03 April 2019

Coroners

'Turnaround time data for Coronial autopsies – time to complete forensic post-mortem examination reports and influencing factors for Australia and New Zealand in 2015 and 2010' by Neil E. I. Langlois, Claire J. Sully and Suzanne Edwards in (2019) 15(1) Forensic Science, Medicine and Pathology 56–66 comments
This study aimed to provide information regarding key performance indicators (KPIs) for forensic pathology in Australia and New Zealand, focusing on the time to complete a Coronial post-mortem examination report. Data was obtained from the National Coronial Information System (NCIS). The mean and median time to complete a post-mortem examination report in 2015 was determined from a sample of 100 cases from each of the nine Coronial jurisdictions. Results of univariate and multivariable analysis of factors potentially influencing the completion time are presented. The multivariable analysis indicated the time to complete a post-mortem examination report was significantly dependent on if any internal examination had been performed, the Coronial jurisdiction and requesting toxicological analysis. The number of days for Coroners to close cases is also presented as well as the number of days for a post-mortem examination to be performed. A comparison between 2015 and 2010 was instigated. However, this data had to be constrained to eight of the Coronial jurisdictions. Within this dataset, the time to complete a post-mortem examination report when an internal examination had been performed was statistically significant greater in 2015. However, the time to complete reports for all Coronial post-mortem examinations in 2015 was not statistically significantly different to 2010. This could be attributed to a higher proportion of post-mortem examinations without internal examination (‘external only’) in 2015. The time to perform a post-mortem examination following the death being reported to a Coroner increased, but the time for Coroners to close a case decreased.
In Paterson v Coroner King [2019] WASC 25 the Western Australia Supreme Court has considered Indigenous concerns regarding autopsies, a matter discussed in  'Autopsies, scans and cultural exceptionalism' by Bruce Baer Arnold and Wendy Bonython in (2016) 41(1) Alternative Law Journal 27.

The Court responded to an application made by senior next of kin for an order that no post mortem examination be performed on a deceased child, noting the relevance of spiritual and cultural beliefs in relation to the Coroners Act 1996 (WA) s 37 before ordering
 No post mortem examination is to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of any permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased 
The Court states
The deceased died on 10 January 2019 at Perth Children's Hospital. She was 14 years old. The applicant is the deceased's mother, and for the purpose of the Coroners Act s 37, the applicant is the senior next of kin. The application is supported by the deceased's father, Mr Geoffrey Dean Pryor. On 10 January 2019, the Coroner 's Court was advised by the Western Australian Police Force of the death of the deceased, and that the deceased's father objected to a post mortem examination being performed on the deceased. On 11 January 2019, the respondent wrote to the applicant and to Mr Pryor, informing them that he had decided that a post mortem examination was necessary. 
The respondent proffered the following reason for his decision: On the basis of information available to me at this time, it does seem likely that [the deceased] died from ligature compression of the neck, though a forensic pathologist has not yet examined her body. Despite that likelihood, even if a coroner can determine what caused [the deceased's] death the coroner will also have to determine the circumstances surrounding her death. The information currently available indicates, among other things, that [the deceased] may have ended her life due to psychological stress associated with circumstances that might be identified through a full post mortem examination. I have therefore decided that a post mortem examination is necessary. 
This correspondence constituted notice in writing to the senior next of kin for the purposes of the Coroners Act s 37(1). The Coroners Act s 37(2) provides that unless the Coroner believes that a post mortem examination needs to be performed immediately, it must not be performed if a request has been made under s 37(1) until two clear working days after the senior next of kin has been given notice of the decision, or until after the end of any extension of time granted by the Supreme Court under s 37(3a). The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed. 
On 15 January 2019, the applicant made an urgent ex parte application pursuant to s 37(3a). I heard the application and granted the applicant an extension of time in which to apply to this court for an order that no postmortem examination be conducted, having been satisfied that exceptional circumstances existed so that it was necessary in the interests of justice to grant the extension. The substantive application was promptly made on behalf of the applicant and listed for hearing on an urgent basis. ... 
The applicant opposes the performance of a post mortem examination on the deceased on spiritual and cultural grounds. The applicant is an Aboriginal woman who was raised in South Australia, and who has lived in Western Australia and Victoria. She was brought up by her father's parents, who were a part of the Aboriginal community in the Riverland area of South Australia, and was encouraged to learn about her Aboriginal culture. The applicant's evidence is that it is her absolute belief that if an autopsy is carried out, the deceased's soul will be forever tormented and will never have peace; but if her body is buried whole, her spirit will be at peace. The applicant also deposes to her belief as to the distress that will be caused to her family by the performance of a post mortem examination. 
