Moore, Jennifer; Henaghan, Mark --- "New Zealand Coroners' Recommendations 2007-2012" [2014] NZLFRRp 4

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We would like to recognise and thank this study’s participants, without whom this study could not have proceeded. Thank you sincerely for sharing with us your thoughts about this important topic. In particular, we owe special thanks to the Coronial Services of New Zealand, the Chief Coroner, Judge Neil MacLean, and the Coroners for being incredibly helpful, encouraging and supportive throughout the research process.

It is also essential to mention the tremendous support that we have received from the New Zealand Law Foundation. Without their generous funding of this research, the project would not have proceeded. We would like to express our gratitude to the Director, Lynda Hagen, for her support, enthusiasm and advice. We also wish to thank Dianne Gallagher for her friendly, helpful support and assistance.

We are also infinitely grateful to our academic colleagues, particularly Associate Professor Colin Gavaghan, Professor Ron Paterson, Professor Peter Skegg, and Professor Hank Weiss. Dr John Rutherford (Wellington pathologist) has been a wonderful mentor. Special thanks must also go to Professor Ian Freckelton QC (a coronial law expert) for being generous with his time and for providing excellent advice. We were lucky to have wonderful research assistants: Steve Thomson and Catey Boyce. We are particularly grateful to Steve and Catey for their excellent assistance with chapter 7.

Our literature searching was aided by fabulous support from the University of Otago law librarians and the CSNZ staff, particularly Dean Skachill, Lily Nunweek and Jackie Andrews. We are particularly thankful to Dean, Lily and their colleagues who spent many hours putting full coronial findings onto a USB drive for us.

A constant source of inspiration came from the University of Melbourne’s public health law team, who has also been researching the Coroners Act 2008 (Vic) and the implementation of coroners’ recommendations. We have benefitted from numerous conversations with them. Another source of inspiration and encouragement is: Dr Lyngal Bugeja (Coronial Prevention Unit, Coroner’s Court of Victoria, Australia). We are grateful for your guidance and conversations about the research.

Finally, we wish to thank those people who have helped us to survive the research process. Jen would like to acknowledge her family, who are her unfailing support network. Thank you particularly to Rob who spent many hours caring for our daughter, Rebecca, when she was born during the data collection phase of this project. Completion of this report, without Rob’s continual (and free) IT support, would have been much more arduous. Grandpa (Jen’s Dad) has also played a vital babysitting role, allowing Jen to spend hours writing. Sue and Dr David Robinson were fantastic proof readers of earlier drafts. Mark would like to acknowledge the love and support of his wife and two children.

Jennifer dedicates this report to her daughter, Rebecca Joyce. Becky was born on 7th March 2013, during the data collection phase of this project.

Mark dedicates this report to all the families who have appeared in the Coroner’s Court.

We would also like to dedicate this report to Coroner Smith who sadly passed away on 24 October 2014.

Table 1 Variables and definitions for the analysis of coroners' recommendations 69

Table 3 Recipients of coroners' recommendations, by category, NZ, 1 July 2007-30 June 2012 88

Table 4 Number and percentage of organisations sent NZ coroners' recommendations by type, 1 July 2007-30 June 2012 91

Table 7 NZ coronial untargeted recommendations, 1 July 2007 – 30 June 2012 187

Figure 4 Method of case completion for NZ coronial inquiries, 1 July 2007 – 30 June 2012 165

Figure 5 Summary of coronial investigations and recommendations during the study

................................................................................................................................................166

Figure 8 Summary of coronial investigations, unique and repeated recommendations, 1 July 2007 – 30 June 2012 172

Figure 9 Summary and number of identical repeated recommendations, 1 July 2007 – 30 June 2012 173

Figure 12 Underlying causes of death categories investigated by NZ coroners, 1 July 2007 – 30 June 2012 175

Figure 13 Summary and number of recipients of coroners’ recommendations by type, 1 July 2007 – 30 June 2012 182

Figure 14 Number of recommendations directed to recipients by type, 1 July 2007-30 June 2012 NZ 182

Figure 15 Number of recommendations (15 or more unique and total) sent to organisations, NZ 1 July 2007 – 30 June 2012 184

Figure 16 Total and unique number of recommendations received by organisations, by type 185

ACT	Australian Capital Territory
BAC	Blood Alcohol Concentration
CDC	Centers for Disease Control and Prevention
CAA	Civil Aviation Authority
CPU	Coroners Prevention Unit
CLS	Clinical Liaison Service
CMS	Case Management System
COPD	Chronic Obstructive Pulmonary Disease
CSNZ	Coronial Services of New Zealand
CTO	Cumpolsory Treatment Order
CYMRC	Child and Youth Mortality Review Committee
DHB	District Health Board
ED	Emergency Department
HDC	Health and Disability Commissioner
HQSC	Health Quality and Safety Commission
ICD 10	International Statistical Classification of Diseases and Related Health Problems, 10th Revision
IRHACE	Institute of Refrigeration, Heating and Air Conditioning Engineers of NZ
MRC	Mortality Review Committee
NCIS	National Coronial Information System
NZNO	New Zealand Nurses’ Organisation
NSW	New South Wales, Australia
NT	Northern Territory
NVDRS	National Violent Death Reporting System
NZ	New Zealand
NZLII	New Zealand Legal Information Institute
NZTA	New Zealand Transport Agency
PVLRC	Parliament of Victoria Law Reform Committee
QLD	Queensland, Australia
SUDI	Sudden Unexplained Death of an Infant
TISG	Transport Industry Safety Group
US	United States
VIC	Victoria, Australia
WA	Western Australia
WHO	World Health Organisation

Coroners in NZ can make recommendations that may reduce the chances of occurrence of similar deaths in the future. Coronial information is of importance to policymakers, organisations, practitioners and researchers who have an interest in mortality and morbidity prevention. Yet there is no NZ research, and limited international research, about coroners’ decision making and the extent of organisations’ implementation of coroners’ recommendations.

The central aim of this study was to describe and investigate the nature, recipients, and preventive potential of NZ coroners’ recommendations from 1 July 2007 to 30 June 2012. This research also aimed to inform coronial practice, improve the preventive potential of coronial recommendations, and inform the debate about whether the Coroners Act 2006 should be amended to include a mandatory response regime.

While the overall approach of this project was legal, we used methods from public health, and the social and statistical sciences.

There were 607 coronial inquiries that resulted in 1644 recommendations. There were 309 recipients of coroners’ recommendations. Government organisations received the highest proportion of recommendations (121/309). Not for profit organisations received 67 recommendations, for profit organisations received 44 recommendations and individuals received 5 recommendations. There were 72 untargeted recommendations that did not specify an identifiable organisation. Transport accidents, drowning, intentional self-harm and complications of medical

or surgical care were the main underlying causes of death categories investigated by coroners.

The 123 interview participants reported that there have been improvements since the introduction of the Act, but that the prophylactic potential of recommendations is not being maximised. We argue that coroner’s court law reports should be introduced and full coronial findings should be available electronically.

While 20% (86/426) of the recommendations in our sample were rejected, the number of implemented recommendations (133/426, 31%) is greater than some commentators might expect, and almost half (207/426, 49%) were supplanted (i.e. organisations had already taken remedial and preventive action).

The findings demonstrate that introduction of a mandatory response regime cannot be a replacement for early consultation with interested parties during the coronial process. We argue that the Coroners Act 2006 should be amended to include a mandatory response regime and that the government’s review (which excludes this proposal) is inconsistent with the empirical evidence.

This study’s findings also suggest that the introduction of services similar to the Victorian Coronial Prevention Unit and Clinical Liaison Service could assist coroners to accurately identify preventable deaths and to improve the quality of coronial recommendations and processes.

Given that this was the first NZ empirical study of coroners’ recommendations since the introduction of the Act, more research is needed to corroborate these findings. Coroners’ recommendations have the potential to contribute to public health and safety. This study described prevention success stories where coroners’ recommendations have had a positive preventive impact. However, this study has also demonstrated that while coronial recommendations can be useful tools for intervention and policy development, coroners’ contribution to morbidity and mortality prevention at the population level requires further development. The government review presents an opportunity to initiate much- needed reforms. The reforms could be usefully informed by the empirical evidence in this project. A review that includes few proposals to enhance preventive functions may mean that coroners’ recommendations are a “lost opportunity” to save New Zealanders’ lives.

We were at the Coroner’s Court so NZ could learn from Adam’s death. We did not want Adam’s life to be a waste.1

Everybody is really interested in this research and the Government’s review...because what coroners say, and dealing with their recommendations, is actually really important in terms of how we run our business and how we run our industry.2

In a coronial inquiry that attracted widespread media attention, Coroner Matenga found that baby Adam Barlow died after a “series of failures” by the midwife contributed to a hypoxic intrauterine environment during a prolonged second stage of labour.3 After the tragic death of their baby, the Barlows hoped that the lessons from their experience would prevent similar deaths. They viewed the coronial process, especially the coroner’s recommendations, as a way to achieve this goal and to ensure that Adam’s life was not a “waste.”

Coroners in New Zealand (NZ) can make recommendations that may reduce the chances of occurrence of similar deaths in the future.4 Like the Barlows, a common refrain of those who have lost family members to preventable death is that they want the coronial system to ensure that “this doesn’t happen to anyone else.”5

Many NZ families believe and hope that coroners’ findings and recommendations can “make a massive difference to saving people’s lives.”6

For many organisations that receive coroners’ recommendations, it is important that their health and safety messages are aligned with the coronial preventive purpose. They, too, are motivated by a desire to prevent fatalities. Coronial information is of particular importance to policymakers, organisations, practitioners and researchers who have an interest in mortality and morbidity prevention. Many organisations analyse coroners’ recommendations for patterns, so that these trends can inform, and improve, their work. However, adverse comments in coronial recommendations can cause reputational harm to organisations. It is unsurprising, then, that coroners’ recommendations have an important impact on the way that businesses and industries are managed.

The public interest in coroners’ recommendations can be demonstrated by the frequency of media items about coronial inquiries. This research has generated widespread media attention. On 18th July 2014, there were 23 media items about this project.7 The coroners interviewed for this study commented that the media play an important role in publicising the important health and safety messages in coronial recommendations.

However, not all media coverage of the Coronial Services of NZ (CSNZ) is favourable. For example, Sir Bob Jones expressed his frustration about the quality of coronial recommendations by issuing his own recommendations for coroners. Specifically, he asserted that:8

At the next coroners’ annual conference, instead of speeches they should have half a dozen ex-All Black forwards present to line them up, bend them over and render hourly bum-kicking sessions which hopefully will bring them to their senses.

This comment was primarily prompted by a coronial finding about the death of woman from cardiac arrhythmia, which was attributed, in part, to her excessive consumption of Coca Cola.9 The coroner found that the woman’s consumption of six to ten litres of Coca Cola per day was a substantial contributor to the development of the imbalances that caused her arrhythmia. The coroner made recommendations to the Ministry of Health and Coca Cola:

To: The Coco Cola Company – Coca Cola Amital (NZ) Limited, Coca Cola Oceania Limited

I. That consideration is given to the inclusion of advice as to the quantity of caffeine on the labels to its products and of the adding to the labels appropriate warnings related to the dangers of consuming excessive quantities of the products.

These coronial recommendations not only generated media comment from Sir Bob Jones, but also from Michael Laws. Laws asserted that the deceased’s “stupid” lifestyle choices caused her cardiac arrhythmia.10 He also argued that:11

The problem with this new breed of coroners created by the 2006 Coroners Act [is that] they are becoming increasingly draconian in

their recommendations – linking one odd death or one accidental fatality to some kind of systemic failing in our society.

In keeping with Laws’ complaints, a commonly cited weakness of coroners’ recommendations is that they focus on an isolated case. There has been a tendency for some coroners to extrapolate a generic recommendation based on an individual case (or in some instances, grouped clusters of cases). In their critiques of the coroner’s recommendations about Coca Cola, many other commentators similarly focused on the limitations of using a single case to inform recommendations. One commentator contended that coroners “ignore the extreme oddity of the circumstances and ascribe them to the community at large” and “too often fail to recognise freak accidents as simply that, namely freak.”12

In contrast to these views, Professor Sellman of the National Addiction Centre at the University of Otago supported the coroner’s recommendations and advocated for an overhaul of food labelling in NZ.13 Recent public health research demonstrates that the proposed overhaul of food labelling in NZ has support from industry, policymakers and non-government organisations.14

In this context of apparent controversy about coronial inquiries, we embarked upon exploration of the veracity of commentators’ assertions about coroners’ recommendations. In particular, our research is concerned with providing evidence- based answers to four overarching questions: 1) What is the nature of coronial recommendations? 2) Who are the recipients of coroners’ recommendations, and what is the extent of their response or implementation of recommendations? 3) Is NZ’s coronial law achieving its full preventive potential and? 4) Should a regime requiring responses to coroners’ recommendations be part of NZ law?

Described as “the ombudsman for the dead”,15 the coroner’s role is to identify the causes and circumstances of sudden or unexplained deaths, or deaths in special

circumstances, such as deaths of people under compulsory detention. Coronial death investigations cover deaths in widely varying circumstances, from deaths as a result of criminal activity, missing persons who are suspected to have died, and deaths that occur in the course of clinical care. The coroner may hold an inquiry into a death to determine the deceased’s identity, and when, where, how and why they died.16 The coroner makes decisions about whether to order a post-mortem and whether to retain or release body parts and tissue samples.

Not all deaths reported to the coroner result in an investigation or inquiry. In 2010, the Coroner’s Office had 5,645 deaths reported where there was uncertainty as to whether a medical certificate of the cause of death could be issued.17 The coroner accepted jurisdiction in respect of 3,343 of those cases. In the remaining 2,302 cases the coroner and doctor discussed the case and a medical certificate of cause of death was issued rather than commencing a coronial investigation. In practical terms the coroner will usually discuss the death with the consultant and make a judgment call whether the case warrants investigation.

If a coroner undertakes an inquiry (either by inquest or in chambers) s/he is not required to make recommendations or comments to prevent the occurrence of future similar deaths. If a coroner does make recommendations, a copy of the findings (including the recommendations) is sent to the organisation/s stated in the coroners’ decisions to those entities by the coroner’s administrative staff. When a NZ coroner directs a recommendation to an organisation there is no statutory requirement for that organisation to respond to the coroner (or any entity) about what, if anything, they propose to do. However, some organisations do voluntarily write letters in response to coroners’ recommendations. Those responses are often described in the CSNZ Recommendations Recap.18

There is no NZ research, and limited international research, about the extent of organisations’ implementation of coroners’ recommendations. This is the first NZ project to investigate the rigour of coronial recommendations, and the extent of their impact and implementation. The findings will inform the debate about whether law

reform is required to enable coroners to fulfil their statutory prophylactic function. An evaluation of whether coroners’ findings have the potential to save New Zealanders’ lives is lacking and is well overdue.

NZ’s recent disasters, such as Pike River and the Christchurch earthquakes, have brought mortality into focus. There are approximately 29,000 deaths in NZ per year.19 About 20% of those deaths must be reported to the coroner.20 According to John Fogarty QC, “there can be no doubt that the Coroners Act saves lives, and establishes a process whereby the community can have confidence of an independent inquiry into unusual death where no one...can hide from scrutiny.”21

This research, the first of its kind in NZ, aims to describe, quantify and investigate the nature, recipients and preventive potential of NZ coroners’ recommendations from 1 July 2007 to 30 June 2012. 1 July 2007 was chosen as the commencement date because that is when the Coroners Act 2006 came into force.

Quantifying the number of recommendations for our five-year study period was a useful aim in itself. On the basis of estimates provided by the CSNZ, our 2012 research proposal estimated that our study period would include approximately 1,060 recommendations. Our research findings aim to provide an exact quantification of the number of recommendations for our study period.

Identifying and interviewing the recipients of coroners’ recommendations during our study period has also been a useful objective. We needed to identify the recipients of recommendations in order to examine their rate of implementation. The most prevalent concern is that coroners’ recommendations are ineffective because the organisations to which they are directed ignore them.22 Our research assesses the veracity of this concern.

Our project also aims to investigate the preventive potential of coronial recommendations. Coroners spend time making recommendations, and considerable financial resources are spent on public inquests and the administration of the Act. The Ministry of Justice spent $16.57 million to administer the Act in 2010/2011.23 The outlay of funds is justified, partly, on the basis that coroners’ recommendations contribute to preventive public health goals. Yet, no research had assessed the public health impact of coroners’ recommendations. Is the preventive purpose of the Act being achieved? How can coroners’ statutory roles as “public health officials” be effectively fulfilled?24 A key purpose of our research was to provide evidence-based answers to these questions.

While the overall approach of this project is legal, we use methods from public health and health sociology.25 The research questions cannot be answered using legal methods alone. As Freckelton and Ranson have pointed out, it is “unlikely that the available data sets will be mined in a way that their potential would allow...unless specialists in epidemiological analysis [public health researchers] are employed by Coroner’s offices on a regular basis.”26

As Pickering has commented, studying practices (as this project does) can contribute to the “development of critical and policy-oriented perspectives.”27 Our purpose is to bridge the research-practice and research-policy divides. Such research- practice translation includes feedback to research participants. The majority of coroners we interviewed (12/15) reported that they are largely unaware of their colleagues’ practices. One coroner explained that he “doesn’t talk as freely...to my fellow coroners as I am to you [the interviewer]” and that he “would love to see, to know, more about how other coroners do their work.”28 This research seeks to provide some insight into coronial practice, particularly their decision making about recommendations.

Given the high public profile of coroners, it is surprising that little is known about coroners’ decision making or their recommendations. Numerous scholars have observed that the work of coroners remains largely under-researched.29 For instance,

Bugeja and Ranson observe that despite the “significance of coroners’ recommendations for public health and safety, they are a relatively unexplored area of socio-legal and medico-legal research.”30 In 2006, in their authoritative text on coronial law, Freckelton and Ranson noted that it is “remarkable that no empirical base” has yet been generated.31 There is limited empirical research about the formulation, nature, purpose and implementation of coroners’ recommendations.

Empirical research about coroners, their procedures and recommendations is recent. Research in Australia and the UK has quantified the frequency of coroners’ recommendations,32 investigated coronial inquiries about healthcare-related deaths,33 conducted case studies on specific categories of death,34 and provided legal and forensic descriptions of death investigations.35 A 2011 NZ LLB(Hons) thesis explored coronial recommendations, but it was not empirical research.36

The University of Melbourne’s Public Health Law group recently published their first article about research on the introduction of Victoria’s mandatory response regime for coronial recommendations.37 Despite speculative commentary about organisations’ responses to coroners’ recommendations, there is limited empirical research about the extent of implementation of coronial recommendations. Prior to the Melbourne study, in 2008, Watterson et al sent letters to several hundred

Stephen Cordner “Impact of Coronial Investigations on Manner and Cause of Death Determinations in Australia, 2000-2007” (2010) 192 MJA 444.

organisations, located in every Australian jurisdiction except Queensland, following their receipt of coroners’ recommendations, to inquire how they had responded.38

Queensland, the state omitted from the Watterson et al study, undertook its own review of organisations’ responses to coroners’ recommendations in 2006.39 This review focused on recommendations made to public sector agencies. The review found a relatively high rate of implementation (68% fully or partially implemented), but there was no distinction made between action taken before or after recommendations were handed down. The review outlined the main reasons for rejection: concerns that recommendations were too costly, inappropriate or unrealistic, or not within the organisation’s power to implement. This Queensland study, the Melbourne research and this NZ project, endeavour to tackle “the greatest challenge that remains, [which] is to understand the reasons for the apparent low implementation rate of coroners’ recommendations, despite repeated instances of similar fatalities.”40

Social scientists have undertaken empirical analyses of coronial work. Atkinson’s classic 1970s research explored the social organisation of sudden death.41 More recently, Timmermans has examined the professional authority of medical examiners’ determinations on suicide and undertaken ethnography research in a medical examiner’s office.42 Social scientists have also analysed families’ experiences of inquests43 and how coroners’ decisions classify natural versus unnatural death.44

There is much non-empirical commentary about coroners, their work and recommendations.45 Professor Ian Freckelton QC is one of the most prolific scholars of coronial law.46 Coroner or medical examiner information has also been used as the primary data source for descriptive and analytic research to examine and report the nature, extent, determinants and interventions for the prevention of external-cause deaths.47 Coronial records have also been used for historical research about suicides in NZ.48

Freckelton and Ranson have warned that evaluation of death investigation systems in different jurisdictions in order to identify a model system, may be difficult because of variations in organisational structures and professional bases across jurisdictions.49 This section summarises the coronial systems in Australia, England, Scotland, Canada and the United States in order to provide an international legal context for this project.

England’s coronial system was received by Australia at the time of settlement in 1788.50 The coroner’s primary role then, as it is now, was the investigation of sudden death.

Unlike NZ, Australia has no national coronial regime.51 Rather, each state or territory has its own regime controlling coronial processes, including the making of recommendations to prevent deaths.

Victorian coronial law is contained in the Coroners Act 2008 (Vic). Like New Zealand’s legislation, a central purpose of the Act is to contribute to a reduction in the number of preventable deaths.52 The review of the Coroners Act 1958 (Vic) resulted in major reforms to the Victorian coronial system and the introduction of the Coroners Act 1985 (Vic).53

The 1985 Act established an Office of the State Coroner and a centralised coronial service which houses the State Coroner’s Office and the Victorian Institute of Forensic Medicine. The rationale for this arrangement was to enhance death investigations and contribute to prevention.54 Most importantly for prevention, Section 21(2) of the 1985 Act provided that coroners can make recommendations to the Attorney General on any matter connected to the death, including public health and safety and the administration of justice relating to death.

Victoria is the most advanced Australian jurisdiction in terms of its coronial jurisdiction and is recognised as a leader of coronial reform.55 Freckelton predicted that the report of the Parliament of Victoria Law Reform Committee (PVLRC) would provide a “blueprint for a new generation of coronial law reform”56 and, given the recent or ongoing reforms in NSW, Western Australia, the Northern Territory and the Australian Capital Territory, this appears to be the case. Indeed, the Victorian

Coroners Act 1985 formed the basis for the enactment of similar legislation in a number of other Australian states.57

Both New South Wales and Queensland adopted new coronial legislation in the last decade. The Coroners Act 2003 (Qld) has death prevention through the making of coroners’ recommendations as a primary object. The Coroners Act 2009 (NSW) enshrines the importance of death prevention by providing for coroners’ recommendations on matters including public health.58 Both Acts allow coroners to make recommendations directed at relevant entities for preventive purposes.59

Northern Territory coroners are also vested with a statutory prophylactic function. The Coroners Act 1993 (NT) allows coroners to make recommendations to the Attorney General on any matter connected with an investigated death or disaster, including public health or safety or the administration of justice.60 Likewise, legislation in South Australia, Western Australia and the Australian Capital Territory also allows for coronial recommendations. The Western Australian coronial system was recently reviewed by the Law Reform Commission of Western Australia.61

Coroners in Tasmania have a duty to make recommendations in order to prevent further deaths: “A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate.”62 Tasmanian coroners are thus compelled to make preventive recommendations, where appropriate, unlike in most other jurisdictions where the legislation is framed in terms of a discretionary power to make recommendations or comment in respect of preventable deaths.

England’s is the oldest coronial regime in the world. Coronership is an ancient judicial office. It has been described as “shape-shifting” because of its dramatic evolution over the centuries.63 There is some evidence that a coroner existed

as early as the ninth century.64 However, it is generally accepted that the office of the coroner was established in 1194 with the Articles of Eyre.65 An element of the coroner’s role entailed providing information to Richard I’s judges as they toured the country. The coroner’s main duty was as a tax gatherer.66 The medieval coroner held inquests, heard appeals and confessions of felons. These were the “crown pleas” which the coroner had to “keep” and he did so by safeguarding lands and goods, arresting witnesses and suspects and recording all the details.67

Coroners were elected in the county court by the knights and freeholders of the shire from the county gentry and middle classes.68 The basis of the election of coroners was land ownership, reputation as wise, lawful men and residence in the district.69 Coroners were not required to have legal or medical knowledge and they enjoyed tenure for life.70

The De Officio Coronatoris 1276 was the first description of the English coroner’s death investigation duties.71 This included a primitive version of the postmortem examination where the coroner would inspect and feel the naked body for wounds, bruises or signs of injury.72

The coroner’s legal inquiry was the inquisitor (inquest). The inquest was held with a jury to ascertain the cause of death.73 The coroner recorded the proceedings on the roll for presentment.

The coroner’s status declined in the 14th century.74 The centralisation of justice in the 15th and 16th centuries in the King’s Courts, the creation of the Escheators and Justices of the Peace, caused further decline in coronial work.75 The consequence was that the coronial inquest was largely confined to cases of death.

Despite this narrowing of the coroner’s role, it was not until the Births and Deaths Registration Act 1836 that there was a formal obligation for coroners to notify local registrars of deaths.76 The County Coroners Act 1860 provided for coroners to be paid a salary.77

In modern England, the Coroners Act 1980 (UK) disposed of English coroners’ historic ability to add ‘riders’ or comments to coronial findings, removing the preventive aspect of the coroner’s role. This occurred due to a perception that coroners and juries were abusing the power to add riders to findings, often expressing opinions on matters irrelevant to, or insufficiently supported by, the evidence.78

Rule 43 of the Coroners Rules 1984 (UK) altered this situation by creating the power for a coroner to report a matter to a relevant authority where a coroner believed that action should be taken to prevent the recurrence of fatalities similar to the one under inquest.79 While strictly speaking this power to report is not a power to make particular recommendations, such recommendations may be informally made within official reports.80 This delegated legislation was updated in 2008 in order to give greater prominence and importance to coroners’ reports to improve public health and safety.81 For example, coroners were given a wider remit to make reports to prevent future deaths; it did not have to be related to a similar death.82

The current legislation is the Coroners and Justice Act 2009 (UK). Under this new Act, the coroner must report matters to the newly-established Chief Coroner and all “interested persons” where there is a risk that other, similar deaths may occur and the coroner believes action should be taken to prevent such an occurrence.83 The

Chief Coroner acts as a centralised figure for the coronial system, with functions that include ensuring that reports and responses made in relation to deaths in one coronial district are not overlooked in another, so that preventable deaths are less likely to occur.84 This is to be achieved through the publication of six-monthly summaries of Rule 43 reports (which are renamed as ‘Reports on Action to Prevent Future Deaths’)85 and their corresponding responses on the Ministry of Justice website and also in the Chief Coroner’s annual report. The summaries include trends, reports with wider implications, and annexes giving details of the number of reports issued by each coroner district, organisations which have not responded to the coroner, and all reports received.86

Freckelton has observed that the Lockerbie disaster highlighted the significant differences between death investigation in Scotland and coronial jurisdictions elsewhere in the world.87 In jurisdictions, like Scotland, that follow the civil code system derived from Roman law, sudden deaths are not investigated by a coronial system. Instead, death investigation in Scotland is carried out by the Office of the Procurator Fiscal and the sheriff courts.

The office of the Procurator Fiscal was first established in the 16th century with the single responsibility of collecting sheriffs’ fines.88 However, its function has since shifted. Procurators Fiscal are now qualified lawyers, employed by the Crown

also send a copy of the report to any other person who the coroner believes may find it useful or of interest.

Office and Procurator Fiscal Service.89 The Procurator Fiscal is an independent public prosecutor. The police and other agencies report crimes to him/her which s/he must consider and decide whether to take criminal proceedings in the public interest. The modern Procurator Fiscal’s role at common law and under statute covers three areas: most importantly, the prosecution of crime in Scotland, but also the investigation of deaths which are sudden, unexplained or suspicious and complaints against the police.90

Certain types of death require a fatal accident inquiry, requiring a sheriff in the Sheriff’s Court to set out the circumstances of death.91 The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 prescribes that fatal accident inquiries will be held before a sheriff without a jury.

Pursuant to section 6(1), the sheriff must determine the cause of death, any reasonable precautions that might have been taken so as to prevent the death and any defects in a system that contributed to the death or to an accident resulting in the death. The sheriff holds the inquiry, generally at the application of the procurator fiscal.92 Section 6(1)(c) provides the sheriff with the power to determine reasonable precautions, if any, whereby the death might have been avoided.

Sheriffs make recommendations in around one third of cases.93 Upon making a determination, a sheriff must send a copy of the determinations reached to the Lord Advocate,94 and to the parties to the proceeding,95 and the government maintains a website where some recommendations are published in brief.96 Freckelton asserts

that while the procurator fiscal’s role includes prevention, “evaluation of criminality remains a central part of the office.”97

A Scottish Government commissioned review of fatal accident inquiries was published in late 2009, promoting an explicit preventive purpose achieved through a recommendatory power.98 At the time of writing, the Scottish Government was still considering the report.99 The Scottish Parliament has not yet made a legislative response to this report.

Inherited from England, the coronial system for death investigation still exists in the Canadian provinces.100 However, unlike other jurisdictions such as Australia and NZ, whose coronial system origins are English, most Canadian coroners are medical practitioners, not lawyers appointed as judicial officers. For example, in Alberta, death investigations are undertaken by medical examiners (doctors) who are assisted by medical examiners’ investigators. In Saskatchewan, by contrast, not all of the province’s coroners are medical practitioners. They come from a “wide variety of backgrounds including medical, legal, business and investigations.”101

In Ontario, all coroners have medical qualifications. According to Freckelton and Ranson:102

Canadian systems for death investigation have received considerable approbation, in particular that of Ontario. The innovative approaches taken in this jurisdiction with respect to death prevention and coroners’ recommendations have been particularly effective, and this has occurred in a setting where coroners are for the most part medical practitioners with a focus on public health, rather than legal practitioners.

101 Government of Saskatchewan “Frequently Asked Questions - Ministry of Justice - Government of Saskatchewan” Government of Saskatchewan

The Ontario coronial regime’s public health orientation was noted by an Ontario judge who stated that coroners with a medical orientation “bring to their task their medical experience and their situation-sense of patients, families, illnesses, medical record confidentiality, medical institutions and medical care.”103 This focus is strengthened by the joint leadership that the Ontario Chief Coroner and Chief Forensic Pathologist provide to the regime.104 The Ontario Office of the Chief Coroner’s focus on death prevention is clear from its motto: “We speak for the dead to protect the living.”105

Inquests in Ontario inquire into the circumstances of the death and determine who the deceased was, and how, when, where and by what means the deceased died.106 The strict rules of evidence do not apply. Inquests are held with juries. Parties address the jury with suggestions about their findings and potential recommendations. The jury makes recommendations that may prevent similar deaths.107 In chapter 7, we explore the Canadian provinces’ prevention-focused death investigation systems further, focusing in particular on their approach to recommendations and organisational responses to recommendations.

The English coronial system was imported to the US with the first British immigrants.108 The first recorded American inquest took place in 1635. Coroners were

elected and inquests were held with juries. Over time, coroners in the US were discredited. Corruption was rife, the office politicised and coroners tended to be unqualified occupants of minor political office, farmers, or undertakers.109 The anti- corruption and medical lobbies pushed for reform. The result was that many states replaced coroners with the medical examiner system of death investigation.

Today, the medical examiner system has been established in many US states. However, as commentators have recorded, the variation and large number of independent jurisdictions handling death investigations in the US “makes a clear overall description of the medical examiner system impossible.”110 The fragmented, disparate death investigation system in the US has generated complaints and formal reviews.111

According to the US Department of Justice, as of 2004, 16 states had a centralised state-wide medical examiner system.112 Fourteen states had a county coroner system, seven had a county medical examiner system, and 13 had a mixed county medical examiner and coroner system. Eight states with decentralised death investigation systems also had a state medical examiner office performing medico- legal duties (Alabama, Arkansas, Georgia, Iowa, Kentucky, Montana, North Dakota, and Tennessee).113 The District of Columbia reported a city medical examiner office, which functioned similar to a state-wide system.

Where a coronial role does exist, it is an elected position, and a wide range of individuals may hold the office of coroner, many of them funeral directors and most non-physicians. Some counties in South Carolina and Indiana have elected forensic nurses to the role, but they are not judicial officers.114 Some coroners may also hold other official positions, particularly law enforcement positions, which can raise conflicts of interest with their role as coroner.115 For all US coronial systems, the responsibility of coroners is primarily to determine the time, cause and manner of

death. In carrying out this function, coroners retain quasi-judicial powers, including the power to subpoena and in some states to empanel juries, although they are not judicial officers, instead being regarded “executive branch officials.”116

Medical examiners have no power to hold hearings or inquests.117 Instead, the investigation records are treated as documents which may be discovered and used in evidence in civil or criminal proceedings. The 1971 British review of death certification found that the medical examiner system is not regarded as sufficiently thorough in removing public doubts and suspicions.118

Medical examiners bring the sort of medical expertise to death investigation for which Anglo-Australasian, legally-trained coroners must rely upon independent experts. Legally-trained coroners, however, are better placed to marshal evidence and oversee the often complicated inquests that death investigations involve, including dealing with witnesses and interested third parties.

It is beyond the scope of this report to engage fully with the debate as to whether a medical examiner model or coronial system is superior. New Zealand’s Law Commission considered and rejected proposals to reform New Zealand’s death investigation system to adopt medical examiners.119 In addition, such a change was not included in the current NZ Government’s terms of reference for review of the coronial system. Moreover, “the pressures that have been generated in the United States for replacement of coroners by medical examiners have not been experienced to the same degree in other countries with coroners’ jurisdictions.”120 The debate in the US as to which system is more appropriate for death investigation “does not translate well into other coronial systems around the world.”121 This perhaps is partly because the present focus of American death investigation systems is primarily criminal justice rather than public health and death prevention,122 although there are

118 Brodrick Committee Report of the Committee on Death Certification and Coroners (1971). 119 New Zealand Law Commission Coroners (NZLC R62 2000) para 148.

indications that this is changing123 and there is sharing of coronial information for prevention purposes.124

This study’s participants identified either Victoria, Australia (88/123) or Ontario, Canada (35/123) as the prevention-focused “Rolls Royce”, “gold standard” systems.125 It is possible that the Victorian system was more frequently identified by participants as their preferred jurisdiction because it is physically close to NZ and, like NZ, has legally qualified coroners.

New Zealand inherited the English coronial system, and in 1846, adopted its own coronial legislation with the passing of the Coroners Ordinance 1846.126 The Ordinance was repealed by the Coroners Act 1858 (NZ).127 The Coroners Act 1867 (NZ) followed. This Act provided for inquests to be held with a jury with a minimum of 12 members. The 1867 Act was amended in 1908, removing the requirement that a coroner sit with a jury when holding an inquest. The Coroners Act 1951 (NZ) consolidated the New Zealand and English law of the time.128 Coroners’ juries were abolished and the Act gave coroners the same powers, privileges, immunities and authorities as Justices of the Peace.

The 1984 Final Report of the Working Party on Delays in the Release of Bodies for Burial was the catalyst for the next redraft of coronial legislation.129 The Working

Party’s findings were reflected in the Coroners Act 1988 (NZ), which remained the key piece of coronial legislation until the overhaul of the coronial system in 2006.130

The introduction of the 2006 Act was prompted by a Law Commission report published in 2000, which made recommendations for reform.131 This report concluded that the coronial system was under-resourced, insufficiently valued, lacking in leadership, and culturally insensitive. The Act, which came into force on 1 July 2007, provides the legislative framework for the operation of the coronial jurisdiction in New Zealand. The purpose of the Act is to help prevent deaths and to promote justice through:132

Prior to the overhaul of the coronial jurisdiction in the mid 2000s, there were 74 coroners located throughout NZ.133 The Law Commission’s 2000 report on the coronial jurisdiction documented differing views about whether to centralise the coronial districts.134 The report revealed that coroners were balancing their coronial duties with other legal work.135 The Department of Courts submission to the Law Commission reported that 20% of the coroners did 80% of the work.136 The Law Commission envisaged the centralisation of coronial districts with full-time, and better resourced and remunerated coroners. The Coroners Act 2006 ushered in this vision. Today, NZ has 16 full time coroners and a Chief Coroner, who work in a centralised coronial system - the Coronial Services of NZ.

131 New Zealand Law Commission, above n 119. 132 Coroners Act 2006 (NZ) s 3(1)(a), (b).

The Coronial Services of New Zealand primarily comprises the Office of the Chief Coroner, the regional offices and coroners’ chambers and the Coronial Services Unit (CSU). The CSNZ is part of the Ministry of Justice. The Coronial Services Unit provides “case management and administrative support to the coroners to help them fulfil their duties.”137 The CSU also liaises with families of the deceased as they navigate through the coronial process.138

The Coronial Services Operations Manager is located in Auckland and oversees coronial operations throughout NZ. The Chief Coroner’s chambers are also in Auckland, but he travels regularly throughout New Zealand. The national office is located in Wellington. There are nine regional offices: Whangarei, Auckland Hamilton, Rotorua, Hastings, Palmerston North, Wellington, Christchurch,

The Chief Coroner, Judge Neil MacLean, served as a Christchurch Coroner from 1978 to 1993. He began his role as NZ’s first Chief Coroner in February 2007. The 2007 Coroners’ Orientation Programme highlighted that the previous coronial system “lacked leadership”.140 The creation of a Chief Coroner sought to remedy this problem by providing leadership and co-ordination.

The Chief Coroner is appointed by the Governor General.141 The appointment is made on the advice of the Attorney General, after consultation with the Minister of Justice.142 The Coroners Act 2006 requires that “the person appointed as Chief Coroner must be a District Court Judge, or a coroner immediately before being appointed Chief Coroner, or appointed as a Coroner when appointed as the Chief Coroner.”143 The appointment as Chief Coroner must be for a period not exceeding 8

years.144 There is no opportunity for reappointment.145 NZ’s current Chief Coroner has been in office for 7 years at the time of writing.

The Chief Coroner’s main function is to ensure the integrity and effectiveness of the coronial system provided for in the Coroners Act 2006.146 The Act outlines fourteen additional functions which enable the Chief Coroner to carry out his main functions.147 For example, the Chief Coroner oversees coroners’ inquiries to ensure they are orderly and expeditious148 and he promotes consistency in coronial decision making.149

New Zealand coroners are lawyers appointed as judicial officers. Coroners must have at least five years’ experience as a barrister or solicitor before appointment.150 In jurisdictions with the ‘medical examiner’ system, the death investigators are qualified doctors, not lawyers. In NZ, two coroners are dually qualified as nurses and lawyers. Several coroners hold postgraduate qualifications and many hold Bachelor degrees in disciplines such as engineering, social sciences and Maori studies.

During interviews for this study, some participants expressed surprise upon learning that coroners are lawyers, not doctors. The confusion may be related to the so-called ‘CSI-effect’, whereby television depicts medical examiners and pathologists undertaking death investigation. These portrayals suggest to the public that coroners are doctors. Two coroners who were interviewed asserted that in the future, all NZ coroners will, or should, be trained in health/science and law,151 or at least be medico-legal specialists.152 Given the size of NZ, it may not be realistic to recommend that all coroners must be trained in health and law. However, the data highlight that coroners should have access to appropriately qualified public health researchers and clinicians.

Coroners are appointed by the Governor General, on the advice of the Attorney General, after consultation with the Minister of Justice. The Coronial Services of NZ website explains the appointment procedure as follows:153

As vacancies occur the usual practice is for a request for expressions of interest to be advertised in the relevant metropolitan newspaper/s and other appropriate legal publications, to which the legal profession has access. The response form used in the past covers contact details, clarification of citizenship and residence status, gender and ethnic information (optional) age etc together with at least three nominated referees who can vouch for character and accuracy of the information supplied. A statutory declaration is also required confirming no criminal convictions or disciplinary actions or unresolved complaints. Also that the applicant is financially secure with no bankruptcy or related issues. [sic] Also that there is no other matter which might affect credibility in office. [sic]

Although there is no specific age requirement, many NZ coroners are in their 40s and 50s. Section 103 of the Coroners Act 2006 provides for security of tenure while section 110 states that coroners’ salaries are to be determined by the Remuneration Authority. NZ coroners are full time, unless they are authorised by the Attorney General to act as part time coroners.154

There is a statutory cap for a maximum of 20 full time coroners.155 There are currently sixteen coroners, plus the Chief Coroner. They are located in the nine centres with regional offices that were listed above in the section ‘what is the CSNZ?’ There are four coroners in Auckland: Coroners Katharine Greig, Morag McDowell, Sarn Herdson and Deborah Marshall. They cover Auckland, Henderson, Manukau, Papakura, Pukekohe and Takapuna.156

Four of the regional centres have two coroners in each location.157 Coroners Gordon Matenga and Peter Ryan are based in Hamilton and cover Hamilton, Cambridge, Huntly, Matamata, Te Aroha, Paeroa, Te Awamutu, Te Kuiti, Thames and Waihi. The areas Hawera, Levin, Kaikoura, Marlborough, Marton, Motueka, Nelson, New Plymouth, Ohakune, Palmerston North, Taihape, Taumaranui, Wanganui, and Waverley are covered by Coroners Carla na Nagara and Tim Scott.

Wellington coroners Ian Smith and Garry Evans cover Kapiti, Lower Hutt, Masterton, Porirua, Upper Hutt, Wellington and the Chatham Islands. The coroners based in Christchurch are Sue Johnson and Richard McElrea. They cover Ashburton, Christchurch, Rangiora, Timaru, Waimate, Greymouth, Hokitika, Westport and Ross Dependency.

Dunedin, Hastings, Rotorua and Whangarei have one coroner each.158 Dunedin’s Coroner, David Crerar, covers Alexandra, Balclutha, Cromwell, Dunedin, Gore, Invercargill, Oamaru, Queenstown, Te Anau and Wanaka. Dannevirke, Eketahuna, Gisborne, Hastings, Napier, Ruatoria, Waipukurau and Wairoa are covered by Coroner Christopher Devonport, who is based in Hastings. Rotorua’s Coroner Wallace Bain covers Putaruru, Rotorua, Taupō, Tauranga, Tokoroa and Whakatane. Dargaville, Kaikohe, Kaitaia, Kerikeri, Warkworth, Whangarei and Raoul Island (Kermedec Group) are covered by Coroner Brandt Shortland.

The Chief Coroner can designate other coroners to conduct inquiries where there is a good reason why the coroners to whom the deaths have been reported should not conduct them.159

Every coroner vacates that office, if s/he has not earlier done so in another way, upon attaining the age of 70 years.160 However, a former coroner of, or over, the age of 70 years may from time to time be reappointed for a term not exceeding 12 months.161 The Governor-General may, if s/he thinks fit, remove a coroner from office for inability or misbehaviour.162

The CSNZ has different staff positions throughout the country. Coronial Case Managers assist coroners and families. They help coroners by managing each case from the time the deceased is released from the mortuary until the coroner’s finding is distributed to all parties.163 Families involved in the coronial process will also often

interact with Coronial Case Managers after their loved ones have been released from the mortuary.

The National Initial Investigation Office Senior Co-ordinator and Co- ordinators include staff who:164

work at a centralised location to receive and manage any newly reported death. They deal with the coronial process from the report of a new death up to when the person is released from the mortuary. They assist the coroner by ensuring the initial coronial process is managed and that families are kept informed on what is happening in relation to a post mortem, the notification of body tissue retention and when the person is released from the mortuary.

Coronial Service Administrators fulfil a variety of support roles. They answer telephone calls from families who ring the regional offices.165 Regional staff assist families through the coronial process and ensure “proper processes are followed”.166

The media are able to report on most aspects of the Coroner’s Court. A dedicated staff member deals with enquiries from the media.

In addition to administrative staff, the coroners are supported by a Judicial Support Manager and two Research Counsel. Information services are provided to coroners and members of the public who have requests for coronial findings.

The NZ coroner’s role is described in section 4 of the Coroners Act 2006. The coroner’s task commences once a report of a death is received from the NZ Police. Anyone who finds a body in NZ must report the death to the NZ Police.167 The Police are responsible for determining whether the death should be reported to the coroner.

NZ coroners investigate sudden, unnatural and violent deaths. Deaths that “must” be reported under the Coroners Act 2006 include deaths: 168

Sections 13(1)(c) and 13(1)(d) include numerous subsections. For example, reportable deaths under section 13(1)(c)(iv) that occur during “medical, surgical, dental or similar operation or procedure” include “every death...that occurred while that person was affected by an anaesthetic.”

Section 63 of the Coroners Act 2006 states that coroners can decide whether to open and conduct an inquiry and, in doing so, they must have regard to several matters such as whether the death “appears to have been unnatural or violent” and “the existence and extent of any allegations, rumours, suspicions, or public concern, about the death...”

Once the death has been reported to the coroner, s/he must determine whether to direct a post-mortem, and if one is directed, determine who, other than the pathologist, may attend. The coroner is also responsible for authorising the release of a body after the post-mortem. The coroner decides whether to open an inquiry, and if an inquiry is to be conducted, whether an inquest should be held. Pursuant to section 80 of the Coroners Act 2006, a coroner who decides to open an inquiry may decide to hold an inquest or undertake a chambers (“on the papers”) investigation. However, if the death appears to have occurred in official custody or care (as defined in section 9) the coroner “must” hold an inquest.

The coroner must open and conduct an inquest for the three purposes stated in section 4(2): to determine the details of the death; to make recommendations to reduce the chances of the occurrence of future deaths in similar circumstances; and to determine whether the coroner is in fact the correct authority to investigate the death.169

An inquest is not an opportunity to undertake a “roving Royal Commission.”170 The nature of a coronial inquest is described as follows:171

A Coroner’s Inquest is a judicial hearing presided over by a warranted judicial officer, who has most of the ancillary powers of a District Court Judge. An inquest is a fact-finding exercise rather than a

method of apportioning guilt. The procedures and rules of evidence that are suitable for one exercise are unsuitable for the other...It is an inquisitorial process, a process of investigation quite unlike a trial.

Contemporary coronial law reform in Australia has sought to define the boundaries of the coronial role more effectively. The Law Reform Commission of Western Australia’s review of their coronial jurisdiction revealed concerns about “wide-ranging inquests” and “broad recommendations tenuously connected to deaths.”172

Section 4 defines the coroner’s role, but it is only a “general guide”.173 Their role is much broader than conducting inquests. Coroners liaise with other investigators such as the Health and Disability Commissioner. They are proactive about speaking to the public, appearing in the media and playing crucial roles in the aftermath of disasters such as the Christchurch earthquakes.

In jurisdictions such as NZ, Australia and Canada, coroners have statutory preventive roles. According to Freckelton, the course of the NZ coroner as “a quasi- public health official appears set.”174

In their review of the Western Australian coronial jurisdiction, the Law Reform Commission of Western Australia concluded that:175

The coroner continues to play a valuable role by ensuring that deaths that fall outside the remit of specialist bodies are not ignored, by enabling the independent exploration of unanswered questions about a death in a public forum and by raising public awareness about circumstances leading to particular deaths.

In NZ, a number of agencies have a specific interest in death reporting and analysing trends and causes of death. In addition to the CSNZ, the following organisations are involved in death prevention: the Office of the Health and Disability Commissioner, the Accident Compensation Corporation, District Health Boards (specifically their internal sentinel event reviews), and the Health Quality and Safety Commission including the mortality review committees such as the Perinatal and Maternal Mortality Review Committee, Perioperative Mortality Review

Committee, Child and Youth Mortality Review Committee, Family Violence Death Review Committee.

Although the mortality committees review individual deaths, they analyse and interpret information in the context of population wide mortality trends and advice is formulated with these broader trends in mind. Mortality committee members provide clinical and epidemiological expertise and can design recommendations that are both evidence based and feasible.

This contrasts with the narrower construction adapted to the facts of a specific case, which is the primary focus for the coronial process and is aligned to the public accountability/justice aspect of the coroner’s role. The Health and Disability Commissioner (HDC) investigative process focuses on the individual acts of specific health practitioners and can result in disciplinary action, and has an outward public focus on practitioner accountability for actions (albeit that practitioners are not always named).

The coronial process serves the interests of justice and assures the public that there is independent scrutiny of unexpected or unexplained death. The coronial process can identify key facts, the proximate cause of death and general context in which the death occurred.

When investigating a case, the coroner is statutorily required to consider whether the death ought to be investigated by other authorities where such investigations form part of their functions, powers and duties. The coroner liaises with the other investigative bodies about the scope and timing of death investigations. Agencies with a formal statutory investigative (and often a disciplinary or prosecutory) function include:

(for deaths of patients who are subject to CTO. Investigations focus on the care provided to the patient and systemic learnings)

Investigations undertaken by any of the above agencies often delay the commencement of the coronial inquiry.

Although this research highlights aspects of the coronial jurisdiction that could be improved, research participants also pointed out elements of the current system which work well. Almost all participants (121/123) reported that the coronial jurisdiction improved after the introduction of the Coroners Act 2006. There was a perception that there are “fewer random recommendations than we used to see.”176 Organisations stated that they “take coroners’ recommendations seriously” and that

the “coronial process is important.”177 Many participants described their “respect” and “admiration” for the coronial jurisdiction.178

The Clancy family (who tragically lost their baby, Hunter Warwick, following a prolonged second stage of labour) described the positive aspects of the coronial inquest into their baby’s death as follows:179

We admire the coroners. Matenga was great. There was so much information and yet he got it. He said that there should have been monitoring. He also raised the issue that I was 35 and that should have been seen as high risk and maybe a hospital birth was more appropriate.

Many participants appreciated the inquisitorial nature of the coronial jurisdiction:180

Our view still is that it’s a wonderful service...there are strengths because it’s an inquiry and not adversarial. When they’re done well, they are the most complete as far as an investigation into a road trauma...a well-constructed coroner’s report is the best information.

I went to a coroner’s investigation that was run by Judge MacLean. And it was a really great experience because he did the questioning, and I thought that was a much better system...I felt that you got to the truth.

Robert Barlow (whose son, Adam was pronounced still born and died due to intrapartum asphyxia) explained that:182

It was good to be able to make closing statements. Not all coroners allow that. We felt that after ten days of evidence and medical jargon it was good to recap that we were there for our little boy.

Participants also appreciated the independence and objectivity of a coronial inquiry.183 The following government organisation’s view captures these sentiments:184

181 Interview with NZ College of Midwives (Jennifer Moore, 22 January 2013). 182 Barlow, above n 1; Barlow [2008] NZCorC 35.

It is right that we have the coronial process. I like the idea that we have someone independent who can take that step back and look down on something with few constraints.

The ability of the coronial process to identify themes for preventive purposes was mentioned by many participants:185

They are sometimes like canaries in a mine. A good example was the coroner who picked up early that snow tyres were an issue, earlier than anybody else. So we do want them to be asking the questions.

‘The coroner’ is probably the one institution that has an insight into what themes are emerging that haven’t been seen before. Personally I welcome the coroner’s discussion about those things.

Participants typically described coroners’ unique position to review things from a different angle.

Participants welcomed coroners’ sensitivity towards the emotional nature of the jurisdiction.187 Organisations often commented favourably about specific coroners:188

Look at Sue’s training and background. From the bottom-up, she knows how the health system works, knows about injustice, knows about misogyny, knows about all the gender issues. She knows about all that, and is compassionate, and she has an understanding about the family dynamic...Katherine Greig’s good too...so is Carla from Palmerston North.

Participants also appreciated inquiries into clusters of cycling or quad bike deaths, or coroners with experience in a specific category of death focusing on that category.

It was common for participants to prefer their local coroners. For example, participants made comments such as “we are blessed in Auckland. We have competent coroners here.”189 Participants frequently commented on the variability across coroners, observing that “there are some who are very, very good and make great recommendations. However, there are others who do not fit into that same category. It would be good to have some performance assessment monitoring.”190

Organisations valued their relationships with coroners and appreciated that coronial information could inform their work:191

I have usually found, despite my caveats, coroners’ findings useful and they assist me in my job. We look for patterns and commonalities in the findings either in one area or across the country The Mortality

Review Committees find coroners’ findings useful. The public of NZ should be reassured that there are processes that go looking for common issues.

Similarly, the following description reflects other organisations’ experiences:192

Well what coroners do is really important in terms of the family, in terms of the event, and from our perspective, in terms of actually reinforcing and supporting good change within processes and procedures for an industry or a company or whatever. So this is pretty important stuff!

Most organisations’ overall perception of the CSNZ was that they were “impressed” with the work coroners achieve given the “resourcing issues.”193 In chapter 6 we analyse under-resourcing in the coronial services in detail. In the next section, we explore specific examples of recent coroners’ recommendations.

Coroners’ decisions are called ‘findings’.194 The structure and formulation of coroners’ findings varies. According to Coroner Stewart:195

Speaking for the dead is a big part [of our role] in the sense that we try to establish what happened. My findings are a bit lengthier than others because, for me, it’s about recording the circumstances of the death for the future. That’s not necessarily with prevention in mind. It’s more as a record of what happened in that unexplained death.

Coroners’ findings typically include information such as the findings of fact, the deceased’s identity, the cause and circumstances of the death, and prophylactic recommendations.196 Sometimes inquests do not include transcripts of evidence.

Coroners can make “specified recommendations or comments.” ‘Recommendations’ and ‘comments’ are not defined separately in the Act. Recommendations are typically “more formal and specific, for example about the details of a particular safety procedure.”197 This research analyses recommendations because we are concerned with evaluating the rigour and public health impact of the formal statements relating to the prevention of deaths.

“Recommendations or comments” are defined in section 9 of the Coroners Act 2006 as “recommendations or comments about the avoidance of circumstances similar to those in which the death occurred or the way in which any people should act in circumstances of that kind”. This definition allows coroners to consider a wide range of factors relating to a death.

However, the section 9 definition contains two limiting clauses: “in circumstances similar to those in which the death occurred”, also found in sections 4 and 57, and “in circumstances of that kind”. Recommendations should relate to the circumstances in which the particular death occurred, preventing a coroner from viewing the death too broadly. The government review proposes amending the Act to “ensure coroners’ recommendations or comments are specific to the case and

evidence before the coroner”.198 The two limiting clauses in section 9 should encourage coroners to make recommendations that are specific to the case.

All coroners interviewed for this project explained that there is a difference between a recommendation and a comment. A ‘comment’ is a general observation that does not usually call for a response. A ‘recommendation’ should be targeted to a specific organisation and it will usually call for change and/or a response.

Despite the misconceptions of some participants, coroners are not required to make recommendations. One of the coroner’s tasks is to decide whether recommendation/s and/or comment/s should be made. Coroners sometimes discuss their decision making in their findings. For example, in Hancock, Coroner Ryan stated:199

I have considered whether I can make any useful recommendation that may help to prevent further deaths occurring in similar circumstances, but am unable to do so. This is because there were no environmental factors nor defects in Mrs Inch’s vehicle which may have contributed to the crash occurring.

The coroner’s observations apply a public health injury prevention approach: assessment of whether environmental factors (physical or social) create the risk of fatal injury. If such an environmental factor is found, countermeasures (to counter the damage done by environmental hazards) should be applied. In this case no environmental hazards (or other issues e.g. defects in the vehicle) were identified by the coroner. Therefore, he decided that a recommendation was not required.

Many coroners (11/15) reported that they will often make comments if a recommendation is not required, but there are important observations that should be formally recorded. For instance, in an inquiry into a death caused by a fall from an electricity pylon, the coroner made the following comments:200

action, I do not consider there are any recommendations that I could usefully make which might prevent further deaths occurring in the future in similar circumstances.

In this case, the coroner endorsed the work undertaken by Counties Power Limited to prevent similar fatalities in the future. Many coroners that we interviewed (13/15) reported that it is common for them to choose to comment (rather than issue recommendations) when organisations have already remedied the issues. The coroner in Pukeroa highlights that the electricity had danger signage warning the public about the potential risks. In interviews, coroners reported (9/15) that they are unlikely to make recommendations if members of the public choose to take risks when the risks are known and warnings are in place. For example, when an experienced kayaker died of cardiopulmonary congestion consistent with drowning while at sea in extreme weather conditions, Coroner Bain commented as follows:201

It is hoped that these comments will ring true to other people when thinking about kayaking in extreme conditions particularly when they are predicted. I do not see that there is any useful recommendation that can be made because the stupidness of what they did is obvious. Apart from a blanket ban being imposed in certain weather conditions you cannot stop people from being fools unto themselves.

This was an entirely avoidable tragedy and the life of a very experienced and renowned rafter, kayaker, outrigger canoeist and photographer has been lost. It is a salutary lesson to all and hopefully it is a salutary lesson to those involved. I am critical of all four men for venturing into the ocean on that fateful day. Hopefully they have learnt their lesson and others within their sport will heed the foolishness of their misplaced bravado.

Coroners frequently expressed frustration about sudden unexplained deaths in infancy (SUDI) deaths. This is a category of death where recommendations have been repeated and many of the risks (such as an intoxicated adult co-sleeping with a child) are well-known. In an inquiry into a SUDI death, Coroner Ryan chose not to make an untargeted recommendation to “the world at large” for the following reasons:202

I have considered whether or not there is any recommendation that I could usefully make to help prevent further deaths occurring in similar circumstances in the future. However, any recommendation would be simply to the world at large and would therefore not be useful. Instead I would like to endorse the efforts of all public interest groups who are promoting the education of parents as to the dangers of SIDS and measures that parents can take to reduce the risk to their children. In particular I support all efforts being made to educate parents as to the danger of drinking to excess while caring for infants because of the effect of alcohol impairing the parents’ ability to ensure their children are safe and well.

In another SUDI case involving an unsafe sleeping environment, Coroner McDowell similarly chose not to make recommendations. Instead, she made comments and sent a copy of the findings to the Ministry of Health to consider alongside previous coronial recommendations about SUDI. Coroner McDowell’s reasoning was as follows:203

provided evidence that it is inappropriate for adult sized pillows to be used in the first year of life as they represent a potentially unsafe sleeping environment.

In this case, Coroner McDowell refers to previous recommendations about SUDI and bed sharing. Coroners (13/15), organisations (76/79) and interested parties (8/8) noted that, where possible, coroners’ findings should refer to previous similar cases in order to increase the preventive potential of recommendations.

In an inquiry into the death of a two year old from positional asphyxia in a bunk bed, the coroner’s recommendations flow from her analysis of the previous similar cases, relevant standards, legislation and evidence. The coroner’s evidence- based finding explains why recommendations are necessary:204

2009 10 year old Sarah Smith slid under the guardrail of a top bunk and accidentally got caught in clothing hanging from the rail.

