Coroners Bill 2008
Introduction Print
EXPLANATORY MEMORANDUM
561211
BILL LA INTRODUCTION 9/10/2008
Clause Notes
PART 1—PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are—
· to require the reporting of certain deaths; and
· to provide for coroners to investigate deaths and fires in specified circumstances; and
· to contribute to reducing the number of preventable deaths and fires through the findings of the investigation of deaths and fires, and the making of recommendations, by coroners; and
· to establish the Coroners Court of Victoria as a specialist inquisitorial court; and
· to establish the Coronial Council of Victoria; and
· to amend the Coroners Act 1985 to repeal the provisions relating to coroners and to rename that Act as the Victorian Institute of Forensic Medicine Act 1985; and
· to make consequential amendments to other Acts.
Clause 2 contains the commencement provision stating that the Bill will come into operation on 1 November 2009.
Clause 3 provides a number of definitions, including—
autopsy which means the dissection of a body of a deceased person, including the removal of tissue from a body and any other procedure prescribed to be an autopsy. The reference to dissection would include the testing of any tissue or material that is removed as part of the autopsy.
Since the definition provides that an autopsy does not include a preliminary examination or an identification procedure, the following would be examples of the removal of tissue which would not be an autopsy—
· the taking of bodily fluid samples from the body;
· the taking of samples from the surface of the body;
· the taking of tissue as part of an identification procedure.
The distinction between an autopsy and a preliminary examination or an identification procedure is relevant because there are notice and appeal provisions in the Bill that apply to an autopsy, which do not apply to a preliminary examination or an identification procedure;
body which means a corpse of a human being or part or parts of the corpse or remains of a human being, but does not include tissue removed from the corpse of a human being. This means that if there was an accident which resulted in a body being broken into pieces those pieces would be part of the "body". Further, if remains of a human being are in a grave, those remains would be the "body" and could be exhumed and subject to an "autopsy". However, if tissue samples were taken from the body or organs were removed for transplantation, that tissue would not be a "body" within the meaning of the Bill;
coroner means the State Coroner, the Deputy State Coroner, amagistrate assigned to be a coroner for the Coroners Court; anda person appointed as an acting coroner. The transitional provisions in Schedule 1 provide that a person who was a coroner under the Coroners Act 1985 immediately before the Bill comes into operation is a coroner under the Bill on the day that the Bill comes into operation;
Coroners Court means the Coroners Court of Victoria;
Council means the Coronial Council of Victoria;
death includes suspected death;
identification direction means a direction given by a coroner under clause 24 for the purpose of identifying the deceased person;
identification procedure means any procedure performed pursuant to an identification direction;
inquest means a public inquiry that is held by the Coroners Court in respect of a death or a fire;
interested party means a person granted leave to appear at an inquest;
medical examination means a preliminary examination, anidentification procedure or an autopsy;
medical procedure means a procedure performed by or under the general supervision of a registered medical practitioner on a person and includes imaging, internal examination and surgical procedures. This would also include injections performed by or under the general supervision of a registered medical practitioner. The definition is relevant to the definition of reportable death in clause 4;
parent in relation to a child is defined with an inclusive definition to provide that it has an expanded meaning for the purposes of the Bill. The meaning of a parent in relation to an adult child would be the ordinary legal meaning of parent. The term parent is used in relation to the definitions of senior next of kin and reviewable death;
person placed in custody or care—this term covers a range of situations, including where the person is under the control, care or custody of the Secretary to the Department of Human Services, is in the legal custody of the Secretary to the Department of Justice, is in the custody of a police officer or is a person whom a police officer or prison officer is attempting to take into custody. The definition of person placed in custody or care is relevant to whether a death is reportable, who is required to report the death, whether an inquest needs to be held into the death and whether the coroner must report on the circumstances of the death;
preliminary examination means a variety of procedures including a visual examination of the body, taking bodily fluid samples or samples from the surface of the skin and fingerprinting. The taking of bodily fluid samples could involve making an incision into the body, such as cutting skin and flesh to access a vein or artery. The definition also includes any other procedure that is not a dissection, the removal of tissue or prescribed to be an autopsy. The interaction of preliminary examination, identification procedure and autopsy mean that, collectively, they cover all procedures that would be performed on the body of a deceased person in order to enable a coroner to perform his or her functions;
prescribed is defined to mean prescribed by the regulations, unless otherwise provided. If the Bill provides that a form or matter is to be prescribed, then, unless otherwise provided, theform or matter needs to be prescribed by the regulations. Anexample of where the Bill "otherwise provides" is where the Bill refers to a matter being "prescribed by the regulations or the rules";
registrar means the principal registrar, deputy registrars and registrars of the Coroners Court. Pursuant to clause 97(2), aperson who holds the office of registrar or deputy registrar of the Magistrates' Court also holds the office of registrar or deputy registrar (as the case requires) of the Coroners Court;
senior next of kin is defined according to a hierarchy. Thedefinition relates to provisions regarding receiving material from the Coroners Court, autopsy, exhumation and appeals.
Clause 3 also defines child, domestic partner, Country Fire Authority, Institute, interstate coroner, Metropolitan Fire and Emergency Services Board, pathologist, sibling, spouse, therules and tissue.
