Home | Databases | WorldLII | Search | Feedback Precedent (Australian Lawyers Alliance)

Dillon, Hugh --- "A probe in the system: Medical inquests in NSW" [2019] PrecedentAULA 4; (2019) 150 Precedent 9

A PROBE IN THE SYSTEM
MEDICAL INQUESTS IN NSW

By Hugh Dillon

In some circles in NSW, the value of medical inquests is being questioned.

Five related criticisms of coroners and their conduct of medical inquests have emerged in conversations and debates between members of the legal profession involved in this niche field of the justice system:

(1) whether coroners should conduct medical inquests;

(2) if so, whether there are too many medical inquests;

(3) whether medical inquests conducted by NSW coroners are too broad;

(4) whether NSW should have a specialist Coroners Court; and

(5) the unpredictability of coroners’ decisions to hold or not hold inquests.

As a Deputy State Coroner for nearly nine years, I conducted many medical inquests and believe they play a valuable role in our justice system. Nevertheless, the coronial system ought to be able to justify its existence and its investigations in the face of expressed concerns and criticisms. Inquests are stressful for bereaved families and witnesses involved in the fatal event. They are also potentially costly affairs. This article will argue for the continuing role of inquests into unexpected health-related deaths, but makes suggestions for improving the manner in which the coronial system operates in NSW.

SHOULD CORONERS INVESTIGATE MEDICAL FATALITIES IN NSW?

A number of organisations and mechanisms are focused on quality of healthcare and patient safety in NSW. They include the Clinical Excellence Commission, the Incident Information Management System (IIMS) for categorising and reporting adverse incidents, Root Cause Analysis of serious adverse incidents, Morbidity and Mortality meetings within hospitals, Open Disclosure policies, investigations by the Health Care Complaints Commission and the Australian Health Practitioners Regulation Authority among others. Given the breadth of this safety net, and the specialist investigative avenues available within the health system, what is the justification for coronial inquests into unexpected deaths in the health field?

Sudden and unexpected deaths always have powerful impacts on bereaved relatives and often, also, on the wider community. The Enlightenment and science may have banished belief in witchcraft, but unexplained death is no less fearsome to modern communities than it was in 1194 when coroners were first emerging as important legal figures in England. As Rebecca Scott Bray has argued, ‘Part of the appeal of the coronial jurisdiction is its ability to account for the context of death, where “death” is the focus of the process as opposed to questions of liability.’^[1]

While there are now numerous bodies and agencies that investigate sudden and unexpected death, coroners have an almost unique capacity to draw on a range of investigative techniques and resources and, in certain cases, to hold independent public inquiries. The independent and public nature of inquests distinguishes them from internal inquiries and gives them their credibility. Freckelton and Ranson maintain that ‘In good part it is because of the successes and attributes of the publicly conducted inquest that the jurisdiction and office of the coroner survives to this day in many countries that inherited their legal system from England. History suggests that the power of the coroner and inquests to achieve social change should not be underestimated.’^[2]

Like most coronial legislation in Australia, the Coroners Act 2009 (NSW) (Coroners Act) provides that deaths that are ‘not the reasonably expected outcome of a health-related procedure’ are reportable to coroners.^[3] Unlike the Victorian Coroner’s Court, the NSW Local Court, which operates the coronial system, publishes no data revealing the numbers of such reports in that State. In its 2017 Annual report, the Victorian Coroners Court indicated that 5 per cent of deaths reported (that is, 331 deaths) related to medical or surgical complications.^[4] Given that the populations of Victoria and NSW are similar in size and other demographic measures, it is reasonable to assume that the number of reportable health-related deaths in NSW would be of the same order.

In 2017, the Auditor-General of NSW reported that, according to Ministry of Health statistics, there had been only 34 ‘sentinel events’^[5] in NSW public hospitals during 2015-16.^[6] This was about one such event for every 86,000 admissions. ‘Sentinel events’ include retained instruments or other material after surgery; suicides of psychiatric patients; incorrect administration of drugs; and surgery on wrong patients or wrong body parts. It is not clear how many deaths resulted from these events but probably fewer than 34.

This picture is apparently reassuring but probably misleading. ‘Sentinel events’ are only the tip of the iceberg. As studies of systems failure and the human contribution tell us, unsafe acts and near misses vastly outnumber fatal incidents.^[7] The Clinical Excellence Commission analyses the IIMS of the NSW public health system. In 2017, it found that there had been 94,618 incidents reported, including 248 SAC 1 events.^[8] A ‘SAC 1’ event is a critical incident as a result of which a patient dies or is seriously compromised.

