Rosenbaum v West
[2014] VSC 583
•15 August 2014 (revised 20 October 2014)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT
SCI 2014 04249
| NORMAN ROSENBAUM | Appellant |
| v | |
| IAIN WEST (DEPUTY STATE CORONER) | Respondent |
---
JUDGE: | FERGUSON JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2014 | |
DATE OF RULING: | 15 August 2014 (revised 20 October 2014) | |
CASE MAY BE CITED AS: | Rosenbaum v West | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 583 | |
---
CORONERS COURT — Appeal on a question of law against Coroner’s direction to perform autopsy — No consideration as to whether appropriate to direct that there be an autopsy — Appeal allowed — Determination of whether necessary and appropriate to direct that there be an autopsy — No cause of death established — Death at relatively young age (56), did not attend doctor so no past medical history, morbidly obese, post mortem CT scans did not disclose cause of death — Deceased and family practising Orthodox Jews — Faith prohibits autopsy intervention and requires quick committal — No evidence of suspicious circumstances — No evidence that public need protection because of circumstances of death — No autopsy to be performed — Coroners Act 2008 (Vic) ss 4, 8, 15, 25.
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R van de Wiel one of Her Majesty’s Counsel | Charlesworth Josem Partners Pty Ltd |
| For the Respondent | Mr S Reid | Jessica Wilby, Principal In‑House Solicitor, Coroners Court of Victoria |
HER HONOUR:
Norman Rosenbaum is a practising Orthodox Jew. So too was his late wife, Ettie. They have three adult children who are of the same faith. Mrs Rosenbaum passed away at the age of 56.
The circumstances of her death, so far as they are known, are as follows. Mrs Rosenbaum spoke to their house keeper at 4.40 pm on Sunday 10 August 2014. The house keeper found Mrs Rosenbaum 20 minutes later in their upstairs bedroom slumped over a computer. The ambulance service attended and commenced CPR. Mrs Rosenbaum passed away in the ambulance on the way to the Alfred Hospital.
Yesterday, the Deputy Coroner directed that an autopsy be performed on Mrs Rosenbaum. Mr Rosenbaum, as his wife’s senior next of kin,[1] has appealed from that direction. The appeal is brought under the Coroners Act2008 (Vic).[2]
[1]Coroners Act 2008 (Vic) s 3(a) definition of ‘senior next of kin’ means the person’s spouse if they had one immediately before death.
[2]Section 79.
In my opinion, for the reasons which follow, the appeal should be upheld. No autopsy should be conducted and Mrs Rosenbaum’s body should be released to her family as expeditiously as that can be done.
The purpose of an autopsy is to assist the Coroner to perform his functions in respect to the death.[3] The Coroner must direct a medical investigator to perform an autopsy if the Coroner believes that the autopsy is necessary for the investigation of the death and it is appropriate to give the direction.[4] The Coroner is required to take reasonable steps to notify the deceased’s senior next of kin if he makes such a direction.[5] The senior next of kin may then ask the Coroner to reconsider the direction.[6] If the Coroner remains of the view that the autopsy is necessary and appropriate, then he must give the senior next of kin notice of his conclusion.[7] There are exceptions to the requirement to give notice, but they are not relevant in this case.[8] In the ordinary course, the direction takes effect 48 hours after the required notice has been given.[9] Before the direction takes effect, the senior next of kin may appeal to a single judge of this Court.[10]
[3]Coroners Act s 25(1).
[4]Coroners Act s 25(2).
[5]Coroners Act s 26(1).
[6]Coroners Act s 26(2).
[7]Coroners Act s 26(3).
[8]Coroners Act s 26(5).
[9]Coroners Act s 26(4)(a) (where notice is given of the initial direction under s 26(1)), s 26(4)(b) (where notice is given of the direction where the senior next of kin has requested that the Coroner reconsider the initial direction under s 26(2), (3)).
[10]Coroners Act s 79(1), (2).
That is what happened in this case. The appeal is on a question of law.[11]
[11]Coroners Act s 87(1).
Here, in reconsidering the initial direction, the Deputy Coroner took into account Mr Rosenbaum’s specific concerns which he described as:
·Jewish religion prohibits autopsy intervention and requires quick committal;
·Mrs Rosenbaum did not wish an autopsy in the event of her death;
·Mr Rosenbaum is comfortable not having a specific cause of death.
The Deputy Coroner determined that an autopsy is necessary for the following reasons:
·Mrs Rosenbaum died at a relatively young age;
·She was not known to attend the doctor hence there is no relevant past medical history;
·Although the post mortem CT scan shows some increased lung markings, this is a common finding and is often an artefact due to lividity and is therefore a non‑specific finding;
·While Mrs Rosenbaum is morbidly obese, which increases her risk of heart disease, there is no calcified coronary artery disease seen on post mortem CT;
·The Coroners Act mandates, if possible, finding a cause of death;
·No cause of death is evident in this case.
The written direction of the Deputy Coroner does not disclose that the Deputy Coroner took into account whether it was not only necessary but also appropriate for the autopsy to be undertaken.
As I have said, the appeal is on a question of law. The Deputy Coroner took no position as to whether there was an error of law.
