Gaeilge

Title:	Eastern Health Board -v- Farrell
Neutral Citation:	[2001] IESC 96
Supreme Court Record Number:	9 & 55/00
High Court Record Number:	1999 No. 138JR
Date of Delivery:	11/27/2001
Court:	Supreme Court
Composition of Court:	Keane C.J., Murphy J., Murray J., McGuinness J., Hardiman J.
Judgment by:	Hardiman J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Keane C.J. Link Murray J., McGuinness J. Hardiman J. Link

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Keane CJ.
Murphy J.
Murray J.
McGuinness J.
Hardiman J.

Between:

JUDGMENT delivered the 27th day of November 2001 by Mr. Justice Hardiman
1. I concur in the Order proposed by the learned Chief Justice. I do so on a narrow ground: I cannot see that the course of action followed by the coroner is consistent with Section 26 of the Coroner’s Act, 1962. Since this section, as I interpret it, constitutes a considerable restriction on the coroner’s powers in the conduct of inquests, I wish to set out my reasons in some little detail.

The functions of coroners

2. The office of coroner is of great antiquity. It is claimed by some authorities to predate the Norman conquest (See Hallsbury, Third Edition, Volume VIII). Blackstone (Sixth Edition, Volume I page 347) says that the office “is of equal antiquity with the Sheriff, and was ordained together with him to keep the peace, when the Earls gave up the wardship of the County”. Early medieval records have many references to the office of coroner and in particular to the grant by the Crown of the power to select a coroner to the citizens of various cities. The original jurisdiction of the office was wider than its present one and it still retains some traces of the old jurisdiction. As Keane J. (as he then was) said in Farrell v. Attorney General [1998] IR 203 at 223:-

“The holding of an inquest by a coroner, with or without a jury, has been a feature of our law for many centuries. While few would dispute the need to have a public inquiry by a person with appropriate legal or medical qualifications into the death of a person as a result of violence or in other circumstances which render such an investigation appropriate, our present law governing inquests, despite its partial modernisation in 1962, is in some ways anachronistic, as witness the continuing jurisdiction to hold inquests into ‘treasure throve’ (see Section 49 of the Act of 1962)”.

3. The relevant jurisdiction of the coroner, however, relates to the holding of inquests into the death of certain deceased persons. The modern rationale for the holding of such inquests or inquiries is in my view correctly stated in an English authority cited in the judgment just quoted. This is the report of the Broderick Committee on Death Certificates and Coroners Inquests (Cmnd. 4810). This identified the aspect of the public interest which a coroner’s inquest should serve as:-

(1) To determine the medical cause of death,

(2) To allay rumours or suspicions,

(3) To draw attention to the existence of circumstances which, if unremedied, might lead to further deaths,

(4) To advance medical knowledge,

(5) To preserve the legal interests of the deceased person’s family, heirs or other interested persons.

4. By Section 17 of the Coroners Act, 1962 it provided that:-

“...... It shall be the duty of the coroner to hold an inquest in relation to the death of (a) person if he is of the opinion that the death may have occurred in a violent or unnatural manner, or suddenly and from unknown causes or in a place or in circumstances which, under provisions in that behalf contained in any other enactment, require that an inquest should be held”.

5. The next section confers a power to hold an inquest “where a coroner is informed that the body of a deceased person is lying within his district and that a medical certificate of the cause of death is not procurable.......”.

6. Section 18(4) contains an obligation on various persons to notify the coroner if they:-

“....... have reason to believe that the deceased person died, either directly or indirectly, as a result of violence or misadventure or by unfair means, or as a result of negligence or misconduct or malpractice on the part of others, or from any cause other than natural illness or disease for which he had been seen and treated by a registered medical practitioner within one month before his death, or in such circumstance as may require investigation (including death as the result of the administration of an anaesthetic...... ” Such persons “ shall immediately notify the coroner within whose district the body of the deceased person is lying of the facts and circumstances relating to the death”.

