THE CORONERS SYSTEM – REVIEW AND REFORM
The current system:
The Coroner, who is either a doctor or a lawyer, is appointed by the Minister for Justice and is usually paid by the Local Authority. The role of the Coroner is to carry out an independent fact finding investigation on behalf of the State, in the public interest, into reportable deaths. It is a quasi-judicial role operating, providing a critical public service, under the provisions of the Coroners Act 1962. The coroner does not investigate criminal or civil liability as per Section 30 of 1962 Act. Section 31 providesthat neither the verdict nor any rider to the verdict at an inquest shall contain a censure or exoneration of any person.
“........ an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are not suitable for the other. In an inquest it should not be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial....”.
A reportable death (e.g. sudden death, unnatural death, unexplained death, accidental death, death in prison/custody, unnatural death, violent death, road traffic accidents,) is referred to the Coroner. The majority of reports are made by doctors, but can be made by others such as the Gardaí, funeral directors or members of the public. Most of the reports are where the cause of death is unknown or unclear. The Coroner decides if a post mortem is needed, and thereafter if an Inquest is necessary. The decision to hold an inquest and to call witnesses is solely one for the coroner. The Coroner is assisted by the Gardaí and in practice their involvement varies from district to district and case to case. The involvement of the Gardaí does not imply or import any criminal element to the investigation, their role is one of assistance and support to the Coroner in conducting the investigation.
In addition to the Rules of Law for reporting deaths, there are Rules of Practice to ensure that cases that should be brought to the Coroners attention do not get passed over such as: dead on arrival at the hospital, death in A&E, or there being a recent nursing home transfer.
The figures for 1999 show that 7,268 deaths were reported to coroners around the country. Of these deaths, around 25% resulted in an inquest being called. In around 35% of cases, no post mortem or inquest was requested by the Coroner.
The figures for 2017 show that 11,856 deaths were reported to the coroners, post mortems were carried out in 3,338 cases and inquests took place in 2,143 cases. This is a significant increase in the number of Inquests and therefore on the workload of the Coroners service.
The MDE Confidential Maternal Death Enquiry 2013-2015 provides data on maternal deaths in Ireland for the period 2013-2015. The view has been expressed that in the absence of mandatory reporting of maternal deaths to the coroner to date, these figures are artificially lower than they should be.
Furthermore the Coroner has an important role in allaying rumours and suspicions, seeking to gather information to avoid similar deaths, to advance medical knowledge and to preserve the interests of the deceased person, family, heirs and other interested parties.
The Coroners Act 1962 was an effective and efficient piece of legislation that served its purpose well until the developments in medicine, greater scrutiny and demands by the public, and societal changes demanded a reform of the coronial law. At a time when the 1962 Act was nearly 40 years old these advances in medicine and society resulted in a comprehensive review of the coroners service which was completed in 1999 by a working group appointed by the Department of Justice, Equality and Law Reform.
The Coroners Bill 2007 was eventually tabled as a result of the review. The proposed new system would also have brought into play the need to greatly improve critical support systems in conjunction with and to facilitate the new coronial system. The Bill, simply put, fell foul of the impact of the recession and the unavailability of funding to implement the proposed changes.
The ECHR Act of 2003 obliges the State to 1) protect life 2) imposes a procedural obligation to investigate if life has not been so protected via an Article 2 Compliant Inquest. e.g. death whilst in prison, custody or detention, caused by agents of the State and in relation to certain deaths in hospitals. The main difference is the scope of the Inquest as the Coroner can look at the circumstances surrounding the death. The Inquest is enhanced as there are prehearing motions, submissions, the ability to command and release documents and to direct the attendance of expert witnesses by the Coroner.
The Coroners Amendment Act 2005 brought in a necessary change to the evidence to be given at an Inquest as previously only one doctor was permitted to attend and give evidence. This became restrictive as cases became more complex and indeed more expansive investigations of fact were developing. The Act removed the restriction on the number of witnesses (medical or otherwise) and gave greater discretion to the Coroner on who he or she could call to give evidence.
The Civil Law (Miscellaneous Provisions) Act 2011 is essentially a portion of the 2007 Bill providing for the amalgamation of the County and City Dublin Districts and the appointment of temporary Coroners. It was not intended to be the only change or improvement taken from the 2007 Bill to date, but, unfortunately we are still awaiting the enactment of the Coroners (Amendment) Bill 2018 .
The Coroners (Amendment) Bill 2018 is currently before the Dáil. The 2018 Bill was precipitated by the introduction in December 2015 by Claire Daly TD of a Private Members Coroners Bill 2015 seeking the mandatory reporting and enquiry into each and every maternal death. This has been enhanced and has culminated in the Coroners (Amendment) Bill 2018.
In the case of Courtney v Our Lady's Hospital and Orsthe court concluded that that costs of legal representation at the inquest were an entirely foreseeable consequence of the defendants’ wrongful act and were recoverable as “other expenses actually incurred” within the meaning of s. 49(2) of the Civil Liability Act 1961.
The Courts and Civil Law (Provisions) Act 2013 followed as a result of the Courtney decision. The Legal Aid Board will now provide representation to persons granted a legal aid certificate for the purpose of advice and representation in relation to any of the 8 categories of cases set out in Section 60 (5) of the Coroners Act 1962 (inserted by Section 24(b) of the Courts and Civil Law (Miscellaneous Provisions) Act 2013). Under Section 60 the application for legal aid is made to the Coroner and the person must satisfy the requirements for financial eligibility for legal aid.
