Notifying the coroner of a death
The Coroners Act 2008 (Vic) (‘CA 2008’) came into force on 1 November 2009. There is a statutory requirement imposed on members of the public generally (s 12), and on medical practitioners specifically (s 13), to notify a coroner – or the police officer in charge of a police station – of a reportable death where there are reasonable grounds to believe the death has not been reported (s 12) (see ‘What is a “reportable death”?’, below).
The key sections of the CA 2008 are:
- section 13(1) applies to reportable deaths and to which deaths the coroner has the discretion to investigate;
- section 14 applies to what deaths must be investigated;
- section 15 applies to reviewable deaths.
A person who has reasonable grounds to believe the coroner has not been notified of a reportable death must report the death as soon as possible (s 12 CA 2008).
Where a registered medical practitioner is present at or after a person’s death, the medical practitioner must report the death to the coroner without delay (s 10(1) CA 2008).
It is normal practice for the Births, Deaths and Marriages registrar to report to the coroner any reportable deaths that have not been investigated.
A member of the immediate family of a deceased where the death occurs within three months of discharge from an approved mental health service may report the death to the coroner (s 12(2) CA 2008). The coroner has the power to investigate whether such a death is a reportable death (s 4(3) CA 2008).
What is a ‘reportable death’?
There is no exhaustive statutory determination of exactly what is a ‘reportable death’. However, section 4(2)(a)–(j) of the CA 2008 sets out categories of cause of death that constitute a ‘reportable death’.
Reportable deaths include:
- cases where a doctor could not discover the cause of death;
- deaths of persons while in custody (s 4(2)(c) CA 2008);
- deaths of patients within the meaning of the Mental Health Act 1986 (Vic) (s 4(2(d) CA 2008);
- deaths of persons during or as a consequence of a medical procedure as defined by the CA 2008.
The death of a person who has been assisted to die under the provisions of the Voluntary Assisted Dying Act 2017 (Vic) is not a reportable death for the purposes of the CA 2008 (s 4(3)).
The coroner has jurisdiction to hold an inquest (a formal enquiry into a death) about any fire or reportable death as defined by the CA 2008.
The coroner must investigate a reportable death provided the death is a reportable death and took place in Victoria and occurred within 50 years of the death being reported (s 15 CA 2008).
The coroner may investigate a death within 100 years of being notified of the death (s 14(1) CA 2008).
The coroner does not have to hold an inquest where:
- the death is not a reportable death (as referred to in section 4(2)(b) of the CA 2008);
- a medical investigator examines the body and is of the opinion that the death was caused by natural causes (s 17CA 2008).
Section 52 of the CA 2008 states that the coroner must hold an inquest if:
- the death, or cause of death, occurs in Victoria;
- the death is the result of a homicide;
- the deceased was in custody or care at the time of death;
- the identity of the deceased is unknown; or
- a regulation requires it.
The date, time and place of the inquest must be published (s 61 CA 2008).
The coroner can call witnesses and require the witnesses to answer questions, subject to the witnesses’ right to not self-incriminate (ss 55, 57 CA 2008).
The coroner determines who should be called as a witness at the inquest and determines what issues are to be investigated (s 65 CA 2008). The coroner may give leave to appear to any interested party (s 56 CA 2008). Interested parties can make submissions to the inquest and be legally represented (s 66 CA 2008).
The inquest is not bound by the formal rules of evidence and the inquest is to be conducted with as little formality as the interests of justice permit (ss 62, 65 CA 2008).
The coroner must find if possible:
- the identity of the deceased;
- the cause of death; and
- the circumstances of death (s 67 CA 2008).
However, the coroner is not to make any finding of guilt of an offence, but can comment as to a referral to the Director of Public Prosecutions (s 69 CA 2008).
If any person buries, cremates or otherwise disposes of the body of any person who died in such circumstances before the coroner has had an opportunity of viewing the body, that person is guilty of an offence.
The CA 2008 (ss 14, 15) gives the coroner wide powers regarding investigation of a death or the holding of an inquest. A coroner is not required to continue an investigation into a reportable death if a medical investigator provides an opinion that the death was due to natural causes despite the fact that the person died unexpectedly.
A coroner is bound to order an autopsy if the they believe that the autopsy is necessary for the investigation of the death and it is appropriate to give the direction (s 25(1) CA 2008). Alternatively, the coroner may not require an autopsy to determine the cause of death, instead relying on other sources of information available. The coroner may direct a medical investigator to perform a procedure on a body for the purposes of identifying the body (s 24 CA 2008).
Under section 27 of the CA 2008, any person may ask the coroner to direct that an autopsy be held.
The coroner is obliged to take reasonable steps to notify the senior next of kin of the deceased (as defined in the CA 2008) of the coroner’s intention to conduct an autopsy (s 26(1)). The senior next of kin has 48 hours to object to the carrying out of an autopsy. The senior next of kin has a right of appeal to the Supreme Court of Victoria if their objection is refused.
From 1 November 2009, the senior next of kin (as defined in the CA 2008) must be provided with any reports given to the coroner (s 115(1)(a) CA 2008). Interested parties may be given leave to appear at the inquest (s 56 CA 2008), if one is held, and must be provided with a copy of the inquest brief (s 115(1)(b) CA 2008). However, this right does not extend to general documents held by the coroner (s 115(6) CA 2008).
The CA 2008 provides that a coroner may provide a body to a medical investigator to enable a preliminary examination to be performed on a body, which consists of various non-invasive tests, such as taking and testing samples, X-rays, or similar imaging tests. Accordingly, a preliminary examination may provide sufficient information to establish the cause of death, without requiring the need for an autopsy. If an autopsy is ordered the coroner must take reasonable steps to notify the senior next of kin (s 26(1)) (as defined in the CA 2008).
Such an autopsy can only be ordered where the coroner believes it is necessary for the investigation of the death and it is appropriate to give such a direction (s 25(2) CA 2008). Within 48 hours of receipt of notice from the coroner, the senior next of kin may ask the coroner to reconsider the decision (s 26(2) CA 2008). The senior next of kin must be notified of the result of the coroner’s reconsideration. The autopsy still cannot take place until 48 hours have elapsed from the time the senior next of kin is notified of the result of the coroners’ reconsideration, so that the senior next of kin may apply to the Supreme Court to have the decision overturned (s 26(2), (3) CA 2008) if they wish to take that step. The appeal is heard before a single justice of the Supreme Court.
The coroner has the power to make recommendations to any minister, public statutory authority or entity regarding any matter where a death or fire has been investigated (s 72 CA 2008). The public statutory authority or entity receiving the recommendations is obliged to respond within three months (s 72(3) CA 2008). Unless otherwise ordered by a coroner, a coroner’s findings, comments and recommendations made following an inquest must now be published on the internet (s 73 CA 2008).