Childs v Coroners Court of Victoria
[2020] VSC 755
•16 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01761
| FELICITY CHILDS AS NEXT OF KIN OF SEAN P FLORRIMELL (DECEASED) | First Appellant |
| PETER FLORRIMELL AS NEXT OF KIN OF SEAN P FLORRIMELL (DECEASED) | Second Appellant |
| v | |
| THE CORONERS COURT OF VICTORIA | Respondent |
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JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 June 2020 |
DATE OF JUDGMENT: | 16 November 2020 |
CASE MAY BE CITED AS: | Childs v Coroners Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2020] VSC 755 |
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ADMINISTRATIVE LAW – Appeal pursuant to s 82 of the Coroners Act 2008 (Vic) – Coroner’s decision not to order an inquest – Coroners Act 2008 (Vic) ss 82, 87, 87A – Application to Supreme Court to order inquest – Procedural fairness – Whether necessary or desirable in the interests of justice to allow appeal – Coroner’s discretion to hold an inquest – Bourke v Coroners Court [2015] VSC 418 – Mortimer v West [2017] VSC 293.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | G Silbert QC with S Wallace | Robinson Gill |
| For the Respondent | R Ajzensztat | In House Legal Service, Coroners Court of Victoria |
HIS HONOUR:
Sean Florrimell (‘the deceased’) died in December 2017 (‘the death’). The deceased had a history of psychiatric ill health and of expressing suicidal ideation. At the time of his death he was a voluntary inpatient at the Albert Road Clinic (‘ARC’), a private psychiatric facility operated by Ramsay Health Care.
On the morning he died, the deceased left ARC without notice. Police, family and friends searched for him in vain. Tragically, he was deceased when he was found.
The Coroners Court of Victoria (‘Coroners Court’) commenced an investigation into the death pursuant to the Coroners Act 2008 (‘the Act’). The appellants, who are the deceased’s parents, requested that the Coroner hold an inquest into their son’s death. In January this year, the Coroner decided pursuant to s 52(6) of the Act not to hold an inquest.
The appellants have appealed the Coroner’s decision in this proceeding, on grounds which are summarised as follows:
(a) The Coroner failed to address evidence of contact made by witnesses with ARC on the morning of the death, which required investigation of ARC’s response, and thus denied the appellants procedural fairness.
(b) The Coroner failed to take into account issues including the treatment and supervision of the deceased, oversight of and inaccuracies in record keeping by ARC, and whether he should have been treated as a compulsory patient under the Mental Health Act 2014 (Vic) (‘Mental Health Act’).
(c) Whether the Mental Health Act applies to all mental health patients in Victoria, and if not, what is the applicable standard for treatment of patients by private mental health facilities.
The appellants argue that these issues require proper examination at a public hearing, and that it is necessary or desirable in the interests of justice that there be an inquest into the death.
An appeal against a Coroner’s determination not to hold an inquest into a death must be made within three months. It is in issue whether the appeal was commenced one day out of time and, if so, whether leave to appeal out of time should be granted.
The respondent appeared at the hearing of the appeal in a position consistent with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman[1] in its role to assist the court.
[1](1980) 144 CLR 13.
Background and procedural history
The deceased was born on 26 July 1993.
The deceased commenced psychological treatment in about 2014, and was prescribed antidepressant medication from 2016. He gave a history of depression and suicidal ideation commencing some years earlier.
The deceased’s mental health deteriorated in 2017, requiring multiple hospital admissions, pharmacological treatment and electroconvulsive therapy (‘ECT’). Suicidal ideation with evidence of planning was a feature of the deceased’s presentation from around March 2017.
The deceased was admitted to ARC on 4 December 2017. On 15 December he left the facility without notice, and some hours later arrived at the family home. He returned to ARC later that day.
On 21 December the deceased was on hourly observation checks. There is evidence he was last observed at ARC at 9:30am, and that he caught an Uber outside the facility at 9:46am. The deceased’s body was found underneath the Moonee Ponds Creek trail bridge at approximately 12:30pm.
The same day Victoria Police made a report of the death for the Coroner pursuant to ss 12 and 36 of the Act. In a brief summary of circumstances the police report referred to text messages from the deceased that morning sent to several friends that he was feeling suicidal and intended to jump off a bridge. It is evident that these were the grounds on which Victoria Police reported the death to the Coroner as a reportable death pursuant to the Act.
Following receipt of the police report the Coroner commenced an investigation into the death.
On 8 January 2018 the Coroners Court wrote to the appellants to provide initial information in relation to the coronial investigation.
On 17 February 2018 the appellants wrote to the Coroners Court raising concerns about the police operation to locate the deceased prior to the death.
On 17 May 2018 the coronial brief prepared by the Coroner’s investigator was received at the Coroners Court. A copy was provided to the appellants on 8 June 2018. They responded to the Coroners Court on 6 July 2018 detailing a number of concerns in relation to evidence contained in the brief. The investigator sought to answer those concerns in a document forwarded to the appellants on 9 October 2018.
The appellants wrote to the Coroners Court on 30 November and 21 December 2018, and again on 29 January 2019 raising further concerns in respect of the coronial investigation and the clinical care of the deceased. The clinical care issues raised in respect of the deceased were wide ranging, commencing in 2013 and continuing to the date of death.
On 7 February 2019, after reviewing extensive medical records, the Coroner’s Prevention Unit (‘CPU’) prepared a memorandum detailing the deceased’s treatment history and addressing concerns raised by the appellants.
