Smith v State Coroner of Western Australia
[2020] WASC 355
•5 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SMITH -v- STATE CORONER OF WESTERN AUSTRALIA [2020] WASC 355
CORAM: SMITH J
HEARD: ON THE PAPERS
DELIVERED : 5 OCTOBER 2020
FILE NO/S: CIV 1949 of 2020
MATTER: Section 36(2) of the Coroners Act 1996 (WA) and in the Estate of Kathleen SMITH deceased
BETWEEN: ALANA TRACEE SMITH
Plaintiff
AND
STATE CORONER OF WESTERN AUSTRALIA
First Defendant
FIONA BEVERLEY SMITH
Second Defendant
GREG STEVEN SMITH
Third Defendant
LANCE BRADFORD SMITH
Fourth Defendant
GLENN EARL SMITH
Fifth Defendant
WAYNE LEE SMITH
Sixth Defendant
Catchwords:
Coroners Act 1996 (WA) - Coroner investigated death - Deceased's senior next of kin objected to a post mortem examination - Coroner upheld the objection - Application made to the court for an order that a limited post mortem examination be performed - Whether death was a reportable death - Whether it is desirable in all the circumstances to make an order directing the Coroner to require a pathologist or doctor to perform a limited post mortem examination
Expert evidence of the utility of analysis of nail and hair samples considered - Turns on own facts
Legislation:
Coroners Act 1996 (WA), s 3, s 3(a), s 19A, s 36(3), s 36(4)(a), s 36(4)(b)
Result:
Limited post mortem ordered
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Gregson & Associates |
| First Defendant | : | State Solicitor for Western Australia |
| Second Defendant | : | Solomon Hollett Lawyers |
| Third Defendant | : | Solomon Hollett Lawyers |
| Fourth Defendant | : | Solomon Hollett Lawyers |
| Fifth Defendant | : | Solomon Hollett Lawyers |
| Sixth Defendant | : | Solomon Hollett Lawyers |
Case(s) referred to in decision(s):
Paterson v Coroner King [2019] WASC 25
Re Death of Simon Unchango (Jnr); Ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65
SMITH J:
Introduction and the result
By an amended originating motion dated 22 September 2020, the plaintiff commenced an action, pursuant to s 36(3) of the Coroners Act 1996 (WA) (the Act), seeking an order that a limited post mortem examination be performed on Kathleen Smith who was born on 23 September 1936 and died on 5 September 2020 (the deceased).
The plaintiff, Alana Tracee Smith, is one of eight surviving children of the deceased. One of the plaintiff's sisters, Kathleen Julie Ivy Cogan, supports the application.
The first defendant, the State Coroner, has provided written submissions to assist the court in considering the plaintiff's application. The State Coroner's submissions helpfully summarises the background facts to the application and the investigations undertaken into the deceased's death by the Coroner Jenkin, officers of the State Coroner's Office and the Coronial Investigation Squad. The State Coroner makes no submission on the merits of the application and whether the application should be granted or refused.[1]
[1] Filed on 29 September 2020; and supplementary submissions filed on 2 October 2020.
The plaintiff's application is opposed by five of the plaintiff's siblings, namely; the second defendant, Fiona Beverley Smith (the deceased's senior next of kin); the third defendant, Greg Steven Smith; the fourth defendant, Lance Bradford Smith; the fifth defendant, Glenn Earl Smith; and the sixth defendant, Wayne Lee Smith.
The limited post mortem examination sought by the plaintiff is restricted to the collection and analysis of:
(a)hair samples;
(b)CT guided or blind needle biopsy of tissue organs and fluids;
(c)CT guided or blind needle biopsy of bone segments; and
(d)nail samples.
In support of the application, the plaintiff filed the following affidavits:
(a)affidavit of the plaintiff, sworn on 21 September 2020;
(b)affidavit of Kathleen Julie Ivy Cogan, sworn on 19 September 2020; and
(c)affidavit of Dr David Leo Ranson (Deputy Director and Head of Forensic Services at the Victorian Institute of Forensic Medicine), sworn on 22 September 2020.
The plaintiff also relies upon written submissions, filed on 29 September 2020.
The first defendant filed the following affidavits:
(a)affidavit of Kelly Marie Niclair (Principal Registrar of the Coroner's Court), affirmed on 22 September 2020;
(b)affidavit of Dr Clive Trevor Cooke (Forensic Pathologist, PathWest), affirmed on 24 September 2020; and
(c)affidavit of Charmaine Taylor (Chemist and Research Officer, ChemCentre), affirmed on 24 September 2020.
The second, third, fourth, fifth and sixth defendants have not filed any affidavit material, but rely upon written submissions, filed on 29 September 2020, and the affidavits filed by the first defendant.
Having read and considered all of the affidavit material and each of the parties written submissions, I have found that it is desirable in all the circumstances, to make an order directing the State Coroner to require a pathologist or a doctor to perform a limited post mortem examination on the deceased restricted to the collection and analysis of hair samples, nail samples and the removal of any fluids, without making a cut or incision on or in the body of the deceased (other than to remove a hair follicle or follicles, or to make puncture marks).
The reasons why I have made this finding are as follows.