Clause 3(4) provides that a reference to a function includes a reference to a power and a duty and that a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.
Clause 4 provides a definition for reportable death. A death is a reportable death if the death was a death specified in clause 4(2) and one of the following applies: the body is in Victoria, or the death occurred in Victoria, or the cause of death occurred in Victoria or the person ordinarily resided in Victoria.
Clause 4(2)(b) refers to deaths that occur during or following a medical procedure and provides that the determination regarding whether the death is unexpected is determined by assessing whether a registered medical practitioner, immediately before the procedure was undertaken, would have reasonably expected the death.
If a person died of cancer and, immediately before the death, received injections of morphine at a dosage that was required in order to alleviate the person's pain and hastened the onset of death, there may be a causal relationship between the death and the legitimate use of the morphine. Further, the use of the injection would be a medical procedure for the purposes of the Bill. However, such a death would be reasonably expected and would therefore not be a reportable death under clause 4(2)(b). Ifmorphine was prescribed at levels that were more than was required to alleviate the person's pain and was used to hasten the onset of death, the death would not be reportable under clause4(2)(b) (because the death would be expected) but would be a reportable death under clause 4(2)(a).
If the death followed a health procedure, which was not a medical procedure, the death would be a reportable death if it were captured by one of the other paragraphs of clause 4(2). Forinstance, if a death followed a chiropractic procedure or a procedure performed by a nurse practitioner (which was not under the general supervision of a registered medical practitioner) it would be a reportable death if the death were unexpected or resulted directly or indirectly from an accident or injury;
Clause 5 defines reviewable death as the death of a child (the deceased child) if the deceased child is the second or subsequent child of the deceased child's parent to die and one of the following applies: thebody is in Victoria, or the death occurred in Victoria, or the cause of death occurred in Victoria or the child ordinarily resided in Victoria.
Subclause (2) clarifies that if the deceased child was born at a hospital and had always been an in-patient of that hospital, the death will not be regarded as reviewable, so long as it is not a reportable death.
PART 2—OBJECTIVES
Clause 6 introduces the new Part 2 and sets out the role of the objectives of the Bill. The objectives are intended to give guidance in the administration and interpretation of the Bill.
Clause 7 outlines the intention of Parliament that the Coroners Court should liaise with other investigative authorities, official bodies and statutory officers to avoid any unnecessary duplication of inquiries and investigations and to expedite investigations.
Clause 8 lists six factors that a person must consider when exercising a function, power or duty under the Bill. These factors acknowledge that the death of a family member, friend or community member can be very difficult and may require the referral of distressed persons to professional support or other support. Thefactors also acknowledge that unnecessarily lengthy or protracted coronial investigations may exacerbate distress, thatdifferent cultures have different beliefs and practices surrounding death, that family members should be kept informed of the particulars and progress of a death investigation and the desirability of promoting public health and safety and the administration of justice. The factors also refer to the need to balance the public interest in protecting a living or deceased person's personal or health information with the public interest in the legitimate use of that information.
A person exercising powers, duties and functions under the Bill would also have regard to other relevant matters, including the objectives of the Bill.
Clause 9 provides that the coronial system should operate in a fair and efficient manner.
PART 3—REPORTING OF DEATHS
Clause 10 sets out when a registered medical practitioner is required to report a reportable death.
Clause 11 provides that the death of a person held in custody or care must be reported without delay by the responsible person.
Clause 12 sets out the general obligation on a person to report a reportable death.
Clause 13 sets out when a registered medical practitioner or other person is required to report a reviewable death.
PART 4—INVESTIGATION OF DEATHS AND FIRES
Division 1—Investigation of deaths
Clause 14 provides when a coroner may investigate a death that is or may be a reportable death.
Clause 15 provides when a coroner must investigate a death that appears to the coroner to be a reportable death.
Clause 16 relates to when a coroner determines that a death, which was reported to the coroner, is not a reportable death.
An example of when a coroner may determine that a death that was reported to the coroner is not a reportable death is when notice under section 37(1) of the Births Deaths and Marriages Registration Act 1996 is provided after the death is reported. This can occur when the deceased's doctor was away when the person died and, upon the doctor's return, the doctor provides the notice.
Clause 17 provides for certain deaths that are reported, but do not require investigation.
The effect of clause 17(1)(a) and (c) mean that clause 17 would not apply where the deaths—
· appear to have been unnatural or violent or to have resulted, directly or indirectly from an accident; or
· to be covered by clauses 4(2)(b) to (j) in the definition of reportable death.
Clause 18 provides for the State Coroner to refer reviewable deaths to the Institute and for the principal registrar to provide information to the Institute.
Clause 19 provides that the State Coroner may investigate a death that is or appears to be a reviewable death and must advise the Institute if he or she decides not to refer a reviewable death to the Institute.
Clause 20 relates to when the State Coroner determines that a death, which was reported to the State Coroner as a reviewable death is not a reviewable death.
Clause 21 provides that the principal registrar must provide certain peoplewith information regarding the coronial process. Thisinformation would relate to the coronial process and not the particular investigation.