The Coroner’s solicitor wrote to the appellants on 18 February 2019 updating them about the coronial investigation, and informing them that the Coroner had determined that he had sufficient information to finalise his investigation and make findings without holding an inquest. The appellants were advised of steps they should take and provided with relevant resources to assist if they wished the Coroner to reconsider the decision not to hold an inquest.
On 27 May 2019 the appellants made a request to the Coroner for an inquest into the death pursuant to s 52(5) of the Act. The request was supported by comprehensive written submissions, a chronology of relevant events, and statements by the appellants and three other witnesses. The submissions addressed a range of matters which included what were said to be systemic issues in relation to the treatment of persons suffering mental ill health, an argument that there were ‘red flags’ which justified treatment of the deceased under the Mental Health Act, the use and provision of group therapy and ECT, and the supervision regime and adequacy of record keeping at ARC in circumstances including the deceased having taken unauthorised leave on 15 December 2017. The witness statements were addressed to the sequence of events and ARC’s response on the morning of 21 December 2017.
The appellants’ lawyers wrote to the Coroners Court on 4 September 2019 to address the appellants’ concern about the time between the deceased leaving the facility, and any attempt being made by ARC to contact him by phone or take any other action responding to his absence.
The appellants’ lawyers again wrote to the Coroners Court on 16 October 2019 raising the appellants’ concern that ARC declined a request by another psychiatric facility at which the deceased had been treated for a joint clinical review of the deceased’s care and the circumstances surrounding his death.
On 17 July 2019 the CPU provided a review memo to the Coroner in relation to the appellants’ request for an inquest.
The decision by the Coroner not to hold an inquest made under s 52(6) of the Act is dated 13 January 2020. A copy of that decision was sent to the appellants with a letter from the Coroners Court dated 16 January 2020, which states in part:
As the coroner has refused your request for an inquest, I advise that section[s] 82 of the Coroners Act 2008 enables you to appeal to the Supreme Court within 3 months after the date of this determination. If we do not receive notice that you are appealing the decision by 16 April 2020, the coroner will proceed to finalise this case. The Court will send you a copy of the findings once completed.
The appellants filed a notice of appeal commencing this proceeding on 15 April 2020.
Coroner’s reasons for decision
The Coroner noted the deceased had variously reported the onset of depression between ages 8 and 13 years, and the onset of suicidal ideation in 2012 when he was aged 18 or 19 years. In December of that year, the deceased was assaulted by three males, required several facial surgeries, and took six months off university. The Coroner noted that since the assault, the deceased’s mental state had deteriorated, and he required psychological treatment, and in 2016 was commenced on antidepressant medication.
The Coroner noted that in the six or seven months prior to his death the deceased had made one suicide attempt, had three public mental health admissions, one private mental health admission, and one prevention and recovery care unit (‘PARC’) admission, and that during this period he was treated with antipsychotic and antidepressant medications, ECT and psychotherapy. In his reasons, the Coroner comprehensively set out the relevant history and treatment during 2017. I will briefly set out some of the matters recorded by the Coroner.
Between March and June 2017 the deceased’s mental state gradually deteriorated, and he reported increased suicidal ideation.
On 6 June 2017, while on a work trip to Wangaratta with his parents, the deceased cut his arms with a corkscrew. He was admitted to Wangaratta Hospital where he remained for four days as a compulsory patient under the Mental Health Act.
On return to Melbourne the deceased was initially a voluntary inpatient at the Alfred Hospital, where he was found to be suffering delusions. He attempted to abscond, and was made subject to a temporary treatment order under the Mental Health Act. The deceased required periods of seclusion, and was commenced on ECT. A diagnosis was made of a depressive episode with psychotic features.
On 3 August 2017, the temporary treatment order was revoked and the deceased was discharged with a plan for twice weekly home visits by the headspace Youth Early Psychosis Program Mobile Assessment and Treatment Team (‘MATT’).
On 14 September 2017 a suicide note was discovered under the deceased’s pillow and MATT were contacted. On review, he reported a two-week deterioration in mood, despite having told his parents and MATT that he felt better. He reported a suicide plan. He was readmitted to the Alfred Hospital as a voluntary patient. During admission his suicidal ideation fluctuated. He was discharged to the PARC unit on 6 October 2017 for a four-week period of transition. He continued to receive ECT treatment.
On 10 November 2017, after he had been discharged home, the deceased again reported suicidal ideation, and was readmitted to the Alfred Hospital. During this admission his suicidal ideation fluctuated, and he reported considering multiple plans including cutting his wrists in the bath and jumping off the ‘Keilor Bridge’. The appellants requested that the deceased be transferred to ARC, and he was discharged home on 29 November 2017 for MATT follow-up until a bed became available at ARC.
The Coroner noted that when he was discharged from the Alfred Hospital on 29 November 2017 at his parents’ request the deceased’s mental state had improved and whilst he occasionally disclosed suicidal ideation with no intent, he was not considered a high risk of suicide. A plan was in place for MATT to provide intensive support until a bed was available at ARC, which was estimated to be within a week. The Coroner stated that given the deceased denied suicidal intent and agreed to the proposed treatment plan, he did not satisfy the criteria for compulsory treatment under the Mental Health Act, and that his discharge with planned follow-up was appropriate.
On 4 December 2017 when he was admitted to ARC under psychiatrist Dr Malcolm Hopwood, the deceased presented as depressed and with suicidal ideation but with no plan or intent. On 8 December the deceased told staff at ARC that he had been researching places to suicide by jumping, and was keeping a ‘suicide journal’. When reviewed by Dr Hopwood, the deceased denied immediate intent. His leave was cancelled, and he was transferred to the Intensive Care Unit (‘ICU’), where there was a higher level of observation and more restrictions to ensure his safety. A plan was made to commence a course of 12 ECT treatments beginning on 11 December.