Mr Pryor is a Noongar man, whose ancestors were from the Perth area. He deposes to his belief in an Aboriginal afterlife, and that it is his belief that the deceased should not be cut. The applicant also relied (without objection) on the evidence of Ms Hayden, cultural advisor and social worker. Ms Hayden is recognised by the Noongar community of the South West of Western Australia as an Elder. Ms Hayden deposes to having shared her cultural knowledge and expertise in various capacities with the Western Australian community, Aboriginal community, the Government of Western Australia, and non-government organisations. Ms Hayden does not know the applicant, Mr Pryor, nor the deceased personally. Ms Hayden deposes that it is her understanding of Noongar culture and spirituality that the body of the deceased should not be disturbed as it will prevent peaceful passage to the Dreamtime; the consequence of disturbance will be that the spirits of the deceased and her surviving family will be unsettled; and that these cultural and spiritual beliefs are shared by other Aboriginal groups in Western Australia. 
Ms Hayden further deposes that: By undertaking a post mortem examination, the deceased's body will be disturbed. The scars created by the post mortem examination will unsettle the spirit of the deceased and will prevent her peaceful passage into the Dreamtime.
The Coroner
did not take issue with the admission of the evidence of the spiritual and cultural beliefs of the deceased's family, nor with the admission of the evidence of Ms Hayden. The respondent accepted that the applicant's cultural beliefs, and the effect on the applicant and her family of the performance of a post mortem examination on the deceased, are relevant considerations in the determination of an application made pursuant to s 37(3). 
The respondent maintained however, that while great care should be taken to ensure that spiritual and cultural beliefs are not disregarded or abused, they are not determinative and must be balanced against the public interest. As at the time of the hearing of the application, no post mortem examination of any kind had been performed on the deceased. 
It was clear from the evidence of Ms White that a post mortem examination may include a range of procedures. Less invasive procedures include xraying the body and obtaining samples for toxicology testing without making incisions in the body, such as obtaining blood, fluid from the back of the eye, and (where the bladder appears to be full) obtaining a urine sample. Invasive procedures (that might be conducted in a 'full' post mortem examination) include the removal of tissue and internal examination. 
It was the respondent's position that a 'full' post mortem examination was necessary in the circumstances of this case in light of the following. 
First, the coroner must find, if possible, the cause of death. The respondent says that while it seems likely that the deceased's death was caused by ligature compression of the neck, the cause of death cannot be determined without a post mortem examination. In this regard, Ms White deposes that from the information that she had been provided by the coroner in relation to the deceased, it is possible that she may be able to determine the cause of death without a full post mortem examination. However, if a 'full' post mortem examination was to be performed, she would be able to exclude certain possibilities as to the cause of death of the deceased that she could not otherwise exclude. 
Secondly, in the absence of a decision (which had not been made) that there was no public interest in making a finding, the coroner must find if possible how the death occurred. The respondent observed that limited information had been obtained about how the death of the deceased occurred (that is, the surrounding circumstances), but the information that was available required further investigation which may be assisted by a 'full' post mortem examination.
The Court notes that under the statute
The term 'post mortem examination' is given a broad definition, being an examination of the body of a person who has died, for the purpose of investigating the death. It is an examination conducted by a pathologist or a doctor.A post mortem examination does not necessarily involve cutting, or the removal of tissue. A coroner may however, direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death.This power is subject to the limits prescribed in s 34. 
Post mortem examinations
(1) If a coroner reasonably believes that it is necessary for an investigation of a death, the coroner may direct a pathologist or a doctor to perform a post mortem examination on the body. 
(2) The coroner may direct the pathologist or doctor performing the post mortem examination to cause to be removed from the body, for such period as the coroner directs, any tissue which it appears necessary to remove in order to investigate the death. 
(3) The pathologist or doctor performing the post mortem examination may cause tissue to be removed from the body - (a) in accordance with a direction under subsection (2); or (b) in accordance with the written permission of the deceased; or (c) subject to subsection (5)(b), in accordance with the written informed consent, in the prescribed form, of the senior next of kin of the deceased specifying the tissue which may be removed and the purpose (therapeutic, medical, teaching or scientific) for which the tissue may be removed. 
(4) The coroner may direct the pathologist or doctor performing the post mortem examination not to cause tissue to be removed as authorised under subsection (3)(c) if the coroner is satisfied that the removal would be contrary to or inconsistent with wishes expressed in writing by the deceased. 
(5) Where a post mortem examination is performed under this Act a person who causes tissue to be removed from the body - (a) otherwise than as authorised under subsection (3); or (b) contrary to a direction of a coroner under subsection (4), commits an offence. Penalty: $10 000. 
(6) Tissue removed under subsection (2) is to be dealt with in accordance with the coroner ’s directions and any relevant guidelines. 
(7) Where tissue is to be removed as authorised under subsection (3)(b), the coroner is to ensure that before the tissue is removed, the senior next of kin of the deceased is informed in writing what tissue is to be removed and the purpose for which it is to be removed and is given a chance to view the written permission of the deceased.
