The role of the coroner

This issue arises from a decision of the Victorian Supreme Court in Victoria Police SOG Operators 16, 34, 41 and 64 v Coroners Court of Victoria [2013] VSC 246. The special operations group were involved in the arrest of a murder suspect who ‘had a lengthy and violent criminal history which involved firearms’. During the course of the operations the suspect was shot and killed either by operator 16 or 41 (the officers were not identified by name).

Under the Coroners Act 2008 (Vic) a coroner’s inquest is to determine the identity of the deceased; and the cause of death (s 67). These were not controversial, everyone knew the identity of the deceased and he died as a result of gunshot wounds inflicted by the police. Section 49 of the Act says:

The principal registrar must notify the Director of Public Prosecutions if the coroner investigating the death or fire believes an indictable offence may have been committed in connection with the death or fire.

The section applies if the Coroner ‘believes an indictable offence may have been committed’ (emphasis added); the coroner does not have to be satisfied it was committed. In Victoria, the offence of murder is provided for in the Crimes Act 1958 (Vic). That section provides a maximum gaol term of life imprisonment but does not explain what constitutes murder. Without citing ancient authority, for the sake of the argument let us accept that murder involves an act of the accused, that causes the death of the deceased, where the accused intended to kill the victim. In this case there could be no doubt that the victim was dead, and it was known that either operator 16 or 41 fired the fatal shots. If they did not intend to kill they at least intended to injure and so could be guilty of manslaughter. As such the coroner referred the matter to the DPP.

In making that report the coroner, who is not allowed to determine whether or not someone is guilty of an offence (Coroners Act 2008 (Vic) s 69), said:

From my perspective, a man has died, therefore the offences are very severe. The defences, at least the self defence issue, I am of the view is not something for me to decide. It’s something to be decided in the Supreme Court if the charges were laid and if you then faced that prosecution.

and later

But from my perspective, the defences are not something for me to decide. They are not part of the circumstances, because I can’t assess it at the level at which a jury would assess it. And so I don’t want to compromise that.

The Coroner was not deciding they were guilty, or even that she thought they were guilty, she was concluding that the elements of the case for murder or manslaughter might be established but it was not for her to decide. What she had to do was refer it to the Director of Public Prosecutions (the DPP) as the appropriate person to decide whether or not charges should be laid.

The DPP reviewed the case, determined that there was no criminal conduct and referred the matter back to to the Coroner to finish her inquest. At that time the police officers sought an order that the Coroner no longer hear the matter because they said her decision to refer to the case to the DPP showed bias. That application was rejected and presumably the Coroner will now hear the matter knowing that the DPP has determined that no charges are to be brought. The Supreme Court, in rejecting the application to have the Coroner step aside, did say she’d made some errors in her approach that need not concern us here and did not affect the outcome.

The issues that I want to draw attention to, and that are relevant to all emergency workers not just the police, is first, her decision to refer the matter to the DPP was not a judgement of guilt. She does not get to make that decision if she thinks the people before her are guilty, but if they may be guilty. A coroner does not determine guilt or innocence, a trial court does that. In this case it did not get there as the DPP decided not to proceed. The fact that the DPP decided not to proceed does not mean the Coroner was wrong to refer the matter, it just shows that the issue of whether or not to proceed with criminal proceedings was a matter for the DPP, not the coroner.

The more interesting issue for readers of this blog was the fact that the Coroner refused to allow the officers to give evidence. She did this because they applied for a certificate under s 57 which preserves the privilege against self-incrimination. Under that section if a certificate is issued, anything the witness says cannot be used against them in subsequent proceedings (both criminal and civil).

It is up to the Coroner to determine which witnesses are called. In this case rather than allow the operators to give evidence and issue a certificate, the Coroner said she would not require them to give evidence. They were not going to add to the findings she would have to make as to the identity of the deceased or the cause of death. Any explanation they would want to give as to why they shot the deceased would go to questions of whether the shooting was lawful or not, and that was a matter that she wanted to refer to the DPP. Getting them to give evidence could raise all sorts of issues about what evidence was incriminatory and what was not. She did not want to compromise future proceedings so felt it was better not to call them at all, rather than require them to give evidence and issue a certificate. She obviously believed she was acting in everyone’s best interests.

