Freckleton, I --- "Opening a new page" [2009] UMonashLRS 4

Last Updated: 20 April 2011

Opening a New Page

Under new legislation Victorian Coroners are to have a significantly changed role in investigation of deaths and fires, with a stronger focus on recommendations for preventative action and transparency of Coroners’ decision-making.

This paper was originally published in Volume 83, Issue 6 of the Law Institute Journal, pages 29-33.

By Ian Freckelton SC[1]
The Coroners Act 2008 (Vic) (the new Act), which comes into force on 1 November 2009, and which partially implements the 2006 recommendations of the Law Reform Committee of the Parliament of Victoria,[2] returns Victoria to the forefront of Australian coronial reform for the first time since the introduction of its predecessor, the Coroners Act 1985 (Vic) (the old Act).

The new Act makes important and far-reaching changes to the jurisdiction of death and fire investigation by Victorian coroners. It creates a Coroners Court, nominated to be an “inquisitorial court”[3] headed by a County Court judge; it gives a new and public status to coroners’ comments and recommendations; it mandates publication of coroners’ decisions; and it institutes coroners in a meaningful sense as public health officials with an explicit focus on death and fire prevention. This article reviews the important innovations of the new Act and what they will mean for legal practitioners representing the interests of those involved or potentially involved in inquests.
The role of the coroner

With reservations being expressed as never before about the relevance and role of the coroner as a contemporary investigator of deaths and fires,[4] as well as about the status of the office, it is timely that there be reforming coronial legislation in Victoria. In October 2008, Deputy Premier and Attorney-General Rob Hulls, announced that the Coroners Act 2008 constituted part of a broad coronial reform strategy designed to reduce the number of preventable deaths and improve communication with, and services to, families in metropolitan and regional Victoria.[5]

In this context, the statement of purposes in the new Act takes on real importance, not just symbolically but in facilitating interpretation of the Act’s provisions. Aside from requiring the reporting of certain deaths and providing for coroners to investigate deaths and fires in specified circumstances, the Act has a prophylactic purpose “to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners”: (s1(c)).

However, the new legislation does not unleash coroners from the stricture not to function as a free-standing Royal Commissioner[6] and continues to confine coroners in their findings and recommendations to matters arising from the circumstances of death – inquests cannot be convened to enable the making of comments or recommendations.
Coroners’ obligations

Concerns were expressed to the Law Reform Committee about delays and inefficiencies in coroners’ decisions and the way in which the State Coroner’s Office dealt with family members of deceased persons. As a result, s8 of the new Act enunciates a variety of factors that coroners are obliged to consider in discharging any of their powers:

(a) that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional or other support;
(b) that unnecessarily protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c) that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected;
(d) that family members affected by a death being investigated should, where appropriate, be kept informed of the particulars and progress of the investigation;
(e) that there is a need to balance the public interest in protecting a living or deceased person’s personal or health information with the public interest in the legitimate use of that information; and
(f) the desirability of promoting public health and safety and the administration of justice.

In addition, it is prescribed that the coronial system “should operate in a fair and efficient manner” (s9), thereby making it clear that some of the delays that have afflicted institution and resolution of inquests are unacceptable. A range of new obligations now also apply to the provision of information by coroners to members of the family of the deceased person (s21). In addition, the senior next of kin must be provided with any reports given to the coroner as a result of the conduct of medical examinations (s115(1)(a)). “Interested parties”, namely those given leave by a coroner (under s56) to appear at an inquest, must be given a copy of the inquest brief. However, in general, documents relating to coroners’ investigations must not be released without the order of a coroner: s115(6). On occasions this will involve a tension with the need to maintain individual health privacy for those who have died: s8(1)(e).
Reportable deaths

The operation of the coroners’ jurisdiction continues to depend heavily on the definition of “reportable death” (s4(2)(a)–(j)).

