White v State Coroner of Western Australia
[2022] WASC 418
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WHITE -v- STATE CORONER OF WESTERN AUSTRALIA [2022] WASC 418
CORAM: TOTTLE J
HEARD: 24 NOVEMBER 2022
DELIVERED : 8 DECEMBER 2022
FILE NO/S: CIV 1547 of 2022
BETWEEN: BRADLEY WHITE
Plaintiff
AND
STATE CORONER OF WESTERN AUSTRALIA
Defendant
Catchwords:
Coroner - Coroner declined to hold inquest - Application to the court that an inquest be held - Whether it is necessary or desirable in the interests of justice that an inquest be held - Turns on own facts
Legislation:
Births, Deaths and Marriages Registration Act1998 (WA), s 44
Coroners Act 1996 (WA), s 3, s 19, s 22, s 24, s 25
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | RL Sorgiovanni |
| Defendant | : | FB Seaward SC |
Solicitors:
| Plaintiff | : | Soul Legal (Perth) |
| Defendant | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Chief Commissioner of Police v Hallenstein [1996] 2 VR 1
Chiotelis v Her Honour Judge Coate [2009] VSC 256; (2009) 53 MVR 47
Clancy v West [1996] 2 VR 647
Fink v State Coroner of Western Australia [2022] WASC 44
Harmsworth v The State Coroner [1989] VR 989
Herron v Attorney-General (NSW) (1987) 8 NSWLR 601
Irfani v The State Coroner [2011] WASC 270; (2011) 254 FLR 120
Mullaley v State Coroner of Western Australia [2020] WASC 264
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Re State Coroner; Ex parte Minister for Health [2009] WASCA 165; (2009) 38 WAR 553
Rouf v Johnstone [1999] VSC 396
Veitch v The State Coroner [2008] WASC 187
TOTTLE J:
Introduction
On 6 January 2020, the plaintiff's late wife, Mary Lilian Grace Tino, was admitted to Sir Charles Gairdner Hospital. She was suffering from an aggressive (high grade) cancer - leiomyosarcoma of the uterus. She was receiving palliative care. Her life expectancy was four to 12 months. Ms Tino died seven days later on 13 January 2020. The plaintiff asked the coroner to hold an inquest because he had concerns about the medical treatment Ms Tino received following her admission to hospital on 6 January 2020. The coroner refused the request on the basis that holding an inquest was unlikely to generate additional evidence that would assist in making the findings required to be made under s 25 of the Coroners Act 1996 (WA) (the Act) and that it was not desirable to hold an inquest.[1]
[1] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-7, pp 84 - 85.
The plaintiff has applied to this court for an order under s 24(3) of the Act that an inquest be held. In support of the application the plaintiff relies on two affidavits sworn by him.[2]
[2] Affidavits of Bradley White sworn 11 June 2022 and 13 September 2022.
Conformably with the observations of the members of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman,[3] the coroner appeared by senior counsel to make submissions to assist the court in relation to the construction and interpretation of the Act and the procedure followed by the Coroner's Court but did not seek to address the merits of the plaintiff's application. Two affidavits, affirmed by the Principal Registrar of the Coroner's Court were filed on the coroner's behalf.[4] These affidavits explained some procedural matters and attached a substantial volume of documentary material relating to the medical treatment received by Ms Tino.
[3] R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35 ‑ 36 (Gibbs, Stephen, Mason, Aickin & Wilson JJ).
[4] Affidavits of Kelly Marie Niclair sworn 3 August 2022 and 27 October 2022.
Factual background
Ms Tino was born on 26 December 1973 and was 46 years of age when she died. Ms Tino was born in Uganda. She had lived in Australia for approximately 12 years and was married to the plaintiff. Ms Tino had tertiary qualifications in commerce, accounting and nursing. Ms Tino worked as a nurse at the Osborne Park Hospital.
In the paragraphs which follow I describe the management of Ms Tino's health between 2016 and 2020. Although the treatment received by Ms Tino between 2016 and the end of 2019 was the subject of some criticism in oral submissions,[5] it was not referred to in the plaintiff's request for an inquest and it was not the focus of the application. Accordingly, I have dealt with it in outline only. My description of the treatment received by Ms Tino in hospital in January 2020 is based on my interpretation of the notes maintained by nursing and medical staff and related charts. Some of the notes are difficult to decipher. These difficulties are compounded by the use of abbreviations and acronyms and by redactions made to anonymise the identities of the nursing and medical staff.[6] There are some variations between my interpretation of the notes and the interpretations of others, including the plaintiff's lawyers, and where these variations are material, I have identified them.
2016
[5] ts 23 - 28.
[6] It is apparent that the version of the notes adduced in evidence were obtained by the plaintiff under the Freedom of Information Act 1992 (WA) and that the redactions have been made pursuant to that legislation.
In March and April Ms Tino attended King Edward Memorial Hospital and was found to have a massively enlarged uterine fibroid. A total hysterectomy was recommended because of a concern of pelvic malignancy. Ms Tino was concerned about the loss of fertility and did not act on the recommendation for surgical treatment until late in 2017.
2017
In December Ms Tino presented again at King Edward Memorial Hospital and was seen by an obstetric and gynaecological registrar and a consultant gynaecological oncologist (a consultant other than Dr Stuart Salfinger to whom reference is made later in these reasons). Scans showed similar findings to those made in 2016. Ms Tino consented to the previously recommended surgery.
2018
In March Ms Tino underwent an uncomplicated laparotomy, total hysterectomy, bilateral salpingectomy and aspiration of ascites. Histopathology reported a 4.5 cm high-grade stage 1A uterine leiomyosarcoma.
On a subsequent review Ms Tino consented to have a bilateral oophorectomy and this procedure was performed in June.
Ms Tino was reviewed again in December 2018. Ms Tino was tender on her upper back. A chest X-ray taken following that review was reported as being normal.
2019
In April a scan confirmed disease recurrence and subsequently in May Ms Tino was reviewed by a surgeon who suggested pre-operative radiotherapy to reduce the size of the tumour before proceeding with surgery. Ms Tino was found to be suffering from deep vein thrombosis.
Ms Tino consented to a course of radiotherapy and undertook a course of radiation in June and July.
Ms Tino's deep vein thrombosis was thought to be secondary to compression of the blood vessel from the tumour and was extending despite the administration of anticoagulant medication. An inferior vena cava filter was inserted.
Scans taken in July showed progressive disease despite radiotherapy and the treating radiation oncologist felt it was unreasonable to continue with radiotherapy and that radical surgery would be futile.
Ms Tino and the plaintiff were angry about what they perceived as the poor management of Ms Tino's condition. They sought a second opinion about the possibility of surgery from an oncologist based in Sydney.
In August Ms Tino developed hydronephrosis and arrangements were made for the insertion of JJ stents. 'JJ stents' are a form of uretic stent - a thin flexible plastic tube curled at both ends to avoid damage to the kidney placed so the upper end is in the kidney and the lower end is in the urinary bladder to prevent or treat obstruction of the urine flow from the kidney. Stent insertion was undertaken on 27 September. The left stent was replaced on 11 December.
Monday 6 January 2020
Ms Tino presented at Sir Charles Gairdner Hospital for a review of her condition. She was admitted as an inpatient. The critical features of Ms Tino's history were recorded in inpatient hospital notes. It was noted that Ms Tino had recurrent uterine leiomyosarcoma that was not suitable for surgery, that she had pulmonary metastases, and had been commenced on palliative chemotherapy. It was noted that Ms Tino had hydronephrosis of the left kidney, that is her left kidney was swollen, and the left ureter was encased in the tumour. It was noted that the right ureter was closely adherent to the tumour but that there was no 'upstream dilation' (of the kidney).[7] It was noted that prophylactic bilateral JJ stents had been inserted on 27 September 2019 and changed on 11 December 2019. It was also noted that Ms Tino had extensive deep vein thrombosis (DVT) which was likely to be secondary to compression from the pelvic tumour. It was noted that an 'IVC filter' (inferior vena cava filter) had been inserted on 28 May 2019. It was noted that Ms Tino was receiving an anticoagulant medication known as Apixaban in respect of her DVT.
[7] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 7.
Ms Tino's presenting complaints were noted as follows: abdominal distension associated with fatigue, shortness of breath, nausea, reduced functional capacity, increased bilateral leg swelling (left leg more than the right leg), inability to sleep due to discomfort in the abdomen, increasing urinary frequency, dysuria or haematuria. It was noted that Ms Tino had stopped taking a twice daily dose of oxycodone 30 mg a few days prior to admission as she was not in pain.[8]
[8] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 8.
It was noted that Ms Tino looked uncomfortable but alert. She was afebrile. On examination her chest was clear, the abdomen was distended but not tense and with generalised tenderness. There was evidence of bilateral pitting oedema in the legs extending to the knees, with the left knee greater than the right. The examining doctor's impression was it was likely Ms Tino's progressive disease with ascites (fluid in the abdomen) was causing the increased symptoms of abdominal discomfort, shortness of breath, fatigue and increased urinary frequency.[9]
[9] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, pp 9 - 10.
A plan was formulated that involved: repeating blood tests (the most recent blood tests were in respect of a sample taken on 30 December 2019); undertaking a CT scan of Ms Tino's chest, abdomen and pelvis, arranging an ascitic tap if there was evidence of ascites on the scan, obtaining a palliative care and social work review and discussing Ms Tino's IVC filter with Interventional Radiology specialists.[10]
[10] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 10.
At 15.30 on Ms Tino's haemoglobin level was noted to be '13' and that her creatinine level was elevated at '212'.[11]
[11] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 11.
The notes contain a note of a discussion at 16.30 between medical oncologists to the effect that Ms Tino should have an ultrasound the following morning for '? obstruction' and '? ascites for drainage'. [12]
Tuesday 7 January 2020
[12] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 12.
Ms Tino was seen at 8.45 in the course of a medical oncology ward round. A note was made to the effect that Ms Tino denied being in pain, that she was 'tolerating diet', 'denies nausea' and she was feeling better. A 'plan' was noted but the note is largely illegible. It appears that the plan was to 'chase' a CT scan but if no CT scan was undertaken then Ms Tino should have an ultrasound.[13] A nursing note made at 13.40 recorded that Ms Tino was not complaining of pain or other discomfort and that she had been fasting from 11.20 in preparation for an abdominal ultrasound later that day.[14] A note made at 16.00 records that it had not been possible to undertake an ultrasound that afternoon and that Ms Tino should eat but fast again from midnight in preparation for an ultrasound in the morning.[15]
Wednesday 8 January 2020
[13] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 13.
[14] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 13.
[15] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 14.
A nursing note records that at 3.00 Ms Tino complained of rectal pain which was relieved by the administration of two doses of Endone 5 mg. It was noted that the ascites had increased ('ascites ++') and there was 'noted swelling on her legs and feet'.[16]
[16] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 14.
