Coroners (Undetermined Natural Causes) Amendment Bill

Second Reading

I am pleased to introduce the Coroners (Undetermined Natural Causes) Amendment Bill 2020. The bill amends the Coroners Act 2003 to allow the state Coroner to return a finding of 'undetermined natural causes' in appropriate cases. The bill is intended to ensure efficient use of state forensic resources and to spare families the stress of a coronial investigation where possible.

The role of the state Coroner is to investigate certain South Australian deaths to determine the cause of death. Section 29 of the Coroners Act requires that a cause of death be found for each and every death reported to the state Coroner. A reportable death is defined in section 2 of the Coroners Act and covers a wide range of circumstances, including deaths by unexpected, unnatural, unusual, violent or unknown causes; deaths that occur within 24 hours of being discharged from a hospital or having sought emergency treatment at a hospital; deaths of persons protected under guardianship or administration orders; and deaths in custody.

If a death is reportable, a person who becomes aware of the death must report it to the state Coroner or a police officer. In some cases, forensic pathologists or other medical practitioners can be confident that a death was due to natural and unsuspicious causes but a post-mortem examination is required to determine the precise cause of death; for example, whether the natural death was due to pulmonary embolism or ischaemic heart disease.

In these circumstances, the act requires that forensic testing on the deceased be performed regardless of the family's wishes and the public interest in performing such testing. The bill instead provides the state Coroner with a discretion to state that a death was due to undetermined natural causes and to discontinue the investigation. Under the bill, it is proposed that the state Coroner's discretion is subject to several safeguarding conditions.

First, the finding of an undetermined natural cause cannot be made if an inquest is required. Under the act, some deaths reported to the state Coroner are subject to a hearing by a Coroners Court, known as an inquest. The court hears evidence about the surrounding circumstances of the death to provide extra oversight and to ascertain whether and how the death could have been prevented. A full court inquest into the cause and circumstances of a death requires precise findings. An undetermined natural causes finding is not appropriate if the matter will be progressed to an inquest.

Secondly, to use the undetermined natural causes finding, the state Coroner must be satisfied, after obtaining relevant medical information or advice, that the death was due to natural causes. A natural cause death refers to a death due to an illness or internal malfunction of the body, rather than directly caused by external factors. To illustrate, naturally occurring diseases, degenerative ageing or congenital anomalies are natural causes of death. Accidents, animal attacks, suicide or homicide are not natural causes.

Thirdly, a senior next of kin of the deceased person must give their consent for the state Coroner to cease testing and return a finding of undetermined natural causes. New South Wales has a similar provision in their Coroners Act and, in their experience, the next of kin frequently support the decision to cease testing as the coronial process can be very stressful for families of the deceased. The state Coroner retains the ultimate discretion as to whether to use the undetermined natural causes finding. They will be able to continue investigation into any death by natural causes if they consider it is in the public interest, even if the senior next of kin would prefer that investigation cease.

It is expected that the bill will help to reduce the workload on Forensic Science SA, which performs the necessary forensic testing for coronial investigations. The pathologists at Forensic Science SA experience a heavy workload and the demands of their time are great. Several government measures are being implemented to assist with this workload, including this bill. Another effort is the government commitment to fund an on-site CT scanner at Forensic Science SA.

Work on this bill has been underway for some months and is part of the government's justice agenda that aims to ensure that policies and legislation reflect contemporary South Australian needs. However, reducing the burden on Forensic Science SA has become particularly critical due to the COVID-19 pandemic. In the coming months, it is expected that all government services will experience strain due to staff illness and isolation. Forensic Science SA will face particular difficulties due to the nature of their work. Forensic testing on deceased persons cannot be postponed or done from home. Therefore, this bill, which will reduce the need for forensic testing by Forensic Science SA, is critical.

Members may well be aware that there has been some consultation undertaken, as this bill predates the COVID-19 pandemic. In that regard, the Law Society have reported—although in a rather abridged time frame, given the government's proposal to have this matter dealt with today—that in general terms they support the basis of the reforms. We gratefully appreciate the opposition's agreement to advance this in the circumstances. The Law Society suggest that a safeguard clause could be included, requiring the state Coroner to write a report setting out their reasonable grounds for considering that the death was due to natural causes.

We have considered that, of course. We value the advice given by the Law Society of South Australia, but this does not apply in New South Wales, where I indicated that there is already a procedure, a process, that allows for this. Most importantly, I report to members that I am advised that clearly under the current legislation there is no general legal requirement for the state Coroner to write a report on his reasons for making any particular cause of death finding—and of course he does that for thousands of cases a year.

