March Luncheon with Dr Harry Blutstein

Wednesday 1st March

Dr Harry Blutstein spoke about his latest book, How can they call it Murder. The book is about the murder trial of Barbara Eckersley. At the luncheon, Harry provided a back story of the victim, the accused and explored the legal and moral issues that this case had raised.

An Overview on Euthanasia

A few years back in April 2021, I heard about a murder trial of Barbara Eckersley in New South Wales, who was charged with murdering her 92 year old mother, Dr. Mary White by feeding her a dose of substance called Nembutal (green dream drug).

There has been a debate on the practice of euthanasia with laws in every state in Australia but these laws only go so far — this is about the end of life, except that it’s been hobbled by a range of conditions that makes it very difficult to access. As a result, they are based on a particular principle and that is ‘sanctity of life’, a religious term meaning God has given life and only God can take it away. So in effect we might be living in a circular society but abiding by this principle. There is an alternative principle in liberal society – that we shouldn’t have the state telling us when to die, it is our choice as adults. People who are desperate and those dying in agony take the law in their own hands, as Barbara Eckersley did in August 2018. She ended the life of a loved one and was charged with murder. How could an act of kindness be treated as Malice aforethought. (Malice aforethought is described as a criminal act that was deliberately planned to cause harm to someone.)

The trial was held in Goulburn, NSW, in April over three weeks. It was fair to say that both the defence and prosecutor were very civilised and it was more as if the prosecutor was very understanding of Barbara’s situation. I would like to quote an opening by Crown prosecutor Paul Kerr, who described the charge that Barbara’s action ‘was done with love and compassion and of course in pain and sorrow. It was very compassionate and sympathetic, but nevertheless unlawful.’

Paul Kerr told the jury that ‘murder’ was an ‘emotionally charged word’, which did not accurately describe Ms Eckersley. Mr Kerr described Ms Eckersley as a loving and caring daughter, who was facing trial because she did not have a lawful reason for her actions that required planning and deception.

Barbara was 68 years old at that time. Her mother, Dr Mary Elizabeth White (AM), was a renown environmental scientist and author, notable for collecting numerous plant fossils for the Australian Museum, describing a number of new plant fossil species, and authoring several well received, large format science books for the general readership and successors. Had she not died the way she did, she would have received glowingly, one of Australia’s female greatest scientist Geology journal. It was however, a sad ending. This case was prosecuted as a murder trial, so the barristers were only interested in very narrow criterias - Did she plan to kill her mother? Did she intent to kill her mother? Did she succeed in killing her mother?

The trial also considered manslaughter – Did she know what she was doing? Did she understand the consequences of her action? Did she know right from wrong? Can you treat a mercy killing in the same way? Can she get up and say, yes what I did was wrong?when infact she did believe that it was not only right but it was morally right. It was a humanistic thing to have done. Firstly, we need to understand the relationship between mother and daughter – there was a strong tie between the two that made Barbara do what she did.

Back story on Dr Mary White

Mary was brought up in southern Rhodesia, and her ambition was to have a large family like her parents had, and she succeeded. Barbara was her second child and her mother’s favourite child, and Mary made that known to everyone. Their relationship was enormously strong. Mary was a stay at home mom who worked on paleontology for a mining company. She could age rock based on the fossils that were in them. Big drums of fossils were delivered to their house in Hunters Hill and she would go through them, write reports and that was how she developed her expertise in paleontology. She was a great net worker and was very resourceful with knowledge. She would develop contacts around the world on her field and had the ability to take the broader view. She hadn’t made many publications in that area but she understood the flow of geological time and evolution which she put into her books. She was a brilliant scientist in a conventional way. She had the ambition to marry a nice man, have a large family like her mother. Her husband was also a geologist. Mary stayed at home with their children and they travel widely. To Mary, the greatest joy was to be in the countryside with her family, hunt fossils and take the family along, in particular, Barbara, who developed a great love for nature.

