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Death Notification Legislation (Amendment) Bill
Victorian Legislation Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY MATTERS
Clause 1 sets out that the purpose of the proposed Act is to make
amendments to the Coroners Act 1985 to create a category of
reviewable deaths to allow investigation of multiple child deaths
in a family and in relation to the functions and powers of the
Victorian Institute of Forensic Medicine with respect to
reviewable deaths. The Bill also amends the Births, Deaths and
Marriages Registration Act 1996, the Health Act 1958, the
Children and Young Persons Act 1989 and the Human
Services (Complex Needs) Act 2003.
Clause 2 provides for the commencement of the proposed Act.
Sub-clause (1) provides for the commencement of Parts 1, 4,
5 and 6 on the day after the Act receives Royal Assent.
These Parts deal with the amendments to the Health Act 1958,
the Children and Young Persons Act 1989 and the Human
Services (Complex Needs) Act 2003. Sub-clauses (2) and (3)
provide that the rest of the proposed Act comes into operation
on proclamation or, if not proclaimed by 1 January 2005, on
1 January 2005.
PART 2--AMENDMENTS TO CORONERS ACT 1985
Clause 3 inserts the following new definitions into the Coroners Act
1985--
· "child" means a person under 18 years of age;
· "parent", in relation to a child, includes--
· a step-parent;
an adoptive parent;
· a foster parent;
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· a guardian;
· a person who has custody or daily care and
control;
·
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a person who has all the duties, powers,
responsibilities and authority (whether conferred
by a court or otherwise) which, by law, parents
have in relation to children.
· "reviewable death" means the death of a second or
subsequent child of a parent, where the death is one--
· where the body is in Victoria; or
· that occurred in Victoria; or
· the cause of which occurred in Victoria; or
· of a child who ordinarily resided in Victoria at
the time of the death.
· "sibling", in relation to a child, includes a half-brother,
half-sister, adoptive brother, adoptive sister, step-
brother or step-sister of the child.
Clause 4 amends section 7 of the Coroners Act 1985 (Functions of State
Coroner) to provide that one of the functions of the State Coroner
is to ensure that all reviewable deaths reported to the State
Coroner are investigated.
Clause 5 inserts new section 10A into the Coroners Act 1985 to provide
that the State Coroner may, by instrument, delegate to a coroner
any power or duty of the State Coroner other than a prescribed
power or the power of delegation contained in this section.
Clause 6 inserts a new section 13A into the Coroners Act 1985 that
requires a person to advise the State Coroner if he or she
becomes aware of the existence of a reviewable death.
This obligation may arise notwithstanding that the death has
already been reported to a coroner as a reportable death if a
person subsequently becomes aware that the death is also a
reviewable death. A doctor who is present at the death must
report it as soon as possible to the State Coroner if the death is a
reviewable death. The maximum penalty for failure to comply
with the reporting obligations established by this section is
10 penalty units. The clause also provides that where more than
one doctor is present at of after the reviewable death, only one
doctor need report it to the State Coroner.
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Clause 7 amends section 14 of the Coroners Act 1985 (Information to a
coroner) to extend the obligation to provide information to a
coroner during the investigation of a reportable death to include
the provision of information during the investigation of a
reviewable death.
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Clause 8 amends section 15 of the Coroners Act 1985 (Jurisdiction of
coroners to investigate a death) to provide that a coroner must
report all reviewable deaths to the State Coroner and may only
investigate a reviewable death that is also a reportable death if
the jurisdiction to do so is delegated to him or her by the State
Coroner. If in the course of investigating a reportable death that
was not otherwise believed to be a reviewable death, a coroner
becomes aware that the death is a reviewable death he or she
must stop investigating the death and refer it to the State
Coroner. The coroner may continue to investigate the death if
the jurisdiction to do so is delegated to him or her by the State
Coroner.
Clause 9 inserts a new section 15A into the Coroners Act 1985 to provide
the State Coroner with jurisdiction to investigate reviewable
deaths and that the State Coroner must investigate reviewable
deaths. The State Coroner can delegate that jurisdiction to
another coroner and can direct a coroner to investigate a
reviewable death and the manner of conducting the investigation.
However, where the State Coroner has delegated jurisdiction to
another coroner who is conducting an inquest into the death, the
State Coroner cannot direct a coroner on the manner of
conducting that inquest.
