Mortimer v West (in his role as Deputy State Coroner)
[2016] VSC 11
•28 January 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 03395
IN THE MATTER OF the death of the late Robena May Lloyd
| STEPHANIE LORRAINE MORTIMER (Sister) | Appellant | |
| v | ||
| IAIN WEST (in his role as DEPUTY STATE CORONER) | Respondent | |
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JUDGE: | RUSH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 August 2015 |
DATE OF JUDGMENT: | 28 January 2016 |
CASE MAY BE CITED AS: | Mortimer v West (in his role as Deputy State Coroner) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 11 |
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ADMINISTRATIVE LAW – Appeal against the findings and orders of an Associate Justice in relation to the Coroner’s determination as to cause of death – Whether grounds of appeal raise a point of law – Consideration of error of law on the face of the record and procedural fairness – No point of law identified – Appeal dismissed – Coroners Act 2008 ss 3, 52, 67, 77, 83, 84 and 87 – Thales Australia Limited v The Coroners Court of Victoria & Ors [2011] VSC 133 – Commissioner of State Revenue v STIC Australia Pty Ltd & Anor [2010] VSC 608.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Ms N Hodgson | Principal In-House Solicitor, Coroners Court of Victoria |
HIS HONOUR:
Background
The appellant, Mrs Stephanie Mortimer, is the sister of Ms Robena Lloyd, who died on 7 August 2009 (the ‘deceased’). The deceased was born on 20 December 1959. The deceased was intellectually disabled and required 24 hour care. Her primary carer was the appellant.
Mr Iain West, in his role as Deputy State Coroner (the ‘Coroner’), published a ‘Finding Into Death Without Inquest’ concerning the death of the deceased on 24 June 2013. The Coroner found that the death of the deceased was due to enterococcus faecalis sepsis (‘sepsis’) and acute renal failure (the ‘Finding’).
By application dated 7 December 2013, the appellant sought to set aside the Finding of the Coroner.[1] The appellant contended the deceased died from neuroleptic malignant syndrome (‘NMS’) due to the introduction of an antipsychotic medication, seroquel, shortly before her death.
[1]Coroners Act2008 (the ‘Act’) s 77.
On 3 June 2014, the Coroner rejected the application to set aside the Finding into the deceased’s death, stating no new facts or circumstances had been established to justify a decision to re-open the inquiry[2] (the ‘Determination’).
[2]Ibid s 77(3).
On 4 July 2014, the appellant filed a Notice of Appeal in this Court to set aside the Determination of the Coroner. On 21 April 2015, Randall AsJ dismissed the appeal, finding the appellant had failed to identify a point of law to justify the appeal and further, that even if an appeal ground could be formulated relying upon a failure to find facts and an attendant failure to afford procedural fairness or natural justice or by virtue of the Coroner failing to procure any necessary reports or tests, such matters do not constitute an arguable case on appeal.[3]
[3]See Mortimer v West(in his role as Deputy State Coroner) [2015] VSC 150, [22], [54], [59], [71] and [74]; Supreme Court (General Civil Procedure) Rules 2005 r 58.39(a).
The appellant filed a Notice of Appeal against the findings and orders of the Associate Justice on 1 May 2015. The original Notice of Appeal was substituted by an Amended Notice of Appeal by order of Daly AsJ on 19 May 2015. The Amended Notice of Appeal is far more detailed than the Notice of Appeal before Randall AsJ and emphasises a number of matters not emphasised before the Associate Justice. Further, evidence of the provision of medical records to the Coroner, evidence not before Randall AsJ, was adduced on this appeal. I will return to the reasons of Randall AsJ in due course.
Grounds of appeal
The Amended Notice of Appeal extends over seven pages. There are a total of 29 paragraphs comprising grounds of appeal. The substance of the appeal is contained under headings ‘Scope of Appeal’ and ‘Grounds of Appeal’. In the Amended Notice of Appeal, the ‘Scope of Appeal’ is set out as follows:
That the Judgement should be overturned because the Coroner did not have all of the medical record [sic] when he made his decision.
That the whole of the decision is therefore an “Error of law on the face of the record”.
That not all the “evidence or weight of evidence had been considered”.
That there has been a failure to take into account a relevant consideration.
That procedural fairness has not been applied.
That to refuse leave will impose a substantial injustice because the character of the appellant is in question.