The deceased was transferred back to the open ward on 12 December after remaining stable and demonstrating 24 hours improvement after his first ECT treatment.
On 15 December 2017, the deceased was documented to be in his bed at 12:30pm, and absent from the ward at 1:00pm. In fact, documents subsequently obtained show he was collected from ARC by an Uber at 12:16pm, and dropped off at Park Drive, Keilor East at 12:44pm. The deceased was collected by a second Uber at 2:19pm, and texted his mother that he was on his way home, where he arrived at 3:12pm. The deceased’s mother telephoned the Albert Road Registrar and advised the clinic that her son felt ‘cooped up’ and was likely confused after ECT, that she did not believe he planned to harm himself and did not believe that he required a transfer to the ICU. The deceased returned to ARC at 5:15pm where he was reviewed by Dr Hopwood. The deceased reported that his decision to leave ARC was impulsive, he wanted to go home for comfort, and denied suicidal ideation.
The Coroner stated as follows in relation to the circumstances of death:
41.Sean was woken at 9.00am and came onto the ward area.21 He was last seen by nursing staff at 9.30am after being given his medication. Sean was on 60-minute observations and was not present when his next observation was due at 10.00am. Two unsuccessful attempts were made to contact Sean by phone and at 10.50am a search of the hospital was conducted. At 10.55am Dr Hopwood was contacted and he asked that Felicity be contacted. In the meantime, Felicity contacted the Albert Road Clinic to advise that Sean had sent a suicide note via text to a friend and that he was at the Maribyrnong Viaduct Bridge. Nursing staff contacted emergency services at 11.00am with this information, and again on several more occasions as more information became available (including that Sean may be at the EJ Whitten Bridge).
42.The investigation has revealed at 9.46am on 21 December 2017 Sean caught an Uber from the Albert Road Clinic, arriving at his Outlook Dr, Glenroy destination at 1010am. At 10.47am Sean sent a text message to his friend Sam which indicated that he possibly intended to suicide and ended the message with “Maribyrnong Viaduct Bridge”. At 11.02am Sam tried to call him, but Sean did not answer. Another friend of Sean’s, Campbell Thompson also received a text message around the same time that he interpreted as a goodbye message. The text message to Campbell also indicated that Sean may have been at the Maribyrnong Viaduct Bridge. Campbell contacted emergency services and drove to the area; however Sean was not there. Some additional information became available (possibly from a text sent from Sean to another friend) indicating that Sean may have been at the EJ Whitten Bridge.
43.At approximately 12.30pm 13-year-old friends Michael Moore and Darcy Madigan were riding their bicycles along the Moonee Ponds Creek Trail and discovered Sean deceased in the grass below a rail-bridge (which was not the Maribyrnong Viaduct Bridge) approximately 300m along the Moonee Ponds Creek Trail from the end of Outlook Dr. Michael called his mother, who told him to call emergency services.
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21Albert Road Clinic medical record, Category Two One Hourly Sightings Chart.
In relation to treatment of the deceased at ARC the Coroner stated:
48.Throughout his admission to the Albert Road Clinic, Sean was regularly reviewed by medical and nursing staff. When his suicidal ideation increased, he was appropriately reviewed by Dr Hopwood and transferred to an area of higher observation. When he left the ward without leave, this was also responded to appropriately with a review by Dr Hopwood and changes to his treatment plan to avoid similar future incidents. In addition, Sean was offered a higher level of observation in the intensive care unit – however both he and his parents declined. As Sean was a voluntary patient, he could not be forced to accept a transfer to the intensive care unit.
49.Sean’s parents were in regular contact with Albert Road Clinic staff, including attending some psychiatrist reviews and phone contact with the psychiatry registrar and nursing staff. Felicity’s concerns were documented in the medical record and raised with Sean on 7 and 13 December 2017. An additional phone call was made to Felicity on 15 December 2017 by Dr Visa to discuss Sean’s progress and further discuss Felicity’s concerns.
50.When Sean left the ward without leave on the day of his death, he was on 60-minute observations, which was appropriate to his presentation and risks at that time. Despite this, he interacted with nursing staff at 9.00am and 9.30am with the next planned observation at 10.00am. By 9.46am he had left the ward. Given his level of observations, it was appropriate that Albert Road Clinic Staff took up to 14 minutes to notice that Sean was missing from the ward. On noticing that Sean was missing, Albert Road Clinic staff acted appropriately by attempting to contact Sean twice and conducting a search of the ward, before contacting Dr Hopwood. As Sean was a voluntary patient and therefore not considered at imminent risk of harm when he left, there was no indication that police needed to be contacted immediately on noticing that he was absent. When Albert Road Clinic staff became aware that Sean was at imminent risk of suicide, they appropriately reported this to police and continued contacting police with further information that became available.
51.The treatment provided by Dr Hopwood and Albert Road Clinic was appropriate in the context of Sean’s presentation and the information available to them at the time.
The Coroner stated that the deceased had a pattern of hiding his thoughts and symptoms from his family and mental health staff which made assessment, treatment and risk management difficult. He stated treatment provided by both the Alfred Hospital and ARC was appropriate in the context of his presentation and the available information, and treatment provided by MATT was of a high standard.