By contrast, the recommendations in Thacker were frequently cited by participants as examples of non-evidence-based recommendations.205 In this case, a woman died from a head injury sustained when she fell from the tray of a farm tractor. The coroner made the following comments:206

Prior to investigating Lois’ death I had not heard of a fatality or indeed accident occurring in similar circumstances. I had ridden on a tractor tray in similar ways many times and I had never thought of the particular dangers that might be associated with that. Lois’ death has caused me to reflect and reconsider. As a consequence I consider that publication and recommendation would be worthwhile.

A copy of this finding will be forwarded – as is routine – to the local media. In addition however, a copy will be forwarded to the New Zealand Farmer magazine – or if no such publication presently exists

– any similar magazine published to the farming community. That would enable the editor of such magazine to give this finding such publicity as he or she thinks fit.

The coroner states he “had not heard of a fatality...in similar circumstances.” The finding does not refer to previous similar cases, but it is unclear whether any

research was undertaken to identify such cases. Rather than citing the evidence, the coroner notes his personal experiences of tractor trays. His experience informs his decision that a recommendation “would be worthwhile.” In addition, investigation of the appropriate magazine at which to direct the findings was not undertaken. Such limitations inhibit the preventive potential of the coroner’s recommendation, which was:207

I recommend that any person reading the details of this decision, who is in the practise of transporting or being transported in similar circumstances to review this practice [sic]. It is clearly potentially dangerous – potentially fatal.

It is unlikely that this recommendation has been, or will be, implemented. It does not target a specific, identifiable organisation. Instead, it is directed to “any person reading the details of this decision, who is in the practice of transporting or being transported in similar circumstances.” Such a vague direction is unlikely to reach its intended audience. In chapter 4, we discuss this issue in detail and identify all untargeted recommendations in our study period.

The majority of participants (111/123) viewed coroners’ recommendations as the most important aspect of coronial inquiries. The following remark captures participants’ sentiments:208

I believe that the value of recommendations, or their lack of value, speaks volumes about the entire set up.

On 31 July 2012, the Courts Minister announced a targeted review of the CSNZ.209 A principal catalyst for the government review was the Law Commission’s finding, during its review of the Burial and Cremation Act 1964, that there is potential duplication between the CSNZ and other investigation bodies, and that

clarification for reportable deaths is needed.210 An examination of the overlap between investigation services is one of the aims of the review. The terms of reference are to:211

Prior to the July announcement, in May 2012, the Minister’s advisor contacted us after reading about our research in the media.212 The original terms of reference for the government’s review did not include coroners’ recommendations, but after discussion with the authors and the Chief Coroner, coroners’ recommendations were included.213 The inclusion is significant because the government review revealed that coroners’ recommendations are one of the most important aspects of the review.214

The first Cabinet Paper reports that the Ministry of Justice wrote to 168 stakeholders seeking feedback about the coronial system. Forty-nine submissions were received.215 In keeping with the review’s terms of reference, the submissions were about the following topics:216

Although the review found that coroners’ recommendations are one of the most significant areas requiring reform, an analysis of the textual recommendations was not undertaken. The review was concerned with the “needs of grieving families”.217 However, the targeted review excluded the public voice. Had families been included in the review, it is probable that submissions would have called for the introduction of a mandatory response regime for coroners’ recommendations. The empirical evidence suggests that families would be supportive of this law reform. Numerous media articles also report that families would like coroners’ recommendation powers to be strengthened. There will be an opportunity for public submissions during the parliamentary select committee phase.

On 26 June 2013, the Courts Minister announced proposals to reform the CSNZ.218 These proposals were considered in two stages. The first stage covers the following:

The 2000 Law Commission report raised concerns about the lack of consistency of practice between coroners. This concern was echoed in the current

review’s submissions. Strengthening the Chief Coroner’s role to spread workloads and, therefore, reduce delays is proposed. Reduction of duplication with other investigating authorities is also proposed, with the use of memoranda of understanding.

The Minister proposes amendments to coroners’ powers to make recommendations. In particular, submissions highlighted that organisations and interested parties desire enhanced engagement with the CSNZ during inquiries. A definition of “interested parties” will be inserted by amendment into the Coroners Act 2006.

The reforms will also involve redrafting the statutory provisions relating to reportable deaths, particularly healthcare-related deaths. Concerns about the interpretation of medical deaths have led to confusion amongst medical practitioners about which deaths should be reported. This issue arose during the Law Commission’s review of the Burial and Cremation Act.

There are two paragraphs about coroners’ recommendations in the second paper.221 The Minister will “monitor” the situation before “considering whether further changes are necessary.”222 The paper refers to the “continued public discussion”223 about whether legislation should require agencies to respond to coroners’ recommendations. The Minister does not commit to the introduction of such changes. Instead, he states that he “expects that reasonable coronial recommendations will voluntarily get a response from government agencies”.224

In June 2013, the government expected to introduce a Bill to implement all the changes in the second quarter of 2014.225 On 31 July 2014, the Coroners Amendment Bill 2014 was introduced to Parliament.226 The House sat for the last time in the 50th Parliament on 31 July. It will not sit again until after the general election on 20 September 2014. Since the House sat for the last time on the same day as its introduction, the Coroners Amendment Bill 2014 has not had its first reading. The date for its first reading will be determined after the general election.

The date for the first meeting of the 51st Parliament will be set after the election. The first meeting will be no later than 20 November because, by law, the first meeting of the new House must take place no later than 6 weeks after the date set for the return of the writ.227 We have analysed the government’s review of the coronial jurisdiction elsewhere.228

In Chapter 2, we outline the methodologies that were used to research coroners’ recommendations. It is a reflexive analysis which examines our research methods and methodologies. We discuss our sample. We justify our inclusion of the survey data in addition to the 1,644 recommendations and 123 interviews. An explanation about how we collected and analysed the data is provided. The importance of feedback to the participants is also discussed.

In the third chapter, we discuss coronial information sources, record-keeping and under-reporting. This chapter analyses the problem of under-reporting of coronial decisions in detail. Although the Coroner’s Court is a court of record, there

are no official Coroner’s Court Law Reports. We offer proposals for improving reporting of coronial information. We argue that coroner’s court law reports should be introduced and full coronial findings should be available electronically, for example on NZLII. These improvements in coronial record keeping will maximise the preventive potential of recommendations.

Chapter 4 describes and quantifies the coroners’ recommendations in our study period. Given the limitations of the coronial information that we outline in chapter 3, an important contribution of this study is quantifying the number of recommendations from 2007-2012. The results and discussion in this chapter address our research objective to describe the nature, frequency and recipients of NZ coroners’ recommendations, 1 July 2007 – 30 June 2012.

In the next chapter we analyse the organisations’ responses to our interview questions about what action (if any) they took upon receipt of coronial recommendations and what factors influenced their decision. We explain that little is known about whether and how organisations that receive recommendations act on them. But there is much speculation that the majority of coronial recommendations are not implemented. The most prevalent concern (expressed by coroners, public inquiries, the media, and the public) is that coroners’ recommendations are ineffective and have little or no preventive impact because the organisations to which they are directed ignore them. This chapter provides landmark NZ data on the actual rate of implementation of coronial recommendations.

Chapter 6 traces the origins of coroners’ statutory prophylactic function. It also analyses the key barriers to maximising this function and strategies for improvement. This chapter highlights that the majority of research participants are supportive of the statutory preventive function. While there have been improvements since the introduction of the Coroners Act 2006, the findings suggest that the prophylactic potential of coroners’ recommendations has not yet been fully realised in NZ. The empirical evidence in this chapter suggests that recommendations could be improved by encouraging more coroners to consider similar cases, undertaking analysis of patterns and comparative risks.

The preventive potential of coroners’ recommendations could also be improved by the introduction of a mandatory response regime, which is the topic of Chapter 7. We analyse the debate about whether mandatory response regimes should be included in coronial legislation, drawing from overseas experiences. This

chapter describes the participants’ overwhelming support for the introduction of such a regime. We highlight that introduction of a mandatory response regime cannot be a replacement for early consultation with organisations and interested parties during the coronial process. We argue that the Coroners Act 2006 should be amended to include a mandatory response regime and that the government’s review (which excludes this proposal) is inconsistent with the empirical evidence.

Chapter 8 brings together the important threads from the preceding chapters. This chapter presents a summary of our findings, an analysis of the limitations of our research and a call for further research. It also discusses the implications of our findings and how they might inform coronial practice and law reform.

This chapter assumes that the boundaries between methodology, theory and experience are artificial. We, therefore, not only describe this study’s research methods, but also attend to methodological concerns by reflexively analysing the research process.

Various theorists have clarified the distinction between ‘methods’ and ‘methodology’. Whereas attention to method involves a description of research techniques, procedures and practices; attention to methodology involves making explicit the epistemological (ways of knowing or asserting what is ‘real’ in the world) and ontological assumptions (theories about the world) that a researcher brings to his/her project. Methodology differs from method because it is about addressing the philosophical assumptions that underpin research processes. A researcher’s method is not devoid of theoretical, personal, and political underpinnings.

This approach relates to grounded theory, an inductive methodological approach which generates concepts and theories from the research data.229 Grounded theory originates from a theoretical tradition in sociology called symbolic interactionism.230 Glaser and Strauss (the developers of grounded theory methods) blur the divisions between theory and practice by advocating theory which is grounded in research data. Research participants’ accounts, experiences, and stories can “become theory”.231

This chapter examines the process of studying legal phenomenon through lenses drawn from sociology and poststructuralism. Coroners have a statutory public health/preventive function which lends itself to drawing from theoretical

approaches in the sociology of health and science. Given that this study aims to produce work that is useful and meaningful to the participants, we have drawn from methodological approaches which are concerned with research that should attempt to do more than simply understand the world. Poststructuralism is used to explain our approach to participants’ accounts in the interviews and the texts of the interview transcripts.

The theoretical frameworks reflect the methodological approaches in this study. Our ontologies and epistemologies are influenced by the theorists and literature outlined in chapter 2. By making our epistemological and ontological orientations and our assumptions about knowledge production visible and subject to scrutiny, this chapter is not only a discussion of ‘methods’, but also a ‘methodology’ chapter.

The first section of this chapter describes the research design. The research methods for three studies are discussed in the order in which they were conducted:

1) coroners’ recommendations, 2) the qualitative interviews, and 3) the questionnaire. The chapter ends with a discussion of political concerns, such as the relationship between the researcher and participants, and the importance of feedback to the CSNZ.

Ethics approval for this study was granted by the University of Otago Human Research Ethics Committee in May 2012.

A primary aim of this project was to conduct useful research which had the potential to contribute to coronial practice and policy, and law reform. Therefore, in the first months of 2011, the principal researcher approached the Chief Coroner to discuss potential projects and the extent of the CSNZ’s involvement in the project. By the end of the consultation, we had agreed upon a project that was useful and interesting to all parties.

This is an independent study. Given our commitment to producing useful research, the Chief Coroner and the CSNZ have been actively involved in the research process, particularly in the design, recruitment, and feedback phases. The coroners who participated in the project were extremely generous with their time and enthusiastic about the research.

In the remainder of this section we outline the three methods of data collection:

A principle aim of the textual analysis of coroners’ recommendations is to describe the:

This section outlines the methods for the population-based retrospective case series study of deaths reported to the CSNZ during the study period (1 July 2007 – 30 June 2012) where the coroners’ findings contained recommendations.

The study population comprised deaths reported to, and investigated by, the CSNZ for the five year study period 1 July 2007 – 30 June 2012, where one or more recommendations were made by coroners in their findings. A coroner’s finding is a report written by the coroner about the facts of a death. The finding will include who the deceased was, where, when, and how s/he died. The finding is a public document. Members of the public can request copies, although there may be prohibition orders.

Comments or recommendations arising from coronial investigations are usually located at the end of the finding. The recipients to be sent one or more recommendations are usually specified in the recommendation or comment itself.

However, coroners differ in the way that they write their findings, the frequency that they make recommendations and the scope of those recommendations.232 There is a template for NZ coronial findings, but it is not used by all coroners. The following template was proposed by Harding J:233
IN THE CORONERS COURT
AT [Location]
CSU-201
UNDER
THE CORONERS ACT 2006
AND

IN THE MATTER
of an Inquiry into the death of [Name of deceased]
Date(s) of Hearing: [Date] Appearances:
Date of Findings:

The definitions used in this study are described in this section. Several of the definitions developed in an Australian study of coroners’ recommendations were applied.234

This research defined ‘organisation’ as the body to which a coroner’s recommendation was directed. An ‘organisation’ was the “persons (or committees or departments) who make up a body for the purpose of administering something, especially a business, government department, or charity.”235

The definition of ‘government organisation’ was a public entity that has a public function to exercise on behalf of the State. A government organisation was typically, but not always, wholly owned by the State. A government body could also be a public statutory authority. Organisations affiliated with the executive, legislative, and judicial branches were included in the definition ‘government organisation’.

A ‘non government organisation’ was defined as a legally constituted, self- governing body that was separate from the government.236 A ‘not for profit organisation’ was defined as non-profit-distributing (not returning profits generated

to their owners or directors).237 A ‘for profit organisation’ was defined as profit- distributing (returning profits generated by owners, directors, and other shareholders).238

A coroner’s recommendation was defined in accordance with the Coroners Act 2006 which defines recommendations in section 9 as ‘recommendations or comments about the avoidance of circumstances similar to those in which the death occurred or the way in which any people should act in circumstances of that kind’.

A ‘response’ to a coroner’s recommendation was defined as written correspondence addressed to the coroner or CSNZ where the content contained information about an organisation’s consideration and/or implementation of one or more coroner’s recommendations.239

‘External causes’ refers to deaths where the underlying cause of death was classified as one of the group of external cause codes, V01-Y89, by the World Health Organisation’s International Statistical Classification of Diseases and Related Health

Problems, 10th Revision (ICD-10).240 The ICD-10 is an internationally accepted classification system of external causes.

Coronial investigations during the study period that did not include recommendations were excluded from the study. Information on deaths where one or more recommendations were made by a coroner was extracted from the dataset. We then focused on the recommendations.

Recommendations directed to all types of recipients were included. We were interested in recommendations that were directed to identifiable organisations, individuals and also recommendations that were not targeted. We refer to these recipients as ‘untargeted’ and define them as recommendations which are not directed to an identifiable or specific organisation or individual. An Australian study about coroners’ recommendations excluded recommendations that were directed to individuals and untargeted recommendations.241 By contrast, these recipients were included in this study because we wanted to be able to provide feedback to coroners about the number of untargeted recommendations.242 This information will be important to coroners because they endeavor to target their recommendations to specific entities.

Limited previous research has been conducted to inform the definition of the study’s variables, but some of the variables were adopted from an Australian study of coroners’ recommendations.243 The variables and definitions are described in table 1.

240 World Health Organisation “International Classification of Diseases ICD-10 Version:2010” (2010) World Health Organisation

Table 1 Variables and definitions for the analysis of coroners' recommendations

Variable	Definition
Year of finding	The year of the coroner’s finding.
Inquiry into the death of x.	The coroner’s inquiry into the death of the person or people at the centre of the inquiry.
Cause of death	The ICD-10 underlying cause of death or natural cause that resulted in death and the circumstances.
Coroner	Coroner’s name.
Method of case completion	How the coroner’s inquiry and finding was completed, either by inquest or in chambers.
Recommendation/s	The text of the coroner’s recommendation/s, where recommendation is defined according to section 9 of the Coroners Act 2006.
Number of recommendations	The number of recommendations made by the coroner for each inquiry.244
Number of comments	The number of comments made by the coroner for each inquiry.
Original or repeated recommendation	Whether the recommendation was original to the cohort (i.e. made once) or was a repeat of a recommendation made in another case in the cohort.245
Recipient of recommendation	Whether the recommendation was directed to a recipient.
Type of recipient	The type of recipient to which a coroner’s

	recommendation was directed.
Reference to previous similar case	Whether the coroner referred to previous similar coronial findings and/or recommendations.
Response	Whether a recommendation CSNZ.246	response to was received	by	the the
Nature of recipient’s response to the recommendation	The type of response outlining the action, if any, to be taken by the recipient.247

Many researchers, particularly in public health and social science, regard coronial information as a rich source of data.248 However, it is not necessarily easy to access coronial data. Coronial websites in New Zealand and Australia do not provide automatic access to all coroners’ findings. An Australian report concluded that “there are significant limitations to most of the publicly available information.”249 The report highlights the access difficulties faced by “advocates and researchers trying to prevent future deaths...via accessing findings and recommendations for all similar deaths” because the “information sought is often not publicly accessible via the internet.”250

If a researcher cannot source the data from the internet, could s/he access the information from the NZ Coroner’s Court Law Reports? There are no formal law reports for the NZ Coroner’s Court, even though the NZ Coroner’s Court is a Court of Record.251 Commentators have identified under-reporting, and the undesirable

246 Definition adapted from the Australian study: Bugeja, above n 32. 247 Definition adapted from the Australian study: Bugeja, above n 32.

consequences such as inconsistent decision making, as problematic for the coronial jurisdiction.252 In chapter 3, we discuss under-reporting in the NZ Coroner’s Court. Here, we raise the issue to illustrate that the ‘data sources’ and ‘data collection’ phases of this study were not straightforward tasks.

Complaints about information services and record-keeping in the coronial jurisdiction are common.253 However, there have been improvements and it is possible (albeit not necessarily easy) to access coronial data.

There are a significant number of coronial decisions available, albeit not in a systematic format. If one wished to locate all the coroners’ findings on a particular category of death (for example, suicide) for the last forty years, the procedure would not be simple. The requester could make a request for the records through the CSNZ. The CSNZ staff would not be able to press a few buttons on the computer and have all the information appear. The task would be time consuming, requiring searches in multiple databases, combined with manual searching and sourcing of information stored at different locations.254 Paper-based coroners’ findings and the archives would need to be searched.

Researchers can also contact the CSNZ and request a search of the Case Management System (CMS). The CMS is a national database for NZ coronial cases.255 Information about every death reported to a coroner since 1 July 2007 is stored on the system. If the researcher requires coronial cases pre-2007, the CSNZ will need to undertake the complicated and time consuming task explained above. The “Coronial Data Collection” section of the CSNZ website explains the procedure for accessing coronial data as follows:256

First up, check the Injury Information Portal for the information you seek. If you are a researcher, you may be able to access the Australian coroners’ database (NCIS), to which Coronial Services provides data. Read about accessing NCIS on our researcher factsheet.

If neither of these are appropriate, we can search CMS on your behalf. Please make your requests for data as specific as possible. Please address your query to the relevant person listed below.

Accessing information on an individual coronial record is a different process, please read our factsheet to learn more.

As the CSNZ website information explains, theoretically, the requester could also search on the National Coronial Information System (NCIS). The NCIS is a data storage and retrieval system for coronial information for Australian cases and which, from July 2013, now also includes some NZ coronial data.257 However, the full text of coroners’ findings and recommendations is not publicly available from the NCIS. If a researcher wishes to access information from the NCIS, s/he must make an application to the NCIS, which is then subject to approval by the NCIS Research Committee and the Victorian Department of Justice Research Ethics Committee.258 A fee of $1,000-$2,750 is payable.259 The standard online fee for universities is $2,750.260 The application process can take at least two months. We did not have funding to access the NCIS.

Another option is for the researcher to search the CSNZ website for information. There are a small number of full coroners’ findings on the CSNZ website. Thirty eight full findings of “public interest” are available on the website.261 If the desired finding is not in this list of 38 coroners’ findings, the researcher must email the Operations Manager at the CSNZ to request the required information.262

If a researcher does not require full coronial findings, there is more information accessible. Since late 2013, it has been possible to access most coroners’

recommendations (not the full findings) from 1 July 2007 on either the CSNZ website or the NZ Legal Information Institute (NZLII).263 While this is an improvement, for legal researchers and practitioners, it is not a substitute for formal law reports. For this research, we were unable to rely on NZLII or the CSNZ website because we required the full findings.

Researchers and members of the public can also access a document called Recommendations Recap on the CSNZ website.264 Since late 2011, the CSNZ has been publishing this document. The Recommendations Recaps, which appear every three months, are summaries of coroners’ recommendations.265 The Recommendations Recap is a useful initiative, but it is not a substitute for official law reports. They are summaries of the recommendations, not the complete findings. They do not include findings in which recommendations were not made.

Given the limitations of the coronial data sources, what coronial information was used for this study and how was it accessed? Without the extremely helpful and competent assistance of the Chief Coroner and the CSNZ staff, this research would not have been possible.266 With their assistance, the information for this study was available from four sources:

When we began collecting the data sources for this study in June 2012, neither all coroners’ findings, nor their recommendations, for the study period were

available on the CSNZ website or NZLII. At that time, there were only 384 recommendations (not full findings) available on NZLII.267

The CSNZ researchers were working hard. When they thought that they had finally gathered a complete dataset of all the recommendations since 2007 to upload, they would discover “another 200 or so older recommendations from 2008-2010 that were never sent [by coroners] to research counsel.”268 Although the occurrence is now rare, it had not been uncommon for coroners to fail to send their recommendations to research counsel.

If the CSNZ staff were having difficulties compiling a complete dataset of coronial information, how would we source the data required for our study? Our anxiety was not eased when the research counsel explained the following two additional difficulties that we would face in accessing coronial data:269

Ideally, we did indeed wish to analyse the recommendations that the research counsel decided not to put online. Since the CSNZ had “not been registering them anywhere”, the task would be daunting. The CSNZ staff did their best to look for us. We also went onsite to the CSNZ in Wellington to undertake a search. Several of the un-registered recommendations were unearthed, but many were not because there

was no formal procedure for cataloguing them. Unfortunately, therefore, it was not possible to source all the un-registered coronial recommendations because of multiple factors: research deadlines, the CSNZ staff workloads, and the formidable task of locating the un-registered recommendations. The task would need to be delayed for a future research project. This is a limitation of the current study. While we have analysed all the coronial findings and recommendations that were reasonably accessible, we cannot be absolutely certain that we have a complete dataset.

Given these difficulties, we relied upon the CSNZ staff and their CMS, described above. The CSNZ provided me with a USB drive with (what they hoped was) all the full coroners’ findings for our study period 1 July 2007 – 30 June 2012. The USB drive contained three folders:

Folders one and two contained the full coroners’ findings. Folder three was a spreadsheet with variables about the full coroners’ findings such as the case number, name of the deceased, case status, coroner’s name, application outcome findings, and recommendations. The USB drive did include some coronial findings with prohibition orders, which meant that the second difficulty described by the research counsel, above, was largely overcome. It was not possible to establish the exact number of findings with prohibition orders that were not included on the USB drive.

We used the CSNZ website to access the 38 full coroners’ “findings of public interest”. The information on the USB drive did not contain all these findings. Therefore, the website was necessary for adding to our overall dataset of coronial findings for the study period. To complete the dataset we sourced information from NZLII. The CSNZ website explains that:270

The Coronial Services Unit, in collaboration with the New Zealand Legal Information Institute, aims to provide free online access to all coroner recommendations. In the search box below you can search for cases by name of the deceased or by key word or click here to go to the NZLII website.

We used the NZLII to complete our dataset of coronial findings for the study period. NZLII only includes summaries of recommendations, not full findings. It is possible to search for recommendations alphabetically according to the name of the deceased. Alternatively, one can search by year: 2007-2014, inclusive.271 The information provided in an individual summary of a recommendation includes:

The “summary of recommendation” is typically only a few sentences which describes information about the case such as the cause of death. The information provided on NZLII is minimal. An example of the information provided on NZLII is as follows:272

Todd Stancy Bellingham, 18 years of age at the time of this tragedy on Sunday the 26th of August 2007, died as a result of multiple injuries sustained in a car crash while participating in a rally sprint event organised by the Waiuku Dirt Track Club in the Waiuku Forrest on this day.

It is helpful to have this information online. We could not, though, rely on such limited information. NZLII does not even state whether the inquiry was by inquest or a chambers finding. Therefore, the full coronial findings provided by the CSNZ CMS were invaluable.

We cross checked the recommendations on NZLII against the same findings that were on the USB drive. This cross checking was important because sometimes NZLII referred to a coronial statement as a recommendation, whereas the original coroner’s finding referred to the same statement as a comment. For example, in the Bellingham case above, is Coroner Shortland’s second recommendation actually a comment? In the first recommendation Coroner Shortland states that “the only recommendation [he] can suggest is....” This statement suggests that he will only make one recommendation, yet NZLII lists both statements as recommendations under a heading “recommendations made by Coroner Brandt Shortland.” Given that there is a difference between a recommendation and a comment, and this study’s inclusion criterion is recommendations, it was vital that we did not inappropriately code a comment as a recommendation.

We also used NZLII to source a set of organisations’ responses to coroners’ recommendations. There are a small number available on NZLII. If an organisation’s response is available, the information on NZLII will state this and make a PDF accessible. There is no central register of responses to coroners’ recommendations. Therefore, if there is a response it will be stored in the paper-based files at the CSNZ and included on NZLII and/or in the Recommendations Recap.

In December 2013, we contacted the CSNZ to check whether all recommendations had been uploaded to NZLII. Echoing the difficulties canvassed to us at the beginning of the research, the CSNZ explained that “almost all of the recommendations we are aware of are now on NZLII.”273 We enquired why there were no recommendations from July to November 2007, inclusive, since these dates are part of the study period. The CSNZ explained that:274

We do not have any outstanding ones to put up from 2007. As the system only began in July 2007, it took some time for the coroners to start producing findings with recommendations.

We used the four issues of the Recommendations Recap that were available on the CSNZ website to check that our dataset contained all coronial findings and organisations’ responses to recommendations.

As we explained in the preceding section about NZLII, this online facility only provides summaries of recommendations. Therefore, when we discovered an inquiry with recommendations on NZLII that was not on the USB drive (which contained the full findings) we had to make additional requests to the CMS to access the full findings for those inquiries.

There were 396 such inquiries. Clearly, we could not progress the research without sourcing the full findings for these 396 coronial inquiries. We compiled a document with the information about the inquiries that was available from NZLII including: the date of the finding, the case name, the name of the deceased, the coroner’s name. The CSNZ staff faced a daunting task. As they noted, the job involved “matching the data in [the University of Otago Law Faculty] word document with case file numbers from our records because the coroners’ findings are only stored centrally as PDFs.”275 Sourcing these full coronial findings for the research was an onerous task and we remain very grateful.

Once these full coronial findings were obtained, we were able to read them and input the missing information into Microsoft Word and Excel. We checked the information against the other data sources. After these efforts to source the data, we were able to begin data extraction, management, and analysis.

correct, we opened the doors to the public on 1 July 2007. It took some time before coroners took cases to inquest or made findings in chambers with recommendations or comments.”

We read all the full coroners’ findings in the study period to identify the research cohort. Coroners’ inquiries that met the study inclusion criteria were identified by confirming that the:

Occasionally, we encountered a coronial finding with few headings, where the recommendations were buried in the main text of the finding. It was necessary to read the full findings to identify whether recommendations were made, because there is considerable variation in the way that coroners structure their findings and recommendations.

Rather than undertaking a series of searches on NZLII, we read every single summary of recommendations for each inquiry, starting at 2007 and working our way through to 2012. Our view was that this method of cohort identification would be more reliable than search strategies.

We did not rely on the summaries of recommendations on NZLII. The full findings were consulted to check whether the coronial statements were recommendations and/or comments. The results of our cross checking revealed some discrepancies, as we explained above. We included coronial comments as a variable only if the comments were made in conjunction with recommendations.

The variables of interest were recorded in Microsoft Excel. Table 1 outlined the variables and definitions for the study of coroners’ recommendations. We did not encounter a scenario where a variable was not accessible from any of the data sources. Therefore, the study does not contain anything which is classified as ‘unlikely to be known/unknown’.

We classified information from the coronial findings in Microsoft Excel by coroners’ inquiries (inquest or chambers). The text of a coroner’s recommendation/s for each inquiry was extracted from the full coroner’s finding and entered into Microsoft Excel. Where multiple recommendations were made, each recommendation was entered as an independent record. The total number of recommendations for each inquiry was recorded. The total number of comments for each inquiry (where there were also recommendations made) was also recorded.

Following an Australian study, where multiple deaths occurred from one incident, the death with the first occurring local case number was classified as incident and all subsequent deaths were classified as related.276 Identical repeated recommendations were identified and classified as either original recommendations or repeated recommendations. For example, in inquiries involving SUDI deaths, coroners often repeated recommendations made in previous cases.

For each inquiry, we checked whether the coroner referred to previous similar inquiries, either in the main body of the findings or in the recommendations and comments. If such a reference was made, this was recorded in Microsoft Excel.

The name of each recipient to whom a recommendation/s was directed during the study period was identified from the full coroner’s finding and entered into Microsoft Excel. All recipients were recorded: organisations, individuals, and untargeted. The exact wording used by coroners for untargeted recommendations was extracted from the full findings and entered in Microsoft Excel. The recipient

was classified by type e.g. whether the organisation was government, for profit, or not for profit.

Each organisation’s official website was located and information about their mandate was recorded. The exact name of each recipient that was used by the coroners was entered in Microsoft Excel. However, if the name of the organisation had changed, or was incorrectly described by the coroner, this information was entered into Microsoft Excel too. We did not encounter any organisations that were unable to be verified.

Organisations’ responses to coroners’ recommendations were sought from a review of NZLII and Recommendations Recap. A response was deemed to be present when there was evidence of a formal response, for example a signed letter on the organisation’s letterhead and addressed to the CSNZ or the coroner. Whether or not an organisation responded was classified as yes or no in Microsoft Excel. The organisation’s name was also recorded. The response was reconciled with the original coroner’s recommendation/s. The data was entered into Microsoft Excel. During the interviews with organisations, we verified whether responses were sent to coroners.

The nature of organisations’ responses to coroners’ recommendations was classified according to an existing system applied in a study conducted by the University of Melbourne. We made several modifications to this system that were in keeping with the NZ data. The system and categories are explained in chapter 5.

Selection bias is the main potential source of bias in this study. As we have explained, repeated recommendations were defined as those that were identical in

wording. We did not exclude recommendations that contained common themes. The impact of this method is that there may be an overestimate of the reported number of original recommendations.277

Another limitation concerns the classification of organisations’ responses to recommendations. The method applied to quantify responses to recommendations was restricted to limited data sources. This approach may have resulted in an under- reporting of responses because of any of the following reasons:

These deficiencies were controlled for by undertaking qualitative interviews with the recipients of coroners’ recommendations.

After all the data was entered into Microsoft Excel, it was checked for errors using a custom-designed computer script.278 The data in Microsoft Excel was compared with the data generated by the code. All discrepancies were checked manually by two researchers. Corrections to the data were made.

The data gathered comprised the variables outlined in the section ‘variables’, above, and also the free text of the coroners’ recommendations and comments for each coronial inquiry. The variables were used to classify the data in Microsoft Excel. The data analysis procedure included, broadly, assessment of the:

As Bugeja has explained, the “analysis was complex as some incidents resulted in various combinations of multiple deaths, recommendations made and organisations sent recommendations.”279 For instance, a coroner may direct a single recommendation to one recipient, or multiple recipients. Alternatively, a coroner may direct many recommendations to one recipient, or multiple recommendations to many different organisations.

As outlined above, the data analysis involved differentiating original from repeated recommendations. Only original recommendations were analysed for this part of the study. Had all repeated recommendations been included in calculations of the number of recommendations, the figure may have been overestimated. Repeated recommendations were analysed separately to establish:

Where coroners made recommendations which endorsed organisations’ suggested recommendations, these were counted because they were official coroners’ recommendations that were made with the hope that they would be considered and implemented by the recipients. For recommendations that were addressed to multiple recipients within a larger organisation (for example, CEO of the NZ Nurses’ Organisation (NZNO) and Chief Legal Advisor of the NZ Nurses’ Organisation) we coded that as a single organisation: NZNO, but noted the exact recipient in Microsoft Excel.

Our final estimate of the number of coroners’ recommendations may be different from the number generated by the CSNZ because of our different counting rules. For example, as outlined above, we classified certain coronial statements as comments, whereas the same statements were classified by the CSNZ on NZLII as recommendations. After reading the full finding for Collings, for instance, we counted one coronial statement as a recommendation and the other as a comment,

whereas, NZLII has coded the two statements as recommendations.281 We encountered another scenario where NZLII recorded coronial statements as comments, but they were actually recommendations. For example, NZLII used a heading “comments made by coroner” but when we read the comments we discovered that one or more was actually a recommendation. In Keenan, for example, NZLII states “comments made by Coroner RG McElrea” and goes on to note these comments as:282

It is likely that, although the neoprene chest waders Mr Keenan was wearing are designed to give buoyancy, his chances of survival would have been enhanced if he had been wearing an inflatable life vest, preferably in conjunction with a belt. Water Safety New Zealand (WSNZ) recommends the use of neoprene chest waders. These should be worn with a belt and personal floatation device. We recommend that WSNZ gives publicity to the desirability of using neoprene chest waders in conjunction with a belt and personal floatation device, by suitable publicity to members of the public and specialist suppliers and users of such products.

When one reads these supposed coronial comments, it is not difficult to notice that the coroner makes a recommendation when he states: “we recommend that WSNZ....” In these scenarios, we coded the appropriate comments as recommendations, ignoring the headings on the NZLII. Presumably, however, the CSNZ and the NZLII have counted these coronial statements as comments, thereby generating further differences between our quantification of coroners’ recommendations and theirs.

Also, sometimes coroners’ findings do not specify whether their statements are comments or recommendations. In this scenario, we coded these according to the statutory definition and the definitions of comment and recommendation described during interviews with the coroners.

The total number, range, and average number of recommendations and comments per inquiry during the study period were calculated. The number and proportion of recipients to which recommendations were directed during the study period was calculated. The types of recipients sent coroners’ recommendations were also described by calculating the proportion of government, not for profit, for profit,

individual, and untargeted recipients. The number of organisations’ responses to recommendations was also calculated. The data analysis also included description of the following:

After much of the data analysis of the coroners’ recommendations component of the research was completed, we began the interviews.

In addition to the collection and analysis of the recommendations, we conducted interviews.

The principal researcher interviewed fifteen coroners, 79 organisations and eight interested parties. Plain language statements were included in the recruitment information (see appendix 2). Written consent was obtained from all participants (see appendix 3). All participants were English speaking.

Potential participants were NZ coroners who had completed findings during the study period 1 July 2007 to 30 June 2012 and NZ coroners who had completed findings under the Coroners Act 1988. In order to capture a range of experiences related to the formulation of recommendations, we included coroners with differing levels of experience. The exclusion criterion was non-English speakers.

Contact details for practising coroners meeting the selection criteria were obtained from the CSNZ. After seeking approval from the Chief Coroner, all coroners were emailed an introductory letter inviting them to participate in the study

(see appendix 4). The letter outlined the study aims, estimated duration of the interview and instructions to contact the researcher. If, after four weeks, no response was received, the invited participant was followed up via email. If no response was received after two weeks, the invited participant, or his/her personal assistant or case manager, was followed up via telephone. The sixteen coroners (including the Chief Coroner) were approached and thirteen were able to participate.283 Three declined to participate. The response rate for practising coroners is 81%.

Eight of the practising coroners interviewed have worked under both the Coroners Act 1988 and the Coroners Act 2006. Two retired coroners were interviewed to garner additional perspectives on the old and new coronial systems. These coroners were recruited using snowball or chain sampling.284 The initial participant was asked to suggest retired coroners who may be willing to participate in the research. This method of sampling is useful when the people being studied are well networked or difficult to locate and approach directly. Unlike practising coroners, retired coroners’ contact details are not necessarily publicly available. Retired coroners were also emailed the introductory letter inviting them to participate in the study. Follow up via telephone and email was not required. Three retired coroners were invited to participate. Two agreed to participate. Overall, 19 coroners were approached and 15 agreed to participate. The response rate for all coroners is 78.9%.285

Table 2, below, summarises the participants’ demographics. Fewer female coroners participated in the study. Thirty five per cent (6) of coroners in NZ are female. Therefore, the percentage (26.7%) of female coroners interviewed is similar to the proportion of female coroners in NZ. In keeping with the aim to capture a range of experiences, similar numbers of participants were interviewed from each category of years of experience. Five interviewed coroners had 5-9 years of experience, four coroners had 10-14 years of experience and six had fifteen or more years’ experience.

All NZ coroners are lawyers appointed as judicial officers. It is not surprising, therefore, that all interviewed coroners had a Bachelor of Law degree. Further specific details about the participants’ qualifications are withheld to protect their identities.

The organisations were identified from the sample of coroners’ recommendations. All coroners’ findings from the study sample (1 July 2007 to 30 June 2012) were read by the principal researcher. The name/s of the recipient/s to which each coroner’s recommendation was directed was entered into Microsoft Excel into a column called ‘recipient’. The recipient could be single or multiple and of various types. Coroners direct their recommendations to identifiable organisations (government, not for profit, or for profit) or individuals. Coroners also direct their recommendations to a single recipient or multiple recipients. For instance, one recommendation can be directed to the Ministry of Health; whereas another recommendation can be directed to the Ministry of Health, the Health and Disability Commissioner, and Plunket.

Sometimes coroners direct their recommendations to groups. We coded these as ‘untargeted’. This group includes recipients of recommendations where there is no identifiable organisation or individual. For instance, coroners directed

recommendations to “hunters”,286 “recreational divers,”287 and “candidates for licences”.288

A dataset of 309 recipients was identified. Table 3 and figure 1 describe the recipients of coroners’ recommendations in the study sample. The highest number of recommendations were directed to government organisations (n=121, 39%). The smallest number of recommendations were directed to individuals (n=5, 2%). Although coroners “are trying to ensure that a recommendation is targeted and that it says who it is to go to”, a significant proportion (n=72, 23%) were untargeted.289

Table 3 Recipients of coroners' recommendations, by category, NZ, 1 July 2007-30 June 2012

Only identifiable organisations were included in the qualitative study.290 Individuals and untargeted recipients were excluded because it is not possible to contact and interview the recipients of untargeted recommendations.

The remaining dataset included 232 organisations. Table 4 and figure 3 describe the type of organisations that were sent coroners’ recommendations in the study sample. Just over half of coroners’ recommendations were directed to government organisations (n=121, 52%).

Table 4 Number and percentage of organisations sent NZ coroners' recommendations by type, 1 July 2007-30 June 2012

Figure 3 Number of organisations sent NZ coroners’ recommendations by type
For Profit, 44

The inclusion criterion was organisations that were sent coroners’ recommendations during the study period. Some organisations (16) contacted the researchers, offering to participate. The remaining 216 organisations were contacted. All identifiable organisations were recruited via an introductory letter and telephone or email follow up. If, after four weeks, no response was received, the invited participant was followed up via email. If no response was received after two weeks, the invited participant was followed up via telephone.

Seventy nine of the 232 organisations were able to participate. This is much more than the 45 organisations that we predicted would participate when we wrote our research proposal for the Law Foundation. We interviewed until data saturation occurred and no new themes emerged from the interview transcripts. Data saturation was reached after several interviews with sub categories of organisations such as

district councils and district health boards (DHBs). For example, coroners’ direct many recommendations to district health boards, but it was not necessary to interview all twenty DHBs in order to reach saturation.

In 2011, when the research proposal for this project was first submitted, concerns were expressed that organisations subjected to coroners’ recommendations might be reluctant to participate in the research. We wrote in our research proposal for funding to the Law Foundation:

Preliminary investigations demonstrate that agencies are prepared to discuss why certain coronial recommendations are not implemented because of the perceived need for improvement in the form and content of some recommendations.

Organisations, coroners, and families have proactively contacted the researchers, willing to participate.

It was not always a simple task identifying the appropriate senior individual to contact. The task often involved detective work, persistence, and follow up, particularly in large organisations. This is not because people did not wish to be interviewed. Rather, sometimes no one was sure who, if anyone, liaises with the CSNZ. We sympathised with coroners when they described the challenges they sometimes experience in identifying the most appropriate organisation, or senior individual, to direct their recommendations.

Sometimes we interviewed more than one person from a single organisation. This is because several people are typically involved in considering coroners’ recommendations. For example, at some DHBs it is usual for the Chief Legal Advisor, the Coronial Liaison Officer, the Chief Medical Officer, and the CEO to be involved in reviewing coroners’ recommendations.

Seventy nine organisations participated, but we undertook more than seventy nine interviews because often several people from a single organisation were interviewed. We conducted one hundred interviews with senior individuals from organisations. The participant organisations (and senior individuals) that chose to be named are:291

The eight interested parties include two medical professionals, three lawyers, three families and one organisation with an interest in coroners’ recommendations. Seven interested parties contacted the researchers and one was approached using snowball sampling after referrals from three other participants. The participant who was contacted by the researcher was recruited via an introductory letter and email follow up. In order to avoid reliance on the self-selection process of the interested parties who contacted us, we ensured that we had clear criteria for selecting participants. Interested parties were included if they: had three or more years of experience with the coronial jurisdiction and experience of coroners’ recommendations. Interested parties who contacted us and did not meet these criteria, were thanked for their interest in the project, but excluded from the study.

The sample of interested parties is not representative, nor can it be generalised to all NZ lawyers, medical professionals, or families that are involved in the coronial jurisdiction. The interested parties were included because of the depth of their experience with the Coroner’s Court. They also provide a different perspective on coroners’ recommendations than the views garnered from organisations and coroners.

Key informant interviews are interviews with stakeholders for particular communities of interest. These interviews involve interviewing such people as representatives from those communities in order to gain insight into the structure of the groups under study.293 They provide an effective way of gleaning the views of a collection of communities of interest.

Interviewing is an appropriate technique for studying aspects of social life such as processes and decision making.294 Our aim was to elicit in-depth responses from the coroners, organisations, and interested parties regarding their reflections on coroners’ recommendations. We also aimed to gather coroners’ and organisations’ explanations of the process of decision making about coroners’ recommendations.

Although there are alternative ways to approach coroners’ recommendations, we chose interviews because they are an excellent way of discovering the “meanings and interpretations that people give to their experiences.”295 In-depth interviews provide more detail about individuals’ understandings and experiences than can be gained through alternative methods such as focus groups. Interviews are also an appropriate method to use for this study because they allow new theories and understandings to be developed during the research process.

Coronial recommendations are “an increasingly important aspect of inquests”.296 Yet, little is known about how coroners make decisions.297 Several of our aims during the interviews with coroners were to investigate how coroners express recommendations, what sources are relied upon, and what evidence they call.

Interviewing the coroners began in September 2012 and the final interview was conducted in March 2013. Many coroners had heard about the research through the Chief Coroner or administrative staff at the CSNZ.

All coroners were able to choose an interview location convenient to them. We travelled to the coroners’ offices in locations throughout NZ to conduct the interviews. We are confident that this aided the positive response that we received.

The interview schedule was piloted on two key informants before the guiding questions and themes were finalised. The interviews were semi-structured, one-on- one, in-person, and lasted between 50 minutes and 2 ½ hours.298 The duration of the majority of interviews was 90 minutes. Written informed consent was obtained from all participants apart from one, who argued that he had given consent when he agreed to the interview via email. With the coroners’ permission, interviews were audio-taped. If permission was not granted, notes were handwritten. Participants could request to stop the tape or end the interview at any time, but no one made these requests.

We used the grounded theory strategy of theoretical sampling so that each interview cycle used concepts of importance (such as organisations’ references to adverse comments) which emerged from prior interviews.

We interviewed a total of 108 interested parties and organisations during the months August 2012 to July 2013. Eight interested parties were interviewed. The interview schedule was piloted on two key informants before the guiding questions and themes were finalised. We interviewed 100 senior individuals from 79 organisations. We used theoretical sampling (explained in the section, ‘coroners’, above) for all the interviews with organisations and interested parties.

The interviews with organisations and interested parties were generally similar to those with coroners in that they were semi-structured, and audio-taped or recorded in handwriting. However, fifteen interviews were conducted on the telephone, while the remaining 75 were in-person interviews.299 The interviews with

organisations and interested parties lasted between 40 minutes to 2 ½ hours. The average duration of interviews with interested parties tended to be longer and was

110 minutes. As noted by scholars whose research involved interviewing (particularly with women), the interviews are often a reciprocal exchange where the participant asks the researcher questions.300

All participants were given the opportunity to make any additional comments at the end of the interview. At the completion of the interview, participants were asked whether they would like a transcript of the interview prior to its analysis.

Grounded theory was used to analyse this study’s interview data. Glaser and Strauss, the developers of grounded theory, were at the forefront of the “qualitative revolution”301 when they wrote their book on the method in the late 1960s.302 Grounded theory uses a research question, rather than a hypothesis, as the starting point of research.

The researcher develops inductively derived theory from the data. The sample is intended to be representative of the phenomena under study, rather than enabling significant generalisations. Since its original formulation, grounded theory has evolved. Grounded theorists study social processes. Although there are different methods of data analysis, we chose grounded theory because of its inductive approach to analysis and interest in processes.

All interviews were transcribed (123 in total).303 The structured data analysis process began with a line-by-line analysis of the transcribed interviews. We looked for patterns of commonality and also for cases that “didn’t fit” or that presented

divergent views.304 For example, in keeping with the literature, we expected organisations to report that most coroners’ recommendations are lost in bureaucratic processes. However, we found that many organisations had formalised in-house procedures for reviewing coroners’ recommendations. Based on the literature, we expected all coroners to talk to us about the difficulties of deciding to which organisations they should direct their recommendations. While the majority of coroners’ reports were in keeping with our expectations, one coroner stated that he does not have trouble identifying organisations.

As Fujimura has noted, there are times when we come across phenomena which we cannot readily place into our existing categories, so we have to fit it (however badly) into an existing category or invent a new category.305 We treated organisations’ formal procedures as a separate category.

The data was organised into coded patterns and initial categories. Axial coding was used to make connections between the categories. We generated provisional theories from these categories and codes, which were checked against subsequent interviews. This technique ensured that our theories and ideas were grounded in the data. Throughout this process, we used our theoretical toolbox to analyse the transcripts and to alert us to categories which might have otherwise remained unexplored. When the same categories, codes, themes and patterns kept emerging, it was clear that saturation was reached. To ‘saturate’ categories refers to further examples being gathered as the researcher proceeds through the transcripts until no new examples of a particular category emerge. Theoretical saturation is also reached when the relationships between all categories are well-established and validated.

The preceding neat description of our data analysis betrays the messiness of how the analytic phases of the project actually occurred. We often worked in an ad hoc fashion, moving from the interview transcripts to the literature, then to our journal and back to the transcripts, in an attempt to engage in constant comparisons

between the different sources.306 Scholars have reflexively discussed the messiness of data analysis. Geertz describes the researcher in the process of data collection and analysis as a “manic tinkerer adrift with his [sic] wits”.307 In her description of when saturation is reached, Clarke also suggests the messiness of the preceding analytic process when she says the researcher will have “many, many times – tinkered, added, deleted, reorganised.”308

The result is what is referred to as “messy texts”.309 The ‘mess’ being referred to highlights the researcher/writer’s involvement in the production of research material. We, as the researchers/writers, became “scribe[s]” who “voices interpretations about the events recorded...and shapes the representations that are brought to the people studied.”310

While we speak with an analytical voice throughout this report, we do not assume authority over the transcripts. According to poststructuralist theorists,311 conflict over the meanings of any text, including interview transcripts and coronial findings, is inevitable and with the ‘death of the author’,312 there is an expectation that multiple readings are possible, despite authorial intentions. We accept that our readings are not the only possible ways to interpret the material.

A “partial perspective” is offered.313 Our analysis of the data is influenced by the epistemological and ontological assumptions we bring to the research questions. In addition, aspects of the data were particularly interesting to us because of the biographical details of our own life. As the principal researcher is trained in several disciplines, such as public health/epidemiology, sociology and law, we accept that we have noticed and highlighted particular themes, especially those related to these disciplines, to the exclusion of others. Once we started to privilege material that was of interest to our theoretical orientation, some material inevitably received more attention.

We do not want our own personal experiences of coroners’ recommendations to take centre stage. However, we recognise the importance of the researcher’s “insider” and “outsider” selves.314 Demographic details such as our age, ethnicity, religion, and our experiences of the coronial jurisdiction leave our “social fingerprints” on the research process and the production of the written text.315

In terms of how we have treated participants’ accounts, we favour an epistemological approach that does not presume that the participants’ accounts unproblematically reflect a pre-existent reality. People’s accounts about their experiences of coroners’ recommendations will be comprised of layers of (re)workings and (re)memberings.

According to Haraway, ‘experience’ does not exist “outside the violations of language and culture.316 ‘Experience’ may be “re-constructed, re-membered and re- articulated.”317 This means that any meaning a person brings to an experience depends on the resources that are available to him/her and, thus, are open to re- construction. A health care organisation illustrated this point in the interview when they described the discrepancy between the reasons for their initial decision to partially implement the recommendation and their current analysis of that earlier decision.318 The senior individuals from the organisation explained that they decided

to implement aspects of the coroner’s recommendation, while disregarding other aspects because “the proposals did not fit with our mandate.”319 Later in the discussion they reflected on this statement and re-articulated their initial decision. This re-construction is couched not in terms of the organisation’s mandate, but as a choice that they would have made “even if the coroner’s recommendation did work with our mandate” because “the coroner’s proposal was outside our budget.”320 Here, the health care organisation engaged in the sort of re-construction of experience that Haraway describes. The organisation’s experience of the coroner’s recommendation is (re)configured with each new account. We know from poststructural principles that texts displace, through the words they use, the experiences they seek to record.

It does not follow from these cautionary notes about experience that we dispense with the idea totally. The shift lies in emphasis. The accounts that participants give about their experiences with coroners’ recommendations form the basis of analytical enquiries. We wanted to find out what accounts proliferate about recommendations. How do coroners describe their decision making about whether to write recommendations? Why do differently positioned organisations draw from certain discursive frameworks rather than others when they discuss their consideration of coroners’ recommendations?

We have drawn from postmodernist and poststructuralist principles in the preceding discussion about participants’ accounts of their experiences and our approach to the interview transcripts. Although our primary methodological tools come from grounded theory, it is becoming more common to combine this framework with postmodernist principles.321 Clarke, in her article which seeks to resituate grounded theory around the postmodern turn, demonstrates that some scholars are now combining these different theory-method packages.322 While we have primarily used grounded theory as a guide throughout the analytical process, we also approach texts with a poststructuralist and postmodernist toolbox.

As we explained in the section, ‘interviews’, above, 79 of the 232 organisations were able to participate in the interviews. During the interviews, participants were asked for their views about the introduction of a mandatory statutory regime whereby organisations would be required to respond to coroners’ recommendations. All coroners interviewed were in favour of the introduction of a mandatory response regime. Only two organisations did not support such law reform. The Courts Minister’s review also considered whether to include this law reform option in its review.323 The media focused on the perceived problems caused by absence of a mandatory response regime under the current Coroners Act.324

Given the public interest in this law reform option, and the strong support garnered during interviews, we decided to investigate the views of those organisations that had declined to be interviewed. We wondered whether the organisations that declined to participate in the study did not wish to be interviewed because they do not consider or respond to coroners’ recommendations. We also wanted to know how many organisations that were not interviewed would agree with the introduction of a mandatory response regime for coroners’ recommendations. Without the questionnaire data, a limitation of the research may have been that only those organisations that respond to coroners’ recommendations participated in the study, providing unbalanced results. Combining the questionnaire data with the interview data provided a clearer picture of organisations’ views about law reform options. We have greater confidence about the recommendations made in this report.

We devised a two page questionnaire that asked participants (senior individuals from organisations) for their views on coroners’ recommendations. The questionnaire was comprised of three sections. In the first section, participants were asked to respond to ten statements about coroners’ recommendations using a five-

point Likert scale, with 1 being ‘strongly agree’ and 5 being ‘strongly disagree’.325 The statements were as follows:

In the second section, participants were asked to state whether they believe any changes need to be made to the coronial system (yes or no option) and asked them to explain why or why not. We also asked participants if they believe any changes need to be made to coroners’ recommendations (yes or no option) and asked them to explain why or why not. Finally, we asked participants to explain why they did or did not support the introduction of a system which required organisations to respond to coroners’ recommendations. In the final section, we asked participants to provide their demographic data (professional background, role in the organisation, and number of years worked in the organisation).

The organisations had already been identified from the sample of coroners’ recommendations, as explained in the section, ‘interviews’, above. The inclusion criterion was organisations that were sent coroners’ recommendation during the

study period and that had not been interviewed. The total number of organisations was 153. All organisations elected to remain anonymous.

We held a focus group of 17 general and academic staff members from the University of Otago to gather feedback on our questionnaire wording and design. The members were not financially compensated for their participation. During the focus group, we asked participants for their views on the question wording and interpretation of each question. We made several changes to the questions on the basis of the feedback.

We identified senior individuals at each organisation by reading their websites and/or phoning the organisations. In September 2013, we emailed senior individuals from the 153 organisations the survey to complete. We included a cover letter outlining the purpose of the questionnaire. Participants could return the completed survey to us via email or post. Participants were posted a free-post envelope for the survey to be returned in.

Forty two of the 153 organisations returned completed questionnaires. That is a response rate of 27.4%. Why did 42 organisations agree to complete the questionnaire, but decline the invitation to be interviewed? Social science researchers have often concluded that face-to-face interviews have the highest average response rate, followed by telephone surveys and postal or email surveys.326 Mail surveys have developed a reputation for low response rates.327 In this study, it is possible that organisations preferred to complete the questionnaire because it is less time consuming.

We coded the questionnaire data by converting responses to numbers. We entered the data variables into Microsoft Excel to generate univariate and bivariate

descriptive statistics. We checked for coding errors. The main measured variables in this study were the participants’ ratings for the ten rating scale statements.

We also analysed the participants’ questionnaire responses through the lens of the qualitative data analysis. What were the similarities and differences between the participants’ interview and questionnaire responses? The validity of qualitative research is strengthened by triangulation of findings. In social science, triangulation refers to using different research methods to hone in on a research angle from two or three different perspectives.328 Triangulation is the use of multiple sources of information, methods, theories, and techniques to generate a variety of data which measure the phenomena under investigation.329 If different sources of information are saying the same things, then the researcher can have greater confidence that the findings are valid.

We were particularly interested in what the questionnaire data revealed about whether organisations supported the introduction of a mandatory response regime for coroners’ recommendations. Our analyses of the interview and questionnaire data investigated participants’ views about coroners’ recommendations from different angles.

The coronial jurisdiction investigates many private tragedies, sometimes in public inquests which can be intensely charged arenas. The coroner’s work can be fraught. People’s perspectives on coronial findings and recommendations can be polarised and intransigent. When researching this jurisdiction, one feels like a “lightning conductor”, to borrow Casper and Clarke’s expression, because of the danger of overlooking the intensity of people’s practical concerns in the theoretical discussions.330

Upon entering this terrain, therefore, we considered it important to be reflexive about practical issues such as our roles as a researchers, interviewers, analysts, and potential CSNZ collaborators. As we discussed earlier in this chapter, reflexivity is an essential component of research. We have chosen methodological techniques which allow us to fulfil our aim of contributing to coronial practices through feedback. Using these methodologies to guide our research ensures we prioritise the issues participants face when formulating or considering coroners’ recommendations.

Social science methodological principles enable researchers to foster relationships with their participants.331 Rather than separating ourselves from the research and research site, we have followed researchers who encourage a “politics of engagement”, which recognises our own immersion, interest in and commitment to the worlds we study.332 Throughout the research process, we have been conscious of our roles as researchers. Fujimura argues that researchers’ analyses are guided by our situated positions, advising, therefore, that we make our interpretations explicit to enable readers to reach their own conclusions.333

Social science methodologies aim, among other things, for social change. Scholars have called for an integration of academic and community work, socially useful and responsible research, and a bridging of the gaps between community and acadeour through collective knowledge making.334 In collaborating with the CSNZ and feeding back the research to them and the other participants, we attempt to work with organisations and do research that is useful for them.

This study aims to be useful to the participants by contributing to law reform in the coronial jurisdiction. The principal researcher engaged with the Courts Minister’s review of the coronial jurisdiction during the research process. In May 2012, prior to the Courts Minister’s July announcement about the review, the

Minister’s advisor contacted the researchers about the empirical project after reading about our research in the media.335 The original terms of reference for the Government’s review did not include coroners’ recommendations.336 After discussion with us and the Chief Coroner, coroners’ recommendations were included in the terms of reference. The inclusion is significant because the Government review revealed that coroners’ recommendations are one of the most important aspects of the review.337 We also discussed this research with senior advisors from the Ministry of Justice, particularly in June 2013 as the Ministry prepared their second paper outlining proposals for reform to the Coroners Act 2006. The first article about the research was emailed to the Ministry’s senior advisors when it was published in March 2014.338

The concurrent timing of this research and the Ministry’s Coroners Act Review were opportune for the research participants. There were occasions when our positioning as a collaborator was used by participants as an opportunity to voice their concerns and agendas. For instance, many senior individuals from organisations felt strongly that we should explain to coroners that they must engage in more consultation with organisations prior to finalising their recommendations. The preliminary research findings have been used by some participants to champion the introduction of a mandatory response regime for coroners’ recommendations. Rather than adopting the “modest witness” position and supposedly just observing and listening, we chose to be active analysts and fed back the participants’ comments to the coroners and Ministry senior advisors.339

We also acted as networkers, connecting coroners with senior individuals from organisations such as the Federated Farmers. With the cooperation and consent of the organisations, at the conclusion of this research, we will provide the coroners with a list of their contact details. We feel confident that this is a useful research outcome in itself because many organisations desire enhanced consultation with the

CSNZ and some coroners experience difficulties identifying to which organisations to direct recommendations.

For the remainder of this section we elaborate on two issues of crucial importance when doing research in the coronial jurisdiction. First, we discuss the relationship between the researcher and participants. Secondly, we discuss the importance of feedback for, and collaboration with, the CSNZ and the organisations, especially in terms of our aim to do meaningful and useful work. Interviews are social encounters which draw from wider frameworks and assumptions, such as power and control.340 It is important to be reflexive about how we handle potential power imbalances and differences in personal opinions during the interviews.

Much has been written about the interviewing process, the roles of researcher and researched in this interaction and how social science methodologies are useful in addressing power relations in research.341 In general, we were conscious of monitoring or reducing our role in the research process because we wanted participants to be able to tell their own stories without being influenced by our comments. This general approach does not mean that we never shared our perspectives with participants.