A coroner must investigate reportable deaths (s15(1)) provided they took place in Victoria and occurred within 50 years of being reported. The 2008 Act makes important changes in this regard. The archetypal form of reportable death continues to be a “a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury”: s4(2)(a). However, an important change is that the previous category of deaths occurring during or immediately after anaesthesia has been omitted. Instead, an attempt is made to mandate reporting of a wider category of “medical deaths” by making reportable a death that occurs during “a medical procedure” or “following a medical procedure where the death is or may be causally related to the medical procedure”: s4(2)(b). “Medical procedure” is broadly defined in s3. In both instances, whether or not a death is reportable depends on whether a medical practitioner “would not, immediately before the procedure was undertaken, have reasonably expected the death”: s4(2)(b). While this yardstick purports to be objective, and is clearly intended to increase the reporting of “medical deaths”, it is likely to yield varying interpretations. It remains to be seen whether it brings consistency and results in significantly increased levels of reporting of deaths known to those in hospitals.

Other important categories of reportable deaths are: deaths of persons “placed in custody or care” (s4(2)(c)); and deaths of persons who immediately before their death were a patient within the meaning of the Mental Health Act 1986 (Vic), i.e. as an involuntary inpatient or as a mandated outpatient on a community treatment order: s4(2)(d). Deaths of those in the control, custody of care of the Department of Justice or police (s4(2)(e)), and under the supervision of the courts pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (s4(2)(f)) are also reportable. This means that there will continue to be coronial scrutiny of deaths of vulnerable persons to whom the state has particular responsibilities.
Reporting of reportable deaths

Doctors present at or after (no time frame expressed) the death of a person are obliged to report a death “without delay” under pain of being found to have committed a criminal offence: s10(1). Meeting a particular concern about persons dying during or after receiving psychiatric treatment, potentially in circumstances where such treatment has been inadequate or ill-considered, there is a specific provision that a member of the immediate family of a deceased person may report a death to the coroner if the deceased had been discharged from an approved mental health service within the previous three months: s12(2). This has the potential to increase the scrutiny of deaths of persons with psychiatric disorders when their community treatment and follow-up may have been deficient.
Post-mortem procedures

New radiological technologies for medical investigation of death without undue intrusion on the bodies of deceased persons,[7] and community reservations about the high incidence of full autopsies, have generated an innovative regime for post-mortem examinations under the new Act. Coroners have control of bodies if a death is reportable or being investigated by a coroner: s22. Coroners have broad powers, without any specified procedures for review by the Supreme Court, to provide bodies to a “medical investigator” for a “preliminary investigation”, which is defined as a visual, dental examination, obtaining of health information, taking of bodily fluid samples, including blood, urine, saliva and mucus (with incisions if necessary), imaging of the body, taking of samples such as swabbing), fingerprinting and other procedures not extending to dissections: s3.

By contrast, when autopsies (which can involve full dissection of the body)[8] are ordered by a coroner, the senior next of kin must be notified first: s26(1). Autopsies can only be ordered where the coroner believes they are necessary for the investigation of a death: s25(2). As with a number of the 2009 bushfire deaths, this can be where an autopsy is necessary to identify the deceased person. Within 48 hours of receiving such notification, the senior next of kin may ask the coroner to reconsider the direction for an autopsy: s26(2). If the coroner determines, after reconsideration, that an autopsy is necessary or not necessary for the investigation of the death, the coroner must give written notice to the senior next of kin: s26(3). However, the autopsy cannot take place for 48 hours. This enables the next of kin to appeal against the coroner’s decision to the Supreme Court (s79) on a question of law (s87). There are procedural (ss43–46) and appellate provisions (s81) in relation to coroners’ decisions about exhumations which mirror the provisions under the old Act.

There are specific provisions in the new legislation which codify the circumstances in which tissue can be removed from deceased persons under the supervision of a medical investigator (s28). In the aftermath of revelations of covert retention practices in a variety of jurisdictions, these provisions will be important in providing reassurance to relatives of deceased persons that the full remains of their loved ones are being buried or cremated.

