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Coronial Inquests – NSW

Coronial Inquests – NSW

The Office of the State Coroner may become involved if there has been a “reportable death”.

 What is a “reportable death”?

A person’s death is a “reportable death” if:

    1. It is a violent or unnatural death.
    2. It is a sudden death, the cause of which is unknown.
    3. It involves suspicious or unusual circumstances.
    4. The person had not been attended by a doctor during the six months immediately before the person’s death.
    5. The death was not the reasonably expected outcome of a health-related procedure.
    6. The person was in, or temporarily absent from, a declared mental health facility within the meaning of the Mental Health Act 2007 for the purpose of receiving care, treatment or assistance.

What are the obligations of health practitioners in the event of a “reportable death”?

 Doctors, health professionals, emergency service workers and police are required to report “reportable deaths” to the Police as soon as practicable. Failure to do so is an offence. The Police then refer the matter to the Coroner.

Mandatory reporting by health practitioners also applies to deaths in a further three categories, all three of which require a coronial inquest to be held – see Mandatory Inquests below.

A doctor must NOT issue a death certificate as to the cause of death for any of the above (“reportable deaths” or the 3 categories of Mandatory Inquests below).

What happens when the coroner is notified of a “reportable death”?

 An inquest is not automatically held. Before deciding to hold an inquest, the Coroner will first investigate the death which may involve:

  • Advice from a police officer who will also assist in collection information.
  • Statements from treating medical practitioners.
  • Consultation with a senior next of kin and any other person the Coroner considers appropriate.
  • An autopsy, particularly where an inquest seems likely.

The investigation may take many months. If the information obtained during the investigation satisfies the coroner as to the identification of the deceased person, the date and place of death as well as the manner and cause of death, then (as happens most of the time) the Coroner will “dispense with the inquest”.

Interested parties

The relative of a deceased person may register his/her interest by writing to the NSW Coroner’s Court.  Interested parties are kept informed at key stages of the investigation, such as:

  • When the Coroner decides either to dispense or proceed with an inquest.
  •    When the matter is listed for inquest.
  •    When the matter is finalised.

What is an inquest?

 An inquest is a hearing conducted by the Coroner to investigate a person’s death.

The purpose of a coronial inquest is to determine both the manner and cause of death.   The Coroner’s role is to find out what happened, rather than to lay blame.

Except in special circumstances, it is a public hearing.

Who can initiate an inquest?

In New South Wales, a deceased’s family no longer has the right to request the Coroner conduct an inquest.   They may request in writing that an inquest be held and their reasons why, however the Coroner will only take this into account when deciding whether to hold an inquest. In making a representation to the Coroner, consideration should be given to the following questions:

  1. Are any of the statutory issues unclear – fact of death, identity, time, place, manner or cause?
  2. Are there any other private concerns held by a close relative that should be investigated?
  3. Is there any public interest to be served by the holding of an inquest?

If the Coroner decides to dispense with an inquest, an interested party is entitled to request written reasons for the decision and the Coroner is obliged to provide them.

An interested party may appeal to the Supreme Court of NSW if they believe that an inquest should be held but the Coroner has refused to do so. The Supreme Court will make an order that an inquest be held if it satisfied that it is “necessary or desirable to do so in the interests of justice”.

Mandatory inquests

There is a limited set of circumstances set out in the Coroners Act 2009 in which the Coroner must hold an inquest.  These include but are not limited to the death of:

  1. An individual in (or escaping from) police custody or whose death occurs during police operations.
  2. A child who is in care or whose death may be due to abuse or neglect.
  3. A person living in residential care or receiving assistance under the Disability Services Act 1992.

These three categories also give rise to the requirement of mandatory reporting to the Police   and a prohibition from doctors issuing a death certificate as to the cause of death.

Who attends an inquest?

 When the Coroner decides to hold an inquest, any person with sufficient interest in the subject matter of proceedings may appear in person or be legally represented at the inquest. Any person who is a relative of the deceased will be entitled to appear or be represented at the inquest other than in exceptional circumstances.