In response to the appellants’ submissions in relation to the obligations and duties of mental health services, the Coroner stated:
61.The family submission did not appear to raise concerns specific to Sean’s treatment and will not be commented on in this report. The family submission provided a commentary about two of many Commonwealth documents which guide mental health development and practice. These are not obligations of mental health services.
In relation to the appellants’ submissions that the obligations of mental health services in treating inpatients who have voluntarily engaged with services is unclear and ambiguous, the Coroner stated:
63.The Mental Health Act 2014 (Vic) provides legislation governing compulsory mental health assessment and treatment in Victoria. The Mental Health Act does not intend to govern the treatment of voluntary patients. A single set of guidelines governing the mental health treatment of voluntary patients does not exist, as voluntary treatment is negotiated between the patient and the health service, and mental health services vary in the types of service that they aim to provide. Several guidelines exist to assist public mental health services in the provision of mental health services to all patients (regardless of legal status). Additionally, mental health organisations usually have a range of policies/procedures/protocols/guidelines which are expected to be evidence based, that guide their staff in service provision. These policies/procedures/protocols/guidelines vary depending on the service, its capability and the type of service that it aims to provide.
The Coroner noted the list of factors which the appellants submitted could be considered at an inquest, which included the adequacy of the emergency response by ARC, and communication issues with friends and family during the emergency response in relation to the deceased absconding, and a review of the ‘Ramsay Rule’ and how it should be implemented. The Coroner stated the Ramsay Rule, which applies at ARC, is a three-step process for the patient, their family or carers to escalate any concerns and call for rapid assistance when they believe that something is not right with the clinical condition of the patient. The steps are, first, talking to ward staff, second, talking to the nurse in charge of the shift and, third, ringing the hospital’s dedicated phone number to ask for the Ramsay Rule to be activated. The Coroner stated:
71.As previously set out, Felicity had regular contact with Albert Road Clinic staff which was responded to appropriately. There was no evidence that Sean or his family escalated their concerns to a nurse in charge of shift or called the dedicated phone number asking for the Ramsay Rule to be activated.
The Coroner referred to the appellants’ submission that there were a number of incidents that should have been recognised by ARC as ‘red flags’, and that there should be evidence called regarding the deceased’s status as a voluntary patient during the time he presented with red flags. The Coroner stated:
73.There was no evidence that assessment of Sean’s risk was inappropriate. It is usual practice in mental health settings to use a risk assessment tool to assist in assessing and communicating risk. These were frequently present in the medical record and reflected the risks documented in the progress notes. Risks fluctuate for many reasons and one purpose of risk assessment tools is to capture the variation in a patient’s risk. Therefore, differences in risk captured on risk assessment tools is appropriate. While the frequency that the “targeted risk assessment” tool was used varied, Sean’s risks were captured in several different ways and there was no evidence that the frequency of use of the “targeted risk assessment” tool contributed to a reduced overall assessment of Sean’s risks or contributed to his death. As previously outlined, Sean’s family were able to communicate their views regarding his symptoms and risks and these were reflected in the medical record.
74.The family submission outlined the criteria for involuntary treatment of a person under section 8 of the Mental Health Act. It appears that this refers to the now repealed 1986 Mental Health Act. The Mental Health Act 2014 (Vic) was in place at the time of Sean’s death and there was no evidence that Sean satisfied the criteria for compulsory treatment at any time during his Albert Road Clinic admission. Sean was accepting of immediate treatment at Albert Road Clinic and while there was occasional evidence of suicidal ideation, there was no indication that he was at imminent risk of serious harm to himself or others.
In relation to the appellants’ submission questioning whether group therapy was appropriately provided to the deceased, the Coroner stated:
76.The medical record indicated that Sean attended seven group therapy sessions, declined to attend 13 sessions, was on day leave during two sessions and did not attend a further 35 sessions for reasons not recorded. As a voluntary patient, Sean could not be forced to attend group therapy sessions. In the sessions that he attended, he was noted to have active participation in some and inactive participation in others. It is unknown whether Sean would have attended additional group therapy sessions if these were available and there is insufficient evidence to suggest that Sean’s death would be prevented if additional group therapy sessions were available. As it cannot be concluded that Sean’s attendance (or lack thereof) at group therapy sessions contributed to Sean’s death, this issue was not outlined in the initial CPU consultation memo and will not be explored further in this memo. The issue of the evidence-base of therapy programs could be addressed directly with Albert Road Clinic by the family or through the Mental Health Complaints Commissioner or Health Complaints Commissioner, but as Sean did not engage in the sessions available, I do not propose [t]o further explore this aspect.
The Coroner noted the discrepancy between the ARC clinical notes, which recorded a sighting of the deceased at 12:30pm on 15 December 2017, and an Uber receipt, which indicated he was collected from the facility at 12:16pm. The Coroner stated there was no evidence of similar discrepancies on the day of the deceased’s death. In relation to the period between visual observations, the Coroner stated:
81On reviewing Sean, Dr Hopwood noted that he presented with no immediate risks, his visual observations were decreased and his leave increased in an attempt to reduce Sean’s agitation. This was reasonable and there was no indication over the next six days that Sean’s leave needed to be reduced or his visual observations increased. Nevertheless, on the morning of Sean’s death he had visual observations every 30 minutes (despite being on 60-minute observations) and therefore it cannot be concluded that having Sean remain on 30-minute observations from 15 December 2017 until his death would have prevented his death.
