08 December 2011


What's the appropriate balance between personal and community interest, the valorisation of belief systems through cultural exceptionalism in a pluralist liberal democratic state? Last month I noted Raymond-Hewitt v Northern Territory Coroner [2011] NTSC 94, a case in the Northern Territory Supreme Court where an Indigenous family successfully sought to prevent an autopsy on an adult road accident victim. This week has seen Evans v Northern Territory Coroner [2011] NTSC 100, in which the Court agreed to prevent an autopsy on a Indigenous minor who may have died from SIDS. The decision contrasts with that by the same court in 2009 noted here.

In the latest case the "sudden and tragic death of a young child at Borroloola" was followed by a preliminary investigation and a subsequent determination, reflecting "expert advice", by the Coroner that it was "necessary for a direction to be given to a medical practitioner to perform an autopsy on the body of the deceased child".

The father of the deceased infant sought an order under s 23(3) of the Coroners Act (NT) that an autopsy not be performed.

The judgement notes that the father of the child was notified of the death
He spoke with the doctor and enquired whether there would be an autopsy. The doctor alerted him to the possibility that he may be able to stop any autopsy from taking place. The father subsequently obtained legal advice and brought these proceedings as a consequence.

In his affidavit filed in support of the application the father advised that he lives a traditional life with his wife and children. He said that he did not want the autopsy to take place as "it is against our way and culture". He explained the processes that would usually follow upon a death and went on to say:
I do not want my son to undergo an autopsy because the Jungayi can refuse to look after him and prepare him for burial. This would be devastating to me and my family.

If the autopsy takes place my son will not be able to enter the spiritual country and be with his ancestral family because his body would not be whole. He will be alone with nowhere to go and no one to look after him. This would be very distressing to me and my family if my son’s spirit had to go on without his ancestors to look after him.
The father expressed concern that if the autopsy took place "bad things will happen to family members" and that his son would be "lost with nowhere to go because our law has been broken".
Riley CJ comments that -
There was no dispute that proceeding with the autopsy would cause the father, the mother, the family of the deceased child and others "great heartache and distress". The views expressed by the father on behalf of himself and his family were clearly, deeply and genuinely held.
The Coroner sought advice from Professor Byard at the Medical School North of the University of Adelaide ("an internationally recognised expert in sudden infant and child death") who
advised that an autopsy was required in order to determine the exact reasons for the death of the child. He pointed out that it is well recognized that infants can have serious and potentially life-threatening illnesses and yet not appear unwell. Unless an autopsy is performed there will usually be no way that these conditions can be identified.
Byard commented that
While SIDS remains the most common cause of unexpected infant death in Western communities, it remains a diagnosis of exclusion, being defined as "the sudden unexpected death of an infant under one year of age, with onset of the fatal episode apparently occurring during sleep, that remains unexplained after a thorough investigation, including performance of a complete autopsy and review of the circumstances of death and clinical history". Thus, unless a full autopsy examination has been conducted according to established guidelines and protocols the term SIDS cannot be used. .... In the absence of an autopsy no cause of death would be determinable and the case would be relegated to the "undetermined" category of cases of this kind. He went on to observe that "the results of autopsies may help the community, both lay and professional, to gain an understanding of issues around such deaths that may be useful in formulating future preventative strategies". ... There is no doubt that the autopsy remains the definitive way of determining the cause of death in infants who have unexpectedly died.
In refusing the autopsy the Court noted that
it is incumbent upon the Court to resolve a conflict between the decision of the Coroner that an autopsy is necessary and the competing wishes of family, relatives or friends of the deceased person generally based upon cultural or religious beliefs that are genuinely and strongly held. In some cases it has been held that ascertaining the precise cause of death is less important than the spiritual and cultural beliefs of the family in the particular circumstances. In Wuridjal v The Northern Territory Coroner I adopted the observations of Beach J in Green v Johnstone where his Honour made observations that have been repeated with approval in a number of cases. His Honour said:
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. ... it is my opinion that the rights of the parents to be spared further grief as a consequence of their daughter's death outweigh the interests of the community that the actual cause of death be ascertained.
In Evans the Court has noted that -
there were grounds upon which the Coroner was justified in requiring a post-mortem examination including an autopsy. The Coroner reasonably believed that it was necessary for an autopsy to be performed. Without an autopsy the cause of death could not, finally, be determined. There is a public interest in knowing the exact cause of death.

On the other hand the public interest in knowing the cause of this death must be weighed against the public interest in giving deeply held spiritual and cultural beliefs proper recognition and respect. In this case I was satisfied that the spiritual beliefs of the family of the child were genuinely held. To perform an autopsy would compound the great grief and distress already being suffered by the family. ... In all the circumstances the likelihood was that the performance of an autopsy would not provide any additional information as to what actually caused the death of the child, although it may have done so. If there was any additional information to be obtained from the autopsy it was likely to be quite limited. The findings resulting from an autopsy were unlikely to contribute in any meaningful way to a better understanding of the death of this child or to contribute in any meaningful way to efforts being made to improve health outcomes for other infants.

In all the circumstances I considered that, in this case, the interests of the family outweighed the public interest in determining the precise cause of death and I ordered that no autopsy be performed.