Recent Changes in Medical Negligence – Adverse Events and the Coroner
CONTENTS
Events over which the State Coroner has jurisdiction
The State Coroner’s powers of investigation
- Ross Dudley Peddy – Finding delivered 18 November 2004
- Latoya Shelley Quinn – Finding delivered 20 July 2004
- Iris Patricia Young – Finding delivered 30 April 2004
- Tracey-Lee Cunningham – Finding delivered 18 November 2004
- Louise K O’Neil – Finding delivered 14 December 2004
Appeals from findings made on inquest
Introduction
The Coroner’s Act 2003 (SA) came into operation on 1 July 2005.
The position of the Coroner has been historically traced to the Articles of Eyre of 1194 in England.
Section 16 of the Coroner’s Ordinance 1850 (SA) expressly provided that English Coronial Practice would operate in South Australia. Subsequent Coroners Acts were passed in 1884, 1935 and then in 1975. Each of these Acts represented a refinement and in some cases an enhancement of the Coroner’s powers with a particular emphasis on the types of matters that the Coroner has jurisdiction over.
The State Coroner
The 1975 Act enabled the Governor to appoint “a legal practitioner” to the position of State Coroner
The 2003 Act now makes it a prerequisite for appointment as the State Coroner that the appointee be a “Stipendiary Magistrate”.
“As at 30 June 2004 there are 35 inquests awaiting hearing in the Coroner’s Court, including 20 cases involving a death in custody. There are 95 cases currently under investigation. Existing resources do not permit investigations or inquests to be prepared or heard at a greater rate. The major risk associated with under provision of resources is that delays in hearings create potential backlogs and delay findings and recommendations that will limit the probability of repeat deaths under similar circumstances.”
The issue of resourcing was not only limited to the availability of the State Coroner but also to the resources available to the State Coroner for the purposes of investigation. Contemporaneous with the appointment of the second Coroner is the appointment of an additional counsel to assist the Coroners. The net effect of these changes is that in due course (subject to the investigation being completed expeditiously), inquests are likely to be held far closer to the event thereby enhancing the benefit of the inquest. Further refinement to the resources available to the State Coroner is also expected.
Events over which the State Coroner has jurisdiction
The State Coroner’s jurisdiction has evolved significantly since the Articles of Eyre. The 2003 Act will have the effect of increasing the number of matters that need to be reported to the State Coroner and thereby increasing the workload of the State Coroner.
Under the 1975 Act the State Coroner had jurisdiction to hold an inquest in respect of the following events:
“(a) the death of any person by violent, unusual, or unknown cause; or
(b) the disappearance (from any place) of any person ordinarily resident within the State; or
(c) the death of a person in an aircraft during a flight or on a vessel during a voyage to a place of disembarkation in the State; or
(da) the death of any person where there is reason to believe that the death occurred or the cause of death or the probable cause of death, arose or may have arisen, while the person was detained in custody within the State pursuant to an Act or law of the State; or
(db) the death of any person where there is reason to believe that the death occurred, or the cause of death, or the possible cause of death, arose, or may have arisen, while the deceased was accommodated in an institution and that the deceased was suffering from mental illness or intellectual retardation or impairment (other than mental impairment consequent upon the immediate cause of death) or was dependant on the non-therapeutic use of drugs; or
(e) The disappearance from, or within, the State of any person; or
(f) A fire or accident that causes injury to person or property.”
The following table taken from the Courts Administration Authority’s 2003-2004 Annual Report gives an indication for the period 2001-2004 of the number of deaths reported, post mortems held and inquest findings delivered.
| AT A GLANCE | 2001-2002 | 2002-2003 | 2003-2004 |
| Staff * | 11 (plus one trainee) | 14 (plus one trainee) | 11 (plus one trainee) |
| Deaths reported | 3507 | 3673 | 3962 |
| Post mortems | 1072 | 1232 | 1291 |
| Inquest findings delivered | 36 | 38 | 37 |
| Court sitting hours | 212 | 535 | 200 |
*Does not include judicial officers
To put the number of deaths reported into perspective, the Annual Report also notes that during the 2003-2004 year there were 12,166 deaths registered with the Registrar of Births Deaths and Marriages.
The circumstances over which the State Coroner may hold an inquest have now been enlarged. Pursuant to the 2003 Act it is mandatory for the State Coroner to hold an inquest where there has been “a death in custody”.
