Anatomy of a Coronial Inquest

Paul Baram

Partner

Norton Rose Fulbright Australia

27 March 2014

Coronial Inquests

• An Inquest concerning the death or a suspected death of a person is required to be held if it appears to the Coroner that the manner and cause of the person’s death have not been sufficiently disclosed.

• The duties of a Coroner include directing Inquests into the cause of death, making findings and advancing recommendations. It is not the role of a Coroner to determine civil liability or negligence.

• Potential outcomes from Inquests include civil claims against a clinician or Hospital, adverse media publicity and referral to disciplinary bodies (Medical Council or HCCC).

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Who Should Report a Death?

s35 Coroners Act 2009

• A person who has reasonable grounds to believe that a death or suspected death of another person is a reportable death must report the death or suspected death to a Police Officer, a Coroner or an Assistant Coroner as soon as possible after becoming aware of such reportable death.

• Persons who generally report deaths to the Coroner include Police, medical practitioners and the families of the deceased.

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What is a Reportable Death?

s6 Coroners Act 2009

• The person died a violent or unnatural death.

• The person died a sudden death the cause of which is unknown.

• The person died under suspicious or unusual circumstances.

• The person died in circumstances where the person had not been attended by a medical practitioner during the 6 months immediately before the person’s death.

• The person died in circumstances where the person’s death was not a reasonably expected outcome of a health-related procedure carried out in relation to the person.

• The person died while in or temporarily absent from a declared Mental Health facility.

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What is a Coronial Inquest?

• Hybrid process, containing both adversarial and inquisitorial elements.

• Coroners exercise judicial power notwithstanding the executive nature of their functions.

• Proceedings in the Coroner’s Court involve the administration of Justice.

• Musumeci v Attorney General of NSW & Anor [2003] NSWCA 77

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Jurisdiction

s21 Coroners Act 2009

A Coroner has jurisdiction to hold an Inquest concerning the death or suspected death of a person if it appears to the Coroner that:

(a) the person’s death is (or there is reasonable cause to suspect that the person’s death is) a reportable death; or

(b) a medical practitioner has not given (or there is reasonable cause to suspect that a medical practitioner has not given) a certificate as to the cause of death.

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Procedure

• To a great extent the normal rules of evidence that apply in criminal and civil courts do not apply in respect of a Coronial Inquest (eg a Coroner can receive hearsay evidence).

• A witness may refuse to answer questions on the grounds of self-incrimination.

• Objection may be taken to evidence on the grounds of unfairness or bias;

• The Coroner’s primary focus is on finding the truth of what occurred in order to prevent deaths from similar causes happening in the future.

• The rules of procedural fairness apply.

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Expert Reports on Behalf of Clinician

• Should expert evidence be obtained on behalf of the clinician?

• Depends on what’s in the Coroner’s Brief.

• Has the Coroner obtained expert evidence which criticises the clinician’s management of the deceased?

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Expert Reports

Inquest – Anne Mountford

• Death by constipation?

• Ischaemic heart disease

• Severe constipation – caused by Seroquel?

• Cardiologist report supported the treatment by the GP and discounted any causal connection between the deceased’s constipation and her death.

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Expert Reports

Inquest – Ian Klum

• Prisoner bashed in Grafton Gaol

• Deceased was prescribed Warfarin by clinician

• Died of an intracranial bleed after the bashing

• Expert reports by a haematologist and rural GP expert exonerated clinician in his monitoring of INR levels and prescription of Warfarin

• Coroner excused clinician from giving evidence as being no longer a person of interest

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Expert Reports

Inquest – Graham Lomas

• Deceased absconded from psychiatric unit.

• Deceased found dead a couple of days later at Clovelly Beach.

• Expert evidence by psychiatrist in support of psychiatrist clinician.

• Coroner found that clinician’s treatment was appropriate.

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Expert Reports

• In many cases an expert report is not necessary.

• Depends on what evidence is being presented to the Coroner, the focus of the Inquest and whether or not the clinician is in danger of adverse findings.

• Case by case basis.

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Privilege against self-incrimination

s62 Coroners Act 2009

A person who appears (whether or not on subpoena or warrant) to give evidence or to produce any document or thing in Coronial proceedings must not, without lawful excuse:

(a) refuse to take the oath or affirmation; or

(b) refuse to be examined on oath or affirmation; or

(c) having taken the oath or make an affirmation, refuse to answer any question relevant to the subject-matter of the proceedings, or

(d) refuse or fail to produce the document or thing.

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Privilege against self-incrimination

s61 Coroners Act 2009

• A witness may object to giving evidence if the evidence may tend to prove that the witness has committed an offence or is liable to a civil penalty.

• The Coroner must determine whether or not there are reasonable grounds for the objection.

• If the Coroner determines there are reasonable grounds for the objection the witness may give evidence after being given a certificate by the Coroner.

• Effect of a certificate is that the evidence cannot be used against the person in a Court or Tribunal.

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Privilege against self-incrimination

• The Coroner may require the witness to give evidence if the Coroner is satisfied that the evidence does not tend to prove that the witness has committed an offence or is liable to a civil penalty and the interests of justice require that the witness give the evidence.

• The procedure is that the witness is sworn in and then takes objection.

• Objection can be taken either on a question by question basis or on a global basis.

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When Should Objection Be Taken?

• Case by case basis.

• Civil penalty includes the outcome of disciplinary proceedings (Medical Board or NCAT).

• What is the potential risk to the clinician of an HCCC investigation or referral to the Medical Council.

• What is the focus of the Inquest? Systemic issues rather than the actions individual doctors?

• Potential seriousness of any criticism of the clinician.

• In most cases giving evidence won’t be a risk for the clinician.

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Practical Guide

• If contacted by Police or Crown Solicitors seeking a statement the clinician should immediately contact their MDO, as appropriate.

• Is the clinician a person of interest?

• If so, MDO and/or MDO’s panel lawyer will work with the clinician regarding the statement.

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Practical Guide

• What is a brief of evidence?

• What is in the brief of evidence?

• How is it prepared?

• What is it used for?

• Options for response to the brief of evidence including supplementary material.

• Witness list and list of issues.

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Practical Guide

The hearing of the Inquest

• Examination by Counsel assisting

• Examination by other parties

• Examination by own Counsel

• Re-examination by Counsel assisting

• Examination by Coroner

• Draft recommendations

• Submissions

• Coroner’s findings and recommendations

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