CHAPTER 9 Coroners’ Courts

The role of Coroners’ Courts

All of the states and territories have legislation dealing with the function of Coroners’ Courts and for once the title of the Act is the same in each state and territory — that is, the Coroners Act.¹ Coroners’ Courts have been in existence for many hundreds of years and their presence in our legal system is part of the legacy we inherited from the English common-law system. Parliaments in each state and territory have now embodied and enlarged the role of the coroner in the specific legislation referred to.

The primary role of the coroner was, and still is, to detect unlawful homicide. When a person dies in unusual, unexpected, violent or unnatural circumstances, it is necessary to inquire into the manner and cause of death to ensure that no ‘foul play’ goes undetected.

As a general rule, in all states and territories, Coroners’ Courts are presided over by magistrates who, for the purpose of carrying out their function in the Coroners’ Courts, are called coroners and exercise the power of a coroner. In the states of New South Wales, Victoria, South Australia and Western Australia the Coroners Act provides for the appointment of a magistrate to the position of State Coroner. In New South Wales, Victoria and South Australia the position of a magistrate as Deputy State Coroner is also provided for. In the other states and territories the Chief Magistrate or a magistrate is appointed to perform the role of coroner. In the larger states, where the workload demands it, those magistrates appointed as State Coroner or Deputy State Coroner work exclusively in the coronial jurisdiction and oversee and coordinate the coronial services for the state. As well, they are required by the Coroners Act to preside over inquests into deaths in specified circumstances. For example, where a person dies in police custody, the inquest into that person’s death must be conducted by the State Coroner or Deputy State Coroner.

In the capital cities, Coroners’ Courts are usually separate courts because of the volume of work they are required to perform. However, in most cities and towns, the local court house is used as the venue for coroners’ inquests. An inquest is not unlike a normal court hearing where relevant witnesses are called and cross-examined.

The primary task of the coroner is to establish the following facts:

that death occurred;

the identity of the deceased;

the date, place, manner and cause of death;

and, where relevant,

the cause of fires or explosions.

In carrying out his or her inquiries into the manner and cause of death, the coroner may come to the decision that the deceased died as a result of a criminal act committed by a particular known person and that, on the evidence, consideration should be given by the prosecuting authorities to have that known person charged with murder or manslaughter. If the coroner comes to such a conclusion then certain procedural steps are required to be followed in order to ensure that the known person is sent (committed) to stand trial in another, higher, court. Coroners’ Courts do not conduct trials of any sort.

In making the formal findings required, and where there is no evidence of a criminal offence, the coroner may nevertheless conclude such findings by making certain recommendations about factors which led to the deceased’s death. For example, a few years ago a coroner’s inquest was held in Sydney into the death of an elderly patient who had died as a result of burns received from suddenly turning on the hot water tap while showering in hospital. The sudden rush of scalding water so shocked the patient that she was unable to turn the tap off before help arrived and she sustained severe burns from which she later died. In giving his findings as to the manner and cause of death, which was as a result of severe burns sustained while showering, the coroner also made certain recommendations concerning the temperature of hot water in hospitals. He recommended that, in hospitals and nursing homes, the temperature of the hot water should be thermostatically controlled to prevent such occurrences. The coroner’s recommendation was forwarded to the appropriate state government department and, as a result, hospitals in New South Wales were directed to ensure that the temperature of hot water provided for patient use was such that sustained exposure would not cause severe burns.

State and territory health departments have a responsibility to act upon recommendations made by a coroner that are relevant to the administration and delivery of health services in the particular state or territory. For example, in New South Wales, where a coroner hands down a finding as to the manner and cause of a person’s death that includes critical reference to aspects of care given in a hospital or health facility, that report will be sent to the Minister for Health or the Director-General of the Health Department. As a matter of procedure, upon receipt of a coroner’s report, a decision will be taken by the Director-General to initiate necessary action which may include the following:

referring the whole or parts of the matter to others for investigation and report back; for example, to the Chief Health Officer, Health Care Complaints Commission or public health branches, such as pharmaceutical services;

upon receipt of the investigatory report, initiating one or more of the following:

– the development of and promulgation of new policy;

– remedial action or a change of procedure within the health system;

– professional disciplinary action.

Following the necessary investigation and action, the Director-General of Health will provide a report to the coroner of the action and investigation taken by the department. As a matter of procedure, the Director-General’s report will be made within three months of receiving the coroner’s report.

As an example, in New South Wales in 2001 a coroner’s inquiry was held into the deaths of three patients who had died as a result of receiving incompatible blood transfusions.² Following the inquiries, that were held together because of the common issue of incompatible blood transfusions, the coroner made the following comments and recommendations:

There is little doubt that the three inquests just concluded before me have highlighted the need for extreme care to be taken by health professionals in all stages of the blood use process including the process for grouping and cross matching.

… it is clear that there is much to be gained from a statewide approach to the gathering of relevant data and review of that data on an issue of general concern such as the safe administration of blood products. This central data bank should be the basis, amongst other things, for ongoing review, the necessity to have a clear picture as to the extent of the problem and how it can best be addressed. On the evidence before me that is not the case at the moment, in that there would appear to be some incidents not being reported in both the public and private sector with respect to adverse outcomes concerning the administration of blood products.

I would recommend that the Department of Health utilise the terms of reference of the Blood User Improvement Group to:

investigate and trial known developments including a computerised bar coding system to facilitate the accurate identification of patients throughout all steps of in-patient treatment where accurate identification is essential including the administration of blood products.

require that all hospitals and healthcare agencies, public or private, where blood products are administered, report any adverse outcomes in relation to the screening for and administration of blood products. The requirement to report should be mandatory.

establish and maintain a central data bank of all adverse outcomes reported including the circumstances in which it occurred. That information, amongst other issues, should be used to provide ongoing feedback and review to hospitals and healthcare agencies as to proper protocols to be adopted in relation to the testing for and administration of blood products.

emphasise the requirement to hospitals and healthcare agencies in the public and private sector for initial and ongoing education of all health professional staff in relation to proper procedure and protocols to be followed in the screening for and administration of blood products.

investigate the feasibility of the transfer of relevant computerised patient data, including pathology data, as between Area Health Services where patients are transferred between Area Health Services for treatment.³

All state and territory health departments have procedural provisions to deal with recommendations relevant to the provision of healthcare arising from a coroner’s report.⁴ For example, in Victoria a coroner investigating a death may comment ‘on any matter connected with the death including public health or safety or the administration of justice’.⁵ In doing so the coroner may make recommendations to the Attorney-General on any matter relevant to public health or safety. In Western Australia, for example, the coroner may refer the transcript of the Coroner’s Court proceedings to any professional disciplinary body for their attention if the coroner believes the evidence in the transcript warrants such a course of action. In this way, as in other states and territories, evidence given before a coroner’s inquiry may form the basis of disciplinary charges against a healthcare professional brought by the relevant health professional registration authority. It is for this reason, amongst others, that nurses should be particularly aware of the power of coroners’ inquiries to impact on their professional registration.