The Coroner noted the appellants’ submission seeking a review of the appropriateness of ECT treatment of the deceased, which they argued greatly exceeded the ‘course of treatment’ provisions set out in the Mental Health Act. The Coroner reviewed ECT treatments given to the deceased during 2017 and, specifically in relation to ECT at ARC, said:
86.During his final course of ECT, Sean was an inpatient at Albert Road Clinic. He was a voluntary patient and consented to ECT. He received five ECT treatments during this course. A consent form was present on the medical record in which Sean consented to 12 treatments between 11 December 2017 and 11 February 2018. On the consent form, Sean indicated his agreement with the statement “my treating doctor has explained to me that I may not consent to more than 12 treatments over a period of time that cannot exceed 6 months. I am also aware that recovery requires 10-12 treatments on average, and sometimes more”. Sean consented to 12 treatments over two months and thus did not exceed 12 treatments and treatment did not continue for more than six months.
Finally, the Coroner stated:
90.In the circumstances, and having considered the Application, I have decided that is not necessary to hold an inquest, for the following reasons:
(a)the available evidence is sufficient to allow me to make the findings required by section 67(1) of the Act concerning:
•the deceased identity;
•the medical cause of death; and
•the circumstances in which the death occurred.
(b)I note that a coronial brief (as referred to as the inquest) contains a variety of different forms of evidence, drawn from sources, some evidence may be contradictory different but in and [of] itself it does not represent the facts surrounding the death. There is also information that may not be relevant to my statutory functions as it may be too remote. It is up to me to determine the circumstances leading to the death which requires consideration of those matters which are considered proximate to the death.
(c)Further, I do not consider that an inquest is likely to uncover systemic defects or risks which are not already known; and
(d)there is no legitimate coronial purpose that is likely to be served by holding a public hearing in this matter.
Grounds of appeal
The grounds on which the appellants rely are set out in the Further Amended Notice of Appeal filed on 18 June 2020:
3.Where section 87A of the Coroners Act applies, the grounds relied on to satisfy the Court that it is necessary or desirable in the interests of justice for the appeal to be allowed:
(a)The Appellants were denied procedural fairness by the Respondent.
(b)The Respondent failed to address evidence of witnesses William Edwards, Mary Simic, Damien Simic and Felicity Childs.
(c)The Respondent failed to address the matters contained within their respective statements, including the conflict with other evidence.
(d)The Respondent failed to address the evidence that the deceased’s mother telephoned the Albert Road Clinic at 9:15am and 9:17 am to raise concern at the deceased’s mental condition, when the undisputed evidence established that the deceased left the clinic at 9.46am, meant that this was a preventable death.
(e)The myriad of factors promoting public health and safety, including the administration of justice which the Respondent failed to take into account which require exploration and examination in a public inquest, include, inter alia:
(i)A deficient supervisory regime;
(ii)A deficient treatment regime;
(iii)Oversight and inaccuracies in record keeping;
(iv)The electroconvulsive therapy and pharmacological regime.
(v)The applicability of the Mental Health Act 2014 to all mental health patients in Victoria.
(f)The lack of sufficient protocols and guidelines for treating patients in mental health facilities require examination in the public inquest.
(g)The Respondent’s determination, without supporting reasons, that there is no applicable standard for voluntary patients as a class requires examination in the public interest as a matter affecting public health and safety and the administration of justice.
(h)The issues, inaccuracies and oversights raised in the Respondent’s determination require examination and testing in a public inquest.
(i)The test applied by the Respondent to not hold an inquest miscarried. On the whole of the evidence, the Respondent’s discretion not to hold an inquest miscarried.
(j)The Respondent failed to give reasons for his determination that the Mental Health Act 2014 did not apply to voluntary patients as a class.
(k)The Respondent failed to give reasons for his determination that the Mental Health Act 2014 did not apply to the deceased.
(l)The Respondent failed to give reasons for his determination that the deceased was not a person “under the control, care or custody” of the Secretary of the Department of Health within the meaning of the definition of a “person in custody or care” in section 3 of the Coroners Act 2008 thereby mandating the holding of an inquest.
(m)The issues, inaccuracies and oversights raised in the Respondent’s determination require examination and testing in a public inquest.
Legislation
The purposes of the Act, set out in s 1, include:
(a) to require the reporting of certain deaths; and
(b)to provide for coroners to investigate deaths and fires in specified circumstances; and
(c)to contribute to the reduction of the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners …
‘Inquest’ is defined in s 3 of the Act as meaning
a public inquiry that is held by the Coroners Court in respect of a death or a fire
‘Reportable’ deaths specified in s 4(2) of the Act include:
(a)a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury …
Because the deceased’s death appears to be a reportable death, it must be investigated by a Coroner.[2]
[2]Coroners Act 2008 (Vic) s 15.
The objectives of the Act include that a coroner should liaise with other investigating authorities, official bodies or statutory officers to avoid unnecessary duplication of inquiries and investigations.[3] The matters to which a coroner should have regard when exercising a function under the Act include the desirability of promoting public health and safety and the administration of justice.[4]
[3]Ibid s 7.
[4]Ibid s 8.
Whether an inquest is held into a death is governed by s 52 of the Act. Section 52(1) provides that a coroner may hold an inquest into any death that the coroner is investigating. The circumstances in which an inquest must be held, none of which apply in this case, are set out in s 52(2).[5] The appellants’ request for an inquest was made pursuant to s 52(5):
A person may request a coroner to hold an inquest into any death that the coroner is investigating.
The Coroner’s decision in writing not to hold an inquest was made pursuant to s 52(6).
[5]During the hearing of the appeal the appellants withdrew an argument that immediately before his death the deceased was a person placed in custody or care as defined in the Mental Health Act, mandating that an inquest be held.