Importantly the Coroners Act s 37(2)
provides that unless the coroner believes that a post mortem examination needs to be performed immediately, it must not be performed if a request has been made under s 37(1) until two clear working days after the senior next of kin has been given notice of the decision or until after the end of any extension of time granted by the court under s 37(3a). 
The Coroners Act s 37(3) provides that within two clear working days after receiving notice of the decision, or before the end of any extension of time granted by the court, the senior next of kin may apply to the court for an order that no post mortem examination be performed. The court may make an order that no post mortem examination be performed if it is satisfied that it is desirable in the circumstances. ... 
This court is not being empowered to sit on appeal from the coroner 's decision, but to exercise the jurisdiction afresh, to balance compelling and competing views, and to look into what is desirable in all of the circumstances. This approach was adopted by Anderson J in Ronan v The State Coroner where at [7], his Honour found as follows: It is always of course a balancing exercise; the interests on one side have to be weighed against the interests on the other, essentially. Because there is in this case absolutely no indication that there are suspicious circumstances, I have come to the conclusion that the spiritual and cultural beliefs to which I have referred outweigh the public interest in knowing the precise cause of this death. For these reasons, I am prepared to make the order which I have indicated that I will make. For the sake of formality, I will put a proviso into the order: save for the taking of blood and urine samples. At the hearing of the application, counsel for the applicant confirmed that the applicant did not object to an external examination of the body being performed. The applicant's concern, and the concern of her family, arose from the amount of time that had elapsed, but more so from the act of autopsy, and the cutting and scarring of the body of the deceased. The concern did not arise from the possibility of any examination being performed at all.
Accordingly, in Paterson the Court states
In exercising the jurisdiction afresh and in giving consideration to what is desirable in all of the circumstances, I determined that it was appropriate to order that no post mortem examination was to be performed on the deceased which involves the making of a cut or incision in the body of the deceased or the making of a permanent mark on the body of the deceased (other than a puncture mark), but, subject to those restrictions, any other post mortem examination may be performed on the body of the deceased. 
In coming to this decision, I weighed the following matters in the balance. The spiritual and cultural beliefs of the deceased person's family It is clear on the authorities that it is appropriate and proper to have regard to the spiritual, cultural and religious beliefs of a deceased person's family in determining whether a post mortem examination ought to take place. On the affidavit evidence that was before me, I accepted that it was the strong wish of the deceased's parents that no post mortem examination take place; that the applicant was especially concerned that if the deceased's body was subject to a post mortem examination, her daughter's spirit would not be able to find peace; that this is a concern was genuine and was shared by her immediate family; and that it is a genuinely and strongly held belief which is found in Aboriginal cultural broadly, and is reflected in local Aboriginal cultural groups including the Noongar People. ... 
The respondent said, to which I agreed, that the applicant's cultural and spiritual beliefs, and the effect on the applicant and her family of the performance of a post mortem on the deceased must be balanced against the public interest. I also agreed with the respondent that where a post mortem examination would be of more than marginal assistance in the proper exercise of coronial functions, functions which the coroner is legally obliged to perform, the public interest in undertaking an examination will often outweigh the great distress that performing that examination will have on the family of the deceased person. 
On behalf of the respondent, the following circumstances were cited by way of example: where there are suspicious circumstances surrounding the death; where a pathologist is unable to conclude a cause of death absent a post mortem examination; and where a post mortem examination may reveal something meaningful about the circumstances of death. 
Counsel for the applicant cited a number of cases where the court ordered that no post mortem examination be conducted despite the fact that in each instance, the public interest factors that had led the coroners in question to direct the performance of post mortem examinations were compelling. 
Whilst examination of the authorities was undoubtedly relevant, and I had regard to them, it was necessary to adjudicate upon the particular facts that applied in this case.... 
In coming to my decision, I weighed in the balance that a coroner must find, if possible, the cause of death. This is not a case where death was a result of natural causes. In this case, while it seemed likely that the deceased's death was caused by a ligature pressure to the neck, I accepted that the cause was unlikely to be able to be conclusively determined without a post mortem examination. I weighed in the balance the fact that the information available to the police as at the date of hearing was limited. At that time, the police did not have the benefit of a complete statement from the deceased's father. However, from the notice issued by the coroner, it could be reasonably construed that as at 11 January 2019, the coroner did not harbour any particular suspicion that the deceased's death was caused by anything other than suicide. It would appear that the coroner 's purpose in ordering a post mortem examination was to better understand the factors that might have contributed to her death, rather than to determine the actual cause of death. ... 
Taking into account and balancing all of the evidence and the interests before me, including the public interest, I found that it was desirable that the cultural and spiritual beliefs of the applicant prevailed and that there be no examination of the deceased which involves making a cut or incision into the body of the deceased, or the making of a permanent mark on the body of the deceased. may be performed on the body of the deceased.