“means the death of a person where there is reason to believe that the death occurred, or the cause of death, or a possible cause of death, arose, or may have arisen, while the person —
(a) was being detained in any place within the State under any Act or law, including any Act or law providing for home detention (and, for the purposes of this paragraph, a detainee who is absent from the place of his or her detention but is in the custody of an escort will be regarded as being in detention, but not otherwise); or
(b) was in the process of being apprehended or was being held —
(i) at any place (whether within or outside the State) — by a person authorised to do so under any Act or law of the State; or
(ii) at any place within the State — by a person authorised to do so under the law of any other jurisdiction; or
(c) was evading apprehension by a person referred to in paragraph (b); or
(d) was escaping or attempting to escape from any place or person referred to in paragraph (a) or (b);”
Further the State Coroner may hold an inquest into the following circumstances and must do so if the Attorney General so directs.
“21(1)…(b)…
(i) any other reportable death;
(ii) the disappearance from any place of a person ordinarily resident in the State; or
(iii) the disappearance from or within the State of any person; or
(iv) a fire accident that causes injury to person or property.
(c) any other event if so required under some other Act.”
At first glance there would not appear to be much difference between these sections and those contained in the 1975 Act. However when one examines the definition of a “reportable death” contained in section 3 of the Act, one will see that the jurisdiction of the State Coroner has in fact been significantly enlarged. A reportable death is defined as
“…means State death of a person —
(a) by unexpected, unnatural, unusual
[10], violent or unknown cause; or (b) on an aircraft during a flight, or on a vessel during a voyage; or
(c) in custody; or
(d) that occurs during or as a result, or within 24 hours, or —
(i) the carrying out of a surgical procedure or an invasive medical or diagnostic procedure; or
(ii) the administration of an anaesthetic for the purposes of carrying out such a procedure;
Not being a procedure specified by the regulations to be a procedure to which this paragraph does not apply;
[11] (e) that occurs at a place other than a hospital but within 24 hours of
(i) the person having been discharged from a hospital after being an inpatient of the hospital; or
(ii) the person having sought emergency treatment at a hospital; or
(f) where the person was, at the time of death —
(i) a protected person under the Aged and Infirm Persons’ Property Act 1940 or the Guardianship and Administration Act 1993; or
(ii) in the custody or under the guardianship of the Minister under the Children’s Protection Act 1993. or
(iv) a resident of a licensed supported residential facility under the Supported Residential Facilities Act 1992; or
(v) accommodated in a hospital or other treatment facility for the purposes of being treated for drug addiction; or
(g) that occurs in the course of as a result, or within 24 hours, of the person receiving medical treatment to which consent has been given under Part 5 of the Guardianship and Administration Act 1993; or
(h) where no certificate as to the cause of death has been given to the Registrar of Births, Deaths and Marriages; or
(i) that occurs in circumstances prescribed by the regulations;
State includes —
(a) the sea that is within the adjacent area in respect of the State (as defined for the purposes of the Coastal Waters (State Powers) Act 1980 (Cth)); and
(b) the airspace above the sea;”
[12]
Of particular significance within the scope of this paper are the matters contained in subsections (d), (e) and (f). In particular those deaths covered by subsections (d) and (e) are likely to significantly increase the number of matters reported, even bearing in mind those matters excluded by the regulations.
The obligation to report a death rests on any person who becomes aware of a death “that is or may be a reportable death”.
The State Coroner’s powers of investigation
It must be remembered that the State Coroner’s function is not adversarial but rather inquisitorial. Traditionally the State Coroner has exercised this power in two stages. The first involves the investigation of events reported to the State Coroner and the second, if the State Coroner is either required to or considers it desirable, the holding of a formal inquest. This process is recognised in the 2003 Act in section 22 which gives the State Coroner extensive powers to:
- enter any premises where there is the body of a dead person;
- to enter any premises and remove and inspect anything in or on the premises;
- to take photographs, film, audio, video or other recordings;
- to examine copy or seize any extracts from any records of documents;
- to issue a warrant for the removal of a body of a dead person;
- to direct that a post mortem
[14] be carried out or any other examinations consequent upon the post mortem.
