Coroners (Amendment) Bill 2018 Second Stage - Dáil Éireann

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I move: that the Bill be now read a second time.

A Cheann Chomhairle,

On behalf of the Minister for Justice and Equality, Mr Charlie Flanagan TD, who much regrets that he is unable to be here in person, I am very pleased to have this opportunity to move Second Stage of the Coroners (Amendment) Bill 2018. This Bill makes a series of amendments to the Coroners Act 1962, in a far-reaching and very important modernisation of our coronial law.

Firstly, it will significantly strengthen and clarify the powers available to coroners in the reporting, investigation and inquest of deaths.

Secondly, the Bill responds to the Private Member’s Bill brought by Deputy Clare Daly regarding maternal deaths, and also addresses similar concerns which have arisen in some perinatal or infant deaths.

Thirdly, the Bill will provide for a wider scope of inquiry, where necessary, at inquest, and makes a range of other changes, which will enhance our compliance with our obligations under the European Convention on Human Rights.

On behalf of the Minister, I wish at the outset today, to acknowledge the contribution of Deputy Clare Daly, through her earlier Private Member’s Bill on the issue of maternal deaths. Arising from Deputy Daly’s private member’s bill, significant work was undertaken in the Department of Justice and Equality to introduce a suite of additional reforming legislative provisions in addition to her proposals. Minister Flanagan is deeply committed to these reforms and he has informed me that Deputy Daly and her office kept in very regular contact with his department to ensure that this Bill reached the floor of the House at the earliest opportunity. I again thank Deputy Daly on Minister Flanagan’s behalf for her steadfast commitment to these issues and for her work.

Deputy Daly’s Bill addressed the findings of inquests and inquiries in a number of high-profile recent cases that have caused great public unease. Some maternal deaths occurring in hospitals, which should have been reported to coroners - because they raised issues of medical error and were ‘unnatural deaths’ under the Coroners Act 1962 – were not so reported. Bereaved families, and in some instances even coroners, experienced considerable difficulty in obtaining basic information that should have been provided to them. This was, and is, not acceptable.

Deputy Daly’s Bill received broad support from all sides of the House and was not opposed by the government. The Government Bill I am introducing today accordingly incorporates all the amendments sought by Deputy Daly regarding maternal deaths.

This Bill will require mandatory reporting to a coroner, mandatory post-mortem examination, and mandatory inquest, in all cases of maternal or late maternal death. It will also extend the legal aid scheme for family members at certain inquests, to cases of maternal or late maternal death. The coroner will have a discretion to make an exception to mandatory inquest, after consulting with the family, if having regard to specified conditions, including the views of the family, the coroner is satisfied that the death is a natural one.

The Bill, in addition, provides for mandatory reporting to a coroner of all stillbirths, intrapartum deaths, and infant deaths. As I mentioned, this requirement responds to similar public concerns, which have arisen in a number of cases regarding perinatal and infant hospital deaths. However, we are not proposing mandatory post mortem examination or inquest in these particularly sensitive cases. Post mortem and inquest in such cases will remain, as currently, at the coroner’s discretion. The wishes of the bereaved parents are a key consideration for coroners in such cases.

These provisions fit logically into the overall purpose of the Bill, which sets out in a more clear, comprehensive, specific and stringent manner the legal framework for reporting and investigation of certain deaths.

Section 6 of the Bill specifies the situations where a death must be reported to the coroner. They include any death which appears to be violent or unnatural, where the circumstances may in the public interest require investigation, or simply where the death is unexpected and the cause is unknown. In addition, the Bill inserts a new Schedule setting out specific types of death which must be reported to the coroner, including for example all maternal or late maternal deaths and all infant deaths. Section 6 also sets out clearly what persons are legally responsible for reporting a mandatory reportable death to the coroner, and provides for updated penalties where this is not done.

In a limited range of situations, which I will outline shortly, the Bill provides for mandatory inquiry or mandatory inquest by the coroner. I should emphasise that in the vast majority of other cases, mandatory reporting does not result in a post mortem examination or an inquest. Most reported deaths are cleared by the coroner. But mandatory reporting does ensure that in situations of concern or doubt, coroners have the necessary information to assess whether the death is one that requires further inquiry.

Regarding post mortem examination, section 16 of the Bill inserts a new section 33A which sets out in a clearer, more comprehensive and more stringent manner a limited range of situations where a post mortem examination is always required. These include deaths which following inquiry by the coroner, appear to be violent or unnatural, or where the death is unexpected and the cause is unknown. They will also include, more specifically, any death occurring in State custody or detention, and any maternal death or late maternal death, as well as certain deaths where a post mortem examination is a statutory requirement. The coroner retains a discretion to direct a post mortem examination into other deaths, under proposed section 33.

