Hearsay ... the Journal of the Bar Association of Queensland
OOPS. Your Flash player is missing or outdated.Click here to update your player so you can see this content.
An Inquisitorial Cuckoo in an Adversarial Nest: Five Years of Coronial Reform in New Zealand Print E-mail

cuckoo_intro.jpgJudge Neil MacLean presented the following paper at the 2012 Asia Pacific Coroners’ Society Annual Conference on 21 November 2012. Judge MacLean was appointed the first Chief Coroner of New Zealand under the Coroners Act 2006 and has since worked closely with the government and professional and community groups in relation to the appointment and disposition of Coroners throughout New Zealand. Prior to this, Judge MacLean assisted in the preparation of the Coroner's Manual 1988 and provided consultative information to the Chief Judge regarding the Coroners Act 2006.

Abstract

In 2000 a Law Commission report raised concerns about inconsistency, delay, lack of sensitivity and lack of coordination in the coronial process in New Zealand. In its first 5 years, the fledgling reformed system has been tested by a number of obstacles, including several major tragedies. There also remain a number of ongoing areas of contention. This presentation explores the developments, achievements and shortfalls of the last 5 years of coronial reform in New Zealand and the extent to which these concerns have been addressed.

The role that the Coroners’ inquest should play in the context of other investigations and overlapping jurisdictions continues to be debated. Recently, the Kahui case generated a large amount of discussion about the appropriate scope of the Coroner’s inquest in the context of inconclusive criminal proceedings. The reporting of suicide within NZ’s strict statutory regime is another issue that continues to be contested in a background of a high national suicide rate that has remained stubbornly the same. In other areas, the absence of clarity in the Act and lack of precedential case law has left a number of matters untested. There is very little recent case law before the High Court on Coroners’ decisions and despite earlier predictions, no objections to post-mortem decisions have yet gone to the High Court. In the absence of any statutory guidance, Coroners also await the Supreme Court’s handling of the Takamore case to assist in the resolution of body claiming disputes.

Notwithstanding these challenges, the reformed system continues to make positive advances and the findings and recommendations of Coroners are gaining increasing publicity and attention. The coronial system proved its ability to cope with major disasters such as the Christchurch earthquake, Pike River mining disaster and Carterton balloon tragedy. However, it is clear that there are areas where the coronial system could be further streamlined and enhanced. An upcoming review of the Coroners Act may take some steps toward this. Other potential areas of reform include the concept of mandatory responses to Coroners recommendations, the establishment of a Coroners’ Court of New Zealand and further development of the law surrounding what deaths should be reported to a Coroner.

Background

Five years ago, New Zealand’s coronial system was overhauled to incorporate a raft of proposed changes and recommendations made by the Law Commission. The Law Commission Report of 2000 remains a seminal document in respect of death investigation in New Zealand.1 It followed extensive consultation and discussions with many interest groups. Maori in particular had a number of concerns regarding perceived insensitivities in the coronial system. The Law Commission was critical of the existing system, describing it as “patchy, unsystematic and inadequate” and as being “the poor relation to the justice system”.2 One of the central criticisms was that the system had “no centralised recording system which would allow patterns to be responded to or any Chief Coroner suitably resourced to devise and maintain the necessary systems to oversee Coroners and monitor the implementation of coronial recommendations”.3 The report also identified issues around delay and the lack of uniformity of coronial practice, a need for an organised training program, and perceptions that the system had little or no regard for cultural values and beliefs.

The reforms made to the coronial system through the Coroners Act 2006 addressed these concerns and bolstered the legal and social functions of Coroners in the community. The new Act reinforced the underlying objective of the coronial system to identify and draw to public attention practices that have cost human lives in order to avoid preventable death.4 My role as Chief Coroner was also created under this process of reform in order to help ensure the integrity and effectiveness of the coronial system5.

