Shields v The State Coroner of Western Australia
[2021] WASC 6
•12 JANUARY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SHIELDS -v- THE STATE CORONER OF WESTERN AUSTRALIA [2021] WASC 6
CORAM: HILL J
HEARD: 6 JANUARY 2021
DELIVERED : 6 JANUARY 2021
PUBLISHED : 12 JANUARY 2021
FILE NO/S: CIV 2269 of 2020
BETWEEN: ROSLYN SHIELDS
Plaintiff
AND
THE STATE CORONER OF WESTERN AUSTRALIA
Defendant
Catchwords:
Coroners Act 1996 (WA) - Application for an order that post mortem examination be performed - Where the State Coroner found that death not a reportable death - Whether death was a reportable death - Turns on own facts
Legislation:
Coroners Act 1996 (WA), s 3, s 19, s 36
Result:
Motion dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| Defendant | : | A Davies |
Solicitors:
| Plaintiff | : | In Person |
| Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Bell v The State Coroner [2017] WASC 97
HILL J:
(This decision was delivered extemporaneously on 6 January 2021 and has been edited from the transcript).
By originating motion, the plaintiff seeks an order, pursuant to s 36(3) of the Coroners Act 1996 (WA) (the Act), for an autopsy of her mother, Hazel Shields, who died on 2 November 2020, to determine the cause of her death.
The matter has come before me on an urgent basis on 6 January 2021.
The plaintiff is the only daughter of Hazel Shields (the deceased). The plaintiff filed two affidavits in support of the application: one filed 29 December 2020, and the second on 5 January 2021.
The defendant filed an affidavit of the Principal Registrar of the State Coroner, as well as written submissions which outline the background to the deceased's medical treatment leading up to her death in November 2020. The defendant, quite appropriately, makes no submissions on the merits of the application and whether it should be granted or refused.
Factual background
The deceased was born on 31 January 1925. At the time of her death, she was 95 years old, and was a patient at Rockingham General Hospital.[1]
[1] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC1', 'REC3'.
The deceased was first admitted to hospital in Western Australia in August 2020 at the Kununurra District Hospital.[2] Immediately prior to this, the deceased and the plaintiff had been in the Northern Territory.
[2] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC1'.
On 7 September 2020, the deceased was transferred from Kununurra to Rockingham General Hospital. The medical records disclose that the transfer was for rehabilitation after the deceased suffered a stroke.[3] I note that the plaintiff denies that the deceased at any stage had a stroke.[4]
[3] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC1'.
[4] Affidavit of Roslyn Shields filed 5 January 2021 [11].
On 5 October 2020, the deceased was transferred to the Murray District Hospital. As a result of the plaintiff's request that the deceased be transferred back to Rockingham, on 30 October 2020, she was readmitted to the Rockingham General Hospital.[5]
[5] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC1'.
On 2 November 2020, the deceased died. Dr Krishneswaran certified the death of the deceased as occurring at 1.05 pm on that date.[6] The medical certificate that has been issued states that the cause of death was 'stroke and aspiration pneumonia'.[7]
[6] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC1'.
[7] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC3'.
On 18 November 2020, the plaintiff sent a letter to the Coroner's Court requesting that an autopsy be performed on the deceased.[8] The Principal Registrar of the Coroner's Court of Western Australia sought medical advice and referred the matter to the State Coroner. The State Coroner requested medical advice, and ultimately formed the view that the deceased's death was not reportable.
[8] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC4'.
On 4 December 2020, the Principal Registrar of the Coroner's Court wrote to the plaintiff in the following terms: [9]
The matters raised in your letter have been carefully considered and the State Coroner has taken medical information into account. It has been determined that your mother's death is not reportable under the Coroners Act 1996 (WA). As a result, the State Coroner has no jurisdiction to inquire into your mother's death. That means that the State Coroner is unable to seek an investigation into her death, nor order that an autopsy be performed.
[9] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC5'.
Statutory regime
Under s 36(1) of the Act, if a coroner has jurisdiction to investigate the death, any person may ask the Coroner to direct that a post‑mortem examination be performed on the body. The Coroner's jurisdiction is set out in s 19(1) of the Act, and gives the Coroner jurisdiction to investigate a death if it appears to the Coroner that the death is or may be a reportable death.
The term 'reportable death' is defined in s 3 of the Act to mean a Western Australian death:
(a)that appears to have be unexpected, unnatural or violent or to have resulted directly or indirectly, from injury; or
(b)that occurs during an anaesthetic; or
(c)that occurs as a result of an anaesthetic and is not due to natural causes; or
(d)that occurs in prescribed circumstances; or
(e)of a person who immediately before death was a person held in care; or
(f)that appears to have been caused or contributed to while the person was in care; or
(g)that appears to have been caused or contributed to by any action of a member of the Police Force; or
(h)of a person whose identity is unknown; or
(i)that occurs in Western Australia where the cause of death has not been certified under section 44 of the Births, Deaths and Marriages Registration Act 1998; or
(j)that occurred outside Western Australia where the cause of death is not certified to by a person who, under the law enforced in that place, is a legally qualified medical practitioner;
Under s 36(3) of the Act, a person receiving notice of a refusal to direct that a post‑mortem examination be performed may apply to the Supreme Court within two clear working days after receiving notice of a refusal for an order that a post-mortem examination be performed. This time period can be extended under s 36(3a) of the Act where the court is satisfied that exceptional circumstances exist so that it is necessary or desirable in the interests of justice to grant the extension.