Findings of a coroner investigating a death are dealt with in s 67:
(1) A coroner investigating a death must find, if possible—
(a)the identity of the deceased; and
(b)the cause of death; and
(c)unless subsection (2) applies, the circumstances in which the death occurred; and
(d)any other prescribed particulars.
(2)Whether it is possible or not, a coroner need not make a finding with respect to the circumstances in which a death occurred if—
(a)an inquest into the death was not held; and
(b)the coroner finds that—
(i)the deceased was not, immediately before the person died, a person placed in custody or care; and
(ii)there is no public interest to be served in making a finding regarding those circumstances.
(3)A coroner may comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice.
It is important to note that the power of a coroner to make comment or recommendations on any matter connected with a death is attached to an investigation, and is not limited to an investigation where there has been an inquest.[6]
[6]Coroners Act 2008 (Vic) s 72(2).
Appeals to the Supreme Court from a determination by a coroner are governed by Part 7 of the Act. Under s 82, the person who made the request for an inquest may appeal to the Supreme Court against the Coroner’s determination not to hold an inquest. The appeal must be made within three months after the day on which the determination of the Coroner is made.
On an appeal the Supreme Court has the broad power to make any order that it thinks appropriate.[7]
[7]Ibid s 87(4).
Section 87A of the Act, which came into effect on 1 January 2015, sets out the legislative basis of the current appeal:
87A Appeal to Supreme Court in the interests of justice
(1)An appeal to the Supreme Court other than on a question of law may be made under section 82(1) in respect of a decision by a coroner to not hold an inquest into a death, or section 84(1) in respect of a refusal by the Coroners Court to re-open an investigation into a death, if the appeal is made by—
(a)the senior next of kin of the deceased; or
(b)a person with sufficient interest.
(2)The Supreme Court may allow an appeal under subsection (1) if it is satisfied that it is necessary or desirable in the interests of justice to do so.
The Supreme Court may grant an extension of time to appeal under s 86:
The Supreme Court may grant leave to appeal out of time under section 78, 80, 81(3), 82, 83 or 84 if the Supreme Court—
(a)is of the opinion that the failure to institute the appeal within the specified period was due to exceptional circumstances; and
(b) is satisfied that granting the leave is desirable in the interests of justice.
Principles and authorities
The notice of appeal on which the appellants initially relied set out what was said to be questions of law for the purposes of ss 82 and 87(1) of the Act. After counsel for the respondent made written submissions which comprehensively and very helpfully addressed deficiencies in the notice of appeal and the case put by the appellants, a further amended notice of appeal was filed confining the basis of appeal to s 87A of the Act.
The jurisdiction conferred by s 87A has been considered on a number of occasions.
In Bourke v Coroners Court,[8] Zammit J said:
The principles relevant to the present matter, which the respondents referred to in their submissions, are that:
(a)The Coroner is granted a wide discretion under s 17(2) of the 1985 Act (now s 52 of the Act) to determine whether or not to hold an inquest.
(b)The jurisdiction of the Court to order that an inquest be held, where it is in the interests of justice, is a jurisdiction only to be exercised sparingly and in rare circumstances.
(c)The circumstances relied upon in support of an application made under s 18(3) of the 1985 Act must be subject to severe scrutiny.
(d)Compelling evidence must be provided by an appellant to warrant the intervention by the Courts in the interests of justice. It will be insufficient where the circumstances relied upon are highly speculative or constitute no more than a suspicion.[9]
[8][2015] VSC 418.
[9]Ibid [111] (citations omitted).
In contrast, in Chol v White,[10] discussing the discretion conferred by s 87A, J Forrest J said:
If that section is engaged, then the admonitions relating to ‘sparing exercise of the jurisdiction’, ‘rare circumstances’, ‘severe scrutiny’ and ‘compelling evidence’ can all be put to one side. The statutory words speak for themselves and provide the Court with a wide discretion as set out in s 87A(2). It is singular that this ground of appeal is directed to a decision by a coroner not to hold an inquest.[11]
[10][2016] VSC 561.
[11]Ibid [58].
In Mortimer v West (‘Mortimer’),[12] Macaulay J acknowledged that the jurisdiction conferred by s 87A concerned the review of
the exercise of power by a specialist coroner after he or she makes a discretionary decision of a kind that calls for a judgment which a coroner is peculiarly equipped to make on the basis of the material before them. For that reason I consider that the Supreme Court should exercise the appellate power in s 87A sparingly, acknowledging the particular advantages a coroner has over a non-specialist court in determining when it is ‘appropriate’ to re-open an investigation.[13]
Macaulay J noted that the interests of justice
are not the same as the interests of one party or even all the parties to the proceeding — they extend beyond the private interests concerned. In the context of the Act and the specific subject matter of investigations those interests would, amongst other things, take into account the desirability of finality in investigations, the extent to which an issue of public health and safety is engaged and … the particular interests of next of kin being heard in relation to and understanding the findings of a coroner about the death of someone near to them.[14]
[12][2017] VSC 293 (‘Mortimer’).
[13]Ibid [70].
[14]Ibid [72] (citations omitted). The decision in Mortimer was overturned on appeal. However, there was no disapproval by the Court of Appeal of the interpretation by Macaulay J of s 87A of the Act: Mortimer v West (Deputy State Coroner) (2018) 56 VR 608.