Sadly, Mary’s husband died of cancer when she was in her 60s and with the kids grown up, Mary decided to write a book, The Greening of Gondwana – The 400 Million Year Story of Australia’s Plants(1986). It was meant to be a coffee table book, to be read by all, with gorgeous photos taken by famous photographer Jean Fraser (recently deceased) who was also the photographer for English broadcaster and biologist, David Attenborough. David is an admirer of Mary White’s work. Mary’s book appeared in most school and university libraries. After the book, Mary was involved with the environment and produced other excellent books. She then decided that she wanted to venture into practice and so purchased a large forested property, Falls Forest Retreat, and established a covenant to protect the land and preserve its biodiversity.

Before long, she was getting mini strokes, transient is-chemic attack (TIA) and forgetful. Barbara suggested that Mary move into a granny flat in Bundanoon and so for the next 2 ½ years, Barbara cared for her mother. Situations at home were sometimes dangerous - things got burnt, Mary was not able to cook her own meals anymore, so they had meals on wheels and Barbara sometimes took her mother out. Mary was not driving anymore, she was unable to cross the roads even though her eye sight was still good.

During this time, Mary made a couple of statements: that were not revealed in court. One woman whom Mary worked with said, that Mary told her, if she ever had a major stroke she would want to take a pill and end it all. She had made her views on euthanasia very clear. She had said the same thing to her other children, also to the worker who cleaned her flat, so there was no question that she would find it intolerable to ‘one day have a stoke and end up in a nursing home.’

In February 2016, that was exactly what happened. Mary had a major stroke and was paralyzed one side, she couldn’t speak and was admitted to Warrigal nursing home. Barbara would visit almost everyday to feed her mother. She often fought with the carers to try alleviate to make her mom comfortable. Mary would be grimacing, crying and trying to throw herself off the bed. The problem was that she couldn’t talk so there was no way of knowing if it was pain or discomfort. Mary was totally dependent at this stage, she was hand-fed, double incontinenced, changed and turned every 3 hours. She could not hear nor speak, ... so here was a brilliant mind trapped in a body of solitary confinement which was considered torture.

After a few months in the nursing home, Mary regained a little speech and told Barbara to ‘please kill me’, which was not unusual. At a meeting with doctors, when they were arguing about alleviating the pain, in frustration, Barbara’s husband, Richard had said ‘you wouldn’t treat a dog like this, you would put the dog down’. This was quoted in court as evidence, and was taken as an intention to murder Mary. The statements were made mainly by Richard and Barbara because both supported euthanasia and the law at that time in NSW was taken as an intention to kill.

With the back story given here, it was vitally important to understand the anatomy of mercy killing. But of course the court was not interested in understanding - they were aiming for what little defence she had – which was very very thin.

On Sunday, 4th August 2018, before Barbara went into the nursing home, she crushed eight Temazepam tablets in a mortar pestle, then carefully put them into a sauce bottle, brought it to the nursing home. She fed her mother dinner and then added them to her mothers custard dessert. She was only planning to put half (which was still double of what an adult would take under normal circumstances) and as she said in court, it all shot out. This of course was treated by the court as the first attempt of the murder of her mother’s life. Her mother had a good nights sleep and the next day Barbara went in again.

Twenty years ago, Barbara had been involved as a carer who helped injured animals. She had phenobarbital, also known as ‘green dream’ drugs and had told the court she had the drugs leftover from two decades ago when she was a wildlife carer in Canberra.

So Barbara (who had these drugs from 20 years ago) filled them in a syringe and took them into the nursing home. When she arrived, Richard was there watching tv, and supposedly did not see what she was doing. Barbara added them to her mother’s soup. Mary started to cough after taking a little of the soup and her breath became gurgling and she became very unresponsive. Barbara then rushed out and told the nurses that her mother was having a turn - a turn is a medical term - the nurses then came in and returned Mary to a recovery position and Mary began calming down. The nurses then rang the doctor, who prescribed a sedative called Midazolam, which was injected into Mary’s thigh. So Mary now had two strong sedatives, and both together would certainly have killed her - phenobarbital alone might not have but both together probably led to her death.