But here’s the problem, the officers wanted to give evidence and the coroner knew that. She said

I understand how you feel about wanting to give evidence. I have had at least four times when I’ve excused policemen for various reasons, usually under the Occupational Health and Safety Act, their — usually their superintendents or similar, when I meet them somewhere coming to me and saying, ‘I had terrible trouble with that case because those guys wanted to tell me what had happened, they wanted to make sure that they were on the record exactly and then there was no other way in which that could happen.

I don’t do it lightly. I don’t do it in a way that means I don’t take that into account at the personal level. But from my perspective, the defences are not something for me to decide. They are not part of the circumstances, because I can’t assess it at the level at which a jury would assess it. And so I don’t want to compromise that.

And later:

It’s not the first time I’ve heard this, both personally and from other people in different circumstances. I understand your job pretty well and I understand why you want to give evidence, at least at that level. But sometimes I’m concerned about the implications of it.

Coroner’s inquests (into deaths) and inquiries (into fires) are a common outcome of events that the emergency services attend. If you believe they are there to help ‘find the truth’, to discover everything there is to discover, you will be disappointed by the outcome here. The Coroner is a law officer whose duties are defined by law; in this case to determine the identity of the deceased and the cause of death and if there is evidence that an indictable offence may have been committed to refer the matter to the DPP. This Coroner did that.

Courts, including the coroner’s court, are not however open forum for everyone to speak. It may be good if they were, even therapeutic, but they’re not. In court witnesses get to answer questions, not tell their story and Court’s only want to hear evidence relevant to the issues before them, not relevant to the issues the parties necessarily wish were before the court. So here the police officers did not get to tell the Coroner their version of events, why they did what they did. Not because it was not important to them, but because of the strictures on the Coroner imposed by the Act.

Now the matter is back before the Coroner she can make further findings on the procedures and if there is some recommendation she can make to reduce the risk of further deaths she can. She could now hear from the police officers, but may not. The issues still exist, if they want a certificate under s 57 to protect them from issues under OHS law, civil actions, or even to stop the DPP reviewing his decision, she may still decide that in fact they are better protected by not being called at all. Whether they are called is the Coroner’s call, not the witnesses.

We may hope that courts, including the coroner’s court, are a tool to discover ‘the truth’. In fact they are a tool to resolve issues according to law, and that is not the same thing.
In research we have done for the Bushfire CRC we have identified that litigation against the emergency services is very rare and largely unsuccessful. People who report a fear of litigation really report a fear of the process. Sometimes that process will see people cross-examined and there every decision questioned; in other times, such as this, it will see them denied the chance to explain what they did and why.

That may be effective in determining the legal consequences but may not be an effective way to identify the lessons that should be identified from past events.

Michael Eburn
22 May 2013

“Cop sues offender’s family”

That’s the headline from a story from Channel 7’s program ‘Today Tonight’ and which can be found at <http://au.news.yahoo.com/today-tonight/lifestyle/article/-/17253616/cop-sues-offenders-family/>. It’s not surprising, given the quality of journalism on that show, that much of what is reported is wrong. First the text says:

“The police officer is suing the estate of a murder-suicide offender, claiming he suffered psychological trauma, after attending the distressing crime scene.
The court will be asked to decide if the family of the man responsible for the crime, is liable for the psychological injury suffered by the officer.”

They are actually two different propositions. If he’s suing the estate, he’s effectively suing the deceased. Liability will turn on the deceased’s obligations to the officer. It will not raise the question of whether or not the family is responsible for the deceased’s actions.

The story does report that barrister Greg Barnes, from the Australian Lawyers Alliance, says “”We’re looking at the question of whether or not there is any duty-of-care that those relatives owe to the officer” but one has to wonder what he was told about the case. It’s not in the text but in the accompanying video the host says ‘he’s suing the family’ but suing the family is not the same as suing the estate. The question of whether or not the family owe a duty of care will simply not arise if the action is against the estate of the deceased. It appears the journalists, given the way they change between suing the estate and suing the family, were unable or unwilling to make that distinction. My guess is that there is a deliberate attempt to sensationalise the story here. If the action against the deceased’s estate succeeds, then it is his family that misses out as the damages payable to the officer will be paid before the family inherit and it may take up the entire estate. In that sense the family will miss out and one may argue would be held ‘responsible’. And true to form it’s an opportunity to portray the deceased’s elderly pensioner mother as a victim of the unjust legal system and of course all plaintiff’s including this officer, must be greedy or selfish, why else would they go to court – where only greedy and selfish people go (unless of course their fighting shonky tradesmen).

