentless. You’d have a pain in your brain. I was so tired, I thought, what else can I do? She let out a really odd shout out of her. Her little body arched back. She really started to stiffen and jerk. The bed was shaking. That wasn’t normal for Emily,” she said.

She remembered what a consultant had said about chloral hydrate being an anticonvulsive, as well as a sedative: “It wasn’t a normal fit. It just wasn’t and it wasn’t stopping. Her little face was contorted. I didn’t know what was going on.

I took the bottle with me and I gave her 10ml and waited a few minutes. The seizure continued all the time. You’d think it’s an eternity.”

She said the medicine didn’t change it: “That’s what really panicked me. After a few minutes, when it was still going, I gave her some more.” She said she thought she gave 5ml at that stage: “Everything went quiet and her little lips went blue on her little face,” she said. “I just took her up in my arms and I just held her and it was just so quiet. I knew she wasn’t breathing. I said: ‘Em, please don’t go’.”

She said they had always been together: “She was part of me. We went everywhere together. She was the little baby I always wanted. I knew what resuscitation was about and Dr Sheridan had said to me years ago about Emily not being for resuscitation. Her life was miserable at times but we did have some lovely times.”


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