Coroners Bill

Part 2 deals with a lot of the machinery provisions of the Coroners Act and will re-enact a lot of what is contained in the 1988 Act, so I will concentrate on one issue in particular—that is, the retention of bodily parts and bodily samples. But before I do so, I want to acknowledge the huge contribution to law reform in this area by Denese Hēnare, when she was a member of the Law Commission. For those who do not know her, Denese Hēnare is an extremely distinguished Auckland lawyer who made a huge contribution to the Law Commission, and it is fair to say that, at the end of her term, the Law Commission was very keen for her to be reappointed but the then Minister in charge of the Law Commission—a Labour member—refused to reappoint her, and instead appointed—

💬 Dr Wayne Mapp: What appointment did they make?

CHRISTOPHER FINLAYSON I think it was a Labour flunky. Labour appointed Professor Ngātata Love who, I have to say, has made absolutely no contribution whatsoever to the Law Commission, and, in fact, it is fair to say that no one in the Law Commission wanted him. Be that as it may, let us move on to Part 2, “Deaths to be reported and post-mortems”. I begin by saying that I think it is pretty unacceptable that we have the term “post-mortems”, because it should be “post-mortes”. But this is the way legislation is going; no one observes correct Latin terms any more, and no one seems to understand them. It is a very sad state of affairs.

So what are the sorts of deaths that need to be reported in this legislation? They are set out in clause 11 and there are five of them. The first, obviously, is suicides and deaths where there is no established cause; the second is deaths for which no doctor’s certificate is given; the third, and important, cause is deaths during medical, surgical, and dental operations, which happens quite a lot—although I would not have thought it happened very much in dental operations, but there we go—the fourth is deaths in official custody or care; and the fifth is deaths in detention.

I point out to honourable members an interesting jurisdictional clause in clause 11(2), which provides that the subsection will apply only to deaths that have occurred in New Zealand, or deaths that are on or from an aircraft registered in New Zealand or a New Zealand ship, or a ship or aircraft of the armed forces, which is all pretty standard stuff and not surprising. Then there are a number of clauses that deal with custody and removal of bodies, and as they simply re-enact relevant provisions of the 1988 Act, I am not going to dwell on those.

There are very important provisions that deal with the interests of families and other relevant people or organisations and the need to keep families informed about exactly what is happening with a post-mortem. But the particular part that the committee spent quite some time on was the clauses from clause 40 onwards dealing with the release of bodies and the retention and return of body parts and bodily samples. We spent some time dealing with the definitions of those two terms, because as the bill was originally drafted the phrase “bodily sample” was very generally defined and we thought that some specificity was required, so that members of the family would know exactly what was involved and what rights they had. Then, secondly, there is the definition of “body part”. Originally it was simply going to be that a body means any part of a body, but as members can see from the definitional section the definition is that much clearer.

The important part about these sections are the ones that the committee substituted—that the pathologist, although he or she may remove a bodily part or bodily sample, has to keep the family, the immediate family, or those interested advised of what is going on with that bodily part, and, importantly, a person is to be advised of the right to request the return of those parts or samples. The sort of situation that we heard of during the Justice and Electoral Committee hearings—a situation which often occurs, surprisingly—is that some months after the funeral, the body having been buried or cremated, the immediate family is sent a bodily part or bodily sample, which can cause a great deal of stress—

💬 Dr Wayne Mapp: The brain case.

As my friend the member for North Shore, Dr Mapp, said, there is a famous case concerning a brain. Imagine the feelings one would have if a relative’s brain turned up in the mail. It would probably not affect Labour members because there are not too many with them. But anyway, that is what those clauses are about. They are very important clauses. The rest of them are basically machinery and that is why we spent quite some time on those clauses in the select committee.

In rising to speak to this bill I acknowledge Chris Finlayson, who was a very hard-working and conscientious member of the Justice and Electoral Committee. I know that we worked very, very hard on this bill to make it the bill it is today. It will deliver a much better coronial service in New Zealand and enhance public confidence in that service.