The notes record that at 11.00 Ms Tino was reviewed in the course of a medical oncology ward round. It appears that Ms Tino may have had an ultrasound scan by then as the note contains a reference to discussing the purpose of the ultrasound with Ms Tino and the 'plan' recorded a reference to chasing the ultrasound results. The notes record that Ms Tino reported having experienced one episode of a new lower lumbar bilateral pain the previous day for which oxycodone was administered. The note recorded that Ms Tino was not in pain at the time of examination, that her observations were stable, she was afebrile and alert. She had generalised mild discomfort in her abdomen which was soft and stable. The note recorded that there was pitting oedema to Ms Tino's knees.[17]
[17] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 14.
A nursing note made at 13.00 recorded that Ms Tino had a high pain score which had settled by lunchtime with the administration of analgesics. The note recorded Ms Tino had a late breakfast (following the ultrasound scan) and a small lunch. The note also included the following words 'tap at some stage' which I infer was a reference to an ascites tap.[18]
[18] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 15.
The notes record what appears to be a Medical Oncology Update and although the note is partially illegible it appears to record that Ms Tino's renal function was improving.
The notes record that Ms Tino was reviewed by Medical Oncology at 15.40 at which the reviewing doctor discussed the ultrasound findings with Ms Tino. The note suggests that there was also a discussion of Ms Tino's renal function and the possibility of a 'renal function CT' scan being undertaken. The note records that the plan was that if it was not possible to undertake a CT scan with contrast then a non-contrast CT scan should be undertaken and that Ms Tino would be reviewed in the morning.
A nursing note made at 21.00 recorded that Ms Tino's vital signs were within modified limits and that Ms Tino was complaining about an uncomfortable feeling in her abdomen but she did not want analgesics.
Thursday 9 January 2020
The notes record that Ms Tino was the subject of a medical review at 10.30. The notes record that Ms Tino reported feeling distended in the abdomen, her bowels were not opening completely and she had experienced an episode of lower, posterior thoracic pain which was managed with oxycodone. She was reported as denying any nausea or vomiting and was tolerating her diet. Ms Tino was observed to be alert, comfortable and afebrile. The notes recorded that the plan was to undertake a non-contrast CT scan to 'restage' Ms Tino's cancer, to have Ms Tino reviewed by a renal specialist and for Ms Tino to be transfused with a unit of packed red blood cells. It was also noted that Ms Tino '[could] have short day leave Saturday to collect mother'.[19]
[19] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 16.
I infer from a reference in the notes of the renal review undertaken on 10 January 2020 and referred to below that the CT scan to restage the cancer was undertaken on 9 January 2020.
The notes record that at 14.30 Ms Tino was afebrile but complained of abdominal discomfort. It was noted that Ms Tino was receiving the blood transfusion ordered earlier that day. Ms Tino's haemoglobin level was recorded as 'HB 67'.[20]
[20] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 16.
The notes record that at 19.30 Ms Tino was noted to have 'low grade temp 37.6C'. The notes record that Ms Tino had tolerated soup and oral fluids, was not complaining of nausea, vomiting or pain and had refused pain medication. The notes record that Ms Tino's legs were swollen and she had elevated them onto a chair when sitting in the course of the day.[21]
Friday 10 January 2020
[21] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 19.
The notes record that Ms Tino was reviewed by a renal specialist at 7.30. The notes of the review appear to raise a question as to whether the JJ stents which were removed and replaced on 11 December 2019 were, at that time, a cause of fevers and a source of infection. In a letter to the Principal Registrar of the Coroner's Court dated 20 May 2021, the plaintiff's solicitors stated that Ms Tino was reviewed by 'renal' at 7.30 pm on 9 January 2020.[22] This timing does not accord with my interpretation of the notes which is that the renal review occurred on the morning of 10 January. Further, in the same letter the plaintiff's solicitors said that the renal physician 'recognised that [Ms Tino] had an infection'.[23] I can find no support for that statement in the notes.
[22] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-2, pp 45, 48.
[23] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-2, p 45.
The notes of the renal specialist also record that Ms Tino's weight had increased from 73 kg to 78.66 kg.[24] The notes referred to a 'restaging CT' and suggest that it was undertaken on 9 January 2020 and disclosed that the pelvic mass (tumour) had increased in size as had the bilateral pulmonary metastases. The CT scan also appears to have disclosed an increasing degree of bilateral hydronephrosis. The reviewing doctor's impression was of 'AKI' (acute kidney injury) secondary to renal tract obstruction and the doctor suggested the team liaise with urology regarding the replacement of the JJ stents and asked to be updated with progress.[25]
[24] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 20.
[25] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KWN-25, p 232.
The notes record that Ms Tino was reviewed as part of the medical oncology ward round at 9.30 and that there was a discussion of the findings of the restaging CT and about the possibility of further chemotherapy. It was noted 'consideration of new chemo Celaporib but dependent on improving renal function'. The notes record that Ms Tino reported that her pain was fairly well, but not fully controlled and that it was of the same nature - abdominal discomfort. Ms Tino appeared to be alert, comfortable, with stable observations and was afebrile. She had generalised mild tenderness of the abdomen and peripheral odema. The notes record that the plan was that Ms Tino was to be the subject of an urology review, that the IVC filter was to be discussed with radiology and there was to be a discussion with palliative care regarding pain control.[26]
[26] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KWN-25, p 233.
The notes include a reference to a medical oncology update at 10.15 and a discussion between doctors whose identities have been redacted. Advice appears to have been received to insert an indwelling catheter and that if Ms Tino did not improve consideration should be given to the insertion of nephrostomy tubes.[27]
[27] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KWN-25, p 233.
A nursing note made at 14.10 records that Ms Tino had been alert and orientated at the 7.00 handover and that she denied being in pain save for some discomfort in her abdomen resulting from distension. The note recorded that Ms Tino's urine output was low. She had peripheral oedema. As recorded in the note the plan was to monitor Ms Tino's urine output and renal function and for there to be a urology review if there was no improvement.[28]
[28] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 21.
A nursing note made at 20.30 records that Ms Tino was alert, orientated and afebrile and was not complaining of pain. The note records that Ms Tino had refused pain relief when it was offered to her at 20.00. The note records that Ms Tino's observations were stable and within normal limits. The note records that Ms Tino had a minimal diet but had a good oral fluid intake.[29]
Saturday 11 January 2020
[29] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 22.
The notes record that Ms Tino was reviewed in the course of a medical oncology ward round. On examination Ms Tino was observed to be afebrile and comfortable. The reviewing doctor noted that Ms Tino was refusing regular analgesia. The note records that her renal function was stable. The plan was recorded in the notes as follows:[30]
1can have paracetamol for pain
2continue to monitor USC
3regular (indecipherable) as charted
4if feels well can go on day leave
5monitor urine output
6leave IDC in
7encourage analgesia
[30] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 23.
A nursing note made at 12.45 records that Ms Tino was alert and orientated. The note recorded Ms Tino had complained of abdominal pain but had refused 'regular oxycodone and breakthrough oxycodone despite encouragement'. The note records that Ms Tino was afebrile. The note records that the nursing staff were concerned about Ms Tino's urine output and that the shift coordinator contacted the medical team who advised that they were happy if Ms Tino's urine output was greater than 20 ml an hour but the nursing staff should encourage Ms Tino to increase her oral fluid intake.[31]
[31] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, pp 23 - 24.
A nursing note made at 21.50 records that Mr Tino was alert, orientated and afebrile at the commencement of the nursing shift but that at 20.50 Ms Tino's temperature had increased to 37.9C. Ms Tino's other observations were within normal limits. The note records that Ms Tino appeared to be in pain in the afternoon but had refused analgesia and denied being in pain. The note records that at about 15.00 Ms Tino had said that urine was by-passing the indwelling catheter which was subsequently removed. The nursing staff contacted the oncology registrar who said he was happy for Ms Tino to attempt 'TOV' (trial of void).[32] In his report to the coroner to which reference is made later, Dr Salfinger stated that there was a plan to commence Ms Tino on antibiotics on 11 January but I have been unable to find any reference to such a plan in the notes and the plaintiff's solicitors have made no reference to such a plan.
Sunday 12 January 2020
[32] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 24.
A nursing note made at 5.00 records that Ms Tino was stable overnight though she had a 'low grade' temperature until approximately 3.00 and that her temperature was currently 37C. The note records that Ms Tino was alert and orientated with 'obs stable' and was passing urine regularly. 'Breakthrough pain relief' had been given to Ms Tino but she did not get much sleep because of two prolonged Medical Emergency Team calls (MET calls) to a patient in an adjacent bed.[33]
[33] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 25.
The notes record that Ms Tino was reviewed by medical oncology. The note of the review records that Ms Tino had complained of increasing sacral pain. The notes also record Ms Tino had refused regular oxycodone over the past few days because she was worried about constipation but was reassured laxatives could be given if needed. The notes record a plan in the following terms:[34]
Encourage regular analgesics
Monitor bloods
Pall [palliative] care referral
Regular coloxyl and senna
∆ paracetoml to regular
Bisacodyl/Glyceryl suppository
[34] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 26.
A nursing note made at 15.15 records that Ms Tino was alert and orientated, afebrile but had 'pain +++' in the rectal area with anal spasms. The pain settled with analgesia. The note records that Ms Tino had voided adequate amounts and that she had a 'good dietary intake'. The note records Ms Tino was 'teary and upset' and that she was going to the airport with her husband to pick up her mother. A subsequent note made at 21.00 recorded that Ms Tino was on 'day leave' to pick up her mother from 16.00 and the nursing staff were awaiting her return.[35]
[35] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, pp 26 - 27.
The notes record that at 23.50 a MET call was made due to rising temperature and rising heart rate. The note of the MET call response is only partially legible.[36] It appears to record Ms Tino's history, her presentation on examination and discussions with a urology registrar and a surgeon.[37] Ms Tino's temperature fluctuated between 37 - 39C. Intravenous antibiotics (gentamicin) were prescribed and fluids (CSL - compound sodium lactate) were given. Instructions were given for Ms Tino to fast in preparation for a replacement of her JJ stents.[38] The administration of the blood thinning medication, Clexane, was withdrawn in preparation for the replacement of the stents.[39] Ms Tino was placed on 30-minute observations for the next two hours.[40].
Monday 13 January 2020
[36] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, pp 27 - 29.
[37] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 28.
[38] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 41.
[39] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 29.
[40] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 29.
