I have been asked by a NSW SES Deputy Local controller about roles and responsibilities when it comes to body retrieval following a fatal motor accident.  The unit in question is accredited by the State Rescue Board, under the State Emergency and Rescue Management Act 1989 (NSW), as the primary rescue unit but, says my correspondent:

I’m not sure what goes on in all other areas nor where the responsibility lies in regard to who should actually “do the deed” but I am hearing conflicting views from different sources. In my area the local PRS Sgt [which I infer to mean ‘Police Rescue Squad Sergeant] is pushing the Coroners Act as his legal responsibility to be the agency of choice. He also cites the SRB Policy doc at 1.10 which states in part “The NSW Police Force are responsible for body recovery and body recovery tasks “. He claims this as being the ultimate authority and last word on the matter even though it goes on to say “accredited rescue units are only to be employed   ….  at the direction of police”.

I have looked at the Coroners Act and cannot find anything that states only Police will do body recovery/retrievals. It does say that Police are “in charge” of this task, but, the SRB policy document says the same thing with regard to rescue operations overall. Funnily enough, PRS are not claiming this same exclusivity to all rescue operations.

The upshot of all this “policy massaging” is that when we are in attendance at the scene and someone dies, we are stood down and sent home. The PRS, located some 30 – 40 klms away are brought in to, presumably, do the exact same job we would do.

I am a little confused. I can see a double standard being imposed here at a cost on the public purse, with no legislative or Police policy to back it up.

If this situation merits a look, I would love to hear your opinion as to the position the local Police have taken.

First of all a little legal theory that may go some way to answer this and many other questions asked here.  In Australia there are three arms of government, the legislature, the executive and the judiciary.  The legislature (made up of the Parliament and the elected MPs) can pass laws which the executive, made up of the Ministers (who are also elected MPs), the public service and in our context the police and members of the emergency services go out and give effect to the laws passed by the Parliament.   The legislature does not want to spell out in too much detail what is to happen or who is in charge of what as that restricts the executive too much and they, the legislators, cannot predict every eventuality.  So they pass a law that says there shall be a police force that will have certain broad functions, and a coroner, and a State Emergency Service, and a State Rescue Board etc but leave all the details to the nominated people to work out how it will all work together.  The executive then have to interpret what they’ve been given and try to make it work.  The actual rules that apply ‘on the street’ are created by those agencies as regulations, by laws, SOPs, tradition and the like.  Sometimes there is disagreement; to give a simple example that we’ve talked about before, imagine a police officer thinks the driver of an emergency vehicle was not taking reasonable car and so the officer issues a ticket; the driver disagrees.  Neither is allowed to be ‘judge in their own cause’ so an independent referee is appointed, in that case it would be a Magistrate, in more serious cases, a judge or a judge and jury.

How is that relevant to this question?  Many people think the law is much more prescriptive than it actually is.  The legislation (where we lawyers should start) won’t spell out too much detail, it may just identify who gets to make a decision on how things will be.  To come to another oft discussed topic about nurses and doctors when ‘off duty’, despite what people may think (or hope) this is not regulated, there is no list of things that only doctors or nurses can do and no ‘rule’ about when they can do it.   Just as here, we’re unlikely to find specific, guiding rules, much of it will be decided by who’s in charge, probably the local police sergeant.

Let us then look at the law.  The Coroners Act 2009 (NSW) establishes the office of ‘Coroner’ and sets out their jurisdiction. A coroner may hold an inquest into a death where it appears that the death is a ‘reportable death’ (Coroners Act 2009 (NSW) s 21).  A death is reportable if

(a) the person died a violent or unnatural death,

(b) the person died a sudden death the cause of which is unknown,

(c) the person died under suspicious or unusual circumstances,

(d) the person died in circumstances where the person had not been attended by a medical practitioner during the period of 6 months immediately before the person’s death,

(e) the person died in circumstances where the person’s death was not the reasonably expected outcome of a health-related procedure carried out in relation to the person,

(f) the person died while in or temporarily absent from a declared mental health facility within the meaning of the Mental Health Act 2007 and while the person was a patient at the facility for the purpose of receiving care, treatment or assistance under the Mental Health Act 2007 or Mental Health (Forensic Provisions) Act 1990. (Coroners Act 2009 (NSW) s 6).

Death in motor vehicle accident would be reportable as a ‘violent or unnatural death’ (s 6(a)).  Where the person has died in a motor vehicle accident the police have an obligation to report that death to a coroner (s 35(3)).  A coroner may require the police to establish a ‘coronial investigation scene’ (s 40) but that is unlikely to happen at an MVA in the middle of the night.    Even without a formal ‘coronial investigation scene’ a police officer may exercise coronial investigation powers if it appears to him or her ‘that it is necessary to do so to preserve evidence relevant to an investigation by the coroner’.   Given that, at an MVA, the police will not yet know what the coroner wants to do but given that the death is a reportable death, it would be reasonable for the police to exercise coronial investigation powers, which include ‘take possession of the remains of a deceased person on behalf of the coroner, including body tissue, clothing and items apparently in the possession of the deceased person’ (s 43(1)(p)).  Naturally police do not personally take possession of the remains of the deceased, that is they do not put the deceased in the back of the police truck but rather engage contracted undertakers to collect the body and take it to an appropriate morgue, but the contracted undertaker is acting on behalf of police and it is the police who have the legal possession of the body.