I acknowledge in particular all the work done by JPs who worked under the former system, who gave tremendous time, energy, and skill with no remuneration. I point out that we on the committee, whilst wanting to deliver a better system, spent quite some time discussing how the new system in no way denigrated the contribution that JPs and coroners provided under the old system. Quite to the contrary, many—in fact, most—went far beyond the call of duty in their commitment to providing a good service.

I also acknowledge the Law Commission. It spent a lot of time on this bill, which replaces the Coroners Act 1988. The Law Commission worked very hard on this bill and looked at how we could have the best system to address a very difficult circumstance for people in New Zealand.

The key element that the bill establishes is the office of the chief coroner. We know that that is quite instrumental to providing the best system and support for people who use the coroners service, and moving to a smaller number of mostly full-time and appropriately legally qualified coroners will be the best service.

💬 Dr Richard Worth: I raise a point of order, Mr Chairperson. To this point the honourable member has not dealt with Part 2, at all. She is dealing with Part 1, “General provisions”; Part 2 is headed “Deaths to be reported and post-mortems”.

The CHAIRPERSON (Hon Clem Simich): I was just about to address that issue.

I thank the member for drawing my attention to a technicality—something, I have to say, he was not quite so good at earlier in the Chamber this afternoon. I will end this call now, but I just say that this bill does actually ensure that families are notified at significant steps. I feel really proud to be part of a Government that has introduced this legislation, and proud of the hard work the committee has done, despite Dr Worth’s slightly obsessive manner of dealing with things. I know that this is a good bill, and I commend it to the Committee.

Thank you, Mr Chairman, for the opportunity to speak on Part 2 of this Coroners Bill, which National is supporting. Unfortunately, the Labour member opposite who has just spoken, Lynne Pillay, seemed to go a little astray as to which part she was addressing. Part 2 certainly deals with deaths to be reported and post-mortems, and I am grateful to my colleague Chris Finlayson for being a Latin scholar and pointing out that the correct term is post-mortes.

This part of the bill is particularly important in the historical context of informed consent, because this country has gone through some very important inquiries where, unfortunately, the lessons were not learnt initially. I am, of course, referring to the National Women’s Hospital cervical cancer inquiry, where the issue was around informed consent. The inquiry really revolutionised the practice of medicine, to ensure there was a thorough process of gaining informed consent.

Unfortunately, following that inquiry came the Gisborne Cervical Screening Inquiry, and after that the Green Lane Hospital heart library episode, which resulted—[Interruption] I am sorry; there was an interjection from across the Chamber? The Green Lane Hospital heart library episode was particularly important. A group of health workers and clinicians had totally altruistic aims of collecting body parts to be used for learning and for improving techniques—indeed, that is exactly what happened. Unfortunately, despite the previous inquiry, they had not been thorough in their informed consent processes. So it is particularly worthwhile to see in Part 2 the extremely thorough informed consent processes relating to post-mortems, and particularly to body parts and bodily samples.

If I may digress for one moment, I want to acknowledge the work of the Auckland coroners Dr Murray Jamieson and Sarn Herdson, who have been full-time coroners there over the last 4 years. They reported in their submission to the Justice and Electoral Committee that since 2001 the number of coronial files opened and post-mortems carried out in Auckland has fallen by 30 percent, despite the fact that the Auckland population has increased substantially. They point to three major reasons for this. One is changes to the Births, Deaths and Marriages Registration Act, which widened registered medical practitioner powers in respect of issuing medical certificates and stating causes of death. The second is the availability of one of the coroners from 7 a.m. to 11 p.m., 365 days a year. That is quite an incredible service. In fact, the service begins even earlier; police officers gather at the mortuary at 5.30 a.m., and call through to the coroners themselves at 6.45 a.m. This enables the coroners to discuss deaths with doctors, police officers, and families, which results in much more complete understanding and information transfer than previously. The third reason they point to is that the education processes put in place for medical students, medical practitioners, police officers, and the general public have generally been enhanced. Those three reasons together have meant that there has been a 30 percent decrease in post-mortems in the area, under the Coroners Act. That has been a very important contribution.

