Grace v Saines
[2004] VSC 229
•29 June 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5298 of 2004
| CARL GRACE | Plaintiff |
| v | |
| RONALD SAINES (IN HIS CAPACITY AS CORONER) | Defendant |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 – 21 May 2004 | |
DATE OF JUDGMENT: | 29 June 2004 | |
CASE MAY BE CITED AS: | Grace v Saines (as Coroner) | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 229 | |
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CORONERS – Inquest – Whether coroner acted beyond power in authorising seizure of medical records of persons other than deceased – Ambit of powers to make findings and comments – Ambit of powers of entry, inspection and possession – Coroner’s Act 1985 s 19(1), s 19(2), s 26(3).
ADMINISTRATIVE LAW – Judicial review – Order in the nature of certiorari.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Ruskin QC and Mr M. Gronow | Blake Dawson Waldron |
| For the Defendant | Mr R R Tracey QC | Victorian Government Solicitor |
HER HONOUR:
By an originating motion filed on 2 April 2004 the plaintiff seeks an order in the nature of certiorari quashing the order of the defendant on 17 March 2004 (“the order”). The order authorised police under s 26(3) of the Coroner’s Act 1985 to enter the plaintiff’s Geelong surgery and take possession of medical records relating to Ms Carla Sitar, Ms Elizabeth Paynting and Mr Max McKinnis (“the extra records”).
The application for the order quashing the order was made on summons on originating motion filed on 2 April 2004. It had been referred by the Master to the Practice Court.
Although the challenge to the order was expressed in somewhat different terms in the originating motion, it was put to the Court in oral and written submissions that the defendant had no jurisdiction to investigate the circumstances of other deaths not before him. It was said by the plaintiff that, in so far as the defendant’s reasons for the order disclosed that he purported to do so, there was an error disclosed on the face of the record vitiating the order.
Senior counsel for the defendant made submissions for the assistance of the Court, in the absence of any other proper contradictor. His appearance was of benefit to the Court and appropriate in the circumstances. [1]
[1]See: Commissioner of Police v Hallenstein [1996] 2 VR 1 at 6 per Hedigan J
Material before the Court
The plaintiff relied upon his affidavit sworn on 1 April 2004 in support of the application for judicial review.
The defendant relied upon the affidavit sworn by John Leaf, Senior Registrar and Senior Coroner’s Clerk at the Magistrates’ Court, Geelong sworn on 5 May 2004. The transcript of the defendant’s oral reasons for decision (“the reasons”) was exhibited to Mr Leaf’s affidavit. Also exhibited were reports obtained by the defendant from Dr Elizabeth Lester, a general practitioner and partner of the Highton Clinic practice, dated 23 May 2003, and Dr Amanda Wilkin of the Victorian Institute of Forensic Medicine, dated 11 September 2003, as well as a statement of Mr Paul Masek, pharmacist, dated 3 March 2004 and accompanying extracts from MIMS prescribing information.
Background
It was common ground that the defendant was at all relevant times conducting an inquest in relation to the death of Irene Sophia Bryant (“the deceased”) whose body was found at her home on 8 January 2002.
The deceased had been a patient of the plaintiff from 13 May 2001 until shortly before her death. Dr Wilkin’s report set out details of her history which were not contentious and which I will record. The deceased had suffered for many years from anxiety and depression and had a history of taking sedative, anxiolytic and muscle relaxant medication. In the 12 months before her death 24 doctors had prescribed medication for her. In the two weeks before her death she had had prescriptions filled for what was described by Dr Wilkin as a “huge number of tablets.” A pathologist had suggested that results of toxicological tests in relation to the deceased revealed levels of morphine and tramadol in her system consistent with excessive and potentially fatal use. The plaintiff had prescribed an initial dose of 100 mg of morphine twice daily in the form of MS Contin tablets for the deceased which she had commenced on 3 January 2001. A packet with 14 tablets missing had been discovered by the deceased’s family. Dr Wilkin had opined that a starting dose of MS Contin 100mg was excessive for someone who had not been on morphine before and that the most common starting dose was 30mg twice a day.
Dr Lester shared Dr Wilkin’s view that 100mg of MS Contin was an excessive initial dose and quoted the MIMS prescribing information to the effect that the most frequent initial dose was 30 mg every 12 hours.
