Bell v The State Coroner
[2017] WASC 97
•13 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BELL -v- THE STATE CORONER [2017] WASC 97
CORAM: LE MIERE J
HEARD: 13 & 14 FEBRUARY 2017
DELIVERED : 13 APRIL 2017
FILE NO/S: CIV 1219 of 2017
BETWEEN: KELSEY DUNBAR BELL
Plaintiff
AND
THE STATE CORONER
Defendant
Catchwords:
Coroners - Application for an order that post mortem examination be performed - Where the State Coroner found that death not a reportable death - Whether death was a reportable death
Legislation:
Coroners Act 1996 (WA), s 3, s 19(1), s 36(1)
Result:
Motion dismissed
Category: A
Representation:
Counsel:
Plaintiff: In person
Defendant: Ms K E Ellson
Solicitors:
Plaintiff: In person
Defendant: Coroner's Court of Western Australia
Case(s) referred to in judgment(s):
Nil
LE MIERE J:
Summary
By originating motion the plaintiff sought an order that an autopsy of her son, Lee Michael Dunnet, who died on 28 January 2017, be made to determine his cause of death. On 14 February 2017 I ordered that the motion be dismissed. These are my reasons.
Outline of facts
The deceased, who I will refer to as Lee, was born on 19 August 1989. He suffered from a severe intellectual disability, cerebral palsy, Addison's disease, epilepsy and blindness. In August 2007 on Lee reaching 18 years of age, the Public Advocate was appointed to make decisions as to where and with whom he lived and was given authority to determine his medical treatment and his services. In March 2009 the Public Advocate's authorities were extended to include making decisions about what contact Lee should have with others and the extent of that contact and to commence, conduct or settle any legal proceedings save for those relating to his estate. In November 2012 the Public Advocate's guardianship order was amended to deciding Lee's accommodation, treatment and health care, contact with others and his services. In October 2014 that guardianship order was extended for a further five years.
In the time before his death Lee was being looked after by his delegated guardian, Ms Robyn Henderson. According to his GP, Dr Carla Drake‑Brockman, Lee was too poorly to be transferred to a hospital or hospice. In November 2016 the Public Advocate accepted the medical recommendation that Lee should be treated pallitatively which included not to resuscitate in the event of a cardiac arrest. Lee had high support needs and was fed through a PEG tube.
Prior to his death Lee suffered from:
•Increased seizures which were becoming difficult to manage;
•episodes where his oxygen saturation would drop as low as 55%;
•diarrhoea;
•a chest infection which required four weeks of antibiotics; and
•distress, grunting and agitation requiring an increase in his medications.
From 17 January 2017 Lee was placed on 10 mg morphine and 15 mg midazolam (for anxiety) in a pump over 24 hours. His morphine was increased to 20 mg in 24 hours on 27 and 28 January for added pain relief. On 24, 25, 26, 27 and 28 January 2017 he was also given phenobarbitone (for seizures). Lee died on 28 January 2017. Dr Drake‑Brockman issued a death certificate showing the cause of death to be:
Hypoxic brain injury, complex refractory seizure disorder cerebral palsy with adrenal Insufficiency.
Ms Bell requests autopsy
On 31 January 2017 Lee's brother, John Morgan Dunnet Bell, sent an email to the Coroner's Court in which he requested an investigation into Lee's death. On 2 February 2017 Ms Bell sent an email to the Coroner's Court requesting an inquest into the death. The Principal Registrar of the Coroner's Court of Western Australia, the Registry Manager and the Coroner's Medical Advisor looked into the matter and made recommendations to the State Coroner. On 6 February 2017 the State Coroner determined that she did not have jurisdiction to investigate the death. On 7 February 2017 the Principal Registrar wrote to Ms Bell. The letter set out the relevant circumstances leading to Lee's death and concluded:
Lee's death was due to natural causes and was not a reportable death for the purposes of the Coroners Act 1996. As a consequence the State Coroner does not have jurisdiction to hold an inquest, accordingly your request for an inquest is refused.