The notes record that at 3.45 there was a second MET call.[41] Ms Tino's heart rate had increased to 175 beats per minute. Ms Tino was more unwell than she had been at the 23.50 MET call. She said she was in no pain but was unsettled, anxious and distressed. Ms Tino was febrile and her temperature had increased to 39C. It appears from a note headed 'Anaesthetics entry from AM events' that in the course of this MET call an ultrasound scan was performed which showed fluid in the abdomen and a needle aspiration was performed from Ms Tino's left side which drained approximately two millilitres of serous fluid.[42] The attending doctor's impression was one of severe sepsis with a differential diagnosis of an occult bleed into the tumour or a tumour rupture. The attending doctor discussed Ms Tino's condition with surgical and medical staff: a urologist regarding 'source control', a haematologist regarding the administration of protamine to achieve a partial reversal of the anticoagulant (Clexane), an oncologist about Ms Tino's life expectancy and an anaesthetist regarding whether Ms Tino's condition was such that she could be anaesthetised. The attending doctor also discussed Ms Tino's condition with the plaintiff and Ms Tino's mother and advised that the severity of the infection meant that Ms Tino's life was in jeopardy. Ms Tino was transferred to the operating theatre with the plan that on completion of the procedure she would be cared for in the Intensive Care Unit.[43]
[41] The plaintiff's solicitors suggested that there were three MET calls. I do not think that is what the notes show.
[42] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-25, p 259.
[43] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 31.
The operation to replace the JJ stents was performed under general anaesthetic and the operation appears to have commenced shortly after 4.00.
The operation record contains the following:[44]
[44] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-25, p 262.
OPERATION AND PRINCIPAL DIAGNOSIS:
Diagnosis: Advanced pelvic malignancy. Septic obstructed kidneys
Procedure: Cystoscopy, bilateral RGPG, removal/replacement of JJ stents
FINDINGS:
Critically ill septic patient with tachypnoea, hypotension, hypoxia and circulatory support
Urethra and bladder NAD
Bilateral 6Ch stents in situ with moderate encrustation
Bilateral gross hydronephrosis
Purulent urine on left side
PROCEDURE DETAILS:
Cystoscopy, stents grasped and removed under II screening
RGPG
Guidewires to kidney
Bilateral 8Ch 24cm JJ stents placed – easy passage and good final position
Purulent urine draining down stent
16Ch 2 way catheter
CONCLUSIONS:
Progression of ureteric compression by tumour together with sepsis
POSTOPERATIVE INSTRUCTIONS:
ICU support
No further or better drainage can be achieved retrograde - she would need nephrostomy placement if failing to improve after this procedure
The anaesthetic record contains a note to the effect that an attempt to remove fluid from Ms Tino's abdomen (paracentesis) was performed at the end of surgery with the aim of relieving the increased swelling of Ms Tino's abdomen and to aid ventilation. Read in conjunction with the note headed 'Anaesthetics entry from AM events' to which reference has already been made it appears that the procedure was undertaken with the benefit of an ultrasound and under sterile conditions. The ultrasound images were of poor quality. A second opinion was sought from a consultant. The paracentesis needle was inserted approximately four centimetres under ultrasound guidance but there was minimal aspirate and a decision to stop the procedure was made in case the ultrasound images were misinterpreted.[45]
[45] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-25, pp 258 - 259.
Ms Tino was admitted into the Intensive Care Unit at 6.45. On arrival she was very distressed, breathless, in pain, her eyes were rolling and she was sweating. The following note was made:[46]
Mary is distressed. Despite the evidence of infected uretic stent, there seems to be another cause for her ↓ Hb and very tense abdomen. NGT inserted - nil aspirate.
Fentanyl for Pain + breathlessness.
Family have been called.
I think whatever the cause, further investigation or intervention is inappropriate.
I have explained to her husband, Brad, that we will prioritise analgesia and medications for anxiety and distress.
Not for escalation of noradrenaline.
[46] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, p 35.
Ms Tino was reviewed by a member of the oncological medical team at 9.10 who recorded her presenting condition noting among other matters that her abdomen was tensely distended. The following note was made (I infer by the consultant oncologist responsible for Ms Tino's care):[47]
This unfortunate young lady is dying. She has progressive shock likely due to an intra-abdominal catastrophe. She has progressive metastatic disease despite chemotherapy and not well enough to undergo a laparotomy.
…
Family meeting
Brad took exception to me when I first met him and doesn't want to speak to me, however I did get to talk to [redacted] and close friends.
I explained the situation and that there was nothing more to be done.
Explained we should now be making Mary comfortable, and that she would not survive much longer.
[47] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-1, pp 37 - 39.
Ms Tino died shortly after this review at 9.30.
Evidence obtained by the coroner
The coroner obtained:
(a)the records of Ms Tino's medical treatment from which the factual background summarised earlier in these reasons is derived;
(b)reports from Dr N N Vagaja, a consultant forensic pathologist as detailed below;[48]
(c)a report on 23 January 2020 from Dr Paul Cohen, a consultant gynaecologist with the West Australian Gynaecological Cancer Service;[49]
(d)a report dated 20 April 2022 from Dr Stuart Salfinger, a consultant Gynaecologic Oncologist and specialist gynaecologist;[50] and
(e)a report from Sergeant Lyle Housiaux of the Coronial Investigation Squad.[51]
Pathologist's reports
[48] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachments KMN-20, KMN-21, KMN-22, pp 80 - 95.
[49] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-28, pp 1148 - 1151.
[50] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-29, pp 1152 - 1156.
[51] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-31, pp 1158 - 1174.
Dr Vagaja prepared a preliminary post-mortem report for the coroner on 15 January 2020. This report was based on the history given to Dr Vagaja, an external examination carried out on 15 January 2020 and the findings apparent on post mortem computerised tomography. In a letter addressed to the coroner Dr Vagaja reported:[52]
Based on the information provided to me, the findings of the external and radiological examinations, it is favoured that the rapid decline noted in the days prior to the death were due to increasing size and burden of the tumour mass, urinary tract infection due to the tumour and an advanced intraabdominal collection which was also a complication of underlying malignancy, favoured to be a tumorial bleed. In the light of these findings I would propose the cause of death as -
COMPLICATIONS OF METASTATIC LEIOMYOSARCOMA OF THE UTERUS IN A LADY RECEIVING PALLIATIVE TREATMENT [EXTERNAL EXAMINATION ONLY]
In my opinion the death occurred due to natural causes.
[52] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-19, p 79.
An internal post-mortem examination was undertaken on 21 January 2020 and a further report was prepared by Dr Vagaja in which she summarised her findings as follows:[53]
The external examination of this lady demonstrated the presence of recent medical intervention. The abdomen was distended and tense. There were multiple surgical scars on the abdomen. There was some swelling of the legs. No significant injury was present. Post mortem CT confirmed the presence of a large tumour mass of the abdomen, which was encasing the ureters. Ureteric stents were present, with adequate appearances. A collection was seen in the abdomen, which was mostly surrounding the front of the tumour and did not appear related to the surgical intervention. Based on the appearances, the collection was favoured to originate from the abdominal tumour; bleeding from aggressive tumours is not uncommon. Medical notes from Sir Charles Gairdner Hospital have been reviewed. Please see Pathologists Recommendation for External Examination Only and the Letter to the Coroner dated 15th January 2020. In my opinion the death occurred due to natural causes.
21 - Jan-2020
Internal examination demonstrated a large tumour mass in the abdominal cavity, which encased, compressed and tethered multiple internal organs including the ureters, vessels and portions of the bowel. There was a large focus of bleeding within the tumour which extended into the peritoneal cavity. In addition, there was abundant free fluid in the abdominal cavity (ascites). There was a small area on the surface of the tumour on the right side of the abdomen with needle puncture marks, with an apparent puncture track mark ending within a superficial portion of the tumour, without appearing continuous to the larger focus of tumoural bleeding. This was observed on a background of patchy bleeding within the tumour tissue. A clot was present in the large abdominal vein (inferior vena cava) which was obstructed with a metal filter. Stents which allowed passage of urine from the kidneys into the bladder were present and adequately positioned in the ureters. There was no evidence of dilatation of the kidneys or complications of kidney infection. Multiple metastatic nodules were present in the lungs. There was a focus of moderately severe coronary artery disease.
It may be necessary to modify this opinion as results of investigations undertaken as part of the post-mortem examination become available.
[53] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-21, pp 84 - 85.
Dr Vagaja's description of Ms Tino's primary tumour was as follows:[54]
Retroperitone and Retroperitoneal tumour - a large lobulated tumour mass of light tan, colour, soft and whorled cut surfaces, as well as multiple variably sized vessels and areas of tumour necrosis, is evident in the lower abdominal retroperitoneum and subperitoneum of the upper pelvis. In areas, the tumour shows brownish discolouration. The tumour mass measures approximately 200mm x 180mm x 160mm and encases the distal portions of the ureter, possibly distal abdominal aorta and distal portion of the inferior vena cava. The tumour mass extends towards and is adherent to the lower lumbar and upper sacral vertebral column, as well as possibly, in a patchy distribution, the surrounding soft tissues of the posterior abdominal wall. The tumour mass adheres to and compresses the sigmoid colon, with associated narrowing of the lumen but no evidence of trans mural invasion of the colon . Multiple loops of small bowel are also adherent to the tumour mass, without evidence of transmural infiltration. The tumour adheres to the caecum, without evidence of transmural invasion. The full length of the appendix is firmly adherent to a lobule of the tumour which is approximately 7cm in diameter and covered by the visceral peritoneum. On the distal portion of this lobule, there are three small penetrating defects that are needle puncture-like, which correspond in appearance and size to three out of four full thickness defects that are described on the adjacent parietal peritoneum. There is minimal associated surface bruising around these defects. On serial sectioning, there is a focus of haemorrhagic appearance of underlying parenchyma, approximately 25mm in maximum extent, with the largest diameter being parallel to the surface, which is approximately 5mm deep to the externally evident puncture marks on the tumour. Medial to the focus of haemorrhage, there is an elongated possible needle-puncture track which is approximately 7mm long and 2mm wide, that appears to end blindly in the tumour mass, without associated significant bruising or other haemorrhage. The end of the apparent needle puncture track is approximately 20mm from the surface of the tumour lobule. Approximately 20mm superior and medial to this, there is a loculated aggregate of blood and clot within the tumour, approximately 60mm in maximum extent. The surrounding tumour, including the portion between the apparent end of the needle puncture tract and the loculated aggregate of blood and clot, and the anterior portion of the remaining tumour mass show multifocal subserosal haemorrhages as well as variably haemorrhagic appearances of the parenchyma, the latter more pronounced along the anterior subserosal portion of the tumour, where it is associated with friability and ragged appearance of the parenchyma and the serosa. A 20mm curvilinear ragged defect is present on the serosa overlying the medial aspect of the upper sigmoid colon. On probing, the serosa medial to this lifts readily off the anterior surface of the tumour, to reveal haemorrhagic and ragged appearance of the underlying parenchyma, with some clot formation. This appears to be continuous with the loculated aggregate of blood near the caecum
[54] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-21, pp 90 - 91.