Coroners continue to have wide powers to authorise members of the police force investigating a death to break, enter, search, seize, and take copies of documents (s39). Reasonable force can be used in exercising any of these powers. A coroner who is of the opinion that a document or prepared statement is required for the purposes of an investigation can require a person to provide such a document or prepare it. Failure to comply is a criminal offence: s42.
Holding of inquests

There is an important distinction between coroners’ “investigations” and “inquests”. Coroners are obliged to hold inquests if they suspect that a death was the result of homicide, the deceased was, immediately before their death, in custody or care, or the identity of the deceased is unknown. However, this does not apply if the coroner believes that the death probably occurred more than 50 years earlier, a person has been charged with an indictable offence relating to the death, or an interstate coroner has investigated the death: s52(2). Persons with a “sufficient interest” may be given leave to appear at an inquest: s56.

The privilege against self-incrimination

The ability of persons at risk of being charged with murder, manslaughter, infanticide or culpable driving to decline to give evidence to a coroner under the old Act was controversial and highly problematic for the efficacy of the coronial function. However, s50 of the new Act provides that, while persons can refuse or fail to provide information for the coroner (under ss32, 33, 34 and 42) on the basis that to do so would incriminate them (s50), otherwise the privilege does not apply to evidence before a coronial inquest: s57. A witness can object to giving evidence on the basis that their doing so may tend to prove that they committed an offence against or arising under an Australian or foreign law or making them liable to a civil penalty. A coroner who determines that there are reasonable grounds for the objection may require the witness to give evidence but provide a certificate – the effect of which is that the person’s evidence and any information, document or thing obtained as a direct or indirect consequence of their having given evidence cannot be used against them in other legal proceedings other than proceedings for falsity of the evidence: s57(7). This will significantly improve the ability of coroners to undertake their functions effectively in matters such as fatal police shootings. Legal professional privilege remains unaffected under the new Act: s58.

Findings and comments by coroners

Coroners investigating deaths (whether or not a formal inquest is convened) are obliged, if possible, to make findings as to:

• the identity of the deceased;
• the cause of death; and
• the circumstances in which the death occurred: s67(1).
  

However, the administrative burden on coroners has been eased. They are not obliged in their “chambers findings” (i.e. where an inquest was not held) to make findings about the circumstances of death (namely how and in what manner the death occurred) if the deceased was not, immediately before death, in custody or care and there is “no public interest to be served” in making such a finding: s67(2). This will result in a reduction in the extent of findings by coroners in many investigations, no doubt to the frustration of some families.

The ancient “rider” power of coroners is preserved under the new Act, permitting (but not obliging) coroners to “comment” on any matter connected with a death, including matters relating to public health and safety or the administration of justice: s67(3). Coroners’ findings and comments cannot include any statement that a person is or may be guilty of a criminal offence: s69. However, somewhat surprisingly, there is no similar preclusion in relation to civil liability or unprofessional conduct/misconduct in a disciplinary context.
Reports and recommendations by coroners

In addition to their powers to “comment”. coroners are empowered to report to the Attorney-General on any matter they investigate: s72(1). In a series of important innovations, though, they are now also empowered to make “recommendations” to any Minister, public statutory authority or entity on any matter connected with a death or fire that the coroner has investigated, including recommendations relating to public health and safety or the administration of justice: s72(2). If a public authority or entity receives such a recommendation, it is obliged to make a written response within three months with a statement of action (if any) that has or will be taken in relation to the recommendations: s72(3)–(4). While this does not constitute any form of enforcement role for the coroner, it goes a significant way to leveraging responses to (if not compliance with) coroners’ recommendations. In so doing, it entrenches the public health function of coroners and significantly escalates the importance of their recommendations.
Publication on the internet

An innovation of the new Act is the creation of the “cyber-coroner”. Coroners are obliged to publish the s72 responses of public statutory authorities and entities on the internet and to provide copies of such responses to any person who has advised of an interest in the recommendations and to anyone else the principal registrar concludes has a sufficient interest in the subject of the recommendations: s72(5)(a)–(b).

