Coroners & Courts
Adverse events and coronial investigations—what to expect
This fact sheet contains everything you need to know about the process of adverse events, the types of investigations that follow and your role within them.
IN THIS FACT SHEET:
Once an adverse event has occurred, it will normally result in a formal notification to your hospital or practice management. This is then usually followed by an investigation and a final report of findings and recommendations.
There are two kinds of investigations:
- An investigation initiated by the hospital or practice.
- A coronial investigation and possible inquest (in the case of a patient death).
Sometimes, both types of investigations are performed. For example, many cases which are referred to the coroner are also investigated by the hospital itself.
If this happens, any coronial inquest will also look at the conduct of the hospital investigation and its findings, as well as the extent to which recommendations have been implemented.
Hospital or practice-initiated investigations are also called “root cause”, “sentinel”, or “serious event” investigations. They all entail an investigation into what happened, why it happened and recommendations to make it less likely to happen again.
For less serious events, these investigations will likely be lead internally, usually by a clinical director. However, other authority figures can front the investigation as well, as long as they don’t have any personal or clinical interest in the outcome.
For more serious events, including investigations into patient deaths, the investigations are more robust and more structured. Typically the investigator is an external appointment with appropriate qualifications, and there is often more than one investigator, so that a range of clinical expertise may be brought to bear on the investigation.
Increasingly, district health boards are adopting the London Protocol, or a variation of it, for the investigation of serious adverse events. This makes investigations more comprehensive and rigorous, but also ensures that the process isn’t centred on attributing personal blame and focuses on reducing future occurrences of the same problems.
Some adverse event investigations are approved by the Minister of Health as a “protected quality assurance activity”. Amongst other things, this means that good faith participation in the activity is immune from civil or disciplinary liability, and any document brought into existence or any information generated “solely” for the purpose of the activity, can’t be produced in any court proceeding or in any other investigation (including any HDC investigation).
An investigation by the coroner is a fact-finding exercise in which the coroner is both investigator and adjudicator, assisted by the Police.
In addition, the coroner has extensive powers to request information, such as requiring the production of a report from the patient’s doctor. Additionally, the coroner may seek the assistance of experts.
Under the Coroners Act 2006, certain patient deaths are required to be reported to the coroner. This includes:
- A death which was “medically unexpected” and which occurred during, or apparently as the result of, a medical procedure.
- A “medically unexpected” death that occurred while the patient was affected by an anaesthetic.
- The death of a woman which occurred while the woman was giving birth, or which appears to have been a result of the woman being pregnant or giving birth.
In this context the phrase “medically unexpected” is defined to mean a death which:
“…would not reasonably have been expected by a health practitioner who was competent to carry out the procedure, or administer the anaesthetic, in question and had knowledge of the dead person’s medical condition before the procedure began.”
Not all cases referred to the coroner are the subject of coronial investigation. Where the death is determined to be from natural causes, the case will be closed without an enquiry being opened.
The coroner may also postpone opening an enquiry and ultimately, may decide not to open one, if the death is already being investigated by another agency.
About 75 per cent of coroners’ investigations are conducted as hearings on the papers. The remainder proceed to a coroner’s inquest: a public hearing presided over by the coroner, in which evidence is produced through witnesses (much like in regular court).
Cases which proceed to inquest are generally those where there is a dispute about critical issues of fact, or where the public interest warrants a public hearing, or where the coroner, the family of the deceased, or other interested parties, seek to have issues tested through the cross-examination of witnesses.
In essence, the three purposes of a coronial investigation are:
- To establish as far as possible when and where the person died, and the causes and circumstances of the death.
- To make recommendations or comments, but only for the purpose of reducing the chances of further deaths occurring in similar circumstances.
- To determine whether it is in the public interest that the death should be investigated by another authority (for example the Police, the Medical Council, or the Health and Disability Commissioner).
While coronial investigations are not about attributing blame to individuals, establishing the cause and circumstances of death can require adverse findings or comments.
In these cases, the person who is the subject of comment is entitled to know what the coroner proposes to say beforehand, and the opportunity to respond. In most cases, such a person will have the opportunity to view and comment on the coroner’s draft findings.
Should you be asked to participate in an adverse event investigation, you will very likely be obliged to do so, either through your contract of employment or simple ethical duty.