The appellant is self-represented. I have attempted to summarise from the Amended Notice of Appeal and an Outline of Submissions filed pursuant to the order of Daly AsJ on 19 May 2015, the appellant’s main appeal points below.
The decision of the Associate Justice should be ‘overturned’ -
(a)because the Coroner did not have all relevant materials when he made the Finding and thus the Finding constitutes ‘an error of law on the face of the record’;
(b)as there has been a failure by the Coroner to take into account the notes of the Mental Health Authority Crisis Assessment and Treatment Team (‘CATT’); such notes were not in the medical records when the Coroner received them and thus the Coroner has not taken into account important evidence demonstrating a change of antipsychotic medication to seroquel on Monday 3 August 2009 and its relationship with NMS and thus NMS as the cause of death;[4]
(c)because the medical expert retained by the Coroner (Associate Professor Richard King) failed to make any mention of the change of the antipsychotic medication of the deceased on 3 August 2009 as demonstrated in the medical records[5] or NMS as a cause of death, and further, Associate Professor King stated the deceased had been on cogentin chronically, which is incorrect;
(d)the Coroner’s statement in his Determination that the appellant believed that the deceased died of NMS due to the use of serenace demonstrates a failure by the Coroner to properly consider the submission of the appellant and the aforesaid CATT notes as both referred to the administration of seroquel on 3 August 2009, four days before the deceased’s death. There is no reference in those records to serenace;
(e)a report of the pathologist conducting the autopsy on the deceased contained in the Victorian Institute of Forensic Medicine autopsy report[6] (‘VIFM Autopsy Report’) states that the deceased’s blood, incubated over seven days, demonstrated no growth, thus it cannot be said the deceased had sepsis and therefore the conclusion of the Coroner that the deceased died of sepsis cannot be sustained;
(f)the Act states that a person in care at the time of death should have an inquest (s 67(2)(b)(i)); and
(g)if proper consideration had been given to the medical records at the time of the Determination, it would have been appreciated that the CATT were changing the deceased’s medication, and this change was undertaken without checking her CK (creatine kinase) levels. This was the basis of a submission to the Coroner for re-opening the inquiry. These matters were not referred to by the Coroner: ‘This is a lack of procedural fairness because those submissions were ignored resulting in an error of law on the face of the record’.
[4]See Court Book, 23-24.
[5]Ibid, 23-24.
[6]Ibid, 57.
In oral submissions in support of her appeal, the appellant contended that aspects of the Coroner’s Determination were factually incorrect. The Coroner, in the Determination, incorrectly referred to the appellant believing that the deceased died from NMS ‘due to Serenace’: ‘he didn’t even know that she’d been put on Seroquel’.[7] Further, the Coroner ‘wasn’t aware that [the deceased] was started on a new antipsychotic. And that new antipsychotic could have precipitated the neuroleptic malignant syndrome’.[8]
[7]Transcript, 3.16.
[8]Ibid, 5.27.
The appellant sought to highlight in her oral submissions the contention that the Coroner and the medical expert retained by the Coroner to provide an opinion to the Coroner did not refer to ‘a relevant consideration’, that is, the potential for NMS[9] to have caused the death of the deceased. The appellant alleges that the Coroner (and medical expert) was not in possession of relevant CATT notes referring to treatment by way of seroquel and a prior history of NMS.[10]
[9]Ibid, 7.28 - 7.84.
[10]Ibid, 8.5 - 8.14; 10.4 - 10.22.
Affidavit on behalf of the respondent concerning CATT notes
During the course of submissions I requested Ms N Hodgson, who appeared for the Coroner, to provide me with an affidavit of her instructing solicitor to confirm what she stated during the course of submissions was her instructions that the Coroner was in possession of relevant extracts of the medical records concerning the treatment of the deceased prior to her death, ie, the CATT notes at the time the Coroner made the Determination.[11]
[11]See Supreme Court (General Civil Procedure) Rules 2005 r 77.06.9 as to the admission of evidence on appeal.