To what extent should we have shared information with the participants? Should we volunteer information about ourselves and share our views with participants when asked? These questions were at the forefront of our minds throughout the data collection phase of the project. We did not consider it appropriate to constantly talk about our own experiences and opinions because this

might “significantly shift what is said to [the interviewer] in fairly unpredictable ways.”342

However, in keeping with methodological approaches, we wanted the interview to be a reciprocal interaction. Many participants expressed enthusiasm when we did initiate dialogue and answered their questions. We decided that it was preferable to emphasise the ‘listening ear’ but also to take our “cue from the person being interviewed.”343 In other words, we avoided having a set, standardised formula which we followed rigidly for each interview. Instead, we adapted the interview guide according to the participant.

Our approach meant that the style of interviews varied. On the one hand, there were participants who preferred to monitor their copy of the interview schedule, follow it rigidly and tick off questions as we progressed. On the other hand, there were participants who introduced new topics that were not featured on the interview schedule. While we took our cues from the participant, our preference was to use the interview schedule as a guide, digressing onto different topics to let the conversation flow.

Qualitative researchers conceptualise the interview as a “social encounter”, exploring the shifts in power and control between the researcher and researched in this relationship.344 Ribbens argues that research interviews often involve power imbalances that stem from public domains and that these can have implications for “how people talk to each other and what they say to each other as a result.”345 Endowed with a public legal, or medical authority, a small number of participants did not dispense with this when in the private research encounter.

The balance, or imbalance, of power and control in a research encounter is not “fixed and may vary according to...the age and status of the [participants]...[and also] on the perceptions of the person being interviewed.”346 At the beginning of the research process we tried to achieve equality by avoiding elevating the position of

the researcher over that of the participants. After all, the participants are the key informants with expertise in the coronial jurisdiction.

Despite our efforts, four participants expressed concern about their interview performances. On several occasions we felt that the participants wanted feedback about their responses to our questions. Our experience was that these participants were particularly thoughtful and conscientious. A coroner, for instance, said that she was nervous before the interview. Two senior individuals from organisations enquired whether their responses were the “right answers”, even though we stressed that there were no correct responses.347 In response to certain questions, some participants said, with a tinge of anxiety, “we’ve never been asked that question before!”348 Although we insisted that there was no right response, at the same time, we did not expect that our approach would be entirely non-directive. As Middleton accurately writes, the “kinds of questions asked, the verbal and nonverbal reactions to responses...the physical setting itself” function by encouraging certain accounts from participants.”349

The social science methodologies adopted in this research ensure that data collection involves taking participants’ concerns seriously.350 We fed back the preliminary research findings to participants during the research process. The feedback process is important and in line with methodologies which emphasise the achievement of social change at a theoretical and practical level.351 Oakley, for example, proposes that the collection, analysis and presentation of data occur for the researched/participants rather than the researcher.352 Researchers should seek input from participants about the project during the research process. The researched are

referred to as ‘participants’, rather than ‘subjects’, to highlight their contribution to the research.

Following these methodological principles, we invited participants to provide feedback on their interview transcripts and/or the preliminary themes elicited from the interview transcripts. Participants were able to comment on their transcripts and/or themes by email, phone or in person. The majority of participants provided feedback by email. Seventy six of the participants responded positively and contacted the principal researcher with their comments. We made the editorial amendments to the interview transcripts that were requested by participants. When multiple participants identified the same theme, those themes were incorporated into subsequent phases of analysis and writing.

During the research process, we provided all participants with a draft of an article and invited comments. The article was redrafted on the basis of participants’ comments, submitted to the Journal of Law and Medicine, and published in March 2014.353 At the conclusion of this project, we presented our final research findings to the coroners. Participants also received an article in the NZ Medical Journal.354 We were continually conscious that we wanted to provide the CSNZ with useful material that would be meaningful to them and perhaps inform their practices.

Feedback is not only an important aspect of research which aims to be politically engaged, but it is also a useful technique for validating analysis and checking that the themes are of relevance and importance to the participants.

This chapter’s investigations into the assumptions underlying our research practices indicate that the process was influenced by the epistemological and ontological presuppositions we brought to the research. As illustrated, methodological principles (from interactionism, sociology, and law) influenced the conceptualisation of this project. We have shown how this study’s theory-method package fulfils the aim of exploring coroners’ recommendations. We have discussed

how the methodological tools deployed in this research remind researchers to do socially useful research. Our aim of contributing to coronial practice through feedback relates to scholars’ calls for socially responsible research.

The data collection and analysis phase of the project does not end with the conclusion of the interviews, surveys and analysis of the recommendations. We co- construct the ‘data’ as we write our analyses of the interviews, questionnaire and recommendations. Ribbens has suggested that we cease talking about “data collecting” and, instead, recognise that researchers are “data creating social beings” who have an active presence in the accounts that we give to other people’s lives.355

The relationship between the researcher and the participants should not end with the conclusion of the data collection and analysis. Informed consent is often considered one of the most important aspects of the research process, but ongoing relationships, feedback, and useful findings are arguably equally, if not more, important. This study’s methodological approach has prioritised relationships, feedback, and meaningful research.

We now move in the following chapters to substantive analysis, where participants’ accounts and experiences are enacted as theories, thereby destabilising the theoretical/empirical opposition. The first of the analytic chapters looks at record-keeping and under-reporting in the coronial jurisdiction.

Coronial information sources, record-keeping and under-reporting emerged as important themes in our study. Coroners commented that the under-reporting of coronial findings contributes to their lack of awareness of their peers’ findings. For example, many coroners (12/15) made statements such as: “we don’t know what other coroners do.”356 Some coroners (10/15) commented that this research could be useful because "it will be helpful to know what other coroners do”357 and “it will be of great assistance to know what other coroners recommend and to whom and how often.”358

In Chapter 2 we explained that many researchers and agencies regard coronial information as a rich source of data, yet it is not easy to access this information. We described the difficulties that we experienced when trying to access the data for this project. While the CSNZ provided excellent assistance during our data collection phase, we concluded that coronial information sources need urgent attention. Coroners, families, organisations, the public and researchers deserve easy and affordable access to electronic coronial information and NZ Coroner’s Court law reports.

This chapter deals with the problem of under-reporting of coronial decisions. New Zealand has been described as a “small jurisdiction where traditionally only a tiny proportion of cases finds its way into the few series of law reports that the market will bear.”359 The state of law reporting in NZ Courts, particularly regarding unreported cases, caused an overseas legal scholar to ask “where [are] these Kiwi

authorities?”360 The scholar wondered how he could “operate within a system where much that is of value is to all intents concealed.”361 The problem is not simply that only a small percentage of decisions actually make their way into printed law reports. It is also the case that the decisions of some bodies are not reported at all, whether their findings are significant or not.362

The NZ Coroner’s Court is a Court of Record.363 However, there are no formal law reports for the NZ Coroner’s Court or, indeed, any Coroner’s Court abroad. As Freckelton has pointed out: 364

Coroners’ law reports do not exist (save in Australia on the National Coroners Information System, which is not publicly accessible) and few coroners’ decisions are yet available on the internet.

In the four years since Freckelton made this observation, more coronial findings have been made available online in some Australian states. However, there are limitations to these Australian coronial data sources and, as we explained in Chapter 2, there are only 38 full coroners’ findings of public interest available on the CSNZ website.

This chapter comprises five main sections. In the first section we define ‘law report’. The second section documents that the Coroner’s Court is a Court of Record and, accordingly, it arguably should produce official law reports. The next section outlines the historical and modern approaches to record-keeping in the coronial jurisdiction. The following section analyses the challenges posed by under-reporting. We conclude by offering several proposals to improve reporting of coronial information.

Textbooks about legal research and case law declare that it would have been easy to answer this question twenty years ago.365 A ‘law report’ was defined as:366

A published volume of judicial decisions by a particular Court or group of Courts...Law reports may be either official (published by a government entity) or unofficial (published by a private publisher).

The Oxford Companion to Law defines ‘law report’ as “reports of decisions of the superior Courts on disputed points of law, published for the information of the profession.”367

In NZ, legislation regulates law reporting. Section 12(1) of the New Zealand Council of Law Reporting Act 1938 provides that:

The principal function of the Council shall be to prepare, publish, and sell or to arrange for the preparation, publication, and sale of reports of such judicial decisions, given in New Zealand or elsewhere, as may, in its opinion, be necessary or of value to persons engaged in the administration or practice of law in New Zealand.

The official or authorised law report series for NZ is the New Zealand Law Reports, published for, and on behalf of, the NZ Incorporated Council of Law Reporting by Lexis Nexis. The NZ Law Reports report cases from the NZ Supreme Court, Court of Appeal, the High Court and, historically, the Privy Council.

Cases determined by Courts or Tribunals first appear in ‘unreported’ form. This is a transcript of the judge’s decision, headed by details such as the name of the court, its location, the parties’ names, file number, date of hearing and judgment and the name of the judge/s. In NZ, the “number [of cases] diminishes exponentially in order of the hierarchy of the Court.”368 Almost all Supreme Court and Court of Appeal decisions are reported, whereas very few from the District Court are reported. Under-reporting of the Coroner’s Court may be related to the position of this jurisdiction in the hierarchy of NZ Courts.

In NZ currently, there are approximately 20 series of published law reports.369 There are also digital report series, some of which are available only in electronic format and others which are available in paper and electronic formats. Greville, Davidson and Scragg have argued that today it is more difficult to provide a definition of ‘law report’ because of the proliferation of printed series of law reports, particularly in specialist areas, and also due to the electronic case law databases such as New Zealand Business Law Guide and New Zealand Criminal Cases.370 Are only the NZ Law Reports official and lawful? Should digital case law databases be considered law reports?371

For the purposes of this chapter and report, when we refer to ‘law reports’ we mean a published volume of judicial decisions by a NZ Court/s. When we refer to the ‘Coroner’s Court Law Reports’, we mean official or authorised and published volumes of coronial decisions by the NZ Coroner’s Court.

The expression ‘Court of record’ derives from the fact that the acts and proceedings of certain Courts, notably the superior Courts of common law, were enrolled in parchment while those of other Courts, such as the Court of Chancery acting as a Court of Equity, and the Admiralty and Ecclesiastical Courts, were not.373 This basis of distinction disappeared by the 18th century. The common law Courts had developed the doctrine that only a Court of record could fine or imprison and from this doctrine, there developed the concept that a Court of record was one which had those powers.374

A Court of Record is “a court that has its acts and judicial proceedings permanently recorded and has the power to punish for contempt of its authority.”375

372 We wish to thank Catey Boyce for her excellent research assistance on courts of record. 373 Laws of New Zealand Court of record at para 5 fn 1.

Although the Coroner’s Court is not expressly declared by statute to be a Court of record, it is recognised as such. For example, it has been held that the Coroner’s Court is a Court of record and, as such, is subject to the general rule that proceedings ought to be heard in public unless there is a strong countervailing public interest overriding the need to disseminate information.376 Similarly, coroners describe the Coroner’s Court as a Court of record.377 Coroner Johnson’s 1868 A Handy Book for the Coroners of New Zealand declared that the “Coroner’s Court is a Court of Record.”378

Also, in accordance with the definition of ‘Court of record’, coroners have the power to punish for contempt.379 Prior to the 2006 Act, coroners had the “powers, privileges, authorities and immunities of District Court Judges exercising jurisdiction under the Summary Proceedings Act 1957” and, specifically regarding inquests, the power to punish for contempt.380

The Coroners Act 2006 does not describe the coroner’s role as being that of a judge presiding over a Court. In an interview, one coroner highlighted this omission:381

One of the major problems is that the Act should say (it was taken out of the draft), as it says for the Maori Land Court and the District Court, that there shall continue to be a Coroner’s Court and coroners shall be judges. The Law Commission should have put that in there. Every Court of Appeal decision and so on acknowledges that there is a Coroner’s Court. These decisions also say that we are judicial officers of that Court. But to get acknowledgment that we have the title ‘judge’ is difficult.

The coroner concluded that this problem means that the Coronial Services receive “fewer resources.”382 An undesirable consequence of under-resourcing is that the Coroner’s Court “should have decisions and reports available in print as law reports, but we don’t.”383

are permanently recorded, and which has the power to punish for contempt of its authority’.” (Butterworths New Zealand Law Dictionary, 7th ed, at 72).

Despite the lack of express statutory declarations, in the conduct of an inquest, a coroner has “the powers that are generally recognised as the mark of a Court of record.”384 Case law confirms that the Coroner’s Court is a Court of record.385

The definition of Court of record includes keeping permanent records of proceedings. However, Coroner’s Court findings have never been systematically reported. As a Court of record, should it be mandatory to have the Coroner’s Court proceedings permanently recorded, published and accessible as law reports? In Mafart v Television New Zealand Ltd Elias CJ, Blanchard and McGrath JJ stated that “a Court of Record is under an obligation to maintain the record of its proceedings.”386 The maintenance of the record is a:387

significant ministerial obligation of the Court. The record is conclusive as to the matters formally entered and is notice to the world of them. While the maintenance of the record is as a matter of practice carried out by the Registrars of the Court, they are acting for the Court in this ministerial work and under the supervision of the Judges who comprise the Court.

Similarly, in another NZ decision, Leadbeater v Osborne found that coroners’ reasons for their findings should be permanently recorded:388

Earlier in this judgment I addressed the issue of the nature of a Coronial Court as a Court of record. I did so particularly because this proceeding has been extant for some 18 months and the delay in bringing to trial a matter of such sensitive concern to the parties involved arises in no small measure from the absence of a written record having been kept of the coroner's reasons for his ultimate formal finding. It was fortunate that learned counsel for the plaintiff kept a very accurate record of her own at the time of the coroner's pronouncement, which record was ultimately available as a last resort when attempts to obtain a record of the reasons could not succeed.

I think it necessary for a coroner to keep a permanent record of the reasons for his or her findings. Not merely is the Coronial Court by nature a Court of record, but there are also statutory obligations on a coroner to keep particular records in terms of section 31 of the Coroners Act 1988. Further, a coroner is amenable to review in relation to a decision concerning publication of

reasons by virtue of section 30 of the Coroners Act 1988. A coroner is amenable to review by the High Court pursuant to the Judicature Amendment Act 1972 and the ancient prerogative writs.

A coroner's functions are of great importance to the state and the discharge of those functions impinges on human lives in a way that is often poignant. A coroner is required to act fairly. The citizen's right to seek review in appropriate cases must necessarily be informally diminished where reasons for important findings are not kept in a permanent and accurate form.

For these reasons I express the firm view that coronial reasons for findings should be permanently and accurately recorded.

This case highlights that there are several key reasons why it is important for coroners’ findings to be permanently recorded. First, failures to record can cause delays which adversely impact lawyers and families. Second, the Coroner’s Court is a Court of record. Third, there are statutory obligations on coroners to keep records. Fourth, coroners’ decisions can be judicially reviewed. Finally, coronial functions are important to the State and its citizens.

In the English case Kemp v Neville, the importance of maintaining formal records of proceedings is also emphasised:389

One important practical consequence ... [of] being considered as a judge of a court of record is this, that the proceedings can be proved or disproved by the record thereof only, which record may be made up at any time, whenever it may become necessary to establish an issue duly raised...

So a Court of record is charged with the creation of the record of a proceeding, that record being a product of the pleadings before it, and it is from that record that its decision will be made. A prior similar decision may be persuasive in the considerations of a Court of record but will not necessarily bind it or be determinative of its decision.

In Leadbeater v Osborne, costs were awarded against the Crown/Coronial jurisdiction because permanent records of the coronial inquiry were not kept:390

In the matter of costs, although the application for review did not ultimately succeed, the cost to the plaintiff of the litigation has been significantly increased by the practice of not keeping reasons for coronial findings. It is certainly not by way of criticism of the defendant, but in order to reinforce

the desirability that reasons be kept, that I make an order for costs in favour of the plaintiff against the defendant (who is of course effectively the Crown) to the sum of $750.00.

In Newton v Coroner’s Court & Anor (No 2), Anderson J’s decision in Leadbeater

In Leadbeater v Osborne, Anderson J ordered costs against a Coroner because the cost of the litigation had been significantly increased by the practice (notwithstanding the fact that the Coroner's Court was a Court of record) of not keeping reasons for coronial findings.

This award of costs against a coroner highlights the importance of keeping accurate and permanent records of coronial findings. The case law suggests that, as a Court of record, the Coroner’s Court proceedings should be permanently recorded, published and accessible. Coroner’s Court law reports would be in keeping with the judicial reasoning outlined. Given that there are no authorised law reports for the Coroner’s Court, what is the state of record keeping in the coronial jurisdiction?

After the creation of the NZ court structure in 1841, the judges of the colony drew their case law primarily from the English law reports. From 1861 to 1872, a barrister in Dunedin (James Macassey) published reports of cases heard in Otago and Southland.392 By 1881 there were calls for a general system of law reporting for the whole country.393 In 1883, the first volume of the New Zealand Law Reports was published.

In 1938, the New Zealand Council of Law Reporting Act was passed. The statute established the authority of the Council and gave the New Zealand Law Reports

official status. The NZ Council of Law Reporting does not appear to have a public profile.394

When the New Zealand Law Reports series began in 1883 someone must have decided that the judgments of the Coroner’s Court were unworthy of inclusion, but who made that decision, and why it was made, the authors have been unable to discover. Given that the Coroner’s Court is one of NZ’s oldest specialist courts and it issues a substantial number of findings every year (which are of interest to the general public) it is disappointing that its judgments have never been officially reported.

Historical accounts outline the chaotic state of law reporting in NZ and overseas.395 Law reports lacked accuracy, consistency and accessibility, negatively impacting the administration of the law. Modern writers claim that “law reports today do not face the same problems of authoritativeness that spurred the production of the [English] Law Reports.”396 Such confident claims cannot be made about the NZ Coroner’s Court.

The Coronial Services of NZ maintains databases of coroners’ findings that have been made since the introduction of the Coroners Act 2006.397 The database only includes closed cases. Open files (cases that are under inquiry) are not included in the information systems. Coroners’ findings from 2001 - 2006 are at the CSNZ offsite storage facilities. CSNZ has databases from 1979 which include brief information and can be searched “to some degree” on cause of death, location, occupation, gender and age.398

Coroners’ findings pre-2007 are stored at various locations around NZ including Archives NZ, NZ Health Information Services and the archives of the Department of Internal Affairs, the Justice Department and provincial government records.

Many pre-2000 findings are stored at Archives NZ. The files start from 1840 and cover inquests from around NZ. Archives NZ’s holdings are incomplete, especially before 1870. Sadly, some early inquest files were lost in fires. The coronial findings now held at Archives were sent by NZ lawyers who were also coroners. Before the introduction of the 2007 coronial system, there were lawyers in various locations around NZ who were also part time coroners.399 The findings went through the Coronial Services first, before being sent to Archives.

The early legislation only required coroners to send the findings (including the coroner’s verdict about cause of death), certificates of the registration of death, evidence documents, witness statements and official documentation. The files generally do not contain material such as correspondence or inquest hearing transcripts, documents which are often included in modern coronial files. Many of the older files are, therefore, sparser than modern coronial files. The inquest files are often fastened with ribbon and written on unlined sheets with a front cover that records the verdict, coroner’s and jury members’ signatures.

Archives NZ only store coronial inquest files.400 Many deaths did not generate an inquest. For example, deaths by drowning were often not investigated by inquest. Coronial records are regional, reflecting NZ’s designated coronial system whereby coroners are responsible for a particular geographical area of NZ such as Otago and Southland. The designated system was recently replaced by a “cluster” system in October 2012. One coroner described the system as follows:401

There is now a 24/7 service. We are now in clusters. Cases are now allocated on a weekly basis. Week 1 to Coroner A etc. That will result in me receiving notifications from different regions. It’s one formula to try to even out loads.

All pre-2007 coronial files are only in hard copy. Many of the older files are difficult to read because of the elaborate Victorian handwriting. Early coronial files

are of variable quality. Archives NZ describes the files as “erratic, especially before the Justice Department took responsibility for coroners after the Coroners Act 1858.”402

Despite the variable quality of early coronial files, they are a treasure trove of information for coroners, lawyers, medical professionals, statisticians, government departments, families and researchers. The records can shed light on mortality and morbidity, health and social inequalities, and the operation of our early legal system. A doctor who “chanced” upon four leather-bound volumes of the first 384 inquests held in Auckland used the files to create a portrait of life in Auckland: the climate, health, diseases, post-mortems and cultural approaches to autopsies.403

Complaints about information services and record-keeping in the coronial jurisdiction have been ongoing. Commentators have highlighted the persistent deficiencies of coronial information. An editorial claimed that “only luck and vigilance alert a coroner at one end of the country to similar deaths at the other end.”404 The 2005 Paper to the Justice and Electoral Committee on the Coroner’s Bill included discussion of the “coronial information system project”.405 The paper emphasised that improvements to the systems for coronial record-keeping were required and referred to the recommendations in the 2000 Law Commission report about coronial information systems.406

In its 2000 report on the Coronial Services, the Law Commission explained that “under the present haphazard regime there is no centralised recording system

which would allow patterns to be discerned and responded to.”407 The Law Commission also reported on the related problems:408

The lack of adequate systems and services to support the role of coroner has far-reaching consequences for society. In particular, it impacts on the ability of coroners to meet the objectives of the Coroners Act 1988 and develop a consistent approach when making findings. It has led to unacceptable backlogs of cases in many areas. These factors in turn affect the ability of other agencies to collect, record and comment on information from coroners’ reports.

The Law Commission recommended that “reports from coroners are properly appraised and that they are publicly available”.409 They also recommended that a coronial database be created and maintained and that “coroners’ reports [be] published in a readily available form.”410

There have been some improvements since the publication of the Law Commission’s report. The Justice and Electoral Committee’s report on the Coroners Bill recommended various amendments including the:411

Insertion of a provision to establish a register of coronial recommendations or summaries of such recommendations, and require that it be maintained as part of the Chief Coroner’s duties. This register should be available for public inspection. A register of coronial recommendations will help relevant organisations and the public to access findings readily, and facilitate the analysis of, and implementation of, such findings. We believe that this will enhance the ability of coroners to prevent similar deaths.

The Justice and Electoral Committee’s suggested amendment was incorporated into the Coroners Act 2006.

Since late 2011, the Coronial Services has been publishing Recommendations Recap. These documents, which appear every three months, are summaries of coroners’ recommendations.412 According to the Chief Coroner Judge MacLean:413

411 Justice and Electoral Committee Coroners Bill: Report from the Justice and Electoral Committee (2004) at 4.

This Recommendations Recap publication, which we have just started, is a way of communicating recommendations to Coroners, the public, agencies, and the media. Although we have NZLII [NZ Legal Information Institute] with information about findings, often a Coroner in the deep South has no idea what a Coroner in Auckland is doing or recommending or even that they are involved. So the Recommendations Recap is a means of achieving that. But also Coroners need training.

The Recommendations Recap is a useful initiative. Agencies that were interviewed for this study commented favourably about Recommendations Recap. However, the Recommendations Recap is not a substitute for official law reports. Recommendations Recaps are summaries of the recommendations, not the complete findings. They do not include findings in which recommendations were not made.

One of the Chief Coroner’s functions is “to set up and maintain a register, open for public inspection at all reasonable times, of summaries of coroners’ specified recommendations and comments.”414 Recently, the NZ Legal Information Institute (NZLII), which provides free access to legal information in NZ, began posting some summaries of recommendations on their website.415 The CSNZ also posts some recommendations on their website. However, only a small number of full findings go on the CSNZ website.416 The Chief Coroner has been:417

pushing for some time for all coroners’ findings, with appropriate protection for privacy and decency etc, to be put on to the Ministry of Justice website, but there are issues where there is a prohibition on publication because being on a public website is a form of ‘publishing’. An aligned wish, dear to the hearts of all coroners, is for all non-redacted findings to be on the Ministry intranet, that is, not available as of right to the public.

It isn’t particularly user friendly. We are working on that. But it is a work in progress. NZLII has come to the rescue with an interim method of getting some findings online. But we have a lot of work to do. All we put on the website are decisions of particular interest like Kahui. We need to do better than that. And we will. But we have some problems because some stuff can’t go up. The Family Court has a similar problem. On the other hand, we realise

that there are some people who need access to this information. We are struggling with stuff on the intranet versus stuff on the internet. Or possibly we could use password controlled internet. That is still evolving.

The NCIS database allows coroners to review previous coronial findings of a similar nature to current inquiries, which, in turn, enables coroners to identify patterns and to assist with their statutory prophylactic functions.419 Prior to the development of NCIS, many Australian coroners had acted as:420

islands unto themselves, without awareness of what their colleagues, even within their own jurisdiction, had decided in previous cases. This led to diffuse approaches and inconsistent recommendations.

There had been ongoing discussions about including NZ coronial cases in the NCIS system, and since July 3013, some NZ data has been included. However, interviews with NZ coroners revealed that the current situation is similar to Australian coronial practice prior to NCIS. Some NZ coroners still work independently in “silos”421 and often only become aware of their colleagues’ findings by “serendipity”422 or “accidental”,423 “ad hoc”424 and “random”425 routes. According to the Chief Coroner, some coroners are “often working in near ignorance of what their colleagues have done.”426 Coroners may discover, by chance, that a colleague is working on a similar case after reading a media report.427 The NZ coroners interviewed were supportive of the development of Coroner’s Court law reports and online database resources. They believed that such resources would improve and enhance their work.

424 Interview with Coroner Owen (Jennifer Moore, 3 October 2012). 425 Interview with Coroner Reid (Jennifer Moore, 30 October 2012).

426 Mike Houlahan “Speak up, chief tells new coroners - National - NZ Herald News” (16 June 2006) New Zealand Herald

Another relatively new system for disseminating coronial findings is through the Coronial Services Media Advisor, who circulates some coronial findings to all the coroners. However, some coroners were unsure about which findings are disseminated:428

Now how he [the Media Advisor] chooses the ones [findings] to circulate, I don’t know, whether he looks at them and thinks “Oh that’s an interesting one, I’ll circulate that” or whether he just circulates everything, I really don’t know.

Although there have been advances since the introduction of the Coroners Act 2006, the coroners who were interviewed consistently expressed the view that further improvements are needed. For example, Coroner Dymond “hoped that the 2006 Act would have been significantly better than it has turned out to be.”429 Coroners expressed frustration about the deficient reporting and information systems. According to Coroner Frank:430

The standard of information on which we operate is woefully inadequate. I would like it to be easy to access the information, cases and so on, but there is such a vetting and approval process to access the information that I can’t be bothered sometimes.

Some coroners’ frustration is aggravated because they have been lobbying for Coroner’s Court law reports and information databases for decades.431

When I was on the Coroners’ Council, we had organised to have our information put into the Australian system [NCIS]. We were on the cusp, but it didn’t happen.

I remember when the Ministry presented Coroner’s Court Law Reports to us. They looked identical in colour and everything to the District Court Law Reports or NZ Law Reports. They were all done and it has gone nowhere.

Similarly, Coroner Atwood expressed disappointment because “as the old Coroner’s Council, [they] lobbied for NCIS and it didn’t happen”.432 Coroner Armstrong explained that “one of the legal publishing houses did produce some

The thirteen practising coroners interviewed recognised that they “need to make sure that they are kept abreast of what other coroners are doing.”434 However, they all also described the difficulties of doing so without access to sufficient resources including law reports, readily accessible information systems and researchers.435 According to Coroner Frank:436

...some information was put on the web. But how would you know where to look, for example, if you were a barrister?

Coroner Frank’s view is reinforced by the interviews with agencies and lawyers. The majority of lawyers interviewed (95%) described the challenges of undertaking their work because of the unavailability of law reports and other information sources such as databases.437 One NZ lawyer with Coroner’s Court experience articulated her frustration as follows:438

Like all other lawyers, my preparation for Court involves sourcing cases from which to build my arguments. It’s normally easy to access this information. But when I’m involved in an inquest I find it much more difficult to do my preparatory work because there are no Coroner’s Court law reports. I know there is now some information on the internet, but it’s difficult to do searches (you used to need to know the surname of the deceased to search) and there’s a lot of information missing from the website. I have little sense of what’s authoritative. It’s hard to find out what Coroners have said about similar cases.

Law reporting affects the way that legal work is undertaken. There is a relationship between legal knowledge and reporting. Under-reporting has a negative impact on the administration of the law. Some lawyers who were interviewed compared their experiences dealing with coronial cases to other Courts and

435 There are only two researchers working at the NZ Coronial Services. 436 Frank, above n 381.

Tribunals such as the Health Practitioners’ Disciplinary Tribunal. The following comment from an experienced barrister was typical of other lawyers interviewed:439

I can’t understand why there are no Coroner’s Court law reports. Without full reporting of coroners’ findings, it’s extremely difficult to see how precedent plays a part in coronial decision making. It also makes my life more difficult. It’s harder to be a good advocate if one doesn’t have access to a fundamental legal resource – law reports. The Health Practitioners’ Disciplinary Tribunal put all their full decisions online. That’s a much more transparent and helpful system.

Many agencies interviewed (87%) also described difficulties in accessing complete coronial findings. Many agencies (66%) were not aware of Recommendations Recaps. Some agencies (53%) were aware that it is possible to contact the Coronial Services staff with specific requests for coronial information. The Coronial Services 2012 statistics (which detail the number of requests by requester) show that families (24.30%), medical organisations (13.88%), the media (10.63%) and government agencies (10.41%) were the main requesters.440 The number of requests by lawyers was 4.12% and the number of requests by coroners was 1.08%. The Coronial Services staff who undertake these requests commented that the process is not simple: “We can’t just press a button on the computer and all the desired coronial findings appear. We have to do lots of searching across different databases. It can take time.”441

The consistent theme that emerged during the interviews with agencies, coroners and lawyers was that under-reporting in the coronial jurisdiction is problematic. In the next section we outline the record-keeping challenges in overseas coronial jurisdictions.

As we pointed out in the introduction of this chapter, coronial law reports do not exist in any jurisdiction. Arguably the closest resource is the Australian NCIS, which has been described as “the most advanced coronial information system in the world.”442 Nevertheless, as we discuss later in this chapter, there are limitations to this database which mean that it is a poor substitute for official law reports.

Like NCIS, the Canadian Coroner and Medical Examiner database (CCMED) stores information on deaths reported to the coroners and medical examiners.443 However, its primary purpose is statistical. Full findings are not available to the general public. The website for the Office of the Chief Coroner in Ontario, Canada does not provide general public access to coronial findings.444 The website states that copies of verdicts, recommendations and verdict explanations can be obtained by contacting the Office.445 Tables, organised by category of death, provide information such as the names of the deceased, date of inquest, presiding coroner and a brief summary of the death such as “accident school trip.”446

In the US, the Centers for Disease Control and Prevention (CDC) have designed a digital database called the National Violent Death Reporting System (NVDRS).447 The system is intended to provide a census of violent deaths that occur in the US. Information from a variety of sources (such as coroners’, medical examiners’ and law enforcement reports and crime laboratories) is uploaded on the system. The focus of the NVDRS is violent deaths. It is not a comprehensive information system dedicated to coronial findings.

Australian Coroners’ Courts’ websites vary in terms of the amount of information available to the general public.448 The Northern Territory Coroner’s Court website, for example, does not provide general public access to findings, stating that:449

The senior next of kin will receive a copy of the coroner's findings whether an inquest is held or not.

Other persons may request the findings, which will be made available if the coroner decides it is appropriate.

In Queensland, only inquest findings are published on the website, unless the coroner orders otherwise. The Queensland Coroner’s Court website states that:450

The coroner can also publish non-inquest findings on the website if the coroner thinks it’s in the public interest. The coroner must consult with the family before publishing non-inquest findings.

The Australian Capital Territory Coroner’s Court website provides access to “selected” findings.451 There is no explanation of the criteria for selection. People who wish to access findings not included in the selected list, are directed to contact the Coroner’s Office.452

The Queensland, South Australian, Tasmanian and Victorian findings databases on their websites are searchable to some extent.453 However, only relatively recent findings are available. The Victorian Coroner’s Court website, for instance, has

453 “Coroners’ Written Findings - Coroners Court of Victoria” Coroners Court of Victoria

few findings available before the new legislation was introduced in 2009. Following a report which found that the Western Australian Coroner’s Court website was inadequate, some findings have been uploaded, but (like the other jurisdictions) these findings were issued relatively recently in 2012, 2013 and 2014.454 Likewise, the New South Wales Coroner’s Court website provides access to findings from 2012, 2013 and 2014, with the addition of selected “major findings pre 2012.”455

The South Australian Coroner’s Court website notes that the available findings are “unofficial copies” that are “provided for information only and should not be represented as official documents.”456 An advantage of authorised coronial law reports is that they could be used in Court and elsewhere as official documents.

The use of coronial information systems by other jurisdictions does not appear to be well advanced.457 In Ireland, for example, there are no Coroner’s Court law reports. Their coronial findings are not available online. If the general public wishes to access coronial findings in Ireland, they must contact the local Coroner’s office. To obtain the coroner’s report, one must write to the Office requesting this information and include the name of the deceased, the date of death, the hospital involved (if any) and the date of the inquest.458 There is “a small fee for these documents.”459 The inadequate record-keeping in the coronial jurisdiction in Ireland has been described as follows:460

The data which coroners collect on population morbidity is an invaluable resource that still remains unused at a national level in this country. The scattered storage and different methods of preserving documents have made it an almost impossible task to allow for a proper analysis of the files. It

454 Tatum L Hands “Under the Microscope: Reforming Western Australia’s Coronial System” (2012) 39 Brief: Journal of the Law Society of Western Australia 12 at 13–14; “Inquest Findings 2012” Coroner’s Court of Western Australia

456 “Home - Coroners Findings - All Findings”, above n 453. 457 Ministry of Justice, above n 405, at 7.

would be of great advantage were they all to be stored and archived in one location. Additionally, it would allow for proper statistical analysis and enable death investigators to identify other similar cases which have occurred in the country.

The preventive potential of coronial data in Ireland is certainly not being maximised. Like other coronial jurisdictions, Ireland would benefit from an official centralised system of coronial record-keeping.

In England and Wales, the Ministry of Justice publish annual coroners’ statistics, but there is no electronic national coronial information system.461 Many coroners’ districts do not have digital records.462 Coroners must record inquests.463

In Scotland, the database of recommendations which is maintained by the Scottish Government is not up to date. A review of their death investigation legislation suggested that:464

A statutory duty be created to ensure that an up to date public database exists. It has been suggested that determinations should be more readily available for sheriffs in later FAIs [fatal accident investigations] to consider for their relevance to them.

The Final Report (published in November 2009) is still being considered by the Scottish Government.465 Dissatisfied with the delay, a Labour Member of the Scottish Parliament, Patricia Ferguson, has opened a public consultation on her Inquiries into Deaths Bill which she hopes will improve the investigation of sudden and accidental deaths.466 The consultation will end in November this year.467

As this section has demonstrated, the CSNZ is not the only jurisdiction to experience coronial record-keeping challenges. In the next section, we elaborate on the problems that are caused by under-reporting in the coronial jurisdiction.

461 Ministry of Justice, above n 405, at 9; “Research” Coroners’ Society of England and Wales

Commentators have identified under-reporting, and the undesirable consequences such as inconsistent decision making, as problematic for the coronial jurisdiction.468 Common law systems, founded upon Court decisions, “call for an efficient system of law reporting.”469 Judge-made law is less accessible than codified statutory law. Law reports provide accounts of Court judgments that will serve as precedent. These reports are:470

More than simply another type of legal document. Rather, these compilations are the repository of the common law. Together they make up a body of law and knowledge which marks the singularity and exceptionality of the common-law system.

Historical accounts of law reporting observe that far too many cases were unreported.471 This meant that accounts of judges’ decisions were not recorded, whether those decisions were significant or not. Later, the law reporting problems became “too many reports, problems in getting unreported decisions, delay in publishing, too much expense, ill-defined breadth of coverage, inconsistent quality.”472

Recent literature on law reporting complains about the “over-production of reports,”473 referring to the “almost universal view amongst judges in England that too much, rather than too little, is reported.”474 NZ’s modern Coroner’s Court, by contrast, has remained in the ancient phase of law reporting where too little is reported, making it difficult to ascertain which cases are important and authoritative.

It could be argued that a repository of findings is of limited utility because such collections do not identify whether the decisions are of sound quality. However, it is unlikely that the quality of decisions will improve if they are not made available, in a systematic format, for coroners to consider.

An unfortunate consequence of under-reporting in the Coroner’s Court is that an “international corpus of law and practice”475 has not developed and “disappointingly little has been learnt across jurisdictions.”476 Even within a single jurisdiction, NZ, coronial practice is variable and many findings are inconsistent because of problems such as poor information services and under-reporting. Interviews with NZ coroners revealed that these challenges hinder NZ coroners from referring to, and learning from, one another’s findings. Although inconsistency of decision making and under-reporting of coroners’ findings is a problem recognised by scholars and practitioners working within the coronial jurisdiction, the NZ Government’s current review of the CSNZ does not include law reporting in its terms of reference.477

In this section, we discuss two of the main problems caused by under- reporting:

Under-reporting in the coronial jurisdiction adversely impacts access to coroners’ findings. The importance of easy access to coroners’ decisions has been noted in parliamentary debates about coronial legislation. For example, in Victoria, Australia during the second reading of the Coroners Bill 2008, the following argument about access was raised:478

477 The Government’s terms of reference can be found on the CSNZ website: “Coroners Act Review — Coroners Court” Coronial Services of New Zealand

Another issue of concern in the bill is the potential for unreasonable restrictions on public access to documents. The principle should in many instances be that the identity of the parties involved in an inquest be kept confidential. However, there is also a public interest in the public being able to ascertain the facts of a particular death. The bill in effect restricts access to most coronial documents unless the coroner exercises a positive discretion to release documents. It is strongly arguable that it would be better to have a presumption of access subject to protection of certain aspects, such as ensuring that identification of a person was not possible, not affecting criminal investigations and restricting particularly sensitive or distressing material. I am sure the coroner will attempt to exercise his or her discretion appropriately, but it will make it harder to expose problem areas, such as a series of deaths in a particular nursing home or hospital or a series of deaths after exposure to certain chemicals or after using particular equipment or products, if someone keen to investigate a series of such deaths is not able to obtain access to the records. In each case they are going to have to persuade the coroner to exercise his or her discretion in their favour.

Similar arguments were made during the NZ parliamentary debates about the Coroners Bill 2006:479

We thought that it was important that we learnt from those unexpected deaths; therefore, we have requested a register of coroners’ recommendations and comments. Very often, coroners make insightful comments about those events, and it is important that their comments are recorded and that the public can have access to the records, so we can learn from them and manage situations better in the future.

Our view is that this preventive aim cannot be fully achieved without providing access to full coronial findings.

All the coroners interviewed provided examples of the difficulties they experienced trying to access coronial records and findings. According to Coroner Frank:480

Until very recently there had been no sharing of findings. You would not know who did what. There was no record of it.

Coroner Frank’s view was reinforced by the interviews with agencies. A high proportion of agencies reported (73/79) that they have difficulties accessing coronial information. The problems experienced by these organisations are captured in the following comments from a government organisation:481

The other problem is that it’s not easy for us to get their recommendations. I tried to get some for our agency, but it wasn’t possible for me to go on their website. It wasn’t publicly available. There were some recommendations and reports, but not all of them.

Despite the introduction of the Recommendations Recap, many organisations (63/79) remarked that they discover coronial inquiries of interest through the media:482

We keep a file, obviously, of all the major inquests that involve us. That we know about – that’s another part of it... But we don’t necessarily know, so in one case we were asked whether we had implemented any recommendations and we had no idea that there had been any recommendations! We actually had to ask for them. For instance, the latest one was...a death last year, but the inquest was this year. We only found out about that through the media, and we actually had to request the file.

This example demonstrates that the preventive impact of recommendations is undermined when organisations are not aware of the coroner’s findings or recommendations. Like the coroners who maintain their own personal libraries of findings, it is laudable that some organisations keep files of relevant coronial inquiries. However, official reporting of coronial decisions would ensure that these ad hoc methods are not relied upon.

Research participants also emphasised that coronial information should be available to the general public. Currently, “coronial decisions are not getting out there for the general public to toss around, which is a bit of a shame.”483 As another organisation stated:484

The main problem is that their recommendations and findings are not all publicly available. As lawyers and as members of the public, it’s so difficult to find them. Again a lot of tax payer dollars and resources go into making these recommendations. They should be easy for the public to access. Of course the topics are sensitive, especially to the family. There must be a way to make them public without unnecessarily causing grief There are only a

small number online. I had names of inquests and of the 15 names, only 1 was available on their website.

Ideally, this organisation should have been able to access all 15 of the inquests of interest. An overwhelming majority of organisations shared similar stories whereby

482 Interview with Midwifery Council (Jennifer Moore, 17 December 2012). 483 Interview with Tairawhiti DHB (Jennifer Moore, 5 December 2012).

they “don’t necessarily get all the coroners’ reports that [they] might want.”485 Similarly, other organisations provided examples which highlighted the variable success that they have experienced when trying to access coronial information:486

We have had trouble getting some coroners’ reports. We’ve gone to them and emailed them and said the person’s age where they died and they’ll come back and they’ll say unless you can give us the date that happened then we can’t trace it. And I’ve gone, “You’ve got the guy’s name, so surely”, but, anyway, just lately when we were chasing one contact there was a lady. She got the coroner’s report to us, bang, no arguing, no nothing and I was just so pleased to have it that quickly.

These access difficulties have meant that the approach to precedent in the coronial jurisdiction is variable, which, in turn, has contributed to inconsistent decision making. When asked whether they refer to previous similar coronial decisions in their preparation for coronial inquiries, one DHB explained that they do not do so because “traditionally it has been that we haven’t had access to the database.”487 The DHB stated that they “rarely refer to coronial precedent” because they “try to focus on a practical rather than a legalistic argument given that the rules of evidence are relaxed and the process is far less legalistic.”488 The DHB also commented that while some cases, such as “surgical deaths”, are “fact dependent”, it would “make some sense” for coroners and organisations to “look back at similar decisions because “there will be threads that will come through.”489

Without considering these “threads” in previous similar findings, the likelihood of inconsistent decision making is increased. Many organisations (69/79) stated that it is difficult for them to implement recommendations when they receive divergent proposals from different coroners about an issue. For instance, the following comment from a DHB was reflective of other agencies’ stories:490

I think the other factor is that coroner A investigates a death and thinks, ‘Gee it would be a good idea for this to happen’, so he issues a recommendation to whoever to say ‘In future, you should consider doing this’ or ‘I think it’s a good idea that you not just consider, you should do this’. Meanwhile, coroner

485 Interview with Wayne Temple (National Poisons Centre) (Jennifer Moore, 13 February 2013).

486 Interview with Dave Moran (Dive Magazine) (Jennifer Moore, 5 February 2013). 487 Interview with Greg Brogden (Canterbury DHB) (Jennifer Moore, 21 January 2013). 488 Brogden (Canterbury DHB), above n 487.

B, somewhere else in the country, investigates a similar death and comes to a different conclusion about what might be a good idea. How does that work?

Another agency described the consequences of inconsistent coronial recommendations as follows:491

The risk, sometimes, with the coroner is that they have an incident and make recommendations that are not consistent with another coroner’s recommendations about a similar incident. This is problematic. Also you tend to get a scattergun of recommendations made about a particular policy. The classic case was where they are not being unified or thought through with a lot of others. Instead of one recommendation which relates to half a dozen events, each one makes his or her own recommendation. Police can’t keep amending policies on the hoof every 6-8 weeks as a coroner comes up with a different recommendation. Being a bit more joined up around the implications before recommendations are made would be useful.

The impact of coronial recommendations is undermined when previous similar cases are not considered. Agencies are less likely to implement recommendations when they receive conflicting proposals which require them to make amendments “on the hoof every 6-8 weeks”.

The introduction of coronial law reports would make coroners’ decisions readily available, enabling coroners to consider previous similar cases and, thereby, reducing the likelihood of contradictory recommendations. We are not arguing that coroners should not be permitted to make contradictory recommendations which are evidence-based and formulated on the basis of precedent. We are pointing out the problem of inconsistencies that stem from lack of access to coronial decisions due to under-reporting.

The development of law reports for construction and building law was spurred by the challenges faced by legal practitioners who were unable to consult proper reports. The material for this early example of specialist law reporting:492

sprang from the habit (still alive, but more common, of course, in those days of comparative under-reporting) of practising barristers to acquire and collect, on a “beg, borrow or steal basis” from barristers or solicitors involved in disputes in their field, transcripts of unreported judgments considered to be of value for future citation.

Although today’s coroners do not have to beg or steal, the inadequate state of coronial record-keeping means that coroners resort to methods of acquiring precedents that cannot be described as robust. Coroners collaborate informally. When asked how coronial findings and recommendations are disseminated, circulated and communicated to coroners, all coroners recounted difficulties. For instance, Coroner Aitken described a “scary case” where lack of easy access to previous similar findings meant that a relevant and important case was almost missed:493

The most scary case I had was when there was a death of a passenger in a truck where the load swung about and the truck took the corner of the bridge and crashed, killing the passenger. I just happened to talk to David Crerar, who had not just one similar, but the same company, the same truck, the same load and the same bridge and exactly the same issue and there had been recommendations made by him before. So that was scary. We need a computer system to find that sort of thing. It was too random. That is the best example of why we need it. Those recommendations had been made before. In the end, the Chief transferred the jurisdiction of the death to David so he could say ‘I have seen you before.’ But we would not have known, we just happened to be in the same place at the same time.

I remember all I could do back then was ring up fellas like Richard McElrea or Garry Evans and say “Hey, I’m doing such and such a case, have you done anything or do you know anyone who has?” They might be able to point me in the direction of someone and I could give them a call and ask for a decision.

But since the new Act has come along, of course it’s part of the Chief’s role, we have the Recommendations Recap. Just prior to the new Act coming in, there were some moves in Wellington to try to have some sort of workable database, but it was pretty haphazard, not everything got in there, so it was just one staff member’s attempt to have something. Then of course now we’ve got our own sort of database, which is a bit of a dog, but at least it provides some information.

Like Armstrong, other coroners agree that there have been improvements in information systems, communication and record-keeping since the introduction of the Coroners Act 2006. In the past, coroners faced considerable problems in obtaining access to previous coronial findings. The improvements since the introduction of the new coronial regime, though, are insufficient. The ‘systems’ deployed are “ad

hoc”.495 The following remarks from Coroner Atwood capture the views expressed by other coroners:496

Take for example the cycling-type ones or the quad bike ones, or the hunting ones. We know who’s doing what. And it’s not uncommon for Coroner A to ring Coroner B, and say “Can I have a copy of your findings on that, because I’m now working on one that’s very similar”. And so, there is a much more of that. We never used to do that under the old Act, and this is very much the thing under the new Act...

Wally [Coroner Bain] has just done a hunting one up North, which he’s made some pretty strong recommendations on. And I’ve got one sitting on the wings, and I said “Wally, send me your decision”, which he’s happy to do. Wally does likewise. I did the one recently where the fellow drank three quarters of a bottle of whiskey at Reading Theatre. Wally saw it and said “Hey can you send the findings up?” So there is that sort of thing happening, but it needs to happen more and it’s ad hoc at the moment... We should be looking at other people’s decisions.

Coroner Atwood highlights the importance of “looking at other people’s decisions.” His view is consistent with those expressed by other coroners. For instance, Coroner Dymond explained that “we should know what everybody’s doing”,497 but achieving that is not simple. There is “no easy way, in my view, at the moment to go and search coroners’ recommendations.”498 According to Coroner Dymond, coroners currently “cooperate behind the scenes (that’s not quite the right word), but we should cooperate on a formal basis. There should be a proper reporting system, a subject index and an online database. It can be done in the Australian context and should be able to be done within NZ.”499 Gathering coronial records of relevance to a new inquiry involves coroners proactively contacting each other to access findings. The system requires coroners to be aware of their colleagues’ cases, which is often only possible to know through media reports or chance telephone conversations. NZ coroners only meet as a group twice per year.

These deficiencies in record-keeping and information systems within the coronial jurisdiction have been critiqued by scholars and practitioners, one of whom observed:500

Because there is no consistent, full reporting of coroners’ decisions, the notion of precedent, or perhaps more correctly, consistency, has relatively little impact on decision-making or findings. This has affected advocacy in inquests, resulting in a level of variability in approach and results that does not conduce to public confidence. To the extent that coroners traditionally have referred to one another’s decisions, it has tended to be within the same jurisdiction or by reference to well-known coroners’ manuals. This means that little was learnt from decisions...there has been a failure to develop an international corpus of law and practice.

The absence of reports for the Coroner’s Court and the problems that coroners experience in accessing one another’s findings, adversely affects the consistency and quality of coronial findings. The introduction of formal law reports for the Coroner’s Court could improve the quality of coroners’ decisions:501

There were going to be reports for the Coroner’s Court at one stage, but it never happened. I think it should be done. It’s really important. I think it might actually improve the rigour of our findings and recommendations. There may even be more consistency in our findings if we are able to read our brothers’ and sisters’ findings more easily and more often.

A small number of coroners have developed special methods for coping with the inaccessibility of coronial findings. When the CSNZ Media Advisor emails coroners’ findings to all coroners, Coroner Owen adopts the following method:502

I’ll have a quick look at the particular findings and I’ll think “Yeah, that’s great”, and I might even save a copy, and I’ll put a little note to myself on the filename that says “Suicide by jumping off the harbour bridge” or whatever, and then hopefully I could just whip through those and think “oh yeah, that was one done two years ago similar to what I’ve got”. It is very much an ad hoc kind of research system, but it’s better than nothing.

Similarly, Coroner Reid manages the problems associated with access to files by deploying the following strategy:503

The problem is that you are reliant on what you’ve heard, for example, through the media. This is not robust. It’s a random system. I sometimes see things in the media about cases that other coroners are working on. If I’ve recently worked on a similar case, I will call that coroner to tell him or her about my findings....The Coronial Services in Wellington...deals with applications from the public regarding requests for information.

Theoretically coroners can also go to [the CSNZ] to get information about like cases. I would probably ask [the CSNZ] if I wanted like cases about, say butane deaths. But there’s no clear process for coroners for accessing information about like cases or other coroners’ findings, especially before July 2007. There [was a] rudimentary system which gives some basic information.

I happen to have one of the best libraries of cases that goes back to 1994. It has an index. I can see decisions from particular coroners. No one else has that information. I have provided it to the researchers. It is in hard copy. It’s good. But it’s a haphazard system which relies on keeping your ear to the ground and asking around. It would be much better to have proper reporting and a proper computer system.

Also there might be cases that are not yet through the system that are exactly parallel to what I’m working on. With NCIS, a new case is loaded from day one on a provisional basis. Immediately you have provisional data. That would be immensely helpful to have that here. Then you could see that there had been x number of cases in the past and there are another two that are in process.

Coroner Reid deals with the absence of formal reporting of coronial decisions by maintaining a personal library of coronial cases from 1994 to the present, though he acknowledges the limitations of a system that involves “keeping your ear to the ground.” Like all the other coroners interviewed, Coroner Reid would prefer “proper reporting and a proper computer system”, ideally modelled on the NCIS. Given that “a close relationship exists between forms of publication and legal knowledge”,504 the introduction of law reports for the Coroner’s Court would surely correlate with the quality of coronial findings. Making coroners’ findings available through law reports would subject coronial decision making to “a level of scrutiny from which their anonymity and inaccessibility thus far have protected them.”505

The problems associated with access, quality and consistency – which we have discussed in this section – impact coroners’ ability to fulfil their prophylactic functions. We turn to this issue in the next section.

NZ coroners are recognised as public health officials who have statutory preventive functions.506 In chapter 6 we explore the coronial prophylactic function in detail. In this chapter, our key argument is that under-reporting hinders coroners from maximising their statutory preventive functions. As we explained in chapter 1, the purpose of the Coroners Act 2006 is to help to prevent deaths and promote justice through investigating the cause and circumstances of certain deaths and by making recommendations.507

To successfully fulfil their statutory prophylactic function, it is vital that coroners are able to access previous coronial files, enabling them to assess patterns and check past recommendations. Under-reporting hinders coroners from doing so. Adequate records – including computer retrieval systems and proper law reports - would help coroners to fulfil their statutory prophylactic function. The current state of record-keeping in the coronial jurisdiction means that it is:508

hard for coroners now and then to achieve the purpose of the Act without official law reports. There have been improvements, with the information on the internet, but it’s far from adequate and many of the same issues that I encountered years ago, remain today.

Under-reporting in the coronial jurisdiction has meant that some coronial cases are decided with little or no reference to previous similar cases. Ministers have recognised that access to coronial information would “help coroners perform their role” and also “help researchers identify trends important for developing strategies for injury and death prevention.”509 However, the organisations that we interviewed often remarked (68/79) that they discover preventive patterns from other sources,

509 “Goff backs proposal for chief coroner - National - NZ Herald News” (5 November 2001) New Zealand Herald

not coronial data. For example, one DHB described their experience of the legionella outbreaks that resulted in death and hospitalisation for others:510

We went along to the hearing and said “look, these studies have been done and reveal these patterns.” We had a legionella outbreak here, there were some deaths from it...And we had our public health clinicians come and say ‘This is one of 4 that has happened’...We rely on ones that we know of within the health community and say ‘Look there have been three outbreaks recently in this region; here are some lessons learnt, this is how it applied to our one here, and these are some things that need to be put in place around the country.’ So that is how we approached it. We didn’t focus on other coroners’ hearings that have taken place. Coroners may or may not refer to other cases. We may or may not know about them, it’s only in recent times that we’ve been finding out about the database and about other hearings. Otherwise it does happen in isolation, as far as coroners’ decisions go.

Like this DHB, it was common for other organisations to state that coronial inquiries occur “in isolation”. Organisations often stated (65/79) that they present information about “patterns” across a series of cases to coronial inquiries. However, those patterns are typically sourced from research and scientific evidence, not coronial decisions. Part of the problem, again, is poor access to coronial information and “not know[ing] about” other coroners’ cases.

Currently, coronial practice is variable. Too many coroners discover previous similar coronial cases by chance, often by listening to media reports:511

Coroner Crerar heard on the news that there had been an accident. He phoned me to tell me that he had done a similar one. So that was how I found out. I shouldn’t have to find about it like that! Because of that discussion with Crerar, within an hour, I was able to direct the Police about the sorts of inquiries I wanted made. Crerar had valuable information... It’s amateur at the moment. I should be able to get that information elsewhere [from computers and law reports].

Coroners reported that there are probably “hundreds of cases such as that, where we’re repeating the inquiries...and picking up similar ones anecdotally.”512 Given these challenges, it is perhaps unsurprising that some coronial findings refer to previous similar cases, whereas others do not. Many of the practising coroners (9/13) reported that they read some, or all, of the findings that are emailed to them by Matt Torbit. One coroner stated that he:513

Reads all those findings. I find it first class to see how other coroners express themselves, what they say, what their recommendations are.

Coroners who consulted previous findings were able to discern limitations in interventions which had been used to try to prevent similar deaths. The following example is illustrative:514

Lewis is about a young girl who was jet skiing and who died. There were recommendations in that case. Anyone can get a high powered speed boat without licences. I called for that to be looked at. The next day or the day after, a boy about 19, who was representing the Coast Guard, said that the coroner didn’t get it right, only education was required. My response was that there have been a number of deaths like this so where has the educative value been? I used Coroner Crerar’s findings in there. I also used Bishop Thompson who was a school boy on jet skis. So I used the same information again. I’ve got another one coming up and I can repeat other coroners’ recommendations and my own previous recommendations.

Coroners do not necessarily consult previous coronial findings. For the coroners who do, it is of concern that some of their colleagues do not adopt this approach:515

I always get one of the researchers to see if she can find similar cases to check what other coroners have done. This is another important point. The worst situation is when you have two coroners making two completely different recommendations about the same thing. Credibility goes out the window. This is what worries me about the recommendations that aren’t evidence- based because I don’t want to be bound by those recommendations.

Analysis of a single case in isolation, with no reference to previous cases or deaths of a similar nature, has limited preventive impact. Patterns are unable to be discerned and analysis of comparative risks is undermined. Psychiatrist, Professor Werry of the Werry Centre for Child and Adolescent Mental Health, expressed concern about coroners’ understanding of health risks:516

515 Interview with Coroner Stewart (Jennifer Moore, 12 October 2012). 516 Interview with Professor Werry (Jennifer Moore, 12 November 2012).

alcohol. They are not in the same universe. I get concerned about coroners’ pronouncements about topics like huffing because they distort what the real risks actually are...coroners should consult with actuarial risk assessors so that they are aware of the actual risk. The risk might be 1 in 5,000. Those figures should be appended to the coroners’ recommendation so that the group that gets the recommendation, like the Government, knows what the risk is.

Although Professor Werry expresses concern about coroners’ understanding of the risks, it is important to note that the Coronial Services of NZ devoted an issue of the Recommendations Recap to the issue of huffing.517 The discussion included input from the Child and Youth Mortality Review Committee and the Drug Foundation.518 According to the Chief Coroner, there was a positive response, including from a number of major retailers who adopted a voluntary restriction on sale policy.519

Echoing other participants’ comments the psychiatrist, in the quote above, had trouble accessing the coroner’s report. If a single huffing death is examined in isolation, it is difficult for the coroner to accurately assess the comparative risks related to other unhealthy, and potentially life threatening, behaviours. We are not arguing that a single death is not a tragedy. Rather, we are illustrating why it is important for coroners to be able to access previous similar cases. Without adequate reporting systems, coroners are hindered from gathering previous cases which would help them to discern patterns. These shortcomings impact the quality and rigour of coroners’ recommendations.

In addition, these shortcomings limit organisations’ ability to learn from deaths. In Australia, some health sector organisations use coroners’ decisions as prevention tools to improve quality of care.520 Law reporting for coronial decisions could assist coroners to “play a significant role in the early identification of new and emerging hazards and in providing something of a barometer of the health of our

society.”521 In the following section, we make proposals to enhance the impact of coroners’ recommendations in NZ.