Background and the Coroner's decision
Prior to her death, the deceased lived with, and was cared for, by the second defendant.[2]
[2] Affidavit Kelly Marie Niclair: Mortuary Admission Form - Attachment KMN4 page 14.
The deceased's medical record is recorded on the mortuary admission form as follows:[3]
The deceased was an 83 year old woman who resided with her daughter, Fiona Smith (Fiona) and Fiona's partner. The deceased had a stroke in 2018, however, recovered well and required minimal assistance with the activities of daily living.
Approximately one and a half years before the deceased's death Fiona was declared her carer.
Several months before her death the deceased suffered a fall and broke several bones in her foot. As a result, the deceased's movement was limited and she required more care from Fiona.
The deceased's medical history includes; urosepsis, pulmonary hypertension, tonic‑clonic seizure, right heart failure, osteoporosis, acute cholecystitis, dermatitis, congestive heart disease, hyperglycaemia, nstemi, dementia, urine incontinence, cholangitis, hypertension, atrial fibrillation, adrenal insufficiency, asthma, recurrent urinary tract infection and diabetes mellitus type 2.
The deceased was diagnosed with a urinary tract infection while in Narembeen several weeks before her death. On returning home she suffered a seizure and was hospitalised at the Armadale Health Service in the intensive care unit for about a week. She returned home but was provided a poor prognosis and there was an expectation her health would rapidly decline.
In the week leading to the deceased's death she stopped eating, drinking, ambulating of her own accord and became confused.
[3] Affidavit Kelly Marie Niclair: Mortuary Admission Form - Attachment KMN4 page 14.
The deceased was admitted to Fiona Stanley Hospital on 3 September 2020 with fatigue, confusion and shortness of breath and was transferred to the geriatric ward at Fremantle Hospital on 4 September 2020, where her health continued to decline.[4]
[4] Affidavit Kelly Marie Niclair: Coroner's Memo ‑ Attachment KMN1 page 6; Mortuary Admission Form ‑ Attachment KMN4 page 14.
The deceased suffered a cardiac arrest at 0525 hours on 5 September 2020. Cardiopulmonary resuscitation was carried out by medical staff and death was pronounced at 0625 on 5 September 2020 by Dr Matthew Mahon, who contacted the Coronial Investigation Squad and reported the death.[5]
[5] Affidavit Kelly Marie Niclair: Mortuary Admission Form - Attachment KMN4 page 15.
The deceased's general practitioner was contacted about the death. Dr William Chin, Langford Medical Centre, formed the view that given her medical history he would issue a death certificate and identified the medical cause of death as acute myocardial infarction, urosepsis, coronary artery disease and heart failure.[6]
[6] Affidavit Kelly Marie Niclair: Mortuary Admission Form - Attachment KMN4 page 15.
The plaintiff contacted the Coronial Investigation Squad after the deceased's death and made allegations about the care provided to the deceased, and requested a post mortem examination be performed. As a result of the plaintiff's allegations, the medical certificate of cause of death was treated as rescinded, and an investigation into the deceased's death was commenced.
As the allegations made by the plaintiff in her affidavit sworn on 21 September 2020 raise matters which cannot be determined by this court in this application, the detail of those allegations and who they are made against is not set out in these reasons for decision, other than to observe that the allegations relate to physical abuse and not to any allegation relating to the ingestion of drugs, chemicals or poisons by the deceased.[7]
[7] Affidavit: plaintiff [6].
On 6 September 2020, an officer from the Coronial Investigation Squad spoke to Dr Gaunt at Fremantle Hospital who stated that the deceased's death was not expected, but it was also not unexpected given her age, and there was nothing contained within her notes that indicated any medical person had any concerns that her death was suspicious.[8]
[8] Affidavit Kelly Marie Niclair: Attachment KMN2 page 9.
At 6.00 pm on 7 September 2020, the second defendant, who is the deceased's senior next of kin, made a written objection to a post mortem examination.[9]
[9] As defined in s 37(5) of the Coroners Act 1996 (WA).
At 8.45 am on 8 September 2020, Coroner's Registrar, Rachel Whelan, issued an authority for the external examination of the deceased and for the following procedures: x‑rays, microbiology, toxicology, as well as blood sample for DNA comparison and biochemistry in association with review of medical notes/information.[10]
[10] Affidavit Kelly Marie Niclair: Coroner's Authority - Attachment KMN5 page 18.
On 9 September 2020, Dr Cooke, a forensic pathologist, carried out an external examination of the deceased and prepared an interim report to the Coroner, and a confidential report to the Coroner. Dr Cooke specified the cause of death of the deceased as Undetermined (pending investigations). In his report, Dr Cooke stated under the heading, 'Brief Explanation of Findings':[11]
External and CT scan examinations have been made, these examinations showing changes of ageing and recent medical care. The CT scan has shown calcification of arteries, including those on the surface of the heart (calcified coronary atherosclerosis) and some opacities in the lungs raising the possibility of early pneumonia. Review of the hospital file indicated that Mrs Smith had a sudden cardiac arrest, whilst having significant illnesses with multiple comorbidities including heart disease and likely sepsis associated with a urinary infection; suspected clinical diagnoses to explain her sudden deterioration were pulmonary embolism or acute myocardial infarction. Toxicology and blood culture analysis are being undertaken as part of the examination.