Traditionally these powers are exercised at first instance by the police officers who are called to the scene. This may sometimes be before the State Coroner has in fact been notified of the death and in those circumstances the police officers are acting pursuant to their general powers of investigation. Once the event has been reported to the State Coroner, the State Coroner may then either ask the investigating officers to carry out further enquiries or have his own staff carry out those enquiries.
As part of this process the State Coroner will generally arrange for all persons that are considered relevant to the events which are being investigated to be interviewed. There is no requirement on any person who is interviewed to answer any questions. The interviews are either recorded and transcribed or noted and produced in statement form and are then sent to the interviewee for correction before being submitted to the State Coroner as part of the investigation.
Pursuant to Rule 13 of the Coroners Court Rules the Court is able to accept evidence by way of affidavit and it is not uncommon for these records of interview to be subsequently verified by affidavit and tendered during the course of the inquest, particularly if the material contained therein is not controversial. Although there is no compulsion to co-operate in this process parties generally do co-operate on the basis that it may firstly assist the State Coroner in his investigation and secondly it may avoid the stress of giving evidence later.
It must be remembered that pursuant to section 23(5) of the Act no person is required to answer a question where —
“(a) the answer to the question or the contents of the record or document, would tend to incriminate the person of an offence; or
(b) answering the question or producing the record or document would result in a breach of legal professional privilege.”
Although this section refers to the giving of evidence at an inquest this section should be borne in mind when answering questions during the investigation phase so as not to waive these rights.
Upon receipt of a report from the investigating officer which will contain all records of interview and other documentary material obtained/seized, the State Coroner will (unless it is mandatory for him to do so) decide whether or not to hold a formal inquest. To assist the State Coroner in this task it is not uncommon for the State Coroner to seek a report from an independent expert into various aspects of the investigation.
If the State Coroner decides to hold an inquest then the State Coroner is given the power to subpoena relevant persons to give evidence as well as require the production of relevant documents.
The Inquest
Section 24 of the 2003 Act states —
“In holding an inquest, the Coroner’s Court —
(a) is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and
(b) must act according to equity, good conscience and the substantial merits of the case, without regards to technicalities and legal form.”
It must be remembered that it is the State Coroner who determines which witnesses will be called at an inquest. Counsel assisting the Coroner will generally lead those witnesses through their evidence. However it is the practice of the Coroner’s Court in this state where a witness is represented for the counsel representing the witness to lead the witness through their evidence in chief. In that regard section 20 of the Act entitles any person who has a sufficient interest in the subject matter of the inquest to seek leave to appear either personally or by counsel at an inquest. This does not entitle that person to issue any summons or for that matter call any witness but they may apply to the Coroner for the Coroner to call further witnesses if it will assist in determining the issues that the Coroner needs to consider.
It should be remembered that inquests are open to the public
Although the Coroner’s Court is not bound by the rules of evidence it must act according to equity and good conscience.
Findings on Inquest
Following the conclusion of the inquest the Court is obliged pursuant to section 25 of the Act to deliver findings “setting out as far as has been ascertained the cause and circumstances of the event that was the subject of the inquest.”
There is an embargo contained in section 25(3) against the Court making any “finding, or suggestion, of criminal or similar liability”. This embargo can sometimes be seen as in conflict with the Court’s obligation to make findings. This is aptly demonstrated in a decision of the Hong Kong Court of Appeal in Re: Medical Defence Union Limited (1990) HKCA 62. The facts of this case are somewhat unique.
Mrs Boyd was admitted to hospital for the purposes of reducing a fracture to one of her ankles. She was anaesthetised, however during the process she was observed to turn blue. Attempts were made to revive her including the attempted administration of oxygen. Contemporaneously another patient was undergoing surgery in an adjoining theatre. This patient also turned blue. The anaesthetist in that theatre realised that there was a problem with the oxygen supply and reverted to the emergency oxygen reserve. Unfortunately Mrs Boyd’s anaesthetist did not realise this until a nurse from the adjoining theatre informed him of this. By this time it was too late to revive Mrs Boyd.
The Coroner’s findings contained various findings as to Mrs Boyd’s anaesthetist’s experience and competence. The Medical Defence Union and the anaesthetist both sought to have these findings quashed on the basis that they infringed the provision of the Hong Kong Coroner’s Rules that provided that a Coroner’s verdict should not determine any question of civil liability. At first instance the court made the following observations of the role of the Coroner —
- A Coroner’s inquiry although involved in fact finding was not concerned to apportion guilt or fault;
- In embarking upon his fact finding such findings might from time to time allow adverse inferences to be drawn in respect of a person’s conduct.