Clause 10 inserts a new section 22A into the Coroners Act 1985 to provide
that a coroner may provide particulars about a child death to the
Consultative Council on Obstetric and Paediatric Mortality and
Morbidity. This would apply to any death of a child that is
reported to a coroner (including the State Coroner) under
sections 13 or 13A of the Coroners Act 1985. The "particulars
about a child death" encompasses all information that is received
or created by a coroner and includes the initial details regarding
the death and other material as it becomes available, such as
police reports, autopsy reports and a coroner's finding.
Clause 11 amends section 24 of the Coroners Act 1985 (Control of body)
to provide that section 24 also applies in cases of reviewable
deaths as well as reportable deaths.
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Clause 12 amends the heading of Division 2 of Part 5 of the Coroners Act
1985.
Clause 13 inserts a new Division 3 of Part 5 of the Coroners Act 1985
which provides for coronial powers in relation to the
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investigation of reviewable deaths. The powers under this
division may be delegated by the State Coroner to another
coroner to investigate reviewable deaths.
New Section 30A provides that the State Coroner has the same
powers of investigation for reviewable deaths as he or she has
with respect to reportable deaths.
New section 30B provides that where a reviewable death is also a
reportable death the State Coroner may refer it to the Victorian
Institute of Forensic Medicine to perform its functions under the
Coroners Act 1985.
New section 30C provides that where a reviewable death is not
also a reportable death the State Coroner may refer the death to
the Victorian Institute of Forensic Medicine to perform its
functions under the Coroners Act 1985.
New section 30D provides that the State Coroner may investigate
a reviewable death without referring to the Victorian Institute of
Forensic Medicine for consideration and investigation. However,
this section does not affect the State Coroner's power to refer the
death to the Victorian Institute of Forensic Medicine.
New section 30E provides that any information provided to a
coroner about a child or person of deceased child cannot become
part of the public record of the case or its investigation.
New section 30F provides that any information received by a
coroner about a reviewable death or a reportable death that is also
a reviewable death may be provided to the Victorian Institute of
Forensic Medicine to enable it to consider and investigate the
case and respond to the family, in accordance with its powers
under section 66A of the Coroners Act 1985, as appropriate in
the circumstances. This section clarifies that a coroner can
provide information to the Victorian Institute of Forensic
Medicine. This section is not intended to limit other powers that
a coroner may have to use and disclose information he or she
obtains in performing functions under the Coroners Act 1985.
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Clause 14 amends section 66 of the Coroners Act 1985 (Functions of the
Institute) to provide that it is one of the functions of the Victorian
Institute of Forensic Medicine to investigate, assess and instigate
appropriate responses in respect of the health or safety of a living
sibling of the deceased child and the health of a parent of a
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deceased child where the death is a reviewable death.
Clause 15 amends section 66A of the Coroners Act 1985 (Powers of the
Institute).
New sub-section (3) provides that, without limiting the Institute's
existing powers with respect to reportable deaths, the Institute
has powers to collect, use and disclose personal and health
information and advise the State Coroner as to whether a
reviewable death requires further investigation in the course of
considering the causes and circumstances of a reviewable death.
New sub-section (4) provides that the powers of the Victorian
Institute of Forensic Medicine include to--
· collect, use and disclose personal information and health
information;
· advise the State Coroner as to whether a reviewable
death requires further investigation;
· consult the family and other persons, including a health
service provider, to assess the family's need for health
and support services;
· refer the family to health and support services;
· assess whether a notification under section 64 of the
Children and Young Persons Act 1989 should be
made in relation to any living siblings of the deceased
child;
· make a notification under section 64 of the Children
and Young Persons Act 1989 in relation to any living
siblings of the deceased child;
· advise the State Coroner of any notification made under
section 64 of the Children and Young Persons Act
1989 in relation to any living siblings of the deceased
child.
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New sub-section (5) clarifies that a person is authorised to
provide information to the Victorian Institute of Forensic
Medicine if the Institute requests that information. It is intended
to allow for the collection, use and disclosure of information, but
not to override the other privacy principles.
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New sub-section (6) provides that "health information" has the
same meaning as in section 3(1) of the Health Records Act
2001, "health service provider" has the same meaning as in
section 3(1) of the Health Records Act 2001 and "personal
information" has the same meaning as in section 3 of the
Information Privacy Act 2000.
