Lyn McCarthy: New bill will modernise Irish coronial law



Lyn McCarthy

Lyn McCarthy, associate solicitor in the healthcare team at Hayes Solicitors, sets out in full the Government’s proposed reforms to Irish coronial law.

The Coroners (Amendment) Bill 2018, currently progressing through the third stage of Dáil Éireann, seeks to strengthen the effectiveness of the Coroner’s inquest and to modernise an area of law which has for some time been identified as requiring significant reform. In so doing, it is hoped that Ireland’s compliance with its obligations under the European Convention on Human Rights will be significantly improved.

If enacted, the Bill will substantially amend the Coroners Act 1962 primarily in the areas of powers to compel evidence, mandatory reporting, notice of inquests, maternal deaths and perinatal deaths.

Power to compel witnesses and evidence

The Bill amplifies the Coroner’s power to compel witnesses at an inquest, to include the power to compel witnesses to produce documents, to give evidence and to answer questions.

Notably, the Bill also allows for penalties to be imposed on witnesses who fail to comply in any of these areas. Further, the Bill allows the Coroner to enter premises and take possession of relevant records on foot of a warrant from the District Court.

The scope of the Coroner’s powers under the draft legislation is a marked departure from the current position, which extends only to the compelling of witnesses to attend. At present, while failure to comply with any such summons is a criminal offence, only a modest fine may be imposed. Under the new Bill, the penalties are increased significantly and brought in line with comparative offences under similar legislation.

Mandatory reporting

The proposed provisions relating to mandatory reporting are, perhaps, amongst the provisions of the Bill which have attracted the greatest degree of publicity.

Under existing legislation, certain deaths are required to be immediately reported to a Coroner by a doctor or other responsible person. Such deaths include:

  • any death where there is reason to believe that it was due to a cause other than natural illness or disease for which the deceased was treated by a doctor within a month prior to the death;
  • any death ‘in such circumstances as may require investigation’.

These provisions are vague and have led to uncertainty around which deaths are reportable.

To legislate for this, the Bill contains express requirements for mandatory reporting, post-mortem examination and inquest into a death in specific situations, to include:

  • deaths which occurred in a violent or unnatural manner or by unfair means;
  • deaths which occurred by misadventure;
  • deaths which occurred unexpectedly and from unknown causes or in an unexplained manner;
  • deaths which occurred as a result of negligence, misconduct or malpractice on the part of others; and
  • deaths which occurred in such circumstances as may, in the public interest, require investigation.

Accordingly, the Bill affords greater clarity on whether deaths must be reported while also retaining a degree of discretion.

Under the proposed legislation, it will be an offence for a responsible person not to report a mandatory reportable death to the Coroner. In this regard, the categories of persons designated as “responsible persons” have also been extended.

Interestingly, where the current legislation focuses on the occupiers of a house or institution when imposing the obligations to report a death, the Bill extends this obligation to persons who had care of the deceased person immediately prior to his or her death; for example, the person in charge of an aircraft, ship or other vessel landing or arriving in the State on which the deceased person was travelling at the time of his or her death. As such, the Bill appears to take account of modern realities in the areas of care and travel, so as to ensure that all deaths which should require notification are captured.

Maternal Deaths

The Bill introduces for the first time mandatory reporting, post-mortem examination and inquest in all cases of maternal death or late maternal death (a death which occurs in excess of 42 days and less than 365 days following the end of a pregnancy).

Provision is made, however, for a special exception to a mandatory inquest at the discretion of the Coroner, after consultation with the bereaved family.

This discretion may be exercised where the Coroner is satisfied that the death was a natural one and there are no matters of concern requiring an inquest, taking account of specified matters including the views of the family and whether sufficient information has been provided to the Coroner regarding the death.

The Bill also seeks to extend the scheme of legal aid 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.

Perinatal deaths and stillbirths

The Bill provides for mandatory reporting to a Coroner of stillbirths, intrapartum deaths and infant deaths. Of note, there is no proposal for mandatory post-mortem examination or inquest in such cases.

It is envisaged by the Bill that post-mortem examination or inquest in a perinatal or infant death may, as is currently the case, be directed by the Coroner if concerns are raised, usually by the bereaved parents.

Notice of Inquest

The proposed legislation also contains new provisions detailing the notice of an inquest which is to be provided to family members of the deceased person. Furthermore, it specifically deals with information in respect of, and access to, reports and post-mortem examinations by family members.

These particular provisions mark a departure from the existing legislation which is silent in respect of both notice to, and the rights of, the deceased’s family.

Conclusion

As a whole, the Bill aims to modernise the law relating to the Coroner’s inquest, to include broadening its scope and strengthening the powers of the Coroner. In addition, the Bill seeks to provide greater clarity on the circumstances in which deaths must be reported to the Coroner and to modernise coronial law in Ireland as a result.

The Bill is currently before Dáil Éireann, third stage, and has been identified as a priority by government. The text of the Bill can be accessed here.

  • Lyn McCarthy is an associate solicitor in the healthcare team at Hayes Solicitors.