Although inconsistency of decision making and under-reporting of coroners’ findings is a problem recognised by scholars and practitioners working within the coronial jurisdiction, the NZ Government’s current review of the Coronial Services does not include law reporting in its terms of reference.522 This is a significant omission, not least because it hinders coroners’ ability to fulfil their prophylactic function.523 In this section, we make the following proposals:

The importance of reporting coronial decisions is captured by the following comment:524

In terms of precedent from other coroners’ decisions and recommendations, that is important. It wasn’t until I looked at what other coroners were recommending that I could say “other coroners have recommended this....”

We didn’t know what other coroners were recommending until very recently. It is important that we read each other’s recommendations and findings. It would be good if we had a way to do a quick search to find what the recommendations were on particular deaths, like they can do in Australia. Otherwise you are just reinventing the wheel.

.....I’m keeping copies of all findings that we are sent by Matt Torbit. But they are not all findings. I think they are only certain ones, like ones that go to the media or are of public interest. I don’t send him all my findings. I think we need all our findings somewhere.

This coroner’s remark that “all” coroners’ findings should be collated is reminiscent of one of the two main competing philosophies of law reporting.525 One philosophy (and that seemingly supported by this coroner and the authors) is devoted to collating all coroners’ decisions. The second philosophy holds that only selected decisions should be published. The clash between these two philosophies was debated in the famous exchange between the heads of two publishing houses in 1889 US and has continued without resolution.526 Whichever approach to law reporting one prefers, there is neither universal nor selected reporting of coronial decisions in NZ.

Coroners pointed out that “until recently” there had “been no sharing of findings” because “there was no record of them.”527 These coroners argued that:

Because we don’t have coronial law reports and it’s hard to find out about our decisions, the only way we are getting out into the public is through the media.

It is laudable that some coroners are “keeping copies of all findings that [they] are sent”.528 However, coroners should not have to rely on their own collation methods. All coronial findings should be reported to enable coroners to formulate decisions and recommendations that refer to precedent and that have preventive potential.

As we explained earlier in this chapter, some coroners expressed frustration because they have been lobbying for Coroner’s Court law reports for decades.529 We propose that the Ministry of Justice resurrect and publish these Coroner’s Court Law Reports that they have already designed.

We also propose that consideration be given to universal use of the template for findings (which we discussed in chapter 2). Many organisations reported (72/79) that they would prefer a standardised format and structure for coronial findings. The following comments capture other organisations’ views:530

In terms of thinking about how coroners’ reports might be done in future, it would be useful to have a clear format. It’d be useful to have recommendations stated clearly. I think it would be useful for those people, those agencies and managers receiving reports to see clearly what the recommendations are.

There is widespread recognition that electronic access to coronial information is crucial.531 For example, the parliamentary debates about the Coroners Bill 2008 in Victoria, Australia described the rationale for electronic coronial data:532

The coroner has an important role in preventing deaths in our community and it is important that findings which contain prevention recommendations are widely available. The bill provides that, unless otherwise ordered by the coroner, findings, comments and recommendations will be published on the internet.

Similarly, the NZ parliamentary debates about the Coroners Bill 2006 emphasised the importance of electronic record-keeping in the coronial jurisdiction:533

There was strong feeling that we as a community need to learn as much as possible from those unexplained deaths, and to use that knowledge to help avoid future deaths. Families often mention that they want something good to come out of such wasteful deaths. To that end, the chief coroner is charged with setting up and maintaining a register of coroners’ specified recommendations and comments, in order to have a permanent record of information from coroners’ findings that can be used to prevent further fatalities.

In [that case], I quoted an inquest on quad bikes that I had done earlier. In that case, I had looked at quad bike deaths in Australia and NZ. I had gathered some information from NCIS. I do use them occasionally. I got good information from them. I did that myself. I went direct to NCIS.535

Other coroners reported that the electronic systems (NZLII, CSNZ and NCIS) are “difficult to use” and that “a lot of coroners are not too savvy with it.”536 These coroners suggested that the “Ministry of Justice should put some money into decent technology.”537 They justified their proposal with comments such as the following:538

It’d be useful just to see what other people are doing. We wouldn’t necessarily follow them, but we’d get an overall sense of the recommendations for types of death.

Despite the widespread recognition of the importance of electronic coronial record-keeping, our findings suggest that there are limitations with the electronic resources and that they are being under-utilised.

Coroner’s Court websites in Australia and NZ vary in the amount of information available to the general public. For example, the Coroner’s Court of Victoria website provides the public with access to some findings from 1 November 2009.539 However, no Coroner’s Court website provides automatic public access to all the findings because coroners have discretion to withhold findings to protect privacy or to recognise suppression orders.540

The NCIS, a “world-first national database of coronial information”, is an outstanding tool.541 However, its limitations hinder widespread access. As we pointed out in Chapter 2, it is too expensive for many researchers to access NCIS. Its

primary role is to assist coroners by providing them with the ability to review similar previous cases.542 The NCIS is not readily available to the public. It does not hold data about the implementation of coroners’ recommendations. Few public legal service providers acting for families seek access to NCIS to assist with the preparation of their submissions for coronial inquiries.543

These limitations have caused commentators to call for a “uniform national coronial public reporting system” for findings and recommendations.544 The main rationale for such a public reporting system is that:545

The absence of an accessible and comprehensive public reporting system for coronial findings and recommendations is a damaging gap in public knowledge about preventable deaths in this nation. This knowledge gap may fatally compromise government and community efforts to save lives.

In NZ, many coroners were aware of the limitations of NCIS. They commented that the “ideal” electronic system for coronial information would be one which is “joined up with NCIS” and is also “our own thing which has some compatibility with theirs.”546

All coroners interviewed were supportive of the introduction of public reporting of coronial information. In contrast to some Australian states, such as Victoria, where the full findings are available online, the CSNZ via NZLII only provides access to summaries of recommendations issued since July 2007. The Chief Coroner is aware of the limitations of the coronial information that is currently available and has stated that:547

the [statutory] requirement to maintain a public register of summaries of recommendations or comments has also proven to be quite time consuming. The President of the New Zealand Law Society correctly pointed out that the way we were posting these summaries onto the internet was not user- friendly and needed urgent attention. That is something that, with the cooperation of the Ministry, has been made a priority. At present, summaries and recommendations are available on the Ministry of Justice website, and

542 National Coronial Information System “About the NCIS | National Coronial Information System” (14 February 2014) National Coronial Information System NCIS

543 Email from (Deaths in Custody Watch Committee of Western Australia) “Submission on the Inquiry into the Transportation of Detained Persons” (14 May 2010) at 31.

more recently are being published on NZLII, a non-profit database that provides free, independent access to New Zealand law. Planning is also underway for full findings to be published on the internet. Particular effort is being put into registering and tracking all coronial recommendations and responses from government agencies and organisations. New resources and publications to make this information more widely available and publicly accessible are currently being progressed.

Since the publication of these comments two years ago, there have been advancements. The search functions on the NZLII website are more “user-friendly”. However, Coroner Dymond described the difficulties of searching online, stating that:548

I had a case involving a big lime spreader, a big four-wheel drive truck. I had two cases in close proximity...I wondered how often they’d happened in NZ...[The researcher] found some Australian examples on NCIS...It shouldn’t be that difficult to find the NZ cases. We should be able to put ‘bulk lime fertiliser spreader’ in the computer and go ‘search’ and it should throw them all out.

We undertook Coroner Dymond’s search. We queried NZLII with the exact search phrase: ‘bulk lime fertiliser spreader’. This search was unsuccessful. We then queried NZLII with ‘fertiliser spreader’. This search resulted in 4 documents.549 However, were these cases about the bulk lime variety of fertiliser spreader? Presumably it would also be useful to read the other cases about fertiliser spreader. The summaries available online did not mention bulk lime. Searches for ‘bulk lime’ and ‘lime’ did not produce any documents. Without access to the full findings it was impossible to answer our question. Our search reinforces our argument that access to full coronial findings is vital.

Therefore, we support the Chief Coroner’s plans to publish full findings. On the basis of feedback from interviewed coroners, we also recommend that consideration be given to providing coroners with access to open files. The following remarks from Coroner Aitken are reflective of other coroners’ feedback:550

Recently I had a huffing death and I asked [the researchers] to find out who else had active, open files on huffing deaths. That was good because it happened that it became a big issue and the Chief Coroner talked about it. We only see the closed files. In Australia, you can search on open files. We can’t.

Similarly, another coroner emphasised the value of having access to open files:551

My understanding is that NCIS system includes open and closed cases. They can access provisional data. That would be immensely helpful here so that we could see, for example, that there had been five cases in the last ten years and there are two that are still in process. Our system should also do that.

Although the findings sent by Matt Torbit to coroners are useful, coroners reported that they could be improved. Specifically, these findings are not organised or categorised. As one coroner explained:552

Even with the findings that come from Matt Torbit, I will have to manually sort through them to organise them into this is a quad bike death, a suicide and so on. It would be great if they were organised.

Almost all organisations that were interviewed (78/79) expressed surprise (sometimes shock) about the limitations of coronial record-keeping and the apparent under-utilisation of the existing resources. One health sector organisation remarked that searching for previous similar coronial findings “should be a requirement in [a coroner’s] job description.”553 This organisation went on to suggest that all coronial findings should be reported and utilised and that “this should be [the researchers’] first recommendation in capital letters, written in blood.”554

Our research has found that coronial findings should be reported and that coroners would like to make better use of data. However, our research findings also highlight that the CSNZ is currently under-resourced to achieve these goals. The under-resourcing of coronial offices hampers their ability to access and use previous similar findings, provide public information and to cooperate with external researchers and practitioners.555 Coroner Aitken has eloquently captured these sentiments:556

The MOJ is supposed to provide enough support for us to do our job...We want an electronic system where we can find the information we need. The MOJ complain that we take too long to get our decisions out, but on the other hand they are not giving us enough resources to go faster. To do our job well

and fast, we need that facility. We need the whole finding (not just the recommendation) and all of them.

There was overwhelming support from coroners (15/15), organisations (78/79) and interested parties (8/8) for our proposal that full coronial findings should be available electronically and in law reports. Full coroners’ findings (rather than just summaries of recommendations) could be made available on NZLII. An accessible and comprehensive public reporting system for full NZ coronial findings, including recommendations, must be introduced without delay.

Simply providing access to Coroner’s Court law reports would be inadequate. Our view is that coroners should be provided with appropriate research support and continuing education about how to identify and interpret patterns and preventive information that can be distilled from large datasets of recommendations. Most NZ coroners are not trained in the disciplines (such as epidemiology) that would be required to undertake comparative health and safety assessments.557 Ready access to clinical, statistical and epidemiological advice would enable the facts to be interpreted in light of the wider context and specific populations, enabling the formulation of robust recommendations.558

As almost all coroners (13/15) emphasised that “the set up in Victoria is fantastic.”559 The introduction of a service similar to the Victorian CPU would assist NZ coroners to develop prevention-focused and evidence-based recommendations.

We propose that coroners should be provided with adequate research support and resources (modelled on the CPU). The service would assist coroners with their prevention role. Much like the CPU, the researchers would gather and analyse the scientific and policy information and undertake stakeholder consultation in order to inform coronial recommendations. The researchers should also produce publications which would include detailed descriptive statistics about coronial recommendations and preventive evidence about specific causes of death. For

instance, the CPU has prepared papers on a variety of topics such as the data regarding gambling-related suicides.560 This type of information can be used to inform recommendations.

In chapter 8 we develop these proposals. In this chapter, our point is that Coroner’s Court law reports should be introduced in combination with adequate research support, resources and continuing coronial education. Without this combination, there is a risk that the preventive information contained in the law reports would not be maximised.

One coroner suggested that a national registry of coronial and Health and Disability Commissioner recommendations should be developed:561

Coroner: We need a national registry of coroners’ recommendations and HDC’s recommendations. The problem is that I made a series of recommendations over a number of years about DHB ED in respect of the time taken to read X-rays and each time they said they would smarten themselves up and they didn’t and there was a recurring problem. I could not find out at that time whether the same problem existed with other DHBS. Was it a national problem? Had other coroners made similar recommendations? Was it a recurring problem elsewhere?

Coroner: Yes it’d be an online system...There is the Recommendations Recap. That’s good, but it’s only the last few years. What about the last ten years? You might be able to look for patterns by interrogating the national office which has indexes, but they are not sophisticated. There is an officer who is in charge of the national records. A lot of that stuff is archived and some is stored offsite. Once the coroner has completed the exercise, the files are sent to national records. There are indexes there that can be checked. But I don’t know to what extent questions can be answered.

While this coroner was the only coroner to advocate for such a national registry, his justification was reminiscent of other coroners’ comments. In particular, many coroners (12/15) reported that they would like to have easy access to recommendations over an extensive period of time (such as the “last ten years”) but

560 Coronial Prevention Unit Gambling-related Suicide (2013). 561 Clarke, above n 422.

that it is difficult to access the information. Moreover, this coroner’s comments were reflective of other coroners’ remarks that certain inquiries raised questions which remained largely unanswered because of deficiencies in information sources. As we have argued in this chapter and chapter 2, the Recommendations Recap is an excellent initiative, but it has limitations, one of which is emphasised by Coroner Clarke who points out that the publication does not provide access to large datasets.

In a legal system which is supposedly characterised by over-reporting and is described as “awash with case law”,562 under-reporting in the coronial jurisdiction is reminiscent of a bygone era. We have argued that there should be official Coroner’s Court law reports, particularly since this Court is a Court of record. We also propose that full coroners’ findings should be made available electronically, for example on NZLII. The problems that, in part, stem from under-reporting are a glaring reminder that record-keeping in the coronial jurisdiction needs urgent attention.

We have made several proposals to improve the ongoing under-reporting of coronial decisions. We, again, urge the Ministry of Justice to resurrect the Coroner’s Court Law Reports that they produced in-house, but never published elsewhere.563 The introduction of law reports for the coronial jurisdiction would be in keeping with the judicial reasoning outlined in this chapter’s section about courts of record.

As we have explained in this chapter, full coronial findings are under- reported, but summaries of coroners’ recommendations (since 2007) are somewhat easier to access. In the next chapter, we provide an in-depth description of the number and nature of NZ coroners’ recommendations over a five year period.

In Chapters 2 and 3, we described the limitations of coronial data sources and the difficulties in accessing complete datasets of full coroners’ findings. In several jurisdictions abroad, government organisations compile basic statistics about Coroner’s Courts and coronial recommendations.564 Despite the introduction of the Recommendations Recap, a common complaint during interviews was that the shortcomings in access to publicly available full findings in NZ have meant that it has been difficult to compile accurate statistics about coronial findings.

This chapter attempts to address some of these problems by providing descriptive quantifications of NZ coronial recommendations during the study period. The results and discussion in this chapter address our research objective to describe the nature, frequency and recipients of NZ coroners’ recommendations, 1 July 2007 – 30 June 2012.

The chapter is divided into three main parts. First, we outline the historical origins of coronial recommendations and the legislative recommendation-making power. Secondly, we describe the number and nature of coroners’ recommendations. Finally, we examine the recipients of coronial recommendations.

Coronial recommendations were originally called ‘riders’. Riders were “expressions of opinion” added to the verdict to make “suggestions of measures which should be taken to reduce the incidence of needless deaths similar to that which was the subject of the inquest.”565

As McKeough has observed, “adding a rider to a coroner’s verdict is a time- honoured method of making comments on matters of public interest.”566 The addition of riders to coroners’ verdicts is indeed “time-honoured”, with one of the earliest records of a rider from 1821 England following the death of a man who suffocated:567

...in a certain pond by certain gas water which is thrown into the said pond by persons employed by a certain gas company to the jurors unknown. That the throwing of the said gas water appears to the said jurors to be a serious evil; and the said jurors recommend to the parish aforesaid (St Matthew Bethnal Green) to take proper measures to remedy the said evil.

Riders were appended to the coronial inquisition and were not technically considered part of the verdict.568

It is by way of riders, that coronial systems made recommendations to appropriate entities about how to avoid preventable deaths in the future. This preventive potential was recognised as early as 1842 in England by the Registrar General of Births, Deaths and Marriages.569 In 1915, an English medical practitioner and barrister, Dr William Brend, highlighted that coronial data could be deployed for public health purposes and concluded that “[i]f prevention of deaths is not now regarded as the main purpose to be served by inquests, the inquiry becomes of relatively little value.”570

In NZ, the first recorded rider was made in 1845 in Auckland at an inquest into the death of a child who fell down a tan pit and drowned.571 The jury recommended that there be “some regulation obliging proprietors to have wells or water holes upon their premises carefully enclosed.”572 Writing in 1868, after the first

recorded rider, it is interesting that Coroner Alexander Johnston does not mention riders in his Handy Book for the Coroners of New Zealand.573

Foreshadowing modern recommendations, riders were made in the interests of public health. In one death attributed to cholera, the following rider was added to the verdict:574

To call the attention of the authorities to the fact that the neighbourhood in which this man died is impregnated with foul air and that from the medical evidence it is likely to predispose to diseases of this nature.

This rider is reflective of contemporaneous medical knowledge. Cholera was considered a miasmatic until science established cholera as a water-borne disease. There was widespread fear of the disease not only because of the sudden onset of serious symptoms, but also because there had been three pandemics before 1850. The rider is vaguely directed to “the authorities.” Our analysis of modern untargeted recommendations in chapter 2, and later in this chapter, should highlight that failure to direct recommendations to specific entities was not restricted to riders from 1800s _NZ.575

Riders in 1800s NZ also reflected concerns about workplace health and safety. After an apprentice died in 1860 during dangerous engineering works, the jury recommended that:576

[T]he Coroner call the attention of the Authorities to a more strict supervision of works which, from the manner in which they are conduced, or otherwise, are likely to be attended with danger to the public.

Like modern recommendations, early riders were repeated about particular causes of death such as drowning.577 In the next section, we describe the origins of the legislative power to make coronial recommendations.

Coronial preventive functions and recommendation-making powers were explored in the 1970s and 1980s in the United Kingdom, Canada and Australia. The 1971 United Kingdom Brodrick Report recommended that riders should not form part of the coroner’s verdict because the facts of the case would speak for themselves.578 In 1980, riders were abolished in England and Wales.579 The introduction of Rule 43 changed the situation, creating the power for a Coroner to report a matter to a relevant authority where a coroner believed that action should be taken to prevent the recurrence of fatalities similar to the one under inquest.580

The legislative power to make recommendations has had a different history in Ontario, Canada. The Ontario Law Reform Commission’s 1971 report supported an extension of the coroner’s work to include investigation of preventable deaths.581 These different approaches to death prevention became a “central point of departure” between the jurisdictions as recommendations increasingly play a pivotal role in coronial inquiries in Canada, Australia and New Zealand.582

In Victoria, Australia, Norris’ review of their 1958 Coroners Act recognised the preventive role of the coroner.583 The Victorian Coroners Act 1985 implemented many of the Norris report recommendations. Section 21(2) of the Act provided Victorian coroners with the power to make recommendations. All other Australian states and territories have also enacted provisions which allow the coroner or jury to make comments or recommendations.584 In South Australia, for instance, the Coroner’s Court may add any recommendation that might prevent or reduce the likelihood of a recurrence of an event similar to the event that was the subject of the inquest.585

578 Brodrick Committee Report of the Committee on Death Certification and Coroners (1971). 579 Freckelton and Ranson, above n 420, at 617.

580 Coroners (Amendment) Rules (England and Wales) 2008 Rule 43; Coroners and Justice Act 2009 (England and Wales) 2009.

581 Ontario Law Reform Commission Report on the Coroner System in Ontario (1971). 582 Freckelton and Ranson, above n 420, at 617 & 654.

Despite the long history of riders in England, a legislative recommendation- making power for coroners is a comparatively recent addition in NZ. The Coroners Act 1908 and the Coroners Act 1951 did not provide coroners with recommendation- making powers. With the abolition of juries under the Coroners Act 1951, we know little about the frequency of riders from that time, but there has been speculation that riders were made informally.586

A provision to allow coroners to make recommendations was included in section 15 of the Coroners Act 1988. This section provided that a purpose of the inquest was to make:

any recommendations or comments on the avoidance of circumstances similar to those in which the death occurred, or on the manner in which any persons should act in such circumstances, that, in the opinion of the coroner, may, if drawn to public attention, reduce the chances of the occurrence of other deaths in such circumstances.

The current legislative power to make recommendations is similar to the provision in the 1988 Act. Section 57 of the Coroners Act 2006 states that the purpose of an inquiry, and any related inquest, is to make:

specified recommendations or comments (as defined in section 9) that, in the coroner’s opinion, may, if drawn to public attention, reduce the chances of the occurrence of other deaths in circumstances similar to those in which the death occurred.

Echoing the Brodrick report’s conclusion that coroners should not make riders, there are New Zealanders who argue that coroners should not have legislative power to make recommendations. For example, a lawyer interviewed for this study commented:587

This raises the question of the function of the coroner and the jurisdiction. Is the function of the coroner to serve a broader public health and safety interest, or is it more about the community’s responsibility towards a deceased individual? I think their primary role is the fact-finding role, establishing the cause and circumstances of the death. There is a huge amount of broader public interest and personal dignity in the community, through the coronial jurisdiction, honouring the dead person by determining exactly what happened and asking: how did this person die? Everything that follows from that – are there other people dying the same way, are there ways to prevent future deaths? All those second tier issues are better moved away from the coronial jurisdiction so that you could get some research base or epidemiology, or Mortality Review Committee that could analyse all the data and draw conclusions. In this way, you protect the coronial jurisdiction

by limiting its scope to a fact-finding exercise. The Western common law system is very good at doing some things and very poor at doing others. So it is very good at ensuring due process and fact finding, but not very good when it comes to inquisitorial, analytical output.

There were another five participants who shared this lawyer’s view that the coroner’s function should be restricted to fact-finding. However, there was overwhelming support for coroners to maintain their preventive function and power to make recommendations. All these participants reported that coronial recommendations must be improved, but they wanted coroners to maintain their legislative power to make recommendations. The following account from a government organisation interviewed is reflective of these participants’ views:588

We coordinated a meeting with coroners, the judiciary, academics and agencies. It was not an easy meeting. There was a divergence of views about suicide...Coroners had direct experience of young people killing themselves after receiving break up text messages. Coroners added value there. Don’t strip coroners of their role to make recommendations because they can make useful observations based on their direct experiences. And often they are the first to see these trends. Sure, there are some stupid recommendations and they’re not perfect, but don’t strip them of the power to make recommendations.

The current New Zealand Government’s review of the Coroners Act 2006 does not propose to remove the legislative power to make recommendations. An amendment to the Act is proposed to “ensure coroners’ recommendations or comments are specific to the case and evidence before the coroner.”589

Some jurisdictions document the frequency of coronial recommendations in reviews or annual reports.590 Comparisons of the frequency of coronial recommendations between NZ and overseas jurisdictions must be made with caution because of the different population sizes and coronial systems. For instance, in Western Australia there are approximately 13,000 deaths per year, of which around

15% are reportable, whereas in NZ about 20% of the 29,000 deaths per year are reportable. 591

As part of its review of the coronial system, the Western Australian Law Reform Commission undertook an investigation of inquests performed in 2007.592 There were recommendations made in 22 of the 39 inquests. The total number of recommendations for 2007 was 88.593 From 2000-2009, 565 recommendations were made by Western Australian coroners.594

The Coroner’s Court of Victoria’s Annual Reports describe the number of findings and recommendations for each reporting period.595 Of the 4,620 coronial findings made from 1 July 2011 to 30 June 2012, there were a total of 217 recommendations.596

In Canada, the Office of the Chief Coroner of Ontario 2010 Report on Inquests states that in 2010 there were 58 inquests which resulted in 282 recommendations.597 The report also describes the average number of recommendations per inquest over a seven year period from 2004-2010.598 The average number of recommendations per inquest in 2009 and 2010 was 4.9.599

Between October 2010 and March 2011 in England, there were 203 inquests which resulted in 189 Rule 43 reports.600 The English statistical summaries include the breakdown of the Rule 43 reports issued under the “broad categories of subject”, or underlying causes of death, upon which each report was based.601

The CSNZ does not produce annual reports with statistical summaries. The Recommendations Recaps summarise the recommendations that were made during the quarterly reporting period, but they do not include statistical summaries of the annual frequency of coronial recommendations.

600 Ministry of Justice Summary of Reports and Responses under Rule 43 of the Coroners Rules: Fifth Report (2011) at 4.

Our study examined coronial recommendations over a five year period to gather information about the number of recommendations and comments that are not currently included in the CSNZ publications.

In NZ, during the five year study period, there were 607 coronial inquiries. Almost 60% of these inquiries were public hearings, or inquests, and 41% were completed on the papers in chambers (Figure 4).

Figure 4 Method of case completion for NZ coronial inquiries, 1 July 2007 – 30 June 2012
Chambers,

This study’s method of case completion finding is interesting because there was a perception among a number of participants (43/123) that there have been fewer inquests since the introduction of the 2006 Act. For example, one lawyer’s view was that:602

In the last year there haven’t been many hearings. Anecdotal evidence from the Police seems to support this. Why? Could this be due to pressure on court time? Or maybe there are more chambers findings.

Similarly, some organisations believed that the rate of inquests has decreased:603

We just haven’t been seeing the same number of inquests in recent years. I’m sure there used to be more when there were part time coroners. I think the media contributes to the misconception that there are more inquests than there really are. I think more coroner’s investigations are being held without an inquest these days.

While more cases were completed by inquest, there were a significant proportion of in chambers findings, which may explain the participants’ perceptions.

Figure 5 Summary of coronial investigations and recommendations during the study

The total number of recommendations sent to recipients was 2,040 because coroners made single or multiple recommendations to one or more recipients (Figure 5). Table 5 describes the scenarios for analysis of recommendations.

Table 5 Scenarios for analysis of recommendations directed to recipients 604

604 This table is modelled on a similar table in: Lyndal Bugeja “Determinants of Coroners’ Recommendations on External Cause Deaths in Victoria, Australia” (PhD, Monash University, 2011) at 201.

Eighty nine per cent of the 232 organisations received between one and ten recommendations. Occasionally organisations received ten or more recommendations, but this was comparatively rare. Thirty seven per cent of organisations received one coronial recommendation during the study period. Seventeen per cent of organisations received two recommendations during our study period. Thirty four per cent of organisations received between three and ten recommendations during our study period.

The number of recommendations per year for the study period is described in Table 6.

There were only five recommendations in 2007 because the Act came into force in July of that year and “it took some time for the coroners to start producing findings with recommendations.”605 From 2008, the number of recommendations increases each year, until the drop in 2011. 2010 produced an unusually high number of recommendations.

In our study period, the average number of recommendations per inquest was 2.7. This rate may be compared with Western Australian coroners who typically issue four recommendations per inquest.606 Commentators have noticed that sometimes high public profile cases result in more recommendations.607 Similarly, it is possible that the media interest in certain coronial inquiries in NZ was a factor in those cases which produced particularly high numbers of recommendations. For instance, there was a lot of media attention following the “Tongariro river tragedy” where six teenage students and their teacher drowned while undertaking an

605 Email from Lily Nunweek to Jennifer Moore regarding dataset of coronial recommendations (20 December 2013).

606 Hands with Law Reform Commission of Western Australia, above n 590, at 37. 607 For example, see: At 37.

adventure exercise with the Sir Edmund Hillary Outdoor Pursuit Centre.608 The coronial inquiry into the incident produced 29 recommendations, which was the highest number of recommendations issued by a coronial inquiry in our study period.609

In the first 384 inquests held in Auckland between 1841 and 1864, recommendations were made in 21 (5.5%) of inquests.610 The frequency of recommendations is now much higher than in the 19th century. For example, in 2009, recommendations were made in 17% of the 1,027 inquests held while recommendations were made in 15.5% of the 1,198 inquests in 2010.611

Although the focus of this study is recommendations, we also counted the number of coronial comments in order to provide an exploratory picture of the relative numbers. We only counted comments that were made alongside recommendations in coronial inquiries. Coronial inquiries that resulted in comments only (that is, no recommendations were made) were excluded because the focus of our study is recommendations.

specified recommendations or comments means, in relation to a death, recommendations or comments by the designated coroner on either or both of the following:

‘Comments’ is not defined separately. Does the “or” suggest that recommendations and comments are different? All coroners who were interviewed for this study reported that there is a difference between recommendations and comments. Participants’ definitions of ‘comments’ were similar. For example, the Chief Coroner explained that:613

Recommendations are generally specific as to what a coroner believes should have been done differently, or should be done differently, in the future. So they are generally targeted and they can be responded to by organisations or people who can say: “yes we agree, no we don’t, or we partly agree, and this is what we are doing about it.” Comments are more like passing observations that don’t necessarily call for a response.

Coroners typically differentiated recommendations from comments on the basis that comments generally do not invite responses or action from organisations. Several (3/15) coroners highlighted the advantages of making comments instead of recommendations. For instance, one coroner explained that when:614

The facts speak for themselves, you don’t have to go overboard and recommend the obvious. For example, in the case involving the drowning, they had drunk a couple of bourbons before going in the water. I didn’t want to recommend that people never drink before going in boats, but the facts speak for themselves.

In a case involving an infant death...I had made comments there that 3 of the 6 people living at the address were cigarette smokers. The mother smoked during the pregnancy. So I highlighted the smoking aspect in my comments...I did not make a recommendation. One coroner makes recommendations: “I recommend that the findings be sent to such and such” but that is not a recommendation in terms of section 57. It devalues the recommendation process. You can accommodate that without it being a recommendation. And you can get the safety message through via comments.

It was common (10/15) for coroners to report that high rates of recommendation- making “devalue” the recommendation process and that, therefore, coroners should consider whether making a comment may be more appropriate.

In addition, some coroners (5/15) reported that they sometimes deliberately elect to make a comment, rather than a recommendation, in order to enable the organisation to make decisions about the best way to prevent similar deaths in the future. For example, in an inquiry about recreational diving, the coroner endorsed the recommendations made in the Police National Dive Squad Report and he made the following comment:615

I believe a version of the report with some of the details of the equipment and problems with it could usefully be made available with the recommendations to the diving community. However, I will leave that up to the Police National Dive Squad as to what information they provide along with the recommendations and conclusions of their report.

During our study period, coroners made 670 comments (Figure 6). Although coroners made more recommendations, 670 is a significant number of comments. It is beyond the scope of this study to provide in-depth analysis of the nature of coronial comments. However, the number of coronial comments and the coroners’ descriptions of their decision making suggest that further investigation would be useful.

Figure 6 Total number of Comments and Recommendations in 607 Inquiries
1800
1644

The number of comments and recommendations, by coroner, is described in Figure 7.

We adopted Bugeja’s definition of ‘original or repeated recommendation’ which was “whether the recommendation was original to the cohort (i.e. made only once) or was a repeat of a recommendation made in another case in the cohort.”616 Repeated recommendations were those that were identical in wording. There may have been repetitive themes amongst the recommendations. However, common themes were not excluded. As Bugeja points out, the impact of this approach is that there may be an overestimate of the reported frequency of original recommendations.617 It is necessary to identify repeated recommendations in order to accurately determine the number of recommendations in our study period. Failure to exclude repeated recommendations overestimates the number.

In our study period, 324 of the 1,644 coronial recommendations were identical repeated recommendations (Figure 8). In other words, there were 1,320 unique recommendations in our study period.

Figure 8 Summary of coronial investigations, unique and repeated recommendations, 1 July 2007 – 30 June 2012

Participants reported that the cumulative effect of repeated recommendations aids the uptake of coronial recommendations. This finding is consistent with previous research.618 As such, we wanted to investigate the number and nature of repeated recommendations.

It is also useful to isolate the repeated recommendations in order to identify the underlying causes of death that attract frequent coronial recommendations. The underlying cause of death categories that attracted the greatest number of repeated recommendations are described in Figure 9.

618 Ray Watterson, Penny Brown and John McKenzie “Coronial Recommendations and The Prevention of Indigenous Death” (2008) 12 Special Edition 2 Australian Indigenous Law Review 4 at 167; Bugeja, above n 604, at 91.

Figure 9 Summary and number of identical repeated recommendations, 1 July 2007 – 30 June 2012

In high income jurisdictions like NZ, heart disease and cancer are the leading causes of death (Figure 10).619

619 World Health Organisation The Global Burden of Disease: 2004 Update (2008).

In NZ, like other industrialised countries, transport accidents are a major cause of mortality (Figure 11).620 NZ also has a comparatively high rate of intentional self-harm, particularly among males (Figure 11).

Condition	Total deaths	Percentage of deaths by sex		Māori ASR*		Non-Māori ASR*		Total ASR*
Condition	Total deaths	Male	Female	Male	Female	Male	Female	Male	Female
All cancer	8593	52.5	47.5	205.1	191.4	137.7	103.8	143.9	110.6
Trachea, bronchus and lung cancer	1650	54.1	45.9	60.6	72.3	25.7	17.1	28.7	21.2
Female breast cancer	641	...	100.0	...	32.9	...	17.8	...	19.1
Prostate cancer	589	100.0	...	28.7	...	16.7	...	17.4	...
Cervical cancer	52	...	100.0	...	3.2	...	1.6	...	1.7
Melanoma of the skin	324	61.4	38.6	1.0	1.6	6.9	3.7	6.5	3.5
Ischaemic heart disease	5389	53.8	46.2	129.6	88.2	83.3	44.3	88.0	47.5
Cerebrovascular disease	2467	38.3	61.7	32.2	46.5	27.5	27.7	28.1	29.2
Diabetes mellitus	768	50.9	49.1	38.3	39.5	10.3	6.8	12.5	9.0
Motor vehicle accidents	416	71.2	28.8	30.0	11.2	10.8	3.9	13.4	4.9
Intentional self-harm	535	72.1	27.9	23.9	9.4	15.7	5.9	17.3	6.6

* Age-standardised mortality rate (WHO World Standard Population), per 100,000 population.

The underlying cause of death categories that the coroners investigated during the study period are described in Figure 12.

620 New Zealand Ministry of Health Mortality and Demographic Data 2010 (2013) at 11. 621 At 11.

Figure 12 Underlying causes of death categories investigated by NZ coroners, 1 July 2007 – 30 June 2012

Domestic violence	1
Death in custody	2
Undetermined	3
Accidental threats to breathing	3
Electric current radiation & extreme ambient air...	5
Animate mechanical forces	5
Assault	7
Inanimate mechanical forces	10
Injury & other consequences of external causes	13
Heat and hot substances		23
Natural causes		24
Falls		33
SUDI		34
Exposure to and poisoning by noxious substances		42
Complications of medical and surgical care			58
Intentional self harm				76
Drowning				81
Transport accident					187

Given NZ’s mortality statistics, it is arguably not surprising that many coronial investigations concern transport accidents and intentional self-harm. Fifty eight of the 607 coronial inquiries concerned deaths attributed to complications of medical and/or surgical care. The burden of injury is not evenly distributed amongst ethnicity or age groups. For example, young children have a higher proportion of death due to drowning compared to other age groups. ‘Exposure to and poisoning by noxious substances’ is an ICD-10 classification which includes fatal exposure to narcotics and alcohol.

In their investigations about these underlying causes of death, what were the typical characteristics of coronial recommendations? The following section, explores the nature of coroners’ recommendations during our study period.

This section provides a qualitative overview of the nature of coroners’ recommendations in our study period. The structure of coronial recommendations is not standardised. However, coroners’ recommendations are typically shaped according to overarching formats. It is usual for a coroner to make a recommendation in one of the following categories:

Category 1: that the recipient review its practices, policies and/or procedures; Category 2: that the recipient change its practices, policies and/or procedures; Category 3: for immediate law reform, or a review of the current legal framework; Category 4: for publicity about an issue.

We classified 562/1644 coroners’ recommendations as category 1. An example of category 1 is:622

That the Department of Corrections review its institutional protocols so that in the event a prison proposes to transfer a prisoner, processes are in place to ensure that the transfer will not prejudice the prisoner’s opportunity to attend an appointment for medical treatment or testing outside of the prison.

Some coroners (7/15) reported that they prefer to restrict their recommendations to reviews of organisational policies and procedures because only the agencies have the necessary institutional knowledge to make appropriate organisational changes. Using health care-related deaths as an example, Coroner Stewart explained that:623

Hospitals have their own investigation processes. Often by the time the case gets to us, they have had their internal review and they have put in place the necessary steps and corrections. To an extent, they are the experts on how to improve their own systems. So other than endorsing what they have already put in place, it is not usual to make a recommendation. Having said that, there have been cases where I have got independent expert advice (someone who is independent of the agency involved) and the expert has come up with an alternative proposal and that has been put forward as a recommendation. It depends on the case. An example is a hospital death involving pulmonary embolism. At that stage they hadn’t finished their guidelines. I had a review from an independent expert who made some suggestions about the hospital’s draft guidelines and how they could be improved. I suggested to the hospital that they may wish to consider the suggestions about their guidelines which were made by my expert.

Coroner Stewart (and the other coroners who prefer category 1 recommendations) often described organisations as the “experts” on their own systems. Therefore, recommendations that state that organisations should change their policies and procedures (category 2 above) are perceived as unwise because coroners lack the information that would be required to formulate the precise details of the suggested change. That is why some coroners prefer to make general recommendations which allow the organisation to make decisions about the details. For example, the

following category 1 recommendation suggests that the organisation decide “upon the exact words” and how to implement the recommendation:624

I make that recommendation. I leave it to the DHB to implement it and to hit upon the exact words. I say again that to be effective it needs to be concise and easy to understand. In my view more is seldom good and if a notice is a lengthy one and difficult to understand, people simply do not read it.

691/1644 coroners’ recommendations were category 2. An example of a category 2 recommendation (that an organisation change its policies, procedures and practices) is:625

That the...District Health Board formally adopts and implements a separate form for the initial assessment of risk a patient poses to him or herself or to others on admission to a mental health facility.

That the...District Health Board amends its procedures relating to searches for missing patients from any mental health facility to ensure that a thorough search of the entire grounds of the facility is undertaken as soon as a patient is noted to be missing.

Category 1 and 2 recommendations were often directed to health sector organisations and addressed matters such as:626

In addition to health care-related deaths, category 2 recommendations are also particularly common in transport-related deaths. For example, coroners have recommended:627

That Transit New Zealand erect warning signs around this particular stretch of road advising motorists that this is a particularly dangerous stretch and that it has a high crash rate.

That Western Bay Transport upgrade their documentation of Hazard Identification and controls for any significant hazard identified.

That they maintain documentation of all formal and informal (on the job) training provided and keep a register of qualifications for all employees.

Given that NZ coroners are qualified lawyers appointed as judicial officers, it is not surprising that we found that 141 recommendations were category 3 recommendations (i.e. recommendations which suggest immediate law reform, or a review of the current legal framework). An example of a category 3 recommendation which suggests amendments to the law is:629

That the government amend the law in relation to school buses to require all school buses to be fitted with a system of flashing warning lights to indicate to other road users that the school bus is stationary for the purposes of either receiving or discharging passengers, and that these flashing lights be automatically activated when a school bus on its run comes to a halt for either of those purposes.

Coroners sometimes endorse law reform recommendations that are suggested to them by organisations or experts during an inquiry. For example, this coroner made the following statement:630

I endorse the recommendation for the introduction of legislation which creates an offence when a driver of a motor vehicle uses a hand held mobile phone while driving.

The New Zealand Firearms Safety Code should be incorporated into legislation and its observance have statutory force.

Sometimes coroners recommend that an organisation investigate their proposal so that legislative change may occur in the future. For example, an All Terrain Vehicle (ATV) accident, prompted the following recommendation:632

The Court endorses the new educational and enforcement programme being proposed by the Department of Labour, but considers that both Ministries undertake an immediate investigation to consider the mandatory installation of:

An example of a coroner’s recommendation to amend the current legal framework is:633

I also recommend that included in the new legislation is a provision, similar to that in section 7A of the Mental Health (Compulsory Assessment and Treatment) Act 1992 for consultation with the family or whanau of the proposed patient.

An example of a coroner’s recommendation which calls for a review of the regulatory framework is:634

That the Ministry of Transport review the policies underpinning rule 7.12 of the Land Transport (Road User) Rules 2004 with a view to amending the rule so that riders of motorised skateboards are required to wear safety helmets when riding their boards.

Category 4 coronial recommendations call for publicity about an issue. There were 250 category 4 recommendations. Coroners may direct that a recommendation is for “the public at large”635 or general “public attention”:636

I intend to circulate this Finding to the media to draw public attention to the tragic consequences of alcohol-and-cannabis-affected drivers in charge of vehicles travelling at high speeds.

Alternatively, coroners may make recommendations to a specific group, such as families with newborn babies:637

That continued publicity be given to unsafe sleeping environments for babies (including co-sleeping with the mother).

Another category 4 example is a recommendation directed to a specific profession in order to publicise or “raise awareness” about rare presentations or unusual issues:638

That the Royal NZ College of General Practitioners promulgates information to Fellows of the College to raise awareness of the issues raised in this case, particularly in relation to sudden cardiac deaths in young people.

Similarly, coroners often request a specific organisation to give publicity to an issue. For example, for deaths due to drowning, coroners sometimes recommend that Water Safety NZ (WSNZ) publicise an issue:639

I recommend that WSNZ gives publicity to the desirability of using neoprene chest waders in conjunction with a belt and personal floatation device, by suitable publicity to members of the public and specialist suppliers and users of such products.

Coroners often adopt category 4 recommendations in order to educate the public. For example, coroners frequently call for education of parents concerning safe sleeping for babies:640

My recommendation is for better education to young parents and families who for a variety of reasons decide to have all family members sleep in the one bed with the presence of an infant or baby.

This section provides an overview of all the recipients of coronial recommendations during our study period. We classified the recipients as ‘organisations’, ‘individuals’ and ‘untargeted’.

There are a small number of overseas studies which have examined the recipients of coronial recommendations. A landmark study in Victoria, Australia, provided descriptive statistics for the organisations that were sent coroners’ recommendations from 2000-2005.641 Three hundred and eighty organisations were sent recommendations during the study period.642

While some studies provide primarily speculative discussion about organisations’ responses to recommendations, a small number note the recipients of recommendations and monitor their responses and implementation.643 In the only

643 Justin Malbon “Institutional Responses to Coronial Recommendations” (1998) 6 JLM 35.

Australian academic study to analyse the implementation of recommendations, the researchers analysed the responses of government organisations to 484 recommendations from 185 inquests in Australia, mostly in 2004.644 In 2006, the Queensland Ombudsman reported on the public sector agencies that received and responded to coroners’ recommendations.645 The report discusses 72 inquest reports prepared by Queensland coroners in 2002 and 2003 involving 23 public sector agencies.

The jurisdictions (for example, Ontario, Canada and England) which compile responses to coronial recommendations in their annual reports have also tracked the recipients of recommendations.646 The CPU in Victoria records and monitors coronial recommendations and recipients’ responses. The Coroner’s Court of Victoria Annual Reports provide statistics about recommendations, recipients and responses.647

The CSNZ does not produce a public document which outlines the recipients of coronial recommendations. Our study provides the first description of the recipients of NZ coronial recommendations. In NZ for our study period, there were 309 recipients of coroners’ recommendations (Figure 13).

645 Queensland Ombudsman The Coronial Recommendations Project: An Investigation into the Administrative Practice of Queensland Public Sector Agencies in Assisting Coronial Inquiries and Responding to Coronial Recommendations (2006).

646 Office of the Chief Coroner Ontario, above n 564; Ministry of Justice, above n 564. 647 Gray, above n 564.

Figure 13 Summary and number of recipients of coroners’ recommendations by type, 1 July 2007 – 30 June 2012

Out of the 2,040 recommendations that were directed to recipients, the majority (1,114) were sent to government organisations. Figure 14 describes the number of recommendations sent to organisations by recipient type.

Figure 14 Number of recommendations directed to recipients by type, 1 July 2007-30 June 2012 NZ
Untargeted Individuals
For Profit
Government Not for

This section discusses the recipients of recommendations that were organisations: government, non-government not for profit and for profit. As described in figure 13, there were 232 organisations: 121 government, 67 non- government not for profit and 44 for profit. Our finding that government organisations received the highest number of recommendations is consistent with other research.648

As we outlined earlier in this chapter, transport accidents cause a significant proportion of mortality in NZ. Therefore, it is not a surprising finding that the NZ Transport Agency received the highest proportion of unique coroners’ recommendations (figure 15).

Figure 15 Number of recommendations (15 or more unique and total) sent to organisations, NZ 1 July 2007 – 30 June 2012

It is probable that the research revealed that coroners typically sent recommendations to government organisations, and that the MOH received the second-highest proportion of recommendations, because these entities are responsible for the development of legislation, policies and programmes designed to

manage public health. Fifty six of the 232 organisations were health agencies such Plunket, St John and the National Addiction Centre.649

The Sir Edmund Hillary Outdoor Pursuit Centre received the highest number of total recommendations (161), but relatively few unique recommendations (23) because of the number of people who died in a single incident (Figure 15). On 30 March 2010, a teacher and six students died while undertaking an adventure challenge exercise conducted by the Sir Edmund Hillary Outdoor Pursuit Centre.33

Figure 16 depicts the unique and the total number of recommendations that were directed to organisations by type. The total number of recommendations depicted in the figure sums to less than 2,040 (our total dataset for recommendations directed to recipients) because this figure excludes the untargeted and individuals recipients. Government organisations received 303 repeated recommendations. Not for profit organisations received 182 repeated recommendations and for profit received 11 repeated recommendations.

Figure 16 Total and unique number of recommendations received by organisations, by type
1200
1114
1000
811
800
600
411
Total

It is useful to identify repeated recommendations in order to enable further investigation into why repeated recommendations were necessary and what action, if any, was taken by organisations that received repeated recommendations. These

figures do not reveal whether the repeated recommendations were feasible or evidence-based. However, they provide an exploratory indication of the incidence and recipients of repeated recommendations.

In this section, we describe the individuals who were the recipients of coronial recommendations. As described in Figure 13 five of the 309 recipients were individuals. The five individuals were:

Apart from the Attorney General, all individuals are health practitioners. Even when the health practitioners were affiliated with health care organisations, the coroners preferred to direct these recommendations to the individual practitioners.

As we explained earlier in this chapter, the nature of coronial recommendations varies. Sometimes coroners fail to state to whom a recommendation is directed. The Chief Coroner acknowledges that while there are some “sweeping” recommendations, “the aim is to produce well targeted recommendations.”655

A targeted recommendation identifies a specific organisation/s. By contrast, an ‘untargeted’ recommendation is a recommendation which is not directed to an identifiable organisation. For example, we have classified recommendations that

were directed to “any person reading...this decision”656 or “persons taking drugs”657 as untargeted.

All untargeted recommendations are described in Table 7. Many identically worded untargeted recommendations appear in multiple coronial inquiries. For example, “the government”, or variations such as “appropriate government agency” or “relevant government agency”, were repeated 29 times. We have only counted each unique phrase once in order to avoid overestimating the total number of untargeted recommendations.

Table 7 NZ coronial untargeted recommendations, 1 July 2007 – 30 June 2012

#	Untargeted Recommendation	Total N	Date
1	“adventure race promotion and organisation industry”	1	22 June 2010.658
2	“all buses used for transporting school pupils”	1	20 July 2009.659
3	“all owners and/or operators of motorised vehicles”; “all drivers”; “all drivers of all cars”; “all motor vehicle drivers”; “motorcyclists”	5	1(12 November 2008);660 1(30 September 2009);661 1(10 November 2009);662 1(8 December 2009);663 1(3 June 2010);664
4	“all merchants”	1	16 September 2009.665
5	“all parents of newborn children”	2	31 October 2008.666
6	“all persons close to a person who is showing signs of depression”	1	15 October 2008.667
7	“all persons travelling in small boats”	1	8 August 2008.668

#	Untargeted Recommendation	Total N	Date
8	“all persons using ladders”	1	24 November 2009.669
9	“retailers” [of Delonghi products]	3	6 June 2008.670
10	“all rural-based general practitioners”	1	1 September 2010.671
11	“all rural schools”	1	20 July 2009.672
12	“all whitebaiters”	1	28 July 2008.673
13	“ambulance and fire services”; “ambulance sector”	2	1(3 November 2009);674 1(1 November 2011).675
14	“any dive operator in Milford Sound”	1	19 August 2010.676
15	“any person reading the details of this decision”	1	3 September 2010.677
16	“anyone”; “no one”; “someone”.	3	1(21 December 2007);678 1(11 August 2008);679 1(27 August 2009).680
17	“appropriate farm workers’ union”	1	29 May 2009.681
18	“relevant safety organisations”	1	11 February 2011.682

#	Untargeted Recommendation	Total N	Date
19	“appropriate government agency”; “relevant government agency”; “the appropriate Minister/s”; “appropriate government department”; “the government”; “local leaders and MPs”; “appropriate regulatory agency”	29	1(8 August 2008);683 1(21 August 2008);684 1(15 October 2008);685 1(29 May 2009);686 1(2 July 2008);687 1(2 July 2008);688 5(9 April 2009);689 1(20 July 2009);690 14(30 March 2010) [7 deaths, same incident];691 1(12 August 2010);692 1(15 November 2010);693 1(8 February 2011).694
20	“all candidates for licenses”	2	1 September 2011.695
21	“caregivers at the day base centre”	2	12 November 2008.696
22	“an Emergency Department of any hospital”	1	1(15 December 2008);697
23	“All employees in a rural workplace”; “immigrant workers” [on farms]	6	5(30 November 2009);698 1(8 March 2010);699
24	“all employers”	1	30 October 2009.700
25	“farming community”; “all self employed farmers and their employees”	3	1(28 July 2008);701 1(15 October 2008);702 1(26 February 2010).703

#	Untargeted Recommendation	Total N	Date
26	“free divers”; “all dive industry and recreational divers”; “recreational divers”; “divers undertaking technical dives”	38	1(9 July 2010);704 10 (19 July 2010);705 13(16 September 2010);706 9(15 November 2010);707 5(3 November 2011).708
27	“funeral directors”	1	22 June 2010.709
28	“Head Office of dairy companies in NZ”	1	28 July 2008.710
29	“health practitioners”	1	18 March 2009.711
30	“doctors”	1	18 June 2009.712
31	“regional hospitals in Auckland”	1	22 March 2010.713
32	“hunters”	4	11 November 2008.714
33	“landlords”	1	21 June 2010.715
34	“Lead Maternity Carers”	1	28 April 2009.716
35	“lines company”	1	5 August 2009.717
36	“manufacturers of gas heaters”	1	6 June 2008.718
37	“maternity care staff”	1	28 April 2009.719
38	“manufacturers and suppliers of the Vicon baler”	2	13 January 2012.720
39	“midwives”	3	1 July 2010.721

#	Untargeted Recommendation	Total N	Date
40	“mountaineering and abseiling community”	1	17 June 2008.722
41	“mountaineers”	6	3(29 July 2009);723 3(30 April 2012).724
42	“fishermen”	1	30 November 2010.725
43	“operators of commercial snorkelling activities (including swimming with dolphin activities)”	11	20 April 2012.726
44	“all operators of powered recreational vessels or Maritime products”	1	1 September 2011.727
45	“others with an interest in outdoor safety”	1	27 July 2009.728
46	“all owners of properties with swimming pools”	1	3 August 2009.729
47	“pedestrian”	2	27 August 2009. 730
48	“those persons taking drugs”	1	2 August 2011.731
49	“persons who prescribe anti-depressant medication”	1	23 October 2008.732
50	“persons working around vintage farm machinery”	5	14 August 2008.733
51	“skiers and snowboarders”; “commercial ski areas”	4	2(8 September 2011);734 2(22 September 2011).735
52	“public health service”	1	18 June 2009.736

#	Untargeted Recommendation	Total N	Date
53	“publicity”; “public attention”; “media publicity”; “to the media to draw public attention to”; “appropriate publicity”; “public at large”	19	1(7 July 2009);737 1(15 October 2008);738 1(12 December 2008);739 1(22 January 2009);740 1(18 June 2009);741 1(29 July 2009);742 1(10 November 2009);743 1(25 February 2010);744 2(3 June 2010);745 1(12 August 2010);746 1(7 September 2010);747 1(4 October 2010);748 1(25 October 2011);749 1(23 March 2012);750 1(30 April 2012);751 1(17 April 2008);752 1(3 November 2009);753 1(15 October 2008).754
54	“residential property managers”	1	18 May 2009.755
55	“agencies such as schools, welfare and parental advisory agencies”	1	21 June 2010.756
56	“snow boarder and skier user groups”	1	12 August 2010.757
57	“specialist consultants and staff”	1	22 October 2009.758
58	“supervising adults”	1	13 March 2012.759

#	Untargeted Recommendation	Total N	Date
59	“the appropriate health authority”; “the appropriate health service”	2	1(22 July 2009);760 1(13 March 2012).761
60	“the organisers of events on the motorcycling calendar”	1	10 January 2011.762
61	“the outdoor recreation retail industry and clubs”	1	27 July 2009.763
62	“the relevant territorial authority”; “the local authority responsible”; “the local authority/ies”; “the territorial authority responsible”	6	1(24 July 2008);764 1(11 June 2010);765 1(6 July 2010);766 1(12 August 2010);767 1(4 August 2011);768 1(25 January 2011).769
63	“the roading authority/ies”; “road controlling authority”; “responsible roading authorities”	15	3(1 July 2008);770 3(4 July 2008);771 1(17 June 2009);772 1(10 August 2010);773 2(18 October 2011);774 1(19 April 2012);775 2(5 August 2009);776 2(30 September 2009).777
64	“those that drive long haul trucks”	1	22 June 2009.778
65	“trampers”; “tramping and mountaineering community”	6	5(30 April 2008);779 1(15 March 2010).780

#	Untargeted Recommendation	Total N	Date
66	“the relevant utilities”	1	5 August 2009.781
67	“vehicle manufacturers”	1	23 July 2010.782
68	“all marae committees”	1	8 October 2012.783
69	“road controlling authorities with responsibility for roads that are prone to winter ice condition”	5	19 June 2012.784
70	“users of 4 x 4 farm vehicles”	1	20 December 2007.785
71	“the law makers of NZ”	1	1(9 April 2009).786
72	Nothing specified (i.e. no identifiable organisation, individual, group or category specified)	27	2(12 June 2008);787 1(30 July 2008);788 3(20 August 2008);789 2(9 September 2008);790 2(20 October 2008);791 3(17 November 2008);792 1(17 February 2009);793 1(20 April 2009);794 1(4 May 2009);795 1(10 August 2009);796 1(2 September 2009);797 1(15 September 2009);798 1(12 October 2009);799 1(1 September 2011);800 1(15 September 2011);801 1(23 March 2012);802 1(3 April 2012);803 3(16 May 2012).804

A review of the NZ coronial recommendations released in 2011 suggested that “almost all recommendations are directed to an organisation.”805 However, as depicted in Table 7 immediately above, our research found that 72/309 recipients of coronial recommendations were untargeted.

We also found that there were a total of 258 untargeted recommendations (i.e. the sum of column three in table 7). The sum of this column is greater than 72 because many unique untargeted recommendations were directed to multiple organisations. For example, the unique untargeted recommendation “the government” (or variations such as “the appropriate government agency”) was directed to organisations on 29 occasions. There were a significant proportion of untargeted recommendations that we classified as ‘nothing specified’ (27), where we were unable to identify a specific organisation, individual, group or category to which the recommendations were directed. An example of a recommendation that we categorised as ‘nothing specified’ is:806

Similarly, we also categorised recommendations as untargeted ‘nothing specified’ when they were formulated as follows:807

The only feasible recommendation I can make as a result of this inquest is that installation of smoke alarms throughout New Zealand properties should be hard wired to avoid any tampering or malfunction as a result of human intervention when it is really needed. The hard-wired alarm will probably save lives and avoid deaths like this.

Our findings about untargeted recommendations suggest that there are opportunities for NZ coroners to improve their processes for identifying the appropriate organisation/s to which to direct recommendations. The Chief Coroner has recognised that this is an area that needs improvement. He has stated that coroners:808

have let ourselves down in the past by not targeting properly or not even sending them [recommendations]. That was a process issue at our end because our staff did not understand that it was their responsibility.

Sometimes we uncovered that coroner X made a recommendation and that coroner got a response from the agency, but that coroner X never passed that information on to me. Again, we have been working on that.

Fourteen of the coroners interviewed thought that coroners should target their recommendations to a specific person or organisation. By contrast, one coroner, Coroner Reid, argued that untargeted recommendations may have a positive public health impact:

The coroner has a mandate to make specified recommendations or comments that "if drawn to public attention" may reduce the chances of the occurrence of other deaths in circumstances similar to those in which the death occurred. There is a place for evidenced-based recommendations directed to a category of persons (say cyclists) at changing behaviour in a certain way, and reliant on media or specialist publications to promote them. The measurement of success of such recommendations is ultimately statistical. Just because they cannot be precisely measured (and I believe there are parallels with the work of say, psychiatrists in reducing the incidence of suicide) does not make them less effective. I accept poorly thought-through, general, wide-ranging recommendations are likely to be ineffective.

It is important to recognise that untargeted recommendations also feature in coronial jurisdictions abroad. For example, a study in Victoria, Australia which identified the organisations that were sent coronial recommendations from 1 July 2000 – 30 June 2005, found that 71 recommendations did not specify an organisation (i.e. were untargeted).809 Similarly, in the Australian observational documentary series Outback Coroner, it is not uncommon for coroners to make untargeted recommendations, for example to “professional fishermen”.810

Our study reinforces prior research findings that vaguely directed recommendations (for example, ‘to the government’) receive poor or no responses and have little or no preventive impact.811 If a recommendation is inappropriately directed its preventive potential is undermined because it does not reach the organisation that can consider and/or implement it. A failure to address a recommendation to a specific organisation or person arguably invites organisations to ignore recommendations. Organisations can argue that the recommendation was not directed at them and therefore does not require any action which, in turn, limits the effectiveness and preventive potential of recommendations.