The defendant made the order after having also received the report from the pharmacist, Mr Masek, to the effect that before the deceased’s death he had written to the Medical Board of Victoria about his concerns relating to the plaintiff’s prescription of morphine for the three other patients. His letter had focussed upon a prescription of 100mg of MS Contin twice daily for Ms Sitar who was allergic to morphine. Mr Masek stated that his letter had referred to his concern that prescriptions, at unspecified dates, of 30 mg MS Contin, four hourly, for two other patients of the plaintiff, Mr McKinnis and Ms Paynting, might constitute potential overdoses. The Court was told by senior counsel for the defendant that the defendant had also been informed that two of the three had since died during the period between the deceased’s death and the inquest.
The plaintiff had objected at the inquest to the order being made in relation to patients other than the deceased, submitting to the defendant that the extra records were irrelevant to his investigation.
The defendant determined that the extra records were relevant to his inquiry, stating the reasons on 19 March 2004 as follows:
“In this matter on 17 March, two days ago, I determined that the contents of medical files pertaining to a Ms Sitar and Ms Paynting and Mr McKinnis were relevant to this inquiry.
I am now this morning to determine whether that decision in respect of relevance is correct. The decision that I made was based upon material already in my possession, and on response (sic) to this morning’s application I propose to give reasons for that decision.
In May 2003, Dr Elizabeth Lester provided a report and opinion which included an assertion that she would have initiated a dose of MS Contin, 10 mg, in [the deceased’s] case. She asserted the most frequent initial dose is 30 mg every twelve hours and she says that in approximately ten years of general practice she has never prescribed MS Contin 100 mg.
The Victorian Institute of Forensic Medicine was requested to review this matter and provide an opinion. That opinion was furnished by Dr Amanda Wilkin, 11 September 2003, and in Dr Wilkin’s report she summarises her conclusions by stating that the starting dose of 100 mg of MS Contin twice a day is excessive in this case, and following receipt of that report, further investigations were requested of the pharmacists who had filled prescriptions for this deceased person previously. That resulted in a statement being made by Mr Paul Masek, pharmacist, and Mr Masek’s statements is also accompanied by copies of the MIMS prescribing information documents. The statement from Mr Masek speaks for itself but asserts that he was gravely concerned with the manner of prescribing in [the deceased’s] case and in the manner of prescribing by Dr Grace in three other cases. One of those cases involved a prescription of MS Contin 100 mg, being made out on the same day as he made out the prescription for [the deceased]. The other two involved the prescription of 30 mg of MS Contin to two patients which were directed to be taken four hourly.
The MIMS information supports the proposition that prescribing in these circumstances in all four cases may well have been contra-indicated. That cannot be determined until examination of each of the files is completed, but all of this evidence supports the possibility of findings being made in this case which findings conclude firstly a prescription of a lethal dose of morphine; secondly a prescription in circumstances that was (sic) contra-indicated; thirdly, the prescription being in circumstances where it was either unwise, negligent or deliberate.
There remains here even the possibility or the suspicion of homicide relevant by reason of s 17(1)(a). I certainly make no pre-judgment about that, but nevertheless I determine that the possibility of the findings that I have referred to brings into consideration the conduct of Dr Grace in respect of the other three patients besides [the deceased], and I therefore determine the contents of those files to be relevant and I intend to consider the evidence.”
The extra records were kept in a sealed envelope pending the determination of the application.
The coroner’s powers
It was common ground that the defendant, as a coroner, constituted an inferior statutory tribunal and had jurisdiction to exercise only the powers given to him by the Coroner’s Act 1985. In that capacity he was amenable to judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 1996. He did not exercise a curial role: see Harmsworth v The State Coroner[2].
[2][1989] VR 989
The general powers and duties of coroners are set out in Division 1, Part 5 of the Coroner’s Act 1985. A coroner has jurisdiction to investigate a death if it appears that the death is or may be a “reportable death” (as defined under s 3): s 15(1). A coroner to whom such a death is reported must investigate it or report it to the State Coroner: s 15(2). The coroner who has jurisdiction to investigate a death under s 15 must hold an inquest in certain circumstances, including the situation in which the coroner suspects homicide under s 17(1)(a), and otherwise may hold an inquest if the coroner believes it is desirable: s 17(2).
S 19 of the Coroner’s Act 1985 makes provision for the findings by a coroner:
“19. Findings and comments of coroner
(1) A coroner investigating a death must find if possible –
(a)the identity of the deceased; and
(b)how death occurred; and
(c)the cause of death; and
(d)the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1996.
(2)A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.
(3)A coroner must not include in a finding or comment any statement that a person is or may be guilty of an offence.