If the action is against the estate of the deceased however the issue is whether the deceased, not his family, owed a duty of care to the rescuers. We are told “The case is believed to be an Australian first” and in the sense it’s a police officer suing the estate of the deceased it may be but in the sense of police suing those that caused the incident that in turn caused their trauma, it’s not. The fact that those that cause an injury to one person owe a duty of care to the rescuers is not at all controversial – it was first decided in Chapman v Hearse in 1961 ((1961) 106 CLR 112, [1961] HCA 46). For other cases involving police suing the original wrong doer for their subsequent, including psychological injuries see in England, Knightley v Johns [1981] EWCA Civ 6; [1982] 1 WLR 349 and Haynes v Harwood [1935] 1 KB 147 and in Australia Hirst v Nominal Defendant (2005) 2 Qd R 133 and the most significant case, as it made its way to the High Court, Sheehan and Wicks v SRA (2010) 241 CLR 60, [2010] HCA 22 (and see my discussion on that case at Rescuers and nervous shock or mental illness; Wicks and Sheehan v SRA). To find that the deceased owed a duty of care to the police officer, and his estate is therefore liable would not be an Australian first or a significant development in the law.

One of the commentators says the officer has to sue as a precondition for getting victims of crime compensation. That claim is not the law at least not the law as set out in the Victims Of Crime Assistance Act 1976 (Tas). That Act says, at s 9 “… the making in respect of any criminal conduct, of an award to a person does not affect the enforcement of any right or remedy that that person may have as a consequence of the criminal conduct”. Accordingly the officer could claim compensation under that Act and still sue the estate. Double compensation is not allowed so if he recovered from the estate he would have to repay the amount received under the Assistance Act but exploring common law rights to sue is not a pre-condition for getting compensation under the Act.

Finally, with respect to the argument that he should not be able to sue as he was just doing his job, that is not the law in Australia. The “firemen’s rule” exists in the United States and limits the rights of professional rescuers to sue those that negligently expose them to danger but it “has no place in English [and arguably, Australian] law” (Ogwo v Taylor [1988] AC 431).

There is no special rule in English law qualifying the obligations of others towards fire fighters, or presumably police officers, ambulance technicians and others whose occupations in the public service are inherently dangerous … Such public servants accept the risks which are inherent in their work, but not the risks which the exercise of reasonable care on the part of those who owe them a duty of care could avoid. (Sussex Ambulance NHS Trust v King [2002] EWCA Civ 953, [21] (Hale LJ))

We can look at this story from a different perspective. This offender killed one man and critically injured his ex-girlfriend. That will have exposed their families and the community to large expenses. Funeral costs, the costs of healthcare, loss of amenity and future earnings that would have contributed, ultimately, to their estate. The fact that this police officer has had an extensive period on workers compensation and may never be able to serve as an operational police officer again. Rather than ask ‘what right does he have to sue the estate’ we should ask ‘why shouldn’t his estate be used to defray the cost of his deliberate and criminal conduct?’ If he’d survived I’m sure there’d be no concern if his victims decided to sue him for their losses. And even if they didn’t sue, the Commissioner overseeing the Tasmanian Victims Compensation scheme could have sought to recover any money paid to the victims from the offender. ‘Today Tonight’ may want to portray the offender’s mother as a hard done by victim but one has to ask why should the deceased’s estate go to her rather than to the victims or the state to recompense for the monies the state will have paid out as a direct result of his actions?

In summary the officer suing the estate of the deceased in a murder suicide may be a first but to say that it represents some novel extension of the law is not correct. That those that cause injury and create the need for rescue owe a duty to the rescuers is well established law in both the UK and Australia. True to form and living up to their reputation, much of what is said by ‘Today Tonight’ is inconsistent, or wrong, or both.