[11] Affidavit Kelly Marie Niclair: Interim Report to the Coroner - Attachment KMN6 at 19; Confidential Report to the Coroner - Attachment KMN7 at 20 ‑ 22; affidavit Clive Trevor Cooke affidavit [4]-[5].
An external examination of the deceased's body revealed that:[12]
(a)her body was in good condition;
(b) she did not appear malnourished; and
(c)lividity was present and there was minimal medical intervention.
[12] Affidavit Kelly Marie Niclair: Mortuary Admission Form - Attachment KMN4 page 15.
On 10 September 2020, Charmaine Taylor, a Chemist and Research Officer, reviewed the various tests undertaken and data collected by analysists at ChemCentre in relation to the samples taken from the deceased, and prepared a toxicology report for the Coroner's Court. In her report, Ms Taylor noted there was insufficient volume of urine to complete a full toxicology screen for common basic drugs including lignocaine, venlafaxine and desmethylvenlafaxine. She also found that the level of drugs that were detected in the deceased's post mortem blood sample did not appear toxicologically significant, but said that there was sufficient blood sample volume remaining should any additional analysis be required.[13] However, in her affidavit she states that if additional targeted analysis is required (to test for particular drugs or substances), further blood samples will be required.[14]
[13] Affidavit Charmaine Taylor [10] and Attachment CT1 page 6.
[14] Affidavit Charmaine Taylor [16].
On 14 September 2020, Coroner Jenkin spoke to Dr Cooke who informed him:
(a)there were no apparent injuries which suggested any type of physical assault; and
(b)as the toxicology report indicated standard medications, he was likely to find the cause of death undetermined, but consistent with natural causes.
Coroner Jenkin recorded his conversation with Dr Cooke in an email on 14 September 2020 as follows:[15]
Just spoke to Dr Cooke.
In terms of COD there are two possibilities ‑ a pulmonary embolism or a cardiac event.
The CT scan shows possible pulmonary emboli (PE) and possibly a DVT in Ms Smith's right leg, but this cannot be confirmed. An internal examination would be necessary to confirm the PE and if this was established the COD would be PE.
Dr Cooke confirmed there were no apparent injuries which suggested any form of physical assault (fractured ribs were related to CPR and bruising to right elbow area related to an IV line).
Given that the Tox Shows standard medications (notwithstanding my query re the levels of frusemide, which Dr Cooke did not think were significant in any event), Dr Cooke is likely to make the COD undetermined, but will say that it appears consistent with natural causes.
I am still waiting for a response from PathWest.
[15] Affidavit Kelly Marie Niclair [20] and Attachment KMN14 page 29.
A final report to the State Coroner has not yet been prepared by Dr Cooke.
On 14 September 2020, Ms Niclair was instructed by Coroner Jenkin to write to the plaintiff's lawyer, to notify him that Coroner Jenkin had upheld the objection by the second defendant to a post mortem examination being performed.[16]
[16] Affidavit Kelly Marie Niclair [22]; Plaintiff's Affidavit [10] and Attachment ATS-02 page 5.
On 15 September 2020, Coroner Jenkin sent a letter to the plaintiff's lawyer providing his reasons for decision to uphold the objection to a post mortem examination being performed. Those reasons were:[17]
I am satisfied that an external examination of the deceased's body performed on 9 September 2020 found no unexplained or suspicious injuries and that the deceased's body was not malnourished. Further, a report on toxicological analysis of blood samples from the deceased's body found nothing untoward.
[17] Affidavit Kelly Marie Niclair [24]; Plaintiff's Affidavit [11] and Attachment ATS-03 at 6.
Evidence about the utility of further post mortem investigations
Dr Ranson is employed as the Deputy Director and head of Forensic Services at the Victorian Institute of Forensic Medicine and is an adjunct Clinical Professor at the Department of Forensic Medicine at Monash University and an adjunct professor at the Law School of La Trobe University. He is also the medical director of the Donor Tissue Bank of Victoria.
Dr Ranson provided a written report to the plaintiff's lawyers in respect of the adequacy of blood toxicology in the determination of a person's death. In providing the report he was not provided with any information of the facts upon which Coroner Jenkin made the decision not to hold an autopsy. Nor was he provided any information about the cause of death or the details of the deceased's past medical history or the circumstances of her death.[18]
[18] Affidavit David Leo Ranson: Attachment DR-1 page 5.
In his report, Dr Ranson was asked to address three questions, the first of which was:[19]
If my client were seeking to identify the administration (or lack of administration) of medicines or chemicals to the deceased in the preceding three to six months before the deceased's death, would a blood toxicology report on its own be sufficient to identify those matters?
[19] Affidavit David Leo Ranson: Attachment DR-1 page 6.