The organisations that we interviewed often (52/79) reported that coronial recommendations suggest that coroners fail to understand organisations’ roles and functions. An independent crown entity explained that some coronial recommendations appear to take a “shotgun approach”, possibly because “they don’t understand our role.”812 Similarly, Medsafe explained that some coronial recommendations are not appropriately targeted, partly because of a lack of understanding about health organisations’ different functions:813

...the Coronial Service don’t necessarily understand the difference, or differentiate between, Medsafe and Pharmac, which is pretty fundamental. They just see the Ministry of Health (MOH) and think that someone there will be responsible for implementing the recommendation. That is a big blind spot. It makes a lot of assumptions about what the role of the MOH is. That is one of the weaknesses. The messages may not be targeted at the right people. An example would be a recommendation that will come to the MOH saying “clinicians should do something’”. The Ministry is not responsible for the behaviour of clinicians. That recommendation would have been better directed at Colleges. So the MOH ends up playing this middle man role because we have to pass that information on. That is ok. But the system is never corrected. We become a convenient post box for coroners. It’s better to direct the recommendation to the right people in the first instance because it makes everyone lift their game. ..The problem is that this actually undermines the credibility of the Coronial Services... It undermines our willingness to implement or to participate Different coroners seem to have

Medsafe’s comments highlight that some coronial recommendations fail to recognise that the Ministry of Health “is not responsible for the behaviour of clinicians.” While Medsafe forwards inappropriately directed coronial recommendations to the correct organisation, they emphasise that this system is flawed and it “undermines the credibility of the Coronial Services”. Although Medsafe is currently operating as a “convenient post box for coroners”, there is a risk that they will become a “disinterested post box”, in keeping with findings from Australian research.814

As Medsafe points out, untargeted or inappropriately directed recommendations undermine organisations’ “willingness to implement”. These findings are consistent with Australian research which found that the “more targeted and specific a recommendation, the more likely it was to be implemented.”815

Whereas some coroners make the final decision about to whom to direct recommendations, others leave the decision to their coordinators. Some coroners direct a recommendation to a specific organisation, but the coordinators will identify the appropriate person within that organisation. Sometimes “minimal research to determine the agency” responsible will be required.816 However, targeting recommendations appropriately can be challenging, particularly given the evolutionary flux of some government organisations. As one coroner explained, organisational changes mean that coroners should spend time ensuring that their recommendations are appropriately targeted:817

If you can see that something has been an issue for a long time, you can think about what else could be done, and check whether the recommendations were made to the right organisation. Recommendations need to be made to an organisation that can actually do something about it. You really have to target the recommendation to the most appropriate person who can do something about it. Sometimes I have seen that a recommendation has gone to an organisation, but there is now a new organisation that might be able to do something about the recommendation.

As we have outlined in this chapter, coronial recommendations have an extensive history. While there have been improvements in the quality of coronial recommendations, some historical problems, such as untargeted recommendations, persist.

While the Recommendations Recap contains summaries of recommendations, the CSNZ provides limited public descriptive statistics about the frequency and nature of coronial recommendations. Subject to the availability of resources, it would be useful for the CSNZ to produce reports modelled on jurisdictions such as Ontario, Canada and Victoria, Australia in which descriptive statistics about coronial investigations, recommendations and comments are compiled.

Our study aimed to assess accurately the number and nature of recommendations over a five year period. An important research observation is that the difficulty of accessing full coroners’ findings hinders researchers from undertaking this type of work. Given these difficulties, an important contribution of this study was quantifying the number of recommendations in our study period.

– 30 June 2012 that resulted in 1,644 recommendations, 1,320 of which were unique recommendations. Two thousand and forty recommendations were sent to recipients. There were 309 recipients of recommendations during the study period.

Seventy two recommendations were untargeted and, unsurprisingly, many recommendations were directed to government organisations. Although there is no standardised structure for coronial recommendations, we found that they are typically shaped according to one of four overarching categories.

In the next chapter, we undertake a qualitative analysis of coroners’ recommendations. In particular, we explore the extent to which coroners’ recommendations are implemented.

Part of me says that generally our recommendations are being implemented. But I think that until you’ve done your analysis, we won’t know for sure. It will be the first time that we will have any sort of handle on the extent that coroners’ recommendations are implemented. I don’t hear why our recommendations are implemented when they are. I don’t often hear why they are not implemented either. Sometimes we will get a blunt letter back saying that the agency has the recommendation, but in polite language, they think that it is daft and they say that the coroners have not seen the broader picture because we have just focused on one particular case...Other than that we don’t hear anything about why recommendations are not implemented. That is, until the same thing happens another time. Then questions get asked like “well what did happen? Coroner X recommended this to you. What did you do? I see 7 other coroners said the same thing and the Department still has not done anything. Why is that?” A classic example of that is prisoners hanging themselves. We asked why nothing had been done and the Department said that they knew the building was going to be demolished so there was not much point doing anything. But in the meantime half a dozen prisoners hanged themselves.818

This is the first NZ study to examine organisations’ responses to, and implementation of, coroners’ recommendations. As the Chief Coroner points out, this research is “the first time that we will have any sort of handle on the extent that coroners’ recommendations are implemented.” Coroners receive limited feedback about organisations’ responses to their recommendations. Apart from occasional “blunt letters”, the extent of implementation of coronial recommendations is suggested when repeat fatalities occur, such as prisoners hanging themselves. Since October 2011, any responses that the CSNZ receives from organisations have been published in Recommendations Recap.819

Exploring responses to coroners’ recommendations is important for several reasons. First, the “practical and policy impact of coroners’ recommendations will

depend upon the extent of their implementation”, which is currently not known.820 Secondly, agencies ignoring coronial recommendations have been the subject of considerable criticism. Thirdly, commentary about the coronial jurisdiction has focused on organisational responses. The most prevalent concern is that coroners’ recommendations are ineffective because the organisations to which they are directed ignore them. As one commentator put it, coroners’ recommendations are “cast adrift with no distress beacon and a sleepy coastguard, into a sea of uncertainty.”821

This concern has been voiced in public inquiries in Australia, England and NZ,822 the scholarly literature,823 by coroners,824 families825 and the media.826 Journalists who interviewed us at the start of this research were adamant that few, if any, coronial recommendations are implemented, despite our argument that we did not yet have the data to confirm or deny their assertions.827 The substantial commentary about responses to coroners’ recommendations is largely speculative, contradictory and based on “experience”.828 For example, two eminent coronial law scholars claim that it is rare for recommendations to be “ignored or snubbed” by

agencies because of “media and political pressure.”829 In the same textbook, however, the authors lament the limited implementation of coronial recommendations, claiming that “most recommendations by coroners make their way into a void that relieves those to whom the recommendations were directed of responsibility to be responsive.”830

Despite this abundant speculative commentary on coroners’ recommendation powers and organisational responses to coroners, there is a paucity of empirical research on the topic.831 A sociologist was one of the first researchers to trace the “fate of coronial recommendations.”832 The research concerned the early 1990s Australian controversy about the deaths of children which were caused by Mistral fans which overheated, ignited fires and killed the children. The research included analysis of documents from the coronial investigation and interviews with interested parties. It found a relatively high rate of implementation when the coroner endorsed remedial action already being undertaken by companies: 17/23 coroners’ recommendations fully or partially implemented. By contrast, the uptake of recommendations was lower for “coroner initiated” recommendations: 8/26 coroners’ recommendations were fully or partially implemented.833

In 2006, Queensland undertook a review of organisational responses, focusing on recommendations made to government agencies (hereafter ‘the Queensland study’). The review found a relatively high rate of implementation (68% fully or partially implemented).834 However, the review did not distinguish between action taken before or after recommendations were issued. The study found that the main reasons for non-implementation of coroners’ recommendations were that they were too costly, inappropriate or unrealistic, or not within the organisation’s power to implement.

831 The three main empirical projects on responses to coroners’ recommendations are: Sutherland and others, above n 22; Queensland Ombudsman, above n 39; Watterson, Brown and McKenzie, above n 29.

In 2008, Watterson et al sent letters to several hundred organisations located in every Australian jurisdiction except Queensland, following their receipt of coroners’ recommendations, to inquire how they had responded (hereafter ‘the Watterson et al study’).835 The researchers found that the proportion of coronial recommendations implemented varied across jurisdictions as follows:836

The researchers classified a large proportion of organisational responses as unknown (18% nationally). Key aspects of Watterson et al’s methodology were not reported, including the number and type organisations surveyed and the way in which determinations were made about implementation of coronial recommendations.

In her 2011 thesis about the determinants of coroners’ recommendations in Victoria, Australia, Bugeja found that of the 380 organisations sent coroners’ recommendations during her five year study period, 44 (11.6%) responded. Of the 1,278 recommendations sent to organisations, responses were received for 144 (11.3%).837

The most recent study was published in 2014 by The University of Melbourne’s public health law group (hereafter ‘the Sutherland et al study’), who surveyed 90 organisations that had received coroners’ recommendations over a 33 month period.838 The researchers asked recipient organisations what action, if any, they took, and what factors influenced their decision. The study found that a third of coroners’ recommendations were implemented by the organisations to which they were directed. In contrast to the Queensland study, the Sutherland et al project distinguished between action taken before and after recommendations were issued, which is a distinction that we adopt in this NZ study. The researchers also distinguished between ‘rejected’ recommendations and ‘supplanted’ recommendations; a distinction that we adopt. ‘Supplanted’ recommendations are

those which were not implemented because the organisation had already taken remedial action. As the authors emphasise “supplanted recommendations focus attention on the adequacy of consultation between coroners and affected organisation and the length of time it takes for recommendations to be issued.”839

Recognised limitations of the Sutherland et al study include: 1) acceptance levels and attitudes among recipient organisations that did not respond to the survey may have different from those of respondents and; 2) a population-based survey with close-ended responses has limited scope for probing the nature of, and motivations for, organisational behaviour.840

This NZ study shares the first limitation of the Sutherland et al study. We sent recruitment letters to all 232 organisations that received coroners’ recommendations during our 5 year study period, but only 79 agreed to be interviewed. While 79 interviews with organisations is a significant sample, it is possible that those organisations who did not agree to be interviewed respond differently to coroners’ recommendations. Despite this limitation, our study makes an important contribution to the literature. Unlike the Sutherland et al study, our research provides an in-depth qualitative study of action taken and views held within recipient organisations, and coroners’ views, which, as Sutherland et al highlight, “would be a valuable complement to our findings.”841

Like the previous empirical studies, our main goal was to shed light on what, if any, action organisations had taken in response to coroners’ recommendations. We were also interested in organisations’ views about the recommendations they had received, and the response process.

Direct comparisons between these studies and our research will not be possible because of the different research methods applied and variations in coronial legislation. Importantly, the Victorian Coroners Act includes a mandatory response regime which means that the Sutherland et al results may report a “best case scenario.”842

Despite journalists’ insistence on categorising organisations’ responses to coronial recommendations as either ‘implemented’/’accepted’ or

‘rejected’/’ignored’, this study (like the three previous empirical projects) found that this reductive binary is not applicable. In the Watterson study, organisations’ responses were categorised as:843

The Sutherland et al categorisation of organisations’ responses is as follows:844

We prefer this categorisation because our research found that ‘during the coronial inquiry’ is pivotal to organisations’ responses to, and implementation of, coroners’ recommendations. We also found that supplanted recommendations were an important category.

This chapter is organised according to this categorisation of responses to coroners’ recommendations. In the first section, we discuss the ‘during the coronial inquiry’ phase. Next, we analyse responses to recommendations. We focus on supplanted recommendations because this was the main reason for rejection of recommendations. In the next section, we discuss the other reasons that organisations reject coroners’ recommendations. Finally, we explore the main action

843 Watterson, Brown and McKenzie, above n 29, at 9. 844 Sutherland and others, above n 22, at 732.

that organisations take for recommendations that are accepted/implemented or partially implemented.

In contrast to media speculation that all, or almost all, coroners’ recommendations are rejected, our research found that organisations’ responses are more nuanced. While 20% (86/426) of the recommendations in our sample were rejected, the number of implemented/accepted recommendations (133/426, 31%) is greater than some commentators might expect, and almost half (207/426, 49%) were supplanted (i.e. organisations had already taken remedial and preventive action). In addition, all organisations reported that they “consider coroners’ recommendations and take them seriously.”846 None of the organisations that we interviewed reported that they ignore coroners’ recommendations. In addition, organisations’ reasons for rejecting coroners’ recommendations did not always accord with those purported by the media.

While organisations reported that a strength of the coronial jurisdiction is the independence of the inquiries, they also emphasised the importance of coroners consulting with them during the inquiry. Organisations did not believe that consultation with them would compromise judicial independence. Instead, they felt that coroners could consult and maintain their independence because parties’ views could be considered, but rejected, if necessary. For instance, Pharmac described their understanding as follows:847

We know that they make independent recommendations. We are not trying to influence them to change their decision. We are just saying that we would like to be consulted. We would like to be given an opportunity to comment before the recommendation and adverse comment is made.

Similarly, a government organisation stated that they “would be happy to advise the coroner, but [they] would not be happy if the coroner thought that [they] were telling him or her what to do.”848

846 For example, Electricity Engineers’ Association, above n 2. 847 Interview with Pharmac (Jennifer Moore, 27 November 2012). 848 Interview with GovtOrg08 (Jennifer Moore, February 2013).

As discussed earlier in this chapter, this research and the Sutherland et al study found that the ‘during the coronial inquiry’ phase is correlated to the uptake of coroners’ recommendations. Organisations’ responses to coronial recommendations, which are published in Recommendations Recap, highlight that organisations value consultation during the inquiry. For example, in response to coronial recommendations about a death involving a refrigerant which caused a fatal explosion, the Institute of Refrigeration, Heating and Air Conditioning Engineers of NZ (IRHACE) commented that they were “pleased that the Coroner’s findings are congruent with the HVAC+R industry submissions to the inquest.”849 The IRHACE’s response also outlines what action they had taken to implement the coroner’s recommendations.850

One government organisation interviewed for this study noted that if “the recommendation does not indicate that they have considered our evidence, it does make us look at the recommendation differently...it does make us a bit jaded.”851 Likewise, according to Pharmac:852

The coroners are saying that people ignore their recommendations, but they are not necessarily giving people an opportunity to comment before the recommendation is made. If they haven’t given people a fair chance to respond during the inquiry then that may be a reason why people can’t implement their recommendations.

There was a coroner who said recently ‘I wonder why we make recommendations because nobody listens.’ Yeah, well you didn’t listen to anybody, so this is what you reap...I guess they think they have this watchdog role...and yes I understand that, but I think they’ve taken that too much at face value, and actually we can all work collaboratively, and they should be a part of that.

Many health sector organisations (19/26) remarked that the HDC provides interested parties with a preliminary report to comment on before making a final decision and that this approach should be adopted by coroners.854

849 Office of the Chief Coroner of NZ Recommendations Recap - Issue 2 (2012) at 45. 850 At 46.

In the Sutherland et al study, 59% (53/90) of recipient organisations reported having had an opportunity to provide information to the coroner during the investigation.855 Seventy five per cent (40/53) felt their views had been taken into account in formulation of the recommendations.

Forty two per cent (33/79) of the NZ recipient organisations that were interviewed for this research reported having had an opportunity to provide information to the coroner during the investigation. The majority of organisations felt (75/79) that the experience differed depending on coroners’ varying approaches to input from organisations. Organisations also reported that their experience sometimes differed from case to case even when the same coroner presided. For instance, the Midwifery Council remarked that:856

It’s interesting how the coroner consulted with us on the Tairawhiti case, but didn’t consult us on the other case, yet there was an adverse finding against the midwife in that one.

The reported rate of input by NZ organisations is lower than in Victoria, Australia. As we emphasised earlier, a direct comparison between the two studies is not possible. But the NZ findings show that a sizeable proportion of organisations (58%) felt that they were not sufficiently consulted. In Queensland, this percentage is higher. In the Queensland Ombudsman’s 2006 investigation into public sector agencies’ perceptions of whether the coroner provided them with opportunities for input, 69.5% reported that they were not provided with such opportunity.857

These figures are important because, as we discuss in chapter 6, NZ recipient organisations reported that lack of consultation and input during the coronial inquiry was likely to discourage them from responding to, or implementing, the coroners’ recommendations. A government organisation explained that:858

There have been occasions in the past where we have had virtually no opportunity to provide input or comment or to challenge the recommendation. If that happens it is less likely that the recommendation will be implemented. So it’s a lose-lose scenario.

Coroners that engage with organisations about proposed recommendations are more likely to achieve ‘buy-in’, thereby increasing the likelihood that the recommendations will be implemented. In Ontario, Canada, the Coroner’s Office developed an innovative system for encouraging consultation and ‘buy-in’. The Ontario coroners can elect to hold informal conferences with organisations and families. Former Ontario coroner, Dr Young, describes the system as follows:859

When a meeting with an institution goes well, there is frank discussion about the cause of death; the institution outlines where they consider things went wrong and their recommendations to prevent the same thing occurring again; and the institution and the coroner agree on the measures to overcome a similar death occurring.

In the Ontario system, once the coroner and organisation agree on preventive action, the recommendations are made available to the deceased’s family and public.860 If similar deaths occur after an agreement, the coroner can hold an inquest at which the organisation will be required to explain why deaths were not prevented. Although informal meetings are private, the agreement is made public. Malbon argues that the Ontario model demonstrates an understanding of organisational theory, which is essential if coroners wish to increase the uptake of their recommendations.861

In NZ, all organisations interviewed, apart from three, appreciated having the opportunity to provide information to the coroner during the investigation. The organisations that preferred not to provide information stated that to do so would be too resource intensive for small organisations.862

The organisations that prefer enhanced engagement argued that it does not have to involve time consuming, extensive consultation. Many organisations highlighted the value of brief telephone calls to seek feedback.863 However, a few coroners questioned whether it is appropriate for coroners to adopt such a practice.864

862 Interview with Law Commission (Jennifer Moore, 13 February 2013); Interview with HealthCareOrganisation03 (Jennifer Moore, 5 February 2013); Interview with Medsafe (Jennifer Moore, 8 February 2013).

863 For example, Interview with GovtOrg12 (Jennifer Moore, 4 February 2013); Interview with St John (Jennifer Moore, 14 February 2013).

For those organisations that would like enhanced engagement with coroners, they felt that consultation is important because they have access to information that is not readily available to coroners. Such information may inform, and possibly change, coroners’ formulation of recommendations. DHBs frequently commented that the delays in issuing coronial recommendations mean that remedial processes have already been put in place. If coroners do not consult with organisations, they risk issuing “superfluous” recommendations that do not take account of changes to clinical practice.865

Organisations that were supportive of consultation during coronial inquiries also pointed out that coroners should engage with organisations because agencies are able to undertake regulatory assessments.866 Organisations have “access to all sorts of information that could be useful to the coroners and that they would not be able to access any other way.”867

Organisations also emphasised that coroners should access a range of views. However, consultation with interested parties and organisations should not become a “trial, a campaign, a roving commission or a public platform for an interest group.”868 Consultation with organisations should identify people to drive the implementation of the recommended countermeasures. Research demonstrates that consultation with stakeholders is an important factor in the successful translation of research into practice.869 Coroners need to maintain their independence. The consultation with organisations could be undertaken by coroners and/or researchers and specialists assisting with death investigations. In Victoria, Australia, the CPU undertakes consultation with stakeholders.

In 2006, the Queensland Ombudsman recommended amendment to the Coroners Act 2003 (QLD) to require that sufficient notice be given to, and input sought from, interested parties, particularly about preventive issues.870 The QLD

865 Interview with Greg Brogden (Canterbury DHB) (Jennifer Moore, 21 January 2013). 866 GovtOrg06, above n 858.

review of coronial recommendations had found that the coronial system does not ensure that relevant public sector agencies are sufficiently informed of the issues to be canvassed at coronial inquiries to enable them to provide appropriate input.871

In NZ, many organisations’ complaints echoed the experiences in Queensland. For example, one healthcare organisation described their experience as follows:872

We knew very little about the inquest until a week before it happened and we were asked if we could provide our local Southland manager to give a copy of the support plan...I would like some advance letters of the issues so I could actually research and address them....So I suppose my greatest concern here is that we need more involvement during the investigative stages of the coronial process, because that's when most of the work is actually done......consult earlier and allow sufficient time as well for the organisation to do the work

Two thirds of the organisations interviewed (52/79) suggested amendment of the Coroners Act 2006 to require coroners to consult with organisation about proposed recommendations. For example, a healthcare organisation explained that:873

Although coroners have to provide information where there is an adverse comment, there does not seem to be any requirement for them to provide a draft copy of their recommendations to an organisation that may be asked to implement a recommendation. It would be useful – I would have thought – to do so because by providing that opportunity, the coroner may be presented with further information that they may not otherwise have had the opportunity to consider and that may make a better quality decision. So we have to ask why there isn’t that obligation in statute. The coroner could end up with a better quality decision by consulting and that is the name of the game. We want coroners to be able to consider all of the information so that we ensure the recommendations have a level of rigour and balance that ensures that there will be limited opportunity to debate whether the course of action proposed is an appropriate one.

In keeping with this empirical finding, section 57B of the Coroners Amendment Bill 2014 provides that coroners must notify certain persons before

making a recommendation or comment, and give those persons a reasonable time to comment on the proposed recommendation or comment.

Many NZ coroners interviewed (9/15) seek feedback from organisations about proposed recommendations without a statutory requirement to do so. There is variable practice across coroners about the method for seeking such feedback.874 Several coroners noted that the “Chief Coroner does not like the idea of sending out findings in draft form,” but that they nevertheless “frequently send recommendations out for information and comment.” Coroner Atwood explained that consultation achieves “buy-in”, avoids mistakes, and sometimes leads to redrafting of proposed recommendations:875

In the McNelis case I sent the recommendations in provisional form and got useful feedback and made some changes. You get buy-in. And you also avoid making mistakes and getting it so that someone says publicly “a coroner has recommended that, but we are not doing it”...In the McNelis case, I made recommendations based on the evidence and they were given to Landcorp in provisional form and adjusted as a result of their input.

It’s not good if an organisation suddenly gets faced with a recommendation that they have no knowledge of, because they might have had very valuable input which would have enhanced the utility of the recommendation...It would not be unhelpful if the coroner sent the provisional form of the recommendations to the body concerned. But I don’t do that because there is no need. There is no need because in inquest I tease this all out with the experts. I ask whether there is a need for a recommendation, what they think of the proposed recommendation. If they all agree, that is the end of the matter. If it’s a chambers finding, then the recommendations should be sent out, unless there could be no argument because the recommendation is so obvious. But if the recommendations are contentious then you should send them out for comment. I agree that the sensible course would be to send the recommendations to the recipient and ask the organisations for responses. The law doesn’t require it, but good practice dictates it.

If a recommendation contains adverse comment it is a statutory requirement to notify the parties. Even if there is doubt about whether a comment is adverse, a consultative approach should be preferred.877 The entire draft findings (including the adverse comment and recommendation) should be provided to the interested parties. Coroner Atwood, and a small number of other coroners, consider that the entire findings (rather than the adverse comment/recommendation alone) should be disclosed to interested parties. This practice provides context and conveys meaning.

This process may delay the coronial inquiry. The ministerial review is focused on reducing delays in the coronial system.878 Our suggestion, although possibly less efficient, is consistent with natural justice and may ensure that comments (adverse or not) are more rigorous. Our suggested approach is also consistent with Winkelmann J’s comment in Carroll v Coroner’s Court that “although the provision of draft findings is not a statutory requirement”, she was “satisfied that would have been the appropriate step in this case”.879 As one coroner explained, it is “high risk” not to notify and consult, even if one is unsure about whether a comment is adverse.880

By contrast, several coroners argued that only the adverse comment (and occasionally other selected material) should be disclosed to parties. These coroners assert that natural justice, and the specific requirements of the Act, can be achieved using this method. In addition, this approach avoids “the real danger that circulating the entire provisional decision, results in adverse comment about person A, and which adverse comment might be subsequently adjusted, being sent to person B.”881

Several coroners (5/15) provided examples of cases where they did not consult. For example, Coroner Stewart described the following case:882

Recently I made a recommendation about driveway deaths in children. Housing NZ is over-represented in driveway deaths. There has been a lot of research done on how to prevent children dying on driveways. The Child and Youth Mortality Review Committee (CYMRC) has done reports on this. I had read the report and I had also read the articles about how we should separate play areas from driveways. So I endorsed the findings of the CYMRC. I recommended

879 Carroll & Woodhouse v Coroner’s Court & Police [2013] NZHC 906 (HC) at 73. 880 Interview with Coroner Fitzpatrick (Jennifer Moore, 25 September 2012).

that Housing NZ give consideration to their shared driveways. I didn’t give Housing NZ the opportunity to comment on that. It hit the media. The Chief got a letter asking for the opportunity to comment on it. Fair process is important. But we may be opening the floodgates giving everyone an opportunity to comment. I also think that they had already heard the recommendation. It was just from someone else. The CYMRC had already made the recommendation. I was simply endorsing it.

Coroner Stewart’s concern about opening the floodgates if there is consultation with too many people was explored in Minister Borrow’s review of the Coroners Act 2006. The review proposes amending the Coroners Act 2006 by inserting a definition of “interested parties” in the Act to refer to persons required to be notified under sections 23 and 81 of the Act.883 A key challenge facing the government will be deciding how to draft the provision, including who should be listed in the definition “interested parties”. Coroners who participated in the study explained that deciding which people and organisations have an interest in the death can present challenges. Coroners “can’t encapsulate everyone” in an inquiry.884 The “floodgates” may be opened to a potentially unmanageable number if too many people and organisations are deemed as having an interest in a death.885 Determining those who have an interest can be tantamount to deciphering “how long is a piece of string?”886

The Coroners Act 2006 states that the coroner must give notice of the date, time and place of an inquest to the family, family representative and certain “other people or organisations the coroner considers have an interest in the death”.887 The Coroners Act 1988 provides some guidance. Under that legislation, those considered to have an interest in the death and who were entitled to notice were:888

“Interested parties” could include any of the people or organisations who, under the 1988 legislation, were entitled to receive notice of the inquest. This could also potentially include others not specified in the 1988 Act. The phrase has been given a liberal interpretation.889 Public interest organisations such as the Human Rights Commission and legal aid bodies are increasingly granted standing.890 A person will typically be considered to have an interest if there is a reasonable chance that the coroner may make an adverse comment about him or her.891

The 2006 provision provides coroners with discretion to notify those who they consider to have an interest in the death. In exercising their discretion, coroners: balance the need to avoid repetition and unduly prolonged processes against the degree of knowledge or expertise demonstrated by the applicant for standing and the degree to which they and their counsel can assist by providing a point of view that might not otherwise emerge in the course of the inquest.

Given that standing is granted at coroners’ discretion, it is perhaps unsurprising that decision-making varies between coroners.892 The majority of coroners (12/15) were concerned about granting a burdensome number of people and organisations standing. Coroners who took an inclusive approach, preferring to grant standing where possible, did so primarily because of the perception that rigorous, evidence-based findings were more likely to be generated. The Chief Coroner described the decision-making as follows:893

A classic example from the other day was where the College of Midwives said “we are aggrieved that the coroner has made comments about midwifery practice and we have only learnt about them afterwards.” The trouble was that the midwife concerned was not a member of the College. They were not party to it. But we have given that feedback to the coroner and we will cover it in training. When we are looking at who we might tell about an upcoming

inquest, we think about who might have an interest. That may well be the relevant professional association or Royal College, who won’t necessarily be able to give evidence, but who will be impacted by what you are saying and they may think “that is not fair. There’s another side to this and we weren’t given an opportunity to comment”.

The interview with the College of Midwives confirmed the Chief Coroner’s comments.894 Other agencies, such as Pharmac, also expressed concern about their exclusion from coronial inquiries.895 According to Coroner Atwood, “sometimes those interest groups escape through the middle. Child, Youth and Family Services is another one”.896 The overall tenor of interviews with organisations was that they would prefer an approach whereby they are consulted, even if there is doubt about whether the comment is adverse. Given the organisations’ views, the coroners’ fear of opening the floodgates to an onerous number of interested parties may not be unwarranted.

The data has encouraged several coroners that we interviewed to change their practice. For example, Coroner Dymond commented that:897

One of the things I’m taking from your visit to me is that I should consult more with people to whom I’m making recommendations, and...after being beaten up by the Chief Medical Officer, I don’t think that I’ll make any more to the hospital board without talking to them first.

Several participants suggested additional changes to coronial practice. For example, a lawyer argued that all coroners should ensure that “more evidence is directed to the recommendation component of the inquiry.”898 Organisations stressed that coroners should ensure that appropriate individuals are consulted. Large government organisations emphasised that a senior representative who can provide a national perspective should be consulted.899 The consultation must be genuine.900 Many organisations (49/79)

offered to provide presentations or information to the CSNZ to assist coroners to understand their roles and organisational structures, which they believed will improve coroners’ recommendations. As we highlight later in this chapter, failure to appreciate organisations’ roles is one reason that coroners’ recommendations are rejected.

A few organisations (4/79) explained that they have proactively contacted coroners to offer information during inquiries. For instance, Pharmac described their approach as follows:901

We were aware from media discussion that there is potential for the coroner to instigate an investigation into a particular medicine – dabigatran. That’s an anti-coagulant. We changed the funding from warfarin to dabigatran. There was a lot of media coverage about that. When we heard that the coroner might open an investigation about that, we contacted the coroner and said that we would like to participate in the investigation. We said that if the coroner had questions, he was welcome to come to us. The Chief Coroner contacted us and sought information from us. We decided to proactively contact the coroner because of our experiences with the other two recommendations. In those cases, recommendations had been made, but we had not been consulted or involved. We wanted to get in prior to recommendations being made...But we can only do that when someone, like the media, has published. Otherwise we wouldn’t know. Generally with suicide you wouldn’t see the method of suicide so you wouldn’t know that there was a medicine component to it. If we find out about a death or potential inquiry through the media, it might be hard for us to know which coroner to contact.

Pharmac’s account spotlights that this approach is not ideal because organisations may not be aware of coronial investigations until after the matter has been closed. On that occasion, Pharmac had a positive engagement with the CSNZ.

Several organisations discussed positive consultation experiences that they have had with coroners and explained how those experiences encouraged them to implement the coronial recommendations. Organisations mentioned that they particularly appreciate site visits from coroners,902

telephone calls,903 and formal meetings with the Chief Coroner to discuss emerging trends and patterns in coronial findings.904

Since October 2011, the CSNZ Recommendations Recaps publications include summaries of responses received from organisations. The CSNZ does not produce annual reports with statistics about frequencies of NZ coroners’ recommendations or responses received.

By contrast, several coronial jurisdictions overseas produce reports about organisations’ responses to coroners’ recommendations. For example, the UK Ministry of Justice produces summaries of reports and responses under Rule 43 of the Coroners Rules.905 The annual reports for the Coroner’s Court in Victoria, Australia include tables with the total number of recommendations and responses received during the reporting period.906

Similarly, the Office of the Chief Coroner for Ontario, Canada produces reports with statistics on the frequency of inquests, resulting recommendations, responses from organisations, and the extent of implementation. For instance, the 2010 report documents that 282 recommendations were issued, 83% of organisations responded. In Ontario, organisations are under no legal obligation to respond to, or implement, coroners’ recommendations. However, the 2010 report notes that most organisations “recognise the valuable and important contribution of jury-suggested recommendations and as a result, the majority of recommendations receive some manner of formal acknowledgment or response. The high response rate to recommendations is a credit to the integrity and effectiveness of the inquest jury

process.”907 The Office of the Chief Coroner for Ontario reports also document that 9% of recommendations “had been implemented”, 5% “will be implemented”, 4% “had alternates implemented”, 1% “will have alternates implemented”, and 13% were “under consideration”.908

In Australia, the Queensland Attorney General produces annual reports which outline the government’s responses to coroners’ recommendations which were directed to government organisations in the reporting year.909 In NSW, a Memorandum issued by the Department of Premier and Cabinet sets out the process for responding to coroners’ recommendations directed at Ministers and NSW government agencies.910 The purpose of the Memorandum is to ensure that there is a consistent process across government for responding to coronial recommendations, and that there is increased accountability and transparency in responding to such recommendations. The Memorandum states that the organisation has 21 days to acknowledge receipt of the recommendation and, if necessary, refer the recommendation to the appropriate agency.911 Within six months of receiving a coronial recommendation, a Minister or NSW government agency should write to the Attorney General outlining any action being taken to implement the recommendation.912 The Memorandum states that the Attorney General will maintain a record of all coronial recommendations made, together with the responses received from Ministers and NSW government agencies.913

The Western Australian Law Reform Commission undertook a review of coronial recommendations for WA inquests performed in 2007.914 In that year there were 88 recommendations issued. The review found that medical care and mental health recommendations had a high rate of implementation.915 The Department of Corrective Services and Police also provided a high level of responsiveness to recommendations. Recommendations directed to private entities received poor or no responses.916

In NZ, half of the organisations that we interviewed (39/79) have developed formal systems for cataloguing and responding to coroners’ recommendations. For instance, one government organisation described their system:917

We set up a system so when a recommendation comes in, we have one person who records it and keeps a full database of all the coroners’ recommendations and if there’s a recommendation in there directed to the Ministry of Transport then we have a special spreadsheet and we put a coversheet on it and we’ll send that to the relevant manager in the Ministry and we put a 20 day turn around on that so that we can get back to the coroners or that on any of their recommendations. We will always respond to a recommendation from a coroner.

As we explained in chapters 2 and 4, 79 of the 232 NZ organisations that were sent coroners’ recommendations in our study period agreed to be interviewed. One thousand three hundred and twenty unique recommendations were directed to the 232 organisations. Four hundred and twenty six recommendations were directed to the 79 organisations that we interviewed for this study.

Prior to every interview, we re-read the recommendations that were directed to that organisation. During interviews, we asked organisations to discuss the recommendations that they had received, whether they had responded to those recommendations, and the action, if any, that they had taken. All organisations reported that they give coroners’ recommendations serious consideration.

Organisations reported that a total of 31% (133/426) of the recommendations were accepted and implemented (fully or partially implemented). A total of 20% (86/426) of the recommendations were rejected. For 49% (207/426), the

914 Tatum L Hands with Law Reform Commission of Western Australia Review of Coronial Practice in Western Australia: Background Paper Project 100 (2010) at 21–22.

recommendations were supplanted i.e. remedial or preventive action had already been taken. These figures are based on organisations’ self-reported response and implementation rates.

In the Sutherland et al research, 36% (59/164) of the recommendations were supplanted, 37% were implemented and 27% were rejected.918 As we stated earlier in this chapter, a direct comparison between the NZ study and Sutherland research is not possible, but it is noteworthy that in both studies significant numbers of recommendations were supplanted and, in NZ, almost half the recommendations were supplanted. This finding suggests that this is an area for improvement. As we explained in the previous section of this chapter, the number of supplanted recommendations could be reduced by enhanced engagement with organisations and interested parties during the coronial inquiry. In the next section we discuss supplanted recommendations in detail.

As we outlined earlier in this chapter, almost half (207/426, 49%) of the coroners’ recommendations in our study period were supplanted. Recommendations were supplanted because organisations had already taken remedial action. There were more supplanted (49%) than rejected (20%) coronial recommendations in our study period.

Organisations reported that the main reason for supplanted recommendations was internal investigations into the death, which were undertaken by the recipient organisations. The delay in issuing coroners’ recommendations meant that their internal investigations, and remedial action, were completed before the coroners’ recommendations were handed down. Likewise, in the Sutherland et al study, in nearly half of supplanted recommendations, an investigation into the death by the recipient organisation was cited as the reason for having taken the action prior to the coroner’s recommendation.919

Supplanted recommendations highlight the length of time it takes for recommendations to be issued.The potential for these delays to undermine the

effectiveness of coroners’ recommendation powers is well recognised.920 It is hoped that any vital preventive action will be implemented expeditiously.

Health sector organisations were more likely to supplant coronial recommendations because of the internal reviews that are undertaken shortly after adverse events.921 A lawyer captured other participants’ sentiments as follows:922

Timing for recommendations is important. Two years after the event, any changes have usually happened. Recommendations, if you want to call them that, are simply endorsing changes that have already been put in place. The internal root cause analysis will make recommendations for changes. The coroners come to it much later down the track.

Organisations frequently stated that coroners’ recommendations often “endorse” or “formalise”923 the remedial and preventive action that was taken after the organisation’s internal review. In the Sutherland et al study, the researchers wondered why coroners issue recommendations for action that has already been undertaken.924 They conclude that there are three explanations: 1) coroners do not undertake adequate consultation and therefore have incomplete information to inform recommendations; 2) organisations act in anticipation of coronial findings and; 3) delays in the coronial process.925 The NZ findings are consistent with the first and third explanations.

NZ organisations also pointed out that coroners sometimes endorse the internal reviews and also issue recommendations. The following description by a DHB reflects other organisations’ experiences:926

I guess the thing that we find is that we will often have done our own review first. So if we’ve got a significant event, we’d have often done what used to be called a sentinel event review, now called a root cause analysis that would have identified a number of steps. And often we’ll find that coroners recognise ‘Okay, we’ve had these guys look at it

themselves, they’ve spent a bit of time, they’ve made some changes or are implementing some changes,’ and they will often simply say ‘We commend that, and we recommend that the DHB implement those recommendations that they’ve adopted themselves, or identified themselves.’ From time to time there will be additional recommendations on top of that, or we might not have done a review ourselves for whatever reason, and the coroner will identify some issues. I think one of the first I had was back in 2002. A man who had fallen in the shower, an elderly man, had a subdural haemorrhage and died from that. We’d done some steps, but the coroner had identified environmental issues, and non-slip flooring, and that we needed to speed up our programme. We picked that up and ran with that. But in the majority of cases, the coroners are going to say ‘We’ll adopt the DHB’s recommendations.’ And I think that’s what most DHBs would hopefully find.

Organisations outside the health sector also reported that they undertake their own internal investigations which are frequently endorsed by coroners.927 For example, many prevention and safety focused organisations, such as Surf Life Saving NZ (SLNZ), are proactive and undertake their own risk assessments of locations before fatalities occur.928 They analyse the risk of drownings or injuries and explore ways to reduce those risks.

Similarly, another organisation explained that they continually review safety procedures and undertake internal investigations for all accidentals, even if there are no fatalities:929

We do our own internal investigation and when it is an accident, whether it involves a death or not, we always carry out an investigation. At every race meeting or every event there is somebody there who can fill out an accident investigation report and photograph the scene and the cars concerned and the information comes to us and we look at our rules, particularly our safety rules, around what actually happened in an accident situation. There are risks in motorsport. That’s part of racing. But we do like to put rules in place to avoid future occurrences. The coroners are also interested in avoiding future occurrences. Sometimes we’ve already done our own investigation...We log every accident, and we can see a trend around circuits where there are disproportionate numbers of accidents occurring and also since under the circuit we might have more accidents and that maybe is a result of the surface of the tarmac...We have safety walls and barriers in place. So we're always reviewing safety.

927 For example, GovtOrg06, above n 858; GovtOrg07, above n 193; GovtOrg10, above n 187. 928 Surf Life Saving NZ, above n 189.

Organisations emphasised that it is important for coroners to consult with them about proposed recommendations to avoid “redundant recommendations”, that is, recommendations that suggest work which organisations have already undertaken.930 According to one organisation, “it’s not often when there are new things that the coroner will come up with that we are not already doing.”931 On the one hand, supplanted recommendations highlight the inadequacy of consultation between coroners and organisations.932 On the other hand, supplanted recommendations “imply a shared view of what preventive action ought to have been taken in the aftermath of an unexpected death.”933 As the NZ participants’ comments demonstrate, often coroners and organisations agree on the appropriate remedial action. In the next section, we discuss examples where organisations and coroners do not agree on the remedial action that is required to prevent further fatalities.

The most frequent complaint in the literature is that coronial recommendations are ineffective because the organisations to which they are directed ignore or reject them. For example, Australian research has focused on the repeated coronial recommendations about aboriginal deaths in custody which have not been implemented.934

As we stated earlier in this chapter, 86/426 (20%) of coroners’ recommendations in our study period were rejected. Our finding resonates with overseas research.935 Organisations reported that the main reasons for rejection were that the recommendations were:

934 Jennifer Corrin and Heather Douglas “Another Aboriginal Death in Custody: Uneasy Alliances and Tensions in the Mulrunji Case” (2008) 28 Legal Studies 531 at 545.

935 Malbon, above n 45; Watterson, Brown and McKenzie, above n 29; Sutherland and others, above n 22.

These reasons are consistent with previous research. For example, Sutherland et al found that the leading reasons for rejection were that the recommendation was not logistically viable, or relevant to the recipient organisation’s business.936 The NZ organisations cited additional reasons for rejection that have not been explored in previous research. For example, organisations reported that they are less likely to implement coronial recommendations that contain adverse comment.

Rejected recommendations arguably raise questions about the quality of recommendations and/or inappropriate organisational responses to sound recommendations. As Sutherland et al argue, “the true picture is likely to be more complicated than ascribing ‘fault’ to one side or the other. Discord between what coroners believe organisations should do to protect health and safety and what organisations can, or are willing to do may be attributable to a misalignment of perspectives.”937 Organisations typically take a private perspective on the cost- effectiveness of preventive measures. Research has not evaluated the economic viability of coroners’ recommendations. However, it is well-known that the cost of implementation is a key reason for the rejection of coronial recommendations.938 Without such information, it is difficult to assess the extent to which rejection of coronial recommendations is due to low quality recommendations as opposed to economically unviable recommendations or poor choices by recipient organisatons.939

Empirical research about the implementation of Australian coroners’ recommendations has found that in a significant number of cases, the recipient organisations had not received copies of the recommendations that were directed to them and, in some instances, were unaware of such recommendations.940

In NZ, 14/79 (18%) organisations interviewed reported that they were unaware of and/or had never received recommendations directed to them. One organisation had not received any recommendations directed to them.941 One recommendation had been directed to this organisation in 2011:942

That they review their patient information literature on Abdominal Aortic Aneurysm, to consider whether adequate and clear information is given regarding the risk of Deep Vein Thrombosis/pulmonary thromboembolism, and the steps that need to be taken to manage that risk. The literature review should also consider whether to outline within the brochures, the specific signs and symptoms of deep vein thrombosis/pulmonary thromboembolism and what steps (for example, medical review) should be taken in the event that such symptoms are experienced.

This recommendation was directed to the Auckland District Health Board’s Vascular Services, and the Royal Australasian College of Surgeons. Therefore, it is possible that the CSNZ administrative staff only sent the coroner’s findings to the Auckland DHB. Alternatively, the coroner’s finding may have been misplaced upon its arrival at the Royal Australasian College of Surgeons.

The Chief Coroner is aware that occasionally there have been “process issues” within the CSNZ:943

I accept that we have let ourselves down in the past by not targeting properly or not even sending them. That was a process issue at our end because our staff did not understand that it was their responsibility. Sometimes we uncovered that Coroner X made a recommendation, and that coroner got a response from the agency, but that Coroner X never passed that information on to me. Again, we have been working on that...We now say that coroners must send out recommendations to the Research Counsel so that we can post it on the website and put it in the Recap. But also we want coroners to let us know if they get a response from agencies. So there are some gaps there that we are working on.

More often, organisations had received a few, but not all, of the recommendations directed to them. Our recently published article in the NZ Medical Journal included a table with the coroners’ recommendations directed to health sector organisations. That article prompted several organisations to email us requesting copies of recommendations that they had not received. For example, the Health Quality and Safety Commission’s (HQSC) email stated:944

I noted in your [NZ Medical Journal] article that it was highlighted that HQSC has received coroner’s recommendations, yet we have not been aware of any recommendations directed to us. We are highly motivated to implement any recommendations that we can.

On 21st July 2014, we emailed all the coroners’ recommendations that were directed to the HQSC to them. We also forwarded the correspondence to the Chief Coroner who replied:945

Important to note that we were referred to the relevant MRC (Mortality Review Committee) who come under HQSC now but the lack of cross communication appears to be at their end, not ours.

The research findings demonstrate that the administrative processing systems for coroners’ recommendations could be improved by both the CSNZ and some organisations.

Many organisations (53/79) reported that they rejected coroners’ recommendations because they were not directed to the correct organisation. For instance, recommendations have been directed to the Ministry of Transport that should have gone to the NZ Transport Agency, and recommendations have been directed to the Midwifery Council when the NZ College of Midwives should have been the recipient.946

Several responses from organisations which are recorded in the Recommendations Recap highlight the issue. For example, a response from the Ministry of Youth Development (MYD) stated that a 2011 coroner’s recommendation “largely falls outside of MYD’s responsibility, and would be more usefully addressed to other agencies.”947 Similarly, the Families Commission referred a coroner’s recommendation to the Ministry for Social Development (MSD) because the MSD has “oversight of matters relating to the protection of children, and preventative education of parents, family and whanau” and was, therefore, the most appropriate organisation at which to direct the recommendation.948

This is a different problem from untargeted recommendations, which we discussed in chapter 4. Untargeted recommendations do not specify an identifiable organisation. Incorrectly targeted recommendations do identify a specific organisation, but the organisation is inappropriate. All organisations reported that they are unlikely to implement untargeted or incorrectly targeted recommendations. Organisations did not appreciate being a “convenient PO Box” for misdirected coroners’ recommendations.949 The “credibility” of the CSNZ was called into question by organisations because “if a coroner is directing the recommendation to the wrong place, then one wonders how valid the actual recommendation is.”950

Although identifying which organisation to direct an adverse comment and/or recommendation to will often be easy, more than half the interviewed organisations commented that they had received adverse comments or recommendations that should not have been directed to their organisation. For instance, one health care sector organisation received a coroner’s recommendation that could not be implemented because it was not directed to the correct organisation:951

The comments weren’t really within our ambit. We did have discussions with the College. They agreed with us. We were going to jointly refer the coroners on to the Ministry of Health who we felt were best placed to deal with the recommendations ... None of the recommendations were things that we could pick up ... If the coroner

951 Interview with HealthCareOrganisation377 (Jennifer Moore, 13 December 2012).

had consulted with us, we would have told them that we weren’t the appropriate organisation.

The organisation would have preferred consultation. Engagement may have ensured that the coroner’s comment was directed to the appropriate organisation which, in turn, increases the likelihood that the comment will be implemented. Although the organisation is not required to re-direct the coroner’s comment, it did so. Standards New Zealand has also taken the liberty of re-directing coroners’ comments that were incorrectly sent to it. Standards New Zealand faces additional challenges. It described its experiences as follows:952

Every coronial recommendation creates pressure on us to do something. But we have no ability to do so unilaterally ... our policy settings don’t necessarily allow us to. So it’s a bit more complex for us

... A coroner in good faith, and using good judgment, makes a recommendation involving a standard, that standard may or may not be a NZ standard. If it’s a Trans-Tasman standard, it has Trans- Tasman implications. Our ability in NZ to change an Australian-NZ standard is limited because we need to bring our Australian colleagues on board.

When a coroner recommends changes to a standard, Standards New Zealand often has to undertake consultation and engagement with its Australian counterparts and stakeholders. The Ministry of Consumer Affairs described similar experiences. Aspects of the product safety regime might require buy-in from Australia and cannot be changed easily by simply directing a comment to the Ministry.

Another common complaint was that some coroners appear to have little understanding that organisations have different arms – operational and policy. A well-intentioned, but misdirected, coroner’s comment cannot be acted upon if it is received by the wrong arm of the organisation. For instance, Maritime NZ explained that:953

We are not the policy body. So in those cases, we actually draw that to the attention of the coroner by writing to them, or counsel will make that submission on our behalf. We will inform the Ministry as well. We can often see by the questions that the coroner is asking that they are going down a policy not an operational path...Maritime is operational. If you want transport policy, you have to go to the Ministry of Transport.

952 Interview with Standards NZ (Jennifer Moore, 26 October 2012). 953 Interview with Maritime NZ (Jennifer Moore, 19 February 2013).

Coronial comments could be improved by enhancing coroners’ understanding of specific regimes such as standards and product safety and, in general, the “machinery of government”:954

I believe our coroners don’t fully understand the machinery of government ... I’ve talked to the State Services Commission about this too. I’ve advocated for what I call “the map”. The map should be a state sector map: who does what, where are the centres of excellence for certain things, who has the statutory responsibilities to do certain things. It is incredibly confusing, especially with all these restructures and mergers and acronyms. It’s hard enough when you are on The Terrace, let alone when you are a coroner based in Invercargill, to understand which agency is responsible for certain things. The map is a listing of all public sector departments, crown entities with a small descriptor around what legislative and regulatory regimes everyone is responsible for. But even that alone is not really enough. Understanding the interface between agencies is also important; for example, the interface between Standards and Consumer Affairs.

Interviews with organisations confirm Standards New Zealand’s observation. However, the coroners’ relatively new electronic Bench Book does now contain a lot of updated information about organisations.955

Some coroners misunderstand an organisation’s empowering legislation. For example, it was not uncommon for organisations to complain that their empowering legislation does not enable them to make the changes advocated by the coroner.

These problems are not restricted to NZ. Australian research found that 40% of coroners’ recommendations in Victoria involved organisations directing the recommendation to another organisation.956 NZ organisations suggested that CSNZ researchers could investigate the most appropriate organisation to which to direct coronial recommendations.957

In chapter 6, we define ‘evidence’, discuss evidence-based recommendations and coroners’ statutory preventive function in detail. The purpose of this section is to emphasise that the findings highlight that organisations were more likely to reject recommendations that were not evidence-based. In interviews, all coroners

recognised that non-evidence-based recommendations are likely to be rejected. For example, when asked for her view about why organisations reject recommendations,

because they are ridiculous and not based on evidence! If a recommendation is generalised, who is going to implement it. For example, if a Coroner recommends that thou shall chew your food twenty times, who is going to implement that? Who does that get sent to? Or you should hide guns from mentally disabled people. That recommendation is wrong on so many levels.

Organisations reported that recommendations that were not informed by the evidence about effective preventive measures were unlikely to be implemented. For example, the following example from a government organisation captures other organisations’ concerns:959

It was broadly the same picture with the nail gun suicide. The coroner recommended that there should be a licensing scheme so that only people who are registered can hire these things. But the fact that someone is registered is not necessarily going to stop them from taking their own life. The recommendation did not have any regard for the cost that would be involved in setting up a licensing regime...How effective would it be to negate the risks that are involved? Where was the evidence?

Organisations commented that they are likely to reject recommendations if there is evidence from overseas which indicates the proposals would be ineffective. For example, the National Poisons Centre stated that:960

The coroner also recommended that an audio telephone recording system be installed to automatically record and hold the conversation, which we haven't done. We decided not to go down that path, mainly because there are other poison centres overseas which had enormous problems with that.

Consistent with previous research about the implementation of coronial recommendations, these findings reveal that one of the main reasons for the rejection of coronial recommendations is that they are not logistically feasible and/or economically viable. For example, Standards NZ explained that they have been unable to implement some coroners’ recommendations because the logistics of doing so would require amendment of Trans-Tasman standards.961

Many organisations explained that they rejected coroners’ recommendations after undertaking cost-benefit analyses. According to one government organisation:962

There might have been competing policy issues, or it was not sufficiently evidence-based, or we did a cost benefit analysis and it was not feasible. An example is that if a coroner makes a recommendation for people to wear seatbelts on quad bikes, it is difficult because quad bikes are not fitted with suitable equipment. As the regulator, we are talking about overseas manufacturers and a whole raft of inter-agency considerations about safety. There are overseas trade agreements. It becomes complicated. In addition to whether this is a good idea, there are all those other complications.

Similarly, a government organisation described a case where it was not logistically feasible to implement the coroners’ recommendations:963

There will be a number that we don’t implement for sound reasons. There may be practical or resourcing issues. I’ll read one out to you. It’s one that we ignored. It is from 1998. The recommendation was that “The [organisation] consider establishing a protocol for regular safety investigations of all huts and camping sites in respect to trees...and also issue safety brochures about the dangers of climatic conditions...” There was a storm and a tree fell over and crushed someone in a hut. We have 950 huts and all of them have trees around them. We have more than 1,500 camping sites which all have trees around them. We are not going to check all of those sites and huts to see whether there is a tree that might fall over in a storm. It would be nice to have known that the tree would be affected by a storm. But equally if we go in with chainsaws and clear all the trees, we will be criticised for that. People like trees. There are different values and clashes. We generally follow the line that people expect some risk in the outdoors. So that was a recommendation that was not practical to implement. It was an unfortunate act of god, but it would be too resource intensive to implement.

Many government organisations reported that they did not implement recommendations because implementation would “be too costly for the ratepayers.”964

In chapter 6, we describe participants’ statements that unclear recommendations, and poorly structured findings, limit the preventive potential of coronial recommendations. The purpose of this section is to highlight that organisations reported that unclear recommendations will often be rejected. Unclear recommendations include:

The format of the report is half a dozen pages. 1, 2, 3 pages of background, it then has a section called ‘inquest’. There are no actual recommendations. There's not a heading ‘Recommendations’. When I read it at the time and just re-read it now, I would identify at least two statements which may be recommendations There's a statement that

"The view of the court, that where there is any evidence of seismic activity, on or near Raoul Island, staff should immediately be withdrawn from the crater area" and that "observations of volcanic activity within that area should be conducted remotely for a period which needs to be conservatively assessed following the conclusion of such activity."

Ten out of 79 organisations reported rejection of coroners’ recommendations because they were unsure whether the findings included recommendations. Fifteen out of 79 organisations reported rejection of recommendations because the word choice did not provide sufficiently clear instructions about the action required. Organisations suggested that coronial findings should follow a standardised

structure including a heading ‘recommendations’. In their view, coroners should always state whether or not there were any recommendations. If no recommendations were issued, the findings should state this.

Adverse comments in recommendations have not been cited as a reason for rejecting coroners’ recommendations in previous research about the implementation of coronial recommendations. The qualitative approach of this study may have elicited this additional reason for non-implementation of recommendations.

Pharmac’s experience with coroners’ adverse comments is illustrative. Two coroners made recommendations to Pharmac which Pharmac considered were adverse comments. On neither occasion was Pharmac notified or given an opportunity to comment before those recommendations/adverse comments were published. The only notice was through media reports.966 One case involved a real estate agent who had a high level of zopiclone in her system when she took her own life.967 In the inquest into her death, the coroner made adverse comments about Pharmac’s management of zopiclone:968

The Court has a real concern about the prescribing of these type of medications given what it heard at this finding and recommends that Pharmac revisit this amendment to fall in line with the recommendation now made.

Pharmac can set rules about the quantity of a medicine that can be funded. Pharmac can restrict the amount that gets dispensed. Pharmac had placed controls on zopiclone so that it had to be dispensed monthly. When the price of the product was reduced, Pharmac determined that it did not matter whether a large quantity of zopiclone was dispensed at once or not. Therefore, Pharmac removed the funding restriction. According to Pharmac, there is misunderstanding about the difference between funding restrictions and prescribing restrictions:969

People call it a prescribing restriction, but it is not; it’s a funding restriction. When we make those changes, we do public consultation. So we put together a proposal to make the change, we consult on it, then we make a decision. We had been through this process ... This method is controlling expenditure. We may do that on medicines that we find are dispensed all at once and they aren’t all used, so that wastes money. Or we might put prescribing restrictions on medicines so that they target only the group that will most benefit from it.

When the coroner recommended that Pharmac change the restriction, Pharmac had two concerns:970

Five organisations interviewed reported that they rejected recommendations because the proposals contained erroneous law. For instance, one government organisation stated that they “have had occasions where the coroners make mistakes, where coroners have referred to redundant provisions in the law.”971 Another government organisation explained that they rejected a coroner’s recommendation because it recommended unnecessary amendment to the law:972

Sometimes recommendations get thrown in the filing cabinet because we cannot implement them for very good reasons. A good reason might be because of the current law and if the coroner had bothered to look it up, he might not have made the recommendation. The coroner should not recommend to change the law to do that because the law already says that.

A DHB reported that a coroner’s recommendation could not be implemented because it “didn’t reflect the obligations we’ve got under the Land Transport legislation and some other consent processes.”973 The coroner’s recommendation was that the Southern DHB institute a protocol that, wherever possible, a blood sample is taken from patients who have been involved in a road crash as soon as they are admitted to hospital.974 The formal response from the DHB to the coroner stated:975

Section 73 of the Land Transport Act 1998 permits the taking of blood samples in road traffic crashes and provides immunity from civil or criminal action where such samples are taken. However, while this Act does mandate the patient submit to the taking of a sample it does not mandate the medical practitioner to take such samples. In clinical practice such evidential samples are taken pursuant to specific requests to medical staff by the police for them.

In an inquiry into the death of a pedestrian, the Christchurch City Council rejected recommendations because implementation of the proposal would have been illegal:976

It is illegal for us to install a green left arrow unless there are no other movements permitted to enter this same section of the intersection. With the current operation of the intersection, this is not possible for us to do.

This reason for rejecting coroners’ recommendations has not been cited in previous research about the implementation of coronial recommendations. The qualitative approach of this study may have elicited this additional reason for non- implementation of recommendations.

Some organisations (32/79) complained that coroners’ failure to consult with them during the inquiry meant that coronial recommendations suggested changes that were already in place within organisations. This reinforces the importance of the consultation theme that runs throughout this research. According to the College of Midwives:977

They recommend that we do what we already do because they don’t know, they’ve got no clue. They don’t know. And because their doctor expert hasn’t got a clue what midwifery education is, so the doctor experts says ‘Oh these midwives, they need to learn this in midwifery school.’ Of course they learn it in midwifery school. So he recommends that they learn this, and then everybody goes ‘Oh for God’s sake. We already do that.’