An affidavit of Ms Sarah Elizabeth Gebert, principal in-house solicitor of the Coroners Court, sworn 17 September 2015, was subsequently provided to the Court. Ms Gebert deposes that the records of the Maroondah Hospital as they concern the treatment of the deceased were requested by the Coroner on 21 December 2009.[12] Ms Gebert further deposes that for the purposes of this current appeal, the Coroner again requested the records on 27 May 2015. A copy of the relevant records was provided to the Coroners Court following the request of 27 May 2015 and Ms Gebert deposes that her inspection of those records included the CATT notes, including the note of 3 August 2009, and there was nothing to suggest the CATT notes had been withheld or otherwise not included in the documents provided to the Coroner following the request for documents on 21 December 2009.[13] Ms Gebert refers to other information available to the Coroner detailing the change of antipsychotic medication to seroquel.[14] Ms Gebert deposes:[15]
9.The information that the CATT attended with Ms Lloyd at her home on 3 August 2009 and, that her medication had been changed to include Quetiapine (also known as Seroquel), was available to the Respondent [the Coroner] from other records obtained by the Court, without the need to reference the Extracts.
10.Volume 3 contains a document titled ‘Clinical Risk Assessment and Management’, which is dated 3 August 2009. This document includes information that Ms Lloyd was accepted by CATT and was commenced on Seroquel …
11.The Coroners Court also received a letter dated 11 August 2010 from Dr Gavin Lim, Boronia Medical Centre which was addressed to Sue Litchfield, Health & Medical Investigation Team wherein Dr Lim says, ‘On 3 August 2009, I received a phone call from the psychiatry registrar from the CATT (Crisis Assessment and Treatment Team) and he (the psychiatry registrar doctor) had been visiting Robena daily. He stated that he had stopped Largactil and Zyprexa, and started on Quetiapine and to continue Risperdal. The doctor … stated that he would continue to visit Robena on a daily basis’.
[12]This follows the request of the appellant to set aside the Finding of the Coroner. The request was dated 7 December 2013.
[13]See affidavit of Sarah Elizabeth Gebert dated 17 September 2015, [7]-[8].
[14]Ibid, [9]-[11].
[15]Ibid.
In addition to submitting the appellant’s appeal is based on incorrect assertions concerning the provision of relevant information to the Coroner, the respondent submits the appeal raises no issue of law, relies on inadmissible opinion evidence of the appellant and is an attempt to challenge factual findings of the Coroner under the guise of points of law.
Statutory framework
Section 67(1) of the Act provides for the Coroner, among other things, to find, if possible, the identity of the deceased and the cause of their death. Section 67(3) permits the Coroner to ‘comment on any matter connected with the death, including matters relating to public health and safety or the administration of justice’.
Section 77 of the Act makes provision for the re-opening of an investigation. Section 77(1) to (3) provide as follows:
(1)A person may apply to the Coroners Court for an order that some or all of the findings of a coroner after an investigation (whether or not an inquest has been held) should be set aside.
(2) Subject to section (3), the Coroners Court may order that –
(a) some or all of the findings be set aside; and
(b)if the Court considers it appropriate, that the investigation be re-opened.
(3)The Coroners Court may only make an order under subsection (2) if it is satisfied that –
(a) there are new facts and circumstances; and
(b) it is appropriate to re-open the investigation.
Section 83 of the Act provides:
(1)A person with a sufficient interest in an investigation may appeal against the findings of a coroner in respect of a death or fire after an investigation to the Trial Division of the Supreme Court constituted by a single judge.
(2) …
(3)Subject to section 86,[16] an appeal under this section must be made within 6 months after the day on which the determination of the coroner is made.
[16]Section 86 of the Act allows the Supreme Court to grant leave to appeal pursuant to ss 83 and 84 of the Act despite the fact that it has been made out of time if the Court is of the opinion that the failure to institute the appeal within the specified period was due to exceptional circumstances and the Court is satisfied that granting the leave is desirable in the interests of justice.
Section 84 of the Act, relevantly, provides:
(1)If the Coroners Court refuses to re-open an investigation under section 77, a person who requested the Coroners Court to set aside some or all of the findings of the coroner may appeal against the Court’s determination to the Trial Division of the Supreme Court constituted by a single judge.
(2)Subject to section 86, an appeal under this section must be made within 28 days after the refusal by the Coroners Court.
Section 87(1) of the Act provides that, ‘an appeal to the Supreme Court under this Part is an appeal on a question of law’.
The Finding of the Coroner
The Coroner referred to the deceased’s marked intellectual disability and that she had spent a considerable time in institutions until late 2003 when the appellant became her primary carer at home. In March 2009, the Coroner noted that the deceased required extensive medical, surgical and psychiatric involvement across five hospitals.
