800 years of coroners: have they a future?

Legal mediche

800 years of coroners: have

they a future?

Introduction The office of coroner is 800 years old this year. The Articles of Eyre in September, 1194, provided for the election by every English county of three knights and one clerk as "custos placitorum coronae"-keepers of the pleas of the crown.l-4 Their main purpose was to protect the Crown’s financial interests from corrupt sheriffs. In medieval times, their jurisdiction extended to treasure trove, wrecks of the sea, catches of royal fish (whales and sturgeon), and valuing the goods and chattels of felons and outlaws. The coroner’s interest in death was a pecuniary one-eg, unless the coroner could establish that a murder victim was English, he or she was presumed to be Norman, which resulted in the "murdrum" fine for the community in which the body was found. In the early 13th century this fine was also exacted for the accidental and sudden natural death of Normans. By the late 15th century, coroners’ fiscal powers had been taken over by justices of the peace. In 1836, as a result of concern about hidden homicide, compounded by the activities of Burke and Hare, the grave robbers, two Acts were passed, The Births and Deaths Registration Act and an Act to provide for the Attendance and Remuneration of Medical Witnesses at Coroner’s Inquests. Under the former there could be no burial without either a registrar’s certificate or a coroner’s order; the latter (introduced to Parliament by Thomas Wakley, coroner for West Middlesex from 1839) empowered a coroner to compel a doctor’s attendance at an inquest and to order a necropsy. It seems that public concern at the possibility that murder might be concealed remained the underlying consideration of the Coroners Act 1887 which consolidated and reformed the law relating to coroners.2 The coroner’s duties in the detection of crime were diluted by the Coroners (Amendment) Act 1926 which required the coroner to adjourn the inquest if a person was charged with murder or manslaughter of the deceased. Those duties were brought to an end by the Criminal Law Act 1977 which excluded the question of criminal liability from the purposes of the inquest.

Purpose of coroners’ system In England and Wales At the conclusion of an inquest, the coroner (or the jury, if one has been summoned) must give a verdict, certify "who the deceased was and how, when, and where the deceased came by his death", and provide the particulars required to register the death, matters originally of financial significance to the Crown. This purpose was replaced by the detection of homicide which is now done by the police.

The question arises: what is the purpose nowadays of the coroners’ system? Lord Justice Simon-Brown, in his foreword to the 11 th edition of Jervis on Coroners,3wrote: "... what may be achieved by way of the formal inqusition has steadily been whittled down over the years ... there has never been a greater need than in these explosive days to ensure that tragic fatalities are investigated thoroughly and independently ... That essentially is what the Coroner’s Court exists to do. And doing it goes a long way towards controlling high-running emotions and assuaging public anxieties."

The value of

assuaging public anxieties should not be underestimated, but, as Simon-Brown acknowledges, very little else is achieved by an inquest. In 1971, the Committee on Death Certification and Coroners5 (the Brodrick Committee), considered the purpose of an inquest to be: "(i) (ii) (iii) (iv) (v)

To determine the medical to

allay

rumours or

cause

of death;

suspicion;

draw attention to the existence of circumstances which, if unremedied, might lead to further deaths; to advance medical knowledge; to preserve the legal interests of the deceased person’s family, heirs, or other interested parties." to

The first of Brodrick’s grounds is not specific to a coroner’s inquest: 89 % of deaths reported to coroners in England and Wales in 1993 were handled without an inquest.6 The fourth ground may be regarded with circumspection as coroners’ findings do not form part of an integrated survey of death and although medical or surgical hazards may be explored at an inquest, it is unlikely medical knowledge is much advanced in this way. The fifth ground was recently undermined by Lord Justice Dillon in R v Inner North London Coroner, ex parte Thomas:7 "it is not the function of a coroner’s inquest to provide a forum for attempts to gather evidence for pending or future criminal or civil proceedings.

This leaves two of Brodrick’s reasons for a coroner’s inquest. The second, the use of an inquest as a safety valve and to allay suspicion has already been acknowledged. The third reason is the one the inquest is best suited to serve: the identification and investigation of potentially preventable deaths.

Coroner as As

Investigator of preventable deaths

early as 1915, William Brend wrote:8 "... if prevention of deaths is not now regarded as the main to be served by inquests, the inquiry becomes of relatively little value." purpose

The Ontario Law Reform Commission reviewed Ontario’s coroners’ system in 1971 and concluded:9 Vlctorlan Institute of Forensic Pathology, 57-83 Kavanagh Street, South Melbourne, Victoria 3205, Astralla (Prof S M Cordner FRCPA); and King’s College, London, UK (B Loff LLB)

Correspondence to Prof S

M Cordner

"in addition to carrying out its present procedures [the coroner’s office] should move toward the concept of being a major provincial centre for the control of preventable " death."