A small number of organisations (14/79) stated that they rarely, or never, respond to coroners’ recommendations because there is no statutory mandatory response requirement. These organisations pointed out that coroners are functus officio, unable to engage with organisations’ responses, and therefore, they felt that writing formal responses would be ineffective. These findings are consistent with Australian research which also found that a reason for non-implementation by relevant authorities was that the authorities were not required by law to respond.978

The figures that we outlined earlier in this chapter demonstrate that some coroners’ recommendations are accepted and implemented by organisations. For example, in Victoria, Australia, the Transport Industry Safety Group (TISG) was established in 1996 following a coroner’s recommendations about the death of a 14 year old male pedestrian in a truck-related road crash.979 The incident occurred as a result of the failure of the truck driver’s employer, a transport company, to provide the driver with proper training and supervision.980 The Victorian TISG comprises senior executives from a number of organisations including the Transport Workers Union (Victoria/Tasmania), the Victorian Transport Association, VicRoads, Victoria Police, WorkSafe Victoria, the Transport Accident Commission, the Bus Association (Victoria), the Victorian Waste Management Association and Monash University

979 Transport Safety Group A Guide to Occupational Health and Safety Transport Industry (2006). 980 At preface.

Accident Research Centre.981 The TISG meets regularly with the State Coroner to develop proactive strategies to reduce the incidence of death and serious injury within the transport industry.982

In NZ, there are many examples of coroners’ recommendations that have been accepted and implemented. For instance, in his autobiography, Stewart (who was a coroner in Nelson from 1965 to 1978), describes his experiences.983 In particular, Stewart gives examples of recommendations which were initially ignored, but eventually implemented. In an inquest into the death of a driver, Stewart recommended that seatbelts should comprise of diagonal belts and waist belts. Stewart writes that “several years later, the combination of a diagonal plus waist seat belt was made universal in all new cars.”984

The CSNZ Recommendations Recaps outline examples of the action taken by organisations to implement coronial recommendations. For instance, the NZ Transport Agency (NZTA) launched a drug-driving advertising campaign in response to a coroner’s recommendation that “further publicity be given by [NZTA] to the dangers of driving while affected by cannabis.”985 In the inquiry, the coroner found that the deceased died from injuries sustained in a motor vehicle crash.986 After smoking cannabis, the deceased lost control of his vehicle.

As we outlined earlier in this chapter, in interviews, organisations reported that they accepted 133/426 (31%) of coroners’ recommendations. Organisations do not always implement recommendations in precisely the way that is prescribed by the coroner. We coded these responses as ‘partially implemented’. For example, one DHB described their experience as follows:987

They may need to be implemented with a twist. It is not as straightforward as it may appear. Part of making a recommendation is you need to work through the spin-off issues that might flow from implementation...You’d think that a recommendation about producing information for young people would be relatively straight forward to implement. That just involved a leaflet. That was

983 GP Stewart The Rough and the Smooth: An Autobiography by GP Stewart (The Heritage Press, Waikanae, 1994).

985 Office of the Chief Coroner of NZ Recommendations Recap - Issue 3 (2012) at 32. 986 Stevenson [2012] NZCorC 78.

producing leaflets on certain types of medication for young people. Trying to get consensus on the content of the leaflet was exceptionally difficult. There were all sorts of challenges...So even producing a leaflet, a recommendation that might appear simple, has enormous complications.

Organisations reported that they were more likely to implement coronial recommendations if there was consultation during the coronial inquiry, and the recommendations were clear, evidence-based, logistically and financially viable, appropriately directed, fell within the organisations’ roles, and prevention-focused. Many organisations reported (47/79) that they sometimes implemented recommendations that did not meet these criteria if they felt that non- implementation posed a reputational risk, particularly because of media pressure.

These findings are similar to the Sutherland et al study results. Their research found that prevention of future death or injury was cited as the most important reason for taking action.988 The reputational implications of not acting on recommendations were also rated as an important reason for implementation. Forty two per cent of respondents rated the legal implications of not acting on coroners’ recommendations as an important reason to implement. Commentators in the UK have also observed that the legal implications of non-implementation often encourage organisations to accept coronial recommendations.989 If recommendations are not heeded by individuals, corporations and industries, future similar events may have an adverse impact on them. The successful prosecution of a company under the UK Corporate Manslaughter Act, may herald the launch of more prosecutions and dissuade organisations from rejecting coronial recommendations.990 In NZ, 23/79 organisations interviewed stated that the legal implications prompted them to implement coroners’ recommendations. Two coroners interviewed mentioned that there is “bite back” in the form of potential “criminal

If the same thing happens again in the same place, then you could be facing criminal charges because it has been brought to your attention,

989 Gerard Forlin and Louise Smail “Come in Number 43: The Impact of Rule 43” [2011] New Law Journal 306 at 36.

you knew about it and you did nothing ... The roading authorities; they do respond, and they do take notice because they think “Ah, if someone’s crashed into the end of this bridge because it hasn’t got Armco rails up, if we have another one, are we criminally negligent?” The answer would be yes.

During interviews, the most commonly cited example of a successful response to, and implementation of, coronial recommendations was the Auditor General’s 2008 report Responses to the Coroner’s Recommendations on the June 2003 Air Adventures Crash.993 On 6 June 2003, an aircraft crashed on approach to the Christchurch international airport, killing the pilot and seven passengers. The coroner’s May 2006 findings raised concerns about the regulation of the general aviation sector (smaller planes, agricultural operators and helicopters). The findings included 31 recommendations. Twenty four were directed to the Civil Aviation Authority (CAA). Six were directed to the Ministry of Transport and one to the NZ Institute for Crop and Food Research.

At the Minister of Transport’s request, the Auditor General assessed whether the CAA and the Ministry had properly considered the coroner’s recommendations. The Minister “put in place a monitoring system to ensure that all the recommendations in the report were acted upon.”994 The review concluded that overall the CAA and Ministry “responded systematically to the coroner’s recommendations.”995 The Auditor General found that the CAA’s process for monitoring its response to each of the coroner’s recommendations was robust. By contrast, the review found that the Ministry’s process “should have been more comprehensive.”996

Of the 24 recommendations directed to the CAA, 11 were accepted and implemented, nine were supplanted, four were rejected because alternative action had been undertaken.997 Of the six recommendations directed to the Ministry, two

were accepted and implemented, four were rejected. One recommendation was rejected because it was already covered by the existing legislation.998

For profit organisations that we interviewed had also implemented coroners’ recommendations. For example, Telecom installed a public telephone landline at Bethells Beach in accordance with a coroner’s recommendation.999 The recommendation was issued after an inquiry into the death of two men who drowned after they were swept from rocks while fishing.1000 At the time of the interview, Telecom noted that the telephone had not been used and, therefore, doubted whether the action was fulfilling its preventive aim.1001

During interviews, organisations reported that the most common type of action taken to implement coronial recommendations was the adoption or modification of policies and practices, or the introduction of educational programmes. Similarly, the Sutherland et al study found that among accepted recommendations, the most common types of action taken were implementation of education programmes or training (36/60) and adoption of policies, procedures or standards (28/60).1002 For nine accepted recommendations, the organisation had resolved to implement the recommendation, but the precise type of action was undecided.1003

This chapter has revealed that in contrast to media speculation that all, or almost all, coroners’ recommendations are rejected, organisations’ responses are more nuanced. While we found a significant proportion of organisations in our sample did not respond to, or implement, coroners’ recommendations, the number of implemented/accepted recommendations is greater than some commentators might expect and all organisations reported that they give coroners’ recommendations serious consideration.

While quantification of implementation rates is useful, it is important to remember the broader picture. In her analysis of the Australian coroners’ recommendations about the Mistral fan controversy, Haines reminds us that:1004

The Coronial recommendations may have been imperfect, and certainly met a mixed fate, but to focus purely on the quantifiable influence of such suggestions may be to miss the quintessential importance of institutions such as these, namely their role as guardian (however imperfect) of social values.

Our mixed methods qualitative and quantitative approach to the investigation of coroners’ recommendations has attempted to heed Haines’ warning. The qualitative techniques used in our study may account for some of the differences between the findings of this study and previous research. NZ organisations’ reasons for rejecting coroners’ recommendations are remarkably similar to those documented in the Australian empirical studies. However, our research elicited two reasons for rejection of coronial recommendations that were not documented in the Australian studies: 1) adverse comments in recommendations and; 2) erroneous law in recommendations.

Comparisons between the implementation rates of NZ coroners’ recommendations and Australian coroners’ recommendations should be made with trepidation because of the different coronial legislation. As Sutherland et al observed, their results may be a “best case scenario” because of the Victorian mandatory response regime.1005 Our findings are not generalisable to other jurisdictions because of such differences.

This chapter highlights that there are two particularly important areas for improvement: 1) consultation with organisations before recommendations are issued and; 2) directing recommendations to the appropriate organisations. Consultation also emerges as an important theme in the next chapter. The high number of supplanted recommendations highlights the importance of consultation processes and the considerable length of time it takes for coroners to issue recommendations. It is important to separate the rejected from supplanted recommendations.1006 These two forms of inaction spotlight different policy considerations.

Although the inclusion of some organisations’ responses to coroners’ recommendations in the Recommendations Recaps is an improvement, there is little publicly available information about the extent of implementation of recommendations in NZ. It is, therefore, difficult for the government, coroners and the community to assess the preventive impact of coroners’ recommendations. The results outlined in this chapter are a first step to address this gap. As Freckelton has observed, it is important for the community to know which recommendations are rejected and why. The reasons may be sound, or they may not be, but the families of the deceased and the community should be informed.1007 In chapter 7, we explore how a mandatory response regime, and associated monitoring system, would facilitate this information gathering and enable accountability of organisations.

In the previous chapter we outlined the argument that the preventive potential of coronial recommendations is undermined when recommendations are not implemented by organisations. This chapter explores coroners’ preventive function in detail.

NZ coroners have been described as “public health officials” because of their statutory preventive functions.1008 The principal role of coroners is to investigate and determine causes of deaths that occur in sudden, unexpected or unnatural circumstances. This work advances public health indirectly, not least by enhancing the quality of vital statistics and public health surveillance.1009 Some coronial data is shared with other injury and death prevention agencies in NZ and overseas.1010 In some jurisdictions such as NZ, Australia, Ireland, the UK and most Canadian provinces, coroners are also vested with authority to play a more direct role in advancing public health. As part of their findings, they may issue recommendations aimed at reducing risk and improving health and safety in the community.

While the prophylactic function of coroners has been adopted by many jurisdictions, controversies remain about the limits to be imposed on coroners to ensure that their inquiries are not unduly “discursive”1011 or “wide-ranging”.1012 One aspect is whether coroners should be confined to making findings about the circumstances, cause of death and identity of the deceased, or whether coroners should also make preventive recommendations. The most commonly asserted

1010 Conway and others, above n 869; Deon York “Learning from Tragedy: New Zealand’s National Mortality Review Programme” (Health Services Research Centre Victoria University Seminar Series, Wellington, 5 September 2012); Carol Conroy and Julie Russell “Medical Examiner/Coroner Records: Uses and Limitations in Occupational Injury Epidemiologic Research” (1990) 35 JFSCA 932; Hanzlick, above n 124.

1011 Harmsworth v State Coroner [1989] 989 VR (Australia) at 995 (Nathan J). 1012 Re Doogan; Ex parte Lucas-Smith, above n 170, at 28.

advantage of coronial inquiries is that they are undertaken in public, with input from relevant interests, in order to fulfil the public interest in recommending mechanisms for the prevention of similar deaths in the future.1013

Few studies have systematically examined coroners’ recommendations and little is known about how effectively this function is exercised. Our research findings are consistent with the limited previous research results. Coroners’ findings and recommendations are “extremely important to injury prevention, but there are improvements that could be and should be made.”1014

There have been improvements in NZ since the introduction of the Coroners Act 2006. For example, in 2013, Coroner Matenga released his findings about 13 cycling deaths in 2010 which also took into account 94 other cycling deaths since 2007.1015 However, coroners typically investigate a single death during an inquiry and this is the most commonly cited weakness of coronial investigations. Research has found that coronial inquiries which only focus on the case under inquiry (without consideration of previous similar inquiries) generate inconsistencies across coronial investigations into the same cause of death. For instance, research which examined 20 British Columbia coronial investigations into suicide by oxygen deprivation with helium, found that there were inconsistencies across the findings which could not be explained by differences in the facts or scientific evidence.1016 Epidemiologists/public health researchers have argued that coroners should gather previous similar cases in order to identify trends and patterns amongst groups of cases.1017 By understanding how and why deaths occur, appropriate steps can be taken to prevent similar incidents occurring. Coronial findings should note the

1014 Lyndal Bugeja Farm-related Fatalities in Victoria July 2000-June 2003 (2004) at 60.

1015 Tessa Johnstone and Alex Fensome “Cycling views ‘must change’ | Stuff.co.nz” (15 November 2013) <http://www.stuff.co.nz/dominion-post/news/9402269/Cycling-views- must-change> . We have referenced a newspaper report instead of coroner’s findings because the full findings are not available on the CSNZ website or NZLII. Coroner Matenga did not make recommendations. Therefore, there are no recommendations available on NZLII. The findings are not on the CSNZ website under ‘findings of public interest’.

1016 Russel D Ogden and Shereen Hassan “Suicide by Oxygen Deprivation with Helium: A Preliminary Study of British Columbia Coroner Investigations” (2011) 35 Death Studies 338.

1017 Timothy Robert Driscoll and others “Coverage of Work Related Fatalities in Australia by Compensation and Occupational Health and Safety Agencies” (2003) 60 Occupational Environmental Medicine 195; Bugeja, above n 1014.

relevant contributing factors to the death and comment on prevention issues. Currently, the “variations in the...approach to the investigation process and the presence, content and quality of findings and recommendations suggest that there is scope for improvement in the coronial system of each [Australian] State and Territory” and, we would add, NZ.1018

This study’s findings are consistent with the literature. While there have been improvements since the introduction of the Coroners Act 2006, interview participants reported that the prophylactic potential of recommendations is not being maximised. This chapter explores the factors that foster and impede the preventive potential of coronial recommendations. The chapter begins by outlining coroners’ statutory power to make recommendations, and examples of recommendations which have had a positive public health impact.

In 1907, Dr Brend, a doctor and barrister, highlighted the potential preventive purpose of coronial inquiries when he wrote:1019

[The] value of the [coroner’s] statistics is diminished by absence of coordination. Hence we have the anomaly that while full inquiry is conducted into deaths from violent and unnatural causes, practically no subsequent use is made of the information for public health purposes.

Death prevention was emphasised as the main purpose of coronial inquiries as early as 1915 when Brend declared that “if prevention of deaths is not now regarded as the main purpose to be served by inquests, the inquiry becomes of relatively little value.”1020

It was the Ontario Law Reform Commission’s (OLRC) 1971 report on the coronial system and the 1980 Norris Review into the Victorian coronial system that placed the preventive function at centre stage. The OLRC stated that an inquest has two primary preventive purposes. First, an inquest is a means for “formally focusing community attention and initiating community response to preventable deaths”1021 and, secondly, an inquest is a way of satisfying a community that the circumstances

1021 Ontario Law Reform Commission Report on the Coroner System in Ontario (1971) at 142.

surrounding a death of one of its members will not be ignored, concealed or overlooked.1022 Endorsing the Norris Review, the OLRC agreed that coronial systems should aim to preserve human life.1023

By contrast, the Brodrick Committee’s 1971 review of the coronial system in England and Wales recommended the removal of the right to attach riders to findings. This recommendation was adopted in the Coroners Act 1980 (UK).1024 This position has been maintained in the recent Coroners and Criminal Justice Act 2009 (UK). Freckelton has observed that this means there is no explicit preventive role for coroners in England and Wales.1025

Australia has distanced itself from the English position, providing its coroners with preventive functions. The Parliamentary debates about the Victorian, Australian Coroners Bill 2008 highlight the importance of the preventive work of the Coroner’s Court. During its second reading, the Attorney General pointed out that:1026

There was a need to strengthen the prevention role of the coroner. Whilst the Victorian coronial system has an impressive history in the area of prevention, including recommendations regarding tractor rollover protection structures, safety barriers for swimming pools, suicide prevention in prison cell design, and mistral fans, the committee recognised that the role could be further supported. The bill addresses this issue and is supported by the establishment of the first coroner’s prevention unit, which will assist the coroner in relation to the formulation of appropriate prevention recommendations as well as help monitor and evaluate the effectiveness of those recommendations.

Similarly, NZ has also distanced itself from the English position, adopting the broader preventive role for its coroners. This is evident in the Law Commission’s report on coroners, which states that an inquest should not be a mere formality, but should be socially and statistically significant in a modern community, recognising that substantial community benefit can result from a forward looking preventive role.1027

1023 John Norris The Coroners Act 1958 - A General Review (1981) at 4. 1024 Freckelton and Ranson, above n 26, at 23 and 655.

1026 (9 October 2008) Australian (Victoria) Parliamentary Debates 4033 at 4035. 1027 New Zealand Law Commission, above n 119, at 8.

The importance of the coronial prevention role was also evident in the 2006 NZ Parliamentary debates about the Coroners Bill:1028

The Law Commission’s commitment to a preventive role for coroners is expressed in the purpose of the Coroners Act 2006. Section 3(1) states:

The purpose of this Act is to help to prevent deaths and to promote justice through—

The Act takes an explicitly prophylactic approach with its primary aim being to prevent deaths and promote justice.1029 Section 3(1)(b) provides that the preventive aim will be achieved by making recommendations. This connection between prevention principles and the recommendatory power of coroners is well recognised. Halstead has summarised the relationship:1030

Coroner’s recommendations are the distillation of the preventive potential of the coronial process. Actions taken in response to recommendations carry the promise of lives saved and injury averted. Proactive strategy has the potential to avert deaths but also alleviate risks to health and safety more generally.

In NZ, this “promise of lives saved and injury averted” is further expressed in section 9 of the Coroners Act 2006 which defines “specified recommendations or comments” as “recommendations or comments about

the avoidance of circumstances similar to those in which the death occurred or the way in which any people should act in circumstances of that kind”. This definition allows coroners to consider a wide range of factors relating to a death. However, the section 9 definition contains two limiting clauses: “in circumstances similar to those in which the death occurred”, also found in sections 4 and 57, and “in circumstances of that kind”. Recommendations should relate to the circumstances in which the particular death occurred, preventing a coroner from viewing the death too broadly.

NZ coroners are independent judicial officers. Their ability to describe the facts as they see them is not impeded by political motivation. The Coroners’ Court, unlike other NZ courts and tribunals, is an inquisitorial jurisdiction; coroners are not concerned with blame but instead with a “search for truth by investigative inquiry”.1031

The inquisitorial nature of the Coroners’ Court is supported by the wide investigatory powers that the Coroners Act 2006 accords coroners.1032 This allows for an inquest to assemble a wider range of experts and information than would have been considered necessary in the criminal jurisdiction. In addition, inquests are not subject to the strict rules of evidence used elsewhere in the law.1033 Freckelton and Ranson argue that:1034

This freedom to conduct an inquest in a manner most likely to reveal the true facts surrounding a death is one of the great strengths of the coroner’s investigation process. It is assisted by the testing of witnesses under oath, thereby providing an element of quality assurance with respect to evidence of both fact and opinion, which may be missing in internal inquiries held by other organisations involved in the death.

As we pointed out in the introduction of this chapter, these wide investigatory powers should not be deployed as an opportunity to undertake a “roving Royal Commission.”1035 Many organisations interviewed for this study (69/79) preferred coroners’ recommendations to highlight issues that should be investigated further by the appropriate entities. The lawyer for a health care

organisation captured the sentiment of many organisations when she explained that:1036

If the mandate is to identify a series of questions or issues arising out of a death that require further attention, then that sits comfortably with a fact finding objective. Coroners determine what happened, this raises a series of questions and coroners refer it on to authorities to reach determinations or investigate...And the best coroners do exactly that. They recognise their own limitations, but also put weight behind looking at the issues further.

The organisations that advocated this approach reported that the statutory preventive function would be fulfilled in this manner without becoming unduly wide. These participants argued that this approach allows coroners to take a systems perspective while also including organisations in the preventive process.

All the coroners interviewed for this study reported that their statutory preventive function is appropriate and important. Almost all coroners (14/15) described the Act’s prophylactic purpose as “an opportunity to learn...to help prevent it happening again.”1037 The majority of coroners (13/15) conceptualised the preventive purpose, and their recommendatory powers, as the “pivotal”,1038 “primary”1039 and “main limb of the Act”.1040

Although coroners recognised the importance of their preventive function, most (12/15) described the challenges of undertaking this function. The following comments reflect other coroners’ concerns:1041

I know the Act says that we have a prevention role. But I don’t think the system is well set up to support that objective...I don’t think that it is well understood by coroners...

These concerns were shared by some organisations interviewed (65/79). A small number of organisations (9/79) questioned whether coroners should be vested with a statutory preventive function. The following comment from a government organisation captures other organisations’ views:1042

1037 Interview with Coroner Armstrong (Jennifer Moore, 11 October 2012). 1038 Price, above n 125.

1039 Interview with Coroner Woodward (Jennifer Moore, 10 November 2012). 1040 Atwood, above n 875.

I wonder whether they should have a statutory preventive function. In other countries coroners are confined to cause of death. We have so many investigations going on. There are so many different investigative authorities that I wonder whether we are ending up with repeat investigations. I wonder whether investigations done by the experts would result in a better preventive message, than those done by coroners.

By contrast, the preventive role of coroners appears to be one that is supported by NZ families. Coroners assist whānau through grieving by helping them to understand the circumstances in which their loved ones died. Many families also express the desire that the death of their relative not be in vain. Nicky Wagner MP commented on this point in the second reading of the Coroners Bill: “Families often mention that they want something good to come out of such wasteful deaths.”1043 Families want the coronial process to ensure that no other family will have to endure their loss.

Unfortunately, not all unexpected deaths are preventable. According to one organisation:1044

Sometimes even with the best systems in the world you can’t prevent death. If we look at mental health, we are concerned about the suicide rates in NZ. But there are a group of people who, no matter what any family or health profession does, there is a certain inevitability about an eventual outcome of suicide because mental illness has, as one of its fatal outcomes, suicide. I have knowledge of situations where everyone did everything right, but there was still a suicide. Usually under these circumstances, the coroner will say that the person received good care and nothing more could have been done. That is part of the challenge of having that in the legislation, that sometimes people who are distressed by the death assume that someone or something could have prevented the death. But sometimes it could not have been prevented. That is hard to hear. I don’t envy the coroner’s challenge under those circumstances.

Overall, this study’s participants were supportive of the statutory preventive function. However, there was recognition that the “challenge of having that in the legislation” is that some families assume that all unexpected deaths are preventable. Sometimes “nothing more could have been done” to save the deceased. In the next

section, we discuss examples of preventable deaths, where more could have been done, and the coronial recommendations did have a positive impact on future prevention strategies.

This study’s findings demonstrate that the effectiveness of recommendations is limited by various factors such as untargeted recommendations, under-resourcing, poor access to full coronial findings, and the absence of a requirement to respond to recommendations. While almost all organisations interviewed for this study (77/79) were “supportive of the coroners’ role in preventing future deaths through recommendations”,1045 they often felt that “recommendations would not have prevented deaths.”1046 Some organisations (61/79) that were interviewed reported that “the vast majority [of coroners’ recommendations] don’t have a positive impact.”1047 The majority of these organisations (72/79) emphasised that “without data [they] couldn’t say for sure”, but that they “were not convinced that recommendations do have much public health impact.”1048

However, there are examples of recommendations that have had a positive public health impact. Analysis of coroners’ recommendations in England has found that “some good and valuable recommendations have been made.”1049 Coroners in England have sometimes identified problems with health care that standard mortality data collection within the health care organisation had missed.1050 For example, preventable neonatal deaths following insertion of long lines was documented by coroners, but missed by the health care organisation.1051

1050 Moore, above n 354; Tanya Claridge, Gary Cook and Richard Hale “Organizational Learning and Patient Safety in the NHS: An Exploration of the Organizational Learning that Occurs Following a Coroner’s Report under Rule 43” (2008) 14 Clinical Risk 8.

In NZ, some health care organisations interviewed (11/26) for this research gave examples of coroners’ recommendations that had a positive impact on clinical practice.1052 For instance, one health care organisation explained that:1053

We had a lady who stopped taking her anticoagulation meds after she went on IVF. When she went back on the meds she got blood clots in her heart and passed away. The coroner looked at the case and found that there was poor communication between the GP and the IVF specialist. Recommendations were made about communication, monitoring and responsibility. We took those recommendations on- board and we believe that patients in that lady’s situation are safer as a result.

Research about coronial recommendations in Victoria, Australia has identified child drownings in domestic swimming pools, tractor-related deaths, scuba-diving deaths and railway level-crossing-related deaths as success stories.1054

An often cited success of coronial recommendations is the advent of legislation requiring fencing of swimming pools. Such legislation in Victoria “largely resulted from coronial recommendations made in the 1990s.”1055 This was recognised in the parliamentary debates on the Building Act 1993 (Vic) which contains requirements in regards to the fencing of swimming pools:1056

The coroners’ reports have noted that: the majority of toddlers drown in their own family pool or are invited guests — so perimeter fencing is of little assistance — because toddlers are usually already within the property. A four-sided isolation fence which separates the pool from the house is the best single measure to address the risk of a child drowning. The coroners’ reports demonstrate that this is a serious matter.

The legislation, in conjunction with public awareness campaigns about the dangers of young children around private swimming pools, has been successful in bringing about a significant decrease in the number of children under five years of age who drown each year in private pools.1057

1054 Stephen Cordner and B Loff “800 Years of Coroners: Have They a Future?” (1994) 344 The Lancet 799 at 800.

1057 Terry Nolan and Ian Scott “Update on Pool Drownings and Isolation Fences” (1991) 7 Hazard 6; Bugeja and Ranson, above n 30.

In NZ, Coroner Evans’ recommendations to change the layout of Centennial Highway were commonly cited by this study’s research participants (82/123) as an example of recommendations which prompted positive change. Centennial Highway is a notoriously dangerous stretch of road north of Wellington. In 2000, Coroner Evans investigated eight deaths that occurred within a year of each other on the coastal route. In his April 2001 findings, he recommended that a median barrier be constructed along Centennial Highway to reduce the risk of head on collisions.1058 A 700m long median barrier was constructed in 2004.1059 The barrier was subsequently extended to a length of 3.4km after Coroner Evans found that three subsequent crashes on the road in 2004 could have been prevented if there was a median barrier in place.1060 Newspapers reported that “since the Centennial Highway median barrier was installed, it [has] been hit more than 20 times, potentially saving 50 or more people from head-on crashes”.1061 Coroner Evans “will be forever remembered as the coroner who recommended the Centennial Highway barriers.”1062

Another example of coronial recommendations that have contributed towards avoidance of preventable transport accidents is the systematic lowering of the speed limit in the Wellington central city. At the inquest of Corinne Bongiovanni, a woman who was killed as she crossed Lambton Quay, it was observed that there were a number of international studies showing the extent of injuries suffered by pedestrians is proportionate to the speed of the vehicle they were struck by.1063 The coroner recommended the reduction of the speed limit on Lambton Quay from 50km/h to 30km/h. Wellington City Council adopted this recommendation in 2005. Since then, the Wellington City Council has taken the initiative and a more wide scale project is underway to lower the speed limit in 21 suburban centres around Wellington.1064

The coroners who were interviewed for this research reported that they often encourage publicity of a public health issue in order to generate positive change.

1059 “Barrier on Notorious Road” The New Zealand Herald (Auckland, 24 November 2004). 1060 NZPA “Doctor Calls for Action on Barrier” (New Zealand, 29 September 2005).

1061 Alastair Stewart “Centennial Highway Barrier Delay” Kapiti Observer (Kapiti Coast, 14 January 2010).

1064 Wellington City Council Lower Speed Limits in Suburban Shopping Areas - Overview (2011).

Increasing the profile of an issue, hopefully leading to a reduction in deaths, is the outcome that coroners have been trying to achieve with Sudden Unexpected Death in Infants (SUDI). The Chief Coroner explained that:1065

...a consistent message coming from the coroners for some time has been that people should be aware of the safe sleeping messages such as put baby on back, not on tummy, keep baby’s head clear, keep baby in a separate cot with no cracks or things they can fall down, and don’t co-sleep, or have baby close by when you are drunk or stoned. We have seen the SUDI death rate plummet. That is a very good example of how the constant drum beat of coroners’ recommendations had a small role in that.

There are approximately 60-70 SUDI deaths each year, all of which are investigated by a coroner.1066 Many of these children die as a result of bed sharing or from being placed in inappropriate sleeping positions. In 2008 Coroner Evans conducted successive inquests into the deaths of seven babies. Coroner Evans’ findings asked the Director-General of Health to issue stronger warnings on the risks of bed sharing, recommending:1067

The decision to conduct the seven inquests as a group lifted the public profile of SUDI. Coroner Evans’ recommendations have been restated or referred to in a

number of subsequent inquests into SUDI, and in media reports.1068 Organisations, such as Plunket, have adopted Coroner Evans’ recommendations.1069 Much of the media coverage now includes advice from Plunket on the factors known to prevent sudden death.1070 Culturally appropriate methods of co-sleeping have also been developed and publicised. Two examples are the wahakura, a small bassinet-like structure woven from flax,1071 and the Pepi Pod.1072 Both allow babies to sleep in the parental bed in their own separate and safe sleeping environment. SUDI is an example of coroners’ recommendations contributing to positive changes.

NZ Parliamentary debates sometimes reflect concerns expressed by coroners in their recommendations. For example, Coroner Smith’s recommendations about the death of Cedric Joyce in 2005 were cited in the Parliamentary debates about the Private Security Personnel and Private Investigators Bill.1073 Joyce died of restraint asphyxia while being restrained by two bouncers outside a Blenheim bar.1074 The bouncers were later found not guilty of manslaughter in October 2006. At the inquest, Coroner Smith called for compulsory training for security staff and for the proposed Private Security Personnel and Private Investigators Bill, drafted partly in response to the incident, to be fast tracked through Parliament.1075 Although the Bill was not fast tracked, the debate on the Bill reflects some of Coroner Smith’s concerns:1076

The bill seeks to address the risks associated with untrained security personnel becoming involved in physical confrontation. In 2008 the Wellington regional coroner, Ian Smith, called for compulsory training

Purcell [2010] NZCorC 109; Tuake [2011] NZCorC 97; Lane Nichols “Infant Died in Bed with Sibling” The Dominion Post (Wellington, 22 July 2011).

1070 For example, see “People Not Keeping to Cot Death Advice” Sunday Star Times (New Zealand, 16 November 2010).

1071 David Tipene-Leach “Sudden Infant Death and Co-sleeping: A Better Message” (2010) 123(1309) NZMJ 137.

1072 Jamie Morton “Group Latches onto Quake Idea to Cut Baby Deaths” The New Zealand Herald (New Zealand, 29 June 2011).

1074 “Coroner’s Plea After Man Dies While Held by Bouncer” The Marlborough Express (Marlborough, 16 September 2008).

1075 Blair Ensor “Calls to Fast-track Bouncer Bill” The Marlborough Express (Marlborough, 30 October 2009); “Coroner’s Plea After Man Dies While Held by Bouncer”, above n 1074.

following the tragic death of Cedric Joyce in Blenheim in 2005 after he was restrained by bouncers outside a pub.

According to five coroners interviewed for this research, successful outcomes can also be prompted by the coronial process. For instance, one coroner explained that:1077

With safety focused organisations, the involvement of the coroner is sometimes useful for them in making safety changes and really putting the microscope on something. So it might not be the recommendation, but the process itself. Sometimes the organisation itself has moved to make changes. Even though DHBs are quality and safety focused, sometimes they don’t identify quite serious things until the coroner becomes involved. [Lawyers] have said once or twice that it is the coroner’s process that is quite often where change comes for them.

These examples suggest that coroners’ recommendations can be effective catalysts for change or contribute towards preventive measures. The coronial investigation can be important for achieving the first policy process required for successful research-practice translation: public recognition that there is a policy problem that needs to be addressed.

This study has contributed to the dearth of empirical information available about the effectiveness of NZ coroners’ recommendations by examining the extent to which they are implemented. As participants pointed out, the coronial process (even without recommendations), and publicity about inquests, can also generate positive change towards prevention strategies. In this section we have also described examples of coroners’ recommendations that have improved quality of patient care.

Despite these success stories, the experience and perception of many organisations interviewed (61/79) was that the preventive potential of coroners’ recommendations is not being realised. This finding is consistent with recent Australian research which reported that 45/90 organisations sent coroners’ recommendations believed that the recommendations were unlikely to be effective in preventing death and injury.1078 In the next section we explain why the preventive potential of coroners’ recommendations is not being maximised and discuss strategies for improvement.

In chapters 3 and 4 we explained that under-reporting in the coronial jurisdiction and untargeted recommendations undermine the preventive potential of coroners’ recommendations. In this section, we briefly reiterate these points in order to emphasise that these deficiencies in the coronial system hinder the coronial prophylactic function.

Without official law reports or easy access to full coronial findings online, coroners are unable to fulfil their preventive function. Without adequate reporting systems, coroners are hindered from gathering previous cases which would help them to discern patterns. These shortcomings impact the quality, consistency and rigour of coroners’ recommendations.

As we pointed out in chapter 3, NZ is not the only jurisdiction with inadequate coronial reporting systems. For example, the recent review of Scottish fatal accident investigations found that the database of recommendations was “not up to date”1079 and that mechanisms should be put in place to ensure that “determinations be more readily available for sheriffs in later FAIs [fatal accident investigations] to consider for their relevance to them.” Analysis of a single case in isolation, with no reference to previous cases or deaths of a similar nature, has limited preventive impact. It is difficult for coroners to consider previous cases without easy access to full coronial findings. In order to maximise the preventive potential of coronial recommendations, our research supports the introduction of Coroner’s Court Law Reports and online access to full coronial findings on a system such as NZLII.

As we discussed in chapter 4, untargeted recommendations (which do not identify a specific organisation or person) have little or no preventive impact. Australian research has demonstrated that vaguely directed recommendations

1079 Legal System Division, Scottish Government Review of Fatal Accident Inquiry Legislation: A Consultation Paper (2008) at 24.

receive poor or no responses and have little or no preventive impact.1080 Organisations can argue that the recommendation was not directed at them and therefore does not require any action which, in turn, limits the effectiveness and preventive potential of recommendations.1081 If a recommendation is inappropriately directed its preventive potential is undermined because it does not reach the organisation that can consider and/or implement it.1082 In order to maximise the preventive potential of their recommendations, coroners need to ensure that recommendations are targeted at a specific organisation and/or person.

Some coroners do target their recommendations. However, this research found that a significant proportion (23%) of recommendations were untargeted. The Chief Coroner has recognised the importance of targeted recommendations. Coroners “are trying to ensure that a recommendation is targeted and that it says who it is to go to.”1083 Improvements to coronial practice in this area are under way. In response to the media’s questions about untargeted recommendations in July 2014, the Chief Coroner stated that “we took that on board and the coroners have really got that message.”1084 The Chief Coroner explained that coroners “need to take the trouble to say ‘where’s the best person to send this recommendation to?’ so they can respond, and we know it’s not disappearing out into the ether and nobody reads _it.”1085

As we outlined earlier in this chapter, many coroners do not feel able to fulfil their preventive function because of under-resourcing, inadequate support, time pressures and inadequate training. Coroners described the challenges of undertaking their preventive role. The following comments reflect other coroners’ concerns:1086

I know preventing deaths is often touted as an important aspect of the coronial system, but when I look at our system it is under resourced for us to do that effectively. Also I don’t think that we are trained to

1080 Hands with Law Reform Commission of Western Australia, above n 914. 1081 Moore, above n 354, at 50.

do that well ...I think we would need dedicated research staff. We only have two researchers for 16 coroners. They help us with the legal research. But we’d want to have something like in Victoria [Australia], where they have a team who helps coroners to decide whether recommendations need to be made. We don’t get that.

The NZ Government’s current review is concerned with increasing efficiency, but there is little acknowledgment that the drive to reduce delays may negatively impact upon coroners’ ability to fulfil their preventive function. These findings are consistent with similar overseas studies.1087

Most coroners appreciated the need for their investigations and recommendations to be informed by evidence. All coroners defined “evidence” as information tested in court. Such “evidence” may include research and scientific evidence. However, coroners reported that they were often unable to draw on this information because of financial constraints and staff shortages.

An Australian study found that coroners felt their full potential to contribute to death and injury prevention was not being achieved due to the absence of training, lack of resources and lack of feedback regarding the implementation of their recommendations.1088 Most New Zealand coroners are not trained in the disciplines (such as epidemiology or statistics) that would be required to undertake comparative health and safety assessments. Ready access to epidemiological advice would enable the facts to be interpreted in light of the wider context and specific populations, enabling the formulation of robust recommendations.

The appropriateness and accuracy of coroners’ recommendations is affected by the quality of information and advice available to coroners. The need for a multi- disciplinary research team to assist coroners has been recognised.1089 The Coroners Court in Victoria, Australia, includes a specialised service for coroners – the Coroners Prevention Unit (CPU) – created to strengthen their prevention role and provide them with expert assistance by undertaking tasks such as assisting coroners in the development of prevention-focused coronial recommendations, and collecting and

analysing data relating to reportable deaths.1090 The CPU comprises a multidisciplinary team trained in medicine, law, public health, and the social sciences that assists coroners with their prevention role. Information is drawn from the scientific research literature, an assessment of policy is undertaken, and stakeholder consultation is conducted to generate evidence-based recommendations.

The State Coroner’s Office in Victoria also has a Clinical Liaison Service (CLS) which provides coroners with assistance from practising clinicians for the investigation of health care-related deaths.1091 Evaluation research found that this service contributes towards improving patient safety.1092

Coroners in Queensland, Australia are assisted by the clinical expertise provided by the Clinical Forensic Medicine Unit (CFMU). Government Medical Officers (GMOs) are available on an ‘as needed’ basis to assist the coroner’s preliminary assessment of a reported death, particularly those that occur in clinical settings.1093 GMOs from CFMU review the report of the death and the deceased person’s medical records, and then alert the coroner to any clinical issues requiring further follow up or independent clinical expert opinion. GMOs are available to assist regional coroners on request.1094

The CSNZ utilises the Health and Disability Commissioner expert clinical advisor list to identify health professionals who are competent to provide advice on the quality of clinical care. This is useful for assessing an individual clinician. However, formulating a recommendation to change systems should draw from a broader skill set. Extrapolating generic clinical care recommendations based on an individual case can result in recommendations that are difficult to implement. Although there is statutory authority for the coroners to seek additional advice, the

1091 Victorian Institute of Forensic Medicine and the Coroners Court of Victoria “Clinical Liaison Service, State Coroner’s Office and the Victorian Institute of Forensic Medicine, Victoria, Australia” Clinical Liaison Service <http://www.health.vic.gov.au/cls/> .

1092 Joseph Elias Ibrahim and others “The Impact of a Clinical Team Assisting a Coroner’s Investigation of Healthcare-related Deaths: Reflections on Six-years of Service” (2010) 12 Legal Medicine 28.

1093 Queensland Office of the State Coroner Office of the State Coroner Annual Report 2011 – 2012 (2012).

Chief Coroner has stated that there is limited funding for this and that the service is not resourced for more complex analysis.1095

The Minister’s review is concerned with improving the efficiency of coronial services. Research has found that the coronial process was delayed and limited because of a lack of readily available clinical expertise.1096 The Victorian CLS was established to remedy this problem. If the NZ Government is serious about “improving processes within the coronial system to ensure they are timely”,1097 the research evidence and the Victorian model should be considered. An evaluative study of the CLS concluded that the “model should be considered throughout Australia and in other countries with similar judicial arrangements”.1098 All research participants felt that the Victorian model could be usefully adapted to the CSNZ to improve the quality of coronial recommendations and processes. The Chief Coroner would like access to in-house trained investigators including medical, legal and forensic expertise.1099 The introduction of a service similar to the Victorian CPU could assist NZ coroners to accurately identify preventable deaths and formulate recommendations that are consistent with public health principles, thereby enhancing the prophylactic potential of recommendations. The introduction of a service similar to the Victorian CPU to assist coroners in Western Australia has been recommended by the Western Australian Law Reform Commission.1100

The empirical evidence demonstrates that although most coroners state that recognising a preventable death is “obvious”,1101 their recommendations are not

1096 Parliament of Victoria Law Reform Committee, above n 53; United Kingdom Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review (’The Luce Report’) (2003); Joseph Elias Ibrahim and others The Role of the Coronial Process in Initiatives for Improving Patient Safety and Quality of Health Care: Final Report of a Consultancy into the Coronial Death Investigation Process in Australia (Report Submitted to the Australian Council for Safety and Quality in Healthcare 2003).

1099 “Ask Me Anything: Chief Coroner Judge Neil MacLean” The National Business Review (New Zealand, 14 December 2012) 31.

1100 Hands, above n 175, at 4; Tatum L Hands with Law Reform Commission of Western Australia Review of Coronial Practice in Western Australia: Discussion Paper Project 100 (2011) at 164.

1101 During interviews, eight NZ coroners stated that preventable deaths were “obvious” or they used similar phrases to indicate that such deaths are easy to identify. Australian research

systematically consistent with public health principles. Consistent with overseas research, NZ coroners’ recommendations rarely identify the population at risk or whether the proposed countermeasure1102 addresses an identified risk factor.1103 Given that most NZ coroners are not trained in public health, or related disciplines, it is not surprising that there was little awareness of the need to recommend interventions that identify risk factors and target the population at risk. Access to specialised multidisciplinary teams within the CSNZ could remedy this problem and produce improved recommendations.

Many coroners who were interviewed also suggested further training opportunities where they could assess and critique their recommendations. At present, coroners meet twice per year. Although coroners are judicial officers, they are excluded from the training opportunities available to other members of the judiciary. The “Institute of Judicial Studies does not consider it part of its mandate to provide training for coroners.”1104 All of this study’s participants support training for coroners through the Institute of Judicial Studies.

The Law Commission’s 2000 report found that coroners felt undervalued. The report made recommendations to improve the status of coroners.1105 The majority of coroners interviewed still feel that they “struggle to get proper recognition”.1106 The government review should include provision for adequate in-house training. Coroners felt that external training, alone, was insufficient. They also need to meet as a group to discuss quality improvement measures. Without sufficient training opportunities, it is unlikely that recommendations will be improved or will achieve their preventive potential.

Coroners spend time making recommendations, and considerable financial resources are spent on public inquests and the administration of the Act. The Ministry of Justice spent NZ$16.57 million to administer the Coroner’s Act in 2010-

has also found that coroners consider preventable deaths easy to identify. See Bugeja, above n 32, at 309.

1102 A ‘countermeasure’ is any intervention that addresses a specific risk factor for injury. 1103 Bugeja, above n 32, at 320.

1104 Judge MacLean “Coronial Reform and the Role of the Chief Coroner” [2012] NZLJ 207 at 210.

1105 New Zealand Law Commission, above n 119, at 5. 1106 Armstrong, above n 1037.

2011.1107 The outlay of cash is justified, partly, on the basis that coroners’ recommendations contribute to preventive public health and safety goals. Yet it is difficult for coroners to fulfil their preventive function. To successfully fulfil their statutory prophylactic function, it is vital that coroners are sufficiently resourced. Coroners need assistance in applying a preventive framework to their recommendations.1108 National and international reviews of coronial services report that the public expects high-quality death investigations.1109 This expectation cannot be adequately fulfilled by the current CSNZ because of the high caseloads, understaffing, under-resourcing and lack of access to specialised expertise. Although the government review cites the importance of the coroners’ prevention functions, it includes few proposals to address the problems discussed in this section. To achieve the prophylactic potential of coroners’ recommendations, the NZ Government’s current review of the coronial jurisdiction should include proper resourcing for the CSNZ and consideration of Victorian and Queensland models.

Coroners should “be able to detect trends over time” which is “in marked distinction to their historical concern with individual cases.”1110 Despite improvements such as inquiries into clusters of deaths, the coronial jurisdiction’s focus on individual cases persists today. Australian research about deaths in custody found that coroners’ “consideration of each case in isolation” meant that they did not “regard any other cases which might have involved similar systemic risks factors.”1111 In Victoria, Australia in 1990, five people died in custody following

1107 Email from (CSNZ) to Jennifer Moore “regarding figures” (2 August 2011). 1108 Bugeja, above n 32.

1109 For example, see the discussion about international reviews of coronial services in Freckelton and Ranson, above n 26.

arrests for drunkenness. Research into the coroners’ findings about these deaths concluded that:1112

The increase should arguably have been noticed by coroners and responded to, at least to the extent of noting any emerging patterns. There is no evidence that there was any awareness on the part of the coroners of the links between these cases or the legislative position in Victoria in relation to the decriminalisation of public drunkenness. The fact that the eight cases in this study were heard by five different coroners may have contributed to the lack of awareness of the magnitude of the problem or any developing trend.

The organisations interviewed for this study also reported that many coronial findings do not discuss “developing trend[s]” or “emerging patterns.” The National Poisons Centre, which has reviewed large datasets of coronial information, observed that “there didn’t seem to be any kind of pattern in the recommendations.”1113 The coroners we interviewed were aware of this issue. Coroner Atwood commented that they “should be looking at other coroners’ findings.”1114 Another coroner remarked that they should not “be too contradictory or divided in [their] recommendations.”1115 In keeping with the Australian research findings above, such inconsistencies are more common when multiple cases about the same cause of death are heard by different coroners. The Chief Coroner has encouraged inquiries into clusters of deaths because he is aware of the limitations of an investigation into an isolated case.1116 The Chief Coroner has also assigned the same coroner to investigate several cases over time about a particular cause of death.1117

Although the community can learn from one death, when a greater number of deaths with common circumstances are identified, the potential to learn is greater. This is why we have argued that it is essential that coroners and others interested in prevention (e.g. public health researchers) have access to previous coronial findings. It is also important that a minimum dataset for all external cause deaths be developed in consultation with key stakeholders. Researchers have found that it is not possible to derive an accurate estimate of the number of work related deaths in

1117 Interview with Coroner Aitken (Jennifer Moore, 22 January 2013); Coroner, above n 893.

NZ each year by merging administrative data files from the CSNZ, ACC or OSH.1118 The most effective and accurate way to determine whether a death is work related would be through coronial investigations.

Coroners should consult previous findings because when a similar incident has already been investigated, it may provide important guidance on avenues to be explored in the inquiry. Such ongoing analysis will identify patterns of concern which would not normally be detected by separate coroners in single investigations.

The government review proposes amending the Act to “ensure coroners’ recommendations or comments are specific to the case and evidence before the Coroner”.1119 The two limiting clauses in section 9 should encourage coroners to make recommendations that are specific to the case. Will statutory amendment remedy the problem? A potential undesirable, unintended consequence of requiring coroners to focus on the particular death in the specific case may be that they do not look at patterns or comparative risks. How many similar deaths have occurred in the last 20 years? How do the health and safety risks correlated with that type of death compare to the risks associated with different types of death? For example, what is the comparative risk assessment for deaths related to drinking Coca Cola versus deaths attributed to alcohol?1120 By not systematically addressing areas where the greatest morbidity or mortality burdens exist, coroners limit their ability to reduce illness, disease and injury at the population level.

A commonly cited weakness of coroners’ recommendations is that they focus on an isolated case.1121 The Law Commission commented on this limitation as follows:1122

The fundamental problem is that coroners’ recommendations are usually about a unique set of facts associated with one individual death...What I’ve never seen is somebody going through to say ‘Here are the themes from 5 years of coroners’ reports,’ and to then make that a much larger issue...It needs some back office analyst to put all

1118 John D Langley and Colin Cryer with Injury Prevention Research Unit, Department of Preventive and Social Medicine, University of Otago Submission to the Justice and Electoral Select Committee on the Coroners Bill (2005) at 4.

1120 A coroner recently correlated Coca Cola consumption with a woman’s death. See Sam Boyer “Coca-cola Addiction Linked to Death” Stuff (12 February 2013).

1121 Interviews with organisations, legal and medical professionals. 1122 Law Commission, above n 862.

this stuff together, all the themes and threads. Because at the moment, the reports...are based on a sample of one.

Similarly, other organisations we interviewed commented on the weakness of coronial inquiries “based on a sample of one”:1123

I think that coroners, or anyone, should be very cautious about extrapolating policy recommendations pertaining to single case studies...Policy direction has to come from a wider set of data around national, international research, local audits, evaluations, reviews, performance data. You see some patterns and trends in what’s happening...So that would be a recommendation - that the coroner’s court has a research resource that is independent of the coroner and provides some research data and aggregate data to set in context what they’re thinking we’re casting into doubt the efficacy of the validity

to work in the context of a range of public servants trying to make sense of what’s happening for these children. To do that on the basis of sound research evidence and patterns and trends, rather than the drama of a single case which may be horrific, capture the public attention and puts them under pressure to do something meaningful with that, but actually it may not provide a sustainable solution for future problems and it could potentially add to the future problem.

According to this organisation, the “drama of a single case” should not be the sole basis for policy change. This organisation’s view was shared by almost all the organisations that participated in this research (78/79). In keeping with our argument about resources for the CSNZ, organisations argued that coroners need “research resource” to assist them to identify patterns, trends and “aggregate data” in order to realise the preventive potential of their recommendations.

Research participants suggested that recommendations could be improved by requiring coroners to consider similar cases, undertaking analysis of patterns and comparative risks.1124 The following observation by the Ministry of Transport captures the participants’ sentiments about comparative risks and patterns:1125

There’s no requirement for skateboard riders to have a helmet, a mandatory helmet like a cyclist. And so Coroners are saying that this should be mandated. We’ve gone back and said, “No, because mandating that requirement on everybody, when, if we looked back over the last nine years there’ve only been two deaths. We can’t justify mandating a rule that covers everybody over two deaths. And when

1123 Interview with Chief Social Worker, Child Youth and Family, Ministry of Social Development (Jennifer Moore, 29 May 2013).

you consider that only one of those deaths happened on a road then it’s not reasonable for us to mandate something.” ... We provided the statistics to justify our position.

The statistics enabled the Ministry of Transport to argue that the introduction of a requirement for helmets was not justified. We make no assessment about whether helmets should be required for skateboarders. Rather, the point is that an assessment of like cases over an extended period of time may improve the quality of recommendations. Investigating a single death in isolation may exaggerate the risks. Recommendations based on a statistical analysis of contributory and/or causal factors common to a number of cases could have more of a preventive impact than those related to single, specific cases.

Currently, the extent to which New Zealand coroners utilise large datasets or refer to previous coronial findings to inform their recommendations is variable. Many coroners “work in silos”,1126 discovering previous similar coronial cases by chance, often by listening to media reports:1127

[A] coroner heard on the news that there had been an accident. He phoned me to tell me that he had done a similar one. So that was how I found out. I shouldn’t have to find about it like that ... It’s amateur at the moment. I should be able to get that information elsewhere.

Given these challenges, it is perhaps unsurprising that some coronial findings refer to previous similar cases, whereas others do not. As one organisation put it, “sometimes coroners refer to like cases and sometimes they don’t.”1128 According to one participant, this inconsistency “reflects the limitations of the jurisdiction rather than being a criticism of the coroners” because coroners:1129

do not have the resource to undertake a full commission of inquiry... The resource they have (one particular death) does not fit comfortably with the ultimate objective. So you have coroners making recommendations that are in some cases ill-informed, incomplete or simply out of context. That is not a criticism of the coroners. I feel dreadfully sorry for them when they have to make public interest recommendations on the basis of a handful of parties giving evidence in relation to one particular death. It’s difficult for coroners to draw in

1126 Electricity Engineers’ Association, above n 2; Woodward, above n 1039. 1127 Interview with Coroner Frank (Jennifer Moore, 10 October 2012).

the broader context. I think the other jurisdictions like HDC recognise their limitations...HDC is looking at the rights of the patient involved. The coroners are looking at the broader public interest...Where the coronial jurisdiction can come into its own is by drawing data from related deaths. That can be in the form of a post inquest process, pulling together, collecting over time, information from a number of different cases and consolidating. Or, in fact, hearing inquests into related deaths together. That’s where there can be the benefit of the coronial process.

Many health sector organisations that we interviewed (19/26) reported that coroners’ recommendations about clinical practice which are based on “one case do not necessarily make a good protocol”1130 and are of limited value. Analysis of “one case” in isolation, with no reference to previous cases or deaths of a similar nature, has limited preventive impact. A psychiatrist, Professor Werry, expressed concern about coroners’ understanding of health risks:1131

The coroner issued a recommendation about huffing. I tried to get hold of the report because I wanted to know what the true frequency and age distribution of huffing actually is. This would give me an idea of what the size of the risk is. I am not in favour of huffing. But before you tell the Government it should do this or that, you need to have a good idea of what the risks really are. In my view, the risks associated with huffing are inconsequential to young people compared to the risks associated with alcohol. They are not in the same universe. I get concerned about coroners’ pronouncements about topics like huffing because they distort what the real risks actually are ...Coroners should consult with actuarial risk assessors so that they are aware of the actual risk. The risk might be 1 in 5,000. Those figures should be appended to the coroners’ recommendation so that the group that gets the recommendation, like the Government, knows what the risk is.

Although Werry expresses concern about coroners’ understanding of the risks, it is important to note that the CSNZ devoted an issue of Recommendations Recap to huffing.1132 The discussion included input from the Child and Youth Mortality Review Committee and the Drug Foundation.1133 According to the Chief Coroner, there was a positive response, including from a number of major retailers who adopted a voluntary restriction on sale policy.1134 Echoing other participants’

comments, the psychiatrist, as noted in the quote above, had trouble accessing the coroner’s report. If a single huffing death is examined in isolation, it is difficult for the coroner to accurately assess the comparative risks related to other unhealthy, and potentially life threatening, behaviours. We are not arguing that a single death is not a tragedy. Rather, we are illustrating why it is important for coroners to be able to access previous similar cases. Without adequate reporting systems, coroners are hindered from gathering previous cases which would help them to discern patterns. These shortcomings impact the quality and rigour of coroners’ recommendations.

The quality of coroners’ recommendations can be improved by taking account of previous similar findings. During an investigation into deaths caused by school buses, the coroner “researched what other coroners said first before making recommendations” because this approach “gives more credit to what you are saying if you can point to other examples of similar recommendations.”1135

Coroners who consulted previous findings were able to discern limitations in interventions which had been used to try to prevent similar deaths. The following example is illustrative:1136

There is a case about a young girl who was jet skiing and who died. There were recommendations in that case. Anyone can get a high powered speed boat without licences. I called for that to be looked at. The next day or the day after, a boy about 19, who was representing the Coast Guard, said that the coroner didn’t get it right, only education was required. My response was that there have been a number of deaths like this so where has the educative value been? I used [another coroner’s] findings in there. I also used [another case about] a school boy on jet skis. So I used the same information again. I’ve got another one coming up and I can repeat other coroners’ recommendations and my own previous recommendations.

The majority of organisations interviewed stated that they were more likely to implement coroners’ recommendations if the findings referred to previous similar cases. For example, a coroner’s recommendations about a hunting death, which refer to earlier inquests into hunting, were implemented.1137 Several months after the

1135 Interview with Coroner Pennell (Jennifer Moore, 13 October 2012). 1136 Frank, above n 1127.

release of the coroner’s recommendations, the Arms Code was amended to incorporate the coroner’s recommendations about hunting.1138

Sudden unexpected death in infancy (SUDI) was often cited by coroners and organisations as an example where robust recommendations have been made. Participants explained that recommendations for SUDI deaths have been effective because they have involved collaboration with experts and they have also been examined for patterns. For example, Coroner Fitzpatrick stated:1139

In terms of our prevention role, I like the work we have done on SUDI where there is an alliance and collaboration with researchers who know what they are doing and we are assisting that process. It is informing our understanding of the issue and it increases our chances of commenting usefully. I would hope that eventually we would be able to do a similar thing about suicide ... we could do similar work with appropriate academics and researchers and contribute that way because I don’t think that our value is in making recommendations on a case-by-case basis.

Coroners’ recommendations about SUDI are useful not only because they focus on the health and safety messages about safe sleeping for babies, but also because they draw from evidence from a number of cases. Coroners referred to the “patterns” in SUDI cases.1140 Many coroners stated (10/15) that in SUDI cases they “reiterate Coroner Evans’ previous findings about SUDI.”1141 In our study period, there were 47 repeated coroners’ recommendations about SUDI.1142

Several organisations (4/79) cited examples of particular types of death where coroners’ recommendations had identified emerging patterns and trends. For example, organisations specified cyberbullying as an example where coroners “added value” because “they noticed the trends recurring before anyone else did.”1143

While this study and previous research highlights the limitations of an evidence base that any one death is likely to present, there may be occasions where it is acceptable to focus on a specific case. For example, it may be appropriate for the

1138 Email from Coroner Frank to Jennifer Moore regarding the draft of the JLM article (22 July 2013).

coroner to focus on an isolated case in inquiries where the issues are “narrowly concentrated on local conditions – such as local road design and traffic management arrangements” or in cases involving “particular institutions – hospitals, prisons, and care homes.”1144

However, for the coroners who do consult previous coronial findings and analyse patterns, it is of concern that some of their colleagues make recommendations on a “case-by-case basis”:1145

I always get one of the researchers to see if she can find similar cases to check what other coroners have done. This is another important point. The worst situation is when you have two coroners making two completely different recommendations about the same thing. Credibility goes out the window. This is what worries me about the recommendations that aren’t evidence-based because I don’t want to be bound by those recommendations.

Inconsistent recommendations undermine “credibility” and “devalue the coronial process.”1146 Organisations pointed out that this issue may “not be the coroner’s fault. It might be the people who provide the information to the coroners who are not looking at other cases.”1147 Organisations reported that recommendations that do not reflect “the right advice, the right input” from experts and/or organisations are considered less evidence-based, “valid”,1148 and prevention-focused.1149 These organisations pointed out that when coroners do not “consult the people who really can make a difference in terms of the impact of coroners’ recommendations, then the ability to get that finality for the family is somewhat reduced.”1150

Some coroners reported (8/15) that it is their standard practice to consult with organisations that may be able to inform their recommendations. Coroner Stewart described a bunk bed case which involved analysis of previous similar cases and consultation with an organisation:1151

1146 Interview with Mountain Safety Council (Jennifer Moore, 15 February 2013). 1147 GovtOrg08, above n 848.

1148 Interview with Police (Jennifer Moore, 22 April 2013). 1149 Electricity Engineers’ Association, above n 2.

1150 Electricity Engineers’ Association, above n 2. 1151 Stewart, above n 195.

I did a bunk bed case and I remember getting researchers to check whether there had been any other bunk bed cases. That was interesting because none of the findings made recommendations about bunk beds. Then I talked to Standards NZ and realised that there were standards associated with railings. I had used Standards NZ before where a baby died in a stroller. I wanted to know what warnings were put on strollers for using them as sleeping spaces for babies.

Some organisations (44/79) stated that they have provided the CSNZ with data to assist with their inquiries. This data can include statistics and information about patterns. For instance, the NZ Transport Agency has provided coroners with:1152

data about crash trends and crash patterns. International practice says crashes are rarely random events, so you might have a pattern of risks along a stretch of road where a crash happens... Any recommendation at some point should be based on those overall patterns.

did a review of the suicides that had occurred over a 12 month period. We provided information about the patterns. We gave this to Neil [Chief Coroner]. They thought it was fantastic. But they relied on an outside agency to provide that information to them.