The Coroners (Amendment Bill) 2018: The 3rd stage of the Bill was passed by the Committee on the 12th December 2018. The main provisions include:
Scope - Section 10 is an important extension of the enquiry scope as it provides a statutory provision for expanding the Inquest to establishing the circumstances in which a death took place, which brings the coroners service more in line with the ECHR requirements. This, coupled with the power to call witnesses to the Inquest should permit the Coroner to call a wider selection of witnesses, such as ambulance drivers, clinicians who treated the person, porters, occupier of a house where the death occurred, wardens, care staff and where necessary, expert witnesses.
In maternal deaths Section 7 details the mandatory reporting to a coroner, and Section 8 for an inquest in all *maternal deaths and late maternal deaths. After much debate on the Bill an amendment has been included to acknowledge that, due to the sensitive and private nature of these deaths, there can an exemption from this mandatory inquest, at the discretion of the coroner, if, after consulting with the bereaved family, the coroner is satisfied that the death was a natural one and there are no matters of concern requiring an inquest. See Section 8 General Duty to Hold an Inquest.
*A ‘maternal death’ is defined under the Bill as the death of a woman while pregnant or within 42 days after the end of the pregnancy (whether by delivery, miscarriage or by intervention, for instance in the case of ectopic pregnancy), from any cause related to or aggravated by the pregnancy or its management, but not from accidental or incidental causes, and including direct and indirect maternal deaths.
A ‘late maternal death’ is similarly defined under the Bill, but occurs more than 42 days and less than 365 days after the end of the pregnancy.
As can be seen from the figures referenced supra maternal deaths are not very common, but there have been cases which should have been reported to the Coroner and an Inquest held which did not happen. These new provisions will prevent this reoccurring.
See Section 7 and the new Second Schedule – contained at section 28 of the Bill which seeks to provide more certainty and clarity on which deaths must be reported and who must report the death. It will be an offence for a "responsible person" not to report a death and the definition of who is a "responsible person" has been extended.
Section 8 amends Section 17 of the 1962 Act to provide that an inquest is also mandatory if the person has died in State custody or detention.
The Bill provides for the mandatory reporting to a coroner of all stillbirths, intra-partum deaths and perinatal deaths but does not include a provision for mandatory post-mortem or inquest in such sensitive cases. The Coroner will have a discretion on ordering an Inquest, and the views and wishes of the bereaved parents will be a key concern.
Legal Aid - Section 27 extends the scheme of legal aid for family member at an Inquest in all cases of maternal death and late maternal death. The question remains if this should still be means tested. INQUEST the only charity in the UK providing expertise on state related deaths and investigations has campaigned for the automatic provision of non means tests legal aid to bereaved families following state related deaths, and the jurisprudence in the UK is progressively leaning towards a death in a state hospital falling into this category also. The power imbalance that exists between state funded hospital/staff representation and a bereaved family who cannot afford representation but yet do not qualify for legal aid would be thus corrected. Equality of arms should be a basic entitlement, even though an Inquest is not meant to be adversarial but in reality they have become more assertive and complex. It can only be in the best interests of the public and the medical profession to have a balanced Inquest, with clear open disclosure and questioning of facts resulting in the dispelling of suspicion, the garnering of valuable experience and information and the expansion of medical learning to prevent similar future mistakes or bad practices.
Recommendations - Following on from this is it noted that Section 15 amends Section 31 of the 1962 Act to allow the Coroner to make recommendations. A similar provision existed in the 2007 Bill, and in practice was adopted by Coroners in the past 8-10 years in giving their verdicts, sometime guided by internal reviews that had taken place with the health service prior to the hearing of the Inquest.
Witnesses – Section 19 gives the coroner enhanced powers to summon witnesses to an inquest, and to direct a witness to produce documents and evidence, and to answer questions. There is the introduction in Section 22 of penalties, which have been significantly increased, for witnesses who fail to cooperate.
The coroner can seek advice and assistance from an expert.
Documents - The coroner can now under Section 23 obtain a warrant from the District Court, to enter and inspect premises, and to take copies or take possession of any documents or material relevant to the inquest.
Section 19 allows the Coroner to direct the production and inspection of documents at an Inquest.
Under Section 33D (4) the Coroner shall, unless it will prejudice a criminal investigation, if so requested by a family member of the deceased person concerned, provide a copy of the post mortem report to that family member. This is welcome as the 1962 Act was silent on these points which previously led to friction and dissatisfaction for the family thereby feeding into feelings of suspicion and mistrust.
Notice - There have been many submissions and discussions on the provisions in respect of the giving of notice of an inquest to the family members of the deceased person, and regarding information and access to any report of a post-mortem examination. Section 11 provides that the Coroner shall give 14 days’ notice to a family member of a hearing. Section 17 provides that where a post mortem is directed that he shall ensure, as far as it practicable, that a family member is so informed, and as noted supra, Section 33D (4) permits the release of the post mortem report.
The Bill is currently before the Dáil and has been identified as a priority by government. The speed of enactment remains to be seen, but the changes it will provide will offer greater clarity on the deaths that must be reported thereby avoiding the errors in attributing a death to natural cases, especially in the hospital environment, providing more transparency in the inquisitorial process and more participation for bereaved families. This should lead to the better provision of the service and a closer compliance with the States obligations under the ECHR.