In her summary of internal findings, Dr Vagaja noted:[55]
2.Bleeding in the tumour which extends into the peritoneal cavity. Approximately 2400g of clot and 1500g of serosanguinous fluid in the peritoneal cavity.
3.Small needle puncture marks on the abdominal wall and in the tumour mass, associated with focally haemorrhagic appearances. The punctures appear superficial and not related to the main haemorrhagic focus in the tumour.
[55] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-21, p 92.
Microscopic examination of the multiple organs and tissues including the tumour was undertaken. Dr Vagaja reported on those examinations as follows:[56]
Microscopic examination was made of multiple organs and tissues. This confirmed the presence of focally severe coronary artery disease, with some scarring in the heart muscle. The metastases in the lung were confirmed as metastatic leiomyosarcoma. There was no pneumonia. The clot in the inferior vena cava also contained viable metastatic leiomyosarcoma, which showed aggressive features and invasion not only into the vessels but also the fat behind the abdominal cavity (retroperitoneum). The presence of kidney infection (pyelonephritis) was also confirmed, which was a complication of poor drainage of urine from the kidneys due to the tumour obstructing the ureters, which required insertion of JJ stents. Examination of the clot material from the abdominal bleed showed it to be mostly a recent clot, however the appearances observed cannot be used to exactly date the onset of the bleed. The abdominal tumour was confirmed to be an aggressive (high grade) leiomyosarcoma. The tumour showed widespread large, abnormal, fragile vessels which the tumour created so it could grow rapidly. However, there were also large areas of tissue death (necrosis) in the tumour. The dead areas arose likely to a combination of factors: (i) tumour growing beyond the capacity of new vessels to form and supply nutrients to the rapidly proliferating malignant tissue, (ii) tumour getting compressed by the abdominal walls and running out of space within the abdominal cavity, thus some parts of the tumour are compressed and die off, (iii) effects of previous treatment (chemotherapy). Numerous large vessels in the tumour were dead (necrotic) and filled with blood, which posed a significant risk of a vessel rupture and eventual spontaneous bleed. Leiomyosarcoma of the uterus is highly prone to bleeding and vaginal bleeding is one of the common ways this cancer presents initially. A contribution to the bleed by a medical procedure (surgery to replace JJ stents and associated movement of the tumour within the abdominal cavity, or the attempts to drain fluid from the deceased's abdomen, to help with the abdominal discomfort) cannot be excluded categorically in this case, but it also could not be established firmly as the cause of peritoneal haemorrhage. Of note, the deceased was very fragile at the time of deterioration, before being taken to operating theatre on 13 January 2020, with sepsis and likely associated sepsis-related coagulopathy, in the settings of a very advanced stage of a highly vascular, aggressive, necrotic tumour which was therefore prone to spontaneous bleeding. The microscopic slides of the tumour have been referred for an opinion to the department of Anatomical Pathology at Kind Edward Memorial Hospital (PathWest), which specializes in gynaecological pathology. There, the findings were discussed at a departmental meeting, and their findings agreed with the above.
[56] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-22, p 94.
As recorded in her supplementary report to the coroner of 20 March 2022 Dr Vagaja expressed the opinion that the cause of Ms Tino's death was:[57]
Complications associated with metastic leiomyosarcoma of uterus in a lady receiving palliative medical treatment
Dr Cohen's report
[57] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-22, p 93.
Dr Cohen detailed the treatment received by Ms Tino at King Edward Memorial Hospital and Sir Charles Gairdner Hospital between March 2016 and November 2019 which I have outlined earlier in these reasons.
Dr Salfinger's report
Before turning to Dr Salfinger's evidence I record that counsel assisting the coroner made inquiries of two other medical practitioners in addition to Dr Salfinger to ascertain whether they could and would be prepared to provide a report on the care received by Ms Tino. Dr Salfinger was the only one of the three medical practitioners to respond.
In the letter of instruction sent to Dr Salfinger his opinion was sought as to the following:[58]
[58] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-18, pp 61 - 62.
Your opinion is sought as an independent Medical Oncologist with an interest in Gynaecological Cancers in respect of whether or not the management of the deceased's health by the health practitioners involved in her care was appropriate in all of the circumstances.
I ask that you also give consideration to the following specific questions:
1.Mr White specifically raises concerns in respect of why Ms Tino was not given antibiotics upon her admission to SCGH on 6 January 2020. It appears Ms Tino was not given antibiotics until 11 January 2020.
a.In your opinion, should Ms Tino's symptoms at her admission on 6 January 2020, or in the days immediately following, have prompted further investigations and/or administration of antibiotics at an earlier stage?
b.If not, why not?
c.If Ms Tino had been administered antibiotics at an earlier stage, in your opinion would this have made a difference to the ultimate outcome for Ms Tino?
2.In emails sent directly to the Coroner's Court, Mr White raises specific concerns in respect of "small puncture needle marks on the abdominal wall" located during the post mortem, which he appears to believe were from the performance of needle aspiration. Mr White appears to believe these needle marks caused the bleeding from Ms Tino's tumour.
a.In your opinion, was the bleeding from Ms Tino's tumour causally connected to the performance of needle aspiration on the day Ms Tino died?
b.If not, why not?
3.In the event that you have identified further tests, investigations and/or treatment that should have been performed or undertaken, please provide your opinion as to the likelihood of the deceased surviving had she received treatment.
a.Please specify the nature of the treatment you have identified, and at what stage it would have been reasonable to provide said treatment.
4.Overall, do you consider that there are any valid concerns regarding the assessment and treatment the deceased received prior to her death?
In the event that there are any other matters arising from these materials upon which you wish to comment, you are welcome to address any other matters you consider to be relevant.
In his report Dr Salfinger stated:[59]
By way of declaration of perceived potential conflict, a review of the patient notes show that she was admitted nominally under my bedcard ˂24hrs in December of 2017 for a blood transfusion prior to her hysterectomy. I was not directly involved in her care during that brief admission. I have not been on staff at KEMH since 2017. I was otherwise not involved in her care. I am also a member of the WA Gynaecologic Cancer Tumour Board group and as such would have been present during discussions regarding her management at the multidisciplinary team meetings.
[59] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-28, p 1152.
Dr Salfinger summarised his opinion as to Ms Tino's care following her admission to Sir Charles Gairdner Hospital on 6 January 2020 as follows:[60]
In summary overall, at this stage Ms Tino had an extensive progressive recurrent malignancy, involving multiple organs with extensive deep vein thrombosis requiring anticoagulation or blood thinning treatment which also carried the risk of hemorrhage that had not responded to any form of treatment over the proceeding 9 months. Overall, through her treatment during her last admission from 6 January to 13 January all her care appears to be as best as it could be managed with such extensive disease process in such a complex patient.
[60] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-28, p 1155.
Dr Salfinger addressed the questions he was asked to address as follows:[61]
[61] Affidavit of Kelly Marie Niclair affirmed 3 August 2022, Attachment KMN-28, pp 1155 - 1156.
I will now address the specific questions with opinions sought.
1.The question was raised as to why Ms Tino was not given antibiotics at the time of her admission to Sir Charles Gardener Hospital on 6 January and why this was delayed until 11 January.
From the review of documentation, it does appear that there were no overt signs of sepsis and indeed Mary Tino only had a low-grade temperature on 9 January and no other fevers and thus nothing suggestive of infection at that stage. Her white cell count could not be used as an effective indicator because of her previous administration of Pegfilgrastim. The primary issue over this stage of admission would be control of the patient's pain, in the setting of advanced malignancy. Ms Tino developed a single temperature spike but still less that 38 degrees on 11 January and this was the point, antibiotics were commenced. Over this period of time, from 6 January through to 11 January she appeared to be extensively investigated and there did not appear to be any concerns with regard to sepsis prior to this. In view of this, I do not feel admission of antibiotics in the early stage would of seemed to have been appropriate. Regardless of this, even if Ms Tino had been administer antibiotics at an earlier stage, given the advanced, extensive disease effecting multiple organs and what appears to be the significant spontaneous hemorrhage into the tumour itself being the likely precipitating terminal event, the administration of antibiotics at any stage would not have made any difference to the ultimate outcome for Ms Tino.
2Mr White has raised specific concerns with regards to small puncture needle marks on the abdominal wall, mentioned in the postmortem.
These appear to be related to the attempt to percutaneously drain the ascitic fluid in the early hours of 13 January after the patients return from the operating theatre. These are described specifically in the forensic pathologist report as been small needle puncture marks that penetrate only superficially into the tumour mass itself with only focal hemorrhagic appearance around these puncture sites. The forensic pathologist also goes further in saying that the punctures appear superficial and not related to the main hemorrhagic focus within the tumour. In view of this, in my opinion the hemorrhage within Ms Tino's tumour was a spontaneous hemorrhage most likely worsened by the fact that she was on strong anticoagulant medication necessitated by her clot situation. Given the distance from the main hemorrhage and the minor nature of the needle punctures, separate from the major hemorrhagic focus in the tumour, it does not follow the needle aspiration could be responsible for the hemorrhage within the tumour and in fact the fall in the patient's hemoglobin prior to this. This would suggest that the hemorrhage had commenced prior to the event of the needle aspiration.
3.As outlined above, I do not believe that any other test, investigations or treatments that could have been performed or undertaken to alter the course of Ms Tino's disease.
She had advanced widely metastatic malignancy. She had extensive hemorrhage into the tumour mass within the abdomen likely worsened by the blood thinning medication. She had an extensive clot within the inferior vena cava both above and below the IVC filter which required the ongoing anticoagulation treatment, the cessation potentially resulting in significant pulmonary embolism result of death. Unfortunately, the presence of these two diametrically opposed conditions with significant bleeding but also extensive clot, both posing their own high individual risk of death meaning the situation that Ms Tino was in at this stage was irretrievable.
In conclusion; Ms Tino was a young woman effected by a very aggressive tumour. Leiomyosarcoma has a very poor prognosis regardless of stage of diagnosis. 5-year survival rate regardless of stage of diagnosis are extremely poor and in particular are worsened with high grade tumour like Ms Tino had and unfortunately these are very resistant to most forms of adjuvant treatments such as radiation and chemotherapy.
Ms Tino had a significant delay in her initial treatment from when she was advised in March 2016 that the recommended pathway was hysterectomy at this stage. This was made clear to her by a number of treating doctors at several different hospitals through March 2016 and documented in the correspondence from these consultations. Also documented is the extensive support with regard to psychosocial decision making and options for pursuing fertility which was Ms Tino's indication for not wishing to proceed with the recommended pathway. Undoubtably with this long delay, it has led to the progression of the disease to the time of her primary surgery. There appeared to be several other brief delays in her treatment course, and it is documented that these are a result of the patient wanting additional time to make decisions with regard to her care, which is understandable with such extensive disease with such a poor prognosis. As such, I do not consider that there are any valid concerns with regard to her treatment of the deceased over the entire course of her care from March 2016 through to her death in January 2020.