- In determining what had occurred an evaluation of the doctor’s conduct could not be ruled out.
The Hong Kong Court of Appeal placed great reliance in its judgment on a New Zealand judgment of Louw v McLean CP 445/87 delivered 12 January 1988. It affirmed the following passage from that judgment.
“Nonetheless for an inquest to have a useful social function it must I think be able to go beyond the mere medical cause of death. I agree with the comment in Halsburys Laws of England 4th Edition Volume 9 para 1110, note 1, that the Coroner must also investigate ‘the circumstances surrounding the death’. This must necessarily involve in this case not only a determination of the procedures that were employed, but also determination as to whether the correct procedures were employed. If the evidence does not enable the Coroner to determine that, then he must not do so. But if he does, then I consider that it is part of his function to do so.
…By the same token it would be wrong for the inquest to become a civil or disciplinary trial. But if in order to ascertain or explain how death occurred, in the wider sense of the events that were the real cause, the implicit attribution of blame is unavoidable, then as the Coroner himself observed, ‘so be it’”.
The Court of Appeal also adopted the following passage from Jervis on the office and duties of Coroners (10th Edition, 1986) at para 1.8
“The functions of an inquest on a dead body at the present day are really to determine certain facts about the deceased: his identity, the cause of his death and the circumstances surrounding his death and that cause.”
Further on in its judgment the Court of Appeal again adopted further commentary from Jervis on the nature of inquests
“They can and should afford a quick and cheap method of drawing public attention to circumstances which merit investigation. Suspicious circumstances attaching to a death even though there is no suggestion of murder or manslaughter are one example. Thus the relatives of a deceased may feel that the deceased died owing to the negligence of inefficiency of medical authorities; there have been for instance several recent cases connected with the admission of patients to mental or other hospitals. If there has been any dereliction from duty, the facts are brought out into open for all to judge; equally if the suspicions are unjustified this also can be exposed and the persons cleared of unjustified suspicions. A properly conducted inquest has advantages in speed and cheapness over alternative judicial proceedings.”
In reconciling the passages with how the Coroner had embarked upon the inquest the Court of Appeal recognised that there is some tension between the Coroner’s functions and the embargo on making a finding on civil liability. However the Court of Appeal rationalised this tension on the basis that it was the obligation of the Coroner to investigate all of the facts surrounding the death and that that obligation was paramount.
In Perre v Chivell (2000) 77 SASR 282 Justice Nyland considered an application to set aside the State Coroner’s findings. The case concerned the interaction between the Coroner’s obligations to make findings and section 26(3) of the 1975 Act which precludes the Coroner from making any findings of any civil or criminal liability. In this particular case the issue concerned whether or not the Coroner’s findings have traversed into the area of making a criminal finding. Justice Nyland stated
“It is clear therefore that the jurisdiction of the Coroner is limited to making findings of fact. It is not his/her task to attribute or hint at blame. Can it be said therefore that in this case the Coroner exceeded his jurisdiction and there by contravened the provisions of section 26(3) of the Act”.
Justice Nyland then went on to point out that for any criminal finding to be made a finding of intent needed to be made. Her Honour went on to say
“The Coroner has not however found that Perre had any such intention… In other words the factual findings of themselves cannot be said to be findings of criminal or civil liability. The finding of criminal or civil liability requires the application of the relevant law to the facts in order to determine whether the essential elements of a given crime or civil obligation had been made out. It is not the Coroner’s role to undertake this process it is the role of the courts and this is what section 26(3) was enacted to ensure.”
Consequently it is open to the Court to make factual findings as to the circumstances in which the death occurred. If these in some way impute some form of criminal liability, then that does not infringe the embargo on the Court against making a finding of criminal liability. The Court would only be guilty of making such a finding if it were to descend into the question of mental intent, which is one of the prerequisites in obtaining of any criminal conviction. This is obviously a legally artificial boundary and one that the ordinary reader of the Court’s findings may not discern.