PART 3--AMENDMENTS TO BIRTHS, DEATHS AND
MARRIAGES REGISTRATION ACT 1996
Clause 16 inserts the following new definitions into the Births, Deaths and
Marriages Registration Act 1996--
· "child" means a person under 18 years of age;
· "Council" has the same meaning given in section 162B
of the Health Act 1958, namely, the Consultative
Council on Obstetric and Paediatric Mortality and
Morbidity established under section 162C of the Health
Act 1958;
· "Institute" has the same meaning given in section 3(1)
of the Coroners Act 1985, namely, the Victorian
Institute of Forensic Medicine;
· "neonatal death" means the death of a live-born child
within 28 days after the birth;
· "reviewable death" has the same meaning given in
section 3(1) of the Coroners Act 1985, namely, the
death of a second or subsequent child of a parent, where
the deaths is one--
· where the body is in Victoria; or
· that occurred in Victoria; or
the cause of which occurred in Victoria; or
· of a child who ordinarily resided in Victoria at
the time of the death.
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· "sibling" has the same meaning given in section 3(1) of
the Coroners Act 1985, namely, that, in relation to a
child, includes a half-brother, half-sister, adoptive
brother, adoptive sister, step-brother or step-sister of the
child.
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Clause 17 amends section 6 of the Births, Deaths and Marriages
Registration Act 1996 (Registrar's general functions) to provide
that it is one of the functions of the Registrar to provide the
coroner with information with respect to reviewable deaths on
living siblings of the deceased child and known or registered
subsequent child deaths, including neonatal deaths.
Clause 18 amends section 42(1) of the Births, Deaths and Marriages
Registration Act 1996 (Registrar's powers of inquiry) to provide
that the Registrar has a specific power to search the register
established under Part 7 of the Births, Deaths and Marriages
Registration Act 1996, in the case of the death of a child, to
determine whether a reviewable death has occurred or, if a
reviewable deaths has occurred, whether there are any living
siblings of the deceased child.
Clause 19 inserts the two new sections of a new Division 4A of Part 7 of the
Birth, Deaths and Marriages Registration Act 1996--
New section 49A provides that where the Registrar has received
a notice of the death of a child the Registrar must search the
register established under Part 7 of the Births, Deaths and
Marriages Registration Act 1996 to determine whether the
death is a second or subsequent death in a family and, if the death
is a second or subsequent death has occurred, whether there are
any living siblings of the deceased child. The new section also
provides that the Registrar may cause a search to be undertaken
on an equivalent register established in another State or Territory.
If, as a result of the search or searches, the Registrar determines
that the death of the child was a second or subsequent death, the
Registrar must advise the Sate Coroner and the Consultative
Council on Obstetric and Paediatric Mortality and Morbidity of
the results of the search or searches to enable them to carry out
their statutory functions. The State Coroner may then use the
information for the purposes of enabling the Victorian Institute of
Forensic Medicine in carrying out its consideration and
investigation into the death of the child to determine what, if any,
response is appropriate for the family in the circumstances.
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If the information provided to the State Coroner or the
Consultative Council on Obstetric and Paediatric Mortality and
Morbidity was obtained from the register in a State or Territory
other than Victoria, the Registrar must advise the State Coroner
or Consultative Council on Obstetric and Paediatric Mortality
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and Morbidity which register the information was obtained from.
For the avoidance of doubt, this section takes precedence over
section 44 of the Births, Deaths and Marriages Registration
Act 1996.
New section 49B provides that where the Registrar has received a
notice of a still-birth or the death of a child, the Registrar must
notify the Consultative Council on Obstetric and Paediatric
Mortality and Morbidity of that still-birth or death.
The Registrar, in the case of a still-birth, must provide the
Consultative Council on Obstetric and Paediatric Mortality and
Morbidity any medical certificate in his or her possession or
under his or her control relating to the still-birth.
The Registrar, in the cases of a neonatal death or a death of a
child who died between 28 days and 18 years of age, must
provide the Consultative Council on Obstetric and Paediatric
Mortality and Morbidity--
· any medical certificate in his or her possession or under
his or her control relating to the death; and
· a certificate of death.