The doctors action should be in question - here is a woman who was barely conscious, lying on her side and he just recommended a major sedative. This didn’t seem right, especially the manner in which Mary was treated - this doctor clearly did not know her and here is part of the cross examination of the doctor to indicate that: Palliative care is not a particularly satisfying form of medical aid because the care serves to alleviate pain and not cure - the patient was dying soon anyway, depending on the situation that they are in - and this had certainly been the case with Mary White.

Mary’s doctors receive regular updates from the nurses on her condition. Her family had a great interest in her discomfort and were putting pressure on the doctors about the medications given to her. Barbara wanted her mother to be sedated for most of the time so that she would not know what was going on. It was also hard not knowing what Mary wanted, as she couldn’t talk but was trying to throw herself off the bed (which she succeeded a few times) and she was often crying. I spoke to her son David, and there was evidence suggesting that in this fog of dementia, she was also going into vascular dementia, even though dementia does not mean a patient becomes immediately mentally incapacitated and are unaware of their situation. I believe that on a number of occasions, Mary realised where she was. In these moments of despair, Mary knew exactly the situation she was in and Barbara had said her mother was always pleading with her eyes...so eventually, on that Sunday night, 5th August 2018, Dr Mary White died.

After Dr Mary White died

The next day Barbara went to the funeral parlour to make arrangements for the cremation. Barbara had worked on Tuesday, then went to the police station but did not mention feeding her mother with Temazapam nor the green dream drug. However, the next day, (8th August), Barbara handed herself to Moss Vale Police Station out of fear of implicating her husband for her mother’s death. When asked what she thought would happen after she fed her mother green dream drug, Barbara told the police ‘I thought she would go to sleep and have reduced pain and distress’.

Barbara was arrested, charged with murder, and sent to the cell. The prosecution wanted to jail her (Goldburn Jail) until her trial - which meant two years behind bars…this was happening to a 67year old woman who had just lost her mother and best friend.

However, thanks to the magistrate – Barbara was released on a range of conditions. Barbara saw her lawyers the following Monday to correct her record. Firstly, she had told the police that she fed both drugs to her mother on the same night - and if that was the case - there’s not question that she wasn’t just going to give her mother a good nights sleep (which was what she was arguing for) -she was trying to kill her.

Phenobarbital wasn’t going to make Mary sleep, but the dream drug would kill her while she was asleep. Barbara also said ‘it is not my intention to kill my mother’ - so she was negating her confession. She said ‘I’m now remembering what I was thinking that night and that wasn’t the case’.

The Trial

Dr Mary White had two doctors when she was admitted to Warrigal aged-care home. There were many conflicts between the doctors and Barbara regarding the medication. Barbara and Richard were always pushing for Mary to be sedated and implying criticism on the doctors. When it was brought up in court ‘you wouldn’t treat a dog like this, you would put the dog down’, Richard denied this and claimed that all he did was discuss that the law should be changed to allow people like Mary to die.

May I say that, had the laws been in place in NSW at the time, Mary would not have qualified — she was not within 6 months of dying, was not in agony, and despair was not something that euthanasia laws would consider. And she had no disease that would kill her within twelve months.

Thankfully there was a third person, the head of nursing at this conversations, and the only one who remembered the exact words being said because she was upset as they were said near the bed that Mary was lying in – the very reason she remembered them. She had said, ‘you should never make such conversation next to Mary’s bed’. This was interpreted as a cry from the heart.

Now comes the second doctor in question. The doctors would drop in occasionally, and they would get feedback from the nurses and adjust the medication accordingly. This doctor wasn’t doing any wrong but in this court case, he was being questioned and criticized for the way he was caring for Mary. He had said, ‘they wanted me to sedate her all the time, I wasn’t going to allow that because I balance pleasure and pain. She did experience pleasure and I wanted her to have that pleasure and not sedate her all the time. And in fact to proof my point, in July (Mary died in August) at the mid year Christmas festivities, she was able to enjoy ginger pudding, roast turkey and wine and she enjoyed looking outside the windows at the kangaroos. I wasn’t going to deny her these things’.