In response, Dr Ranson stated:
a.A routine toxicology analysis of blood samples will demonstrate the presence of a range of therapeutic and non‑therapeutic drugs and will usually cover a range of toxins/poisons as well. Because drugs are continually excreted from the body as they are metabolised and broken down, drugs found in the blood after death will usually represent relatively recent ingestion or administration of the substances.
b.there is relatively little metabolism of drugs after death however, drugs may be redistributed in the body after death so that the blood drug level may become significantly elevated after death as a result of the drug being released from body tissues back into the blood. There are a few drugs that can stay in body tissues for some time and be released gradually back into the blood so that they may be found at very low levels in a blood [s]ample taken after death.
c.The mainstay of such investigations into drug taking over many months is 'Segmental Hair Analysis'. Here a whole hair length sample is collected and cut into approximately 1cm lengths from the scalp end (hair grows at approximately 1cm a month). Each segment is analysed, and it is possible for many drugs to be identified in this way.
d.Determining the blood level at a previous time from the amount of a drug found in a hair segment is not possible. This is due to the fact that different drugs may be incorporated into hair to different degrees and some drugs may leach from the hair depending on environmental factors.
e.It is possible for external applications (deliberate or inadvertent) of drugs from the environment to the hair to lead to incorporation of the drug into the hair.
f.While the circumstances of the results of segmental hair analysis need to be carefully evaluated as to their significance, they can provide valuable information on drug/medication usage in the months before a death.
g.While examination and analysis of finger or toe nails can also reveal the past use of drugs this tissue grows far more slowly and is more regularly trimmed reducing its investigative utility.
h.In order to explore what drugs may have been administered in the months prior to death a single post‑mortem blood sample will be insufficient.
Dr Ranson included in his report a list of drugs that can be detected using hair testing.[20]
[20] Affidavit David Leo Ranson: Attachment DR-01 page 8.
The second question Dr Ranson was asked was:[21]
If the above method were not sufficient for that purpose, would there be any other useful method to check for the said medicines and/or chemicals or lack thereof?
[21] Affidavit David Leo Ranson: Attachment DR-01 page 7.
In response, Dr Ranson stated that a range of other body tissues can be used to test for drugs, but apart from bone (in the case of drugs taken up and retained in this tissue) most of the soft tissue samples from the body will only show relatively recent intake of drugs or medications.[22]
[22] Affidavit David Leo Ranson: Attachment DR-1 page 7.
The third question Dr Ranson was asked was:
If samples of the deceased's hair, tissue, blood, organs, or other samples were required for an analysis of that purpose, is there a less invasive way of attaining the items, rather than by a full post‑mortem examination?
In response, Dr Ranson stated that collection of hair and nails can be performed without recourse to any major dissection of the body. It is possible to collect a range of additional soft tissues from the body for a range of analysis by using CT guided needle biopsies or blind needle biopsies.[23]
[23] Affidavit David Leo Ranson: Attachment DR-1 page 7.
A copy of Dr Ranson's report was provided to Dr Cooke and Ms Taylor for their response to the opinions expressed by Dr Ranson in his report.
Dr Cooke responded to the opinions expressed by Dr Ranson. In his affidavit, Dr Cooke stated:[24]
[24] Affidavit Clive Trevor Cooke [8] ‑ [15].
8.I have considered the viability of taking hair and nail samples from the deceased to submit those samples to segmental toxicology testing and have a number of comments.
9.First, toxicology testing undertaken for the State Coroner is undertaken at the ChemCentre, a chemical science facility located in Bentley. I have no information about the level of expertise held by ChemCentre analysts for undertaking hair and nail testing and for interpreting results. Likewise, whereas Dr Ranson has indicated that the Victorian Institute of Forensic Medicine (VIFM) undertakes this testing, I have no information about the level of expertise held by VIFM analysts.
10.Secondly, the table on page 7 of Dr Ranson's report lists certain drugs said to be detectable by testing hair samples. This list does not appear to include certain poisons which may be of concern in this case. Further, I understand that many of the drugs listed in the table would have been detected in the ChemCentre screen which has already been taken. I cannot identify with certainty which of those listed drugs would be detectable by the ChemCentre screen, but I believe that ChemCentre analysists would be able to confirm this.
11.Thirdly, it may be difficult to determine the significance of any detection of drug levels in the deceased's hair given the comments made by Dr Ranson on page 8 of his report about factors affecting the reliability of results.
12.I have considered the viability of CT guided or blind needle biopsy of organs and tissues of the deceased. In my opinion, it is not a procedure worthy of consideration in this instance. I have a number of reasons for holding this view.
13.First, any tissue obtained would be of very limited amount and quite possibly of insufficient quantity and quality for adequate toxicology analysis.
14.Secondly, in this Department we have no experience with needle biopsy procedure and could not guarantee that any tissue obtained by the procedure would be optimal.
15.Finally, even if a viable sample could be obtained, I agree with Dr Ranson's view that that tissue and organ levels of drugs will generally only reflect relatively recent drug use, and so may not be useful in this case if more distant drug use is being alleged.
Dr Cooke made a recommendation in his affidavit that if (in the event) further toxicological investigation is being considered (by the court), a further external examination (with removal of hair and nail samples) and an internal examination (which could be limited in extent to the chest and abdomen with collection of samples from the liver, kidneys, bone and intestinal contents, and a further blood sample) should be undertaken.[25]
[25] Affidavit Clive Trevor Cooke [16].