A broad discretion such as is conferred by s 87A of the Act will be confined mainly by the subject matter, scope and purpose of the legislation.[15] For the reasons stated by Macaulay J in Mortimer, the discretion should be used sparingly. Matters relied on in support of the request for an inquest must be scrutinised to ensure they amount to more than speculation or suspicion.[16] The interests of justice may require consideration of the desirability of finality in investigations, the nature of and extent to which an issue of public health and safety is engaged, and the interests of the next of kin being heard in relation to and understanding the findings of a coroner.
[15]Klein v Domus Pty Ltd (1963) 109 CLR 467, 473; Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, 90 [59].
[16]Rouf v Johnstone [1999] VSC 396.
Leave to appeal out of time
The Coroner’s decision under s 52(6) was made on 13 January 2020. This appeal was initiated on 15 April, which is more than three months after the Coroner’s determination. Accordingly the appeal was one day out of time, and leave to appeal is required under s 86 of the Act.
An applicant for extension of time bears the onus of satisfying the court that the failure to institute the appeal within time was due to exceptional circumstances. Circumstances which are exceptional may be said to rarely occur and to be outside reasonable anticipation or expectation.[17]
[17]Coulston v State Coroner of Victoria [2018] VSC 103, [31], [34], [35].
In this case I am satisfied delay by the appellants is explained by the content of the letter to them from the Coroners Court, attaching the Coroner’s decision, which had the effect advising the appellants that they had until 16 April 2020 to appeal the decision. I conclude that mistake was outside reasonable anticipation or expectation, and is an exceptional circumstance. The appeal was commenced by the appellants within the period they understood to apply. In that sense there was no delay. I conclude in the circumstances that it is desirable in the interests of justice that leave to appeal out of time be granted to the appellants pursuant to s 86 of the Act.
Should the appeal be granted?
Appellants’ Submissions
In relation to grounds (a)–(d) the appellants submitted that telephone calls to ARC on the morning of the death raising concerns about the deceased were ignored. The deceased’s mother telephoned ARC at 9:15am and again at 9:17am, explained to a nurse that she was very concerned about the deceased’s mental state following a visit the previous night, and requested that someone engage with him as a matter of urgency. The deceased’s friend Damien Simic received a text from the deceased during the morning, which seemed to him to be a suicide message. He called his mother Mary Simic, who then rang ARC, and was told the deceased was fine and was at the clinic. It seems likely this telephone call was made before 9:46am, when the deceased left the clinic by Uber. The appellants submitted:
[T]he situation in relation to that is that notice was given by [the deceased’s] mother and possibly by [Mrs Simic] which would have prevented [the deceased] effectively leaving that clinic and making this death completely preventable.
Now, that is one of the major bases of complaints in that the coroner hasn’t addressed any of that, and it’s submitted by the appellants, and we submit, that they’re matters that need exposing and examination in a public inquest because if this was a preventable death, then the coroner simply missed – completely missed the point effectively.
The appellants were denied procedural fairness because of the Coroner’s failure to advert to and address the matters raised in the statements of the deceased’s mother and the Simics. The issues of assessment of risk and supervision of patients in mental health facilities has relevance to the interests of justice and public health and safety, which are the touchstones of the Act.
The appellants relied on a number of matters in support of ground (e). First, there were ‘red flags’ in relation to the deceased which made it necessary to consider whether he should have been a compulsory patient under the Mental Health Act. Second, whether treatment by ARC was adequate, with particular reference to ECT. Third, a facility such as ARC should keep records of patients coming and going. A patient such as the deceased should not be able to leave the facility without being seen, and without there being a system of supervision of patients. On 15 December 2017 the deceased left ARC shortly after 12:00pm, and his absence was not noticed until his mother contacted the facility at about 2:20pm. Because there was no proper oversight of the deceased leaving ARC on 21 December 2017 a substantial period of time elapsed after he left the facility before anything was done.
In support of grounds (e)(v), and the remaining grounds the appellants submitted that it was ambiguous whether the Mental Health Act applied to the treatment of a voluntary patient in a private facility and the Coroner failed to give reasons for determining that the Act did not apply. There does not appear to be a provision which makes the Mental Health Act applicable to patients in a private facility such as ARC. If the Mental Health Act does not apply then the care of patients in private facilities such as ARC is unregulated, which results in a vacuum as to the standard of care applicable to a patient such as the deceased. The obligations of ARC to patients in its care, and the lack of regulation of that matter, raises important questions of public health and safety which should be examined at an inquest. The appellants submitted:
The question of whether the statutory regime is adequate is a live one, which one would hope the Royal Commission might make some recommendations on but it's submitted simply that it raises what effectively is a defect in the legislation.
The appellants submitted the terms of reference for the Royal Commission into Victoria’s Mental Health System (‘the Royal Commission’) demonstrate the need for an inquiry into treatment in care models, and the existing legislative and regulatory frameworks. That need is further supported by the Ramsay Health Care submission to the Royal Commission, which states in part:
We believe that too often, those in need of services at some of the worst periods of their lives are lost to a maze of mental health provision, with community mental health and the public system failing to interface properly.
The Victorian Coroner’s Recommendations on Issues Pertaining to Mental Ill Health detail a number of coronial inquiries into suicide deaths, which show that recommendations were made in relation to matters such as treatment regimes as a consequence of coronial inquests.
Analysis
Grounds (a) to (d)
The appellants base these grounds on what they argue was a failure to accord them procedural fairness. Presumably the appellants rely on the right to have their request for an inquest under s 52(5) considered on the merits. More fundamentally, no submissions were made which explained how a failure to accord procedural fairness under s 52(6) relates to the exercise of the discretion under s 87A(2).
