The capacity of a coroner to ascertain the true cause of death is significantly compromised by a restrictive law; why won't the Minister for Justice act more quickly to change it, asks Raymond Bradley
The Coroners Act 1962 is obsolete. Minister for Justice, Equality and Law Reform Michael McDowell accepts this and has indicated at the annual meeting of coroners: "As has long since been acknowledged, the current Irish legislation, the Coroners Act of 1962, is outdated and can no longer be said to equip coroners with the appropriate measures to conduct the best possible death investigation."
The Minister for Justice has given a commitment to introduce legislation as part of the current legislative programme, yet there is an inordinate delay in doing so.
The review of the Coroners Service Working Group delivered a report five years ago but no amending legislation has resulted.
Inquests are matters of crucial public importance as the purpose of a coroner's inquest includes determining the medical cause of death, allaying rumour or suspicion surrounding a death, and drawing attention to the existence of circumstances which, if unremedied, might lead to further deaths, advancing medical knowledge and preserving the legal interests of the deceased person's family, heirs or other interested parties.
In short, the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires without deducing from these facts any determination of blame.
In Eastern Health Board -v- Farrell, the Supreme Court or, more particularly, Mr Justice Hardiman in his judgment indicated that Section 26 of the Coroners Act 1962 "is in my view a serious obstacle to the proper discharge of the statutory duty of a coroner in the more complex type of inquest".
In addition, Mr Justice Hardiman indicated: "If a coroner feels that the question of how the death occurred cannot be answered without further evidence, it seems remarkable that he cannot obtain it." The restrictions in Section 26 of the Coroners Act allows only one medical practitioner, in addition to the consultant pathologist, to deliver evidence before the coroner's court.
In certain instances, as occurred at last week's inquest into the death of Pierce Nowlan, the number of persons who were involved in the clinical care can be far in excess of this number.
In the circumstances of the death of that child, there were 23 clinicians involved, yet only one of those clinicians was permitted to deliver evidence arising from the limitations in Section 26 of the Coroners Act.
As a consequence, the role of the coroner in allaying rumour or suspicion or properly ascertaining how, when or where a death occurred by returning a verdict in relation to the means by which death occurred has been frustrated.
In addition, recommendations should be introduced after a death in a hospital to avoid a similar occurrence in the future, if so required.
It is quite shocking that the legislation under which a coroner operates is so restrictive that it prevents all evidence relevant to the circumstances of death being available to the coroner.
Such a default is more apparent where there is a potential conflict of evidence as to what occurred and the coroner can only hear one version of events which, in essence, means that his ascertainment of the cause of death must be fundamentally flawed, as the coroner can only rely upon that particular version of events available in coming to his verdict.
If a coroner can only rely upon one version of events then in such circumstances, the capacity of the coroner to ascertain the true cause of death or to make recommendations arising out of the findings or verdict delivered must be significantly compromised.
It is clear from various statements that coroners, the Supreme Court and even the Minister for Justice himself recognise the fundamental flaws associated with Section 26 of the Coroners Act, yet there appears to be a political antipathy on the part of the Minister for Justice when it comes to advancing the necessary amending legislation required.
It is wrong that where deaths occur in a hospital environment, which inevitably are more complex cases for the coroner in terms of the evidence required to be delivered, that the coroner is fettered by virtue of the limitations associated with Section 26 in ascertaining the true cause of death.
It is all the more wrong when it is considered that the family are seeking solace from ascertaining in many instances how such a death occurred for the purpose of ensuring that there will be no repetition of similar events in the future. Yet the coroner, because he cannot truly ascertain the cause of death arising from the limited evidence available, cannot make appropriate recommendations to prevent a similar recurrence.
Such a failure of the political system in ensuring the introduction of amending legislation in an expeditious manner could theoretically result in hospitals being capable of preferring one version of events for submission to the coroner over any other version that may exist.
This is fundamentally wrong.
The Minister for Justice has been on notice of this situation for the entire period of his duration in the Justice portfolio, yet he has failed to advance matters to rectify the problem.
Such reticence means that where deaths occur in a hospital environment, the coroner's system cannot be relied upon to deliver an appropriate verdict as all evidence is not available to such a coroner.
The most serious event that can occur is a death, and it is contended that each death must be properly investigated to ensure that any mistakes of the past are not repeated.
• Raymond Bradley is the managing partner in Malcomson Law, Dublin and Carlow, which has acted in many health-related cases, and represented clients linked to the Lindsay Inquiry, Hepatitis C compensation schemes, the HIV compensation scheme and residential institution abuse.