In her affidavit, Ms Taylor stated that ChemCentre does not have the methodology for the analysis of drugs in either post mortem hair or nail specimens. As such ChemCentre would not be able to provide any interpretations resulting from this testing.[26]
[26] Affidavit Charmaine Taylor [8].
Ms Taylor also stated that:[27]
9.On page 5 of Dr Ranson's report, he states that routine toxicology analysis of blood samples will demonstrate the presence of a range of therapeutic and non‑therapeutic drugs, and that the drugs found in blood after death will usually represent relatively recent ingestion or administration of the substance. Whilst I agree that segmental hair analysis may provide evidence of drug taking over several months, if a drug is contributory to cause of death then I would still expect it to be detected in other post mortem specimens, such as blood. However, this would only be the case if the drug was detectable by the methodologies employed by ChemCentre.
…
11.On page 7 of his report, Dr Ranson provides a list of drugs covered by the VIFM hair testing methodology. I note that this list does not include any of the drugs detected in the deceased's blood as outlined in my report (for example amiodarone, frusemide, lignocaine, olanzapine, venlafaxine and desmethylvenlafaxine) or any poisons. If the presence of any of these drugs cannot be accounted for through medical records then hair testing may provide an indication of period of use/administration. However, consultation would be required with VIFM to determine if they can analyse for additional drugs to those provided in the list.
12.The range of drugs covered by the routine screening procedures employed at ChemCentre far exceeds those listed in the table provided on page 7 of Dr Ranson's report. However, whilst the range of substances covered by the ChemCentre procedures is very broad, the procedures do not cover every possible compound including some poisons.
…
14.At the time that the ChemCentre carried out the tests for the deceased, we had not been provided with any information relating to the possible contribution of specific drugs or poisons to this case. We have not subsequently been provided with any such information.
15.Should further testing be required in this case, it will first be necessary for the ChemCentre to be provided with information as to what drug/substance to test for. I am not able to provide advice on what the most appropriate specimen is for testing without first being provided with information as to what drug/substance is to be targeted.
[27] Affidavit Charmaine Taylor [9], [11] – [12], [14] – [15].
Ms Taylor recommended that if further testing is required without any specific compound being identified through investigative procedures, an additional urine sample should be provided to screen for common basic drugs which would give a longer history of any drug use/administration compared to blood. She also said that further blood samples will be required if additional targeted analysis is required.
Ms Taylor also stated in her affidavit that a liver sample may provide information regarding prolonged or excessive drug use/administration, but she would require a minimum of 10 g of liver to conduct a screen and target analysis/quantification.
The submissions made by the plaintiff and the other children of the deceased
The plaintiff argues that the toxicology report (prepared by Ms Taylor) is inadequate and deficient because:
(a)the analysis of the deceased's blood was insufficient to show drugs, chemicals, and poisons in the deceased's system within the last year of her death;
(b)the analysis could not detect increased readings of drugs, chemicals or poisons in her tissue, organs and bone; and
(c)the pathologist was not directed to specifically test for drugs, poisons, chemicals or other heavy metals in the initial blood toxicology analysis.
In effect, the plaintiff seeks that the deceased's tissue, organ samples, nail and hair samples be tested for drugs, poisons, chemicals or other heavy metals and asserts that if this testing is conducted it would be of utility in determining the deceased's cause of death. In support of the orders that are sought, the plaintiff relies upon the expert report of Dr Ranson and claims that Dr Ranson's office is capable of 'obtaining' and analysing the proposed biopsy samples.
The plaintiff also contends that Dr Cooke's opinion expressed in [14] that he does not have the expertise or experience in the method of collection or analysis using CT guided needle biopsies or blind needle biopsies is inconsistent with his opinion in [12] that such procedures are not worthy of consideration in this instance. I do not accept this contention as Dr Cooke's opinion on this point is confined to the expertise of the pathologists who are employed by PathWest.
The plaintiff's siblings who oppose the plaintiff's application, the second, third, fourth, fifth and sixth defendants, raise a preliminary issue, that is, the death of the deceased is not a reportable death (as defined in s 3 of the Act), on grounds that there was evidence before Coroner Jenkin and the court that the death of the deceased was not unexpected.
The plaintiff's siblings rely upon the affidavit evidence produced by the State Coroner to put an argument that:
(a)the method of examination proposed by the plaintiff is not suitable in the circumstances and that only an internal post mortem examination should be considered (which is opposed);
(b)if a certain drug was contributory to the deceased's cause of death, it would be expected to be detected in blood testing (rather than in segmental hair analysis alone) which has already been undertaken; and
(c)the drugs that the plaintiff submits can be detected by segmental hair analysis do not include any poisons, and the drugs already tested for by ChemCentre far exceed those identified by the plaintiff.
The plaintiff's siblings also argue that it is not desirable in all the circumstances for a post mortem examination to be performed, as this will cause further anguish and distress to the children of the deceased.
Conclusion
Was the death of the deceased a reportable death?
The short answer to this question is yes.
The State Coroner formed the view that the deceased's death was a reportable 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.[28] However, the coroner's opinion on this issue is not determinative. Whether a particular death is a reportable death is a question of law.