The defence lawyer remembered the Christmas event and had gone through the files from the recreation officer. At the cross examinations were these questions, Did you see her eating? Did you know that all she could eat was liquefied food? Did you know she was a teetotaler? Do you know she was almost blind (indicated on her medical file) so she couldn’t have been looking outside at kangaroos? And her window didn’t look out to kangaroos outside.

And there were other functions like Melbourne Cup Day - How did you think Mary would have enjoyed that? As he went on, it showed how much this doctor knew of his patient. This is the doctor who had made a statement and placed himself as the one to judge that she should suffer pain so that she could enjoy all these imaginary pleasures. This dreadfully showed how little empathy this man had for his patient and was immune to what was happening to Mary.

The Defence

Dr Mary White was a 92 year old lady. She had a major heart attack, had four stents inserted, and had transient is-chemic attack (TIA). She was going to die at some stage (which she did that night), and of natural causes, but she just happened to die within three hours of being fed with Nembutal. It was not a strong argument. The real argument here was on manslaughter, Barbara had said ‘I didn’t really know what I was doing, I wasn’t in control of my actions’.

The Prosecutor said this about Barbara’s actions‘You crush the tablets. The fact that you had the idea to need to crush them up to transport them was a conscious decision. It took intelligence, and you then filled in to a small container, then took great care to seal it, you used the pestle then place it back in the kitchen cabinet, then went into the nursing home etc… and then there’s the question of the autopsy, you only confessed after you knew about the autopsy’. So it was a very very steep mount for Barbara to climb.

The Verdict

While it is not known what led to the decision, nor what went on behind the jury door, but there is a phenomenon called jury nullification (occurs when the jury in a criminal trial gives a not guilty verdict regardless of whether they believe a defendant has broken the law), an American term, not common in Australia. So there was always the possibility that the jury did the same. The verdict was manslaughter and Barbara Eckersley was sentenced.

The Sentencing

This is where treating mercy killing as murder is so unjust because what Barbara had to do to make sure she didn’t spend the next 25 years in jail was to express remorse for being kind to her mother. She had to deny the love of that act to get off and that is wrong, in my opinion.

And then there’s the argument for manslaughterthis phrase was used by the forensic psychologist because one of the criterias was knowing right from wrong. He asked if she knew what she did was morally wrong. There is a difference between legally wrong and morally wrong and Barbara Eckersley would have argued that what she did was morally right, and had she been asked that question directly, I think that would have been her answer and so treating it as murder means that she has to run through hoops.

In conclusion

I have studied cases of mercy killings and judges do not ask during the sentencing that ‘if you pleaded guilty, made a full confession - you must be remorseful’.

I didn’t realise it at the time but in most mercy killing cases, (there are more than one a year), there never is one consistent trial. Barbara’s trial was unusual, she did not expect to plead for manslaughter and be wanted for murder with a lengthy sentence, hence the reason it went to trial, and this case had provided a unique view into mercy killing.

With euthanasia laws now in place, we may see the number of mercy killings increasing and nurses and doctors may argue that it is less excusable, and that these cases needs to be reported. There are many people out there who are not within the six months of dying nor in agony. So what can we do about it? This problem was first raised in 1974 by an organisation called Dying With Dignity Victoria Inc (DWDV), formerly the Voluntary Euthanasia Society of Victoria Inc. The government was urged to deal more sympathetically with the mercy killers in light of the values of the Victorian community. Unfortunately, nothing was done. New offences of mercy killing will allow judges taking into account motives and sentencing. Since then, other countries like Germany and Switzerland in particular, have new criminal code called Homicide on request - begging to be killed. Compassion homicide should be considered which would be the case of Dr Mary White who couldn’t request because she couldn’t talk. There is ongoing support for this among legal community. In other mercy killing cases, everyone from the police to the lawyers and judges are very uncomfortable treating mercy killings as murder.

Justice Betty King, (now retired) asked the question, should people be put before the criminal courts for acting out of love? In my view, they shouldn’t.

Thank you, Dr Blutstein, for that very interesting insights into the murder trial of Barbara Eckersley. Harry’s book How do they call it Murder, will be published in early 2024.

A natural storyteller, Harry also spoke at our College Table on 2019 on Social Studies. We look forward to welcoming Harry again in the near future.