The Auckland coroners have also been responsible for supporting the whānau facility, which is available to all, although it is used mainly by Māori whānau. It is also used by Pacific Island families and members of the Jewish and Muslim faiths. It provides for an early-release scheme such that a body can be returned to a family within hours of its arrival. That too is an incredibly important change from a situation where bodies could remain for days and even weeks, to the huge distress of the family.

To finish, the other point the Auckland coroners’ submission makes relates to clause 44 and to the retention and return of body parts or bodily samples. The Auckland coroners, although they agreed with the general intent of clause 44, felt that the proposal: “A part or sample retained under section 43(2)(a) or (b) or (c) must be returned … ” was problematic. The reason was that usually these samples are very tiny—minute, in fact—and can be used much later for either chemical, biological, toxicological, or genetic analysis. If retained, such remnants might be quite valuable to the family later on.

So it is pleasing to see that this part has, on the one hand, detailed very carefully the informed consent procedures, and, on the other hand, allowed the technical ability, if the family agrees, for bodily samples to be retained so that they may be used later on.

I stand to support Part 2, “Deaths to be reported and post-mortems”. When I looked over the bill I realised that it is very important to have clarity in detailing exactly what types of deaths need to be reported. This bill serves that purpose. I support the bill, which standardises practices. The types of deaths that are required to be reported are all very sudden and unexpected deaths, and it is really imperative that no confusion whatsoever exist about which cases need to be referred to the coroner. The unexpected nature of these deaths means that families and practitioners will be shocked and that many questions will need to be answered. It is important that the process be managed in a sensitive and expedient way. This bill sets out the framework for that to occur.

The bill lists the types of deaths that are to be reported and provides great clarity as to the situations that arise when deaths occur as a result of a medical or surgical procedure or an anaesthetic. Other situations listed are fairly standard, and we are all aware of them. They include death without known cause, suicide, unnatural or violent death, death for which no doctor’s certificate is given, death that occurs while a woman is pregnant or while giving birth, and death of a patient who has been treated for alcohol or drug addiction. An important inclusion is death that occurs through an army, maritime, or aircraft accident or incident. In such cases the clues to working out how such a dreadful accident or other event has occurred are very valuable and important to the families.

Clause 12 deals with reporting of deaths to the police. This is quite an important clause. It is absolutely appropriate that the police be the proper authority to receive reports of sudden and unexpected deaths. I am sure no one would dispute that. This clause covers not only persons who discover a death but persons who learn about a death. The only time a person is not required to report a death to the police is when he or she believes that the death is already known to the police or will be reported to a member of the police. Clause 13 describes the reporting of a death to the coroner by police and, of course, applies to members of the police, as such.

There are some clauses in Part 2 that have been modified—I believe for the better. I would like in particular to comment on clause 23, which deals with the viewing, touching, or remaining with or near the body in a coroner’s custody. There have been changes to this clause, which means there is provision for members or representatives of the immediate family, or people who are performing religious or spiritual services or advice, to be present. This indeed is a very compassionate clause. It has regard for the family’s need to grieve and be counselled and supported by a religious person or spiritual adviser. Those people will, of course, need the coroner’s permission to be present. I believe that these provisions are excellent additions to the bill.

I would like to make some additional comments about clause 38, which has also been modified. The old clause 38 stated that a coroner may direct a doctor who attended a person before death to attend a post-mortem and/or give the coroner a written report relating to the person. That has now changed so that a doctor who attended a person before death can no longer be directed to attend a post-mortem. I doubt whether the original provision would ever have been enforced in recent years, as doctors are busy people. Also, autopsies are conducted by specialist pathologists and I do not consider that the attending doctor would be able to add any extra information. So I think it is quite right that this clause has been amended.

