28 November 2011

Postmortem and Ethno-Religious Identity

In Raymond-Hewitt v Northern Territory Coroner [2011] NTSC 94 the Northern Territory Supreme Court has granted an application to prevent an autopsy of a person killed in a road crash.

The application was made by the deceased person's family under s 23(3) of the NT Coroners Act.

That section provides -
1) Where the senior next of kin of the deceased person asks a coroner not to direct that an autopsy be performed but the coroner decides that an autopsy is necessary, the coroner must immediately give notice in writing of the decision to the senior next of kin.

2) Unless the coroner believes that an autopsy needs to be performed immediately, where a request has been made under subsection (1), an autopsy must not be performed until 48 hours after the senior next of kin of the deceased person has been given notice of the coroner's decision under that subsection.

3) Within 48 hours after receiving notice of the coroner's decision under subsection (1), the senior next of kin of the deceased person may apply to the Supreme Court for an order that an autopsy not be performed and the Court, in its discretion, may make an order that no autopsy be performed.
The exercise of the discretion of the Court under s 23(3) is not fettered. In determining the exercise of that discretion the Court must balance the interests of the deceased person's family "in following and maintaining their Aboriginal culture and law" against "the interests of the community on the other that the cause of an otherwise unexplained death be ascertained if possible". That balance reflects a recognition that "if there are any suspicious circumstances surrounding the death, or there are other compelling reasons why it is in the public interest that an autopsy be performed, those cultural and spiritual considerations must take second place to the public interest".

In this instance the Court noted the comment in Green v Johnstone [1995] VICSC 34 that -
In a multicultural society such as we have in this country, it is my opinion that great weight should be given to the cultural and spiritual laws and practices of the various cultural groups forming our society, and that great care should be taken to ensure that their laws and practices, assuming they are otherwise lawful, are not disregarded or abused.
Was the autopsy essential? The Court noted that -
It was further submitted that knowing that the cause of this death was the deceased’s heart condition, rather than the presence of alcohol or drugs in his system, may ensure that the deceased’s dependents obtain the full benefits available to them under the Motor Accidents (Compensation) Act. I was informed that toxicology results were pending, meaning that information about whether the deceased had alcohol or other drugs in his system at the time of death will become available as a result of blood samples and that it is not necessary to perform an autopsy to achieve this result. In any case, this application was brought by members of the family and I was informed by counsel that it was made on behalf of all family members. (If there had been evidence that there was a real issue as to the entitlement to benefits of infant beneficiaries unable to assent to the bringing of this application, and that it was necessary to resolve that issue for an autopsy to be performed, that would have been a different matter altogether.)

It was further submitted on behalf of the coroner that understanding the cause of this death may give rise to consideration and discussion of the entitlement to drive of persons with serious heart conditions, the capacity and obligation of treating medical personnel to report such conditions to the licensing authorities, and the power and duty of those authorities to consider and determine a driver’s entitlement. There is a real possibility that this man’s death was caused or contributed to by heart disease, and an autopsy will do nothing to establish the cause of the collision. In those circumstances, it seems to me that the coroner has all the information he is ever going to get, autopsy or no autopsy, on which to base any such comments or recommendations.
The Court concluded -
In the circumstances, given the very limited amount of additional information which would be made available from an autopsy, and the real distress which will be caused to the family of the deceased and other community members if an autopsy is performed, I consider that, in this case, the interest of the family outweighs the public interest in determining the precise cause of death.
Disquiet about autopsies (or more broadly about delays in burial/cremation of a body) is not restricted to Indigenous people. Most Australian jurisdictions make some allowance for cultural sensitivities, for example under ss 20 and 28 of the Coroners Act 1997 (ACT) and ss 25, 88 and 96 of the Coroners Act 2009 (NSW). (Note associated sanctions such as those under s 83 of the ACT Act.)

Coronial powers to order autopsies reflect the authority of the state (and rationales such as serving justice through fact-based criminal investigation and protecting public health through research in disease or injury).

The record of Australian courts in approving or rejecting applications to prevent autopsies or simply order that a deceased person be buried, burned or exposed for transmutation by vultures is mixed.

Riley J in Wuridjal v Hand [2001] NTSC 99 thus rejected an application by members of the Yolngu community. Coroners' decisions have been overturned, for example in Green v Johnstone [1995] 2VR 176, Re Death of Simon Unchango (Jnr); ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65 and Abernethy v Deitz (1996) 39 NSWLR 701.