The Coroners Act 2008 (Vic) (Act), which came into effect on 1 November 2009, establishes a new modern coronial system for all Victorians. The provisions in the new Act are drawn from the recommendations of the 2006 Victorian Law Reform Commission report which suggested areas were the 1985 Act should be amended and modernised to meet the requirements of the community. The vision for the Victorian Coroners Court is to ‘speak to the dead to protect the living’. Significant changes to the Act include:
- Reportable deaths and the obligation to report death
- Support to families
- Broader rights of appeal
- Prevention function and recommendations by the Coroner
- Publication on the internet
Reportable deaths & obligation to report
A ‘reportable death’ is a ‘death that is unexpected, unnatural or violent resulting from an accident or injury.’ The new definition extends the obligation of reporting a death to ‘medical deaths’ which is defined as a ‘death occurring during or after a medical procedure where a doctor would not have reasonably expected the person to die.’ Medical procedure is defined broadly to include ‘imaging, internal examination and surgical procedure.’ It is certainly arguable that the reporting of medical deaths will increase in frequency. The Act still defines a stillborn as a death that is not reportable.
A reportable death under the new Act is also a death of a ‘person placed in custody’ which includes deaths involving police or prison officers attempting to take a person into custody or death caused by injuries sustained in custody. This new provision is consistent with the recommendations put forward by the Royal Commission into Aboriginal Deaths in Custody.
Under the Act, a doctor who is present at or after a death, must report it to the Coroner ‘without delay’ if it is reportable. Previously, a doctor had to report the death ‘as soon as possible.’ We believe the change in wording to ‘without delay’ places a greater duty on medical practitioners to immediately report the death. A police or prison officer must also report the death of a person placed in custody without delay.
Families
One of the key objectives of the Act is to ‘improve communication with and services to family.’ Therefore under the new Act, when conducting an investigation or inquest, a Coroner must have regard to the fact that a death is distressing to families and they may require professional support. A Coroner must also respect that different cultures have different beliefs and practices surrounding death.
Appeals
Under the new Act there are broader rights to appeal to the Supreme Court. A person has three months to appeal a decision: that a death is not a reportable death, not to hold an inquest and not to investigate a fire. A person has six months to appeal a Coroner’s findings on a death or fire. For example, if new facts come to light, a Coroner may re-open an investigation if it is appropriate. There are currently no appeal rights against a Coroner’s recommendations.
Prevention and recommendations
One purpose of the new Act is to “reduce the number of preventable deaths.” Under the old and new Act, a Coroner can make recommendations as part of their findings on ‘public health and safety.’ Given the purpose of the Act, there is now a stronger focus on recommendations for preventative action.
The Coroner is now empowered to make recommendations to any Minister, public statutory authority or entity on any matter connected with an investigation. Previously, recommendations could only be made to Ministers and public bodies were not obliged to acknowledge coronial recommendations.
A significant change to the coronial process is that a public authority or entity must respond to the Coroner within three months with a statement of action that has or will be taken in relation to the recommendations. According to State Coroner Jennifer Coates this means that recommendations ‘cannot be selectively pursued or ignored. This will be a real mechanism for change to public safety.’
Publication on the internet
As of 1 November 2009, findings and recommendations must be published on the internet (www.coronerscourt.vic.gov.au), making decisions more transparent and accessible. Previously, decisions were only given to interested parties, such as families and medical practitioners involved in the inquest. However a decision may not be published if the Coroner orders against publication because there is, for example, a risk it will prejudice a fair trial or it is against the public interest. We note that ‘public interest’ is not defined under the Act.
The Coroner must also publish the responses by public authorities and entities on the steps they have or will take in respect of the recommendations.
Summary
The innovative Act aims to better meet the requirements of the community and all those involved in the coronial process. The medical profession should be alert to the broader definition of a ‘reportable death’ and the speed at which a death must be reported in the event a doctor is present at or after the time of death. The inevitable rite of passage from life to death sees doctors potentially subject to increased scrutiny.
Anjali Parbhoo
Solicitor
Phone: 61 3 9602 9723
Anjali_Parbhoo@tresscox.com.au
And Hayley Patroney.
To see the contact details of the entire TressCox Health Services Team please click here.
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