On 31 July 2009, the deceased presented at the emergency department of the Angliss Hospital with a dilated bladder and symptoms of not having passed urine for two days. Seven hundred mls of urine was drained, and the deceased was treated with antibiotics for a urinary tract infection. The Coroner, in his Finding, then noted:
4.On 5 August 2009, Ms Lloyd re-presented to the Angliss Emergency Department with the concern being that she had not passed urine for a significant time. The treating Emergency Department physician was Dr Colin Pearson who was aware of her extensive medical history. Investigations showed that Ms Lloyd was making urine, although there was limited voiding, and an abdominal X-Ray showed some distention of the large bowel, which was unchanged from previous admissions. Despite blood tests being suggestive of pending renal failure, Ms Lloyd was discharged back into her sister’s care, with advice to Mrs Mortimer to encourage oral fluids and to trial voiding at her premises, supervised by her carers. The plan was for review in the Emergency Department if any issues arose.
5.…
6.On the morning of 7 August 2009, Ms Lloyd collapsed at home and was taken to the Angliss Hospital where she was admitted in an extremely unwell condition. Ms Lloyd was found to be septic and in renal failure and was failing to respond to resuscitation measures. Her condition deteriorated very rapidly and palliative care was initiated. Ms Lloyd subsequently died with a diagnosis of septic shock secondary to urinary tract infection.
7.On 12 August 2009, a post mortem examination was performed by Dr Melissa Baker, Forensic Pathologist with the Victorian Institute of Forensic Medicine. Dr Baker performed an external and internal examination of Ms Lloyd at the mortuary, reviewed the circumstances of her death, the medical deposition and clinical notes and the post mortem CT scan, and provided a written report of her findings. Examination of the colon and rectum found marked distention of the descending colon, but no evidence of obstruction. Dr Baker reported that in all the circumstances, a reasonable cause of death appeared to be enterococcus faecalis sepsis and acute renal failure. Dr Baker reported that enterococcus faecalis is a bacterium which is a common cause of urinary tract infections and was in this case, isolated in urine as well as from a swab from the right renal pelvis. Toxicological analysis of body fluid revealed the presence of diazepam, olanzapine, risperidone and carbamazepine at concentrations consistent with therapeutic use.
8.An investigation into the circumstances surrounding Ms Lloyd’s death has been undertaken with statements obtained from Ms Lloyd’s general practitioner at the Boronia Medical Centre; the locum doctor who attended her on 6 August; and numerous care providers, both medical and nursing, at Angliss Hospital. In addition, relevant medical records were obtained and letters from Mrs Mortimer were received, outlining her concerns regarding care and management. A number of issues raised by Mrs Mortimer, especially relating to delivery of electroconvulsive therapy, did not relate to the cause of death and hence, cannot be pursued in this investigation. In addition, issues that are remote to the death have not been investigated.
9.The investigative material was reviewed by the Court’s Health and Medical Investigation Team (HMIT) …
10.The HMIT identified issues regarding Ms Lloyd’s admission to the Angliss Hospital on 31 July and 5 August and her discharge without establishing a definite cause for the urinary retention. In regard to the presentation on 31 July, it was believed that a further period of observation would have been reasonable, in order to assess urine output and her ability to pass urine. The next attendance when concerns were raised about urine output is also an issue, because the low urine output was not established, observed or reviewed. Ms Lloyd’s sister was simply requested to encourage more fluids …
The Coroner then reviewed the explanation of Dr Pearson as to the reasons behind the discharge of the deceased from hospital on 5 August 2009. One of the reasons provided by Dr Pearson as reported by the Coroner was as follows:
10.a.
iii. The urine culture from 31 July had not grown any bacteria, therefore retesting of the urine to assess response to the prescribed antibiotic was not indicated …
The Coroner stated the totality of the response received from the doctor in the view of the HMIT ‘provided a reasonable explanation of events, confirming that medical management on this occasion included a review of urine output, blood tests, urine results and the rationale for not treating with further antibiotics’.