The state Coroner is required to make the undetermined natural causes finding based on medical information or advice. The Coroner's Office will have records of medical and other information provided to the state Coroner on which he based the undetermined natural causes finding. I am advised that this may also include a hospital record or a report from Forensic Science SA. So whilst we have received the advice from the Law Society, we do not see it as necessary, and, as I say, it is not required for the findings that he makes in other regards.

The three safeguards that I have referred to are: first, it does not occur if there is an inquest; secondly, it is obviously reliant on other advice, that is, it is not the Coroner himself making an assessment about what the medical circumstances are; and thirdly, and I would suggest most importantly, that it would require the consent of a senior next of kin. With those comments, I commend the bill to the house and seek to provide a short explanation of clauses to be inserted in Hansard without my reading it.

Leave granted.

 

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Coroners Act 2003

3—Amendment of section 29—Finding to be made as to cause of notified reportable death

This clause amends section 29 to allow the Coroner to make a finding that a death was due to undetermined natural causes if:

no inquest was required; and

after relevant medical advice, the Coroner has reasonable grounds to believe that the death was due to natural causes; and

a senior next of kin indicates consent to having no further investigation, inquiry or inquest conducted for the purpose of determining the precise cause of death.

Schedule 1—Transitional provision

1—Operation of amendment

The amendment applies in relation to a reportable death regardless of whether the State Coroner was notified of the death before or after its commencement.

 

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (12:15): With no-one else showing a burning interest in this matter, I thank members who have made a contribution and thank in advance the opposition for their indication of support for the bill and its progress through the parliament.

I will place on record now the matter that the Hon. Kyam Maher, as the shadow attorney-general, raised with me which I indicate to the parliament I think is meritorious. This is a new model for South Australia that is being proposed to deal with circumstances in this category of natural cause deaths. On that basis, I indicated to him and I undertake to the parliament to make provision, at the expiration of 12 months from the commencement of the act, for a report to be prepared within 30 days, providing to the parliament the advice of the number of cases in which a determination of the Coroner is made under proposed section 29(2).

As I have very senior and able members of the department here today, they can make a note of that and we can then have that information to see if there are any further matters that we need to consider in relation to this proposal. But I wish to reassure members that this is replicating circumstances interstate. So, to the best of my knowledge, there have not been any identified concerns raised, and the Coroner has provided me with quite an extensive background to this in his submissions in correspondence commencing about September last year, so it is not a matter that is being brought without quite a considerable gestation period of consultation and consideration.

For the reasons that have been explained, and I appreciate the parliament's indulgence, it may be that we are pressed with further COVID-19 circumstances and, in that regard, we are advancing this bill so that we might clear the decks so to speak and make sure that we have extra room for that. I have just been handed a further letter from the Coroner. I will quickly scan that and indicate whether I will provide this extra information to the parliament, as it may be of extra assistance. Essentially, it seems to be—and I will make a copy of this available to the opposition—a response to the Law Society's comment.

If I jump to the critical aspect of it, he outlines probably more clearly than I have the matters I had indicated, namely the fact that the Coroner has to make determinations in relation to a whole lot of other circumstances and is not required to give a written report. He goes on to say:

In some cases, judicial review of an exercise of discretion may be available. The State Coroner's file is not publicly available, and is not available as of right for any interested person to view, but particular documents will often be released (particularly post-mortem reports) or made available to view. Where a finding of undetermined natural cause has been made, I would expect the reasonableness of the grounds for such finding to appear from documented information received from a reporting medical practitioner, investigating police, or from a medical practitioner at Forensic Science South Australia whose opinion has been sought, or a combination of those three sources of information. These, too, are documents which would usually be made available to next of kin to view.

I suggest it is not in the public interest, or the private interests of any person, that the State Coroner be required to write a report advocating the reasonableness of this or any other discretionary decision.

I thank the Coroner for indicating that and, as I say, I am happy to make available to the opposition a full copy of the letter because I think that makes it abundantly clear why we would not have a written record of this. I think we need to appreciate not only the matters that have already been raised but the sensitivity of this type of matter, should it be public, for the purposes of the surviving relatives and friends. I hope that covers matters that would allay any concerns of the parliament or, indeed, the opposition and, as I say, I thank the members for their contribution.