Let us now look at the State Emergency and Rescue Management Act 1989 (NSW) where rescue is defined as ‘the safe removal of persons or domestic animals from actual or threatened danger of physical harm’ (s 3).  The recovery of the body of a deceased victim is not ‘rescue’ so the rescue provisions of this Act do not apply, but let us assume that they do.  Under that Act the State Rescue Board is required to ‘ensure the maintenance of efficient and effective rescue services throughout the State’ (s 47).   ‘The senior police officer present at the scene of a rescue operation is responsible for co-ordinating and determining the priorities of action of the agencies engaged in the rescue operation’ (s 50).  As with s 43(1)(p) of the Coroners Act (discussed above) that does not require the police to conduct the rescue, but to coordinate the agencies, both paid and volunteer, that are involved in the rescue.    Rescue units must be accredited by the Rescue Board.  Accreditation does not give the rescue unit any particular rights but it is an offence to operate a rescue unit or to operate a ‘rescue vehicle’ if the unit is not accredited (s 53).    The Act itself says nothing about calling accredited rescue units – to go back to my starting point, the legislature doesn’t want to involve itself in the ‘nuts and bolts’ of rescue, rather it is left to the State Rescue Board to develop policy that rescue agencies are required to comply with (s 49).   Although there are primary and secondary rescue units (State Rescue Policy, 16May 2012, [2.01] and [2.02]) the police are not required to call upon them in that order; ‘Police have the authority to call-out any resource whether accredited or not to undertake a rescue or to assist in a rescue (State Rescue Policy, 16May 2012, [1.14]).

Finally State Rescue Policy says:

The NSW Police Force are responsible for body recovery and body recovery tasks, vide the Coroners Act 1980.With the exception of Police Rescue Squads and Police Operations Support Units, accredited rescue units are only to be employed in a body recovery task at the direction of Police.

(We can note that the reference to Coroners Act 1980 is out of date, but the provisions of the current, 2009 Act provide that references to earlier versions of the Act are to be read as references to the current Act (Coroners Act 2009 (NSW) Schedule 2, cl 19), so nothing turns on that).

With that we can return to the original question.  Body recovery is not a rescue.  Possession of the body pending final determination of the Coroner rests with the police.  It is therefore up to the police to determine how, and by whom, the body will be recovered.  Accredited rescue units are not to undertake body recovery unless directed to do so by the police.

I can think of several good reasons why the police would not want to use a volunteer rescue unit.  They may think:

  1. That volunteers should not be kept away from work or home or their other commitments given that saving life is no longer an option and it is therefore more appropriate to release them and wait for officers who are not committed elsewhere as they are at work;
  2. Investigating police may prefer to use police rescue officers because they are not only trained in rescue but also in forensic procedures so they are better trained to protect, and collect evidence.
  3. Given the matter is likely to be before the coroner and if the driver at fault is not one of the deceased, there is likely to be a criminal trial, the police may prefer to use police who are trained in giving evidence and, more importantly, may decide not to put volunteers through that process.  This may well be a recognition that volunteers turn out for a rescue not to spend the next three years reliving the incident in statements, committal and a trial.
  4. Releasing the rescue unit will allow the rescue unit to respond if there is another incident requiring rescue, rather than tying them up with body recovery.
  5. It has been noted that there could be ‘a cost on the public purse’ but it may be argued that is a cost the public, rather than volunteers should pay.

There are, equally, less generous reasons why police would prefer to use police rather than SES or other resources.

If we go back to my legal theory, the ‘law’ does not specify who is to or not do an actual rescue; it defines who is to make the relevant decisions, the police, and who can operate a rescue unit.  With respect to body recovery the law is clear that this is a police issue and it’s up to the police to determine what resources are used.

The interesting issue is that the decision is being made by the ‘PRS Sgt’; I would have thought the appropriate decision rested with the investigating officer which would be the local detective or highway officer, but of course the police work together and may have reached their agreement on how the matter will be dealt with.   We can also note that the response need not be the same in each Local Area Command (LAC).  Some LAC’s may use the local volunteer rescue unit, others a police rescue unit where available.  Each would be permitted under the law.

In summary it is up to the police to allocate tasks including body retrieval.  It is not the case that there is ‘no legislative or Police policy to back’ up the decision to use the police rather than the SES.  The legislative provisions lie in the Coroners Act and the policy lies in the State Rescue Policy and the policy adopted in the LAC.  The law does not say the police have to use the police rescue squad or that they cannot use the SES.  It says the police can use whatever resources they see as appropriate.  The police could use the SES, or they could chose not to, in either case it’s their call.

If a volunteer rescue unit wants to be involved in this task, it is not a matter of relying on law, rather all interagency cooperation depends not so much on the law but on pre-established relationships and trust.  Talking to the local rescue committee, the emergency management committee, the local area commander and the detectives would be the way to volunteer the unit’s services, if that is what is desired.

Michael Eburn

29 December 2012.