799

The Australian Royal Commission into Deaths in Custody commented in 1991:10

Aboriginal

"Moreover, in human terms, thoroughly conducted coronial inquiries hold the potential to identify systemic failures in custodial practices and procedures which may, if acted on, prevent future deaths in similar circumstances. In the final analysis adequate post-death investigations have the potential to save lives." In the

USA, there are over 2000 separate deathinvestigation jurisdictions. Investigation is similar to the coroners’ system in England and Wales in some places, but in most, a medical examiner’s system exists. Being headed by a pathologist, this system has little capacity to hold public hearings, let alone compel evidence from reluctant individuals or corporations concerning deaths which may be of significance to public health or safety. Nevertheless, a medical examiner/coroner information-sharing programme is currently being developed by the US Centers for Disease Control and Prevention. The stated programme goals include:" obtain more timely, accurate and complete information on sudden unexpected deaths, (b) to better understand the causes of these deaths, and (c) to reduce the mortality from those causes that are amenable to public health intervention."

"(a)

to

In England and Wales, this approach was advocated by Brodrick, but at the same time the report recommended the abolition of the power to make specific recommendations.5 Coroners who wish to investigate preventable aspects of deaths are also impeded by the law’s approach to the coroner’s duty to inquire "how" the deceased died. In R v HM Coroner for Birmingham it seems that "how" is to be interpreted as "by what means" rather than "in what broad circumstances".12 An example of this restriction is a death in a secure hospital. The deceased’s mother was successful in an application for judicial review of a coroner’s decision that lack of care was not part of any consideration of the case. The judge held, however, that in directing a jury on the issue of lack of care, it could only be found:13 "in the context of a prison or special hospital... where there had been a distinct act or omission closely associated with the death, the regime in general could not be criticised.""

Preventable aspects of death generally reside in the circumstances of the death, and not its means; if the courts prevent coroners’ seeking evidence of circumstances, they cannot investigate deaths thoroughly. Perhaps all that remains of the coroner’s system after 800 years is the appearance that deaths are being investigated. That this need not be the case is shown by coroners’ duties in Victoria, Australia.

Coroner In Victoria, Australia Coroners in Australia are modelled closely on the system in England and Wales. The decline of the coroner into irrelevance was recognised and arrested in the State of Victoria by a new Coroner’s Act in 1985. The Act requires the coroner not only to identify any person who has contributed to the death but also to comment and make recommendations to the Attorney-General on matters of public health and safety. The Act also established the Victorian Institute of Forensic Pathology as an independent body to provide necropsy and related scientific services to coroners.

800

Some of the trends and preventable hazards identified by the system in Victoria are:14

Reversing heavy vehicles 7 pedestrians were killed by reversing commercial or heavy vehicles between 1988 and 1990. Recommendations were made on the compulsory fitting of audible reversing warning devices.

Falls

through fibreglass roofing

There were 4 deaths between 1987 and 1990 involving falls through corrugated fibreglass sheet roofing (skylights). Recommendations were made on the need for protective mesh and public warnings of the danger.

Road fatalities

on a

bridge

9 road fatalities (and 83 injuries) on a particular bridge were identified between 1985 and 1989. The bridge was quite sharply curved, with one lane in each direction. Drivers would often enter the bridge too fast. A number of recommendations were made to improve safety on the approach, eventually resulting in the building of an additional bridge providing for one-way traffic on each.

Forklift-related deaths In the three years 1987-90, there were 20 forklift-related deaths in Victoria. In the previous 10 years there were 22. Recommendations were made about training, licensing, design, maintenance, and work practices.

Cooling fan fires In 1988, two children died in a house fire which was attributed to a

faulty cooling fan. 43 fires between 1976 and 1990 were found to have been similarly caused. Issues considered included the manufacturer’s knowledge of continuing fires, and the failure of the State Electricity Commission to act on knowledge of the fires. It is known that approximately 800 house fires occur each year in Victoria where there is some indication that the cause was an electrical appliance. now

Methadone deaths In 1989, a spate of deaths was identified by the Victorian Institute of Forensic Pathology amongst intravenous drug addicts who had just started methadone maintenance. Recommendations were made after problems caused by a rapidly developing programme with limited resources were identified in the assessment of drug-dependent persons accepted into the programme, the starting dose, and education of doctors involved.

Other potentially fatal hazards identified, investigated, and about which recommendations were made, have been related to child drownings in domestic swimming pools, tractor-related deaths, scuba-diving deaths, ultralightaircraft deaths, and railway level-crossing-related deaths. This approach requires coroners to be able to detect trends over time, in marked distinction to their historical concern with individual cases. Such trends, which have been called "diffuse disasters" are a challenge for the community and one which coroners, with appropriate

assistance, are probably best placed to meet. Conclusion The present coroners’ system in England and Wales has been criticised for different reasons.15-18 Its fundamental weakness is the absence of a clear purpose. If present trends continue, despite its longevity, the system may die out. The experience of a rejuvenated system in Victoria, Australia, shows what can be achieved when the coroner concentrates on identifying and investigating potentially preventable deaths.