Under section 40 of the Coroners Act, a coroner may, by written notice, require a doctor who attended upon a deceased person before death, to provide a written report containing such information as is specified in the notice. Such information may include the deceased’s “health information”.
This can be a difficult situation to navigate, both legally and ethically.
What you should do
If you receive a request to participate in an adverse event investigation or in a coronial investigation, you should:
- Contact your indemnifier (i.e. NZMII) immediately.
- Collect all relevant information to give to your indemnifier or any legal counsel provided by it. This should include the patient’s (relevant) clinical notes and records. You should err on the side of including more, rather than less; make sure that you include relevant referral letters, reports to primary providers and similar.
- Prepare a draft report, cross-referenced as appropriate with the clinical notes and records.
Your report begins with a brief description of your medical qualifications and experience, and a description of relevant circumstances surrounding the case. This is where you should describe any extenuating circumstances, such as an unusually high workload, or other factors (for example the end of a period of night duty) which may be relevant to the care you were able to provide.
Otherwise, your report should be a factual narrative of what happened. It should be as objective as possible, with as little emotion or opinion as possible.
You should describe what you did and what you observed, usually in chronological order. While this may entail describing what others had done before you or were doing at the same time, generally you should refrain from commenting upon the involvement of others. You will also need to explain any significant elements or actions that aren’t included in your clinical notes.
Finally, your report should address any questions specifically asked of you.
If you have indemnity cover, do not provide your report without first notifying your indemnifier and having the report reviewed. We are here to help you and have a wealth of experience with this type of inquiry.
If you are currently in the midst of an adverse event, or are concerned that you may be soon, please get in touch with us to access our team of medicolegal experts. Whatever the outcome, we’ll guide you through the process.
Tips on giving evidence in court
These are general tips only as the rules of procedure vary according to whether the proceedings are criminal or civil or take place in the Coroners Court and special rules apply to ‘expert witnesses’. Your NZMII instructed lawyer will assist you in understanding the rules if you need that might apply.
When you are called to give evidence, you will be directed to the witness box and will be ‘sworn in’ (swear to tell the truth). You will be asked some preliminary questions verifying your full name and occupation. You may have previously prepared a written statement/report and may be asked to read out your statement or it may be ‘taken as read’ in which case you will not have to read it out, you will just be asked questions. If you haven’t already done so, you will be asked to sign your statement.
First, remember you are not “on trial”, simply here to give evidence. You maybe nervous but try and keep this in context as to your role.
Do not take any papers with you to the witness box. A copy of your statement or anything else that you may need to refer to in giving your evidence will be provided to you by Court staff.
All the evidence is transcribed. It is therefore very important that you speak slowly and clearly. So speak clearly, and slowly. Use words not gestures. This means you need to say “yes” or “no” (not nod your head). Do not mumble. Court staff may interrupt you to ask you to speak up or to speak more slowly as required.
If the Court adjourns for a break, or for the day when you are part way through giving your evidence you are not allowed to speak to anyone about the proceedings, this includes your lawyer, before completing your evidence when the Court resumes.
Sometimes it is appropriate for you to leave the hearing after you give evidence but at other times you will need to remain and hear all the evidence. You will need to check with Court staff and/or your lawyer before you leave.
Before giving evidence, you should have previously re-read your statement and any documents you present with it. This will be the basis of examination and cross-examination.
It may go without saying but tell the truth. Listen carefully to each question and answer only that question. If you don’t understand the question say so. Be careful if the questioner uses a double negative.
Resist the temptation to give long answers when a short, direct one would do.
If you cannot remember or do not know the answer to a question, say so. Do not speculate or hypothesise.
Give positive, direct answers to questions whenever possible. If a question can be answered with a simple ‘yes’ or ‘no’ but you would like to add some additional explanation, answer ‘yes’ or ‘no’ first and then offer the further explanation.
Do not volunteer information. Listen to and answer the question with any qualification or elaboration that is necessary to make the answer correct and reflect the facts.
Do not argue with the questioner or lose your temper. You are simply here to give evidence not debate the case.
Answer the question with words you usually use and feel comfortable with. For example, there is no need to say “that is correct” in response to a proposition which could be answered more simply with “yes”.
If an objection is made to a question you have been asked or an answer you have given, STOP. Wait for the Judge to determine what to do. If the Judge upholds the objection simply wait for the next question.