Regarding inquests, section 7 of the Bill amends the 1962 Act to expressly set out the situations where an inquest is already required by law - including where the death appears to be violent or unnatural, or to have occurred unexpectedly and from unknown causes, or in certain situations where an inquest is a statutory requirement - and specifies that in addition, an inquest must be held into any death occurring in State custody or detention, and into any maternal death or late maternal death. The coroner retains a discretion to direct an inquest in other cases, under section 8 of the Bill.

The Bill introduces other important reforms.

It:

• strengthens the coroner’s powers to summon witnesses to an inquest, to direct production of relevant documents, or to enter premises and take possession of relevant records
• updates sanctions for a person obstructing an inquest
• provides a modernised framework for post-mortem examinations, taking account of forensic developments
• requires family members to be informed regarding post-mortem examinations or inquests

In addition, I wish to inform the House, on behalf of the Minister for Justice and Equality, that the government has agreed to priority drafting of a number of further amendments, which the Minister intends to bring forward at Committee Stage.

Subject to the Attorney General’s advice, these will include:

• providing a statutory basis for a coroner to inquire into a stillbirth where there is cause for concern, (for example, arising from matters raised by the bereaved parents)
• permitting a coroner to seek directions from the High Court on a point of law relating to his or her functions
• providing a power for the coroner to direct a hospital or other health institution to make available relevant medical records of a deceased person for the purposes of the post mortem examination
• empowering the Minister to make regulations – which will be developed together with the Minister for Health and relevant professional organisations – to guide the best conduct of a post-mortem examination for coronial purposes, and the proper storage and ultimate disposal of human tissue or organs removed for the purposes of the post mortem. (Such disposal arrangements could include return to a family member for disposal, if requested and appropriate)

Many of the Bill’s provisions build on an extensive review by my department of the Coroners Bill 2007, which also proposed to modernise and strengthen coroners’ powers but had become, in some respects, outdated. That review was carried out in close consultation with the Coroners Society, whose detailed and expert input to the Bill is much appreciated.

Of course, the 2007 Bill also provided for a major administrative restructuring of the coroner system. Due to the major challenges then confronting public finances, this aspect of the 2007 Bill was not progressed following Second Stage in the Seanad, and now needs significant updating. However, we must continue to examine the optimum organisation of the coroner service. Further elements of the existing law and structures will require significant improvement.

Ceann Comhairle,

I will now address the main provisions of the Bill.

Section 1 is a standard provision stating that the Principal Act referred to in the Bill is the Coroners Act 1962.

Section 2 expands the definitions contained in the 1962 Act to include ‘family member’, ‘post-mortem examination’, ‘stillbirth’, and a range of situations which are defined as ‘State custody or detention’. It also defines ‘maternal death’, and a number of related terms, all of which are defined in accordance with the internationally recognised World Health Organization definitions.

Sections 3 to 5 contain a number of updating technical amendments regarding administration of the Dublin coroner district. These are necessary, following the transfer in 2017 of responsibility for the operation of the Dublin Coroner, from the Dublin local authorities, to the Minister for Justice and Equality.

Section 6 of the Bill inserts into the Principal Act a new Part IIA on Reporting of Death.

It consists of 2 proposed new sections:

• firstly, proposed section 16A sets out comprehensively the general types of deaths, which must be reported to coroners. It should be read in combination with the new Second Schedule – contained at section 28 of the Bill – which sets out a list of concrete examples of mandatory reportable deaths. This list expressly includes any maternal death or late maternal death, and any death of a stillborn child, death intra partum or infant death. There is a power for the Minister to amend the list of reportable deaths by statutory instrument
• secondly, proposed section 16B sets out comprehensively the various persons who are under a duty to report a mandatory reportable death to the coroner. Reporting does not mean the death would automatically be subject to a post-mortem examination or an inquest. A doctor reporting the death to the coroner must indicate whether he or she is satisfied, in the circumstances, to certify that the death was due to natural causes. Where no cause for concern arises, such a certificate is sufficient under the Coroners Act. The section also updates the penalties for failing to report a reportable death

Section 7 updates section 17 of the Principal Act to provide that an inquest is mandatory if the person has died in State custody or detention, and also in all cases of maternal death or late maternal death.

Section 7 also provides for the possible exception to mandatory inquest in maternal death cases, subject to a number of specified conditions. The coroner must be satisfied that the death was a natural one, and there are no matters of concern requiring inquest - after consultation with the bereaved family, and taking account of four specified conditions including the outcome of the post mortem examination, the family’s views and whether sufficient information has been provided to the coroner regarding the death.