The 2004 year
In the 2004 year the Coroner’s Court delivered thirty three findings. Of these nine concerned persons who have been detained pursuant to the provisions of the Mental Health Act. As previously stated, the Court was obliged under the 1975 legislation and is also obliged under the 2003 Act to hold an inquest in relation to patients detained pursuant to the provisions of the Mental Health Act.
Section 12 of the Mental Health Act provides for a medical practitioner who is satisfied:
“(a) that the person has a mental illness that requires immediate treatment; and
(b) that such treatment is available in an approved treatment centre; and
(c) that the person should be admitted as a patient and detained in an approved treatment centre in the interests of his or her own health and safety or for the protection of other persons”
to order the admission and detention of that person in an approved centre. The initial order expires after 3 days.
Of the nine findings delivered in respect of detained patients in 2004 the Court made no criticism on the treatment afforded in five of those patients. In respect of the remaining four queries were raised during the course of the inquest into such matters as to the appropriateness of medications that had from time to time been prescribed, whether the medical staff recognised and properly dealt with the onset of general medical problems such as DVT. One common issue that arises is, what is actually understood by the word “detained”? This is aptly demonstrated by the Court’s findings into the inquest of the death of Michael Jason Taylor (delivered 20 April 2004).
Mr Taylor was detained pursuant to the provisions of the Mental Health Act by an order of the Guardianship Board made on 4 January 2000. The period of detention was for twelve months. Under the order Mr Taylor was detained at the Glenside Hospital. One of the issues that arose was what this order in effect meant. The Court stated:
“During the many inquests that I have conducted into the deaths of patients of the mental system in South Australia it has become apparent that a patient who is ‘detained’ pursuant to the Mental Health Act 1993 is not necessarily confined to a closed ward. Indeed, there are detained patients at certain hospitals in the State where there are no closed ward facilities. This system is so entrenched in South Australia’s psychiatric care that it seems pointless for me to re-examine it.
However the care of a ‘detained’ patient involves a very high degree of responsibility on the part of the institution concerned to take adequate measures to preserve the safety of the patient and others. After all that is the point of contention.”
[29]
In addition to those inquests that the Court was obliged to hold because the patients had been detained under the Mental Health Act, there were a further two findings delivered in 2004 which concerned patients who had longstanding mental illness, but were not detained at the time of their death. This does not take into account a further three inquests classified as deaths in custody where the deceased also had some history of mental illness.
There were also five findings delivered in the 2004 year which deal with the adequacy of medical treatment provided to the deceased. The following table sets out a summary of those inquests and provides and indication of the range of issues that have become before the Court on this topic.
Mr Peddy was a 64 year old man who was admitted to the Flinders Medical Centre in January 2001 with a diagnosis of diverticular abscess of the sigmoid colon. This was surgically repaired. Some 4 months later further surgery was undertaken to restore intestinal continuity through this sigmoid colon. Two days after this surgery Mr Peddy’s condition deteriorated. A post operative haemorrhage was suspected and cardio‑pulmonary resuscitation was commenced with Mr Peddy being transferred to the Intensive Care Unit. Despite further surgical intervention Mr Peddy’s condition failed to improve and he eventually passed away on 3 July 2001. The Court found that it is likely that during the second surgery the epigastric artery may have been damaged. Normal clotting mechanisms would have sealed the damaged vessel however Mr Peddy had been prescribed Warfarin (an anticoagulant) following heart surgery in 1996. The Court was critical of a 6 hour delay in recognising the decline in Mr Peddy’s condition and the possible effects that the Warfarin was having on any post-operative haemorrhage. Issues arose at the inquest as to whether or not a first year resident medical officer with little surgical training had the appropriate expertise to recognise the possible cause of Mr Peddy’s decline. The Court ultimately found that the registrar was under the supervision of an advanced general surgical trainee who should have accepted greater responsibility for Mr Peddy’s care and who should have intervened at an earlier time. The Court also raised questions as to whether or not the nursing staff properly appreciated the significance of the decline in Mr Peddy’s condition. |