It was the recommendation of the HMIT that the investigation be closed, however, the Coroner obtained an expert opinion from a consultant physician, Associate Professor King, Program Director Medicine, Southern Health:
11.… Dr King observed that the relatively unexplained bladder dilation could have been caused by urinary tract infection, or caused by one of Ms Lloyd’s medications, Cogentin, which in his opinion, she had been on chronically. (Mrs Mortimer however, disagrees with the possibility of Cogentin being causally connected, as she states it was used only occasionally). Whilst Associate Professor King believed that Ms Lloyd should have been admitted and her biochemical and fluid status normalised, he noted the importance of hospitalising such a patient and checking her urine for infection. Nevertheless, it cannot be concluded that checking her urine for infection would have prevented her re-presenting in septic shock and the tragic outcome …
The Determination of the Coroner
As stated above, the appellant made application to set aside the Finding of the Coroner. The Coroner was not satisfied that new facts or circumstances had been established and, as a consequence, it was not appropriate to re-open the investigation under s 77(3) of the Act. The Coroner summarised his previous findings and then stated in the Determination:
5.Mrs Mortimer was not satisfied with the above finding and requested the matter be reviewed, as she believed that Ms Lloyd died from Neuroleptic Malignant Syndrome (NMS) due to Serenace.
6.I have considered the two questions that arise. First whether there are “new facts and circumstances” and second whether it is “appropriate” to reopen the investigation. The new facts or circumstances must be such that a previously accepted fact, material to findings regarding the identity of the deceased, the cause of death and/or other pertinent circumstances surrounding the death under investigation, is so altered that the relevant finding may be unsustainable. In this instance, based on Mrs Mortimer’s concerns, the matter was again referred to HMIT for review. On 2 April 2014, HMIT concluded that Ms Lloyd’s cause of death remained enterosoccus [sic] faecalis sepsis and acute renal failure and not NMS, thus no new facts and circumstances were established. I am satisfied that is the case here. The second limb therefore, does not require consideration.
Question of law
This appeal is confined to an appeal on a question of law, not fact.[17] A finding by the Coroner that is not supported by evidence is not necessarily to be elevated to a question of law. Beach J, in Thales Australia Limited v The Coroners Court of Victoria & Ors,[18] described the difference between a question of law and a question of fact, noting an incorrect finding of fact does not necessarily involve a question of law:
Thales’ submissions on the issue of electrocution involve a different analysis of the evidence and factual matters than that performed by the Coroner. Whilst it might be said that the analysis performed by Thales is not wholly without substance, it is only that – an analysis of matters of fact. Further, it is to be remembered that a question of law is not involved in a decision simply because a tribunal or court makes one or more findings of fact that are not supported by evidence, nor is it sufficient that the reasoning whereby a conclusion of fact is reached is demonstrably unsound.[19] Like the view taken by Phillips J in Nikolic v Schultz,[20] the present proceedings seem to me to be a case where Thales has laboured to convert what was essentially a question of fact into a question of law. To use the words of Phillips J:[21]
“Such attempts have not gone unnoticed by the courts which have tended to deprecate the practice of ‘attempting to magnify or inflate questions of fact into questions of law and of trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by’ some other body …”.
[17]The Act s 87(1).
[18][2011] VSC 133, [60].
[19]See Transport Accident Commission v O’Reilly[1999] 2 VR 436 at 460, [58] (per Callaway JA).
[20]Unreported Supreme Court of Victoria delivered 22 October 1991.
[21]Ibid.
In Commissioner of State Revenue v STIC Australia Pty Ltd & Anor,[22] Davies J stated:
The requirement that the leave of the court be obtained in order for a party to appeal a decision of the Tribunal also evidences the legislature’s intention that the question of law as framed must be one that is supported by the proposed grounds of appeal. In other words, the proposed notice of appeal must disclose that the Court’s jurisdiction to hear the appeal from VCAT is enlivened by the notice of appeal. The leave requirement is a safeguard that the appeal is on a pure question of law and that the grounds supporting the question of law articulated for determination by the Court do found the subject matter of the appeal. The question of law is framed by the grounds. Where the grounds do no more than indicate that the subject matter of the proposed appeal invites reconsideration of the merits of the decision, the jurisdiction of the Court is not enlivened, even though the question of law identified may be expressed in judicial review terms. The proposed notice of appeal must identify that the issues sought to be agitated on the appeal raise a question of law. If the question of law, properly analysed, is not a question of law, the form of its expression does not turn it into a question of law.
[22][2010] VSC 608, [10].