As the Police point out, the CSNZ “relied on an outside agency to provide” vital information to them. As we outlined earlier in this chapter, a service similar to the Victorian CPU should be introduced in NZ. This would enable consultation with stakeholders. Information about patterns could be gathered which would improve the preventive potential of coronial recommendations. The Police noted that approaches within the CSNZ have improved. However, their view is that coronial practice is overly focused on outcomes for family, rather than prevention initiatives for the community:1154

The risk with coroners (probably mainly a few years ago), is that they would tend to deal with a death as a single event, rather than putting it into the context of a whole lot of similar things happening. Since

we’ve had the Chief Coroner, we’ve noticed that they have improved because they’ve looked at themed reviews for example all the pedestrians or cyclists that have been killed and looking at what went wrong in general. That’s a good approach...If there was something in the Act that required coroners to look at groups of events rather than single deaths, that would be helpful...Put the death into a database. What are the themes? What are the patterns? At the moment the focus seems to be on cause of death for the information of families, rather than for the community, or for people trying to prevent things from happening.

Like the Police, 35/79 organisations also suggested that the Coroners Act 2006 should be amended to require coroners to consider patterns, trends and comparative risks instead of “single deaths.” These organisations argued that consideration of a “wider number of cases makes the recommendations more evidence-based.”1155 In the next section, we discuss how evidence-based recommendations can increase their preventive potential.

After the release of the NZ Law Commission’s seminal 2000 report on coroners, Coroner Evans posed “practice problems” questions, several of which pertained to recommendations:1156

In what kinds of circumstances should we make recommendations and comments pursuant to section 15(1)(b) of the Act? To whom should such recommendations be addressed? Do they require to be supportable upon the evidence heard at inquest? Should the making of recommendations be reserved for the most serious cases? Do we water down the value attached to such recommendations by making too many?

This study’s participants’ response to Coroner Evans’ third question was a resounding ‘yes’. All coroners, organisations and interested parties reported that coroners’ recommendations must be “evidence-based.” When asked to define ‘evidence-based’, all coroners stated that it meant information tested in court or, as

1156 Coroner Evans “The New Zealand Law Commission Report on Coroners 2000: Coronership in New Zealand in the New Millenium” (Australasian Coroners’ Society Conference, Brisbane, 2000) at 14.

Coroner Evans said in 2000, “supportable upon the evidence heard at inquest.” Such evidence may include research or scientific evidence.

According to the Chief Coroner, recommendations must be “concise, precise, targeted and evidence-based.”1157 As we have discussed in this chapter and chapter 4, our findings support his observation that recommendations must be targeted towards an identifiable person and/or organisation. The following comment from Coroner Stewart captures the sentiments of some coroners:1158

Recommendations have to be evidence-based. Just because you are a coroner does not mean that you are a God and that you can pluck recommendations out of the air. They have got to be meaningful and evidence-based. This is why I make very few of them...Evidence is about having a foundation upon which to base your recommendation rather than plucking it out of thin air or stating the obvious. That foundation could be witnesses, or research.

As we outlined in chapter 4, the number of recommendations made varies depending on the coroner. Like Coroner Stewart, some coroners “make very few” recommendations, partly to avoid “water[ing] down the value” of recommendations. As one coroner put it, “one would not think of making a recommendation unless the evidence shows a need for it.”1159

The NZ Government’s current review of the coronial jurisdiction proposes amending the Act to ensure that coroners’ recommendations are specific to the evidence before the coroner.1160 This study’s findings are consistent with that proposal. Coroners’ recommendations have been quashed and set aside upon judicial review on the grounds that they were not supported by the evidence.1161 For example, in Suckling v Malcolm, the High Court quashed the coronial recommendations, holding that they improperly contained “expressions of personal opinion on matters not within the proper ambit of the Coroner’s investigation.”1162

The organisations that we interviewed also commented that recommendations that are based on “personal perspectives” are unlikely to be implemented. Organisations were wary of coronial comments that recommendations

1161 Suckling v Malcolm HC Timaru CP 6/87, 13 September 1989. 1162 Suckling v Malcolm, above n 1161.

were a “no-brainer” because they believed that such recommendations were not “justifiable” according to the evidence.1163 The recommendation that cyclists should wear high visibility clothing was frequently cited by organisations (48/79) as an example of a non-evidence-based and non-justifiable recommendation.1164

In order to avoid unfavourable judicial reviews and non-evidence-based recommendations, several coroners suggested that the structure of coroners’ findings should be standardised to ensure that the evidence is clearly linked to the conclusions and recommendations. In the section on practice notes and Coroner’s Court Rules, which is later in this chapter, we discuss the importance of standardisation in coronial findings. In this section, we are emphasising that coronial findings must be written so that the connections between recommendations and evidence are clear. The following examples from Coroner Reid demonstrate how to achieve such connections between the evidence and recommendations:1165

There needs to be a correlation between the evidence and the recommendation. The reader should not be left wondering how and why the coroner made the recommendation. It should be evident from reading the expert opinion and evidence in the finding. In the Piper Chieftan case1166 in the recommendations, I did a preamble for each recommendation, drawing from the evidence, so that it was clear. We need to get consistency in drafting. It is more than the template. The template is the setting, but there is an art to extracting comments and recommendations from the evidence. If you look at the Timothy Stone case1167 and go to the second to last page with the recommendations, then go to the last page “the above recommendations are directed to skiers generally...” I ran these recommendations past the expert witness and he came back with useful suggestions relating to the NZ ski instructors’ alliance so that came in as a result of his suggestion. These recommendations are very clearly based on the evidence. If you look back at the evidence, you will see where they come from. The protective helmets recommendation was based on evidence on that point. The Mt Cheeseman ski club recommendations were related to terrain management evidence. So all the recommendations are evidence- based.

1164 Fitzgerald [2013] NZCorC 6. The coroner made four recommendations to the Minister of Transport, one of which was: “That just in the same manner that it is compulsory for a cyclist to wear a safety helmet when cycling on public roads, all cyclists (with the exception of those partaking in a controlled event, such as a road race) should wear high-vis clothing.”

1166 New Zealand Office of the Auditor-General, above n 993. 1167 Stone [2012] NZCorC 187.

This coroner’s description highlights that “consistency in drafting” is necessary. It also points out the importance of consulting with expert witnesses about proposed recommendations. In the Timothy Stone case, the coroner redrafted his recommendations on the basis of the experts’ input. Other NZ coroners also follow this practice. After the research interviews, two coroners commented that they had altered their practice on the basis of our preliminary findings on this point. For instance, Coroner Dymond noted that he had “taken up your suggestion that you don’t make a recommendation to somebody until you tell the person what you’re recommending and make sure it’s workable or in the right language and so on.”1168

The organisations that we interviewed overwhelmingly preferred coroners to consult with them about proposed recommendations. In the section ‘evaluation and feedback’, which is later in this chapter, we highlight that organisations prefer to provide feedback during the coronial process. Organisations want to provide coroners with evidence to inform their recommendations. The National Poisons Centre provided an illustrative example:1169

The most recent work we did with the coroner in Wellington over the helium death. There was some very good research that had come out of Australia and some other countries. I was able to give them the figures on deaths in Australia and northern Europe...So that was really spot on.

Similarly, many organisations want to provide coroners with research evidence to inform their recommendations:1170

Instead of having a sound research base to recommendations, they can come up with a bright idea that might sound right, but according to the research, is wrong. An example is the blood alcohol level for driving in NZ. The level in NZ is stupidly high. We end up with hundreds of unnecessary deaths and injuries on the road because of our unusually high level and because of the current legislation. Coroners could look at international research. Every international study says the same thing. The ability to look at the commonalities of deaths and injuries relating to the blood alcohol level could provide coroners with powerful recommendations. But this sort of powerful recommendation that could be made, hasn’t been done.

1169 Temple (National Poisons Centre), above n 960. 1170 Cliff (Police), above n 190.

Organisations argued that research evidence can be used to formulate “powerful” recommendations. Some coroners worried that their colleagues “do not think about research based evidence.”1171 This concern reinforces the importance of consultation with organisations to discuss the evidence. The following example demonstrates how the coroner’s proposed recommendation was reformulated on the basis of consultation and expert input:1172

Coroner: I think evidence can be in the form of witnesses and in the form of research. When I feel that there is a sufficient academic base that is publicly available. The research has been done. I didn’t need an expert. In other areas, I think that we should be calling evidence on recommendations. Whether it’s a medical or engineering report, we should call the evidence. An example is the case of the fishermen who were being swept off a rock by the beach because they were accessing the rocks by a cable. It was a big thick wire that had been erected over a cave. It was difficult for rescuers to access. The cable had been taken down several times by the local council. We went out to the beach to look at it. We had about three deaths there. I went to the inquest thinking that we could fix it by getting rid of the cable. We called the harbour master and Surf Life Saving NZ. In the course of the inquest there was discussion about whether it would be safe to remove the cable and the wire. There was the comment that if the wire and cable were removed it might increase the risk because then the fishermen would try to access the fishing spot by going over the headland and that was even more dangerous. So that complicated matters!

Coroner: I said someone needs to analyse this properly. I made a recommendation that there should be liaison between the parties with a view to assessing the risks involved in removing the cable. I felt that there was more evidence and information that needed to be gathered before I could make a recommendation.

This coroner recommended that the organisations gather further evidence in order to decide how to remedy the situation. This consultation, and approach to the evidence, increases the likelihood that the outcome will prevent future similar deaths. The following description from Maritime NZ captures organisations’ preferred consultative approach:1173

We want to provide input and we want to provide evidence to assist the coroner. Agencies like us will spend lots of time analysing accident data to prove whether or not different types of interventions

The Queensland State Coroners’ Guidelines are consistent with the research participants’ preferences. These guidelines encourage coroners to “seek input from agencies who will be required to consider whether and if so how the recommendation can be implemented.”1174 Obtaining such evidence from organisations has the additional advantage that recommendations will be based on patterns and trends and, therefore, prevention-focused.

However, several coroners (4/15) pointed out that their decision making about whether to call experts and, if so, how many, and gathering the right evidence is not always easy. Coroner Oldfield’s description of evidence and experts captures the complexity of this decision making:1175

I think there are times when you do not require expert evidence to make an evidence-based recommendation. For example, with the scrum machine case I had evidence about what happened on the day. I had evidence from the school and OH&S. It was enough evidence for me to say that the machine was unstable and potentially dangerous. But I had trawled through every word of what I had to get there.

On the other hand, I would never have considered making recommendations in that health care case, if I had not had careful and skilled evidence from experts about the medicine and the guidelines. And then there are other cases where I either would or wouldn’t make a recommendation without expert evidence. For example, I dealt with the death of a man who hit a wire rope barrier on the road and there is a lobby against the danger of wire rope barriers. I got expert evidence in relation to the issues because if I were to make recommendations about wire rope barriers, I needed to be sure and, in fact, in that case I did not make recommendations in relation to wire rope barriers because I was satisfied on the basis of the evidence that it would not be warranted. I decided that on the basis of the expert evidence and the facts.

The evidence has to be based on the facts of the case and the coroner needs to decide how much evidence she or he needs to make the recommendation...Sometimes it is hard. At what point do you move from one level of evidence to another? When do you need expert evidence? When do you need to pin your recommendation on that expert evidence? When do you need more expert evidence? For example, I have a case that has haunted me. I can’t do it any better, but it was a suicide of a young teenager and everything had failed her. The ultimate failure, possibly, was at the school. I am not necessarily satisfied it was an ultimate failure. She was seen by a school

counsellor. The counsellor assessed the risk of further self-harm as low. The counsellor arranged to see her the next day, but the child hanged herself overnight. The counsellor acted in accordance with the guidelines. I did get some expert advice. It was around all the things that had failed the child. I did make comment in the end, but it was hinged on the expert advice – that a school counsellor cannot, on their own, observe a child all the time. I could go on and on and get more expert advice, but sometimes you need to go with your gut and say that someone needed to keep that child safe. I have thought about it so much that I am probably not a safe driver anymore. When should I stop?

Some coronial recommendations did not appear to be based on evidence. For example, in a transport accident case, the coroner makes a “generalised recommendation because [he had] no evidence before” him:1176

I recommend that the police consider formalising their policy and produce guidelines for officers to follow when stopping drivers who are in breach of restricted licences. This is a somewhat generalised recommendation because I have no evidence before me which would enable me to make a more specific recommendation. But I have confidence that the police will consider whether it is necessary to make a formal policy and produce guidelines or whether, as stated by Inspector Wallace, police have already addressed the issue by increasing expectations that drivers who are stopped while in breach of the terms of their restricted licence should be prevented from driving on.

Health sector organisations emphasised that their calls for input and consultation did not mean that they were not supportive of external independent scrutiny of their practices which could provide insight into the operation of health care systems.1177 Some organisations (53/79) also emphasised that their input is intended to facilitate discussion during the coronial process. They did not expect that coronial findings or recommendations would always accord with organisations’ input. The following exchange between the researcher and an organisation demonstrates the distinction:1178

EEA: Well I think to me that sounds almost a bit arrogant, because in a sense, I don’t have a problem with third parties looking at what we do and saying you need to improve. It needs to be considered and discussed with the industry, rather than saying it’s got to be based on industry outcomes. Because if the coroner looks at it and he says ‘Well actually I know you guys do a lot of good work but I think you’re short here,’ then we might just have to put our hand up and say well actually you’re right.

Organisations also pointed out that their input may differ from the views of other experts and/or interested parties. The coroner will hear evidence about the events in question and their relationship to the death. S/he can hear evidence about the problems in the case and the pros and cons of various solutions to the problem. Such evidence can inform the coroner’s decision making about whether recommendations are necessary and, if so, how to formulate those recommendations. However, different parties may place greater emphasis on specific aspects of evidence.

Deaths at nursing homes sometimes generate this situation.1179 The family, nursing home, health professionals and Ministry of Health may all have different views about the relevance and importance of evidence. The family may wish to comment on all aspects of the care given to their relative including medical, recreational and dietary for the entire time that the deceased lived in the home. The organisation (e.g. the nursing home) may wish to provide clinical evidence and data about adverse events to assist the coroner. However, the organisations interviewed accepted that the coroner will, and should, reach his/her own decision about the weight to be placed upon the different parties’ evidence.

Interestingly, while many health sector organisations interviewed approved of external coronial scrutiny, they also noted that recommendations which were inconsistent with clinical evidence and practice were less likely to be implemented. The following example was typical of many health sector organisations’ views:1180

This has been discussed at the National Chief Medical Officer meetings. We’ve sometimes discussed some of the recommendations in other parts of New Zealand, especially when we’ve not agreed with the recommendations that the coroners make because we feel from a medical point of view, they’re not evidence-based and not really in

1179 Franklin Moskoff and James Young “The Roles of Coroner and Counsel in Coroner’s Court” (1987) 30 Crim LQ 190.

1180 Interview with HealthCareOrganisation599 (Jennifer Moore, 10 December 2012).

These concerns were foreshadowed in the health sector submissions on the Coroners Bill 2006. For example, the NZ Chief Medical Officers’ and Health and Disability Commissioner’s submissions argued that coroners must have easy access to clinical expertise and use a robust selection process for obtaining experts.1181 As we pointed out earlier in this chapter, the quality of information available to coroners correlates with the quality of their recommendations. Health sector submitters prefer coroners to invoke section 83 of the Coroners Act to use specialist clinical advisors to sit with, and help, the coroner.1182 However, the coroners interviewed explained that financial constraints often prevent them from fully utilising this option. In addition, advice given by a specialist adviser may be given any weight the coroner thinks fit.1183 These issues provide further weight to our proposal to introduce a service similar to the Victorian CLS.

During interviews with health sector organisations, one recommendation was almost universally cited as an example of a recommendation that was inconsistent with clinical evidence and unlikely to be implemented. The recommendation was made after an 80-year-old woman died of a subdural haematoma caused by an accidental fall:1184

To: All District Health Boards and to the Medical Council of New Zealand, for dissemination to all hospitals and doctors in private practice.

1181 Colin McArthur with NZ Chief Medical Officers Submission to the Justice and Electoral Select Committee on the Coroners Bill (2005) at 1; Helena Strange, Health and Disability Commissioner Submission to the Justice and Electoral Select Committee on the Coroners Bill (2005) at 1.

1182 Coroners Act 2006 (NZ) s 83; (2 August 2006) 633 NZPD 4666. Section 83(1) of the Act states that: “If satisfied that it is desirable to do so, the chief coroner may, on the recommendation of a coroner, appoint a cultural, legal, medical, or other specialist adviser to sit with and help the coroner at an inquest by giving advice.”

There was one in particular that agitated nearly all of us. It was about clinical practice about CT scanning after head injury. It was a recommendation that basically said that everybody who falls over, well, I'm exaggerating but, everyone who falls over gets a CT scan. We thought "hang on guys, we've got pretty good protocols in place from the College of Emergency Medicine”. That recommendation stands out as being one where the coroner was really firm about our threshold for CT scans in elderly head injuries. We thought "Well, actually, on the basis of one case, does not necessarily make a good protocol.”...there has to be communication between DHBs and coroners, otherwise the recommendations can be misguided.

Like this DHB, many health sector organisations (20/26) reported that they were not adequately consulted about clinical evidence during the coronial process, which was particularly problematic if the coroner made recommendations about clinical practice. Improved communication between coroners and clinicians, and ease of access to clinical expertise for the CSNZ could enhance the preventive potential of coroners’ recommendations and also improve quality of care and patient safety.1186

In aviation, commentators have similarly complained when coroners’ recommendations have not reflected aviation best practice, evidence, or adequate consultation with industry experts. In an inquiry about a Tiger Moth aircraft crash,1187 an interested party commented:1188

This strikes me as the coroner making comments in an area in which he has no expertise at all. The comment “recovery from a spin, once encountered, was highly unlikely” shows his ignorance. Spins are not “encountered,” they must be induced by mishandling the controls, either intentionally or unintentionally. In this case, I suspect it was unintentional because regulations require any aerobatics to be performed above a minimum altitude and in an area clear of other traffic. In the circuit at an airfield is not permitted. Did the pilot have a reputation for ignoring the rules? If not, this was probably unintentional. The question now is why? I would want to know the wind direction and strength at the time and where in the circuit this happened. A tiger moth is a slow aircraft and is greatly affected by the wind. There are well known visual illusions caused by the wind taught to every student pilot. Flying downwind can give the impression of adequate speed, but this is from looking at the ground going by; the actual aircraft airspeed might be very low. The other well-known trap is when turning from base leg onto final. If the center line is being overshot, the tendency is to apply rudder in

order to increase the turn rate. This is exactly the way to enter an intentional spin – slow down, apply ‘g’ and apply some rudder so one wing stalls before the other. I expect the NZ accident investigation department were involved. They would have looked at other factors apart from those above like the pilot’s history, medical reports, recent experience, whether dual controls fitted and could the passenger interfere. More needs to be said about this in the coroner’s report. There is a lot more to this than just “encountering a spin.”

By contrast, in a coronial inquiry involving an Airborne Windsports Edge XT- 912 microlight aircraft which crashed on Gibbs Hill, Tasman District while on a commercial scenic flight,1189 the industry perception was that the coroner “had done his homework, consulted with experts, and studied the accident report in detail.”1190

Recommendations that are evidence-based are more likely to achieve greater preventive impact because organisations reported that they will typically implement evidence-based recommendations. For example, the Midwifery Council noted that if recommendations “are well-founded, well-communicated, well-evidenced, and they’re feasible within the context of practice, then we would do everything we can to implement them.”1191

Producing “well-evidenced” recommendations, though, is not always easy. Despite the cultural depictions of forensic scientists and medical examiners as objective mediators of scientific truth in television shows such as CSI, Body of Proof and Crossing Jordan, there is uncertainty in medical science.1192 There are also different types of medical evidence (accorded differing levels of weight) with the randomised controlled trial typically considered the gold standard in the evidentiary hierarchy. Likewise, various types of legal evidence are given different probative value. According to Professor Werry, there is a difference between the legal and scientific definitions of ‘evidence’. The former refers to “factoids collected by the police for court”, while the latter is “governed by a set of rules which determine its probable degree of accuracy. The gold standard is that of the Cochrane collaboration.”1193

Several health sector organisations complained that their evidence is weighted unfavourably by the Coroner’s Court. For example, the Midwifery Council pointed out that the value placed on midwifery evidence varies across coroners. They described their experience as follows:1194

We have such trouble in the Coroner’s Court because they really do think that when the doctor says a pregnant woman shouldn’t go more than 5 days, that’s the evidence. There’s no evidence for that! So we would then have to get up and say this expert witness is not evidence- based. But our evidence-base, which is midwifery, isn’t valued in the same way as them.

The Midwifery Council’s experience arguably reflects the “boundary work” that has been undertaken to demarcate ‘science’ from ‘non-science.’1195 Their description suggests what theorists call “the medicalisation of labour.”1196 Their experience may also be a reflection of the privileged positioning of gold standard scientific evidence in medical decision making. ‘Experience’ is not privileged in the ‘evidence-experience’ binary. In analyses of how residents “learn to doctor”, sociologists of medicine have shown that pure distinctions between informal experience and formal experience do not really exist.1197 ‘Evidence’ and ‘experience’ are complementary resources.

However, the issue of whether ‘experience’ counts as ‘evidence’ persists in medicine and law. We discuss standardisation in law later in this chapter. The standardisation movement in medicine emerged in health care in the late 1980s.1198 Its guidelines, decision tools and recommendations for health practitioners on how to practice medicine are based on a systematic evaluation of scientific evidence. The key objective of guidelines and decision tools is to standardise decision making across practitioners and time. Proponents of evidence-based medicine tend to be critical of

1195 T Gieryn “Boundary Work and the Demarcation of Science from Non-science: Strains and Interests in Professional Identities of Scientists” (1983) 48 American Sociological Review 781.

1196 JM Usher Body Talk: The Material and Discursive Regulation of Sexuality, Madness and Reproduction (Routledge, London and New York, 1997).

1197 Stefan Timmermans and A Angell “Evidence-based Medicine, Clinical Uncertainty, and Learning to Doctor” (2001) 42 Journal of Health and Social Behaviour 342.

1198 D Sackett and others Evidence-based Medicine: How to Practice and Teach EBM (Churchill Livingstone, New York, 1997); Moore, above n 341.

basing clinical decisions on experience.1199 A small number of coroners (4/15) defined ‘evidence’ in the Coroner’s Court as including experience. For example, Coroner Pennell defined ‘evidence’ as follows:1200

Empirical evidence or scientific backing. Genuine, long-term experience, or a combination of both. Case law, evidence heard in court.

Social scientists and philosophers of science have long questioned whether experience can ever be disentangled from what counts as ‘evidence’.1201 Calling the artificial distinction between ‘experience’ and ‘evidence’ into question, two Australian doctors provide an amusing parody in the British Medical Journal.1202 The authors offer seven alternative grounds for standardised decision making: eminence based medicine (base your decisions on seniority), vehemence based medicine (substituting browbeating your colleagues for evidence), eloquence based medicine, providence based medicine (letting God decide), diffidence based medicine (do nothing from a sense of despair), nervousness based medicine and confidence based medicine (restricted to surgeons).1203 This parody suggests that evidence-based medicine interacts, and competes, with other elements and factors in medical decision making. Likewise, evidence-based coroners’ recommendations and coronial decision making interacts with other elements such as “genuine, long-term experience.”

Sometimes there is conflicting scientific evidence. Occasionally there is no gold standard evidence, or any scientific evidence. Very few health sector organisations (2/26) commented on these limitations. The two health sector organisations that did recognise the uncertainties in evidence, reframed ‘evidence- based’ as “evidence-based opinion” or “evidence-informed” because “80% of maternity practice doesn’t have good evidence for it.”1204 Likewise, a DHB explained

1201 P Benner and C Tanner “Clinical Judgment: How Expert Nurses Use Intuition” (1987) 87 American Journal of Nursing 23; Timmermans and Angell, above n 1197; P Atkinson Medical Talk and Medical Work: The Liturgy of the Clinic (Thousand Oaks, London, 1995).

that “most of the population believes that medical opinion is set in stone; whereas, in fact, the evidence base for 40% of what we do is zero.”1205

Despite these challenges with evidence, all participants noted that when gold standard evidence is available, it should inform coronial recommendations. Participants observed that non-evidence-based recommendations reduce the validity and impact of quality recommendations. Coroner Dymond described an illustrative example:1206

A coroner called for snow tyres to be abolished...He might want them outlawed in his jurisdiction, but, in the far South, they’re almost compulsory. There are hundreds if not thousands of vehicles in Central Otago in the winter equipped with snow tyres including things like emergency vehicles. So you put out a comment like that and it reduces the impact of valid recommendations. People say ‘here’s another stupid coroner’.

What should be considered the gold standard coroner’s recommendation? There are various options such as: 1) the recommendation is robust and evidence- based; 2) the recommendation is internally consistent; 3) the recommendation stimulates action towards prevention; 4) the recommendation reduces deaths and injury.1207 Our view (supported by the empirical evidence) is that coronial recommendations should be evidence-based and prevention-focused. In particular, the principles for recommendation formulation should include:1208

e.g. environment, product and/or design change; education or training; behaviour modification;

1208 Samantha Hauge and Lyndal Bugeja “Enabling Public Health and Safety Through the Coroners’ Death Investigation System: The Principles and Practice of the Coroners Prevention Unit” (Asia Pacific Coroners Conference, Australia, 2011).

The following example does not apply the above injury prevention principles: “Lastly, in stating the obvious, chewing ones food properly before swallowing goes without saying.”1209 By contrast, a theoretical example of a coroner’s recommendation which applies public health/prevention principles is:

Surf Life Saving NZ amend section 11 of the Guidelines for the Safe Pool Operation 2001 to require the installation of non-slip surfaces on all diving boards and towers to prevent incidents of slips, trips and falls amongst patrons and staff of public swimming pools.

This recommendation targets an appropriate organisation (Surf Life Saving NZ) which is the primary drowning prevention agency. It provides a prevention solution: the installation of non-slip surfaces. It outlines the level of regulation: policy reform. Modification to the environment is identified as the strategy for implementation. The patrons and staff of public swimming pools are identified as the priority populations at risk. The recommendation identifies risk or contributing factors as falls and drownings. Surf Life Saving NZ could be consulted by the coroner and provide evidence to assist in the formulation of such a recommendation. The consultation with experts and organisations required to formulate evidence-based recommendations may delay the coronial process. Delays are costly and may be undesirable and stressful for parties, particularly families. Therefore, there must be a balance between consultation and efficiency. We discuss delays in

A significant number of organisations (51/79) and interested parties (5/8) reported that delays in the coronial process prevent recommendations from achieving their preventive potential. The following comments from a lawyer illustrate many participants’ concerns:1210

At the moment, the coroner’s role is problematic because of delays. By the time coroners have heard cases and issued recommendations, often organisations and health professionals have already identified changes that need to be implemented to reduce the chances of future

deaths. For example, if HDC is investigating, the coroner may await the HDC outcome. The organisation will think about how the death occurred and what to do to prevent future deaths. This will often happen before the coroner makes recommendations. Delays are inhibiting coroners from achieving the Act’s purpose.

Many health sector organisations’ (24/26) comments were consistent with the lawyer’s observations. For example, a senior clinician explained that because “the coronial stuff comes out a long time after we’re done, we’ve almost always done our own analysis and put measures in place to ensure there are no similar adverse events in the future.”1211 As we explained earlier in this chapter, access to clinical expertise was introduced to the Victorian, Australian Coroner’s Court in order to improve procedural delays, and evaluative research has found this strategy has been successful. This provides further support for our recommendation that a similar service should be introduced in the CSNZ.

The participants who did not agree that delays impact the preventive potential of recommendations, were concerned about the tension between quality and timeliness. As Child, Youth and Family stated, “if you do a lot of things quickly, you’ll most certainly sacrifice quality.”1212

Several coroners emphasised the importance of holding inquests despite their time consuming nature. For example, Coroner Dymond described the process as follows:1213

We take justice out to the people and hold inquest hearings in the centre of a population for the benefit of families...So although Auckland have a greater body count, they’ve got no idea of the mileage that we do...I don’t think anybody would doubt that the ideal

1212 Chief Social Worker, Child Youth and Family, Ministry of Social Development, above n 1123.

for a coroner is to conduct an inquest in open court...I won’t say they [families] enjoy the experience, but they actually benefit from the experience, and I don’t think I’ve ever found anybody in the previous 25 years who has ever regretted coming to an inquest. It’s a closure, it’s a catharsis...It’s very easy to convince the family that they don’t want an inquest in open court – they want a hearing on the papers. Therefore life is a lot easier for us. We don’t have to travel...I can sit here, get the information in, dictate a finding, and flick it out. That’s what effectively we’re being forced to do by the constraints on resources and time. When we go to inquest, even if we drive in our own time early in the morning or late at night, we’re still away. We try to do the routine work as best as we can, but it takes time and it’s not easy.

The “constraints on resources and time” adversely impact on coronial processes. The NZ public demands, and deserves, a high-performing coronial system. This study’s findings demonstrate that providing adequate resources and access to expertise (such as clinical advice) would reduce delays in the coronial system. Introduction of a service similar to the CPU would mean that the CSNZ had staff dedicated to consultation with stakeholders. In Victoria, Australia, this consultation has improved the preventive potential of coroners’ recommendations. Some organisations conceptualise their preventive goals as aligned with coroners’ prophylactic function. We explore this topic in the next section.

Some organisations interviewed for this study reported that their organisational prevention policies were aligned with the coronial statutory prophylactic function. For instance, a government organisation commented that “the Coroners Act and our Act have similar focuses which include safety. We are both in the business of improving safety.”1214 Similarly, the Department of Conservation observed that the coroners’ “prevention focus is entirely consistent with our national approach...our whole focus...is around prevention.”1215

Organisations hoped that the coronial process would foster relationships with coroners which would focus on prevention strategies. For example, some health care

organisations (14/26) reported that it is useful to work with coroners to produce preventive recommendations and outcomes:1216

It’s a question of joining forces. If you’re talking about deaths that occur as the result of a kid not being immunised, then the coroner’s office should join hands with the paediatricians and get it out on a broad front. And if you’re talking about wearing helmets, again contact those of us who deal with the emergency situations that result from not wearing helmets and say, “Look let’s get this out there and take preventive action.” And so as opposed to just the coroner saying it, the coroner should potentially approach involved stakeholders and say, “I’m going to make this recommendation, do you agree with it and would you be happy to endorse it?” Share the learning to prevent deaths and publicise the potential risks.

Similarly, Maritime NZ stated that their “goals are aligned with the coroners’. We both want to prevent similar deaths from occurring.”1217 They “actively monitor and use coroners’ inquiries to assist with what we are doing.” Maritime NZ “sees coroners as another body that helps advance [their] cause which is to help avoid people getting killed on boats.” Organisations such as Surf Life Saving NZ, the Mountain Safety Council and the Department of Conservation also conceptualised their prevention roles as dovetailing with the coronial prophylactic function.

Surf Life Saving NZ is developing a website, ‘CodeBlue’, which is dedicated to prevention and targets “higher level bodies like coroners, territorial authorities and councils”.1218 CodeBlue is a web-based information management system, which stores all the data and recommendations from aquatic risk assessments conducted throughout NZ.1219 The website allows stakeholders to review completed risk assessments and collaborate to implement the recommendations to reduce the risk of drowning and injury in NZ.1220 Surf Life Saving NZ want to work with the CSNZ to prevent morbidity and mortality:1221

We don’t just want coroners making recommendations when someone drowns. We want to try to involve coroners to prevent people from drowning. I guess that depends on how they see their role too in terms of providing some support for that prior to deaths actually occurring.

There will always be drownings. It’s not zero risk, but we do our best to try to stop drownings.

Surf Life Saving NZ’s comments are similar to other organisations who want to “involve coroners” in their prevention endeavours. Many such organisations referred to coroners as “partners” in prevention.1222 The NZ Transport Agency, for example, argued that coroners can maintain their judicial independence while working in a partnership.1223 Likewise, the Department of Conservation developed the ‘Outdoor Safety Code’: five simple safety messages for the outdoors which aim to reduce incidents.1224 The Department of Conservation’s view was that if coroners cited this Code in their recommendations it would be “an incredibly powerful mechanism for getting the prevention message across.”1225 Throughout the research process, we have introduced senior representatives from organisations to the Chief Coroner to foster these collaborative prevention-focused strategies.

Many organisations view coroners as “a mechanism to get action” for their prevention goals.1226 This often involves using coroners’ recommendations as an opportunity to lobby the government for resources and funding.1227

Many organisations (41/79) reported that they analyse coroners’ findings and recommendations in order to further their organisational prevention goals. The Dive Magazine NZ and website include full coronial findings about diving-related deaths.1228 The editor of Dive Magazine explained that they include coroners’ recommendations because “divers want to read this stuff. They want to know what went wrong on dives so that hopefully they don’t make the same mistake.”1229 Dive Magazine editorials have discussed what can be learnt from coroners’ recommendations. Likewise, the Ministry of Health read coronial findings to “look

1224 Goddard (Department of Conservation), above n 183. 1225 Goddard (Department of Conservation), above n 183. 1226 Surf Life Saving NZ, above n 189.

1227 For example, Goddard (Department of Conservation), above n 183; Temple (National Poisons Centre), above n 960.

1228 Dive Magazine NZ “Dive New Zealand : Coroners and Accident reports” Dive NZ

for patterns...common issues that are emerging, so that for the benefit of future patients, we can make changes.”1230

Some organisations remarked that changes could only be made for the benefit of the community if coroners and organisations formulate “consistent safety messages.”1231 Several organisation, such as the NZ Transport Agency provided us with reports, outlining their safety messages, which they would like coroners to consider when formulating recommendations. Organisations would prefer “strategic alignment” between their safety messages and coroners’, particularly “when coroners comment on health and safety in the media.”1232 This approach will increase the preventive potential of coroners’ recommendations because the safety messages communicated to the public are consistent.

However, organisations emphasised that these consistent safety messages must be based on prevention principles. Although most coroners (11/15) stated that recognising a preventable death is “obvious”, their recommendations were not systematically consistent with public health principles. Coroners’ recommendations rarely identify the population at risk or whether the proposed countermeasure addresses an identified risk factor. Practice notes which encourage coroners to consult with interested parties may assist coroners to develop recommendations based on prevention principles. We discuss this issue in the next section.

Coroners are not required to observe the rules of procedure and evidence which apply in other courts of record.1233 However, the 2008 Ontario Goudge report is an important reminder of the unacceptability of death investigations that are not rigorous and that are the product of inadequately evaluated expert evidence.1234

On the one hand, research participants were generally positive about the inquisitorial nature of coronial inquiries. On the other hand, there was overwhelming

1231 Goddard (Department of Conservation), above n 183; Mountain Safety Council, above n 1146; NZ Transport Agency, above n 176.

1234 Stephen Goudge Inquiry into Paediatric Forensic Pathology in Ontario (2008).

support from organisations (75/79) and interested parties (7/8) for coroners to observe procedural rules to foster consistency and standardisation in coronial practice.

The NZ coronial jurisdiction does not have official guidelines or Coroner’s Court Rules. The Chief Coroner explained that there is the Bench Book which provides suggestions about coronial practice.1235 There is also a newsletter in which he includes “suggestions about what to think about when [coroners] are doing Y, or to be aware that there has been a new development in a certain area.”1236 In addition, there is facility in the Act for the Chief Coroner to issue practice notes. The Chief Coroner stated that he has:1237

only ever issued one which was about the role of the coroner in after hours mode. I have steered clear, for better or worse, of issuing any other practice notes or guidelines, other than through regular newsletters and training.

Subsequent to the interview, the Chief Coroner has issued further practice notes. Organisations (75/79) and interested parties (7/8) were supportive of the Chief Coroner issuing more practice notes and/or the introduction of Coroner’s Court Rules or guidelines to promote consistency and standardisation. However, only 6/15 coroners supported the Chief Coroner issuing more practice notes.

Inconsistency in coronial practice has been highlighted by commentators.1238 Debates about the Coroners Bill 2006 reveal that an important purpose of the proposed legislation was to assure families that:1239

They will be subject to a standarised process that is the same the length and breadth of the country. This legislation will set down guidelines for professional standards to which coroners will adhere...the terms under which coroners currently operate and what may be called their practice guidelines have never really been established.

The intended purpose of the Chief Coroner’s practice notes was to “get consistent processes and protocols that will help get consistency across the

1238 New Zealand Law Commission, above n 119; Department of Justice and Community Safety Review of the Coroners Act 1997 - Discussion Paper (2008).

country.”1240 The rationale for the Justice and Electoral Committee’s recommendation to introduce a provision into the Coroners Bill 2006 requiring coroners to have regard to practice notes, was to “inform and promote consistency of coronial practice.”1241 In the current review of the coronial jurisdiction, the Minister for Courts also proposes introducing practice notes to achieve consistency in coronial practice. There was consensus among the lawyers and organisations that we interviewed that the Coroner’s Court procedures lacked transparency and that coronial practices were ad hoc and inconsistent.

An important issue is whether there is a need for procedural rules or whether the power of the Chief Coroner to issue practice directions is sufficient. Organisations (70/75) and interested parties (5/7) preferred the introduction of procedural rules. Participants were concerned that coroners need only “have regard to” practice notes issued by the Chief Coroner.1242

Our view is that the introduction of Coroner’s Court Rules would provide greater certainty to participants and improve efficiency by codifying procedural aspects of coronial proceedings. The coroners we interviewed had differing opinions about this issue. The main argument of those coroners who oppose the introduction of Coroner’s Court Rules was that this would fetter their judicial independence. However, procedural rules should not interfere with substantive matters. A practice note is focused on process, procedure and practice, not on policy or the content of coronial findings. The Chief Coroner has stressed that:1243

no Head of Bench can direct his individual judicial officers about policy or direction as to what sort of findings coroners should make. For example, I can’t say to coroners that I think they are being unnecessarily coy about suicide and direct them about what they should say in their findings. I have publicly discussed my view about suicide. But I cannot make individual coroners adopt a certain position about that. It is up to the individual coroner as to how they will implement the sections of the Act.

1241 Justice and Electoral Committee Coroners Bill: Report from the Justice and Electoral Committee (2004) at 4.

Several coroners, who support the introduction of Coroner’s Court Rules, apply the High Court Rules for specific procedural matters. Coroner Aitken provided the following example:1244

I always apply the High Court Rules for expert witnesses in my Coroner’s Court. I let my experts know that I am doing that. I get them to read and sign the forms. The Coroner’s Court Bench Book says that is what you should do and the appendices have examples. It is helpful for the expert too. If you want to do some hot tubbing, they are not surprised.

I think we should be applying the same procedural rules. I think the Chief should decide what the rules are because one of his roles is to try to achieve consistency. I think it would help if we had the Coroner’s Court Rules. It would be so much easier. It is easier for new coroners and it would be much better for consistency. Or we could say that the High Court Rules apply in so far as x, y and z. Procedure is in every Court. I was surprised that it wasn’t in the Coroner’s Court.

In the recent Parliamentary debates about the Judicature (High Court Rules) Amendment Bill, Russell Fairbrother MP commented on the importance of procedural rules and advocated for the introduction of rules for the Coroner’s Court:1245

My experience in the Family Court, which is now some time ago; my experience in the coroner’s court, which was just 2 months ago, under the new Act; and my recent experience in the Privileges Committee, show that no matter how well a tribunal endeavours to work through the inquisitorial process, if there is a lack of clarity of rules, then intuition is not always the best guide to procedure...In concluding, I must say these rules are long overdue. They will be welcome by the Bar. I do hope that our other tribunals—particularly the Coroner’s Court and the Family Court—can receive the same attention as to the rules that guide their processes. The rules of a court are the rules that determine that justice is in fact delivered.

The Western Australian Law Reform Commission recently recommended the introduction of Coroner’s Court Rules in Western Australia.1246 Several jurisdictions such as the UK, some Canadian provinces (e.g. Ontario) and Australian states (e.g. Victoria) have Coroner’s Court Rules.1247 The UK Coroner’s Court Rules or the

1247 Coroners (Inquest) Rules 2013 (UK); Coroners Rules 2009 (Vic) (Australia); Coroners Act RSO 1990 (Ont). Clause 15, section 25 of the Coroners Act RSO 1990 (Ont) provides that the Chief Coroner may make additional rules of procedure for inquests.

Australian States’ Coroners’ Court Rules could be used, with appropriate modifications, as models for the proposed NZ Coroner’s Court Rules.

Several of the coroners we interviewed, who opposed the introduction of Coroner’s Court Rules, were supportive of practice notes to guide coronial practice. However, they also commented that practice notes should be made in consultation with coroners. Given that many coroners still feel undervalued, and they need only “have regard to” practice notes, it is important that coroners have input.1248

The Minister’s current review of the coronial jurisdiction proposes amendments which will require the Chief Coroner to produce further practice notes. Legal commentators who have been “crying ‘Practice Notes!!’” will no doubt welcome this news.1249 The Chief Coroner is aware that many practitioners and commentators have been calling for practice notes. He realises that it is currently “difficult to find out what the practice is.”1250

The procedure for adverse comments is an area where there is variable coronial practice. In the course of an inquiry, or as part of the findings, a coroner may comment on the conduct of any person in relation to the circumstances of the death.1251 The coroner must not comment adversely on a person without notifying the person and giving the person an opportunity to be heard.1252 A coroner’s recommendation could be interpreted as including adverse comment.

This study’s empirical evidence highlights that coroners hold differing views about what constitutes an adverse comment. There are also divergent opinions about the notification procedure. Should the adverse comment alone, or the entire findings, be disclosed to the person/s subject to the adverse comment? Australian research has also identified variable and problematic coronial procedure for adverse comments.1253 We have discussed these issues elsewhere.1254 Our focus in this chapter

is to highlight that the notification procedure for adverse comments could be the subject of a practice note or a provision in the proposed Coroner’s Court Rules.

The practice note or rule should advocate a conservative approach, as we have discussed elsewhere.1255 Even if there is doubt about whether a comment is adverse, a consultative approach should be preferred. The entire draft findings (including the adverse comment and recommendation) should be provided to the interested parties. Coroner Atwood, and a small number of other coroners, consider that the entire findings (rather than the adverse comment/recommendation alone) should be disclosed to interested parties. This practice provides context and conveys meaning. The introduction of a Coroner’s Court Rule about this area of practice would require all coroners to adopt a standard approach which is consistent with this study’s empirical evidence.

The Queensland State Coroner Guidelines outlines provisions for procedural fairness, including adverse comment. The Guidelines provide that:1256

Care should be taken to ensure any person or organisation that is the subject of adverse comment in the narrative findings has been given an opportunity to respond to the allegations.

This study’s findings also support the introduction of a practice note, guideline or rule which requires enhanced engagement with organisations and interested parties during the coronial inquiry and, in particular, during the formulation of recommendations. As we have outlined elsewhere in this chapter, organisations prefer a consultative approach and want to provide feedback on proposed recommendations during the coronial inquiry.1257

The Queensland State Coroner Guidelines could be used, with appropriate modifications, as a model for the proposed NZ coronial practice note, guideline or rule on this topic. Chapter 7 of the Queensland State Coroner Guidelines describes the procedure for obtaining expert reports during coronial inquiries. The Guidelines also encourage coroners to seek feedback from experts, interested parties, and stakeholders on proposed recommendations.1258 Health care-related deaths are

1256 “Queensland State Coroner’s Guidelines”, above n 1174, at chapter 8, p 15.

1257 See the sections ‘evaluation and feedback’ and ‘alignment of coroners’ and organisations’ preventive goals’.

1258 “Queensland State Coroner’s Guidelines”, above n 1174, at chapter 7, p 21.

highlighted as an area where it is particularly important for coroners to obtain expert input into draft recommendations.1259 The Guidelines provide that:1260

Once the coroner decides to hold an inquest, it is recommended that early consideration be given to possible recommendations, with a view to inviting input from relevant health care sector stakeholders for examination during the inquest.

Depending on the circumstances of the death, the coroner may consider approaching the following entities for their views on possible recommendations:

It is preferable that this response gathering process is commenced prior to the inquest to allow sufficient time for all parties to consider the responses, and for arrangements to be made for relevant witnesses to give evidence.

As we have pointed out, the purpose of these guidelines, practice notes and rules is to foster standardisation in coronial practice. Researchers have also called for coroners to use a standard structure or template for their findings. For example, in their analysis of toddlers’ drownings, Blum and Shield argue that:1261

The coroner could develop a standard reporting format for drowning fatalities to ensure uniform reporting, particularly details concerning the means of entry and compliance status.

1261 C Blum and J Shield “Toddler Drowning in Domestic Swimming Pools” (2000) 6 Injury Prevention 288.

The UK Guidance for Coroners on Changes to Rule 43 provides coroners with suggestions about the structure and content of Rule 43 reports.1262 As we pointed out in chapter 4, there is a template structure for NZ coronial findings, but it is used infrequently.

Some of the coroners we interviewed (7/15) recognised the importance of the structure of coronial findings. One coroner suggested that it may be preferable to “put the recommendations at the start of [their] findings” because this is “more reader friendly.”1263 All organisations and interested parties would prefer a standard structure for coronial findings and recommendations. For instance, a health sector organisation provided the following reasoning:1264

There is definitely a difference between High Court decisions and coroners’ findings. But that’s partly because High Court decisions are written mostly for lawyers. Whereas a broader range of people read coroners’ findings. Bearing that in mind, we would like to see a better structure. We would also like to see them restricting themselves to their jurisdiction – cause of death and so on. Some findings are more clear and precise than others. Some findings are all over the place. There needs to be structure. If recommendations are made, the coroners need to be say why they came to that conclusion. There is sometimes no logical explanation for a recommendation. There is sometimes a leap in logic. Sometimes we have to guess how the coroner reached his/her conclusion.

Another organisation advocated for a “standard template that [all coroners] use” because their experience is that it was sometimes unclear whether there were any recommendations. This organisation described their experience as follows:1265

It would be helpful for people if [coroners] at least say "In this case I don't have any recommendations." Just say it in a sentence at the end so that it's really clear because otherwise people might hunt through thinking "Oh this is a recommendation" when it’s not. If there are no recommendations, state there are none. There should be a standard template that everyone uses. Make it clear what the recommendations are. Don’t bury them. Use a heading. It might be just a case of a template if the reports are consistently written to provide even a clearer opportunity to respond. Because in the report [findings] I have here, there is nothing in here to say even who it’s being addressed to.

1264 Interview with HealthCareOrganisation499 (Jennifer Moore, 23 October 2012). 1265 Goddard (Department of Conservation), above n 183.

The preventive potential of coronial recommendations is undermined when they are “buried” in the findings, forcing organisations to “hunt” for them. Commentators have also argued that coroners’ recommendations would be more prevention-focused if the content for specific categories of death was standardised. Findings on occupational health and safety research on suicide should always include the following information:1266

In NZ, the Injury Prevention Research Unit’s submission on the Coroners Bill 2006 also identified information that should be routinely reported in coronial findings to facilitate prevention strategies.1267

A more consistent and detailed approach to coronial findings would not only greatly facilitate research, but also benefit the coroners themselves. Identification of patterns and trends in previous similar cases could be undertaken quickly. In order to identify trends and patterns amongst these groups of cases, it is important that coroners include in their finding the relevant contributing factors to the death and comment on prevention issues.1268 The Queensland State Coroner Guidelines provide information about how to write prevention-focused recommendations and encourage coroners to use NCIS to analyse previous similar cases for patterns and trends.1269 In the next section, we explore how coroners should receive feedback about the extent to which their recommendations have had a positive public health/preventive impact.

1266 J Bottomley, E Dalziel and M Neith Work Factors in Suicide: Evidence for a New Commitment in Occupational Health and Safety Research, Policy and Practice (2002).

1267 Langley and Cryer with Injury Prevention Research Unit, Department of Preventive and Social Medicine, University of Otago, above n 1118.

1269 “Queensland State Coroner’s Guidelines”, above n 1174, at chapter 9, p 19–21.

Australian commentators have pointed out that the preventive coronial process would benefit from feedback about the quality and implementation of coroners’ recommendations.1270 An important question is when should such feedback occur? Is feedback through a mandatory response regime for coroners’ recommendations sufficient? Under this regime, feedback would occur after the recommendations have been released in coroners’ findings. Would feedback during the coronial inquiry increase the likelihood that recommendations are evidence- based and prevention-focused?

All organisations interviewed for this research preferred the idea of early feedback which would occur during the coronial investigation process. For example, the following comments from a health care sector organisation are representative of other organisations’ views:1271

A mandatory response regime is a good idea, but it definitely cannot be a replacement for having early involvement and participation and establishing the facts and all the information which needs to be presented at the hearing ... Far more important is actually getting involvement earlier and making sure that sufficient information is presented to the coroner.

Similarly, the following exchange between the researcher and Coroner Fitzpatrick describes the advantages of early feedback:1272

Jennifer: What do you think of other jurisdictions where there are mandatory response regimes?

Coroner Fitzpatrick: I think it would be helpful because it would help us understand the reasons why things aren’t being done. If there are things that we could do differently then that would improve the quality of our recommendations. It should not be mandatory that agencies do what we say. There are lots of good reasons why agencies can’t do what we recommend. But telling us why they have not would be helpful.

Jennifer Could the process be different? Could the process happen further upstream, instead of waiting until the recommendation has been made?

Coroner Fitzpatrick: Yes, ideally it would be good if we knew why a recommendation wouldn’t be useful before we made the

1270 Halstead, above n 820, at 353; Freckelton, above n 46; United Kingdom, above n 1096.

recommendation. If the agency has bought into the idea and then they don’t implement it, they could be held to account.

Likewise, the Chief Coroner recognises the importance of early feedback and has stated that the CSNZ could be improved by “encouraging further cooperation between coroners, government agencies, other investigating agencies and stakeholders in order to help coroners discharge their preventative role.”1273

In addition to improving the quality of recommendations, early feedback may mean that an organisation “has bought into the idea”. Public health research demonstrates that such “buy-in” is vital for the translation of principles into practice and, therefore, could increase the uptake of evidence-based recommendations.1274 The relationship between the coroner and target organisation does not fit neatly into conventional implementation models: bottom-up versus top-down. As an outsider, the coroner is unlikely to have an in-depth understanding of the full policy context of the organisation to which his/her recommendations are expected to fit. Coroners may also have limited understanding of organisations’ resource constraints. It is unsurprising, therefore, that some organisations interviewed for this project described coroners’ recommendations as “ideals”1275 or “unrealistic gold standards.”1276 Likewise, research has described some coroners’ recommendations are “detached good ideas.”1277

This study’s findings demonstrate that coroners should be provided with feedback about their proposed recommendations both during and after the coronial inquiry. Early feedback from organisations will increase the likelihood that sufficient input to formulate recommendations is received. Early consultation with organisations may also improve the rate of implementation of recommendations. Feedback after the coronial inquiry (through a mandatory response system) provides monitoring of implementation rates.

1273 Judge MacLean, above n 1104, at 5. 1274 Conway and others, above n 869. 1275 GovtOrg07, above n 193.

The preventive potential of coroners’ recommendations could also be improved by judicial reviews. A few coroners (3/15) raised this idea. For example, Coroner Fitzpatrick explained the benefits of judicial reviews as follows:1278

It’s a shame that we are not judicially reviewed more often. It would help because we are in such a vacuum. There was a judicial review application recently, but it was withdrawn. I was disappointed because I was looking forward to seeing what it said. It would give us some guidance. I would be pleased to be judicially reviewed. It would be nice to know what a judge thinks about the parameters of our work. Without that we are left making it up as we go along. A judicial review would be good for oversight and rigour in the Coroner’s Court.

These research findings, and a 2013 judicial review of coronial procedure had a positive impact on coronial practice. During interviews, we asked coroners to discuss their approach to adverse comments. We explained that the preliminary research findings supported a consultative approach whereby the entire draft findings (including proposed recommendations) should be provided to the interested parties.1279 We also explained that organisations we interviewed preferred to be notified by coroners about adverse comments, rather than being surprised by the media. Our suggestion is consistent with natural justice and should improve the quality and preventive potential of recommendations. The judicial review of Coroner Ryan’s adverse comments during the inquest into the death of Iraena Asher is consistent with this study’s findings.1280 One coroner was prompted to change his approach, stating:1281

Since the interview, Justice Winkelman's decision of Carroll has been released. That has put natural justice principles fairly and squarely into the limelight in the Coroner's Court. Accordingly, I have changed both my view and practice regarding the sending out of recommendations (and I suspect this may the case for a number of us on the bench). Specifically, I have now started to consider whether I should send my proposed recommendation to the affected party before the release of the final finding (so as to make the process fair and to potentially improve the recommendation by getting comment in advance). It has the advantage also that the affected party is forewarned in the event the finding is picked up by the media.

1281 Email from Coroner Stewart to Jennifer Moore regarding Carroll and adverse comments (18 June 2013).

Consultation with parties/organisations about adverse comments also provides opportunities for early feedback. The organisations that we interviewed supported judicial review as an evaluative feedback tool, in theory. However, in practice, many organisations had considered, but rejected, judicial review as an option because it would damage their relationship with coroners. According to one organisation that was “upset” about the coroners’ recommendations, they decided against judicial review because they “didn’t want a war with coroners” with whom they have ongoing relationships.1282

In Carroll, adverse comments were not made about an organisation. The adverse comments concerned Ms Carroll, Ms Woodhouse and Mr Woodhouse who had cared for the deceased in the hours preceding her death. The judicial review application was filed by them. Organisations that receive coroners’ recommendations and coroners have arguably benefited from Winkelmann’s judgment in Carroll. The preventive potential of at least one coroner’s recommendations will potentially be improved by the comments that he will receive on his draft recommendations as a result of the judicial review.

This chapter highlighted that the majority of research participants are supportive of the statutory preventive function. While there have been improvements since the introduction of the Coroners Act 2006, the findings suggest that the prophylactic potential of coroners’ recommendations has not yet been fully realised in NZ.

All participants reported that coroners’ recommendations have the potential to contribute to the prevention of injury and death. All participants understood that coroners have a statutory preventive function. However, coroners (11/15), interested parties (7/8) and health care organisations (24/26) questioned whether this function was being maximised. Interested parties (7/8), health care organisations (25/26) and coroners (13/15) suggested that recommendations could be improved by encouraging coroners to consider similar cases, undertaking analysis of patterns and comparative risks.

The preventive role is sometimes marginalised because the coronial process is concerned with unpacking the facts of individual cases, rather than the systematic identification of patterns of morbidity and mortality. This focus reflects the legal profession’s case by case approach. A preventive approach requires the identification of patterns and remedial responses.

This study’s findings highlight strategies for improving coronial recommendations and are important for death investigation systems that wish to strengthen their preventive function. This study confirms the barriers to maximising the preventive potential of recommendations which have been identified by previous research.1283 These barriers mean that some NZ coroners’ recommendations have failed to have a significant impact on preventing adverse events.1284

We have outlined the main strategies which would enable coroners to effectively fulfil their statutory preventive role. In particular, our findings demonstrate the importance of appropriately targeted recommendations. In addition, the results highlight that early feedback from interested parties and organisations is crucial for ‘buy-in’ from participants and prevention-focused recommendations. Another important strategy is the introduction of a mandatory response regime for coroners’ recommendations. This could improve the preventive potential of recommendations by ensuring that recommendations are considered by the organisations that can implement them. We explore mandatory response regimes for coroners’ recommendations in the next chapter.

1283 Grech, above n 33; Watterson, Brown and McKenzie, above n 29; Halstead, above n 34. 1284 Grech, above n 33.

The Chief Coroner has expressed the view that a mandatory statutory regime for follow-up to coroners’ recommendations should be introduced.1285 Such a mandatory response regime requires meaningful responses from those entities to which coroners have made recommendations. Those entities need to indicate either how they would implement recommendations, or the reasons why implementation would not take place.

Many NZ coroners feel a deep sense of frustration that their preventive recommendations are not being heeded, contributing to otherwise preventable deaths.1286 Family members of deceased persons also feel frustration that their loved ones’ deaths are not making as great a difference in saving lives as they could.1287 The preventive potential of coroners’ recommendations could be maximised during and after the death investigation process. In chapter 6, we considered how consultation with agencies and experts during the death investigation could improve coroners’ recommendations and, thereby, strengthen the preventive potential of coroners’ recommendations.

This chapter explores how that preventive potential can be strengthened once the investigation is complete. In particular, it considers whether a statutory mandatory response regime for coroners’ recommendations should be introduced. New Zealand’s coronial regime does not require organisations to which coroners direct recommendations to respond to them. On the basis of the empirical evidence, we argue that the Coroners Act 2006 should be amended to include a mandatory response regime. This change should only occur alongside the additional reforms which we have discussed in the preceding changes, such as the introduction of Coroner’s Court Law Reports and electronic access to full coronial findings.

1285 For example, see Frank Neill “Give Coronial Recommendations Some Teeth” (2012) 806 LawTalk 8.

The Chief Coroner is “comfortable with the thrust of the reforms”,1288 but he has expressed disappointment that the current government review does not include consideration of a mandatory statutory regime for follow-up to coroners’ recommendations.1289 The first Cabinet paper only mentions the issue once:1290

A number of overseas jurisdictions (such as Australia and the UK) have grappled with similar issues and how to respond to them. They have implemented a variety of measures with mixed success. Some jurisdictions have taken the approach of requiring mandatory responses, (rather than mandatory implementation) to ensure coroners’ recommendations are considered and implemented where appropriate. In some instances, these governments have provided resources to assist with the formulation of recommendations. While this may achieve improved recommendations, it would come at a cost to the government.