(4)If a coroner has determined under s 17(3) not to conduct or complete an inquest, the coroner is only required to make a finding relating to any of the matters referred to in paragraphs (a) to (e) of the sub-section (1) if the coroner believes it is desirable.”
The defendant made the order under s 26(3) of the Coroner’s Act 1985. S 26 provided at all relevant times:
“26. Powers of entry, inspection and possession
(1)A coroner who has jurisdiction to investigate a death may, with any help thought fit –
(a) enter and inspect any place and anything in it; and
(b)take a copy of any document relevant to the investigation; and
(c)take possession of anything which the coroner reasonably believes is relevant to the investigation and keep it until the investigation is finished.
(2)A coroner may only exercise those powers if the coroner reasonably believes it is necessary for the investigation.
(3)A coroner may, if the coroner reasonably believes it is necessary for the investigation, in writing authorise a member of the police force to do any one or more of the following at or between specified times during a specified period (not exceeding one month after the authority is given) –
(a) to enter a specified place;
(b) to inspect a specified place and anything in it;
(c)to take a copy of specified documents or classes of documents;
(d) to take possession of specified things or classes of things.”
Submissions
The plaintiff contended that the defendant was seeking in this case to investigate the irrelevant circumstances of other deaths which were not before him and in relation to which he was not empowered to make findings under s 19(1) (a) –(d) of the Coroners Act 1985. Accordingly, he argued that the defendant’s decision to investigate the circumstances of other deaths or allegations of over-prescribing in relation to other patients was ultra vires. Further, the reasons, as part of the record, disclosed the error on its face.
It was conceded by senior counsel for the defendant that, if the order had been made for the purpose of conducting an investigation into an irrelevant matter, it was not within the defendant’s power to make it. He agreed that the investigation referred to in s 26(3) was the investigation of the matters about which the coroner could make findings listed in s 19(1) and went on to say that the defendant could then also comment on any matter connected with the death under s 19(2).
However senior counsel for the defendant submitted that the defendant was in no position to make a decision as to the relevance of the extra records until he had inspected them. He said that the defendant’s exercise of power under s 26(3) was conditioned only upon him forming the reasonable belief that it was necessary to obtain the extra records for the purpose of the investigation and that he was required to make no judgment as to the relevance of the material in advance of seeing it. He said that the reasonableness of the defendant’s belief as to the necessity to authorise seizure of the extra records for his investigation was to be determined by their potential relevance to his inquiry in relation to the matters about which he was required to make findings under s 19(1). Only if the records could not possibly be relevant to the permissible investigation would the order be beyond power.
Senior counsel for the plaintiff denied that it was premature for the defendant to be concerned with the relevance of the extra records at the time of making his decision whether or not to make an order under s 26(3). He submitted that, once the extra records were in the hands of the defendant, the plaintiff would be liable to be cross-examined as to his culpability in relation to his prescribing practices, which would be inappropriate in the context of a coronial inquest and would have the vice of providing transcript for the Medical Board of Victoria which might be used against him. I note in this regard that the plaintiff has obtained the report of Mr Masek containing the allegations of over-prescribing by the plaintiff in relation to the three other patients which is not the subject of challenge in this application for judicial review.
Whether or not the defendant was correct in his contention that no analysis of the relevance of the extra records was required before they were inspected, whilst he did not expressly state the grounds for his belief that the extra records were necessary for his investigation, he appears from the reasons to have formed that belief on the basis of his conclusion that they were relevant to his possible findings under s 19(1). I note that he also made reference to a suspected homicide “relevant by reason of s 17(1)(a)” in the course of stating his conclusions as to the relevance of the extra records.
I agree with the submissions of senior counsel for the defendant that he would nevertheless only have exceeded his power under s 26(3) if he could not reasonably have believed that the extra records were necessary for his investigation as documents relevant to possible findings he was empowered to make under s 19(1).
I note at this point that, in so far as the defendant might be taken to have sought to justify the seizure on the basis of investigating possible over-prescribing for the three other patients, such an inquiry per se would not be within his power. However, I do not interpret the reasons that way.