If the Judge overrules the objection, answer the question (you may need to ask for the question to be repeated).
Current as at 29 April 2021
Police reports and disclosure of health information to police
On occasion, doctors need to interact with the police. Usually this is to provide a police report, but there can be other reasons for this, for example where police request information about a patient, or alternatively information is gained in the course of a doctor’s medical duties which it is considered should be reported to the police (or other authorities). This video provides a brief overview of what needs to be considered in each circumstance.
A common situation where a doctor may be required to provide a police report is where, for example, a person has been assaulted and then sought treatment for his or her injuries. The police may request that the doctor provide a report on the treatment provided, and possibly ask the doctor to give evidence as a witness in court.
If you are contacted to provide a police report, you should notify your indemnifier so that someone from the legal team can assist you with the process. It is also good practice to ask the police to confirm the request to provide a report, in writing.
The first thing to be mindful of is that a police report requires the disclosure of private health information. Where reasonably practicable, you should seek the patient’s written consent to the release of his or her confidential health information. However, where it is either undesirable or impracticable to obtain consent, the Health Information Privacy Code does allow the practitioner to disclose such information for the purpose of court proceedings which have commenced or are in reasonable contemplation.
In terms of how a report is drafted, there are a few points to be aware of:
- Ask the prosecutor or police for a template of the evidence they would like you to give.
- Your report needs to be confined to the facts, that is to say the patient’s presentation, what you observed, what was revealed on examination, the results of any tests or imaging, your diagnosis, and management plan.
- It is important that your narrative aligns with your contemporaneous clinical notes. There is the potential that any inconsistency between your report and the notes will be exploited in cross-examination.
- To the extent that you express an opinion in your report, it must be an opinion which is within your clinical expertise. And, if necessary, it may need to be appropriately qualified (for example, if it were a provisional diagnosis only).
- If you do not know something, do not speculate, or make it up.
- Your report should be objective and impartial. Minimise the use of adjectives, except to the extent their use is clinically indicated. Remember that you are not an advocate for one side or the other.
- Lastly, as a police report is likely to be used in the context of a legal proceeding it is helpful to bear in mind that the people reading the report will be laypersons – that is, police officers, lawyers, the judiciary, and jurors. In other words, please translate medical lingo into something that we can all understand!
Other situations of disclosure to police
Three of the most common examples are:
- Risk of harm to self or others
- Risk of harm to or neglect to a child or young person
- Search warrant or production order
Risk of harm to self or others
The most common situation where you may need to consider disclosure of health information to the police (or other authorities such as a community mental health service), is where your patient manifests a risk of harm to self or to others. Again, the issue of confidentiality should be at the front of your mind, however almost invariably it will be undesirable and impracticable to obtain consent from the patient for release of the information. The HIPC does expressly permit disclosure “to prevent or lessen a serious threat to the life or health of the patient or another individual”. In addition, health professionals also have a discretion to disclose information to a police officer (amongst other officials), under s 22C of the Health Act 1956, if the information is required for the purpose of exercising or performing the police officer’s powers, duties, or functions.
Risk of harm to or neglect to a child or young person
If you believe that a child or young person has been or is likely to be harmed, ill-treated, abused, neglected, or deprived you may report the matter to a social worker or police under s 15 of the Children, Young Persons and Their Families Act 1989. While it is not mandatory to report, the Privacy Commissioner has expressed the view that disclosure in such circumstances is vital, stating that there is little that is more serious than the need to protect a child. It should be noted that health professionals are protected under s 16 of this Act from any civil, criminal or disciplinary proceedings if they disclose information to the appropriate authority in good faith.
Search warrant or production order
One exception which requires disclosure is where police have obtained a search warrant or production order for information about a patient under the Search and Surveillance Act 2012. (A search warrant allows police to search a health provider’s premises, and a production order requires the receiver to release the information requested within it). Health professionals are obliged to comply with warrants or orders and a refusal to do so is an offence under the Act. However, if you are presented with a warrant or production order, you can be reassured that it will have been approved and issued by the court. In other words, it is safe to hand over the requested information.
The issue of disclosure of health information without patient consent is a bit of a minefield. It is important that if you are considering such disclosure, you first contact your indemnifier for medico-legal advice.
Current as July 2022