Under s 36(4) of the Act, if the Supreme Court is satisfied that it is desirable in all the circumstances, it may make an order directing the State Coroner to require a pathologist or a doctor to perform a post‑mortem examination, and prohibiting burial, cremation, or other disposal of the body until the post-mortem examination has been conducted.
Legal principles
In Bell v The State Coroner,[10] Le Miere J addressed the power of the Supreme Court of Western Australia to order that a post-mortem be performed. Specifically, his Honour stated that:[11]
The power of the court to make an order directing the State Coroner to require a post-mortem examination is wide. It may be exercised when the court is satisfied that it is desirable in all the circumstances. The court would not exercise the power if it is not satisfied that the Coroner has jurisdiction to direct a post-mortem examination. The Coroner does not have jurisdiction to direct that a post-mortem examination be performed unless the Coroner has jurisdiction to investigate the death. A Coroner has jurisdiction to investigate a death if it appears to the Coroner that the death is or may be a reportable death. A Coroner's decision that a death is not a reportable death might be subject to judicial review. However, a court would not order a Coroner to direct a post-mortem examination to be performed unless the court is satisfied is or may be a reportable death.
[10] Bell v The State Coroner [2017] WASC 97.
[11] Bell v The State Coroner [10].
Disposition
Dealing first with the question as to whether an extension of time should be granted to the applicant, the applicant's evidence is that she was not aware she could make an application to this court, as the letter from the Coroner did not set this out. For this reason, she did not file the application within the time required under the Act.[12]
[12] Affidavit of Roslyn Shields filed 5 January 2021 [1].
In determining whether I should grant the extension of time, I consider that it is necessary to review the merits of the application. If the application has merit, it is my view that it would be in the interests of justice in the circumstances of this case to grant the extension of time.
Turning then to the merits of the application, the applicant says that the relevant paragraphs of the definition of reportable death are pars (e) and (f), as the deceased had been evaluated by the State Administrative Tribunal as having a mental disability and was under the control of a guardian.[13]
[13] Affidavit of Roslyn Shields filed 5 January 2021 [2] – [3].
A person held in care is defined in s 3 of the Act as meaning, inter alia,
(ca)a resident as defined in the Declared Places (Mental Impaired Accused) Act 2015 section 3;
(c)a person -
(i)who is an involuntary patient under the Mental Health Act 2014; or
(ii) who is apprehended or detained under that Act; or
(iii) who is absent without leave from a hospital or other place under section 97 of that Act;
The matters that are referred to by the plaintiff do not bring the deceased within any part of this definition. As a result, the deceased's death was not a reportable death within pars (e) or (f) of the definition of reportable death in s 3 of the Act.
As a matter of completeness, I have also considered whether the deceased's death falls within par (a) of the definition of reportable death.
The affidavit of the Principal Registrar of the Coroner's Court annexes a series of documents in respect of the deceased, including a Coroner's memo prepared by the WA Police Coronial Investigation Unit. The memorandum outlines the gradual deterioration of the deceased's condition from August 2020 until her death on 2 November 2020. Specifically, the memorandum states that: [14]
Dr Krishneswaran states the deceased had died of natural causes and is comfortable in issuing a Medical Certificate of Cause of death (MCOD) with a prime cause of death being Ischemic Stroke secondary to Aspiration Pneumonia.
CIS contacted [Coroner's] delegate Rachel Whalen to discuss the death. The death is deemed one of natural causes with a MCOD accepted and not reportable to the Coroner.
[14] Affidavit of Rachel Elizabeth Collins filed 31 December 2020, 'REC1'.
The plaintiff denies that the deceased had a stroke. The basis for this is that the deceased had previously been misdiagnosed with a heart attack in November 2019, and that the plaintiff was never informed that the deceased had had a stroke.[15] The plaintiff also denies that the deceased's condition deteriorated gradually and contends that her condition deteriorated rapidly between the deceased's move from the Murray District Hospital to Rockingham.[16]
[15] Affidavit of Roslyn Shields filed 5 January 2021 [11].
[16] Affidavit of Roslyn Shields filed 5 January 2021 [8].
The evidence of the plaintiff contains her observations about the treatment of her mother, statements concerning the purported motives of various persons and her concerns about the deceased's treatment.[17]
[17] Affidavit of Roslyn Shields filed 29 December 2020; Affidavit of Roslyn Shields filed 5 January 2021.
It is apparent from the plaintiff's evidence that she is concerned that the deceased's treatment caused or hastened her death. However, the affidavit of the plaintiff does not provide any evidence that the deceased's death was unexpected, unnatural or violent, or resulted indirectly or directly from injury.
The evidence before me is that the deceased's death was due to natural causes and, as a consequence, was not a reportable death within par (a) of the definition in s 3 of the Act.
Conclusion
The Coroner's decision that it did not appear to the Coroner that the deceased's death is or may be a reportable death was a rational decision, supported by the evidence before the Coroner. The evidence before this court does not support a finding that the deceased's death is or may be a reportable death.
For these reasons, I do not consider that there are exceptional circumstances or that it is desirable in the interests of justice to grant an extension of time under s 36(3a) of the Act to exercise the power to order the State Coroner to direct a post-mortem examination be performed.
Accordingly, the applicant's application will be dismissed with no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HW
Research Associate to the Honourable Justice Hill12 JANUARY 2021
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