Michael Eburn
22 May 2013

Refusing treatment and the elderly

Another paramedic, this time from New South Wales, has written regarding withholding and refusing treatment. He writes:

I am a paramedic from NSW. I had a case about a year ago – we were called to a 97 yo male, with psychiatric problems.

The patient refused to eat and stated he “wanted to die as had enough time on earth”. The pt had no mental health history and only had other minor health ailments. The doctor (from the aged care team?) had called us to transport him to hospital. According to the wife, the doctor queried an organic source to him wanting to take his own life.

We did a very thorough history of the patient on scene, called the team who assessed him, but could not get a hold of the person who wanted us to transport him. All of the patient’s vitals were in normal limits and he had no pain. Patient displayed capacity and competency, also scored well on the abbreviated mental test – to which there was no reason to transport him if he did not want too. The only complaint we saw was – he refused to eat and stated he wanted to die – meaning the patient had suicidal intentions. Therefore, we should have used section 20 [of the Mental Health Act 2007 (NSW)] and transported. After lengthy discussions we left him at home, though still nervous of our decision.

Members from the team came back a few hours later. They stayed on scene and made another one of my colleagues transport.

The pt ended up dying a few days later in hospital as he refused to eat or have IV fluids.

I have had this on my mind for the past year. Were the team wrong to force the pt to go to hospital considering his age or were we wrong to disagree with the doctor and leave him at home? Is there an age to when a patient finally has enough of old age and be of sound mind to make that decision?

To start with some legal propositions. Section 20 of the Mental Health Act says:

An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

The critical issue is that the person must appear to be mentally ill and/or mentally disturbed. These terms are defined in the Act.

“”mental illness” means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d)” (s 4).

A person is mentally ill if they are suffering from a mental illness and “owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person’s own protection from serious harm…” (s 14). A person is mentally disordered if their “behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person’s own protection from serious physical harm…” (s 15).

Merely to plan or contemplate your own death does not mean you are mentally ill, and note that suicidal thoughts are not mentioned in the definition of mental illness though I understand they are a symptom that is listed in the DSM-IV (the manual on mental health diagnosis). In Stuart v Kirkland-Veenstra [2009] HCA 15 members of Victoria Police did not detain a man who had been contemplating suicide because they did not believe he was mentally ill. The relevant power (if there was a power) was found in the Mental Health Act 1986 (Vic) s 10. That Act says:

(1) A member of the police force … may apprehend a person who appears to be mentally ill if the member or officer has reasonable grounds for believing that- (a) the person has recently attempted suicide or attempted to cause serious bodily harm to herself or himself or to some other person; or b) the person is likely by act or neglect to attempt suicide or to cause serious bodily harm to herself or himself or to some other person.

Section 8(1A) of that Act says “a person is mentally ill if he or she has a mental illness, being a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.”

The police were sued for failing to take action under s 10 when, later, Mr Veenstra took his own life. The case went to the High Court of Australia and the claim by the plaintiff, Mr Veenstra’s widow, was lost. The police had spoken to Mr Veenstra who was able to rationally engage with them. In the High Court Chief Justice French said (at [58])

[The police officers] did not think Mr Veenstra was mentally ill. That was an opinion they were entitled to form. The fact that a person has decided to commit suicide may indicate deep unhappiness or despair. It does not mean that the person is mentally ill within the meaning of s 8(1A). Mr Veenstra’s rational and cooperative responses observed by the officers supported their opinion…

To return to the case at hand, the paramedics, my correspondent, assessed the patient;

“All of the patient’s vitals were in normal limits and he had no pain. Patient displayed capacity and competency, also scored well on the abbreviated mental test – to which there was no reason to transport him if he did not want too. The only complaint we saw was – he refused to eat and stated he wanted to die – meaning the patient had suicidal intentions.”

Wanting to die does not equate to being mentally ill. Even if it did then to engage s 20 the patient had to be suffering from delusions, hallucinations, serious disorder of thought form, a severe disturbance of mood and/or sustained or repeated irrational behaviour. We are told that is not the case in which case there was no power under s 20 to transport him to hospital against his wishes.