[28] Coroners Act 1996 (WA) s 19(1).
A reportable death is defined in s 3 of the Act to mean a Western Australian death:
(a)that appears to have been 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 held 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 in force in that place, is a legally qualified medical practitioner;
Section 3(a) must be read disjunctively. The test as to whether a death is a reportable death as defined in s 3(a) of the Act, is not confined to whether the death appears to have been unexpected (the first category). When read disjunctively, this provision includes (as a reportable death) a death that appears to a coroner to be unnatural or violent (the second category) or a death that appears to have resulted, directly or indirectly, from injury (the third category).
In this matter, once the allegations raised by the plaintiff were reported to the State Coroner, there was sufficient information at that point in time for a coroner to form an opinion that it appeared that the deceased's death may be a reportable death, being a death that appears to have been unexpected or unnatural or to have resulted, directly or indirectly, from injury.
If it emerges during an investigation by a coroner that it can be determined that the death is due to natural causes, a coroner is authorised to cease his or her investigations. This is made clear by s 19A of the Act which provides that:
19A. Certain reportable deaths do not require investigation
(1)A coroner is not required to investigate, or continue to investigate, a reportable death if the coroner determines that ‑
(a) the death is due to natural causes; and
(b)the death is a reportable death solely because it appears to have been unexpected.
Principles to be applied by the court in considering whether a post mortem is desirable
Pursuant to 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 court for an order that a post mortem examination be performed. As the written submissions filed on behalf of the State Coroner points out, in determining an application under s 36(3), the court is not constrained by the coroner's original decision not to order a post mortem examination.
Nor is the court limited to considering whether there has been an error, but is to exercise the jurisdiction afresh and to consider what is desirable in all the circumstances.[29]
[29] See, by way of analogy the principles that apply when the court is called upon to consider whether to make an order that no post-mortem examination be performed pursuant to s 37(3) of the Coroners Act 1996 (WA): Re Death of Simon Unchango (Jnr); Ex parte Simon Unchango (Snr) (1997) 95 A Crim R 65, 70 (Walsh J) and Paterson v Coroner King [2019] WASC 25 [34] ‑ [39] (Strk AJ).
Consequently, the task of the court is to exercise the jurisdiction afresh, to balance compelling and competing views, and look into what is desirable in all of the circumstances.[30]
[30] Paterson v Coroner King [2019] WASC 25 [38] (Strk AJ).
The factors to be considered include, where relevant, the spiritual and cultural beliefs of the deceased person family, the public interest, and the statutory obligation cast upon a coroner to find if possible the cause of death and how the death occurred.[31]
[31] Coroners Act 1996 (WA) s 25(1).
As to the public interest, Strk AJ relevantly observed in Paterson v Coroner King:[32]
[T]hat where a post mortem examination would be of more than marginal assistance in the proper exercise of coronial functions, functions which the coroner is legally obliged to perform, the public interest in undertaking an examination will often outweigh the great distress that performing that examination will have on the family of the deceased person. On behalf of the respondent, the following circumstances were cited by way of example: where there are suspicious circumstances surrounding the death; where a pathologist is unable to conclude a cause of death absent a post mortem examination; and where a post mortem examination may reveal something meaningful about the circumstances of death.
[32] Paterson v Coroner King [2019] WASC 25 [46]. (citations omitted)
In this matter, it is also relevant to consider the views of the two opposing groups of the deceased's siblings, the extent of the post mortem examination sought by the plaintiff, and whether the methods of examination proposed by the plaintiff is likely to be of assistance to a pathologist and to a coroner in carrying out his or her functions to make findings as to the cause of death and how the death occurred.
First, the views of the children of the deceased should be considered, together with the nature of the allegations put by the plaintiff.
In considering the methods of examination proposed by the plaintiff and whether they are likely to be of assistance, regard should also be had to the evidence before the court of Dr Cooke, Dr Ranson and Ms Taylor as to utility of those examinations. Regard should also be had to the medical history of the deceased, the circumstances surrounding her death and to the comments or observations of the medical practitioners treating her at the time of her death.
Is it appropriate to order that a limited post mortem examination be performed on the deceased, and if so, what restrictions on that examination should be imposed?
The views of the plaintiff and her sibling defendants
The plaintiff claims that she will not be able to put the allegations of elder abuse to rest until she knows that a sufficient examination is conducted of the deceased's body and conclusive findings are made about the cause of the deceased's death and by what means.
The plaintiff's sibling defendants oppose the application on grounds that the plaintiff's allegations are highly incredible, fanciful and cannot form the basis for the court to form the opinion that it is desirable that a limited post mortem examination of the deceased's body be conducted. They also claim that any further post mortem examination of the deceased will cause them further anguish and distress, and by these proceedings they have been prevented from beginning the grieving process because the proceedings are delaying the family from having a funeral for the deceased and arranging for a burial.
For the reasons that follow, it is clear on the evidence before the court that the allegations made by the plaintiff in her affidavit do not appear to be supported by any independent cogent evidence or any other information to support her suspicions nor do they relate to medical treatment or the ingestion of substances. This does not mean, however, the plaintiff's suspicions should be entirely disregarded, when regard is had to the fact that Dr Cooke is presently unable to provide an opinion as to the deceased's cause of death.