The purpose of this paper is to reflect on the shortfalls, achievements and ongoing challenges of the last five years of coronial reform in New Zealand. The fledgling system has proven itself in the face of a number of large-scale tragedies in recent times. It continues to reinforce the Coroner’s functions while contributing to a valuable public understanding of the causes of preventable deaths. Meanwhile, the system must continue to reconcile its rare role as an inquisitorial court in what is otherwise an adversarial justice system. With a review of the Act on the horizon, it is also an opportune time to consider what challenges await in the future and what further can be done to better New Zealand’s coronial system.

statue.jpgReform and the Coroners Act 2006

The Law Commission made a number of recommendations addressing the various deficiencies in the existing coronial system. One of the key features of their recommendations included the desirability of having a transparent appointment process similar to other judicial offices, with a reduction from the then 74 Coroners to a much smaller number through a process of centralisation.6 The Commission also identified the need for a national coronial information database and for clarification and coordination of relations between Coroners and administrative and government agencies.7 The Commission expressed concern at the lack of a central point of contact for coronial matters and the perceived lack of uniformity in practice between Coroners.8 Noting that a Chief Coroner is appointed in most territories in both Australia and Canada, the Law Commission recommended the appointment of a Chief Coroner in New Zealand.9

The broad vision of the Law Commission was substantially accepted by Parliament, albeit with some significant differences. One of the most significant was that the Law Commission anticipated the transition to a new system being by way of attrition, replacing Coroners as they retired with full time legally qualified Coroners. However, Parliament simply abolished the warrants of the existing Coroners and took away all but very residual rights for Justices of the Peace.

Today it is the Coroners Act 2006 which governs the coronial system in New Zealand. All Coroners are now legally qualified and instead of 75 Coroners, the Act provides for a maximum of 20 full-time Coroners, plus a Chief Coroner acting as head of bench.10 The ‘big bang’ approach taken by Government understandably caused some serious tensions and to some extent residual aspects of that have continued, including resistance to changing old practices both by some Coroners and other stakeholders such as Police and Pathologists.

One of the main areas of discontent with the existing system uncovered by the Law Commission related to cultural concerns that the old coronial practices were insensitive, both in their treatment of the deceased and with regard to the removal and retention of body parts. Parliament reflected many of these concerns in their reforms. The new Act considerably enhanced this area by spelling out rights of families in relation to autopsy or post mortem examinations and the right in some circumstances to challenge a Coroner’s decision.

The Law Commission believed that a Chief Coroner could ensure the efficient administration of the Coroners Act and could help to identify and prevent potential harm and unsafe practices.11 A number of the functions of the Chief Coroner proposed in the report were placed in the 2006 Act. When looked at together, the Law Commission Report and section 7 of the Act gives some guidance as to the Chief Coroner’s intended role. Some of these functions include:

- To ensure the integrity and effectiveness of the coronial system;

- To ensure investigations are conducted in an orderly and expeditious way by overseeing them;

- To facilitate provision and coordination of support services and other advice;

- To assist the Ministry of Justice to make arrangements for information and initial and continuing professional education and training;

- To designate Coroners (that is to decide what cases Coroners will handle);

- To maintain a list of approved Pathologists (under the old Act, any doctor in theory could carry out an autopsy);

- To issue practice notes;

- To maintain a public register of summaries of Coroners’ recommendations or comments;

- To act as Head of Bench under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004;

- To provide information and planning for emergencies and disasters;

- To try and avoid unnecessary duplication by liaison with other investigating authorities;

- And (rather unusually for a Judicial Officer) to have responsibility “ to help by education, publicity and liaison with the public, to promote understanding of, and cooperation with, the system”.

Multiple Fatality Disasters - A Steep Learning Curve for the Coronial System

A real test of coronial reform in New Zealand was the response to a number of multi-fatality tragedies in recent years. These included the Pike River Mine disaster, Christchurch earthquake, Carterton Hot Air Balloon crash and the sinking of the Easy Rider on Foveaux Strait. Several elements of the reformed coronial system operated well in the context of these events. In particular, having a Chief Coroner facilitated the flexibility and ability to quickly make decisions as to who would handle matters from a coronial perspective. Historically the Coroner to handle a matter has been determined on a regional basis (ie. where the death occurred). However in the midst of these crises, this normal proposition had to move to an escalation point.