7. In relation to the form of the inquest itself, Section 30 of the Act provides:-

“Questions of civil or criminal liability shall not be considered or investigated at an inquest and accordingly every inquest shall be confined to ascertaining the identity of the person in relation to whose death the inquest is being held and how, when and where the death occurred”.

8. This is followed by a prohibition on any verdict or rider of an inquest containing a censure or exoneration of any person. There then follows Section 31(2) which provides that:-

“Notwithstanding anything contained in sub-section (1) of this Section, recommendations of a general character designed to prevent further fatalities may be appended to the verdict at any request”.

9. The role of the jury at an inquest has been the subject of some comment during the hearing of this appeal. Section 39 of the Act provides that, in general a coroner may hold an inquest with or without a jury, as he thinks proper. Section 40, however, sets out five circumstances in which a jury must be sworn. The fifth and most general of these is:-

“That the death of the deceased occurred in circumstances the continuance or possible recurrence of which would be prejudicial to the health or safety of the public or any section of the public”.

Conclusions from above

10. From the above materials it is possible, in my view, to reach certain conclusions as to the intended extent of the coroner’s jurisdiction. Where an inquest is properly convened, he, and where a jury is involved, the jury, must establish the identity of the deceased and how when and where the death occurred. He or they are debarred from considering any question of civil or criminal liability, and cannot attach censure or exoneration to any person. That is not to say that their inquiry may not properly extend to topics which would also be considered by a civil or criminal court. He or they may make recommendations of a general character designed to prevent further fatalities. From the terms of Section 40(1)(e) it appears that these recommendations may, inter alia, address circumstances which might be prejudicial to the health or safety of the public or any section of the public.

“How. the death occurred”.

11. The construction of this phrase in Section 30 of the Act was the subject of considerable argument on the hearing of this appeal. Undoubtedly the most restrictive interpretation is to be found in the judgment of this Court in Greene v. McLoughlin (unreported, judgment delivered 26th January, 1995). In that case Blayney J. said:-

“It seems to me that how death occurs in any particular case is a matter to be determined in the light of medical science. It is a medical question for a doctor, to be answered, if necessary, by performing a post mortem examination. In the present case, the answer to the question as to how death occurred was to be found in the evidence of the consultant pathologist which was that it was due to shock, due to extensive destruction of the brain and the bones of the skull due to bullet wound in the forehead”.

12. It was submitted on behalf of the Appellants in this case that the approach just cited leads inevitably to the conclusion that a coroner or jury would be confined merely to admitting the pathologist’s report and adopting it as their verdict. I agree with this submission. I believe that this extremely narrow construction of the phrase quoted from Section 30 of the 1962 Act would reduce the inquest to a mere rubber stamp. Accordingly, I agree with the judgment of the learned Chief Justice, first that the passage cited is obiter and secondly that it rests on an unduly narrow construction of Section 30.

13. It is common knowledge that in very many cases the proximate cause of death is itself secondary to some other condition or process, whether medical or external. To confine an inquiry into “how the death occurred” to the ascertainment of the immediate or proximate cause would often be utterly uninformative. Certainly, this exercise would in very many cases fail to meet any of the purposes of a coroner’s inquest, identified above. It would not be acceptable, for instance to state merely the death was caused by cardiac arrest without distinguishing whether the arrest in itself was induced by some process of disease, or by external trauma.

14. On the other hand, the formula “how the death occurred” in my opinion excludes matters not causally related to the process leading to death. In R v. Northumberside Coroner, ex parte Janieson [1995] QB1, it was held that the word “how” in a cognate but not identical phrase in the relevant English statute, meant “by what means” and not “in what broad circumstances” death occurred.

15. The case just cited, like other English authorities referred to in argument, were cases where the actual cause of death was clear but it was desired that the coroner’s inquest consider the question of want of care allowing, in the case mentioned, a person to commit suicide while in custody. This topic does not appear to me to relate to the manner of death, but rather to the broad circumstances in which death occurred.