Sergeant Housiaux's report
Sergeant Housiaux's report was prepared on 15 October 2020 (before Dr Salfinger's report was available). In his report Sergeant Housiaux:
(a)noted that the plaintiff has expressed concerns about the medical care received by Ms Tino;
(b)undertook a chronological summary of Ms Tino's medical records beginning in March 2016;
(c)summarised the post-mortem findings;
(d)summarised the communications received from the plaintiff in which he had set out his concerns about Ms Tino's medical care which, in summary and relevantly, were as follows:
(i)the attempts at needle aspiration of the fluid in Ms Tino's abdomen were unauthorised and caused the bleeding which caused her death - in this respect the plaintiff asked the coroner's staff not to make inquiries with Sir Charles Gairdner Hospital because he intended to take legal action against the hospital and was instructing his lawyers though this request was subsequently rescinded;
(ii)the medical staff had stopped providing medical care with a view to saving Ms Tino's life on 13 January 2020 before the plaintiff could give his consent;
(iii)both King Edward Memorial Hospital and Sir Charles Gairdner Hospital had failed Ms Tino and she had not been informed that she was suffering from a sarcoma but from cancer only and 'there is a big difference';
(iv)the plaintiff believed that Ms Tino's terminal diagnoses could easily have been prevented; and
(v)Ms Tino would have survived for months if medical staff had treated her instead of letting her condition get worse;
(e)Sergeant Housiaux commented on each of the plaintiff's concerns and, again in summary, expressed the view that the concerns were not supported by his, Sergeant Housiaux's, understanding of the evidence.
Statutory framework and relevant principles
The following outline of the statutory framework and relevant principles substantially reproduces the summary in the submissions filed on the respondent's behalf.
The Act provides for a coronial system to inquire into deaths in Western Australia. The Act repealed the prior Coroners Act 1920 (WA).
Jurisdiction to hold inquests
There is no objects or purpose clause in the Act.
Section 19 of the Act establishes a coroner's jurisdiction to investigate a death. Section 19(1) states:
A coroner has jurisdiction to investigate a death if it appears to the coroner that the death is or may be a reportable death.
In s 3 a 'reportable death' is defined to include a Western Australian death 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 (WA) (BDMR Act), s 3(i).
The death of Ms Tino occurred in Western Australia and was not certified under s 44 of the BDMR Act. It follows that Ms Tino's death is a 'reportable death' that a coroner has jurisdiction to investigate.
Section 22 is found in Part 4, Division 1 of the Act, and deals with a coroner's jurisdiction to hold an inquest. The section states that:
(1)A coroner who has jurisdiction to investigate a death must hold an inquest if the death appears to be a Western Australian death and -
(a)the deceased was immediately before death a person held in care;
(b)it appears that the death was caused, or contributed to, by any action of a member of the Police Force;
(c)it appears that the death was caused, or contributed to, while the deceased was a person held in care;
(d)the Attorney General so directs;
(e)the State Coroner so directs; or
(f)the death occurred in prescribed circumstances.
(2)A coroner who has jurisdiction to investigate a death may hold an inquest if the coroner believes it is desirable.
Thus, where the death falls within one of the categories set out in s 22(1), a coroner must hold an inquest. Otherwise, a coroner may hold an inquest if the coroner believes it is desirable.
Ms Tino's death does not fall within a category specifically outlined in s 22(1). Accordingly, a mandatory inquest is not required; nonetheless, a coroner may hold an inquest if the coroner believes it is desirable.
Coroner's findings and comments
Section 25 of the Act details the findings and comments that a coroner must or may make. Section 25(1) details the findings which a coroner must make:
A coroner investigating a death must find if possible -
(a)the identity of the deceased; and
(b)how death occurred; and
(c)the cause of death; and
(d)the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998.
Section 25(1) of the Act is central to a coroner's inquisitorial function.[62] The nature of the findings that a coroner must make, if possible, was considered by Buss JA (as his Honour then was) in Re State Coroner; Ex parte Minister for Health (Martin CJ and Miller JA agreeing). Buss JA described the findings that a coroner must make as 'ultimate findings or decisions'.[63] After reviewing the authorities in other jurisdictions Buss JA made the following observation in respect of the obligation to make the finding required by s 25(1)(b), namely 'how the death occurred':[64]
In my opinion, s 25(1)(b) confers on the coroner the jurisdiction and obligation to find, if possible, the manner in which the deceased happened to die. This does not refer only to the means or mechanism by which the death was suffered or inflicted. It extends to the circumstances attending the death. In my opinion, a construction of s 25(1)(b) which entitles and requires the coroner to find, if possible, by what means and in what circumstances the death occurred reflects the public interest which is protected and advanced by a coronial investigation (especially an investigation into deaths where one or more of the conditions in s 22(1) of the Act are satisfied).
[62] Re State Coroner; Ex parte Minister for Health [2009] WASCA 165; (2009) 38 WAR 553 [24].
[63] Re State Coroner; Ex parte Minister for Health [28].
[64] Re State Coroner; Ex parte Minister for Health [42]
In respect of the obligation to make a finding as to 'the cause of death' Buss JA said:[65]
The coroner, in finding, if possible, "the cause of death", is not confined or restricted by concepts such as "direct cause", "direct or natural cause", "proximate cause" or the "real or effective cause". Similarly, a coroner is not confined or restricted to a cause that was reasonably foreseeable. See WRB Transport v Chivell (1998) 201 LSJS 102 at [20] (Lander J, Mullighan J agreeing).
…
Section 25(1)(c) does not, however, authorise a coroner to undertake a roving Royal Commission for the purpose of inquiring into any possible causal connection, no matter how tenuous, between an act, omission or circumstance on the one hand and the death of the deceased on the other. See Re Doogan; Ex parte Lucas-Smith (2005) 158 ACTR 1 at [28] per Higgins CJ, Crispin and Bennett JJ.
It will be necessary, in each inquest, to delineate those acts, omissions and circumstances which are, at least potentially, to be characterised as causing or a cause of the death of the deceased. This is to be undertaken by applying ordinary common sense and experience to the facts of the particular case. See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ; at 522 per Deane J; WRB Transport (at [21]); Saraf (at [18]-[19]); Doogan (at [29]).
A statement that a particular act, omission or circumstance did not cause a deceased's death is not a finding as to "the cause of death". See Keown v Khan (at [13]); Hurley (at [23]).
[65] Re State Coroner; Ex parte Minister for Health [44], [46] - [48].
Finally, s 25(1)(d) simply requires a finding, if possible, as to the particulars needed to register the death under the BDMR Act.
In addition to findings, a coroner may also make comments. Section 25(2) deals with the ability for a coroner to make comments:
A coroner may comment on any matter connected with the death including public health or safety or the administration of justice.
The interrelationship between s 25(1) and s 25(2) was considered by Hedigan J in ChiefCommissioner of Police v Hallenstein[66] in the context of the equivalent provisions in the now repealed Coroners Act 1985 (Vic) (Victorian Act):[67]
The power of the coroner to make comments is wide but not without boundaries, as the matters on which comment may be made must be "connected" with the death: s19(2). It may have been open to be argued that much of the comment concerning the subject matters denoted by the various chapter headings to which I have referred was beyond the power conferred as not being sufficiently connected with the death of Yap but no argument to that effect was advanced.
…
Doubtless it is correct to say that a coroner should not inquire into a death substantially to enable comments to be made. But once the inquest is held, the limits to the power to comment do not admit of easy definition.
[66] Chief Commissioner of Police v Hallenstein [1996] 2 VR 1.
[67] Chief Commissioner of Police v Hallenstein (7).
In reaching this view, Hedigan J relied on the decision of Nathan J in Harmsworth v The State Coroner,[68] which makes clear that an inquest should not be held for the sole or dominant reason of making a comment or recommendation.
[68] Harmsworth v The State Coroner [1989] VR 989.
The ultimate purpose of a coroner exercising their function under the Act is to inquire into a particular death.[69] It is that particular death which is the focus of any inquest, and not broader matters unconnected to the death.
Request for an inquest
[69] Irfani v The State Coroner [2011] WASC 270; (2011) 254 FLR 120 [37], [44].
Section 24 is the provision which enables a person to ask a coroner to hold an inquest and to apply to this court if the coroner refuses. Section 24 states:
(1)If a person asks a coroner to hold an inquest into a death which a coroner has jurisdiction to investigate, the coroner may -
(a)hold an inquest or ask another coroner to do so; or
(b)refuse the request and give reasons in writing for the refusal to the person and to the State Coroner within a reasonable period after receiving the request.
(1a) A request under subsection (1) is to -
(a)be made in writing; and
(b)contain reasons for the request.
(2)Within 7 days after receiving notice of the refusal, or if a reply to a request for an inquest to be held has not been given within 3 months after the request was made, the person may apply to the Supreme Court for an order that an inquest be held.
(3)The Supreme Court may make an order that an inquest be held if it is satisfied that it is necessary or desirable in the interests of justice.
An application to the court pursuant to s 24(2) of the Act is not an appeal from the decision of a coroner. The court is not bound by the coroner's decision, nor is the court obliged to find error in that decision for the purposes of s 24(3) of the Act.
Principles guiding the court's power to order an inquest to be held
The power in s 24(3) is a discretionary power, unconstrained by specific criteria or requirements. It has been said that the words 'in the interests of justice' are of a 'wide discretionary import'. Kirby P (as his Honour then was) remarked that 'there could scarcely be a wider judicial remit' to the phrase.[70] Ultimately the decision involves a discretionary value judgment.[71] Informing that discretion are the statutory objects of the legislation and the underlying policy considerations in the coroner's statutory functions.
[70] Herron v Attorney-General (NSW) (1987) 8 NSWLR 601, 613.
[71] See Veitch v The State Coroner [2008] WASC 187 [35].
The Victorian Court of Appeal and Supreme Court, when considering the equivalent provision in the then Victorian Act have noted that the power in s 24(3) is to be exercised sparingly, and in rare circumstances.[72] This is particularly so having regard to the broad discretion of the coroner to hold an inquest granted by s 22(2) and s 24(1) of the Act.
[72] Clancy v West [1996] 2 VR 647, 653 - 654; Rouf v Johnstone [1999] VSC 396 [28] - [29]; Chiotelis v Her Honour Judge Coate [2009] VSC 256; (2009) 53 MVR 47 [26]. See also Fink v State Coroner of Western Australia [2022] WASC 44 [115].