In November 2010 explosions within Pike River Mine in Greymouth resulted in the deaths of 29 workers. Immediately following these events I decided that my urgent attendance was needed and took on the full task myself. This eventuated in early inquests to establish confirmation of death and the likely cause and time of death so that, in the absence of any bodies, death certificates could be issued with minimal delay. This tragedy was certainly a steep learning curve for our coronial system; however many key relationships between stakeholders were developed. This meant that when the Christchurch earthquake occurred on 22 February 2011 we were better prepared to urgently respond to events as they transpired.

christchurch.jpgThe earthquake that struck Christchurch that day took the lives of 185 people. Over half of the deaths occurred in the six-storey Canterbury Television (CTV) Building, which collapsed and caught fire in the quake. On becoming aware of the magnitude of the disaster, I made it clear that I was to be the designated Coroner to whom all reports of death should be made. I quickly established contact with the Police National Headquarters and went to Burnham Military Camp to help set up our response and coordinate how matters would be dealt with. Utilising my designation powers, I decided to rotate a small number of predominantly out of town Coroners that could deal with matters on the ground and be an embedded Coroner working with the ante and post mortem reconciliation teams at Burnham Camp. The Coroner would also liaise closely with the Pathologists and other specialists that were working at the temporary mortuary set up in an impressively short time a few hundred metres away within the safe and secure confines of the camp. We utilised the facility of our after-hours and weekend facility based at Ellerslie in Auckland known as NIIO (National Initial Information Office) so that we had in effect a “back office Coroner” on duty at all times to handle the inevitable paper warfare that is required in any death; let alone an event which involved so many deaths.

We know from feedback that for the other stake holders involved, including funeral directors, various DVI specialists, police and other Government agencies, it was advantageous to have a clear channel of communication through the Office of the Chief Coroner. It also facilitated the necessary liaison with the victims’ families (including overseas victims which often involved working though the offices of MFAT and the various relevant embassies or consulates) and of course the media. The Police also generously provided Family Liaison Officers that worked closely with our staff.

Our ability to handle all this and still cope with the other day to day tasks in the rest of the country has evinced admiration and comment from around the world. The lessons learnt and relationships strengthened in Greymouth and Christchurch have resulted in a better response to the later tragedies that occurred.

Challenges Posed by Reform

a. The Kahui case

This year a high-profile inquiry held into the death of twin infants generated lively debate about the appropriate scope of the Coroner’s inquest in the context of inconclusive criminal proceedings.12 The case resulted from the deaths in 2006 of three month old twins Chris and Cru Kahui, after being admitted to hospital with serious head injuries. The father of the boys was charged with their murder following a homicide investigation into the twins’ deaths. His defence was that it was the mother who was responsible for the deaths and after a six week trial he was acquitted by the jury following ten minutes of deliberation.13

At the time of the twins’ deaths, the statute that governed the inquiry into their deaths was the Coroners Act 1988. Its provisions continued to govern proceedings through the transitional provisions in the Coroners Act 2006. Section 28(1) of the Coroners Act 1988 provided that a Coroner may adjourn an inquest if a person has been charged with a criminal offence in relation to the death, and the Coroner is satisfied that to proceed with the inquest might prejudice the person. In these circumstances, the Coroner is not to proceed with the inquest until criminal proceedings have been finally concluded. The Coroner to whom the deaths were initially reported opened and adjourned the inquests into the twins’ deaths in 2006 and no further action was taken until the prosecution had been completed and the time within which to appeal had expired.

The criminal trial and its outcome had generated considerable public interest and there were continued calls for an inquiry to determine how the twins were harmed and whether existing state systems of care were adequate to protect vulnerable infants. Following the father’s acquittal I designated Coroner Evans, a very experienced Coroner who is warranted under the old and new Acts, to proceed. Coroner Evans made a decision that the inquests must be resumed due to the fact that the circumstances of the twins’ deaths had not been established and that establishing these would likely give rise to the making of recommendations. The inquest was held in June 2011 and copies of adverse comment made in the Coroner’s draft findings were made available to all affected parties. In response to comments made in the findings, the lawyers of the twins’ father filed proceedings for a High Court judicial review of the Coroner’s report into the deaths. However, before the High Court could examine the case, the father’s lawyers asked for the application to be dismissed. Their reasoning was that the Coroners’ final findings differed sufficiently from the previous draft to no longer warrant judicial review.

The Coroner's final findings released in July 2012 concluded that that the twins had suffered the injuries which led to their deaths during a time "whilst they were in the sole custody, care and control of their father".14 The Coroner further stated there was no evidence or fact to support that the injuries were caused by the children's mother. The Coroner’s findings in this high-profile case exposed general public confusion and dissatisfaction with the inconsistent outcomes from the adversarial and inquisitorial processes of New Zealand’s justice system. Concern was expressed both in terms of the perceived failings of the criminal prosecution to deliver justice, and the perceived overstepping of the Coroner’s jurisdiction into matters of culpability.