Ms Quinn was 12 years old when she was taken to the Noarlunga Hospital in February 2002 by her mother suffering from severe headaches. She had been born with a condition known as congenital hydrocephalus and a shunt had been inserted shortly after her birth. She also had been diagnosed some years earlier with attention deficit hyperactivity disorder. She was examined at the hospital but not admitted and advised to take pain relief and was sent home. She passed away in the early hours of the morning.The pathologist found that the cause of death was “raised intracranial pressure due to ventriculo-peritoneal shunt blockage”. During the course of the inquest questions were raised as to the adequacy of the treatment provided by the Noarlunga Hospital. The examining doctor had, as part of his investigations, apparently sought telephone advice from a paediatric registrar at the Flinders Medical Centre. There was a dispute as to the nature and extent of this advice.The Court found that Ms Quinn’s treatment was compromised by the inexperience of the medical officers on duty at the Noarlunga Hospital and the difficulties associated with seeking expert telephone opinions. The Court found —
One issue that commonly arises in coronial inquests involving the medical profession is the adequacy of the medical notes. The Court made a positive recommendation that :
|
Mrs Young had a longstanding history of breast cancer. When she was admitted to the Royal Adelaide Hospital in November 2000 she was complaining of an increase in her chronic back pain together with an increase in anterior left chest pain, a shortness of breath, lethargy and tiredness. She was examined and her past medical history was noted. Mrs Young was admitted and further tests were carried out. On 30 November 2000 there was a significant decline in Mrs Young’s condition. A diagnosis at that stage of a pulmonary embolism was made. Following further investigations this was proved to be incorrect. However a right sided haemothorax was detected. The Court found that this was a medical emergency and a life threatening situation. Surgery was performed however apart from a short period of improvement Mrs Young’s condition generally deteriorated and she passed away on 1 December 2000.One of the issues that concerned the Court was whether or not the results of the post mortem examination had been correctly interpreted. The Court did not accept the pathologist’s findings and in turn substituted its own finding following receipt of expert evidence on the interpretation of the post mortem results.A further issue that arose was the nature and extent of the treatment that had been provided to Mrs Young. The Court found that a post-operative chest X-ray should have been undertaken and that haemothorax may have been detected earlier. This could have resulted in alternative treatment such as the introduction of Heparin. Further criticisms were levelled at the preliminary diagnosis of a pulmonary embolism. There was also a conflict between the medical staff and Mrs Young’s daughter as to discussions which took place regarding Mrs Young’s treatment and in particular her transfer to the high dependency unit. In relation to this aspect the Court made the following finding:
The Court went on to make recommendations regarding the recording of such conversations in writing. It also went on to recommend that as a matter of routine post-operative X-rays following a thoracentesis be undertaken. |
Mrs Cunningham passed away on 24 May 2001. On post mortem the cause of death was determined to be one of the issues that confronted the Court was Mrs Cunningham’s tendency to abuse prescription drugs. This was an issue recognised by her general practitioner who had sought assistance for her. The Court had the assistance of two experts who reviewed the material on his behalf. Based on the evidence of these experts the Court made the following findings.
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Ms O’Neil was 31 years of age when she was admitted to the Flinders Medical Centre on 17 December 2000. Upon arrival she was assessed by the triage nurse as a priority four on which basis she should be seen by a doctor within sixty minutes. Approximately one hour after arrival the medical staff noted that Ms O’Neil appeared blue around the lips. Immediate resuscitation attempts were undertaken but unfortunately were not successful. On autopsy her cause of death was noted as “mixed drug toxicity”. One of the issues that concerned the Court was what observations and/or assessment were made of Ms O’Neil between the time of her first attendance and 9.30 pm. The Court reached the following conclusion.
The Court had received at the inquest evidence about changes which had subsequently been made to the staffing at the Emergency Department and noted these changes and declined to make any specific recommendation in this regard. |
The coronial process is sometimes seen by certain parties as a fact finding process for the purpose of ascertaining whether civil proceedings should be instituted. Whether or not the Court’s findings are binding on the civil court is arguable and is a topic which I do not seek to explore in this paper. Even if the findings are not binding in the absence of further persuasive evidence the findings are certainly likely to be indicative of how a civil court might approach the issues.
The Court must, after delivering its findings, forward a copy of its findings to the Attorney General and in the case of an inquest into a death in custody (which includes by definition a person detained under the Mental Health Act) forward a copy of those findings to the appropriate Minister or agency responsible.
The appropriate Minister must within eight sitting days of the expiration of six months after receiving a copy of the findings cause a report to be laid before each House of Parliament giving details of the actions taken consequent upon the Court’s findings.