In determining an application under s 24(1) of the Act, it is reasonable for the coroner to consider the relevant information that an inquest might be expected to yield, and the information that is otherwise ascertainable. Further, the coroner is entitled to weigh the benefits (if any) which an inquest might produce against the disadvantages (if any), which an investigation (or further investigation) short of an inquest might entail.[73] There is no reason why these principles in relation to the potential exercise of the coroner's discretion under s 24(1) may not be extrapolated to the potential exercise of the court's discretion under s 24(3).
[73] Clancy v West (655 - 656).
In Mullaley v State Coroner of Western Australia,[74] Le Miere J considered whether an inquest was necessary or desirable for the purposes of s 24(3) of the Act. In concluding that an inquest was not necessary or desirable in the interests of justice, his Honour also had regard to the following factors: [75]
(a)whether the inquest was likely to elicit new evidence;
(b)whether the inquest was likely to find new facts or clarify the facts around deceased's death;
(c)the fact that the function of an inquest is to find facts around the death, not to attribute criminal or civil liability or blame for the death beyond findings necessary for the finding of 'how death occurred';
(d)the likelihood that the coroner would find that the failure of the police to protect the deceased by taking him into care and protection contributed to the deceased's death;
(e)the matters and circumstances which the plaintiff wished the coroner to investigate, in the context of the entirety of the circumstances leading to the death;
(f)the absence of doubt as to the cause of death; and
(g)the inconvenience an inquest will cause to those required to give evidence about a traumatic incident, and the hurt and pain to some of them, and the expense of holding an inquest.
[74] Mullaley v State Coroner of Western Australia [2020] WASC 264.
[75] Mullaley v State Coroner of Western Australia [131] - [138].
The request for an inquest
On 20 May 2021 the plaintiff's solicitors sent a letter to the respondent requesting an inquest. They set out 15 reasons why an inquest was warranted. Those reasons were as follows:[76]
[76] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-2, pp 44 - 46.
1.On the basis of her cancer diagnosis alone, Mary had between 4‑12 months of life remaining.
2.She had last had chemotherapy on 29 December 2019, (which is known to suppress the immune system and therefore the usual signs and symptoms of infection may not be present).
3.Though her cancer had progressed and was affecting her kidneys this was being managed by insertion of JJ stents in September 2019, which had been changed and replaced in December 2019 and nephrostomy surgery was under consideration in this last admission to hospital between 6 January 2020 and 13 January 2020.
4.On admission the hospital notes record that her abdomen was fluid filled ("ascites") which was "causing the increased symptoms of abdomen discomfort, shortness of breath ("SOB"), fatigue and increased urinary frequency." She was not in pain on admission.
5.A plan was made on her admission to tap the ascites as it was the identified cause of her symptoms, but that did not occur until the day of her death some 7 days later.
6.Nothing was done on the 7th or 8th of January 2020 by way of treatment. Her ascites and leg swelling was noted to have increased and she was now experiencing pain. On 8 January regarding the ascites it was noted "tap at some stage." (See page 208, (SCGH Redacted Medical Records).
7.On 9 January 2020 Her haemoglobin ("Hb") levels were also discovered to have reduced substantially but this did not appear to have triggered any alarm bells. On her admission on 6 January 2020 her Hb was 13 [sic130] and by 9 January it was 67, begging the question where was her blood going and why, as she was not bleeding externally. They did recognise that she needed a blood transfusion and one was administered. The renal physician who saw her the same day recognised that she had an infection and suggested her JJ stents to her kidneys be changed. (Not only was she filling up with fluid abdominally (the renal doctor noted "renal tract obstruction") both her kidneys were now noted to be swollen).
8.On 10 January 2020 Mary was increasingly short of breath. No treatment of substance occurred, no antibiotics for her recognised infection, no further enquiry as to why she was losing blood, no tap of her ascites (as recommended on 6 January 2020) to relieve her increasingly distressing symptoms of abdominal distension and shortness of breath, and no JJ stent replacement was done (as recommended on 9 January 2020) all of which the hospital clearly knew. They should also have known her chemo would leave her immune‑suppressed for a period of time and at greater infection risk. The only thing they did that day was insert an indwelling catheta to help her pass urine.
9.On 11 January 2020 they took the catheta out and did not replace it. She now had a fever and yet no treatment was administered. She was complaining of shortness of breath.
10.On 12 January 2020 at 3:15pm she was very teary and in lot of pain and was given quite a large amount of pain killers.
11.On 12 January 2020 at 11:50 the first MET call was made due to her temperature increasing.
12.At 2:50am on 13 January 2020 there was another MET call and she was finally placed on IV antibiotics. Both MET calls also have MET Records and both indicate the immediate cause of the event to be "increased heart rate secondary to sepsis". (emphasis mine)
13.On 13 January 2020 at 3:45 am there was a third MET call now recording "Severe sepsis/Differential diagnosis occult bleed (? into tumor), tumor rupture" Occult means hidden but the hospital knew or ought to have known her blood was going somewhere (into interstitial tissues due to infection or into her abdomen due to tumor rupture since 9 January 2020 when her HB was so low she needed a blood transfusion). They decided to urgently replace her JJ stents (initially recommended 9 January 2020). She was taken to theatre in the early hours of 13 January 2020. The stent site was infected. Her kidneys were noted to be grossly swollen "hydronephrosis".
14.On 13 January 2020 finally, an attempt was made to tap the fluid in her abdomen as recommended on 6 January 2020. Her blood pressure was very low. It was tried to aspirate initially in the ward and then again in theatre. Her abdomen was noted to be so swollen she could not sit upright. The procedure was abandoned. A note was made "for ongoing vasopressor" (a septic shock treatment) but there is no record of vasopressins being administered.
15.On 13 January 2020 at around 6:45 am she was diagnosed with "septic shock" and died shortly thereafter.
In our respectful opinion the coroner should investigate why the various plans for treatment of Mary were not carried out until the very day of her death, which was too little and too late.
The reasons for refusing an inquest
The coroner sent a letter to the plaintiff's solicitors on 26 May 2022 in response to the request for an inquest. In that letter the coroner outlined the reasons given by the plaintiff for requesting an inquest, summarised the circumstances of Ms Tino's death and considered the treatment that Ms Tino had received. The coroner referred to the post‑mortem examination and to the finding that the infection was not caused by attempts to drain ascitic fluid from Ms Tino's abdomen. The coroner referred also to Dr Salfinger's opinion that the needle aspiration was not responsible for the haemorrhage within the tumour. The coroner said she was satisfied that the needle aspiration did not cause Ms Tino's death. The coroner stated:[77]
With the assistance of the expert medical opinion of Dr Salfinger and considering all of the materials before me, I have formed the view that the care Ms Tino received both at King Edward Memorial Hospital and Sir Charles Gardiner Hospital was reasonable and appropriate. Accordingly, an inquest to consider the treatment and care that Ms Tino received prior to her death is not warranted.
[77] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-7, p 84.
The coroner went on to state:[78]
Section 25 of the Coroners Act 1996 (WA) (the Act) provides that a coroner investigating a death must, where possible, make findings about how the death occurred and the cause of death. That is to say the physical mechanism of death and the surrounding circumstances.
Whilst a coroner may comment on any matter connected with a death under investigation (including public health or safety), the purpose of the inquest is to ascertain the facts, but not to apportion blame.
For that reason a coroner is not permitted to frame a finding or comment in such a way as to appear to determine any question of civil or criminal liability.
I have carefully considered whether the holding of an inquest is likely to generate additional evidence that will assist me in making the findings required to be made under section 25 of the Act. On the basis of the available evidence, I have determined that there is sufficient material before me for those findings to be made without holding an inquest. An inquest is not desirable in those circumstances and accordingly your request for an inquest into Ms Tino's death is refused.
[78] Affidavit of Bradley White sworn 11 June 2022, Attachment BW-7, pp 84 - 85.
Grounds of the application and submissions
The grounds embodied the submissions relied on in support of the application and, generally, were expressed as submissions as distinct from more concisely expressed grounds. Although other matters are relied on by the plaintiff, the plaintiff's central proposition is that there was delay in the treatment and management of Ms Tino's condition and an inquest should be held to enable questions to be asked about whether the delay brought Ms Tino's life to an end prematurely. As expressed by him in his evidence the plaintiff's underlying concern is that 'what little remained to [Ms Tino] of her life was squandered by a lack of adequate treatment'. The delays in treatment identified by the plaintiff are:
(a)a delay in performing a drainage of ascitic fluid;
(b)a delay in replacing Ms Tino's JJ stents; and
(c)a delay in recognising and treating the infection suffered by her.
In the consideration and disposition section of these reasons I have reproduced the text of each ground and commented on it.
The basis of the application is explained most clearly in the following extract from the plaintiff's written submissions:[79]
[79] Plaintiff's outline of submissions filed 16 November 2022 [13].
There is no evidence supporting that infected uretric stents are a complication of cancer. The Plaintiff submits that the proper course of action is for the Coroner to hold an inquest at which the Plaintiff can be represented such that appropriate questions including but not limited to the following could be asked and answered by the appropriate people:
(a)Why the treatment plan to drain the abdominal fluid and change the kidney stents was not acted on immediately given the hospital knew stents pose increased risk of infection (p.452 KNM affidavit);
(b)Is uretric stent infection a complication of cancer? Why or why not?;
(c)If the deceased was receiving palliative care only, why was she rushed to theatre at all on 13 January 2020, not once but twice, the second time to aspirate her abdominal fluid;
(d)Why were there two attempts made to aspirate the abdominal fluid, one in the ward and one in theatre and why was visibility so poor the attempt was discontinued on the second occasion. Was the tumor punctured on the first or second attempt and did the hospital know it had happened? Why did they not inform the family? Would it have been the same if tapped on 6 January 2020, as originally recommended?
(e)Did the doctor who operated on the deceased to change the kidney stents on 13 January 2020 see any evidence of established abdominal bleeding and did he tell the Plaintiff that the deceased would recover?
(f)Would the sepsis, septic shock and death have been prevented by early recognition and treatment of the infection with antibiotics?
(g)Is there a policy or culture, written or unwritten, not to provide active treatment to persons whose disease process is considered terminal?;
(h)Is there overt or covert individual or systemic racism against African women as an ethnic minority, or a culture of victim blaming, for example delay in seeking treatment by the deceased or missing appointments (when many were actually cancelled by the Hospital) affecting a decision whether to aggressively treat the established disease? For example, in May 2019 when the deceased was required to have radiotherapy instead of operative therapy and thereby lost the opportunity for a cure as the disease metastasized whilst she waited for radiotherapy. There is also other material within the file which could be put to witnesses and upon which such an inference could be drawn.
(i)Why were the Plaintiff's numerous Freedom of Information requests either delayed or incompletely complied with such that it caused delay and difficulty getting the materials required to obtain legal advice.
(j)Further, the Plaintiff could give evidence as to what he observed and was told throughout the Plaintiff's final stay in hospital and the Plaintiff could call as a witness, the deceased's brother who is a medical doctor and who spoke with the anaesthetist on the deceased's date of death about the medical procedures undertaken on the deceased. The Plaintiff believes the evidence of the deceased's brother, may be of significant assistance to the Coroner.