Where there is an acquittal in a criminal conviction, or where police have never been able to bring a prosecution, the Coroner may well have a role in clarifying for the public what happened and identifying if there are any lessons to be learnt from it. Although it is not the role of the Coroner to determine civil and criminal liability, it is the Coroner’s function to inquire into the truth of what occurred and to identify non-criminal factors contributing to the death which may lead to the making of recommendations. In cases such as Kahui, the inquest provided an opportunity to identify the social circumstances surrounding the twins’ deaths that have important public health and public policy implications. The Coroner is an ideal position to investigate these broader issues which are rarely dealt with in adversarial proceedings. The Kahui case is a stark illustration of the uneasy interface in New Zealand between the criminal justice system and the inquisitorial nature of coronial proceedings. Although for better or worse the Coroners’ decision was not tested in the High Court, the case remains a valuable recent example of the Coroners’ potential role following inconclusive criminal proceedings.

Criminal proceedings pose unique challenges to the Coroner’s inquiry, however parallel investigations by a myriad of other agencies can also complicate the coronial process. Investigations are frequently conducted by agencies such as the Department of Labour (now the Ministry of Business Innovation and Employment), the Civil Aviation Authority, the Independent Police Conduct Authority and the New Zealand Defence Force. Section 69 of the Act provides that where another investigation is being conducted into a death a Coroner may postpone opening, or adjourn, an inquiry.15 If satisfied that the investigation has adequately established all necessary matters, the Coroner may decide not to open or resume an inquiry. The corollary of this is that the Coroner can open the inquiry if satisfied that the investigation is unlikely to establish all necessary matters and that reopening the inquiry will not prejudice the investigation or any person interested in it. In many of these cases these investigations are conducted behind closed doors with little oversight or opportunity for public input. In these situations, the Coroner’s inquest remains a valuable forum where a public airing of issues can be achieved.

b. Suicide in New Zealand

Another fertile area of debate in New Zealand relates to self-inflicted deaths and the reporting of suicide by the media. The Coroners Act 2006 provides relatively strict statutory constraints on the reporting of suicide. Before a Coroner’s inquiry is completed no one may make public any particulars suicide.jpgof a death without a Coroner’s permission, including the fact that it may be self-inflicted.16 If a Coroner has found a death to be self-inflicted the only details that may be made public of the death without a Coroner’s permission is the name, address and occupation of the deceased, and the fact that the death has been found to be self-inflicted.17 However, within this strict statutory regime New Zealand’s high national suicide rate has remained stubbornly the same.

During my time as Chief Coroner I have advocated a gentle opening up of the release of more information about the circumstances of suicide deaths to encourage more open discussion and accurate information about suicide. This mirrors a similar approach by the South Australian Coroner Mark Johns. Annual provisional suicide statistics are now released to the media to provide a clearer, earlier and accurate picture of the extent of suicide in New Zealand. The most recent release of suicide statistics showed some concerning trends, including a significant jump in teenage suicide numbers and the continued rise of Maori suicides, in particular young Maori. A particular focus of the interest in this data has been on the suicide rate in Christchurch following the February 2011 earthquake. In the immediate months post-earthquake there was a drop in the number of Christchurch suicides – a phenomenon which has been observed elsewhere in contexts of large scale crisis events, such as a natural disaster. However, this number has steadily risen again peaking about a year following the earthquake.

Coroners’ inquiries, including suicides, often attract media attention to a degree not encountered in other courts. In 2011, media guidelines for the reporting of suicide were developed through collaboration with media, mental health professionals and government agencies.18 These guidelines attempt to assist media with exercising responsible editorial judgment within the framework of statutory constraints imposed by the Coroners Act 2006. My approach has been strongly opposed by a small number of vocal academics and continues to be the topic of debate among media, medical professionals and other agencies. It is my hope that through discussion and consultation we can come to a pragmatic approach between the two extremes of the debate and responsible participation by the media in suicide prevention strategies can be achieved.

c. Legal questions and untested issues

Coroners are currently awaiting the Supreme Court’s handling of the Takamore case to assist in the resolution of body claim dispute cases which occasionally arise within families following a death.19 This case involved a bi-cultural family dispute as to whether the deceased should be buried in Christchurch, as his wife intended or the traditional urupa (burial ground) of his family. Under the Coroners Act the Coroner retains exclusive legal custody of the body from the time when a death has been reported to him or her, up until he or she authorises the release of the body.20 Although Takamore did not involve a Coroner, there have been a number of other cases where Coroners have had to grapple with similar issues. It is hoped that the decision of the Supreme Court in this case will provide some guidance as to whom the body shall be released to in coronial cases where there is such a dispute.

