The jury in the trial of a GP accused of the manslaughter of her profoundly disabled daughter has been told to leave all emotion to one side and approach the case in a cool and collected manner.
The instruction was given by Judge Patrick McCarthy after closing arguments were made by the prosecution and defence counsels at the Central Criminal Court.
Bernadette Scully, from Emvale, Bachelor's Walk, Tullamore, has denied the manslaughter of her 11-year-old daughter, Emily Barut, by an act of gross negligence on 15 September 2012.
The prosecution alleges she gave toxic amounts of the sedative chloral hydrate.
In her closing argument prosecuting counsel Tara Burns told the jurors they were not being asked to determine whether or not Dr Scully was a good mother.
She said no one was questioning her love and attention to her child over the years; that was not at issue.
What is at issue was the date of 15 September 2012 and the events of that date, she said.
The prosecution was not contending that Dr Scully intended to kill her daughter or that her actions were premeditated, that would be a murder charge.
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Ms Burns said the charge was one of manslaughter and the prosecution must prove the accused had a duty of care which was breached by an act of gross negligence.
She said the prosecution needed to prove that a reasonable person with the accused's characteristics would have realised their actions would have carried a high degree of risk.
As a mother and a GP, Ms Burn said Dr Scully had a duty of care and would have had knowledge of the safe dosage of chloral hydrate.
She said in her voluntary interviews, given before any post-mortem results were complete, Dr Scully told gardaí "I gave her too much" and that chloral hydrate could have contributed to her daughter’s death.
Ms Burns said the prosecution did not have to prove that chloral hydrate was the only cause of death but was a substantial cause of death.
The level of the sedative found in Emily's system was ten times the therapeutic level and State Pathologist Marie Cassidy had said in her opinion the cause of death was chloral hydrate intoxication.
While Prof Cassidy said any one of Emily's medical conditions could also have caused her death on any given day, the State Pathologist did not demure from her opinion that the cause of death was chloral hydrate.
There had been a suggestion by the defence that Emily might have died from an epileptic fit but the presence of red neurons found in brain tissue indicated that she had survived that seizure, Ms Burns said.
She said the evidence had shown that Dr Scully had an absolute rule that no more than 20mls of chloral hydrate should be administered in 24 hours and on 15 September 2012 she had "broken all her rules" and administered at least 32mls in a nine-hour period.
She said there were even question marks over that estimate because in her voluntary interviews days after the event she said three times she did not know how much she had given.
She said by 6am that day she had already exceeded the most she would ever have given.
She said Dr Scully was acting as a GP that night and medicine has to be respected - limits and time limits and quantities are important.
Ms Burns also said Dr Scully's conduct after her daughter's death did not equate with a belief that she had died from natural causes.
She said the attempts to take her own life and the note she wrote was evidence of acceptance of responsibility for Emily's death.
She said Dr Scully had not told her partner that Emily was dead in the bedroom when he returned and this conduct should also be looked at by the jury.
"I have to submit to you that she was grossly negligent and have to urge upon you to return a guilty verdict in this case."
Defence tells jury of 'emotional rollercoaster'
In his closing argument defence counsel Ken Fogarty told the jury there was not a single person in the country who envied them for the decision they now have to make.
He said the "emotional rollercoaster we went through as a group" was nothing compared to the position Dr Scully finds herself in.
He said nothing could ever prepare you as a human being not only to lose someone you love but to face an allegation that you killed her.
He said Dr Scully had to cope with her profoundly disabled daughter's episode of crying every moment of every day."It was not 9-to-5, Monday to Friday, it was every moment of your life in addition to everything else you have to do.
In addition to that she was left to do it alone, on top of everything else in her life that she had to deal with.
She had a relationship breakdown, an ex-husband who ran up debts of €1 million and then left her with the child conceived on a third attempt at IVF. He said she was "falling asunder".
The prosecution's suggestions were based on a "very loose examination of the life of Emily and Bernadette", he said.
He said when Emily was younger doctors had advised against certain procedures, suggesting it was the "survival of the fittest". This was effectively saying leave her to die but Dr Scully had refused.
There were thousands of times when Emily's life could have ended but she had been there to make sure it did not happen.
He reminded the jury that Dr Scully had said people were not queuing up to help when you have a child with special needs. It was being suggested that because she had a duty of care it imposed a criminal liability.
On the day of Emily's death she had been screaming and crying, morning, noon and night and even when she did settle her mother was so exhausted she could not sleep, he said.
"It's incredible to think that we as a society can dump all the responsibility on a single woman and when it goes wrong say you killed her," he said.
He said Dr Scully knew more about hospitals and what they meant for Emily than anyone.
He told the court it was clear beyond a shadow of a doubt that the only reason you would give more of a particular drug was because the initial dose was not achieving the desired result.
If it was in her mind to do away with Emily she could have done it in a far more expedient and covert way, he said.
Even accounts given about how she was treated by emergency medical staff that day after indicated she had been overdosed with adrenaline because "mistakes are made by well-meaning people".
He said Dr Scully had gone to the Garda station voluntarily and given and statement when she could have exercised her right to silence. "She was providing almost the entire narrative of what happened that day," Mr Fogarty said.
He said the prosecution and the gardaí had completely ignored the fact that Emily could have died from a terminal seizure at any time and that the State Pathologist had said any one of her medical conditions could have killed her on any given day.
He said there was no formula available for the amount of chloral hydrate resulting in the trichloroethanol found in Emily's system and a toxic dose did not mean fatal.
Dr Scully's attempts to take her own life and the note she wrote was not an admission of responsibility, but someone who had gone beyond asking for help.
He said: "it seems to me you will have the hardest job of any jury. It has not just been my privilege to represent her but an eye opener in a country like this."
He said when you go to such lengths and when the child dies you are accused of killing her.
He said he believed the case would lead to a debate, depending on the jury's decision, but it was a "pity it comes down to the use of one word or two".