With the appointment of a second Coroner and a desire to decrease the waiting time between the death and the inquest it is possible that the Court may be able to deliver findings and recommendations more contemporaneously with the event, such that its recommendations may have some substantive benefit.
Appeals from findings made on inquest/span>
Section 27 of the Act allows for appeals to a single judge of the Supreme Court. Appeals must be instituted within one month after the findings are delivered.
“(a) The finding affects or may affect the person’s pecuniary interest; or
(b) The finding reflects adversely on the person’s competence in his or her trade, profession or occupation; or
(c) The person has in the opinion of the Supreme Court some other interest sufficient to create an application under this section.”
This to some extent gives a level of protection to the medical practitioner who feels that the Court’s finding have transcended into the area of making a finding of civil liability. However it must be remembered that any appeal may only attract additional publicity. It is for this reason that appeals under the 1975 Act were very infrequent.
Conclusion
The 2003 Act represents the continued refinement of the State Coroner’s powers. There will be an increase in the State Coroner’s workload, particularly in relation to medical related deaths. However until the State Coroner has sufficient resources to promptly investigate and hold inquests relatively contemporaneously with the event the intent for which the office was established will continue to be largely thwarted.
Ralph Bönig
26 October 2005
[1] Government Gazette 23 June 2005
[2] See Coronial Law and Practice in New South Wales, Waller K 3rd Edition 1994
[3] See section 7(1)
[4] See section 7(2)(a)
[5] See section 4(3)
[6] See section 4(4)
[7] See section 6
[8] Page 41 of the Report
[9] See section 21(1)(a)
[10] What may constitute an unusual death was considered by Justice Olsson in Pope and Pope v The State Coroner (1998) 70 SASR 387 in which Justice Olsson considered an application for judicial review by Mr and Mrs Pope in which they sought to set aside the Coroner’s decision to order a post mortem consequent upon the death of their 10 month old son who drowned in a bucket of water. In considering an identical provision in the 1975 Act the Court stated:
“First it must be stressed that section 12 does not restrict itself to consideration of the literal cause of death. No doubt death by drowning, per se, is not unusual. However the statute also directs its attention to the circumstances of death.
The word ‘unusual’ is to some extent ambulatory in meaning and derives its construction from the context in which it appears. However the essence of the expression is that it connotes the existence of something out of the ordinary…. The medical evidence before me clearly reveals that, whilst the occurrence of young children drowning in buckets is documented, the incidence of such events is nevertheless rare.”
[11] By regulation 4(2) the following procedures are excluded:
“(a) the giving of an intravenous injection;
(b) the giving of an intramuscular injection;
(c) intravenous therapy;
(d) the insertion of a line or cannula;
(e) artificial ventilation;
(f) cardio-pulmonary resuscitation;
(g) urethral catheterization;
(h) the insertion of a naso-gastric tube;
(i) intra-arterial blood gas collection;
(j) venipuncture for blood collection for testing;
(k) the giving of a subcutaneous injection or infusion;
(l) ear syringing;
(m) acupuncture.”
[12] See section 3
[13] See section 28(1)
[14] The power of the Coroner to order a post mortem even where it infringed religious beliefs was also discussed by Justice Olsson in Pope and Pope ibid 9
[15] See section 23(1)
[16] See section 19
[17] See section 69A of the Evidence Act
[18] This phrase was considered by Justice Olsson in HG Collett Pty Ltd v Alsop 49 SAIR 309 at 323 -4 where His Honour said —
“The wide discretionary power conferred is, in a sense, self limiting in terms of procedure. Whilst informal procedures and evidence may usually be adopted, nevertheless anything done (or admitted) must stand the test and the established principles of natural justice.”
[19] Section 25(1)
[20] Page 21
[21] Page 24
[22] Page 31
[23] See paragraph 54
[24] See page 55
[25] See sections 14(1a) and 12(da) of the 1975 Act
[26] See section 12(2)
[27] See sections 12(3) and 12(4)
[28] See section 12(5)
[29] See paragraphs 4.2 and 4.3 of the findings
[30] See paragraph 4.22 of the findings
[31] See paragraph 5.1 of the findings
[32] See paragraph 3.41 of the findings
[33] See paragraphs 6.3 to 6.5 of the findings
[34] See paragraph 5.1 of the findings
[35] See section 25(4)
[36] See section 25(5)
[37] Section 27(3)