References

Review. Law Department, Government of Victoria, 1980. Royal Commission into Aboriginal Deaths in Custody-National Report. Canberra. Aus Govt Publ Service 1991; 1: para 4.7.4. 11 Resources. The Medical Examiner/Coroner information-sharing program. Am J Forensic Med Pathol 1989; 1: 88. 12 R v HM Coroner for Birmingham, ex parte The Secretary of State for the Home Department. [1991] 155 JPR, 107. 13 R v HM Coroner for East Berkshire, ex parte Buckley. (1993) COD 96 10

1 Hunnisett RF. The medieval coroner. Cambridge: Cambridge 2 3 4 5

6 7

University Press, 1961. Knapman P, Powers M, eds. Thurston’s Coronership: The law and practice on coroners. 3rd Edition. Chichester: Barry Rose, 1985: 1-9. Matthews P, Foreman J, eds. Jervis on the office and duties of coroners. 11th Edition. London: Sweet and Maxwell, 1993: 3. Knight B. The medieval coroner. Med-Leg J 1990; 2: 65-82. Report of the Committee on Death Certification and Coroners. London: HMSO, 1971. Cmnd 4810 (The Brodrick Report). Home Office. Statistics of deaths reported to coroners: England and Wales. London, Home Office, 1993. R v Inner North London Coroner, ex parte Thomas (1993) 11 BMLR

37: 43-44. 8 Brend WA. Inquiry into the statistics of deaths from violence and unnatural causes in the United Kingdom. London: Charles Griffin, 1915: 66. 9 Norris Mr Justice. The Coroners Act (Victoria) 1958-A General

DC. 14

15 16 17

18

Johnstone G. Coronial Inquiries-An avenue for deaths and injury prevention. In: Selby H, ed. The aftermath of death. Sydney: Federation Press, 1992: 164-68. Leadbeatter S, Knight B. Reporting deaths to coroners: all the legal aspects of dying need re-examining. BMJ 1993; 306: 1018. Dyer C. Coroner overruled: time for reform? BMJ 1987; 294: 564-65. Justice. Coroners’ courts in England and Wales. Justice (British Section of the International Commission of Jurists) 1986. British Medical Association. Deaths in the community. London, BMA, 1986.

Viewpoint Acting in medical practice

We think that doctors

be actors-better actors than they Physicians large numbers of individuals, often under trying circumstances. In addition to demonstrating clinical acuity, the physician is expected to assume a role, depending upon the particular situation and the particular patient. There is already a clear and constant acting component in the practice of medicine, although physicians are not always aware of this and are rarely trained to use it purposefully. We do not put forward the idea cynically that there is an acting component in medicine; on the contrary, it has been charged that ostensibly uncaring and detached physicians practice a super-sophisticated veterinarianism.1 If a physician does not possess the necessary skills to assess a patient’s emotional needs and to display clear and effective responses to these needs, the job is not done. Consequently, we believe that medical training should include an acting curriculum, focused on the conveying of appropriate, beneficial responses to those emotional needs. In my practice (HMF), the specialty of physical medicine and rehabilitation, I frequently treat individuals who are in chronic pain. I find it essential to convey an encouraging, hopeful, often cajoling message to the patient to communicate concern and, more importantly, the need for the patient to work on self-improvement. Moreover, I find that it is often crucial to convey these messages also to the patient’s family, support network, and care-givers. These messages are important because they address the emotional needs of the patient and those around him, and I believe are now.

must

treat

Department of Physical Medicine and Rehabilltatlon, University Hospital, University of Western Ontario (H M Finestone MD); Department of Philosophy, Huron College, University of Western Ontario, Canada (Prof D B Conter PhD) Correspondence to: Dr Hillel M Finestone, University Hospital, P0 Box 5339, London, Ontario, Canada N6A 5A5

they have a clear impact on the patient’s quality of life and extent and speed of recovery. However, I am not in the same frame of mind every day. I may be tired, angry, or concerned about an unwell family member. On such occasions, I must, in effect, act to convey the responsiveness and concern that I believe have an important effect on the patient’s health. But why focus on acting, rather than empathy, which may seem ethically more appealing? It is difficult to define empathy. On one hand, empathy can be thought of in cognitive terms, as involving the cognitive recreation of another’s perspective; on the other, empathy can be characterised in terms of the vicarious sharing of emotion.2 Either way there are difficulties. For example, a physician might succeed in imaging vividly a patient’s distressful situation, and yet respond to that person coldly or brusquely because of some inner antipathy.So this kind of empathy is insufficient. We would suggest that if physicians do feel antipathy, they should at least act as if they cared. If we stick with empathy understood affectively, there is the fact that the emotions that empathy demands are not necessarily available for the physician to summon at will. Emotions are, to some extent, involuntary. Furthermore, in so far as a physician’s empathy can only be an emotional response to a patient’s expression of emotion, there will be situations in which the cues to which physicians might attend will be absent: patients may be inexpressive, evasive, or simply difficult. This hardly means that their needs are unreal, or that satisfying them is not within a doctor’s, responsibility. Providing satisfaction in such cases may sometimes involve elements of expressive performance rather than spontaneous feeling. The demand for empathy may itself be ethically unacceptable. Consider a physician whose conviction it is that abortion is murder and who treats a patient suffering from complications of an abortion. Suppose the patient 801