Relevant authorities
Ambit of the powers under s 19(1)(b) and (c) and s 19(2)
The plaintiff urged the Court to adopt a limited view of the ambit of the requirements to make findings under s 19 (1)(b) and (c) and the power to comment under s 19(2). Senior counsel for the plaintiff relied upon the decision of Nathan J in Harmsworth v The State Coroner[3] in which his Honour considered the ambit of the State Coroner’s power of investigation under the Coroner’s Act 1985, with particular reference to the now repealed s 19(1)(e), in the context of his conduct of the inquest into the deaths of five prisoners in a fire at Melbourne Metropolitan Reception Prison. The coroner had adjourned the proceeding pending the court’s determination as to whether he had exceeded his power by investigating matters relating to the prison policies in relation to the housing of prisoners as well as other matters relating to the administration of the prison.
[3][1989] VR 989
S 19(1)(e) provided that the coroner investigating a death must find if possible “the identity of any person who contributed to the cause of death”. However Callaway JA in Keown v Khan and Anor[4] pointed out that the sub-section required no more than the findings mandated under s 19 (1)(b) and (c), namely the identification of any person who contributed to the cause of death.[5] It was not argued that the principles enunciated in Harmsworth or any of the other authorities to which reference was made which dealt with s 19(1)(e) were not applicable to any analysis of s 19(1) (b) or (c) and I consider them authoritative in that respect.
[4][1999] 1 VR 69
[5]ibid at 76
Nathan J said of the coroner’s power of investigation:
“The coroner’s source of power of investigation arises from the particular death or fire. A coroner does not have general powers of inquiry or detection (see s 15(1) and s 17(1)). The inquiry must be relevant, in the legal sense to the death or fire, this brings into focus the concept of ‘remoteness’.”
In relation to the inquiries which could be made Nathan J held:
“Inquiries must be directed to specific ends. That is the making of the findings as required and set out in s.19(1).
The power to comment, arises as a consequence of the obligation to make findings: see s.19(2). It is not free-ranging. It must comment ‘on any matter connected with the death’. The powers to comment and also to make recommendations pursuant to s.21(2) are inextricably connected with, but not independent of the power to inquire into a death or fire for the purposes of making findings. They are not separate or distinct sources of power enabling a coroner to inquire for the sole or dominant reason of making comment or recommendation. It arises as a consequence of the exercise of a coroner’s prime function, that is to make ‘findings’. …
… It could even be that a comment could have general application, and so much is envisaged by the Act which gives commentary and recommendatory powers in matters of public safety. But the power to comment is incidental and subordinate to the mandatory power to make findings relating to how the deaths occurred, their causes and the identity of any contributing persons.”
In Commissioner of Police v Hallenstein[6] Hedigan J cited the first paragraph of the quoted passage from the judgment of Nathan J but went on to say of the power under s 19(2):
“Doubtless it is correct to say that a coroner should not inquire into a death substantially to enable comments to be made. But once the inquest is held, the limits to the power to comment do not admit of easy definition.”[7]
[6][1996] 2 VR 1
[7]Ibid at 7
Senior counsel for the defendant submitted that what emerged from the statements of Nathan J in Harmsworth was that evidence might be sought relating to matters not too remote from the circumstances of the death. He argued that his Honour was stating that the circumstances surrounding the death might give rise to wider concerns being expressed.
He said that what had been sought by the defendant was important background material in light of the autopsy report which indicated a high level of morphine in the deceased’s system. He argued that the defendant had the power under s 19(1)(b) to make a finding relating to the circumstances of the deceased’s death which included a relevant pattern of over-prescribing behaviour by the plaintiff.
In support of this proposition he also submitted that the Court should interpret the word “how” in s 19(1)(b) as meaning “by what means and in what circumstances”, following the interpretation of the word “how” in s 11(5)(b)(ii) of the Coroner’s Act 1988 (UK) and r 36 of the Coroner’s Rules 1984 (UK) by the House of Lords in R (Saker) v West Yorkshire Coroner[8].
[8][2004] 1 WLR 796
Senior counsel for the plaintiff responded by urging the Court not to adopt the suggested approach, arguing that the extension of the meaning of “how” a death occurred in Sacker had resulted from the requirement that the United Kingdom’s international obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. He submitted that the inquiry in the United Kingdom was broader than that permitted by the Victorian legislation. I was persuaded by his submissions in that regard and note that I did not reach any conclusions on the basis of the House of Lords decision.
Senior counsel for the defendant also relied upon WRB Transport Pty Ltd & Ors v Chivell[9] in support of his argument in favour of a broad interpretation of the power to make findings under s 19 (1)(b) and (c) and the consequential breadth of the range of material which might be properly regarded as relevant.
