The coroner: the Australian, NZ and UK perspectives

A coronial investigation

After a death has been reported, the coroner or designated assistant may initiate an investigation. This is most commonly conducted by the police assisting the coroner, with an autopsy conducted by a forensic pathologist.

The body, once certified dead, becomes part of that investigation and should be left as far as possible in the condition at death. If the body is to be viewed by relatives immediately, it is often necessary to make it presentable. This must be done carefully, so as to not remove or change anything that may be of importance to the coroner. If a resuscitation was attempted, all cannulae, endotracheal tubes and catheters should be left in situ. All clothing and objects that were on (or in) the deceased should be collected, bagged and labelled. All medical and nursing notes, radiographs, electrocardiographs and blood tests should accompany the body if it is to be transported to a place as directed by the coroner.

Medical notes taken during or soon after the activity of a busy resuscitation are often incomplete. It is not easy to recall accurately procedures, times and events when the main task is to prevent someone from dying. Similarly, after death there are many urgent tasks, such as talking to relatives, notifying treating or referring doctors and debriefing staff. However, it is essential that the documentation is completed as accurately and thoroughly as possible. The notes must contain a date and time and clearly specify the identity of the author. If points are recalled after completing the notes, these may be added at the end of the previous notes, again with a time and a date added. Do not under any circumstances change or add to the body of the previous notes.

In addition to completing the medical notes, a medical practitioner may be requested to provide a statement to the coroner regarding the doctor’s involvement with the deceased and an opinion on certain matters. Such a statement should be carefully prepared from the original notes and written in a structured fashion, using non-medical terminology where possible. The statement often gives the opportunity for the medical practitioner to give further information to the coroner regarding medical qualifications and experience, the position fulfilled in the department at the time of the death and a more detailed interpretation of the events. If a statement is requested from junior ED staff, it is strongly advisable for these to be read by someone both clinically and medico-legally experienced.

Providing honest, accurate and expeditious information to relatives when a death occurs assists in preventing misunderstandings and serious issues arising in the course of a coronial investigation. Relatives vary enormously in the quantity and depth of medical information they request or can assimilate after an unexpected death. It is wise not only to talk to the relatives present at the death but also to offer to meet later with selected family members. Clarification with the family of what actually occurred, what diagnoses were entertained and what investigations and procedures were performed is not only good medical practice but can allay concerns regarding management. Such communication, as well as aiding in the grieving process for relatives of the deceased, may avert an unnecessary coronial investigation initiated by relatives seeking answers about the death by contacting the coroner.

If a significant diagnosis was missed or inappropriate or an inadequate treatment given, or a serious complication of an investigation or procedure occurred, assistance and advice from the hospital insurers and medical defence organizations should be sought before talking to the family. However difficult it may be, it is far better that the family is aware of any adverse occurrences before the inquest than for them to harbour suspicions or to get a feeling something is being covered up. Such a conversation should be part of an open disclosure approach to patient care, involving open communication with a patient or family following an adverse or unexpected event. The coroner is far more likely to be sympathetic to a genuine mistake or omission when it has been discussed with the family and the hospital has taken steps to prevent a recurrence.

A coronial inquest

A coronial inquest is a public inquiry into one or more deaths. Deaths may be grouped together if they occurred in the same instance or in apparently similar circumstances. The purpose of the inquest is to put findings on the public record. These may include the identity of the deceased, the circumstances surrounding the death, the medical cause of death and the identity of any person who contributed to the death. The coroner may also make comments and recommendations concerning matters of health and safety. In some jurisdictions these are termed ‘riders’. In addition, as His Honour BR Thorley pointed out, the inquest serves to:

…include the satisfaction of legitimate concerns of relatives, the concern of the public in the proper administration of institutions and matters of public and private interest…

The inquest does not serve to commit people for trial or to provide information for a subsequent criminal investigation.

With broad terms of reference and the ability to admit testimony that may not be allowed in criminal courts, inquests interest many people—not only those who may have been directly involved. They are often highly publicized media events and may provoke political comment, especially where government bodies are involved. A medical practitioner served a subpoena to attend should prepare carefully, both individually and in conjunction with the hospital, and should ensure that he or she has legal representation, either individually or through the hospital insurers. Where the doctor subpoenaed is being provided legal counsel by the hospital, it is vital to ensure that the hospital administrators support the actions of the doctor in relation to the death. It is advised that, in the event of being subpoenaed to a coronial inquest, the doctor seek advice immediately from the appropriate medical defence agency.

Preparation for an inquest begins at the time of the death. Complete and accurate medical notes, together with a carefully considered statement, provide a solid foundation for giving evidence and handling any subsequent issues. Statements containing complex medical terminology, ambiguities or omissions only serve to create confusion. Discuss the case with colleagues who are not directly involved and have the hospital lawyers read the statement before it is submitted.

Appearing at an inquest can be a stressful event, especially if, on a review of the circumstances, a doctor’s actions or judgement may be called into question. Professional peer support, as well as legal advice, should be offered to all medical staff. Simple actions, such as a briefing on court procedures and some advice on how to deal with cross-examination, can be of immense value.

A coroner’s court is conducted with a mix of ‘inquisitorial’ and ‘adversarial’ legal styles. It is inquisitorial in that the coroner may take part in direct proceedings and can question witnesses and appoint court advisers. It is adversarial in that parties with a legitimate interest can be represented in proceedings and can challenge and test witnesses’ evidence, especially where it differs from what they would like presented. Interested parties generally attend court and can ask any questions of the doctor through their own legal representative or through the police counsel to the coroner. The ‘rules of evidence’ are more relaxed in the coroner’s court than in a criminal court. Hearsay evidence—that is, evidence of what someone else said to a witness—is generally admissible. Despite these differences, it is important to remember that it is no less a court than a criminal court and demands the same degree of respect and professional conduct one would accord to the latter.

Coronial findings

At the conclusion of an inquest, the coroner makes a number of findings directed at satisfying the aims of that inquest. These findings are made public and are often of interest to those who are directly involved, as well as to a wider audience. For example, The Coroners Act 2008 (Victoria) requires that all inquest findings with recommendations be published on the internet, unless otherwise ordered by a coroner. This will identify all medical practitioners involved in the case including ones providing expert opinion.

The findings of an inquest in which the conduct of a particular emergency physician, ED or hospital has been scrutinized will be of particular interest. Although it is always pleasing to have either positive or a lack of negative comment delivered in the finding, criticism of some aspect of the conduct of an individual, department, hospital or the medical system in general is not uncommon. Unfortunately, it is often this criticism that attracts the most public attention and, somewhat unfairly, the public perception of our acute health care system is shaped by the media’s attention to coronial findings.

In the recent past, coroners have commented on inadequate training, experience and supervision of junior doctors, inadequate systems of organization within departments and poor communication between doctors and family members.

Although adverse or critical findings have no legal weight or penalties attached to them, they are in many respects a considered community response to a situation in which the wider population has a vested interest. Used constructively, they can be extremely useful in convincing hospital management that a problem exists and beginning a process for effecting positive change within a department or institution.