Significantly under the new Act, families were given the right in some circumstances to object to a Coroner’s decision to direct a post-mortem and to challenge that decision in the High Court. Based on experience in jurisdictions such as Victoria, it was anticipated that there would be a considerable number of objections taken to the High Court under these new provisions. Somewhat to everyone’s surprise there has not yet been one objection that has gone to the High Court, although it has been a close-call on a number of occasions.

There has always been, and I suspect will always be, a tension between some pathologists’ fallback position that the only path to certainty as to cause of death is a full internal autopsy with often quite strongly opposed views from next of kin. It is the Coroner’s task to try and resolve these issues, sometimes in a highly charged and confrontational context. That no post-mortem decisions have gone before the High Court may be seen as a testament to the fact that the system is flexible enough to deal pragmatically with the concerns of all involved. Nevertheless, the fact that the High Court has not yet examined any post-mortem decisions does contribute to what is an overall lack of guiding precedent for Coroners. In general, a lack of recent precedential case law (particularly in terms of judicial review of Coroner’s decisions and objections to post-mortems lodged in the High Court) means that Coroners will sometimes have little practical guidance upon which to base their exercise of discretion or statutory interpretation of the Coroners Act 2006.

Other Milestones

Despite the ongoing challenges faced by the coronial system, it has taken some significant steps forward over the past five years. These developments have contributed to a more consistent approach nationally and better dissemination of coronial information and recommendations to the community.

One of the functions of the Chief Coroner identified by the Act was to make arrangements for continued professional education and training. To date, a residential intensive training regime has taken place twice yearly. These provide Coroners with a valuable opportunity to share and learn from one another’s experiences and to discuss issues which are affecting the efficiency or efficacy of the coronial system. A further achievement has been the production of a Bench Book for use by all Coroners. Before my appointment, all that had been done on this project was to produce about 20 very impressive embossed covers for a Bench Book, but with no content. A complete Bench Book has now been produced and at present the final touches are being put on an updated electronic edition.

Recently, Coronial Services has moved to a new service where all reports of death to a Coroner are centralised to the National Initial Investigation Office (NIIO) located in Auckland. NIIO now operates as a 24/7 service, focusing solely on the processes involved in the 48 hours following a death from reporting to the release of the body. The new service provides an around-the-clock point of contact for doctors, police and funeral directors with an on-call Coroner who is able to discuss the death. It is hoped the new service will allow regional offices to focus on their core tasks of managing the coronial investigation process.

A further requirement of the Chief Coroner is to maintain a public register of summaries of recommendations or comments. This has proven to be a time consuming task as we attempt to stretch our existing resources to disseminate recommendations and ensure more transparency of the coronial process. Presently summaries of recommendations are available on NZLII, a non-profit nzlii.jpgdatabase that provides free, independent access to NZ law. One of the features of my role as Chief Coroner has been establishing an excellent relationship with my counter parts in Australia. Recently, New Zealand has joined the National Coronial Information System which has hitherto dealt only with Australian coronial cases. Closed New Zealand cases will be uploaded onto the database, providing a searchable database of full coronial findings and a one stop shop with an Australasian catchment area. In order to adequately discharge my public education obligations under the Act it remains necessary to ensure that a similar resource is available to the public generally so that Coroners’ recommendations and findings are available at no cost.

New resources and publications to make coronial information more widely available and publicly accessible are currently being progressed. Recently, the Office of the Chief Coroner produced a new quarterly publication titled ‘Recommendations Recap’ which is released to all stakeholders and the public. This publication summarises all coronial recommendations over a specified period, along with any responses received. Each issue also contains a case study on a particular issue or category of death. A recent case study report focused on deaths resulting from recreational butane inhalation.21 The report included recommendations made by Coroners over the last decade and the legal landscape surrounding the issue in New Zealand. Not unexpectedly the report garnered a large amount of public attention due to the fact that butane inhalation or ‘huffing’ was a prominent issue in the media. As a result of the release of this report and the inquiries that followed, some of the larger retailers who sell butane based products have now put in placed their own self imposed restrictions to only sell the products to buyers aged over 18 years old.