SAC 1 events and ‘sentinel events’ must be reported to the NSW Ministry of Health.^[9] If a patient has died following a SAC 1 or sentinel incident, that death must be reported to a coroner. Because of the culture of reporting adverse incidents, in practice, most medical inquests in NSW relate to public hospitals. It is a strength of the public health system that it is so open.

Mistakes in medicine and other health-related procedures are inevitable. Most do not result in fatalities because they are insufficiently harmful, because the errors are corrected in time or because of luck. Sadly for some people, however, their luck runs out. Systems designed to protect them from harm in the health system fail, perhaps for a short time only but long enough to lead to disaster. The survivors expect and hope that lessons will be learned. In my experience, many medical inquests are held because of evidence that lessons may not have been absorbed and families feel their burning questions have not been answered.

The investigation of sudden and unexpected deaths is one way that our society demonstrates its respect for human life and for the families who lose loved ones in such distressing ways. In carrying out such inquiries, coroners hope to provide some peace of mind to grieving families and distressed communities by reducing their confusion about how and why such a death occurred. If we understand what happened, we may reduce risk of a recurrence.

ARE THERE TOO MANY INQUESTS?

Most deaths reported to coroners do not result in an inquest. In NSW, about 6,500 deaths are reported annually to coroners (out of a total number of deaths in this State of about 50,000). Between 2012 and 2015, an average of 145 inquests were conducted annually by NSW coroners (about 2 per cent of reported cases). In 2016, only 120 were conducted. In 2017, it fell to only 84 (1.2 per cent).^[10] Of those, 26 were mandatory inquests into deaths in custody or police operations.^[11] Although Local Court statistics do not provide the relevant data, the remaining inquests would almost certainly have included mandatory inquests into the suspected deaths of a number of missing persons and suspicious deaths. Thus it is evident that the number of discretionary inquests being undertaken is relatively small.

This becomes even more evident when a country-city comparison is made. About 46 per cent of deaths reported in NSW occur outside the Sydney metropolitan area. They are reported to regional magistrates. Although more than 3,000 deaths were reported, only 28 country inquests were conducted in 2016 and 27 in 2017.^[12]

In some quarters of NSW Health it is thought that inquests are intrusive, expensive, stressful wastes of time. One of the reasons that NSW Health generally performs very well, however, is that it is held publicly accountable. Accountability helps build high reliability and safe systems.^[13] Coroners are part of the scaffolding keeping public health systems safe for most patients. Private medicine and surgery are not nearly as accountable. I believe this is a flaw in the health system that should not be replicated in the public health system. In 2016 an article in the British Medical Journal argued that medical error is the third highest cause of death in the United States.^[14] If that is true, it may also be true in Australia. And if so, such deaths are almost certainly under-reported to coroners. This suggests more inquests rather than fewer are needed.

It is likely that idiosyncratic factors account for much of the decline in inquests numbers during 2016 and 2017, and that numbers of inquests will return over time closer to the average of about 140-150 per annum. These figures do not suggest that coroners in NSW are running excessive numbers of inquests. The more significant issues are how inquests are selected, who conducts them, and how they are managed.

ARE MEDICAL INQUESTS TOO BROAD?

Under the Coroners Act, the basic task of a coroner is to establish, if possible, the identity of the deceased person, the date and place of the person’s death, and the cause and circumstances of the person’s death.^[15] This could lead to a minimalist ‘tick-a-box’ approach and does in some quarters of the Local Court.^[16] But modern thinking about coronership and coronial systems places greater emphasis on the prevention of future deaths and serious injuries due to systems failure and human error than that ‘old school’ approach.^[17]

While the Coroners Act enables coroners to make recommendations to prevent future deaths and injuries, and coroners frequently do so, all the implications of giving that power to coroners have not been realised by the Local Court or the NSW Justice Department. As Jennifer Moore’s seminal study of the New Zealand coronial system shows, the potential of coronial recommendations to save lives is great but the system has be to reconceptualised to realise it.^[18]

To improve the effectiveness of coronial inquests, Moore argues that coroners should adopt public health principles and an epidemiological approach to cases. This means looking for trends and patterns in the data, clustering cases to identify populations at risk and common risk factors and finding counter-measures that will mitigate risk. The public health approach regards ‘samples of one’ as an ineffective approach to the prevention of death and serious injury. Therefore, if inquests are to have preventive value, they should go wider than a single case. If valuable death preventive recommendations are to be developed, coroners should investigate single cases within a context of like cases. Coroners should be trained to do this.