I make allowance for the appellant being a self-represented litigant and some complexity in this area of the law. Although the Amended Notice of Appeal refers to the Coroner’s Findings and Determination being ‘error of law on the face of the record’ causing a ‘miscarriage of justice’, it really appears that the appellant in the appeal before me is not only relying on error of law on the face of the record but also relying on matters that go to procedural fairness or natural justice as was identified by Randall AsJ.[23] So it is contended by the appellant the Coroner failed to consider her submissions, failed to consider relevant materials, failed to act fairly:[24]
(a)the Coroner did not obtain relevant evidence or failed to have regard to relevant evidence concerning the treatment of the deceased, particularly as that evidence concerns a change of the deceased’s antipsychotic medication to seroquel on 3 August 2009;
(b)the potential for the change in antipsychotic medication to cause NMS; and
(c)the blood culture finding concerning the deceased ‘no growth after seven days’ incubation’ was not properly taken into account in determining the presence of sepsis.
[23]Mortimer v West (in his role as Deputy State Coroner) [2015] VSC 150, [34].
[24]See the Act s 9 which provides that the Coroner must conduct investigations in a fair and efficient manner.
So for the purposes of this appeal I will consider the substantive findings of the Coroner challenged by the appellant against the material relied upon and in possession of the Coroner at the time of the Finding and Determination.
Did the Coroner have what the appellant contends are relevant materials?
An important submission for the appellant is that the Coroner did not have relevant information, that is the CATT notes: ‘The notes were not included in the medical record when the Coroner got them’ – ‘This has led to a mistake in the proceedings’. As set out above, the appellant points to the CATT note of 3 August 2009[25] which indicates the deceased was commenced on a new antipsychotic medication, quetiapine or seroquel, on that day. The CATT notes of 3 August also record that the deceased had previously suffered from NMS.
[25]Court Book, 24.
The submission of the appellant is that the change to this medication may have caused NMS and the Coroner, because he was unaware of the change in medication, because he did not have these notes, did not consider NMS as a cause of death although it is not supported by evidence. For present purposes, I will accept the appellant’s contention that a change in antipsychotic medication may cause NMS.
I have set out paragraphs of the affidavit of Ms Gebert, solicitor for the respondent, earlier in these reasons. In that affidavit, Ms Gebert points to a letter dated 11 August 2010 from Dr Gavin Lim of the Boronia Medical Centre to Sue Litchfield, a member of the HMIT of the Coroners Court of Victoria, where Dr Lim states: ‘On 3 August 2009, I received a phone call from the psychiatry registrar from the CATT (Crisis Assessment and Treatment Team) and he had been informed that the deceased had been commenced on quetiapine on that day’.[26] This letter was in possession of the Coroner prior to the Coroner making the Finding. The contention of the appellant that the Coroner was unaware of the change in antipsychotic medication on 3 August 2009 cannot be sustained. The matter had been directly raised with the Coroner’s HMIT by the deceased’s general practitioner.
[26]See affidavit of Sarah Elizabeth Gebert dated 17 September 2015, [11].
As earlier referred to in these reasons the affidavit of Ms Gebert demonstrates to my satisfaction that the CATT notes had been provided to the Coroner with the Maroondah Hospital records upon the Coroner’s request made 21 December 2009.[27] It is apparent that prior to making the Finding, the Coroner was in possession of the CATT note of 3 August 2009 referencing the change in the deceased’s medication to seroquel and the previous history of NMS.
[27]Ibid, [6]-[8].
Finally, there is a further document contained in the Maroondah Hospital records which also notes the change in antipsychotic medication to seroquel. This is a document titled ‘Clinical Risk Assessment and Management’. This document,[28] made on 3 August 2009, records the deceased commenced on seroquel and cogentin.
[28]See affidavit of Sarah Elizabeth Gebert dated 17 September 2015, Exhibit SEG4.
The appellant’s contention that the Coroner failed to consider relevant information is rejected. In the Finding, the Coroner specifically refers to his consideration of medical and hospital records, which included the CATT notes and other documents confirming the change in antipsychotic medication. The Coroner also referred to his considerations of letters of concern regarding the care and management the deceased received from the appellant. I also have regard to these materials being specifically considered by the Coroner’s HMIT.
Further, the application by the appellant to set aside the Finding of the Coroner specifically raised the issue of NMS. The Coroner stated:[29]
Mrs Mortimer was not satisfied with the above finding and requested the matter be reviewed, as she believed Ms Lloyd died from Neuroleptic Malignant Syndrome (NMS) due to Serenace.
[29]Determination, Court Book, 12.