The medical history of the deceased, the circumstances surrounding her death and the comments or observations of the medical practitioners treating her at the time of her death
It is clear from the medical history of the deceased and the circumstances surrounding her death recorded in the material before the court that the deceased suffered from several serious medical conditions upon which a finding could be open by a pathologist that the death of the deceased whilst undetermined, is consistent with natural causes.
It is also clear from the matters reported to the Coronial Investigation Squad by the medical staff at Fremantle Hospital and in the notes kept by the staff at Fremantle Hospital that any medical person had any concerns that the death of the deceased was suspicious in nature.
When Dr Cooke conducted an external examination of the deceased's body, he did not find any indication of anything that was unexplained. Nor did he locate any suspicious injuries on the deceased's body.
It is also clear from the toxicology report of Ms Taylor that analysis of the samples of the deceased's blood did not find the level of drugs that were detected in the deceased's blood to be toxicologically significant.
Consequently, there is nothing in the investigations that have been undertaken to date which have revealed anything to support the plaintiff's allegations.
An assessment of the utility of the proposed limited post mortem examination
Whilst the plaintiff relies upon Dr Ranson's opinion that tissue and organ samples, together with hair and nail samples would be of utility in determining the deceased's cause of death and in detecting drugs, poisons, chemicals or other heavy metals in the body of the deceased; Dr Ranson's opinion has been given in the absence of any factual circumstances surrounding the death of the deceased or her medical history. Nor did Dr Ranson, when giving his opinion, have before him any information which provided any details of allegations made concerning the deceased, except to the extent that he had been informed that the allegations go to alleged issues of standard of care and elder abuse. Nor does it appear that he had before him the toxicology report prepared by Ms Taylor.
It is noted, however, that an allegation is recorded in the report prepared by the Coronial Investigation Squad that a hearsay allegation had been made on 6 September 2020 by a person, who is not named, (and who is described as a caller) that the nursing staff at Fremantle Hospital had allowed an 'unidentified friend' to visit the deceased on the day before her death and this person forced the deceased to take a drink that the unidentified caller believed was laced with poison.[33] Given the hearsay nature of this allegation, and the fact that the person who is claimed to have visited the deceased is unidentified, no regard can be had to this allegation.
[33] Affidavit Kelly Marie Niclair: Attachment KMN2 page 9.
In any event Dr Ranson does not suggest any tests, other than blood analysis, could be performed to detect the presence of poisons.
Importantly, the questions put to Dr Ranson for his answer were questions upon which it would be expected that there is at least some reliable factual basis upon which it could be assumed that drugs had been administered inappropriately, or not administered, to the deceased in the preceding three to six months before her death. However, there is no reliable or cogent evidence before the court of these matters, which in the absence of such is a factor that weighs against the orders sought by the plaintiff. However, this factor alone is not determinative.
As to the procedures proposed by the plaintiff, leaving aside the taking of hair and nail samples, I am not satisfied that it is appropriate to make an order that a CT guided or blind needle biopsy of organs and tissues of the deceased be conducted.
First, the evidence establishes that the pathologists employed by the State do not have the skills to carry out such procedures.
Second, the plaintiff claims that Dr Ranson or one of his agents could travel to Perth to remove tissue from the organs of the deceased's body by CT guided or blind needle biopsy. However, there is no evidence before the court that Dr Ranson or any of his agents would be willing to do so, or who would bear the cost. Nor is there evidence that such procedures would provide sufficient quantity and quality of samples to enable adequate toxicology analysis. Further, Dr Ranson's report simply states that it is 'possible' to collect a range of additional soft tissues by these procedures. In his report he expresses no view as to whether he is qualified to carry out such procedures. Nor does he express a view about the reliability and veracity of these procedures. His observation is simply that it is possible.
The plaintiff's lawyers have provided the court with a list of the website addresses of private Western Australian providers who are capable of performing CT guided needle biopsies. It appears that no contact has been made with these providers to ascertain whether they could carry out the procedures sought by the plaintiff, or who would bear the cost. Nor does it appear from any of these websites that these providers engage in any form of forensic medicine.
In the alternative, the plaintiff's lawyers make a submission that if blind needle or CT guided biopsy was not permitted by the court, then the biopsies could take place in the normal course of a post mortem examination (without removal of organs) by Dr Cooke, a process which Dr Cooke appears to be familiar at [16] of his affidavit. The difficulty with this submission is that the internal examination referred to by Dr Cooke is not sought by the plaintiff. The plaintiff's proposed orders do not contemplate an internal examination which would involve making cuts or incisions into the body of the deceased and not merely puncturing the deceased's body by a needle to obtain samples by way of a biopsy.
Thirdly, and more importantly, Dr Ranson states in his report that to check for drugs or lack thereof, a range of body tissues can be used to test for drugs but, apart from bone, most of the soft tissue samples from a body will only show relatively recent intake of drugs or medications. Consequently, it can be inferred from his report that a more reliable indicator of testing for medicines is segmental hair analysis which he characterised as the 'mainstay' of such investigations. I make an assessment of the utility of segmental hair analysis in this matter below.