The plaintiff's evidence
As recorded earlier the plaintiff has sworn two affidavits in support of the application. Parts of the plaintiff's affidavits consisted of submissions rather than evidence and those parts in large measure duplicate the submissions made on his behalf by his counsel and it is unnecessary to refer to them. In summary the effect of the evidence adduced by the plaintiff (in addition to the medical records) is as follows:
(a)He attended many medical reviews with Ms Tino. It is not clear to him why Ms Tino was offered chemotherapy after it had been determined that the cancer was not cured and she was placed on palliative care.
(b)In January 2020 Ms Tino's life expectancy was four to twelve months.
(c)When he visited Ms Tino in hospital in January 2020 he was concerned that her tummy was getting bigger and that she was short of breath and in pain.
(d)He was given contradictory information about Ms Tino's condition on the morning of 13 January 2020. One doctor told him that although Ms Tino was very sick she would recover and though she had an infection, she was being treated for it. Another doctor told him that Ms Tino was going to pass away within hours. This contradictory information raised concerns about the cause of death.
(e)He did not know that there had been attempts to aspirate fluid from Ms Tino's abdomen until after the event. He learned of these attempts from discussions with Ms Tino's brother, who is a medical practitioner, who had telephone discussions with the treating doctors and also from the hospital notes when he obtained them.
(f)He outlined the steps taken by him to obtain details of the treatment received by Ms Tino including applications made under the Freedom of Information legislation to obtain the hospital records and the difficulties and delays he had experienced in obtaining information.
(g)He questioned the accuracy of the reports provided by the hospital to the coroner in relation to Ms Tino's death, specifically that the hospital had not disclosed to the coroner that the family had concerns that the circumstances of Ms Tino's death were suspicious.
(h)He challenged a statement in Sergeant Housiaux's report to the effect that Ms Tino had missed many medical appointments. He said that frequently appointments were scheduled and cancelled by the hospital by text without notice.
(i)Ms Tino was a person who was well-educated and he produced copies of certificates evidencing her tertiary qualifications.
The plaintiff's written submissions included a contention to the effect that if an inquest was held the plaintiff could give evidence as to what he observed and was told throughout Ms Tino's final stay in hospital and the plaintiff could call as a witness, the deceased's brother who is a medical doctor and who spoke with the anaesthetist on the deceased's date of death about the medical procedures undertaken on the deceased. The plaintiff believes the evidence of the deceased's brother, may be of significant assistance to the coroner.
Unfortunately, the evidence that the plaintiff says he and Ms Tino's brother could give, and which it was contended would be of assistance to the coroner, was not identified in any greater detail.
At the hearing of the application, in response to a question from me, the plaintiff's counsel, Ms Sorgiavanni, disclosed that the plaintiff's solicitors had obtained an expert report from a medical practitioner but that was before the post-mortem reports were available to them. The medical report obtained by the plaintiff's solicitors did not address the issue of the 'focal haemorrhaging' and the plaintiff's solicitors did not provide the report to the coroner. Ms Sorgiovanni explained that the plaintiff's solicitors did not consider that the report was helpful and that the medical practitioner had not adequately addressed the questions that were put to him.[80]
[80] ts 14.
Consideration and disposition
Even though it is unnecessary to demonstrate error to enliven the court's jurisdiction to order an inquest, several of the plaintiff's grounds are expressed in terms that, in effect, allege error on the part of the coroner. I will comment on each of the plaintiff's grounds as set out in the originating motion before returning to consider the evaluative judgment that must be made to determine whether it is necessary or desirable in the interests of justice for an inquest to be held.
Ground 1
Ground 1 is as follows:
1.The Coroner has declined to hold an inquest into the death of the deceased on the basis that the holding of an inquest is not likely to generate additional evidence to assist the Coroner to make the findings required under section 25, namely:
(a)How death occurred; and
(b)The cause of death; and
(c)Particulars needed to register the death under the Births Deaths and Marriages Registration Act 1998 (WA)
Ground 1 does no more than recite the decision not to hold an inquest and requires no comment.
Ground 2
Ground 2 is as follows:
In coming to [the conclusion that an inquest was not likely to generate additional evidence] inappropriate reliance has been placed upon a single report dated 20 April 2022, from Dr Stuart Salfinger who had and declared his conflict of interests within the opening of his report as Dr Salfinger was part of the team who had treated the deceased at King Edward Memorial hospital and was part of the multidisciplinary team in discussions regarding the deceased's management. No consideration of that conflict was given by the Coroner, in accepting in full Dr Salfinger's assessment of the quality of the treatment provided to the deceased and the cause of death, both being matters referred for investigation and to which an answer was required pursuant to section 25 of the Act.
These points may be made about this ground.
(a)Dr Salfinger did not declare a conflict of interest. He declared a 'perceived potential conflict' and described the relevant circumstances as set out earlier in these reasons.
(b)Dr Salfinger was not involved in Ms Tino's care. Ms Tino was admitted to King Edward Memorial Hospital overnight on 14 December 2017 to receive a blood transfusion. She was nominally admitted under Dr Salfinger's care but there is no evidence that he saw her or played any role in her care nor is it suggested by the plaintiff that Dr Salfinger was involved in her care. Further, there is no criticism of the care received by Ms Tino on her admission in December 2017 to receive a blood transfusion. Thus, the hospital admission in December 2017 provides no basis for suggesting that Dr Salfinger had a conflict of interest or that it was 'inappropriate' for the coroner to rely on Dr Salfinger's report.
(c)Dr Salfinger's presence at meetings of the WA Gynaecologic Cancer Tumour Board group at which Ms Tino's case was discussed does not equate to him being involved in Ms Tino's care. There is no evidence that he participated in the discussions or that he had any recollection of any discussion. Indeed, the way in which Dr Salfinger referred to the meetings - that he 'would have been present during discussions regarding her management at the multidisciplinary team meetings' - suggests that he has no recollection of any such discussions.
(d)The contention that 'no consideration of that conflict was given by the Coroner' not only mischaracterises what had been declared by Dr Salfinger as a 'conflict' but amounts to no more than an assertion. While the coroner did not refer to Dr Salfinger's 'perceived potential conflict' in her letter of 26 May 2022 refusing the plaintiff's request for an inquest it cannot be inferred that her Honour did not consider what had been disclosed by Dr Salfinger and determine that it was not a matter that affected the reliance she could place on Dr Salfinger's report.
(e)The ground contends that 'inappropriate reliance has been placed on a single report dated 20 April 2022 from Dr Stuart Salfinger'. The reference to 'a single report' is misleading. The coroner had the benefit of Dr Salfinger's report, Dr Cohen's report, the reports of Dr Vagaja, which dealt in detail with the post-mortem findings and the mechanism of death, the medical records and Sergeant Housiaux's report. The coroner said that she had reached the conclusion that Ms Tino's medical care was reasonable and appropriate on the basis of her consideration of all of the materials before her.
I have noted earlier that it is unnecessary for the plaintiff to establish error on the part of the coroner but to the extent to which this ground asserts the coroner erred by relying on Dr Salfinger's report, I reject it. In my opinion, the matters to which Dr Salfinger referred as a 'perceived potential conflict' did not compromise his independence or otherwise diminish the weight the coroner could attribute to his report.
Ground 3
Ground 3 is as follows:
Dr Salfinger's conclusion that the deceased suffered a significant spontaneous haemorrhage of the tumour itself, being the "likely precipitating terminal event" given the acknowledged and contemporaneous perforation of the deceased's tumour during an attempt to aspirate fluid in her abdomen, is difficult to accept. The basis for Dr Salfinger's conclusion is said to be the focal haemorrhagic appearance of the needle puncture marks in the tumour, in reliance upon the pathologist's observations. An inquest would enable further questions to be asked of the pathologist with regard to the significance or otherwise of the needle puncture marks and the associated bleeding.
It is not apparent from the ground or the plaintiff's submissions why Dr Salfinger's opinion is difficult to accept. As is recorded in the ground itself, Dr Salfinger's opinion is based in part on the post-mortem findings, specifically, on the finding recorded in Dr Vagaja's report of 21 January 2020 that:
Small needle puncture marks on the abdominal wall and in the tumour mass, associated with focally haemorrhagic appearances. The punctures appear superficial and not related to the main haemorrhagic focus in the tumour. (emphasis added)
As noted earlier, in her report of 21 March 2020, Dr Vagaja commented on the findings of a microscopic examination of the tumour and on the existence of numerous large vessels in the tumour which were dead and filled with blood and 'which posed a significant risk of vessel rupture and eventual spontaneous bleed'. In the same report, Dr Vagaja observed that 'Leiomyosarcoma of the uterus was highly prone to bleeding and vaginal bleeding is one of the common ways this cancer presents initially'. Both the post-mortem findings and Dr Vagaja's observations on the nature of leiomyosarcoma form the foundation of Dr Salfinger's conclusion that 'significant spontaneous haemorrhage into the tumour' was the 'likely precipitating terminal event' (emphasis added). That a contribution to the haemorrhage by medical procedure could not be 'excluded categorically' by Dr Vagaja is not inconsistent with, and does not undermine, the validity of Dr Salfinger's opinion as to the 'likely precipitating terminal event'. It is to be remembered that Dr Salfinger is a senior and experienced gynaecological oncologist expressing a professional judgment on which source of bleeding was the 'precipitating terminal event'. This is a question incapable of being answered definitively. The question requires an assessment of probabilities made in the context of the post‑mortem findings and Ms Tino's clinical condition. Dr Salfinger is qualified to make the assessment and no expert opinion evidence has been adduced that casts doubt on his assessment.
Ground 4
Ground 4 is as follows:
Further Dr Salfinger advanced, in support of the contention that the haemorrhagic bleeding of the tumour was 'spontaneous', the fact that the patient's haemoglobin was already decreasing prior to the aspiration procedure, however the patient was also suffering severe sepsis which also causes haemoglobin to drop. Dr Salfinger was not asked, nor did he comment upon, the significance of sepsis in causing haemoglobin to decrease. In the event an inquest was held it would be possible to ask Dr Salfinger why he did not consider that the haemoglobin drop prior to the aspiration procedure may be related to the sepsis from which the patient was also suffering, rather than from spontaneous haemorrhaging of the tumour.