Clause 40 has also been modified. It deals with the return or retention of bodies, body parts, and bodily samples, as has been mentioned by my colleague Chris Finlayson. I would like to make a few comments about it, as well. In particular, clause 40C deals with the release of still-born children. This clause gives the coroner authorisation to release a still-born child, if the coroner has directed the pathologist to perform a post-mortem and if the pathologist has concluded that the child was still-born. In the old bill, there does not appear to be a specific reference to still-born children, and this might have resulted in a variety of different practices. So it is good that this clause brings uniformity and standardisation of practice. Clause 42 is about the receipt, removal, and taking of parts and samples.

Thank you, Mr Chairman, for allowing me to take this call on Part 2 of the Coroners Bill. The issue of death is a particularly sensitive one, and it is important that violent and sudden deaths, especially, are dealt with not only with due sensitivity but also with absolute professionalism and timeliness. This bill is designed to reform our coronial system, recognising the rights and interests of families but also putting some emphasis on cultural and spiritual sensitivity.

Coroners deal with often sad and tragic deaths. When someone dies of a violent, sudden, or uncertain death, there should be a proper inquiry, and the bereaved friends, family, and relatives need to know what happened and why it happened. Part 2 deals with the reporting of deaths, the custody and removal of bodies, the interests of families, post-mortems, and the return or retention of bodies or parts thereof. Death is not an easy subject. It is an emotional time for families and friends, and it is important that the situation is dealt with properly and professionally, yet with sensitivity and, certainly, timeliness. This bill is not just about dealing with bodies; it is about dealing with bereaved family and friends.

Clause 11 provides for the reporting of deaths—not all deaths, but those that appear to have been without known cause, suicide, or unnatural or violent. It covers, to name some of the instances, death that occurred whilst a person was undergoing a medical, surgical, dental, or similar operation; death during childbirth; death of a patient detained in an institution for alcoholism, drug addiction, or mental health reasons, or under the Intellectual Disability (Compulsory Care and Rehabilitation) Act or Corrections Act; and death in the custody of the police.

It is interesting, if we go back in history, to compare those with some of the original examples of death covered by coroners. One of the old editions of Halsbury’s Laws of England, if members will permit me to digress a little, covered deaths in prisons—not unlike what occurs today—and deaths of persons of unsound mind. In the case of a death of a patient of unsound mind: “Notice thereof, together with a statement relating thereto, must, before the expiration of the second day after the day of the death, be sent by the person in charge to the coroner of the district.” Today we still have persons of unsound mind. The old Halsbury’s Laws of England refers to “infants taken into care”. Again, this is quite interesting. I do like to go back in history, because I think history is really important. The book states: “If any person undertakes for reward the nursing and maintenance of an infant under the age of 9 years, apart from its parents or having no parents, such person in case of the death of any such infant must, within 24 hours of such death, give notice in writing thereof to the coroner of the district within which the body of such infant lies”—

💬 Simon Power: What does that mean?

—I have no idea—“and the coroner must hold an inquest thereon unless a certificate under the hand of a duly qualified medical practitioner is produced to him certifying that such medical practitioner has personally attended such infant during its last illness and specifying the cause of death, and the coroner is satisfied that there is no ground for holding an inquest.” It does not matter what it means. The interesting thing is: “If the person having the care of such infant neglects to give such notice, such person is on summary conviction liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding £25.”

💬 Simon Power: That clears that up.

Yes. One of the other types of death that the coroners legislation covered, under Halsbury’s Laws of England, was that of drowned persons.

💬 Hon Member: Tell us about that.

OK, I will: “If a dead human body be found in or cast on shore from the sea or any tidal or navigable waters, or is found floating or sunken in any such waters and brought to the shore or bank thereof, the person finding the same must within 6 hours thereafter give notice to a police constable acting within the parish in which such body is found, under a penalty of £5.”

I move, That the question be now put.