16. These cases do not appear to me to be similar to the present one. The question of whether the three in one vaccine played any causal role in the death seems, in principle, to be within the meaning of the term “how the death occurred” and to be a question of a medical nature.

17. Counsel on behalf of the Notice Parties, the parents of the deceased, submitted that if he had died within a short time of receiving the three in one injection there could be no objection to the coroner inquiring into whether or not the injection had any role in the condition which led to his death. I agree with this submission and I do not consider that lapse of time places a possible causative factor outside the remit of the coroner, though it may make the establishment of causation more difficult. Counsel for the coroner submitted, convincingly in my view, that an inquest into the death of a person who died following contracting of a blood disorder would not be precluded from examining the circumstances of a transfusion had by the deceased, even if it occurred many years earlier.

18. Accordingly I do not consider that the facts that the three in one injection was administered to this deceased in his extreme infancy was in itself a factor which would preclude this examination at the inquest.

19. Accordingly, I consider that the issue of whether the death was caused wholly or in part by the administration of the three in one pertussis vaccine is within the possible scope of an inquest held pursuant to the Act of 1962. The question remains, however, of whether the steps taken by the course of his inquiries and in particular the commissioning of a further report and the calling of a further medical practitioner to give evidence are permissible having regard to the terms of Section 26 of the Act.

Section 26

20. The terms of Section 26 of the Act, in so far as relevant, are as follows:-

“(1) A coroner may, at any time before the conclusion of an inquest held by him, cause a summons in the prescribed form to attend and give evidence at the inquest to be served on any person (including in particular any registered medical practitioner) whose evidence would, in the opinion of the coroner, be of assistance at the inquest.

(2) A coroner shall not exercise, in relation to the attendance at an inquest of a second registered medical practitioner, the power conferred on him by sub-section (1) of this section unless .......”

21. It is agreed that neither of the two exceptions which then follow apply in the present case.

22. The legislative antecedents of Section 26 are not without interest. I can trace no restriction on the power of a coroner to call any number of medical witnesses until the year 1836. But clearly coroners encountered some difficulty in securing the attendance of professional witnesses when it was not possible to remunerate them for their time and effort. By 10 Geo.4 IV Cap. XXX v. II [1829] the Coroners (Ireland) Act Section 3 provided:-

“And whereas at inquests held by coroners upon the bodies of deceased persons, great difficulty exists in procuring the attendance of witnesses duly qualified to give evidence as to the cause of the death of such persons, by reason of the want of any power to remunerate such witnesses for their trouble and loss of time; be it enacted, that it shall and may be lawful for any coroner, before whom any physician, surgeon, apothecary, chemist, or other person practising medicine or surgery shall, in pursuance of a summons from such coroner attend and be examined relative to the death of any deceased person, to grant to such witness an order, signed by such coroner, upon the treasurer of the County or County of a City within which such inquest shall be held, for such sum not exceeding £5 as to the coroner shall seem fit.”

23. That provision does not appear to me to limit the number of witnesses who might be so remunerated, though it will be observed that they could not receive an order for payment unless they had been summonsed.

24. Seven years later, by 6&7 Wm IV Cap LXX IX (“An Act to provide for the attendance and remuneration of medical witnesses at coroners inquests ”) a limitation on numbers was first imposed. This is an Act remarkable for its convoluted syntax but in so far as is relevant it provides that any doctor who is in attendance on the deceased on his last illness could be summoned and:-

“If it shall appear to the coroner that the deceased person was not attended immediately before his death by any legally qualified medical practitioner, it shall be lawful for the coroner to issue such order for the attendance of any legally qualified medical practitioner being at the time in actual practise in or near the place where the death has happened; and it shall be lawful for the coroner either in his order for the attendance of the medical witness, or at any time between the issuing of such order and the termination of the inquest, to direct the performance of a post mortem examination by the medical witness or witnesses who may be summoned to attend at any inquest; provided that any person shall state upon oath before the coroner that in his or her belief the death of the deceased individual was caused partly or entirely by the improper or negligent treatment of any medical practitioner or other person such medical practitioner or other person shall not be allowed to perform or assist at the post mortem examination of the deceased”.