When regard is had to the lack of reliable evidence in support of the allegations made by the plaintiff, the views of the plaintiff's sibling defendants, and Dr Ranson's opinion about the limited value of the taking of soft tissue samples to assess the intake of drugs or medications, I am not satisfied that it would be desirable in all the circumstances, nor appropriate, to order a blind needle or CT guided biopsy be performed, or an internal post mortem examination.
Would hair and nail testing, or further blood or urine testing serve any utility in determining the cause of death and how the death occurred?
Dr Cooke in his affidavit in [16] indicates that a further external examination of the deceased's body could be undertaken to remove hair and nail samples, from which it could be inferred that Dr Cooke and other forensic pathologists and doctors employed by PathWest Laboratory Medicine are able to take hair and nail samples from the deceased's body for analysis.
It appears from Dr Ranson's report that samples of finger and toenails could be sent to the Victorian Institute of Forensic Medicine for analysis by its toxicology laboratory.
It appears from the expert report of Dr Ranson (and Ms Taylor agrees) that segmental hair analysis may provide evidence of drug taking over several months. However, Ms Taylor qualified her agreement on this point by stating that if a drug is contributory to the cause of death then she would still expect the drug to be detected in other post mortem specimens, such as blood, if the drug was detectable by the methodologies employed by ChemCentre.
Ms Taylor also stated in her affidavit that there was insufficient volume of urine taken from the deceased's body to perform a screen for common basic drugs. In her affidavit, she indicates that such a test could be conducted if a sufficient volume of urine could be provided from the deceased's body.
Ms Taylor also indicates in her affidavit that an additional urine sample could be useful to screen for common basic drugs.
It appears the experts agree that blood testing is the only available procedure to test for toxins and poisons.
Dr Ranson is of the opinion that routine toxicology analysis of blood samples will usually demonstrate the presence of toxins and poisons. Ms Taylor in her affidavit does not appear to disagree but states that it is necessary that ChemCentre analysts be provided with a list of specific drugs or poisons to test for. If that is possible, I am of the opinion that such a list should be compiled.
Dr Cooke and Ms Taylor make no observations about the efficacy of the analysis of drugs in nail specimens. Dr Ranson indicates in his report that although finger and toenails can also reveal the past use of drugs, because nails are more regularly trimmed, the investigative utility of nails is reduced.
When regard is had to the evidence, I accept that there may be some utility in investigations being undertaken of nail and hair samples and further blood and urine samples which would not result in any cuts or incisions in the body of the deceased (other than puncture marks). These tests may possibly result in something meaningful being ascertained about the circumstances of the death which may assist a pathologist to conclude a cause of death and for a coroner to make findings as to how the death occurred and/or the cause of death, and the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998.
As counsel for the State Coroner points out, the State Coroner has no power under the Act to direct a pathologist or doctor who is outside the limits of Western Australia to test and analyse hair and nail samples. Even if analysis can be carried out by a laboratory in Western Australia or outside of Western Australia, it will be necessary for the State Coroner to be satisfied that not only can the testing and analysis be performed, but also that they can be performed to a level, and in a manner, that meets the standards and requirements of the Coroner's Court.
For this reason, an order will be made that the State Coroner only be required to use her best endeavours to arrange for testing of the hair and nail samples.
The State Coroner also seeks an order that, if testing and analysis of hair and nail samples can be carried out to the standard required of the Coroner's Office, the plaintiff pay the cost of the testing and analysis of hair samples. When regard is had to all the circumstances of this matter, I agree that such an order should be made.
For these reasons, I am satisfied that it is in the public interest that further investigation of the deceased's body be undertaken by orders that:
(1)Pursuant to s 36(4)(a) of the Act, the State Coroner be directed to instruct a pathologist or doctor to perform a limited post mortem examination on the deceased.
(2)The limited post mortem examination will be restricted to the collection and analysis of hair and nail samples, and fluids without making a cut or incision into the body of the deceased (other than to remove a hair follicle or follicles or to make a puncture mark).
(3)For the purposes of order 2, the pathologist or doctor, appointed by the State Coroner, are authorised to cause to remove from the body, any hair and nail samples, and fluids which appear necessary to remove in order to investigate the death.
(4)The State Coroner is to take steps as reasonably practicable to use her best endeavours to arrange for the testing and analysis of the hair and nail samples to the standards required by the Coroner's Court.
(5)The plaintiff is to pay the cost of the testing and analysis of the nail and hair samples removed from the body of the deceased.
(6)Pursuant to s 36(4)(b) of the Act, the burial, cremation or other disposal of the body of the deceased is prohibited until the limited post mortem examination has been conducted.
I am not satisfied that an order should be made authorising an independent doctor or pathologist to be present during the limited post mortem examination, as there is no provision in the Act that permits a person other than the senior next of kin to request that a doctor be present during a post mortem examination.[34] Nor am I satisfied that there is anything before the court which would justify the making of such an order, or otherwise render such an order appropriate.
[34] Coroners Act 1996 (WA) s 35.
As to costs of the proceedings, I am of the opinion that there should be no order made as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith5 OCTOBER 2020
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