An interested party is not entitled to participate in the inquest or ask questions of witnesses unless leave to do so has been granted by the Coroner. An application for leave may be made to the Coroner at the beginning of the inquest.

 Do I need legal representation at an inquest?

 The family is not required to have legal representation at an inquest. The Coroner’s assistant can ask questions on their behalf. However, in cases involving appropriateness of medical treatment, issues are very complex and technical. Other parties at the inquest, especially doctors and hospitals, will be legally represented. In such cases, it may be worthwhile for the family to have their own legal representation.

 Powers of the Coroner during an inquest

The Coroner may summon witnesses to give evidence of their knowledge of the circumstances of the case under investigation. The Coroner has the power to administer oaths and any witnesses not telling the truth face charges of perjury.

The Coroner cannot find someone guilty of a crime. If, at any time during the course of an inquest or inquiry, the Coroner forms an opinion that a known person has committed an indictable offence in connection with the death, the Coroner is required to suspend the inquest or inquiry and refer the matter to the Director of Public Prosecutions (DPP).

Coroners also have the power of arrest but it is entirely a matter for the DPP to determine whether charges should be laid against the person, and a matter for the criminal courts to determine whether the person is guilty.

What is the relationship between a coronial inquest and a civil law claim?

 A Coroner cannot determine civil liability, although the Coroner’s finding may be relied upon in subsequent civil proceedings and/or insurance claims. As such, the inquest may be a useful source of evidence for future civil proceedings.

It is important to note that the Coroner does not make a finding as to guilt or innocence of criminal liability and is similarly required to refrain from making a finding that appears to determine civil liability.

Where the Coroner’s findings suggest there may have been negligence on the part of any person, it is up to the relatives of the deceased to take any appropriate action.

Here at Catherine Henry Lawyers, we can advise you whether there is sufficient evidence to justify a compensation claim and, if so, about the possibility of running a common law claim for professional negligence in tandem with the coronial process.

Although the Coroner cannot award compensation, in some cases we can assist you with claiming compensation at common law for emotional injury or nervous shock suffered by survivors.  It may also be possible to recover funeral costs and other expenses relating to the death.

Coroner’s power to make recommendations

Following an inquest, the Coroner may make recommendations to government and other agencies with a view to improving public health and safety. This includes referral to the NSW regulatory body, the Health Care Complaints Commission (HCCC).

The Coroner has no power to enforce compliance with such recommendations. It is a matter for the relevant government ministers or agencies to determine whether a Coroner’s recommendations should be adopted. Since July 1, 2009, those responses have been published by the Department of Attorney General and Justice, and can be accessed on the Coroner’s website.

The case of Vanessa Anderson

The high profile inquest into the death of Vanessa Anderson serves to illustrate the important role played by coronial inquests in the regulation of health services. That case involved a 16-year-old girl who was struck in the head with a golf ball and suffered a non life-threatening depressed fracture of the skull. She was transferred to another hospital where a series of individual errors of judgment, coupled with incompetent management and a breakdown in communication and management, culminated in her death two days later. Having originally been admitted with a mild head injury, her death, the Coroner found, was the result of respiratory arrest due to the depressant effects of opiate medication.

The Coroner commented: “Vanessa’s case should be used as a precedent to highlight how individual errors of judgment, failure to communicate, failure to record accurately and poor management of staff resources, cumulatively led to the worst possible outcome… I have never seen a case such as Vanessa’s in which almost every conceivable error or omission was detected and those errors continued to build one on top of the other.”

These comments prompted a public inquiry by Commissioner Peter Garling SC into the level of care and treatment at NSW public hospitals. The Special Commission of Inquiry into Acute Care Services in NSW Public Hospitals reviewed 61 public hospitals. The final report, published in November 2008, set out 139 major recommendations and proposed changes to the models of care for NSW public hospitals. Importantly, responsibility for implementation of the proposed reforms was independent of the NSW Department of Health.