Dr Salfinger was asked to comment on the plaintiff's concerns that the tumour was punctured during the attempts made to drain the ascitic fluid in the early hours of 13 January 2020. It is apparent from the extract from Dr Salfinger's report set out at [66] that he understood the issue on which his opinion had been sought was whether the puncturing of the tumour was the cause of the 'main hemorrhage'. His opinion that the needle puncture of the tumour was not related to the main haemorrhage was based on Dr Vagaja's description of the needle puncture marks. Dr Salfinger's interpretation was that the punctures were 'small needle puncture marks that penetrate only superficially into the tumour mass itself with only focal hemorrhagic appearance around these puncture sites'. Dr Salfinger also noted the distance between the main hemorrhage site and the needle punctures. These were the matters on which Dr Salfinger's opinion that the needle aspiration was not responsible for the hemorrhage were primarily based. Dr Salfinger reinforced his conclusion by referring to the fall in Ms Tino's hemoglobin levels before the needle aspiration. There is no evidence that sepsis causes hemoglobin levels to fall but if one assumes that it does, then this may be a basis to question Dr Salfinger's reliance on the fall in Ms Tino's hemoglobin levels to reinforce his conclusion that the needle aspiration did not cause the 'main hemorrhage'. That said, the primary foundation for Dr Salfinger's opinion, being his reliance on Dr Vagaja's post-mortem examination of the tumour, is not undermined.
Ground 5
Ground 5 is as follows:
In the Coroner's letter dated 26 May 2022 the Coroner states that "Ms Tino developed sepsis from an infected ureteric stent and bleeding within the tumour. This is a well known complication of large vascular tumours". Infection of a uretric stent and subsequently developing sepsis is not a complication of tumours. Infection of the uretric stents and the need to change them was recognised by the deceased's kidney specialist on 9 January 2020, but nothing was done until the night of the deceased's death on 13 January 2020 when she was taken to theatre and the stents were changed. If death was inevitable and the deceased was receiving palliative care focused upon treating her pain, as Dr Salfinger's report states, why was she taken to theatre at all? Why was the changing of her kidney stents delayed? If an inquest were held, these questions could be put to her kidney specialist and to her other treating doctors. A further question as to the relationship if any between this delay, the septic shock and her death could also be put to her doctors.
Ground 5 makes a number of points.
First, ground 5 focusses on the remarks made by the coroner in the extract from her letter of 26 May 2022 reproduced in it. There is a degree of ambiguity about those remarks. The remarks could be interpreted as suggesting that infected uretic stents are a well-known complication of leiomyosarcomas. This is the plaintiff's interpretation. In my view, read in context, in particular having regard to Dr Vagaja's observations that leiomyosarcomas of the uterus are highly prone to bleeding, I understand the coroner's remarks to convey three matters, first, Ms Tino developed sepsis from an infected uretic stent, second, Ms Tino suffered from bleeding within the tumour and third, bleeding within the tumour was a well-known complication of large vascular tumours. I do not understand the coroner to have intended to suggest infected uretic stents are a well-known complication of leiomyosarcomas.
Secondly, ground 5 raises the question why there was a delay in taking steps to replace the JJ stents. This is not a question expressly addressed by Dr Salfinger. It is not apparent from the hospital notes why steps were not taken to arrange for Ms Tino's JJ stents to be replaced when it is apparent that was a procedure recommended by the renal specialist who reviewed her at 7.30 am on 10 January 2020 and the notes record ongoing concerns about her urinary output. I will return to this issue in the course of explaining my evaluation and conclusion.
Thirdly, ground 5 poses the question, 'if death was inevitable and [Ms Tino] was receiving palliative care focussed on treating her pain, as Dr Salfinger's report states, why was she taken to theatre at all?' With respect, this question misunderstands the reason for inserting the JJ stents and presents a false dichotomy. Palliative care and the replacement of the JJ stents were not mutually exclusive alternatives. The purpose of the insertion and replacement of the JJ stents was palliative and thus taking Ms Tino to theatre on the morning of 13 January 2020 to replace the stents, was intended to be palliative care by facilitating the draining of urine from her kidneys and thereby reducing her pain and discomfort.
Ground 6
Ground 6 is as follows:
The theme of the Dr Salfinger's report and the Coroner's letter dated 26 May 2022 is that the deceased delayed in obtaining treatment in the early part of her disease and that no treatment would see her recover. No issue is taken with that proposition, however to say she would ultimately have died from her cancer is not the same thing as determining her actual cause of death as required by section 25 of the Act. On the face of the hospital record it shows that:
(a)At the date of her death on 13 January 2020, the deceased's prognosis from her cancer was between 4-12 months.
(b)She was admitted on 6 January 2020 with no pain and no fever and the hospital identified a treatment plan to drain fluid from her abdomen which was causing her to feel short of breath. That was not done and the deceased became increasingly short of breath with increased fluid and began to have pain.
(c)On 9 January her kidney specialist recognised that she had an infection and that the stents to her kidneys needed to be changed as both kidneys were swelling up. That was not done and she became septic. The kidney stents were infected and were surgically changed mere hours before she died.
(d)Two attempts were made to aspirate the fluid her abdomen in the hours before she died, which aspiration had been planned since 6 January 2020, but not done. At least one of those attempts punctured her tumor, yet Dr Salfinger says, in effect that even though her tumor was punctured and bleeding it was 'spontaneous' bleeding of her tumor (unrelated to the puncture) which was the cause of her death.
If an inquest were held it would be possible to ask the hospital why the aspiration was not performed on 6 January 2020, when it was planned. It would be possible to ask the kidney specialist why the stents were not changed on 9 January when he recognised infection and hynephrosis of both kidneys. It would be possible to ask if the delayed treatment accounts for the infection becoming septic shock and the haemoglobin drop. The kidney specialist could be asked if there was evidence of bleeding from the tumor when he operated on the deceased in the hours prior to her death (in other words was the tumor already bleeding spontaneously) and to ask the person who performed the aspiration about that procedure. It is in the public interest to know whether the deceased's death was contributed to by a delay in her care, the failure to recognise and treat sepsis, the puncture of her tumor during aspiration and/or to a bias towards not treating terminally ill patients and/or patients of colour, as the deceased was of African birth.
This ground effectively amounts to a summation of all the plaintiff's concerns.
Evaluation and conclusion
The matters which I have considered for the purposes of determining whether it is necessary or desirable in the interests of justice to order that an inquest be held are as follows.
First, Ms Tino's death has been the subject of the coronial investigation described in these reasons. It was a thorough investigation.
Secondly, for the purpose of the investigation the coroner was aided by the detailed post-mortem findings and the observations thereon made by Dr Vagaja and by Dr Salfinger's evidence. For the reasons I have given I am not persuaded that there is any basis for concluding that Dr Salfinger was not an independent expert and there is no basis for diminishing the weight to be attached to his views.
Thirdly, taken in combination Dr Vagaja's findings and observations and Dr Salfinger's opinion provide a solid foundation for the conclusion that a spontaneous haemorrhage of the tumour was the event that precipitated Ms Tino's death rather than haemorrhaging from the sites of the needle punctures in the tumour.
Fourthly, Dr Salfinger expressly addressed the plaintiff's concern that antibiotic therapy should have been commenced on her admission to hospital on 6 January 2020 and explained why the administration of antibiotics was not clinically indicated.
Fifthly, although in his report Dr Salfinger does not expressly address the issue raised by the plaintiff that it was not until the morning of 13 January 2020 that steps were only taken to drain ascitic fluid from Ms Tino's abdomen and to replace the JJ stents, when regard is had to the matters on which Dr Salfinger was asked to express opinions and the structure of his report, I infer that these are matters he considered before reaching the conclusion Ms Tino's treatment was 'as best as could be managed'.
To explain further, Dr Salfinger's opinion was sought both on the specific issues raised by the plaintiff and more generally on whether 'the management of [Ms Tino's] health by the health practitioners involved in her care was appropriate in all of the circumstances' and whether 'any valid concerns regarding the assessment and treatment [Ms Tino] received prior to her death'. In his report Dr Salfinger provided a chronological summary of the events leading up to Ms Tino's death before expressing his conclusion that her care was 'as best as it could be managed with such extensive disease process in such a complex patient'. On my reading of Dr Salfinger's report he must be taken to have considered the apparent delay in ascitic drainage and the replacement of the JJ stents before reaching his positive conclusion on the quality of the medical care received by Ms Tino.
Sixthly, while the treatment received by Ms Tino prior to her admission to hospital in January 2020 is not the focus of the application, it is the subject of Dr Salfinger's opinion that her care up to November 2019 was of the 'very highest level' and in many areas 'appeared to go above and beyond the normal expectation of clinical care'.
Seventhly, in the light of the rapidity of Ms Tino's decline on the night of 12 and 13 January 2020 it is understandable that the plaintiff has questions about each of the aspects of her medical care to which I have referred to in the preceding paragraphs. It is difficult not to have a sympathetic response to a person bereaved in the plaintiff's circumstances who wants an opportunity to ask questions about a loved one's treatment and to examine the answers given. That said, the existence of questions that might be asked at an inquest, without evidence that suggests that the conclusions reached by the coronial investigation that has been undertaken might be different if an inquest were held, is not a sufficient basis on which to conclude that it is either necessary or desirable in the interests of justice to hold an inquest.
Eighthly, and related to the seventh matter, the plaintiff has not adduced any expert evidence that casts doubt upon the opinions expressed by Dr Salfinger or the observations made by Dr Vagaja. And, although the plaintiff referred in his written submissions to further evidence that he and Ms Tino's brother would be able to give at an inquest, that further evidence has not been disclosed at a level of detail that enables weight to be attached to it.
Ninthly, in ground 6 of his application the plaintiff raised issues that transcend the immediate circumstances of Ms Tino's death, the possible existence of 'a bias towards not treating' terminally ill patients and patients of colour. There is nothing in the evidence that provides support for the existence of such a bias. Putting that absence of evidence to one side, however, they are matters that might be the subject of comment by a coroner but an inquest should not be held merely to enable the coroner to make comments.
Tenthly, the plaintiff is concerned about the treatment Ms Tino received and has stated that it is his intention to sue the hospital authorities. An inquest will not assist him in that respect. As was noted earlier, a coroner's findings must be expressed in terms that do not attribute criminal or civil liability or blame for a death beyond findings necessary for the finding of 'how death occurred'.
Conclusion
The plaintiff has a strongly held conviction that the management of Ms Tino's care was inadequate. The plaintiff's desire for an inquest to be held is understandable at a personal level and I accept that an inquest would provide the plaintiff with an opportunity to direct the questions raised in this application to the treating medical practitioners and to Dr Vagaja and Dr Salfinger. On the materials put before the court, however, I am not satisfied that an inquest would elicit evidence or establish facts not apparent from the investigation that has been undertaken or would otherwise assist the coroner in making the findings required to be made by s 25 of the Act. Expressed in different terms, I am not satisfied that there is a realistic possibility that holding an inquest would result in a conclusions that differ from those formed by the coroner following the investigation that has been undertaken.
In my judgment it is neither necessary nor desirable in the interests of justice to order that an inquest be held. The application will be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
8 DECEMBER 2022
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