The Notice of Appeal listed a number of grounds. Given the urgency of the matter, it is sufficient to refer to only one of them; that is that in making the direction, the Deputy Coroner failed to apply the correct statutory test under s 25(2) of the Coroners Act in that the Deputy Coroner did not have regard to the consideration of whether it was appropriate to give the autopsy direction. In my view, that ground of appeal should be upheld.[12] The legislation requires the Coroner to give consideration both to the necessity for an autopsy and to its appropriateness. The mere fact that an autopsy is necessary to determine the cause of death does not mean that it will always be appropriate to undertake one, although in many cases it may well be.
[12]Traynor v Spooner [2012] VSC 651.
Having reached the conclusion that there is an error of law, the matter is not remitted to the Deputy Coroner.[13] Rather, the Court must, as appropriate, determine whether an autopsy should be performed or determine to whom a body should be released.[14] In addition, the Court may make any other order that it thinks appropriate in respect of those matters.[15]
[13]Coroners Act s 88(1).
[14]Coroners Act s 88(1)(a), (c).
[15]Coroners Act s 88(2).
The Deputy Coroner assisted the Court with submissions as to why it would be open to find that it is appropriate to direct that there be an autopsy. In summary, counsel for the Deputy Coroner submitted that in addition to the matters set out in s 8 of the Coroners Act, about which I will say more in a moment, the Court should have regard to the regulatory framework which mandates that the Coroner investigate an unexpected death and requires the Coroner to find the cause of death if that is possible. In this case, counsel submitted that not only can no cause of death be established, there is not even a likely cause of death that is known to the Deputy Coroner. In this regard, counsel sought to distinguish this case from others such as those involving death of a child likely to have been caused by sudden infant death syndrome where the Court had refused to order an autopsy.[16]
[16]Green v Johnstone [1995] 2 VR 176.
In part, s 8 of the Coroners Act provides:
When exercising a function under this Act, a person should have regard, as far as possible in the circumstances, to the following:
(a)that the death of a family member, friend or community member is distressing and distressed persons may require referral for professional support or other support;
(b)that unnecessarily lengthy or protracted coronial investigations may exacerbate the distress of family, friends and others affected by the death;
(c)that different cultures have different beliefs and practices surrounding death that should, where appropriate, be respected.
The Coroners Act does impose an obligation on the Coroner to investigate an unexpected death.[17] Counsel for the Deputy Coroner submitted that it was open to the Court to conclude that Mrs Rosenbaum’s death was unexpected. In addition, counsel noted that a Coroner investigating a death must find, if possible, the cause of death.[18] Counsel submitted that in circumstances where there was no medical history for Mrs Rosenbaum, she was not elderly and there was no apparent cause of death, the Court was entitled to conclude that an autopsy was necessary and appropriate.
[17]Coroners Act ss 4 and 15.
[18]Coroners Act s 67(1)(b).
The answer to whether an autopsy should be undertaken results from a balancing of considerations. Even if one does assume that Mrs Rosenbaum’s death was unexpected, it seems to me that the requirement to investigate and to find the cause of death must be read in the context of s 8 and the legislation as a whole. In my opinion, the requirement to investigate does not mandate that an autopsy must always be carried out as part of the investigation. Rather, the necessity and appropriateness in the circumstances of directing that an autopsy be conducted must also be considered.
I will turn to that now.
From the evidence before me, it seems that if a cause of death is to be established, an autopsy would be required. However, even if the autopsy is conducted, there is no evidence before me that the cause of death would be established. Moreover, although the police attended the Rosenbaum’s home to investigate Mrs Rosenbaum’s death, there is no evidence that there are suspicious circumstances surrounding the death, nor that the police propose to take any action in respect of it. There is no evidence that an autopsy would assist in the development of medical research to prevent other deaths occurring. Nor is there evidence of any person having caused Mrs Rosenbaum’s death which might have given rise to the need for further investigation in an endeavour to protect the community from that person. Nor is there evidence that Mrs Rosenbaum died from some type of infectious disease that might warrant investigation to protect others. Taking all of those matters into account, there is simply no public interest in the conduct of an autopsy.
On the other hand, the faith of the Rosenbaum family strongly militates against the conduct of an autopsy. Mrs Rosenbaum did not want such a procedure. Her husband does not want it. He accepts that he will not know definitively why his wife has been taken from him too early in life. He and his children are not only having to deal with the loss of their loved wife and mother, but also with the distress and anxiety of the prospect of an autopsy and further delay in the burial. I accept that the religious beliefs of a deceased and their family will not always outweigh other matters to be taken into account. But here, where as I have said there is no public interest in an autopsy being conducted, the beliefs of the Rosenbaum family should be respected.
In my opinion, the circumstances of this case do not make it either necessary or appropriate for an autopsy to be conducted. Consequently, Mrs Rosenbaum’s body should be released to her husband at the earliest opportunity.
I will order that:
(a) the appeal be allowed;
(b) the direction of the Deputy State Coroner dated 13 August 2014 that an autopsy be performed on the body of Ettie Rosenbaum be set aside;
(c) no autopsy be performed on the body of Ettie Rosenbaum; and
(d) the respondent release the body of Ettie Rosenbaum to the appellant forthwith.
(Discussion re orders.)
The final order will be the Deputy State Coroner pay Mr Rosenbaum’s costs fixed in the sum of $1500.
‑ ‑ ‑