In the Determination, the Coroner stated:[30]
In this instance, based on Mrs Mortimer’s concerns, the matter was again referred to HMIT for review. On 2 April 2014, HMIT concluded that Ms Lloyd’s cause of death remained enterosoccus [sic] faecalis sepsis and acute renal failure and not NMS, thus no new facts and circumstances were established.
[30]Ibid.
The appellant points to the Coroner, in the Determination, referring to her contention as being the deceased developed NMS due to serenace. The appellant contends that she did not submit to the Coroner the deceased was prescribed serenace and that there is no evidence of the deceased being administered serenace; consequently, the appellant submits, there has been a failure by the Coroner to properly consider her submission. I do not agree. Certainly, there is no evidence of the deceased being administered serenace in August 2009. It is apparent the Coroner’s reference to serenace is mistaken.[31] The mistake of the Coroner needs to be considered in context; all medical records refer to the deceased being administered seroquel as of 3 August 2009 and the HMIT considered the appellant’s specific concerns relating to the change in medication to seroquel and any association with NMS. I consider it inconceivable, based on the materials available to the HMIT, that in some way that team confused serenace with seroquel.
[31]It is to be noted that in her affidavit dated 4 July 2014 filed in support of the appeal before the Associate Justice, the appellant deposes that the deceased had a known allergy to serenace.
The Coroner has not failed to consider relevant evidence or the submissions of the appellant. Specifically, the Coroner considered relevant evidence that there was a change in the deceased’s antipsychotic medication on 3 August and the submission of the appellant that such change of medication was responsible for NMS. The rejection of the appellant’s analysis of the evidence does not raise a question of law.
The issue of sepsis
The appellant contends that the Coroner’s finding that the deceased’s death was due to sepsis and renal failure cannot be sustained because the blood culture of leg blood sampled at the time of the autopsy resulted in a finding ‘no growth after seven days’ incubation’.[32]
[32]See VIFM Autopsy Report, Exhibit 5 to affidavit of Stephanie Mortimer sworn 11 August 2014.
As I understand the submission of the appellant, it is put that a question of law is raised because of the Coroner’s failure to consider the finding of absence of blood infection as a contra-indicator for sepsis.
The appellant’s assertion or opinion on this issue, even though she has a nursing background, is not evidence.
The VIFM Autopsy Report sets out toxicological analysis of the leg blood sampled at the time of autopsy. As stated above, microbiology results of blood culture indicated no growth after seven days’ incubation – no infection of the blood. However, other results are important:
Right renal pelvis swab – enterococcus faecalis +++ isolated.
Urine – enterococcus faecalis +++ isolated.[33]
[33]Court Book, 57.2.
The Coroner, in his Finding, referred to the results of the post-mortem examination and the report of Forensic Pathologist, Dr Baker. The Coroner noted:
Dr Baker performed an external and internal examination of Ms Lloyd at the mortuary, reviewed the circumstances of her death, the medical deposition and clinical notes and the post mortem CT scan, and provided a written report of her findings … Dr Baker reported that in all the circumstances, a reasonable cause of death appeared to be enterococcus faecalis sepsis and acute renal failure. Dr Baker reported that enterococcus faecalis is a bacterium which is a common cause of urinary tract infections and was in this case, isolated in urine as well as from a swab from the right renal pelvis.
The Coroner relied on the Forensic Pathologist’s expert opinion that a ‘reasonable cause of death appeared to be enterococcus faecalis sepsis and acute renal failure’. Dr Baker’s opinion was at least in part based on findings of enterococcus faecalis, which she fully appreciated was ‘isolated’ in urine and in the right renal pelvis swab. It is apparent Dr Baker, as author of the pathological report, was fully aware that blood culture demonstrated no growth after seven days’ incubation. The Coroner was entitled to accept the expert opinion of Dr Baker. The Coroner referred to the deceased’s significant renal problems as recorded in hospital notes on 31 July and 5 August.
The appellant propounds a different analysis of medical records and toxicological results, and obviously submits a different opinion to that of Dr Baker, which was accepted by the Coroner. This does not raise any point of law; the appellant propounds a different analysis of fact which she supports by her own inadmissible opinion evidence. That said, I would reject the appellant’s analysis that the deceased went into renal failure shortly after being prescribed seroquel.[34] As the findings demonstrate, the deceased presented at the Angliss Hospital emergency department on 31 July 2009, having not passed urine for two days. Seven hundred mls of urine was drained by catheter.[35] This presentation was three days before the prescription of seroquel. The deceased presented with the same symptoms on 5 August 2009. The symptoms of renal failure which had preceded the prescription of seroquel had not abated.