[9][1998] SASC 6937
In WRB Transport Pty Ltd & Ors v Chivell Wicks J considered an application for judicial review directed to the State Coroner restraining the further conduct of an inquest into the deaths of five people as a result of an accident in which a truck owned by one of the applicants and driven by its employee, Mr Snewin, had collided with the motor vehicles in which they had been travelling. The Coroner had ruled relevant and admissible evidence from witnesses that certain employees of the first applicant had supplied tablets to its drivers and imposed pressure upon them to drive for excessive periods of time.
At the time, s 25 of the Coroner’s Act 1975 (SA) authorised the Coroner to add any recommendation that might in his opinion prevent or reduce the likelihood of a recurrence of an event similar to the event that was the subject of the inquest. S 12 of the same Act also required the Coroner to ascertain “the cause or circumstances” of a death.
Wicks J said at:
“[18] What is relevant to the cause or circumstances of death depends on the facts and circumstances of each case and cannot readily be the subject of generalisation. It is a question of judgment and degree. In some cases it is useful to test the relevance of evidence by applying the notions of causation and remoteness. …
[19] It is generally for the Coroner to determine what is relevant for the purposes of his inquiry. In carrying out this task he should not be confined in the way in which a trial judge is confined in assessing the relevance of evidence in the conduct of civil litigation. He must be given a reasonable degree of latitude. There may be differences of opinion between Coroners as to the relevance of evidence to be led in respect of a particular inquiry. It is only when one reaches the point that no reasonable person could regard the evidence as relevant that a question of jurisdictional error arises.
[20] In the present case, the evidence sought by the applicants to be excluded should be admitted if the Coroner feels that it will assist his inquiry. As the Coroner put it in his ruling: ‘it [the evidence] tends to show a work practice, a culture … a course of conduct which puts into context the event of 3 August 1996. It goes to the likelihood as to whether what occurred, occurred in the circumstances described by Mr Snewin and assists in the determination of whether what he did was done with the connivance, assistance, knowledge, consent or tacit acceptance of his employers or whether … he was on a frolic of his own.’
[21] The concept of relevance is broad and in the context of a coronial inquiry it should not be restricted by the use of other concepts.”
Senior counsel for the defendant argued that the facts in WRB Transport Pty Ltd & Ors v Chivel were the closest to those before the defendant to be found in the authorities to which reference was made in the course of argument.
Senior counsel for the plaintiff responded that the facts in WRB Transport Pty Ltd & Ors v Chivell were critically different in that the contested evidence was relevant to causation and in particular to the issue as to whether the driver was “on a frolic of his own” or had been engaged in a practice which his employers assisted and, or condoned. He distinguished the situation in which a doctor’s treatment of other patients might shed light upon the issues about which a coroner must make possible findings under s 19(1). In the case of the deceased’s death, he argued that the reports already before the defendant criticised the plaintiff’s prescription of 100mg of MS Contin as not according with current practice. He pointed out that neither medical expert had referred to the plaintiff’s treatment of other patients, nor had it been necessary for them to do so for the purpose of drawing conclusions about the over-prescription of morphine to the deceased. Accordingly, he argued, the investigation of the plaintiff’s prescribing practices in relation to the three other patients was beyond power and the material sought completely irrelevant.
Senior counsel for the plaintiff pointed out that the legislative provisions differed in various Australian jurisdictions, limiting the assistance to the Court available from cases concerned with their interpretation. He noted the reference to “circumstances” in the South Australian provision considered in WRB Transport Pty Ltd & Ors v Chivell. He went on to refer to the consideration of the meaning of the words “cause and origin” of a fire in s 8 and “cause of the death and circumstances of the death” in s 7 of the Coroners Act 1958 (Qld) by Lee J in Queensland Fire and Rescue Authority v Hall[10]. Lee J had said at 170 of the expression in s 7:
“The death is the actual event and the cause is the process of happening which brought the death about and is the cause of it, whereas ‘the circumstances’ obviously covers a much wider area of inquiry as the word itself conveys … .”
[10][1998] 2 Qd. R 162
Findings involving civil or criminal culpability
The reasons might be interpreted as raising the issue as to the power of a coroner to make findings related to criminal or civil culpability. Senior counsel for the plaintiff would appear to have been referring to this question when submitting that once the extra documents were before the defendant the plaintiff would be exposed to examination touching matters involving criminal responsibility.