Jurisdiction of Coroner
Any person may ask the Coroner to direct that a post mortem examination be performed on the body if a Coroner has jurisdiction to investigate the death: Coroners Act 1996 (WA) s 36(1) (the Act). A Coroner has jurisdiction to investigate a death if it appears to a Coroner that the death is or may be a reportable death: s 19(1). A reportable death is defined by s 3 to mean a Western Australian death:
(a)that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from injury; or
(b)that occurs during an anaesthetic; or
(c)that occurs as a result of an anaesthetic and is not due to natural causes; or
(d)that occurs in prescribed circumstances; or
(e)of a person who immediately before death was a person held in care; or
(f)that appears to have been caused or contributed to while the person was held in care; or
(g)that appears to have been caused or contributed to by any action of a member of the Police Force; or
(h)of a person whose identity is unknown; or
(i)that occurs in Western Australia where the cause of death has not been certified under section 44 of the Births, Deaths and Marriages Registration Act 1998; or
(j)that occurred outside Western Australia where the cause of death is not certified to by a person who, under the law in force in that place, is a legally qualified medical practitioner;
The State Coroner decided that Lee's death is not and did not appear to be a reportable death. Having decided that Lee's death did not appear to be a reportable death the Coroner did not have jurisdiction to investigate the death and therefore did not have jurisdiction to direct that a post mortem examination be performed.
Power of Supreme Court to order post mortem examination
Section 36(3) of the Act provides that a person receiving notice of a refusal to direct that a post mortem examination be performed may apply to the Supreme Court for an order that a post mortem examination be performed. Section 36(4) provides that if the Supreme Court is satisfied that it is desirable in all the circumstances, it may make an order directing the State Coroner to require a pathologist or a doctor to perform a post mortem examination and prohibiting burial, cremation or other disposal of the body until the post mortem examination has been conducted.
The power of the court to make an order directing the State Coroner to require a post mortem examination is wide. It may be exercised when the court is satisfied that it is desirable in all the circumstances. The court would not exercise the power if it is not satisfied that the Coroner has jurisdiction to direct a post mortem examination. The Coroner does not have jurisdiction to direct that a post mortem examination be performed unless the Coroner has jurisdiction to investigate the death. A Coroner has jurisdiction to investigate a death if it appears to the Coroner that the death is or may be a reportable death. A Coroner's decision that a death is not a reportable death might be subject to judicial review. However, a court would not order a Coroner to direct a post mortem examination to be performed unless the court is satisfied that the death is or may be a reportable death.
I have set out earlier the definition of a reportable death in s 3 of the Act. The only possible relevant paragraphs of the definition of 'reportable death' are paragraphs (a), (e) and (f). Lee's death is a reportable death if it 'appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from injury'. The State Coroner adduced evidence by affidavit from the Principal Registrar of the Coroner's Court of Western Australia, Mr Cooper. In his affidavit Mr Cooper outlined the gradual deterioration in Lee's condition in January 2017. Dr Drake‑Brockman arranged for regular medications via a pump to control the symptoms. From 20 January 2017 his condition further deteriorated and his medication needed to be increased to control his worsening seizures. His chest was becoming moist and he was suffering respiratory distress intermittently. On 24 January Lee was increasingly restless and it was suspected that he had aspirated. Antibiotics were deemed inappropriate. His medications were gradually increased to manage his distress and discomfort. A review of the medication prescribed in the last few weeks of Lee's life is consistent with medications and doses expected to be used in a palliative patient with his conditions.
Ms Bell has put material before the court containing observations she made and communications she had at various times and stating her concerns about Lee's treatment. Ms Bell is concerned that Lee's treatment caused or hastened his death. Ms Bell submitted that a person does not die of cerebral palsy. Ms Bell has misunderstood or mischaracterised the certified cause of death. The cause of death recorded on the death certificate is '[h]ypoxic brain injury, complex refractory seizure disorder cerebral palsy with adrenal Insufficiency'. The reference to cerebral palsy is that it was the underlying condition not the cause of death. The materials adduced by Ms Bell do not provide any evidence that Lee's death was unexpected, unnatural or violent or resulted, directly or indirectly, from injury. The evidence before me is that Lee's death was expected and due to natural causes. Therefore Lee's death was not a reportable death within paragraph (a) of the definition in s 3 of the Act.
A person held in care is defined in s 3 of the Act. Lee did not fall within any part of the definition. Ms Bell does not say that he did. Therefore, Lee's death is not a reportable death within paragraphs (e) or (f) of the definition of reportable death in s 3 of the Act.
Conclusion
The Coroner's decision that it did not appear to the Coroner that Lee's death is or may be a reportable death was a rational decision supported by the evidence before the Coroner. The evidence before this court does not support a finding that Lee's death is or may be a reportable death. In those circumstances, there is no basis for the Court to exercise the power to order the State Coroner to direct a post mortem examination be performed.
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