COUNTRY CORONERS OR A SPECIALIST CORONERS COURT?

The NSW coronial system essentially operates on a design formulated in 1901 when the magistracy took it over. Steam locomotives (operating at 8 per cent efficiency) were high tech when the coronial system was last significantly redesigned. Since then, concepts of coronership have advanced. Reviews of the Victorian and WA coronial systems in 2006 and 2012 both concluded that country magistrates were insufficiently resourced, trained or experienced to conduct coronial work at a sophisticated or specialist level.^[19] This is not a criticism of hard-working, decent magistrates. It is a recognition of the fact that specialist work needs specialist skills and resources.

The current system of a small number of specialist coroners in Sydney and 36 part-timers in the regions sets up an ‘upstairs-downstairs’ arrangement in which the regions lose out in quality of service provided. Elsewhere in Australia, this inequity has been recognised and the hybrid system NSW operates has been replaced by specialist Coroners Courts. NSW needs one too.

THE UNPREDICTABILITY OF CORONIAL DISCRETION TO HOLD INQUESTS

Coroners have a virtually unfettered discretion to hold or not hold inquests. In NSW, there are six specialist coroners (two part-time) and 36 country magistrates exercising coronial jurisdiction. There is little guidance or supervision of coroners, especially for those outside Sydney. The coronial system is a kind of cottage industry in this State. An arrangement in which all coroners operate as single units as in NSW is a recipe for inconsistency and inefficiency.

To make competent decisions in respect of inquests, a coroner has to be able to assess a number of issues: whether the death was natural or unnatural (not always easy to tell); whether it was preventable or not; if it was preventable, whether it occurred due to systems failure or design flaw; if systems failure was involved, what, if any recommendations to prevent future deaths should be made; whether it is in the public interest that it be investigated; whether specialist advice is required and, if so, what sort of specialist, and which specialist to choose.

In the English Court of Appeal case of Ward v James, Lord Denning MR, speaking of the exercise of judicial discretion, said:

‘[I]t is of the first importance that some guidance should be given... It is an essential attribute of justice in a community that similar decisions should be given in similar cases... The only way of achieving this is for the courts to set out considerations which should guide the judges in the normal exercise of their discretion. And that is what has been done in scores of cases where a discretion has been entrusted to the judges.’^[20]

While in some Australian and international jurisdictions, such as Queensland and England, guidelines issued by the senior coroner have been made public, NSW lags behind in this respect.^[21] This leaves NSW coroners in an invidious position and arguably results in less than optimal service for the people of NSW from their coroners.

In British Columbia, coroners must apply to the Chief Coroner to list an inquest for hearing.^[22] This system enables the Chief Coroner to filter out unnecessary inquests. It also enables the Chief Coroner to direct the coronial system’s resources to wherever they can be applied most effectively. Most coronial functions are administrative, not judicial. A system that directed coroners towards focusing on preventable deaths due to systems failure could be established in NSW. This would enable the limited resources of the coronial system to be directed where they would be most useful, the identification of preventable death and remedial preventive measures.

CONCLUSION

In my own experience, medical inquests were almost always selected because they raised questions of public health and safety or because the bereaved families felt that they had been poorly or unjustly treated by the health system. It is the ability to combine judicial, investigative, medical, socially and legally therapeutic and public policy elements that makes the coronial system so potentially valuable to our society.

In my view, the NSW coronial system falls far short of its potential largely due to its current structure and resourcing. Nevertheless, the current government’s commitment to resourcing it appropriately^[23] and its current review of the framework of the system are grounds for cautious optimism that NSW will soon develop a modern specialist coronial system that will serve the people of NSW as it should.

Hugh Dillon was a magistrate 1996-2017 and Deputy State Coroner 2008-16. He is now an Adjunct Professor at UNSW Law School and is working on a PhD studying the NSW coronial system. He is a part-time Deputy President of the Mental Health Review Tribunal and a member of Maurice Byers Chambers. PHONE 0417 083 183 EMAIL hughdillon@optusnet.com.au and h.dillon@mauricebyers.com.