[34]See affidavit of Stephanie Mortimer dated 4 July 2014, [5].
[35]Finding, Court Book, 15 [3].
Further, upon the application of the appellant to re-open the investigation, the Coroner again referred these matters to the HMIT for review. The HMIT, after further review, ‘concluded that Ms Lloyd’s cause of death remained enterosoccus [sic] faecalis sepsis and acute renal failure and not NMS’.[36] As noted above, the contentions of the appellant on this issue were specifically considered by the Coroner.
[36]Determination, Court Book, 12 [6].
Other matters
The Coroner obtained a report from Associate Professor King, a general physician. The Coroner, in the Finding, referred to the observations of Dr King:[37]
Dr King observed that the relatively unexplained bladder dilation could have been caused by urinary tract infection, or caused by one of Ms Lloyd’s medications, Cogentin, which in his opinion, she had been on chronically. (Mrs Mortimer however, disagrees with the possibility of Cogentin being causally connected, as she states it was only used occasionally). Whilst Associate Professor King believed that Ms Lloyd should have been admitted and her biochemical and fluid status normalised [on 5 August 2009], he noted the problems of hospitalising such a patient and checking her urine for infection. Nevertheless, it cannot be concluded that checking her urine for infection would have prevented her re-presenting in septic shock and the tragic outcome.
[37]Finding, Court Book, 19 [11].
It is apparent that Associate Professor King also on his review has accepted a cause of the deceased’s death was septic shock. The appellant contends in the Amended Notice of Appeal the Finding of the Coroner should be overturned because Dr King did not mention the change of antipsychotic medication in his medical opinion. There may be a variety of reasons for this, one being that Dr King did not believe the change in medication was of any relevance. That Dr King did not refer to the change of medication is not a ground at law for overturning the Finding of the Coroner. Further, if Dr King be mistaken in describing the deceased as being on cogentin ‘chronically’ immediately prior to her death, the relevance of the mistake is not readily apparent. If it is a mistake, it does not give rise to an issue of law or provide any basis in the circumstances for setting aside the Determination of the Coroner.[38]
[38]See Thales Australia Limited v The Coroners Court of Victoria & Ors [2011] VSC 133, [26] (Beach J).
Contrary to the assertion of the appellant in the Amended Notice of Appeal, the Coroner was not required to conduct an inquest into the death of the deceased. A Coroner must hold an inquest if, immediately before death, a person was ‘placed in custody or care’.[39] A person in care of the Mental Health Authority is not ‘a person placed in custody or care’.[40] There was no requirement, in the circumstances, for the Coroner to conduct an inquest.
[39]The Act s 52(2)(b).
[40]Ibid s 3 (‘Definitions’).
The appellant contends that Dr Manish Agaskar, a locum doctor, has been found to be untruthful and the Coroner should have stated this in his Finding and the evidence that the appellant did not adhere on occasions to the medical plan of management of the deceased as commented by the Coroner in his Finding is non-existent. I reject the appellant’s submissions for the following reasons:
(i)Dr Agaskar attended the deceased late on 6 August 2009. The appellant disputes the version of a statement provided by Dr Agaskar to the Coroner. The Coroner referred to the appellant disputing the account of Dr Agaskar’s attendance.[41] The issue raised by the appellant is not a point of law and is not deserving of any further attention.
(ii)The appellant takes objection to the comments made by the Coroner in his reasons concerning administration of medication to the deceased by the appellant. The comment was made in the context of the appellant’s criticism of the medical management of the deceased.[42] The Coroner is permitted to make comments ‘on any matter connected with the death, including matters relating to public health and safety or the administration of justice’.[43] The comment of the Coroner is permissible and is based on ‘the investigation’ conducted by the Coroner.
[41]Finding, Court Book, 16 [5].
[42]Ibid, 19 [1].
[43]The Act s 67(3).
Conclusion
I have reached the same conclusion as the Associate Justice. The appellant has failed to identify a point of law to support her appeal. I agree with the comment of the Associate Justice to the effect that even if an appeal ground could be formulated by relying upon a failure to find facts, any such failures do not constitute an arguable case on appeal.[44]
[44]Mortimer v West (in his role as Deputy State Coroner) [2015] VSC 150, [74] (Randall AsJ).
The appeal is dismissed.
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