Recently, particular effort has been put into registering and tracking all coronial recommendations along with any responses received from government agencies and organisations. This is proving to be a useful process – both in terms of encouraging agencies to respond and receiving valuable feedback about the quality and feasibility of Coroners’ recommendations. There is currently no provision in the Coroners Act 2006 which makes it mandatory for agencies or organisations to respond to Coroners’ recommendations. It is hoped that by enhancing our processes around the dissemination and tracking of recommendations we can ensure, that in the absence of any mandatory requirement, there is still some form of audit on where Coroners’ recommendations are going and whether they are being listened to.

The Future

After nearly five years it is becoming clear that, bold though it was seen to be at the time, there are areas where the coronial system could be further streamlined and enhanced to provide a better and more efficient service for New Zealanders. We can also look to other jurisdictions to find reforms and practices that have been successful elsewhere. In Victoria the new Coroners Act 2008 brought in a number of reforms. The State Coroner’s Office was re-established as the Coroners Court of Victoria and a Coronial Council of Victoria was created to provide advice and make recommendations to the Attorney-General. In January this year the West Australian Law Commission issued a fairly substantial report reviewing coronial practice and looking at the functions of the Office of the State Coroner (the equivalent of a Chief Coroner).22

a. Coroners role in death prevention

The Coroners’ power to make recommendations and their underlying responsibility in the area of death prevention is one of their most important social functions. The Coroner is able to contribute something worthwhile to the process of public learning and understanding. Nevertheless, the implementation of these recommendations is entirely reliant on cooperation and assistance from other players. Other jurisdictions, including Victoria and England and Wales, require mandatory responses to recommendations. In England and Wales ‘Rule 43’ requires that a person who receives a Coroners’ report must send the Coroner a written response within 56 days.23 The Ministry of Justice releases a bulletin summarising Coroners’ findings and listing where responses have been received, and where they have not.24 Similarly, in Victoria anyone who receives a recommendation from a Coroner must respond in writing within three months stating what action, if any, has or will be taken.25

I have recently started to advocate for a possible change in the Coroners Act 2006 to align our process with what occurs in these jurisdictions. Receiving responses to Coroners’ recommendations contributes to a richer public understanding about the causes and circumstances of preventable deaths. Indeed, where Coroners’ recommendations are impractical or ill-conceived, a mandatory response is a valuable resource for Coroners formulating recommendations in future inquiries. Surely if it makes sense to provide Coroners with the resources and power to make recommendations, it also makes sense to give these some added strength by requiring at the very least a mandatory response.

A key aspect of coronial reform in both Western Australia and Victoria has been to clarify and bolster the Coroner’s role in making recommendations to prevent future deaths. In Victoria that is the Coroners Prevention Unit which is a specialist service for Coroners created to strength the prevention role and provides assistance in researching, developing and evaluating the effectiveness of coronial recommendations. The unit is made up of a number of teams that can gather and provide expert evidence on particular types of deaths throughout the inquiry. The Western Australian Law Commission has recommended the establishment of a similar support body for the Coroner’s prevention role.26 Despite its obvious utility, no such body exists in New Zealand to assist Coroners with discharging their role in death prevention.

b. Health-care related deaths

Issues frequently arise for Coroners and medical professionals about what deaths should be reported that occur in medical settings. While over-reporting of deaths to the Coroner may raise practical issues, it is the under-reporting of deaths that creates significant implications for the identification and investigation of preventable deaths. Extreme cases such as Harold Shipman in the UK and hospital-corridor.jpgAustralia’s King Edward Memorial Hospital demonstrate the potential dangers of systemic under-reporting of deaths and the vulnerabilities it exposes.

In Australian jurisdictions, legislative reforms have sought to specify and clarify when deaths occurring in a medical setting should be reported to a Coroner. The West Australian Law Commission report reviewing coronial practice included proposed changes to some of the categories of reportable deaths.27 The report recommended that a more specific criterion be created to deal with deaths that occur in a medical setting. The proposed reforms in West Australia (modelled on existing Queensland legislation) require some sort of causal link between the death and the provision of medical treatment.28 Importantly, the reforms also made clear that deaths resulting from a failure to provide medical treatment are reportable.29 It may be that the broad discretion provided to medical professionals in New Zealand’s own legislation may be better guided by a more precise definition of a ‘health-care related’ death. Changes to the legislation could clarify the circumstances when a death from a health-care related procedure should be reported to a Coroner, and may encourage greater compliance in reporting by doctors. Like the proposed reforms in West Australia, a legislative change could help ensure that deaths resulting from the failure to treat are explicitly addressed in the Coroners Act 2006.