In addition, findings, comments and recommendations following an inquest must be published on the internet unless a coroner specifically orders to the contrary (s73(1)) – such as when such publication would be likely to prejudice a person’s fair trial or otherwise be contrary to the public interest: s73(3). This new obligation of publication will make Victorian coroners’ decisions accessible in a way comparable to the decisions of County Court and Supreme Court judges. It will also make coroners’ decisions amenable to evaluation and research to a degree not previously possible. It will have the advantage of making coroners’ reasoning more accountable, thereby probably enhancing quality, and allowing for evaluation of findings and recommendations from legal, medical and public health and safety perspectives as well as assessment of the extent to which recommendations are capable of being implemented and, in fact, are being implemented.
Appeals

Coroners’ inquests have many distinctive characteristics, including their inquisitorial character and the fact that they are not necessarily final – new information can arise subsequent to the conclusion of an inquest and require the public record of findings to be “corrected”. A person can apply to the Coroners Court for an order that some or all of the findings of a coroner (whether or not an inquest has been held) should be set aside: s77(1). The Court can do so if satisfied that there are new facts and circumstances and that it is appropriate to re-open the investigation.

The new Act contains an important reformulation of the regime for appeals to the Supreme Court. While appeals in relation to autopsies (s79), exhumations (s81) and release of bodies (s85) must be brought within 48 hours, those in relation to decisions on whether a death is reportable (s78), not to investigate a fire (s80), not to hold an inquest (s82), and not to re-open an investigation (s84) must be brought within three months. Appeals against findings must be brought within six months: s83. There is no provision for appeals against recommendations or comments. The Supreme Court may extend time in “exceptional circumstances” and when satisfied that granting leave to appeal out of time is “desirable in the interests of justice”: s86(a)(b). All appeals are on a question of law, meaning that they will be considerably more difficult to institute than under the previous legislation which contained convoluted and antiquated grounds for the institution of appeals.

Prevention

The hallmark of the new Act is its new and overt emphasis on prevention. This is reinforced extra-legislatively by the creation of a multi-person prevention unit within the Office of the Coroner, incorporating the Clinical Liaison Unit, to, among other things, assist in the development and evaluation of recommendations. The reduction in appeal rights, save as to matters of law, the recent appointment of additional coroners, the creation of a distinctive Coroners Court as “a specialist inquisitorial court” (s1(d)), the publication of coroners’ findings and recommendations, and the imposition of obligations to respond to coroners’ recommendations constitute important initiatives to modernise and enhance the status of Victorian coroners.

The result is likely to be a court that is more effectively able to speak for the dead and to protect the living.

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[1] IAN FRECKELTON SC is a Victorian barrister. He is the co-author (with David Ranson) of Death Investigation and the Coroner’s Inquest (2006, OUP).

[2] Law Reform Committee, Parliament of Victoria, Coroners Act 1985, 2006, Government Printer, www.parliament.vic.gov.au/LAWREFORM/inquiries/Coroners%20Act/final%20report.pdf (accessed 20 April 2009).

[3] For the coroner’s court as a potential instrument of therapeutic jurisprudence, see M King, “Non-adversarial justice and the Coroner’s Court: A proposed therapeutic, restorative, problem-solving model” (2008) 16 Journal of Law and Medicine 442; I Freckelton, “Death investigation, the Coroner and therapeutic jurisprudence” (2007) 15 Journal of Law and Medicine 242.

[4] See e.g. L Thomas, A Straw and D Friedman, Inquests: A practitioner’s guide, 2008, Legal Action Group, London; F Gibson, “Legal aid for coroners’ inquests” (2008) 15 Journal of Law and Medicine 587; I Freckelton and D Ranson, “The evolving institution of coroner” in I Freckelton and K Petersen (eds), Disputes and Dilemmas in Health Law, 2006, The Federation Press; I Freckelton, “Reforming coronership: international perspectives and contemporary developments” (2008) 16 Journal of Law and Medicine 379.

[5] The Premier of Victoria, Coroner gets new powers to keep Victorians safe, media release, 9 October 2008, www.premier.vic.gov.au/attorney-general/coroner-gets-newpowers-to-keep-victorians-safe.html (accessed 20 April 2009).

[6] Harmsworth v State Coroner [1989] VicRp 87; [1989] VR 989.

[7] See e.g. B Carpenter, M Barnes, C Naylor, G Adkins and B White, “Issues surrounding a reduction in the use of internal autopsy in the coronial system” (2006) 14 Journal of Law and Medicine 199.

[8] See I Freckelton and D Ranson, Death Investigation and the Coroner’s Inquest, 2006, Oxford University Press.