PART 4--AMENDMENTS TO HEALTH ACT 1958
Clause 20 inserts the following new definitions into the Health Act 1958--
· "health service provider" has the same meaning given
in section 3(1) of the Health Records Act 2001;
· "Ministerial Committee" means a committee
established by the Minister for Community Services
whose functions include providing advice to the
Minister regarding the death of children and young
people who have been the subject of notifications under
section 64(1) of the Children and Young Persons Act
1989. This definition would include the Victorian Child
Death Review Committee.
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Clause 21 substitutes a new paragraph (a) for paragraphs (a) and (aa) of
section 162F(1) of the Health Act 1958 (Functions of the
Council) to provide that one of the functions of the Consultative
Council on Obstetric and Paediatric Mortality and Morbidity is to
conduct study, research and analysis into the incidence and
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causes of maternal deaths, still-births and the deaths of children
in Victoria who die aged less than 18 years of age and to collect
information (including personal and health information) for this
purpose.
Clause 23 inserts new sections 162FA and 162FB into the Health Act 1958.
New section 162FA provides that the Consultative Council on
Obstetric and Paediatric Mortality and Morbidity may request a
health service provider to provide information to the Council for
the purposes of fulfilling its functions under section 162F(1) of
the Health Act 1958. The section clarifies that, despite any other
law to the contrary, the health service provider who is requested
to provide information, is authorised to provide that information
to the Council.
New section 162FB provides that the Consultative Council on
Obstetric and Paediatric Mortality and Morbidity may, if it
determines it is in the public interest, provide information
obtained in the course of performing its functions under
section 162F(1) to--
· the Medical Practitioners Board of Victoria established
under the Medical Practice Act 1994;
· the Nurses Board of Victoria established under the
Nurses Act 1993;
· the State Coroner under the Coroners Act 1985;
· a Ministerial Committee;
· a protective intervener under section 64(1) of the
Children and Young Persons Act 1989;
· any other consultative council established or appointed
under the Health Act 1958;
· a day procedure centre, a multi purpose service, a
private hospital, a public hospital or a denominational
hospital within the meaning of section 3(1) of the
Health Services Act 1988;
· a body or person that the Council determines has
functions corresponding to one of the above bodies;
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· any other person or class of persons prescribed for the
purposes of this section.
If the Council determines that a release to one of the above
bodies or persons would be "in the public interest", it has a
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discretion to release the information to that body or person.
This information would be released so that the relevant body
can perform its functions. For instance, it could release the
information to the Medical practitioners Board to enable the
Board to determine whether to prosecute the matter.
However, pursuant to section 162H of the Health Act 1958,
the Council (and its officers) cannot be compelled under any law
to release information in its possession or under its control.
Further, the Council (and its officers) cannot be compelled under
any law to divulge or communicate any matter or thing that has
come under its notice in the performance of the functions of the
Council. Pursuant to section 162H, information that is in its
possession is also not admissible in any action or proceedings
before any court, tribunal, board, agency or person.
Clause 23 amends section 162H(1) of the Health Act 1958
(Confidentiality) to provide that a disclosure under
section 162FB is not a breach of 162H(1).
PART 5--AMENDMENTS TO CHILDREN AND YOUNG
PERSONS ACT 1989
Clause 24 substitutes section 64(3)(d) of the Children and Young Persons
Act 1989 (Notification to protective intervener) to provide that a
notification made to a protective intervener under section 64(1)
or 64(1A) of the Children and Young Persons Act 1989 does
not constitute a contravention of the confidentiality provisions
found in--
· section 162H of the Health Act 1958; or
· section 141 of the Health Services Act 1988; or
· section 120A of the Mental Health Act 1986.
The proposed section uses the expression "without limiting
paragraphs (a) or (b)", which clarifies that sections 64(3)(a)
and (b)--
· are not to be read down by reference to paragraph (d);
and
· are therefore not to be read subject to confidentiality
provisions that are not mentioned in section 64(3)(d).
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PART 6--AMENDMENTS TO HUMAN SERVICES
(COMPLEX NEEDS) ACT 2003
Clause 25 provides for consistency between the Human Services
(Complex Needs) Act 2003, the Mental Health Act 1986 and
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the Health Services Act 1988 by repealing section 31(3)(e) of
the Human Services (Complex Needs) Act 2003. The effect of
repealing section 31(3)(e) of the Human Services (Complex
Needs) Act 2003 is to ensure consistent obligations of
confidentiality to health service providers under the Human
Services (Complex Needs) Act 2003, the Mental Health Act
1986 and the Health Services Act 1988.
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