c. Joint Inquests

I am tentatively moving away from the traditional, individualised approach to inquests towards grouping inquests by type or subject matter. Coroner Gordon Matenga is holding joint inquests into the deaths of eight cyclists. Next year a joint inquest is to be held into a number of deaths that have occurred on quad bikes throughout the country. Undoubtedly this approach presents unique problems. The need to appreciate the countless specific and individual tragedies that come before Coroners should be balanced against the fact that apparently unrelated events can assume a different character when looked at collectively. Grouping several inquests may provide a valuable opportunity to identify any wider lessons that can be learnt.

Conclusion

I am cautiously proud of what Coroners and the wider coronial system have achieved over the past five years. Nevertheless, this paper has identified a number of areas where there is more that can be done. The next five years will see a new Chief Coroner, further reform of the Act and perhaps answers to some of the untested matters that Coroners remain wary of. I have just over two years on my watch to go, but am hopeful that I will be able to hand over to the next Chief Coroner an even better system than we have now.

Chief Coroner Judge Neil MacLean

 

Footnotes

  1. New Zealand Law Commission Coroners NZLC R62, 2000.
  2. Ibid, at xi.
  3. Ibid, at xi.
  4. Coroners Act 2006, s 6.
  5. Ibid, s 7.
  6. New Zealand Law Commission Coroners NZLC R62, 2000, at [52].
  7. Ibid, at [93]–[94].
  8. Ibid, at [71].
  9. Ibid, at [77].
  10. Coroners Act 2006, s 109.
  11. New Zealand Law Commission Coroners NZLC R62, 2000, at [74]
  12. Inquest into the deaths of Christopher and Cru Kahui ( Infants) Coroners Court Auckland 89/12, 2 July 2012.

  13. Inquest into the deaths of Christopher and Cru Kahui ( Infants) Coroners Court Auckland 89/12, 2 July 2012, at [174].
  14. Coroners Act 2006, s 69.
  15. Coroners Act 2006, s 71(1).
  16. Coroners Act 2006, 71(3).
  17. Media Roundtable “Reporting Suicide” (December 2011).
  18. See litigation history: Clarke v Takamore [2010] 2 NZLR 525; Takamore v Clarke [2011] NZCA 587; Takamore v Clarke [2012] NZSC 17.
  19. Coroners Act 2006, s 19.
  20. Office of the Chief Coroner “Recommendations Recap” (Jan-March 2012) Issue 2.
  21. Law Reform Commission of Western Australia Review of Coronial Practice in Western Australia: Final Report (Project 100, 2012).
  22. Coroners Rules 1984 (UK), r 43.
  23. See most recent report at: Ministry of Justice “Summary of Reports and Responses Under Rule 43 of the Coroners Rules” (2012) Ministry of Justice UK < http://www.justice.gov.uk/publications/policy/moj/summary-of-reports-and-responses-under-rule-43-of-the-coroners-rules2 >
  24. Coroners Act 2008 (Vic), s 72.
  25. Law Reform Commission of Western Australia Review of Coronial Practice in Western Australia: Discussion Paper Project 100, at 102.
  26. Law Reform Commission of Western Australia Review of Coronial Practice in Western Australia: Discussion Paper Project 100, at 31-36.
  27. Section 3 of the Coroners Act 2003 (Qld) provides that a death is a reportable death ‘if the death was a health-care related death’. Section 10AA defines ‘health-care related death’. See also NSW: Section 6 of the Coroners Act 2009 (NSW) provides that a death is reportable if ‘the person died in circumstances where the person’s death was not the reasonably expected outcome of a health-related procedure’. Health-related procedure is defined as ‘a medical, surgical, dental or other health-related procedure (including the administration of an anaesthetic, sedative or other drug), but does not include any procedure of a kind prescribed by the regulations as being an excluded procedure’. The Coroners Regulation 2005 (NSW) expressly exclude a number of defined health procedures ‘that are undertaken in response to impending death (eg. resuscitation and palliative care measures) to ensure that matters are not unnecessarily reported to the Coroner’.
  28. Law Reform Commission of Western Australia Review of Coronial Practice in Western Australia: Discussion Paper Project 100, at 33.

| | | | | |