Our experience

We have conducted numerous inquests, many of which have raised important issues of public interest.

Case Study 1

A 25-year-old man in Newcastle who had very recently been discharged from hospital on a community treatment order took an overdose in the night of the drug Clozapine, which was being prescribed to treat his schizophrenia. He woke his partner who rang 000. She informed the operators of the overdose; that he was agitated and drowsy and she also said that he “can be violent”. Because of the stated potential for violence, the ambulance arrived but “stood off” and requested the police to attend. The ambulance officers elected to remain standing off for 28 minutes pending police attendance even though a further call by the patient’s partner was made advising that he had deteriorated and was convulsing. When the patient was finally taken to hospital, he went into cardiac arrest and could not be saved.

Due to the police involvement, an inquest was mandatory. The Coroner made a number of recommendations to the NSW Ambulance Service including for comprehensive training and an inclusive policy for all staff (including radio operators) when using a “standing off” protocol. Recommendations were also made to the NSW Police Force regarding categorisation of priority levels and adding a special priority for ambulance requests for assistance.

Case Study 2

A 22-year-old breastfeeding mother of one, on a low-dose oral contraceptive, presented to the emergency department of Shoalhaven Hospital NSW with abdominal pain, vomiting, diarrhoea and fainting. Her ectopic pregnancy was not diagnosed and she was discharged after mistakenly being treated for gastroenteritis. 36 hours later she died of a burst fallopian tube.

The local Coroner determined to dispense with an inquest but on his behalf, Catherine Henry (at a previous law firm) successfully requested the State Coroner to direct an inquest be held. One of the reasons for an inquest was the public interest in ensuring the adequacy of NSW services for women of child-bearing age. Specifically, the question as to whether pregnancy testing for young women who present for medical attention with abdominal pain should be mandatory.

The Coroner ultimately made a finding that no blame be apportioned, noting that the symptoms of gastroenteritis and ectopic pregnancy are very similar. However, the treating practitioner involved subsequently changed his practise to include mandatory pregnancy testing for women of child-bearing age presenting with abdominal pain.

Case Study 3

A 50-year-old man died during an elective angioplasty at Lake Macquarie Private Hospital. Because the death was in a hospital setting within 24 hours of an anaesthetic, the family was entitled to request a coronial inquiry to ascertain the precise time and cause of death.

 Case Study 4

A 13-year-old boy died in Orange NSW from liver failure due to the toxic effects of paracetamol which he was given for pain relief over a 14-day period following a routine hip operation.

The Coroner recommended that the NSW Minister for Health consider making the following general changes to the accessibility of paracetamol:

  • Restricting sales of paracetamol to pharmacies only (not supermarkets).
  • Clearer warnings on packaging.
  • Restrictions on advertising because of the potential of overdose and health risks (especially to children).
  • Standardisation of doses and strengths to reduce consumer confusion.

The Coroner also made recommendations specific to this case including:

  • An expert committee to review the use and abuse of the drug to prevent liver failure in children.
  • Introducing a standard form when transferring patients which would contain information on medication, dosage and pathology results so as to help prevent overdoses.

 How can we help?

If you are looking for information or help in relation to the Coroner, we can help you navigate the process. Our health law team is highly respected in the area, with specialist knowledge accumulated over 25 years.

Our team of highly experienced health lawyers can assist you in:

  • Liaising with the Coroner’s office.
  • Making an application to the Supreme Court seeking orders requiring the Coroner to conduct an inquest.
  • Drafting questions to raise at inquest.
  • Arranging expert evidence.
  • Arranging an appropriately experienced advocate to represent you at the inquest.
  • If evidence indicates a compensation claim is worthwhile, we can assist you with this when the inquest is concluded.

Our team can assist you by providing expert advice and legal support regarding your options. Contact us today

 *The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.

 

 

 

 

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