Senior counsel for the plaintiff also submitted that the issue of homicide was irrelevant because, although s 17(1)(a) required a coroner suspecting homicide to hold an inquest, the inquest in the case of the death of the deceased was already under way. I note however a coroner’s obligation under s 21(3) to report to the Director of Public Prosecutions a belief that an indictable offence has been committed in connection with a death which the coroner has investigated. Nevertheless, s 19(3) does expressly prohibit a finding or comment including “a statement that a person is or may be guilty of an offence”.
In Commissioner of Police v Hallenstein[11] Hedigan J referred to provisions in both the United Kingdom and Victorian legislation regulating the coronial function. His Honour then relevantly said:
“In my view, it can be said with equal conviction as in the UK that the principal characteristic of the inquest is that it is a fact-finding inquiry conducted by a coroner to establish reliable answers to the five questions raised by s 19(1)(a)-(e). Since the power to report under s 21 has been conferred in respect of the same subject matter as for comment, the right to comment is presumably given to assist in public awareness of the relevant matters.
The fact that the Victorian Act permits the coroner to make comment on those matters reinforces the construction which I favour that it is not part of the coroner’s task, in making the necessary findings, to be satisfied that there is, or may be, civil or criminal liability in any individual contributing to the cause of death.”[12]
[11][1996] 2 VR 1.
[12]Ibid at 16
In Keown v Khan and Anor[13] the Court of Appeal of the Supreme Court of Victoria considered an appeal from a trial judge’s declaration that a coroner’s finding that a deceased woman’s actions were the sole contributing cause of her death was void as against the weight of the evidence. The coroner had found that a policeman who had shot the deceased had not contributed to the cause of her death, having acted in self-defence. The Court of Appeal held that a person who contributed in a causal way to a death did so despite having acted in self-defence.
[13][1999] 1 VR 69.
Although his Honour was dealing with the now repealed s 19(1)(e), Callaway JA provided guidance as to the ambit of the coroner’s power to make a finding as to a breach of a professional standard which might be relevant to civil liability, stating at 76:
“In determining whether an act or omission is a cause or merely one of the background circumstances, that is to say a non-causal condition, it will sometimes be necessary to consider whether the act departed from a norm or standard or the omission was in breach of a recognised duty … but that is the only sense in which para (e) mandates an inquiry into culpability.
… A coroner … will ordinarily set out the relevant facts in the course of finding how death occurred and the cause of death. The facts will then speak for themselves, leaving readers of the record of investigation to make up their own minds about lawful self-defence or any similar issue. … It is of the first importance that, when a person’s reputation is at stake, the relevant facts are clearly brought out.”
Justification on the basis of the power to comment under s 19(2)
Senior counsel for the defendant argued generally that it would have been reasonable for the defendant to believe that it was necessary for his investigation for the purpose of making comment under s 19(2) of the Coroner’s Act 1985 for the extra records to be seized. He argued that the defendant would be able to comment in an informed way about the possibility of the plaintiff over-prescribing morphine to other patients if the extra records were obtained and a pattern of over-prescribing of morphine found.
Senior counsel for the plaintiff responded that it would not have been reasonable for the defendant to believe that it was necessary for his investigation for the purpose of making such a comment that he should authorise police to obtain the extra records. He submitted that the defendant was in a position to make such a comment without engaging in investigation of the plaintiff’s prescribing practices in relation to other patients. He argued that the necessary material was before the Court in the form of the experts’ reports and the report from Mr Masek.
Conclusions
The defendant’s power under s 26(3) was conditioned upon him reasonably believing that it was necessary for his investigation for the purpose of making the mandated findings under s 19(1) that the extra records should be obtained.
As was conceded by senior counsel for the defendant, the defendant would have acted beyond power if the extra records could not reasonably be regarded as relevant to the matters about which findings could be made under s 19(1). Further, a belief as to the relevance of their contents to any comment the defendant might make under s 19(2) would not, in isolation, justify him obtaining them.
Whilst the defendant is prohibited by s 19(3) from making any finding or comment that a person is or may be guilty of any criminal offence and whilst it seems clear from the authorities that a finding of civil liability would similarly be beyond power, a reference to a departure from a norm or standard in relation to the prescription of morphine might be relevant to a determination of the cause of a death of the deceased.
Accordingly, in all the circumstances, I am satisfied that it would have been reasonable for the defendant to have held the belief that the extra records might contain material relevant to possible findings he might make under s 19(1)(b) and (c), in particular, and that it was necessary for his investigation to obtain them under s 26(3). In my view, the reasons can be construed as revealing such a reasonably held belief on his part.
I conclude that the defendant acted within his power in making the order and that the application for judicial review should fail.
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