^[1] R Scott Bray, ‘Death scene jurisprudence: The social life of coronial facts’, Griffith LR, 2010, 567 at 567.

^[2] I Freckelton and D Ranson, Death Investigation and the Coroner’s Inquest (Melbourne: Oxford University Press, 2006) 3.

^[3] Sections 6 and 35.

^[4] Coroners Court of Victoria, Annual Report 2017 (Melbourne, 2017) Table 10, 29.

^[5] ‘Sentinel events’ are adverse events resulting in the death or serious harm of patients.

^[6] Auditor-General of NSW, Report on Health 2017 (Sydney, 2017) Table 3.15, 48.

^[7] See, for example, J Reason, The Human Contribution: Unsafe Acts, Accidents and Heroic Recoveries (Farnham: Ashgate, 2008).

^[8] Clinical Excellence Commission, ‘Clinical incident management in the NSW public health system’, <http://www.cec.health.nsw.gov.au/clinical-incident-management> , accessed 2 October 2018.

^[9] NSW Health, ‘Incident Management Policy’, PD2014_004, s2.5.1, <https://www1.health.nsw.gov.au/pds/ActivePDSDocuments/PD2014_004.pdf>, accessed 2 October 2018.

^[10] Local Court, Annual Review 2017 (Sydney: 2018) 18.

^[11] State Coroner, Report by the NSW State Coroner into deaths in custody/police operations for the year 2017 (Sydney: 2018) 11.

^[12] Local Court, Annual Review 2017 (Sydney: 2018) 18.

^[13] See J Reason, ‘Human error: Models and management’, British Medical Journal, Vol. 320, 2000, 768-70.

^[14] M A Makary and M Daniel, ‘Medical error – the third leading cause of death in the US’, British Medical Journal, Vol. 353, 2016, 2139.

^[15] Section 81(1).

^[16] Some NSW magistrates disparagingly refer to the ‘tick-a-box jurisdiction’.

^[17] See Freckelton and Ranson, above note 2; I Freckelton, ‘Death investigation and the evolving role of the coroner’, Otago Law Review, Vol. 11, 2008, 565; J Moore, Coroners’ Recommendations and the Promise of Saved Lives (Cheltenham, UK: Edward Elgar, 2016); R Scott Bray, B Carpenter and M Barnes, ‘Southern death investigation: Theorising coronial work from the Global South’ in K Carrington et al (eds), The Palgrave Handbook of Criminology and the Global South (Cham, Switzerland: Palgrave Macmillan, 2018).

^[18] See Moore, above note 17. See especially Chapter 5, ‘The promise of saved lives: The coroners’ preventive function’.

^[19] Victoria Parliament, Law Reform Committee, Report: Coroners Act 1985 (Melbourne: 2006) <https://www.parliament.vic.gov.au/images/stories/committees/lawrefrom/coroners_act/final_report.pdf>, accessed 3 October 2018; WA Law Reform Commission, Review of Coronial Practice, Project No 100 (Perth: 2012) <https://www.lrc.justice.wa.gov.au/_files/P100-FR.pdf>, accessed 3 October 2018.

^[20] [1966] 1 QB 273, 293.

^[21] See Queensland State Coroner’s Guidelines, <https://www.courts.qld.gov.au/courts/coroners-court/about-coroners-court/resources-and-legislation>, accessed 13 September 2018; Courts and Tribunals Judiciary, Chief Coroner’s Guidance, Law Sheets and Treasure, <https://www.judiciary.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/>, accessed 13 September 2018.

^[22] See H Dillon, Raising Coronial Standards of Performance. See also Coroners Act 2007 (British Columbia), ss16 and 18. A coroner who has completed an investigation may make a recommendation to the Chief Coroner that an inquest be held: s16(1)(b). If the Chief Coroner accepts the recommendation, he/she may direct that an inquest be conducted: s18.

^[23] See remarks of Attorney-General Mark Speakman SC, MP to the NSW Parliament Legal Affairs Committee, Budget Estimates hearings 4 September 2018, <https://www.parliament.nsw.gov.au/lcdocs/transcripts/2117/Transcript%20-%204%20September%202018%20-%20UNCORRECTED%20-%20PC4%20-%20Attorney%20General.pdf>, accessed 2 October 2018.