Section 8 amends Section 18 of the Principal Act to provide that the coroner has a discretion to inquire into the circumstances of death (and, if the coroner, thinks proper, to hold an inquest) if a medical certificate of the cause of death has been provided, but the coroner considers that the certificate is not completed in a satisfactory manner.

Section 9 is a significant provision, which extends the scope of the inquest to include establishing ‘the circumstances in which the death occurred.’ This is a key issue in certain inquests (for example, those occurring while the deceased was in State custody or detention) for strengthening our compliance with the European Convention on Human Rights. However, it will remain the position that an inquest does not make any finding of civil or criminal liability.

Section 10 requires the coroner to give at least 14 days’ notice to family members and interested persons, regarding the holding of the inquest. Shorter notice is permitted in limited situations, as an exception, if the family will not be unfairly prejudiced – e.g. where the deceased is a foreign national and the coroner is facilitating repatriation of the body.

Section 11 is another technical amendment following the recent administrative changes regarding the Dublin Coroner Office.

Section 12 modernises the current provision for identifying the body of the deceased person.

Section 13 of the Bill amends section 30 of the Principal Act, to delete the restriction that an inquest shall be ‘confined to ascertaining the identity of the deceased person, and how, when and where the death occurred’. This change flows from the new provision at section 9, widening the scope of the inquest.

Section 14 amends section 31 of the Principal Act to include reference to the findings made at inquest, in that section’s prohibition of censure or exoneration; and to add that general recommendations that are considered necessary in the interests of public health and safety, may be appended to the verdict.

Section 15 amends section 32 of the Principal Act to add a reference to the findings made at inquest, in the record of the inquest’s conclusions.

Section 16 replaces sections 19 and 52, and amends section 33, of the Principal Act concerning post-mortem examinations directed by the coroner.

It introduces four new sections, 33A to 33D, providing for:

• a modern process for directing the post-mortem examination
• a requirement for information about the post mortem examination to be given to a family member
• a more detailed statutory framework where there is a mandatory post-mortem examination
• the making and reporting of a post-mortem examination by a pathologist
• a new power for the coroner to direct a further post-mortem examination of the body of the deceased, if the coroner thinks necessary

Section 17 amends section 37 of the Principal Act to provide that if a witness fails to attend the inquest without reasonable excuse, the coroner can seek a High Court order directing the witness to attend. The Court can make such other order as it considers just, including an order as to costs.

Section 18 amends section 38 of the Principal Act. It will empower a coroner to direct a witness to reply on oath or affirmation, or to answer a question, and to direct a person to produce to the inquest documents or objects in that person’s possession or control. It also allows the coroner to seek a High Court order that a person comply with the coroner’s direction, and ancillary orders to give full effect to the direction. The offence of knowingly giving false or misleading evidence to an inquest is updated, to carry a class A fine, or imprisonment for a term not exceeding 12 months.

Section 19 will allow the coroner to take evidence before the inquest from a person who is about to leave the State, if the coroner is satisfied that such action is necessary.

Section 20 amends section 40 of the Principal Act to remove the requirement that the coroner must sit with a jury in every road traffic death. This change has long been sought by coroners. Currently, the jury requirement even applies in straightforward cases, where no other vehicle is involved. Coroners advise that it is increasingly difficult to empanel juries for such a large volume of cases, leading to unexpected adjournments and delays in many cases, distress to the bereaved families, and inconvenience to witnesses. The coroner would instead keep a discretion to empanel a jury in any road traffic case, where appropriate.

Section 21 updates the sanctions under section 46 of the Principal Act for obstructing the removal of a body to a mortuary or morgue.

Section 22 provides a significant new power for the coroner, acting under a warrant from the District Court, to enter and inspect premises, and to take copies or take possession of any documents or material relevant to the inquest.

Section 23 is a new provision that the coroner may obtain advice and assistance from an expert, if he or she considers it necessary, on a particularly specialised subject relative to the death.

Sections 24 and 25 of the Bill provide for further necessary updates regarding administrative matters, following the transfer of responsibility for the Dublin Coroner Office.

Section 26 extends the scheme of legal aid in the Principal Act for a family member of the deceased at inquest, introduced in 2013 for certain categories of deaths, to cases of maternal death or late maternal death.

Section 27 inserts a new provision that if a body corporate commits an offence under the Coroners Act, its officers may also be personally liable if they consented or connived in its commission.

Section 28 provides for the new Second Schedule that sets out, for the first time, in statutory form a specific and detailed list of concrete examples of deaths that must be reported to a coroner.

I commend the Bill to the House.

ENDS