SA coronial system creaks at the core

The SA post mortem and coronial inquiry system is creaking under the weight of insufficient forensic experts available, not enough money for adequate professional staff, and paper and filing systems more suited to the 19th century. Average delay for inquest completion is about three years. In his 2007-8 annual report, SA Coroner Mark Johns explains what needs fixing, and also makes far-reaching recommendations with national impact.

SA coronial system creaks at the core

The SA post mortem and coronial inquiry system is creaking under the weight of insufficient expert forensic staff available, not enough money for adequate professional staff, and paper and filing systems more suited to the 19th century. Average delay for inquest completion is about three years.

In his 2007-8 annual report, SA Coroner Mark Johns explains what needs fixing, and also makes far-reaching recommendations with national impact, such as:

  • public hospitals keeping track of overseas doctors leaving Australia, so they can be followed up for coronial inquiries;
  • doctors who own nursing homes not being able to certify deaths, to avoid cremation occuring before coronial processes take place;
  • the South Australian Government beefing up ‘crime and corruption’ processes in relation to police; and
  • a death in police custody of any police force anywhere in Australia be investigated by the police force of another State or Territory or the federal police.

 

Excerpts from SA Coroner Mark Johns’ 2007-8 annual report:

Delays in Post Mortems and Pathology Services

The South Australian State Government, through the Department of Justice, provides funding to Forensic Science SA (FSSA) to perform post mortem and pathology services to the Coroner.  

As reported in the 2006-2007 Coroners Annual Report, there continues to be a delay in the production of the completed post mortem report.  Coroner’s Court staff have been informed by FSSA that the timeframe for a completed report is up to 12 months, and Coroner’s Court staff routinely inform families of that timeframe.  Not surprisingly, some families are appalled and saddened by this.  They simply cannot understand the reason for such a delay.  

It has also been a disappointing development throughout this year that the timeframe between death and post mortem has lengthened.  It goes without saying that a post mortem should be completed as soon after death as possible. 

The coronial investigation is compromised as the body deteriorates, even when kept in optimum conditions.  During the year under review, there have been times when the period between death and post mortem is between three and seven days.  This situation adversely impacts upon the coronial investigation, the forensic examination and the family.

Notwithstanding the above, I am informed that there is a worldwide shortage of forensic pathologists and so it seems inevitable that this situation will not improve in the near future.  I am assured by FSSA that the delay in the provision of completed post mortem reports will improve over the next year.

Backlog of Inquests

During the year under review the State Coroner and Deputy State Coroner completed 31 Inquests and delivered 38 Findings.

As at 30 June 2008 there were 49 Inquests pending with 2 from 2004, 8 from 2005, 14 from 2006, 17 from 2007 and 8 from 2008.

In order to bring a matter to court an enormous amount of preparation must occur.  Counsels Assisting already carry a load of cases for review of approximately 80 cases each.  Their two administrative assistants liaise with legal practitioners, media and the family, as well as preparing all legal and administrative paperwork for court.  Given current resources I cannot envisage that the backlog will change in any way.

It is unacceptable that, as a general rule, families wait 3-4 years for a matter to come to court.  It is also difficult for witnesses to give evidence that relies on their memories of events 3 years prior.  The opportunity to make recommendations reasonably contemporaneously with  death is lost.  These recommendations have the potential to prevent the recurrence of other deaths in similar circumstances.  It is obviously in the  interests of the community of South Australia that Inquests be held at the  earliest possible time.

Jurisdiction to Make Recommendations

During the year under review a judge of the Supreme Court held that the power to make a recommendation extends only to such matters as might prevent or reduce the likelihood of recurrence of a death in like circumstances to those in the case at hand, or to prevent death from the same or like causes to those in the case at hand.

Thus recommendations that related to events that occurred after death were beyond power.  One recommendation that had been made in that case concerned the circumstances in which a doctor with an interest in a nursing home should be permitted to sign a certificate allowing cremation of a deceased resident of the home.  The resident’s death had not been reported to the State Coroner.  The Court held, in a finding upheld by the Supreme Court,
that the resident’s death had been reportable.  Thus the recommendation would, if within power, have prevented the recurrence of the signing of a cremation certificate in a future case where a reportable death had not been reported, thus preventing the destruction by cremation of the deceased’s remains, and the opportunity to determine by autopsy the cause of death.  

In other jurisdictions the power to make recommendations extends to recommendations relating to the administration of justice (for example, Coroners Act 2003 (QLD), s46(1)(b)).  A coroner in Queensland would have been able to make the recommendation about doctors and their ability to sign certain cremation certificates.  Furthermore, a Queensland coroner might be able to recommend disciplinary action be taken against a particular person, a power that is not open to a coroner in this State.

In my opinion, it would be desirable to amend the Coroners Act 2003 to extend the power to make recommendations to include those relating to the administration of justice.  If the Act is to be amended in that way, it would be useful to further amend it to extend the obligation to report a death, to a death that appears to be reportable, to avoid arid legal arguments about jurisdiction.

Case Management System

In my opinion, the Coroner’s Court needs to have an effective, computerised, case management system.  At present there is no such system.  In the event that I wish to obtain a report about, for example, the number of disappearances that have been reported to the State Coroner over a stated period, and the year in which they were reported, it is necessary to search the paper files of the Court, not all of which continue to be held by the Court, due to archiving requirements.  

Selected recommendations by Coroner Johns

  • A.
    I recommend that public hospitals maintain a system by which the whereabouts of doctors who they think are likely to leave Australia for a protracted time or permanently can be ascertained, if necessary, for coronial investigations.
  • B.
    I recommend that the Attorney-General consider the introduction of a Bill to amend the Cremation Act 2000 by extending the prohibition in section 6(5) to cover the certification of deaths in a nursing home in which a medical practitioner has a financial or proprietorial interest.  In considering this measure, the Attorney-General may wish to consider other interests which might disqualify a doctor from certifying a person for cremation in particular cases.
  • C.
    In my opinion this Inquest has shown that the Police Complaints and Disciplinary process in South Australia is in need of review.  As noted in the Victorian Office of Police Integrity report an effective disciplinary process must operate promptly.  A delayed outcome with lingering uncertainty is often stressful for the employee concerned and may well be worse than the penalty itself. It is also a potential cause of dysfunction within the workplace.  I therefore recommend as follows:

    • I recommend that the Government review the Police (Complaints and Disciplinary Proceedings) Act 1985 in light of reforms adopted in other States of Australia, the United Kingdom and New Zealand . In the meantime I recommend that section 48 of the Police Complaints Act be amended to remove the barrier created by the secrecy provision to full disclosure of all relevant evidence to the Coroner’s Court. I recommend that section 63C of the Young Offenders Act 1993 and section 59A of the Children’s Protection Act 1993 be amended to permit the Coroner’s Court to allow publication of material that would otherwise be prohibited from publication by these provisions.
  • D.
    I recommend that the deployment of Aboriginal Community Constables for the purposes of ‘debriefing’ as that concept is used in the debriefing policy, Exhibit C78b, be discontinued. I recommend that the Attorney General raise with his State and Commonwealth counterparts the proposal that the States and the Commonwealth enter into an arrangement with each other such that a death in the custody of the police force of a particular jurisdiction is investigated by or under the supervision of police from another jurisdiction, including the Federal Police.

Full report: http://www.courts.sa.gov.au/courts/coroner/index.html

  ‘A Fair and Effective Victoria Police Discipline System’, page 20

  See generally, ‘A Fair and Effective Victoria Police Discipline System’, Office of Police Integrity, Victoria, October 2007.

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