25. Section II of the Act provided:

“Wherever it shall appear to the greater number of the jury men sitting at any coroner’s inquest, that the cause of death has not been satisfactorily explained by the evidence of the medical practitioner or other witness or witnesses who may be examined in the first instance, such greater number of the jury men are hereby authorised and empowered to name to the coroner in writing any other legally qualified practitioner or practitioners, and to require the coroner to issue his order. for the attendance of such last mention the medical practitioner or practitioners as a witness or witnesses, and for the performance of a post mortem examination...... further such examination has been performed before or not”. (emphasis added)

26. It was then provided that the refusal of a coroner to comply with this request was a misdemeanour.

27. Unlike the 1829 Act, which applied to Ireland only, the later Act applied to the whole of the United Kingdom apart from Scotland. Both Acts were repealed by the Coroners Act, 1962.

28. From this history it appears that the power to remunerate the medical witnesses was conferred because of the difficulty of procuring their attendance without such remuneration. This occurred in 1829. Seven years later the coroners power to summon a medical witness seems to have been confined to one only, unless perhaps there was a question of medical negligence. The power of the jury, by a majority, to require the calling of additional medical evidence was conferred at the same time, and was not restricted to a single witness.

29. It is clear from the contents of the 1836 Act that the question of whether death was occasioned by negligent treatment was specifically envisaged as a matter which the jury might consider. It also seems to me clear that the jury’s power to summon additional medical witnesses either as first conferred, or as altered by the Act of 1962, was and is likely to be redundant unless the jury are informed of that power.

30. It is also clear from the history of the present inquest that the restriction contained in Section 26 was not observed by the coroner, presumably because it was not present to his mind. I do not believe that this inquest is unique in that respect.

31. In the course of the present inquest, the coroner and jury heard the evidence of Dr. Padraic MacMathuna, Professor Neil O’Doherty, Dr. Barbara Stokes, Professor Maurice Tempany as well as a Dr. Lane and a Dr. Cronin. It would appear that the latter two gave evidence in relation to records only. Three further reports from Professor Behan, Dr. John Wilson and Professor John Stephenson were submitted to the coroner: it appears that all these persons are medical practitioners. According to the coroner’s affidavit, he felt that there had been a conflict of expert opinion and formed the view that an independent medical opinion was required to assist the jury in their deliberations. He identified Dr. Karina Butler as a suitable person to supply this evidence and at his invitation she appears to have compiled a report.

32. On the face of Section 26, the coroner is precluded from calling more than one registered medical practitioner to give evidence at an inquest unless, in the circumstances set out in the section, he becomes entitled to call “a second” such person. I agree with the judgment of the learned Chief Justice that this prohibition could scarcely extend to a person who happens to be a medical practitioner but is not called in that capacity. This might conceivably extend to the doctors called merely to give evidence about records. However, on any view it would appear that there is no mandate in any circumstances for calling more than two medical practitioners to give evidence in that capacity. This number has already been exceeded.

33. I have considered the possibility that the prohibition contained in sub-section (2) of Section 26 extends merely to calling additional medical practitioners by summons i.e. that it does not apply to hearing the evidence of a practitioner who attends voluntarily. However, for the reasons given in the judgment of the learned Chief Justice I do not consider that it would be legitimate so to construe the section. The intention of the legislature appears to have been to place a significant restriction on the power of the coroner to require the medical evidence of a second practitioner and apparently to exclude the summoning of a third or further such person. This restriction on the power of the coroner himself seems inconsistent, on any purposive construction, with the existence of an untrammelled power in persons without any official standing to call as many medical witnesses as they can induce to attend without summons, whether by payment or otherwise.