The fundamental principle at law is that from the time one express capacity to make one’s own decisions, then one is allowed to do that, whether you are 9 or 97. At 97 and without any evidence of mental illness it was not only right (ethically) but obligatory (under law) to respect his wishes. I can’t see, on the facts given, why an ambulance was required. He was not ill or in pain and he didn’t want assistance. A person does not lose capacity because of age alone, one would hope we would in fact recognise that an older person, who has capacity and competence, also has experience and should be allowed to make their own decisions.

The problem is we have no adequate definition of what suicide is. We want to be able to stop apparently healthy young people taking their lives when they appear to have so much to live for, but at the same time the law recognises that personal choice on how we live, and what medical treatment we receive, is paramount. Part of the balance is struck by the current law allowing a person to refuse treatment even if that is necessary to keep them alive, but prohibiting doctors and others taking active steps to end a life. Even so as a community we are prepared to accept that a person who is nearing the end of their life due to a terminal illness is allowed to refuse treatment but we are unwilling to accept that in people who, when it comes down to it, we just don’t think is making the ‘right’ decision.

In a lecture I delivered to Ruth Townsend’s health law and ethics course last year I asked ”Can you find a case where a young, pregnant woman’s decision to refuse treatment was upheld?” (See also 2009 Irish Law Reform Commission Report on Children And The Law: Medical Treatment). Despite the claim by Courts in Australia, the UK, the USA and I’m sure elsewhere, that everyone has a right to choose, and that pregnancy doesn’t diminish those rights, in fact the courts always find a way to say that a pregnant woman isn’t really competent, or informed, or otherwise able to make a decision in the case then before the court. They can’t say ‘pregnant women lose the right to choose’ but practically they do.

Why that is relevant here is because the patient “only had other minor health ailments” so clearly the family, or the doctor, weren’t happy with a decision that at 97 he’d had enough; but why aren’t we allowed to make that decision? In part we don’t want to allow that for a 97 year old because we might then have to allow a 21 year old to make that decision; in part we don’t want to allow it because the family may feel it reflects badly on them (“Why does he want to die? Why wasn’t being with us enough? Why didn’t we make him feel better? He must be mentally ill”). Equally we might understand that wanting to die may in fact be a product of depression and mental illness and we would rather treat the illness than face was it the tragedy of suicide.

Philosophers, medical ethicists and the community have not been able to balance the various competing interests here so it is not surprising that the law also struggles but some principles are clear; in this context they are – competent people, even at 97 can refuse treatment and wanting to die does not equal a mental illness.

Let me then turn to the questions asked:
Were the team wrong to force the pt to go to hospital considering his age?
Remembering I have only the facts given above and I’m not a clinician, and assuming that there were no symptoms of mental illness as set out in s 4 of the NSW Act then yes, I think they were wrong to force him to go to hospital. His age is irrelevant. A patient who is competent and has capacity has the right to refuse treatment even life saving treatment. If one can only refuse treatment of limited value any claim to respect patient or personal autonomy becomes meaningless. It is when people are refusing life saving treatment that we can really demonstrate our commitment to allow people to choose for themselves what is the right decision for the.

Or were we wrong to disagree with the doctor and leave him at home?
No, you were not wrong. You had no power to transport without consent. On the facts presented s 20 had no application. To physically restrain and remove someone just because they are 97 not 47 would be an assault. A person does not lose their right to make a choice and their right to be treated with respect and dignity just because they are over 90. You made the right call on the facts as you’ve presented them.

Is there an age to when a patient finally has enough of old age and be of sound mind to make that decision?
Yes, that age is whenever they have the capacity to make a decision. At the moment a child under the age of 18 could be subject to an overriding decision maker, in particular a court; once they are 18 and absent any mental illness, then at least in theory they have the right to chose. No court case has doubted that but each, usually finds a way to say that the decision maker is not competent. Despite the warning in Airedale NHS Trust v Bland [1993] 2 WLR 316 that the law and the courts, and the medical profession, should not make decisions based on a third party’s assessment of the person’s ‘quality of life’ in fact they do that all the time. The law, and society, has a long way to go to resolve those complex issues hence the statement from Airedale NHS Trust v Bland that the law (and community attitudes to end of life decision making) are “both morally and intellectually misshapen”;[1993] 2 WLR 316, 34 (Lord Mustill).

Michael Eburn
13 May 2013