In any event the reasons given for the decision not to hold an inquest demonstrate that the Coroner considered the chronology of events, including communications with ARC, on the days prior to and morning of the death.
The Coroner dealt comprehensively with the risk assessment by ARC and stated that the deceased was on 60-minute observations, which was appropriate to his presentation and risks at the time, and that ARC had considered the views of family in the context of risk assessment. The Coroner noted there was no evidence concerns in relation to the deceased had been escalated in accordance with the Ramsay Rule.
The Coroner noted the deceased was observed at ARC at 9:00am, and again at 9:30am. The second of these observations was after the two telephone calls made to ARC by the deceased’s mother. While the deceased was not observed at ARC at 10:00am, that was only 30 minutes after he was last seen.
Progress notes at 9:40pm on 20 December 2017 record that the deceased’s mood was more buoyant than previous days, and that he was warm, engaging and reactive, and not having paranoid thoughts. Overnight the deceased was settled. Notes indicate he was woken at 9:00am and given medication at 9:30am. The deceased’s mother states that when she telephoned ARC before 9:30am on 21 December she was told by a nurse that the doctor’s notes indicated the deceased was improving.
The information that was critical to altering the risk assessment for the deceased came from the texts that he sent to a number of friends which appeared to be suicide messages. Mr Edwards’ statement indicates he received a text at 10:48am. The Coroner’s reasons note another friend received a text at 10:47am, and a third at around the same time. I do not accept the appellants’ submission that the text to Mr Simic was much earlier in the morning, or that the telephone call from Mr Simic’s mother to ARC was made before 9:46am. Mr Simic said that after hearing back from his mother he telephoned the deceased’s mother to tell her about the text messages. The deceased’s mother makes no mention of having told the ARC nurse about the apparent suicide message to Mr Simic when she received the telephone call at 10:20am. There is no doubt that had the deceased’s mother been aware of the message at that time she would have immediately escalated her concerns with ARC.
This also fits with the evidence of actions taken by ARC. A search of the facility was conducted at 10:50am. At 10:55am Professor Hopwood was contacted and asked that the deceased’s mother be contacted. In the meantime the deceased’s mother contacted ARC to advise that the deceased had sent a suicide note by text to a friend. At 11:00am nursing staff contacted emergency services.
The Coroner noted that the deceased was a voluntary patient not considered at imminent risk of harm when he left ARC at 9:46am on 21 December, and that when staff became aware of the imminent risk of suicide because of the text messages they appropriately reported this to police. I do not accept the appellants’ submission that the Coroner ignored or failed to address communications by the deceased’s family with ARC on the morning of 21 December. The Coroner made specific reference to contact by the deceased’s mother with ARC in the context of discussing the Ramsay Rule. Further, the deceased was seen at the facility after the first two telephone calls from his mother to ARC on the morning of 21 December.
Ground (e)
I reject the assertion in ground (e) that the Coroner failed to take relevant matters into account when determining not to hold an inquest. The Coroner dealt comprehensively with the deceased’s presentation in the period he was treated as an inpatient at ARC, treatment provided to him, the assessment of risk and the regime in place for the supervision and observation of the deceased. The Coroner noted the deceased was a voluntary patient and did not satisfy the criteria to be made a compulsory patient under the Mental Health Act. No expert evidence was submitted by the appellants challenging this conclusion. The Coroner carefully considered and responded to the appellants’ submissions in relation to the assessment of risk, ECT and group therapy, and noted that the treatment provided by ARC was appropriate.
Remaining grounds
The appellants’ submissions in relation to the Mental Health Act are without merit. The appellants made a broad submission that there is ambiguity or uncertainty as to the application of the Mental Health Act to patients in private psychiatric facilities without directing attention to particular provisions which, in the context of the deceased’s circumstances, give rise to uncertainty as to the treatment regime which did, or should have applied. It is not clear from the appellants’ submissions in what way they say, by reference to the provisions of the Mental Health Act the treatment of the deceased by ARC was deficient. The Coroner’s reasons explain why it is that there is no single set of guidelines governing mental health treatment of voluntary patients in private facilities. Further, the Coroner set out in detail the procedures at ARC for risk assessment and management, and stated that ARC’s risk assessment and treatment of the deceased was appropriate.
The appellants’ submission amounted to no more than an assertion that there remain significant issues in relation to the treatment of patients suffering mental ill health in our society. No real attempt was made to relate specific issues to the circumstances of the deceased’s death in order to explain why it was that an inquest into the death was an appropriate vehicle for the examination of those issues. The appellants did not explain why an inquest into the death should be held to, in effect, duplicate the inquiry which is the subject of the Royal Commission.
The appellants’ submissions based on recommendations made following previous coronial inquiries into suicide deaths goes nowhere. Whether it is appropriate to hold an inquest will be determined on the facts and circumstances of each case. Further, as counsel for the respondent pointed out, in at least some of the cases relied on by the appellants in which recommendations were made, a coronial investigation into the suicide death was undertaken without an inquest.
Conclusion
The circumstances of this matter clearly demonstrate why a specialist coroner, who was able to call on the assistance of the Coronial Investigator and the CPU, was peculiarly equipped to investigate the death and to determine whether an inquest should be held, and why the s 87 jurisdiction to review a Coroner’s determination should be used sparingly. The Coroner carefully considered the appellants’ request and determined not to hold an inquest. The appellants have not established that it is necessary or desirable in the interests of justice to hold an inquest into the death.
I conclude the appeal should be dismissed. I will hear the parties as to any consequential orders.
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