34. Since this appears to be the effect of the section ,it does not appear possible for the coroner further to pursue his inquiries into whether the three in one injection caused or contributed to the death in this case. It appears to me an anomalous result that a restriction of this kind is placed on an inquiry into “how the death occurred”. The coroner has deposed:-

“While aspiration pneumonia is a proximal or terminal cause of death it is always the consequence of some other condition which is the true cause of death. In so far as the inquest seeks to determine how (the deceased) died it is an inquiry into this cause of death and not into the immediate condition”.

35. He has also deposed, having summarised the evidence of the mother that:-

“Dr. Curry (the mother’s) obstetrician has not yet given evidence. It is intended that he give evidence to endeavour to establish whether or not the child was normal after delivery and in the early months of life”.

36. He has also, in the passage quoted above, deposed that he considers that further medical evidence is “required to assist the jury in their deliberations”.

37. It is therefore with some regret that I conclude that he is precluded from doing so by the terms of Section 26.

38. It may be that Section 26 was framed at a time when medical issues, like many others, appeared much simpler than they do now. Medical expertise, like so much else, has become fragmented into smaller fields of infinitely greater focus. For example, in the present case the effect of the section appears to be that if the coroner decides to summon a pathologist then he cannot, except in the special circumstances outlined in Section 26, also summon an expert in vaccination. If he were able to summon both these practitioners, he would be precluded from calling the obstetrician who delivered the child and might have significant evidence to give as to his state at or shortly after birth.

39. It might be thought that Section 26 evidences a general intention on the part of the legislature to limit, in the interests of economy or otherwise, the amount of evidence that can be given. But this seems inconsistent with the power to make recommendations of a general kind and with the necessity to summon a jury if “the death of the deceased occurred in circumstances the continuance or possible recurrence of which would be prejudicial to the health or safety of the public or any section of the public”.

The apprehensions of the Health Board

40. In his judgement in this case the learned trial judge referred to the jury’s power to make general recommendations and added:-

“The Health Board makes no secret of the fact that it is afraid that a misguided jury could make a recommendation not warranted on the evidence but which could be extremely damaging to public confidence in the vaccine practices”.

41. In my opinion this apprehension is an inappropriate one both in law and on the basis of practical experience.

42. Firstly, the scheme of a Coroner’s Act is clearly one which envisages the consideration by a jury of circumstances of possible prejudice to the health or safety to the public or any section thereof. That such circumstances can extend to medical misadventure is illustrated by the terms of Section 18(4) which envisage the reporting of a death “in such circumstances as may require investigation (including death as a result of the administration of an anaesthetic)”. The acknowledged general purposes of a coroner’s inquest, set out above, tend to emphasise, inter alia, the role of an inquest in allaying public disquiet and drawing attention to circumstances which, if unremedied, might lead to further deaths, as well as to the advancement of public knowledge.

43. Secondly, it does not seem to me unreasonable that a jury should be involved in this exercise. Especially in a time when decisions in many areas are taken by professional and administrative elites whose ability to communicate meaningfully with the general public is sometimes questionable, the basis on which the Oireachtas have elected to involve a jury in matters such as those under discussion in this case, seems both clear and justifiable. Moreover, there is nothing in the history of the discharge by juries of the duties assigned to them to suggest that there is any basis for a genuine apprehension that a jury would proceed on a basis not warranted by the evidence. The apprehension itself, in my view, is wholly unwarranted by evidence or experience.

44. S26 is in my view, in contemporary conditions, a serious obstacle to the proper discharge of the statutory duty of a coroner in the more complex type of inquest, whether he or she is sitting alone or with a jury. 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.

Conclusion

45. I conclude that the vires of the coroner do not extend to the reception of the evidence of Dr. Butler or any other medical practitioner with a view to considering whether the three in one injection caused or contributed to the death of the deceased. On this narrow ground I would dismiss the appeal.