The second Cabinet paper contains one paragraph about the public discussion on whether legislation should be introduced to require agencies to respond to coroners’ recommendations.1291 However, the paper does not commit to the introduction of such reform because “reasonable coronial recommendations will voluntarily get a response from government agencies”.1292

Although there is acknowledgment that such reform could improve recommendations, the topic is excluded from the review because of the cost. The 2000 Law Commission report recommended introduction of a system to make responses to recommendations mandatory.1293 Parliament did not adopt the Commission’s suggestions in the new legislation. Specifically, Parliament did not incorporate the Law Commission’s Recommendation 14 which states:1294

We recommend that where a coronial recommendation concerns a government agency, a Chief Coroner must give notice of that recommendation to the agency concerned, the Minister responsible for that agency, the Attorney General, and any other agency or individual affected by

the recommendation. The government agency must, within three months, report to its Minister the steps it intends to take in relation to the coronial recommendation and a copy of that report must be provided to the Chief Coroner. The Chief Coroner must include particulars of the government agency’s response in the annual report from the Office of the Chief Coroner.

It is disappointing that the current government does not wish to give adequate consideration to whether the lack of mandatory follow-up to coronial recommendations limits coroners’ ability to put preventive principles into practice. At the very least, the review should consider the extent to which coroners’ recommendations are implemented because the rate of implementation is related to the degree of health and safety impact of recommendations.

This section explores several jurisdictions’ approaches to responses to coroners’ recommendations. Several overseas jurisdictions have statutory mandatory response regimes.

The Coroners Act 2006 governs NZ’s coronial law. Following the result of a NZ Law Commission report and an eighteen month legislative gestation period, the Act revitalised the coronial jurisdiction, updating the previous 1988 statute, which was considered well overdue for reform. Mandatory responses to recommendations were not mentioned in the parliamentary debates about the Coroners Bill 2006.

The current Act features an “overtly prophylactic” focus.1295 Despite its emphasis on preventing deaths, NZ’s coronial regime does not require organisations to which coroners direct preventive recommendations to respond to such recommendations. The Ministry of Justice eschewed a mandatory response regime in drafting the legislation, despite the Law Commission’s support for such a regime in its 2000 report.1296

Once coroners’ recommendations or comments are finalised, the Act merely requires that coroners send a certificate of findings, together with any specified recommendations or comments, to the chief executive of the Ministry of Justice.1297

As we explained in chapter 1, on 31 July 2012, the New Zealand Courts Minister, the Hon Chester Borrows, announced a targeted review of the coronial system and the Coroners Act.1298 At the time of writing, there is no indication that any statutory response regime will be included as part of the legislative reform.

The Hon Shane Jones proposed a Coroners Amendment Bill, which was introduced in November 2012.1299 This Bill would require the Minister of Justice, within 90 days of the making of a coroner’s recommendations or comments, to report to the House of Representatives setting out the government’s response to those recommendations or comments.1300 While this is a Member’s Bill and as such it may not progress, the benefits and limitations of such a parliamentary follow-up regime will be discussed later in this chapter.

Unlike NZ, Australia has no national coronial regime.1301 Rather, each state or territory has its own regime controlling coronial processes, including the making of recommendations to prevent deaths and whether responding to those recommendations is mandatory.

Victorian coronial law is contained in the Coroners Act 2008 (Vic). Like NZ’s legislation, a central purpose of the Act is to contribute to a reduction in the number of

1298 Chester Borrows “beehive.govt.nz - Coronial system to be reviewed” (31 July 2012)

1299 Hon Shane Jones. Coroners Amendment Bill (Proposed Bill – member, 20 November 2012), Available at <http://www.parliament.nz/> .

1300 Hon Shane Jones. Coroners Amendment Bill (Proposed Bill – member, 20 November 2012) (explanatory note), available at <http://www.parliament.nz/> .

1301 Although some systems related to coroners do function at the national level; for example, the National Coronial Information Service (NCIS), an Internet-based data storage and retrieval system for Australian coronial cases. See the National Coronial Information Service website, available at

preventable deaths.1302 A Victorian coroner may make recommendations to any Minister, public statutory authority or entity, including recommendations relating to public health and safety or the administration of justice.1303 Once a recommendation is made, an entity must respond in writing within three months of receiving a recommendation, specifying the statement of action (if any) that it has taken, is taking, or will be taking, in relation to a coroner’s recommendation.1304 There has been confusion as to whether private entities fall within the purview of this mandatory response requirement. Under Victoria’s Interpretation Act, ‘entity’ is defined as including a person and an unincorporated body, and so includes private bodies.1305 Additionally, a solicitor working within the Coroner’s Court of Victoria has confirmed that private bodies are obligated to respond to recommendations directed at them.1306

On receiving a response from an entity, the coroner must publish the response on the Internet, and provide a copy to certain interested persons.1307 In practice, both written findings (including recommendations) and their responses are published within a database on the Coroner’s Court of Victoria website. This database is searchable by subject term, and all recommendations and responses from 1 November 2009 onwards are included in the database (with some earlier findings included at the request of coroners).1308

The coronial investigation process in Victoria is supported by a number of specialist services. In particular, the CPU is a non-statutory body that was established in 2009 to strengthen the coroners’ prevention role. A key function is monitoring and collecting information on responses to and implementation of those recommendations.1309 Anecdotal

1306 Email from Sarah Gebert, senior in-house solicitor, Coroner’s Court Victoria to Catey Boyce regarding whether for profit and non government not for profit organisations are required to respond to coroners’ recommendations (12 August 2013).

1308 Victorian coronial findings (including recommendations and responses) from 1 November 2009 can be accessed from the Coroner’s Court of Victoria website. See

1309 CPU, Coroners Court of Victoria “Brochure - Coroners Prevention Unit - Coroners Court of Victoria” (August 2013) Coroners Court of Victoria

evidence suggests that coroners who engage the CPU in this capacity produce evidence- based recommendations which are more likely to be implemented.1310

Both NSW and QLD adopted new coronial legislation in the last decade. The Coroners Act 2003 (Qld) has death prevention as a focus through the making of coroners’ recommendations as a primary object, while the Coroners Act 2009 (NSW) has an object enabling coroners’ recommendations on matters including public health, implying that the prevention of deaths is also important.1311 Both Acts allow coroners to make recommendations directed at relevant entities for these purposes.1312

The Queensland Parliament rejected an Opposition Member’s Bill which would have required government bodies to inform the coroner as to actions taken or not taken pursuant to recommendations; if not satisfied with the reports, the coroner would then have forwarded them to the Attorney General to be tabled in Parliament.1313 The Bill failed to reach its second reading.1314 While agreeing with the thrust of the Bill’s provisions that agencies should report on responses to coroners’ recommendations, the Government rejected the Bill on two grounds. Firstly, it considered it was constitutionally unsound to require the executive to report to coroners – judicial officers – on matters of policy, and even more inappropriate for coroners to advise on their satisfaction as to policy. This would muddy the separation of powers and politicise the judiciary.1315 Secondly, it considered the coronial regime did not have the administrative capacity to undertake such an extensive role.1316

Both QLD and NSW have now implemented mandatory response regimes through executive orders directed at Government entities. New South Wales has achieved this through a Ministerial Memorandum. In 2009, the New South Wales Department of Premier and Cabinet set out a process “to ensure that there is a consistent process across government for responding to coronial recommendations, and that there is increased accountability and

1310 Email from Georgina Sutherland Melb University to Jennifer Moore regarding the Melbourne University coronial research (14 July 2014).

1315 The Hon DM Wells speaks to this in depth; Queensland Hansard, Record of Proceedings Wednesday, 30 April 2008 at 1381 – 1382.

transparency in responding to such recommendations.”1317 Under the Memorandum, a Minister or NSW government agency should, within 21 days of receiving a coroner’s recommendation, acknowledge receipt of the recommendation and, within six months of receipt, write to the Attorney General outlining any action being taken to implement the recommendation. If implementing a recommendation is not proposed, reasons should be given. The Attorney General is to collate these responses. Every six months, the Attorney General will arrange for a report to be published on the Internet summarising recommendations and government responses to them.1318 In Queensland, a Cabinet request to the Attorney General has established a similar system in that state, with collations of government responses to coroners’ recommendations accessible from the Queensland Department of Justice and Attorney-General’s website.1319

The Northern Territory, like Victoria, has a legislative regime requiring Government responses to coroners’ recommendations. The Coroners Act 1993 (NT) allows coroners to make recommendations to the Attorney General on any matter connected with an investigated death or disaster, including public health or safety or the administration of justice.1320 Since 2002, if the Attorney General receives a recommendation that contains comments relating to a government agency, he or she must, without delay, give the recommendation to the Chief Executive Officer of the agency.1321 The particular Chief Executive Officer must, within three months of receipt, give the Attorney General a written response to the recommendation, including a statement of the action that the agency is taking, has taken, or will take, with respect to the recommendation.1322 The Attorney General must then, without delay, report on the recommendation and the response, and lay a copy of this report before the Legislative Council within three days of completing the report.1323 The

1318 To access these reports summarising government responses, see the Attorney General and Justice’s Department website, available at

same procedure applies more specifically to any report or recommendation made in relation to a death of a person held in custody.1324

In Southern Australia and the Australian Capital Territory, government need only respond to coroners’ recommendations when they relate to deaths that have occurred in custody, or deaths which were contributed to by injuries sustained while being held in custody. This is a result of the recommendations of the Australian Royal Commission into Aboriginal Deaths in Custody (RCADC), which found that “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.”1325 The narrowed focus of these jurisdictions stems from the widely recognised view that a person in custody is owed a special responsibility by the State while in its control.1326

In Southern Australia, the coroner must send recommendations to a public agency in relation to a death in custody to that agency, and the Minister responsible for that agency must, within around six months of receiving the recommendations, lay a report before each House of Parliament giving details of any action taken or proposed to be taken in consequence of those recommendations.1327

In the ACT, a response to coronial findings, including recommendations, must be given by the specific custodial agency in whose care the person died to the Minister responsible for the agency within three months of receiving coronial recommendations. The relevant Minister must give a copy of the response to the coroner, who then disseminates the responses more widely.1328

Neither Western Australia nor Tasmania has a mandatory response regime. While Western Australia’s current Act permits the Governor to make regulations giving effect to the RCADC’s recommendations relating to the investigation of the death of a person held in

custody,1329 no such regulations have been made.1330 The State is currently undergoing an overhaul of its coronial legislation. Given its Law Commission’s support for mandatory response regimes, it seems likely that Western Australia will implement such a regime in the near future.1331

The Tasmanian legislation includes in the coroner’s functions both discretionary and mandatory powers. There is a discretion to comment upon any matter connected with the death including public health or safety or the administration of justice1332 and a duty to make recommendations in order to prevent further deaths: “A coroner must, whenever appropriate, make recommendations with respect to ways of preventing further deaths and on any other matter that the coroner considers appropriate.”1333 Tasmanian coroners are thus compelled to make preventive recommendations, where appropriate, unlike in most other jurisdictions where the legislation is framed in terms of a discretionary power to make recommendations or comment in respect of preventable deaths. Unlike Western Australia, there are as yet no indications that Tasmania’s legislative scheme will evolve to require responses from organisations to coroners’ recommendations.

The Ontario Office of the Chief Coroner’s focus on death prevention is clear from its motto: “We speak for the Dead to protect the living.”1334 As we outlined in chapter 1, the Ontario coronial regime nevertheless differs substantially from its Australasian counterparts. While a NZ coroner must have held a practising certificate as a barrister or solicitor for more than five years,1335 the Ontario Coroners Act specifies that a coroner must

1331 See recommendation 87 of: Hands with Law Reform Commission of Western Australia, above n 1100, which recommended a mandatory response regime be introduced.

be a qualified medical practitioner.1336 This gives the Ontario coronial regime a public health orientation.1337

The Ontario coronial system is also unique in that it features an informal, alternative process for conducting reviews of deaths: the Regional Coroner’s Review system.1338 Its function is a combination of fact-finding and mediation, used instead of, or before, a public inquest. After an initial investigation, a coroner may hold informal meetings with family members of the deceased and institutions involved in the death, for example, hospitals, in order to discuss the circumstances of the death (usually in the presence of independent experts) and also any recommendations which would prevent similar deaths.1339 This method of avoiding cumbersome formal processes and finding effective ways of preventing future deaths is not a statutory function, but the power to hold the process derives from the coroner’s ability to obtain assistance or the use of experts at any point of an investigation or inquest.1340

Attendance at review meetings is not compulsory although institutions (particularly hospitals, where reviews are used most often) tend to prefer informal meetings in lieu of formal inquests.1341 This is because such meetings enable Ontario coroners to consider, for example, medical adverse events without having to put complex medical evidence before a jury, a jury being a requirement in Ontario at a public inquest.1342 Discussions between regional coroners and institutions are closed to the public and off the record, which allows for “frank, collegial exchanges”1343 of information relating to the circumstances surrounding a particular death. Generally the jointly-reached recommendations are not publicised, although those relating to systemic issues across many institutions may be issued in press releases.1344

1337 See Ministry of Community Safety and Correctional Services’ website, available at

1339 Office of the Chief Coroner, Ontario Guidelines for Regional Coroner Reviews (2002). 1340 Coroners Act RSO 1990, s 15(4).

1341 Parliament of Victoria Law Reform Committee, above n 53, at 412. 1342 At 418.

1343 Stanley Myles MacKenzie Leslie “Speaking for the Dead: Coroners, Institutional Structures and Risk Management” (Doctor of Philosophy, University of Toronto, 2011) at 75.

After a meeting, the coroner sends a formal copy of the recommendations to the institution, requesting a response. In turn, the coroner sends copies of both the formal recommendations and institutional response to the deceased’s family. While responding to the recommendations is not mandatory, a response can generally be expected given the institution’s participation in their creation. Where an institution ignores the recommendations or otherwise does not comply with the review process, the coroner can open an inquest into the matter. This is especially likely to occur where a similar death occurs after an agreement on recommendations has been reached, where the institution will be asked to explain why the agreed recommendations did not prevent the death.1345 The threat of a future inquest perhaps acts as an effective incentive to promote responses to recommendations in Ontario compared to Australasian jurisdictions. As the Victorian Parliamentary Law Commission report noted:1346

Because inquests are held less frequently, they tend to attract a greater amount of public interest and media attention, and so they are something to be feared by an organisation that failed to comply with its agreement with a coroner.

As the Office of the Chief Coroner does not keep a record of the cases it considers in alternative, private forums, it is difficult to quantify the exact number of regional reviews held each year.1347 However, it is noteworthy that the number of public inquests held in Ontario (excluding inquests mandated by the legislation, such as those relating to deaths in police or prison custody or deaths in the course of their employment) has decreased in recent decades:1348

In sum, coroner’s inquests aimed at producing public safety recommendations are rare events in Ontario. The rate at which they are convened has been reduced by around 60 per cent when data from the mid 2000s are compared to those from the mid 1980s. While inquests mandated by the Act continue at approximately the same rate in the two periods, concerns about efficiency and costs have played a role in the reduction of discretionary inquests.

1346 Parliament of Victoria Law Reform Committee, above n 53, at 413. 1347 Leslie, above n 1343, at 72.

It appears that the ability to investigate death informally in Ontario saves the time and expense public inquests otherwise entail, leading to “a more flexible, efficient and effective coronial system”.1349

Finally, like Victoria, the Ontario coronial system also provides support services to strengthen the corner’s prevention role. In particular, the Office of the Chief Coroner oversees expert death review committees, the membership of which includes experts from a range of relevant fields including medicine, law, and social sciences.1350 These committees provide advice and expertise for investigations and reviews conducted by the Office of the Chief Coroner.1351 Key functions in relation to death investigation and the formulation of recommendations include identifying the presence or absence of systemic issues which may require follow-up by the Investigating, Regional or Chief Coroner, and advising the Chief Coroner of cases that may further public safety if examined through the inquest process.1352

Death investigations in Alberta are performed by medical examiners (physicians) with the assistance of medical examiner’s investigators.1353 When a death occurs suddenly or cannot be explained, the Office of the Chief Medical Examiner investigates in order to determine the circumstances of the death.1354 In certain cases, the Chief Medical Examiner may give notice of certain deaths to the Fatality Review Board. In turn, the Board must recommend to the Minister of Justice that a public fatality inquiry be held in some cases. All deaths caused by an on-duty police officer must be recommended for a public fatality inquiry. Additionally, all deaths of patients under the Mental Health Act 2000 (Alberta), children in government custody, and individuals in custody or in jail automatically are recommended for a public fatality inquiry unless the death was due to natural causes, was not preventable, and the Board determines that an inquiry would not serve the public

1350 The committees comprise the Domestic Violence Death Review Committee; Maternal and Perinatal Death Review Committee; Geriatric and Long-Term Care Review Committee; Paediatric Death Review Committee; and Deaths under Five Committee.

1353 Fatality Inquiries Act 2000 (Alberta) 2000 (Alta), s 6; Fatality Inquiries Act 2000 (Alberta), s 7; Fatality Inquiries Act 2000 (Alberta), s 9.

interest.1355 The Minister may then order that a Provincial Court judge conduct a public fatality inquiry.1356 The judge then presides over a public fatality inquiry, determining the circumstances of death and making recommendations to prevent future deaths in a written report, which is delivered to the Minister.1357 After this, however, the formal process finishes and no requirements mandating responses to recommendations follow.

One of the Quebecois coronial system’s main goals is to help prevent avoidable deaths by compiling, publishing, and providing access to complete information on the causes and circumstances surrounding any violent or mysterious death in Quebec.1358 One function of the coroner at an inquest or investigation is to make any pertinent recommendation directed towards better protection of human life.1359 Following death investigations, Quebecois coroners must write reports including, where applicable, such recommendations.1360 Coroners may, if appropriate, transmit the recommendations appearing in these reports to any concerned persons, associations, departments, or agencies.1361 Regulations require permanent coroners to have eight years of experience as a physician, barrister or notary.1362 Investigative coroners, who are usually doctors, carry out most death investigations, but legally trained coroners carry out around twenty public inquests each year, where it is necessary and useful to obtain information from witnesses in public and under oath. 1363

The Quebec coroner’s website includes a catalogue of all coroners’ recommendations categorised by relevant topic.1364 The Chief Coroner must make an annual report to the

1355 Fatality Inquiries Act 2000 (Alberta), s 32; Fatality Inquiries Act 2000 (Alberta), s 33.

1359 An Act Respecting the Determination of the Causes and Circumstances of Death 2011 (Quebec) 2011 (Que), ch R–0.2, s 3.

1360 An Act Respecting the Determination of the Causes and Circumstances of Death 2011 (Quebec), ch R–0.2, s 91 and s92(5).

1361 An Act Respecting the Determination of the Causes and Circumstances of Death 2011 (Quebec), ch R–0.2, s 98.

1362 Regulation respecting criteria and procedures for selecting persons fit for the post of coroner, RRQ, c R-0.2, Division 111 r5.

Minister of Public Security of the coroners’ activities, which may include a summary of recommendations made following death investigations, and in turn the Minister must publicise this report by tabling it in the National Assembly.1365 However, as Freckelton notes, no mandatory response regime is involved whereby Government must respond to such recommendations: “[t]here is no legal obligation to adopt the coroner’s recommendations, and any action taken along those lines depends on the institution’s moral authority and credibility.”1366

As outlined in chapter 1, Rule 43 of the Coroners Rules 1984 (UK) created the power for a coroner to report a matter to a relevant authority where a coroner believed that action should be taken to prevent the recurrence of fatalities similar to the one under inquest.1367 While strictly speaking this power to report is not a power to make particular recommendations, such recommendations may be informally made within official reports.1368 This delegated legislation was updated in 2008 in order to give greater prominence and importance to coroner reports to improve public health and safety.1369 For example, coroners were given wider remit to make reports to prevent future deaths; it did not have to be related to a similar death.1370

The 2008 rules also established a mandatory written response requirement, a change that arose primarily because of the consistent failure by many agencies to respond to Rule 43 reports.1371 Entities to which coroners made Rule 43 reports consequently had 56 days to send a written response to the report, which the Lord Chancellor would in turn publish.1372

This coronial response regime has since been enshrined in primary legislation in the Coroners and Justice Act 2009 (UK). Under this new Act, the coroner must report matters to the newly-established Chief Coroner and all “interested persons” where there is a risk that other, similar deaths may occur and the coroner believes action should be taken to prevent

1365 An Act Respecting the Determination of the Causes and Circumstances of Death 2011 (Quebec), ch R–0.2, s 29.

1367 See Coroners (Amendment) Rules 2008 (England and Wales) Rule 43A. 1368 Dorries, above n 80.

1369 Guidance for coroners on changes to Rule 43: Coroner reports to prevent future deaths. Suggested that this was necessary in order to meet obligations under the Convention, Art 2.

such an occurrence.1373 The Chief Coroner acts as a centralised figure for the coronial system, with functions that include ensuring that reports and responses made in relation to deaths in one coronial district are not overlooked in another, so that preventable deaths are less likely to occur.1374 This is to be achieved through the publication of six-monthly summaries of Rule 43 reports (which are renamed as ‘Reports on Action to Prevent Future Deaths’)1375 and their corresponding responses on the Ministry of Justice website and also in the Chief Coroner’s annual report.

The summaries include trends, reports with wider implications, and annexes giving details of the number of reports issued by each coroner district, and organisations which have not responded to the coroner and all reports received.1376 While it has been remarked that the English coroner has no explicit preventive role,1377 the implicit importance of death prevention to the regime is perhaps borne out in this legislative mandatory response requirement.1378

It should be noted that implementation of many of the changes introduced by the 2009 Act has been an ongoing process as at the time of writing, although the majority of provisions relating to coronial investigations and inquests (including those relating to Rule 43 reports) commenced on 25 July 2013.1379 Summarising the changes that came into force on that date, the Chief Coroner stated:1380

1373 Coroners and Justice Act 2009 (England and Wales) 2009, Sch 5, s 7; See also reg 28(4) of: Coroners (Investigations) Regulations 2013 (UK), which came into effect on 25th July 2013. Note, the coroner may also send a copy of the report to any other person who the coroner believes may find it useful or interesting.

1375 Office of the Chief Coroner Guidance No. 5: Reports to prevent future deaths. For simplicity, this paper will continue to use the term ‘Rule 43 reports’ to refer to Reports on Action to Prevent Future Deaths.

1376 These summaries can be accessed from the Ministry of Justice’s website, at

1378 Note however that the newly published guidelines on Rule 43 reports state that while such reports are important, they are ‘ancillary to the inquest procedure and not its mainspring’ (citing Re Kelly (deceased) (1996) 161 JP 417). See Office of the Chief Coroner Rule 43 Reports at para 6.

1379 Coroners and Justice Act 2009 (England and Wales) 2009, s 182; The new reigme applies to any inquest not completed prior to 25th July 2013. The response requirement is now specified in Sch 5, s 7(2) of the Act, and also in reg 29 of: “Coroners (Investigations) Regulations 2013 (UK)”, above n 1373. 1380 Judiciary of England and Wales “Judges, Tribunals and Magistrates | 2013 | Chief Coroner: Implementation of relevant parts of Coroners and Justice Act 2009” (25 July 2013) Judiciary of

Inquests will be heard earlier, usually within six months. Families will receive information earlier and will have greater access to documents and evidence. Bodies will be released earlier for burial or cremation. Fewer inquests will be needed as a result of early investigation. And there will be a special emphasis upon coroners reporting to prevent future deaths.

Further review of the practice of issuing Rule 43 reports is anticipated. On 21 September 2012 the Chief Coroner indicated that the process of issuing and responding to these reports will be reviewed as part of a “ten point plan” to address problems within the existing coronial system.1381 This review will be aimed at ensuring greater consistency in the number and quality of reports issued, as there has been significant regional variation in the content of, and frequency in which, coroners issue Rule 43 reports (with some coroners issuing no such reports at all).1382

As we outlined in chapter 1, death investigation in Scotland is carried out by the Office of the Procurator Fiscal and the Sheriff Courts. The relevant legislation provides sheriffs conducting fatal accident inquiries with no explicit preventive purpose or power. However, sheriffs make recommendations in around one third of cases,1383 and this power may be implied in the sheriff’s duty to make determinations on any reasonable precautions whereby death might have been avoided and any systemic defects which contributed to the death.1384 Upon making a determination, a sheriff must send a copy of the determinations reached to

1381 See Chief Coroner’s Speech to the Annual Conference of the Coroners’ Society of England and Wales (21 September 2012) at

1382 Chief Coroner’s Speech to the Annual Conference of the Coroners’ Society of England and Wales (21 September 2012) at para 63.

1384 Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (gb;scotland), s 6(1)(c) and (d).

the Lord Advocate,1385 and to the parties to the proceeding,1386 and the Government maintains a website where some recommendations are published in brief.1387

However, no response to any recommendations made within a sheriff’s determinations is currently required. A Scottish Government commissioned review of fatal accident inquiries was published in late 2009, promoting an explicit preventive purpose achieved through a recommendatory power, and the creation of a mandatory response regime similar to Victorian’s system.1388 The Scottish Parliament has not yet made a legislative response to this report.

Although the benefits to the community of a coronial system which has a prophylactic function are well recognised,1389 there is ongoing debate about whether mandatory response regimes should be included in coronial legislation. Opponents of such regimes argue that this expansion of coroners’ powers would mean that every coroner would assume the role of a far-reaching Royal Commissioner, without the restraint of appropriate terms of reference for the inquiry.1390 Supporters of mandatory regimes contend that the absence of sanction for non-compliance with coroners’ recommendations means that the ability of recommendations to achieve their purpose is limited. Agencies ignoring coronial recommendations have been the subject of considerable criticism. The lack of a compliance requirement causes difficulties in determining the degree to which coroners’ recommendations are implemented, and coroners receive feedback on the effectiveness of their recommendations.

1386 Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 (gb;scotland) Rule 11(3).

The Victoria Law Reform Committee found that “almost all of the witnesses to this inquiry who gave evidence on this issue supported the view that there should be mandatory responses to coronial recommendations”.1391

What does the NZ empirical evidence reveal about coroners’, agencies’ and interested parties’ views? Only two organisations did not support such law reform. All coroners interviewed were in favour of the introduction of a mandatory response regime. Coroners do not wish to rely on publicity in order to receive responses from organisations.1392 Several coroners also mentioned that such a regime would be advantageous for the system because having responses to recommendations on public record could “allow people to view how the government has responded to issues over time”.1393

Five coroners pointed out that a mandatory response regime should only be introduced alongside other changes aimed at improving the quality of recommendations. For instance, Coroner Stewart’s remarks are reflective of this perspective:1394

I think it [mandatory response regime] would be a good idea. I think it would mean that organisations would take recommendations seriously. It may have a positive impact on coroners too. Their recommendations could be more robust, knowing the organisations would have to respond ... But you would want the recommendations to be good first.

As we discussed in chapter 6, one option for enhancing the quality of coroners’ recommendations “first” is to ensure that coroners receive feedback about their

1393 Liam Hyslop “Action, Not Words, Prevent Tragic Deaths” The Dominion Post (Wellington, 13 July 2013) A19.

recommendations before they are finalised. A disadvantage of a statutory mandatory response regime is that coroners receive responses/feedback from organisations about recommendations at the conclusion of the investigation.

Like coroners, all organisations (apart from two) were supportive of the introduction of a mandatory response regime. All but three (39/42, 93%) of the questionnaire respondents were supportive of the introduction of a mandatory response system. Their reasons for supporting such a regime were the same as those expressed by coroners. Organisations also favoured a mandatory response regime because it would be useful for their internal processes:1395

It’d be useful for us as an organisation to write a formal response. That way we know that everything has been covered off. Managers want to know whether the coroner’s recommendations from the last event had been implemented. It’s a formal closing of the loop that protects agencies as well.

Media reports and interviews with interested parties such as families demonstrate that they favour the introduction of a mandatory response regime. The main reason for their support is that there is a perception that organisations can too easily ignore coroners’ recommendations. As Coroner Atwood pointed out, the “old perennial question from the public is do they [organisations] have to take any notice of your decisions?”1396

A mandatory response regime would not, and should not, guarantee implementation of coroners’ recommendations. As we explained in chapter 5, sometimes organisations have valid reasons for not implementing coroners’ recommendations. For example, the organisation’s empowering legislation may not enable it to implement the coroners’ recommendations, the recommendation may not be within the organisation’s business, or it may be directed at the wrong organisation. Introduction of a mandatory response regime may not solve this problem. Instead, providing coroners with feedback about proposed recommendations early in the investigation process may ensure that this problem is solved and, therefore, result in an improved rate of implementation.

In a climate of austerity, there may be insufficient resources to ensure that organisations make meaningful, considered responses that are then also carefully followed up by coroners or their support staff. As Federated Farmers explained:1397

It’s not practical to have a [mandatory response] regime like that, especially if coroners are going to send us stuff that is not relevant and should not have been sent to Farmers

Federated Farmers’ comments were echoed by the small number of other participants who were not supportive of the introduction of a mandatory response regime. The recurring reasons were:

One choice that legislatures must make is whether the power for coroners to make recommendations should be discretionary or mandatory. There is jurisdictional variance as to whether, and when, a coroner is required to make a recommendation. For example, in the English and Tasmanian systems, if a coroner opines that a recommendation could be made that may prevent deaths, the legislation specifies that the coroner must make the recommendation; that is, the coroner has a legal duty in such a situation to make the recommendation if appropriate.

By contrast, legislation in Victoria and Ontario, among others,1398 provides that a coroner may make recommendations in such situations, but imposes no legal duty as such. Other jurisdictions adopt a middle-ground approach: the power to make recommendations can be either discretionary or mandatory, depending on the category of death. In Western Australia, for example, a coroner must comment on the quality of the supervision, treatment and care of a person who died while in care, but in relation to other categories of death, a coroner has a discretionary power to comment.1399 Similarly in the Northern Territory, where a person has died in custody, a coroner is required to make such recommendations

1398 For example, the other Australian states where a general discretion to recommend is provided are Queensland, New South Wales and the ACT.

with respect to the prevention of future deaths in similar circumstances as the coroner considers to be relevant,1400 but for all other kinds of death, a coroner has a general discretion to comment.1401

In the case of a mandatory duty, when the recommendation-making power is conditional upon whether a particular coroner believes a recommendation is ‘appropriate’ in the circumstances, the distinction between a discretionary or a mandatory power may not be significant. In other words, the inclusion of language such as “whenever appropriate” or similar may mean that, in effect, the recommendation-making function is discretionary and coroners can therefore decide whether or not to make recommendations.

However, in part because of an apparent reluctance of some coroners to issue recommendations despite circumstances in some cases suggesting a preventive recommendation would have been appropriate and beneficial, a number of commentators and law reform committees consider that imposing a positive duty on coroners to make recommendations would improve the preventive potential of coroners’ recommendations. Both the National Report of the Royal Commission into Aboriginal Deaths in Custody and the Report of the Law Reform Committee of the Victorian Parliament considered that coronial legislation should impose an express duty on coroners to make recommendations in appropriate cases.1402

There are several benefits in mandating coroners to make recommendations. Firstly, a legal duty could ensure greater frequency in the making of recommendations. This latter aspect is supported by the experience in England. Since the introduction of a legislative duty on coroners to issue Rule 43 reports in 2008, there has been a year on year increase in the number of such reports issued.1403 Secondly, a legal duty may also better allow aggrieved relatives and interested advocacy groups to use legal means to compel coroners to make formal recommendations regarding the prevention of further deaths. These groups could challenge a coroner’s decision not to issue recommendations despite appropriateness, or a

1402 See for example recommendation 13 of Commonwealth of Australia, above n 822, at [4589]: “It is important that coroners should make such recommendations and that governments should give consideration to imposing a more positive duty on coroners in this respect”. See also Parliament of Victoria Law Reform Committee, above n 53, at 383: “the committee also considers that the Act should impose a positive duty on coroners to make recommendations in appropriate cases.”.

1403 Ministry of Justice Summary of Reports and Responses under Rule 43 of the Coroners Rules: Ninth Report: For period 1 October 2012 – 31 March 2013 (2013) at [2.5].

coroner’s making mistakes of fact or law in deciding whether a recommendation would be appropriate. If government entities had to respond to recommendations, incentive might exist for families and other advocates to seek formal recommendations in order to have lessons learned from preventable deaths. Thirdly, compelling coroners to make recommendations could also help shift the aspirations of the coronial position to recognise the modern importance of death prevention, not just death investigation. As Baroness Butler-Sloss notes, it seems an ‘odd mix’ to have a strong purpose of death prevention followed by the weak conclusion of a discretion to carry out this purpose; one would expect a coroner to have a duty to make reports or recommendations aimed at death prevention.1404 It is possible that coroners who issue recommendations less frequently risk failing to

fulfil their moral duties relating to death prevention and public health. A mandatory recommendation-making requirement could avoid this. While obliging coroners to make recommendations may appear to stray into an area of judicial independence,1405 it is not unusual for a judicial officer to face procedural obligation. There should be no constitutional qualms with controlling coronial procedure to promote the purpose of the coronial regime, so long as the substance of the coroners’ recommendations is not affected. Despite this, it is significant that many participants who were interviewed expressed a number of concerns, tending to suggest that a legal duty may reduce the usefulness and credibility of coroners’ recommendations in practice.

Several coroners agreed that recommendations will not be required in all cases. As one coroner remarked in relation to drink-driving deaths: “I don’t think that there is anything else that I can recommend. I can only say that this is, tragically, another case”.1406 Similar remarks were made with respect to co-sleeping: “[I]t saddens me that we seem to be still struggling with co-sleeping and it’s clearly not a recommended practice. And I’m not going to make a recommendation because I’d only be repeating the wheel.”1407 Reflecting these concerns, one coroner stated:1408

My view about recommendations is that because of the way the system is, coroners feel they should recommend every five minutes. I think that dilutes the value of what we can say. So when I make recommendations I hope people will take it more seriously because I don’t make recommendations all the time. I don’t need to hear the sound of my voice for the sake of it and I

1405 Interview with Coroner Owen (Jennifer Moore, 3 October 2012). 1406 Frank, above n 1127.

don’t need to reinvent the wheel, but if I think there is something genuinely of interest or will make a difference, I will make a recommendation.

Other participants also indicated that, in some cases, it will be unhelpful to make recommendations. A lawyer with NZ Coroner’s Court experience stated that sometimes coroners issue recommendations simply “to be seen to be doing something. They make recommendations that don’t or would not have causally changed the outcome”.1409 A danger in such an approach is that it could potentially lead to unnecessary and ill-conceived recommendations. According to Child, Youth and Family Services, caution is therefore needed in taking such an approach:1410

It is a mistake, I think, to want to do something as a result of the tragedy and to show some benefit coming from the review, without thinking about the long term consequences of that decision. ... [W]hen you’re making a determination about what should be done it may make the reviewers themselves feel better that they’ve done something because they’ve encountered the tragedy of this child in that situation, where they feel a need to make a recommendation but they’ll always think about the systemic implications of what that means and the impact on the service. So we just need to be careful about that really.

One problem inherent in the process of formulating recommendations is that “they arise piecemeal, and inevitably in a way that is coloured by and responsive to the dilemmas posed by particular cases.”1411 Mandating the recommendatory power will not address this problem; in fact, it may exacerbate it. This concern was reflected in the comments of research participants. For example, many organisations highlighted difficulties in responding to recommendations based on isolated cases of death. Child, Youth and Family Services commented that “coroners, or anyone, should be very cautious about extrapolating policy recommendations pertaining to single case studies.”1412

Another problem identified by agencies is that there can often be a “scattergun”1413 of different recommendations relating to one particular issue or policy: “Instead of one recommendation which relates to half a dozen events, each one makes his or her own recommendation. Police can’t keep amending policies on the hoof every 6-8 weeks as a

1410 Interview with Child, Youth and Family Services (Jennifer Moore, 29 May 2013). 1411 Freckelton and Ranson, above n 26, at 738.

1412 Interview with Child, Youth and Family Services (Jennifer Moore, 29 May 2013). 1413 Cliff (Police), above n 190.

coroner comes up with a different recommendation.”1414 Echoing these concerns, Child, Youth and Family Services commented that:1415

If you repeatedly add in additional procedures, regulations, systems over the top of what you’ve already got, you run the risk of designing or developing a system that is so elaborate that it actually gets in the way of your ultimate outcome, which is improving the lives of vulnerable children across the community. So, the temptation, I think, of a review is to do something, to make some kind of recommendation, spot some deficiency in the system or in the practice and portfolio recommendation, but you need to be cautious about that because you could then add in additional complexity to the task if that problem isn’t a risk of occurring again in a number of different contexts in the future. So that is a risk.

Many participants were also concerned that coroners at times make conflicting recommendations regarding the same issue or policy. Such conflicting recommendations significantly reduce the likelihood of implementation and undermine the credibility of the coronial system in general. As one coroner noted:1416

Being able to comment meaningfully on how to prevent deaths in the future is really difficult and frustrating. I know that agencies get criticised for not following recommendations, but many times I think that I don’t blame them. We make conflicting recommendations. One coroner recommends one thing, another something else, the exact opposite. I have had cases where that has happened. I’ve specifically not made a recommendation on the basis that the Department and industry had made indications that meant there was no need to make a recommendation. Then a few weeks later another coroner had made recommendations about the same type of death and those recommendations were contrary to what I had said. So of course people won’t take us seriously.

The participants’ comments above demonstrate that the potential of coroners’ recommendations to contribute to death prevention depends not on the frequency of recommendations made, but rather on the quality of those recommendations and the approach followed by coroners in deciding whether or not to make recommendations. Mandating coroners to make recommendations is thus unlikely to improve the quality or preventive potential of recommendations. Neither the prophylactic objective of the recommendatory power nor the interests of families are best served when coroners make unnecessary, impractical, or ill-conceived recommendations simply because they are required to do so. Instead, changes upstream, such as providing coroners with increased

1415 Interview with Child, Youth and Family Services (Jennifer Moore, 29 May 2013). 1416 Interview with Coroner Fitzpatrick (Jennifer Moore, 25 September 2012).

support and improving access to previous coronial findings and other resources, may be more effective in terms of increasing consistency in practice across coroners and improving the preventive potential of recommendations.

As we stated earlier in this chapter, in NZ at present, there is no obligation on agencies or individuals to whom coroners’ recommendations are made to respond to those recommendations. This is despite the NZ Law Commission’s support for imposing such an obligation in its 2000 report:1417

[W]here a coronial recommendation concerns a government agency, a Chief Coroner must give notice of that recommendation to the agency concerned, the Minister responsible for that agency, the Attorney General, and any other agency or individual affected by the recommendation. The government agency must, within three months, report to its Minister the steps it intends to take in relation to the coronial recommendation and a copy of that report must be provided to the Chief Coroner. The Chief Coroner must include particulars of the government agency’s response in the annual report from the Office of the Chief Coroner.

Before discussing in detail the arguments surrounding mandating responses to coronial recommendations, it is important to be clear about what such a regime would not entail. The distinction between mandatory implementation and mandatory response requirements is trite. The former obliges entities to put coroners’ recommendations into action, irrespective of those recommendations’ value, while the latter merely requires entities to give a considered response to recommendations directed to them; a considered rejection would suffice this requirement. Despite this, the literature conflates the two concepts too often. As Chief Coroner Neil MacLean notes, “sometimes government misunderstands and thinks that we want mandatory implementation introduced... That would be the judiciary intruding into the realm of the executive ... I am not saying that.”1418

Such an implementation regime would fundamentally change the role of the Coroner’s Court into a “general administrative appeal tribunal” and “create duplication

1417 New Zealand Law Commission, above n 119, recommendation 14. 1418 Coroner, above n 289.

with the court’s judicial review role.”1419 In addition, the New Zealand Law Commission rightly noted that a mandatory implementation requirement would be dangerous, as a coroner who made a recommendation “may not have had all the available information and options in front of him or her.”1420 Empowering coroners, judicial officers on par with District Court judges, to dictate policy to government or even private entities would inevitably invite bad policy. As such, no jurisdiction has a mandatory implementation requirement. Despite this, and despite receiving no submissions advocating such a requirement, the Ministry of Justice rejected both mandatory response and mandatory implementation requirements by conflating the two together:1421

Requiring agencies to implement or respond to coroners’ recommendations would have significant compliance costs for government agencies, and it is not clear that there would be significant benefits from this approach. It would also impinge upon the separation of powers by making the executive accountable to judicial officers on matters of public policy. (Emphasis added).

With reform of NZ’s existing coronial legislation pending, there is an opportunity for the NZ Government to consider whether some form of mandatory statutory response regime to coroners’ recommendations should be included in the reforms. It is significant that almost all of the participants interviewed during this research were in favour of introducing such a regime. Somewhat disappointingly, however, the Ministry of Justice’s current review of the Act has yet to include consideration of whether such a response regime should be introduced as part of the legislative reforms. This is despite the Ministry noting in its Cabinet Paper that:1422

A number of overseas jurisdictions (such as Australia and the UK) have grappled with similar issues and how to respond to them. They have implemented a variety of measures with mixed success. Some jurisdictions have taken the approach of requiring mandatory response, (rather than mandatory implementation) to ensure coroners’ recommendations are considered and implemented where appropriate. In some instances, these governments have provided resources to assist with the formulation of recommendations. While this may achieve improved recommendations, it would come at a cost to the government.

1419 Mai Chen “New Zealand’s Ombudsman Legislation: The need for amendments after almost 50 years” (2010) 41 VUWLR 723 at 737, discussed in relation to conferring similar binding recommendatory powers on Ombudsmen in New Zealand.

1420 New Zealand Law Commission Coroners A Review: A Discussion Paper (NZLC PP36 1999) at 31– 133.

It is true that a proposal mandating entities affected by coroners’ recommendations to take consequential action would be a “significant and revolutionary step, transforming coroners from traditional examples of judicial officers into risk managers working in part within a complex public health regulatory context”.1423 Indeed, opponents of mandatory response regimes have argued that this expansion of coroners’ powers would mean that every coroner would assume the role of a far-reaching royal commissioner, without the restraint of appropriate terms of reference for the inquiry.1424 However, while mandating responses may change the place of coroners within both a legal and public health context, “it may well be that it would transform coroners into entities of real, ongoing relevance.”1425 Further, despite the Ministry’s concern as to cost, a formal response requirement would arguably be a modest and proportionate provision for monitoring, and assessment of, considered proposals arising from preventable deaths. This is particularly true given that the NZ community already expends considerable resources on public inquests.1426

There are certainly a number of potential benefits that follow from the introduction of such a regime. As the Victorian Parliamentary Law Reform Committee noted in its 2006 review of Victoria’s Coroners Act 1985, the ability of agencies to ignore coroners’ recommendations with impunity and without public scrutiny “has been the subject of considerable criticism and a source of frustration for the families of people who have died in circumstances giving rise to coronial recommendations which are not acted upon.”1427 The Committee was particularly concerned that expending considerable resources in the process of death investigation and the making of recommendations arising from such investigations is a “wasteful exercise if the recommendations can be ignored by those to whom they are directed.”1428 While a mandatory response requirement would not compel compliance, it would mandate responsiveness in the public interest and on the public record.1429 This

1423 Ian Freckelton “FW Guest Memorial Lecture: July 12 2007: Death Investigation and the Evolving Role of the Coroner” [2008] OtaLawRw 1; (2008) 11 Otago LR 565 at 581.

1424 See the Victorian Bar’s comments in the Parliamnet of Victoria Law Reform Committee Parliament of Victoria Law Reform Committee, above n 53, at 367.

1426 Ian Freckelton “F.W. Guest Memorial Lecture: July 12 2007: Death Investigation and the Evolving Role of the Coroner” [2008] OtaLawRw 1; (2008) 11 Otago LR 565 at 583.

1427 Parliament of Victoria Law Reform Committee, above n 53, at 369. 1428 At 406.

‘public interest’ component has been defined by one commentator as “the open scrutiny of and accountability for deaths and the accountability of the coronial system itself.”1430

Many participants who were interviewed highlighted the advantages of a response regime in terms of increasing accountability. Coroners commented that a response regime would be advantageous for “the system”1431 because having responses on the “public record”1432 could “allow people to view how the government has responded to issues over time.”1433 Several organisations also supported a mandatory response regime as a means to ensure accountability in the public sphere. For example, one organisation commented that “for coroners to effect systemic change ... and if the coroner is there to make things better for those who are left behind, then they need more bite and power.”1434 Even if there is good reason for not implementing a particular recommendation, several organisations noted that “we should be required to publicly state that. ... If we don’t want to implement the recommendations, we can just give good reasons and be accountable to the public about whether those reasons are enough.”1435 The Police similarly commented “[t]hey should respond. If there is a whole process and there is a valid recommendation, and it is ignored, that is not acceptable in my view.”1436

A mandatory response regime could also enhance the therapeutic potential of the coronial jurisdiction by putting in place a mechanism by which family members of a deceased can be informed of the steps an agency will (or will not) take in order to prevent future deaths. As one organisation noted:1437

A lot of energy is put into coronial inquiries. The families of the deceased want to know what happened and why, but most also want change. ‘I don’t want this happening to anyone else’s son or daughter.’ So to give the coroners some more bite in terms of requiring responses could be useful.

The potential therapeutic benefits of a mandatory response regime have been highlighted by several other commentators. For example, during the second reading of New Zealand’s Coroners Bill, Nicky Wagner MP commented that “[f]amilies often mention that

1431 For examples, see Coroner, above n 289; Atwood, above n 875; Frank, above n 1127. 1432 Coroner, above n 289; Frank, above n 1127.

1434 Interview with Standards NZ (Jennifer Moore, 26 October 2012.) 1435 Goddard (Department of Conservation), above n 183.

they want something good to come out of such wasteful deaths.”1438 Barbara Stone MP also noted in relation to Queensland’s Coroners Bill 2002 that:1439

Often media reports show families wanting more done to ensure that the same tragic circumstances that resulted in the death of their loved one are not repeated. They want to know that their loved one did not die in vain. This bill will go a long way to ensuring recommendations to reduce the risk of similar tragedies are heard and acted upon.

Other advantages may flow from a mandatory response regime. Research participants considered that a response requirement would provide a valuable means by which coroners can receive feedback about the effectiveness of recommendations they make. As Standards New Zealand explained: 1440

In some ways it’s just a ‘please explain tool’. You might make a cost benefit decision not to implement a coroner’s recommendation, but if so, then say so. It’d be a very useful level of transparency. Also it’d be great to have that information going back to the coroner because then they can take it onboard for the next recommendation. If coroners don’t get feedback from organisations about why they think a coroner’s recommendation could not be implemented, then they can’t take it onboard or use it to feed into future recommendations which mean there may not be improvements going forward.

Many coroners recognised the role of feedback in improving the quality of their recommendations. For example, one coroner noted:1441

I think it would be helpful because it would help us understand the reasons why things aren’t being done. If there are things that we could do differently then that would improve the quality of our recommendations. It should not be mandatory that agencies do what we say. There are lots of good reasons why agencies can’t do what we recommend. But telling us why they have not would be helpful.

Another important advantage of a response regime is that it may enable “data-based evaluation of the extent to which coroners recommendations are implemented.”1442 The current lack of a comprehensive reporting mechanism, which records the agencies that are the subject of recommendations, their responses, and what actions have been taken, causes difficulties in collating empirical information relating to the degree to which coroners’

1441 Interview with Coroner Fitzpatrick (Jennifer Moore, 25 September 2012). 1442 Freckelton and Ranson, above n 26, at 20.

recommendations can be implemented and therefore contribute to preventing further deaths in practice.1443

Rather than introducing a mandatory response regime applicable to all entities to which coroners’ recommendations are directed, an alternative option is to extend the statutory tools currently available to coroners to include a discretionary power to request responses to recommendations. This may be a more cost-effective means to ensure coroners’ recommendations are adequately considered.

In NZ, such statutory powers already exist within the jurisdictions of both the Office of the Health and Disability Commissioner and the Office of the Ombudsman. For example, the HDC noted:1444

It is interesting that there is no requirement to respond in the Coronial jurisdiction and yet in the HDC they can request the organisation to report on how they responded to their recommendations. So there is a bit more teeth around how the HDC processes work.

The HDC is an independent Crown entity created under the Health and Disability Commissioner Act 1994. It is charged with promoting and protecting the rights of health and disability services consumers, and facilitating the fair, simple, speedy, and efficient resolution of complaints.1445 Part of this role includes the making of recommendations to “any appropriate person or authority in relation to the means by which complaints involving alleged breaches might be resolved and further breaches avoided.”1446 Importantly, the HDC can request any person to whom such a recommendation is made to “notify the Commissioner, within a specified time, of the steps (if any) that the person proposes to take to give effect to the recommendation.1447 If the Commissioner opines that the person has failed to take “adequate and appropriate” action within a reasonable time

1443 Submission of David Ranson, Parliament of Victoria Law Reform Committee, above n 53, at 374. 1444 Interview with the HDC (Jennifer Moore, 22nd February 2013).

1445 Health and Disability Commissioner Act 1994, s 6. 1446 Health and Disability Commissioner Act 1994, s 14(g). 1447 Health and Disability Commissioner Act 1994, s 46(1).

frame, the Commissioner has power to progress matters by referring the matter to the relevant oversight body or to the Minister of Health.1448

Under the Ombudsman Act 1975, the Ombudsman may make similar recommendations to organisations and can require those organisations to report within a specified timeframe what steps they intend to undertake to implement the recommendations.1449 Materially, where an organisation fails to adequately respond to a recommendation, the Ombudsman can escalate the matter further by sending the recommendation and the organisation’s report to Parliament.1450 Ombudsmen have sent one such report to Parliament.1451 The Act also confers a power on the Ombudsman to require local authorities and specified organisations to publish a summary of the report and recommendation and make it available for inspection and copying by members of the public.1452 In addition, the Ombudsman can inform the complainant of his or her recommendation and whether appropriate or adequate action has been taken by the department or organisation within a reasonable time.1453

Importantly, while neither jurisdiction confers power to make binding recommendations,1454 the common feature of both regimes is the ability to progress matters where an agency fails to take appropriate action in response to a recommendation. Such referral mechanisms may be effective in securing high compliance rates with response requirements. Indeed, this may even explain why the majority of recommendations issued by Ombudsmen and the HDC are not only responded to, but also complied with.1455

Given the “perennial”1456 issue in coronial regimes is the ability of agencies to ignore coroners’ recommendations, a statutory follow-up model similar to that of the HDC or

1448 Health and Disability Commissioner Act 1994, a 46(2)(a). In addition, the Commissioner may comment on the matter: s 46(2)(b).

1452 Ombudsman Act 1975, s 23; see also Part 3 Sch 1 for a list of organisaitons. A public notice that the report and recommendations are available for public inspection shall be put in whatever media the Ombudsman requires.

1454 Note however the Ombudsman does have binding recommendatory powers with respect to official information requests: Official Information Act 1987 (NZ) s 32(1)(a).

1455 In relation to Ombudsmen, see Mai Chen “New Zealand’s Ombudsman Legislation: The need for amendments after almost 50 years´ (2010) 41 VUWLR 723. See also Interview with the HDC, 22nd February 2013.

Ombudsman could be usefully adapted to increase the accountability of agencies to which recommendations are directed. However, conferring statutory power on coroners to refer matters to Parliament or some other oversight body in circumstances where an agency fails to take action in response to a recommendation invites concern. Such referral powers effectively confer power on coroners to comment on the appropriateness, or adequacy, of an agency’s response; as already discussed, this invites attendant problems relating to the separation of powers. It is possible that the use of referral powers could be restricted to where an agency simply fails to respond to a recommendation following a coroner’s request. However, this would largely resemble a mandatory response requirement in practice. This is primarily because even under this alternative statutory model, coroners would be encouraged to request responses from agencies, as a matter of course, in order to secure key benefits of improved recommendations and increased accountability, among others. For this reason, the remainder of this chapter considers coronial reform only in terms of whether a mandatory response requirement should be introduced and the changes necessary to ensure that such a regime is effective. The monitoring regime and referral powers similar to those of Ombudsmen and the HDC will, however, be discussed later in this chapter in the context of monitoring responses and securing compliance with any

An important issue in respect of coronial investigations is what ensues once the investigation process is complete and following the making of recommendations. At present, the absence of any regime mandating responses to coroners’ recommendations “leaves as the only ‘weapon’/power possessed by coroners the potential criticisms generated of relevant bodies by the media. This is manifestly unsatisfactory.”1457 While several models for follow up to coroners’ recommendations are available, empirical evidence and available literature demonstrates that introducing a mandatory response regime could improve the preventive potential of coroners’ recommendations. There is wide support among those interviewed for the introduction of a mandatory response requirement in combination with other reforms. Perceived advantages of such a regime include that it will increase accountability of agencies and of the coronial system in general; provide a

means by which families can draw comfort that something good may follow from the death of their loved one; provide much needed feedback on the effectiveness and practicality of coroners’ recommendations; and provide a means by which empirical data relating to the implementation of recommendations by agencies can be collected and analysed, in order to effectively assess the degree to which coroners’ recommendations contribute to death prevention in practice.

Notably, the participants’ broad support for mandatory response regimes is consistent with views expressed during Victoria’s recent coronial reforms that culminated in the introduction of a mandatory response regime. Specifically, the Parliament of Victoria Law Reform Committee found that “almost all of the witnesses to this inquiry who gave evidence on this issue supported the view that there should be mandatory responses to coronial recommendations.”1458 Recent findings reported by researchers from Melbourne University demonstrate that Victorian stakeholders remain supportive of a mandatory response requirement.1459 Summarising these findings, it was reported that:1460

In short, we found broad support for the mandatory response regime from those recipients who are required to respond under the new Act. This was clearly evident across both [quantitative] and [qualitative] results. There is some variation, of course, by the recommendation they received and whether they thought they were appropriate, relevant, effective etc. Not a surprising result, but interesting in that even among recipient entities who rejected the recommendations directed to them ([because] they couldn’t or wouldn’t implement them) were still supportive of the legal requirement to respond with a statement of action.

If NZ introduced a mandatory response system, how should it operate? The next section explores this question.

1459 Details about the project “David Studdert, Jane Pirkis and Graham Sewell - ARC Linkage Project: Learning from Preventable Deaths” University of Melbourne

A proposal for a mandatory response regime requires close consideration of several key areas of practical and operational concern. Important questions include: What is the appropriate time frame that agencies should be mandated to respond to coroners’ recommendations? Should private entities as well as public (that is, governmental and quasi-governmental) entities be required to respond? What form of monitoring system should be included as part of any response regime? Finally, should coroners have enforcement powers in relation to their recommendations, and/or should there be sanctions for agencies’ non-compliance with a response requirement? The following section considers each of these questions in turn.

The first issue requiring consideration is whether agencies should be mandated to respond to coroners’ recommendations within a specified time frame, and if so, what length of time would be appropriate. Among jurisdictions with existing mandatory response regimes, all delimit some length of time in which an entity must respond. However, there is variation as to the length of time specified. For example, in Australia, legislation in Victoria, the Northern Territory, and the ACT prescribes a three month time frame, while legislation in New South Wales, Queensland and South Australia prescribes a six month time frame. In England, agencies must currently respond to Rule 43 reports within 56 days, although there is now provision within the legislation to apply for an extension where appropriate, the length of which is to be specified at the discretion of the coroner.1461 It is worth noting that a recent proposal to decrease the 56-day time frame to one month was abandoned following consultation with key stakeholders. The general thrust of the submissions was that the proposed one month time limit was insufficient and would have adversely impacted upon the quality of responses.1462

The primary reason for specifying a time frame within which agencies must respond rests largely on a desire to secure such responses in a timely manner and avoid further delays in coronial processes. Decreasing delay in the time between the making of a recommendation and action taken by an agency in response has important ramifications for the preventive and therapeutic potential of recommendations. With this in mind, a time

1462 Ministry of Justice (UK) Implementing the coroner reforms in Part 1 of the Coroners and Justice Act 2009: Response to consultation on rules, regulations, coroner areas and statutory guidance (2013) at 25.

frame of six months, or longer, for responses is problematic. At the same time, however, there is a need to recognise that insufficient time to consider coroners’ recommendations may impact on the quality of an entity’s response.1463 The complexity of the dynamics in which government, and quasi-government agencies in particular, operate, should be taken into account. It was this latter consideration that led the Victorian Parliament Law Reform Committee to favour a six month time frame for responses to recommendations, rejecting an earlier proposal for a timeframe of three months. The Committee envisaged that a six month time frame would “allow adequately for consideration of recommendations directed towards complex systemic problems.”1464

Notably, the NZ Law Commission recommended in its 2000 report that agencies should be required to respond to recommendations within three months, but gave no explicit justification for this position. The current impetus to reduce delay in NZ’s coronial system would suggest that a three-month requirement may be more appropriate.1465 However, to provide a degree of flexibility for agencies situated within complex regulatory environments, provision could be made, as under the English approach, for extensions to the length of time within which a particular agency must respond to a recommendation. This would accommodate situations where, for example, significant or complex policy work is required to be undertaken before a response may be sent detailing the action the agency will undertake.

Another key issue in relation to introducing a mandatory response regime is whether the obligation to respond to coroners’ recommendations should be confined to the public sector, or whether it should apply to private entities as well. When the Law Commission recommended a mandatory response regime be introduced in NZ, it opined that whilst coroners could issue recommendations to any entity, public or private, only government entities should be subject to a response requirement. Some organisations interviewed also questioned the efficacy of requiring private entities to respond to coroners’ recommendations. For example, the Porirua City Council stated that:1466

1465 Delay is primary consideration in Ministry’s review: see Cabinet Paper, above n 198. 1466 Interview with GovtOrg04 (Jennifer Moore, 1 February 2013).

We already work in that kind of environment and the private sector don’t, necessarily. Private businesses wouldn’t be used to that. The fact that a coroner is involved with your business, the way you’re running your business; it’s just a different thing.

The Chief Coroner similarly stated that restricting the requirement to government organisations was appropriate because “they are accountable to the public and more likely to be able to respond.”1467

However, if one of the primary goals of coronial investigations is death prevention, distinguishing between public and private entities does not seem particularly apposite, particularly since deaths clearly occur in the private sector as well. As one agency stated, a response requirement applicable to private entities is necessary because “[t]his is about broader community accountability and broader community interests and learning from deaths”.1468 Private entities should also be required to respond because considerable resources are spent in the making of recommendations, the the proposals are serious, and the recommendations are less likely to be aimed at private entities. Provided consideration is given to the nature and capabilities of the entity to which a recommendation is directed, it is reasonable to include private bodies within a response requirement. Moreover, the empirical data suggests that concerns relating to difficulties in requiring private entities to respond may be overstated. Most private organisations at which coroners’ recommendations are directed already respond,1469 indicating that mandating the requirement would not be burdensome or inappropriate.

Other considerations to note include that private sector organisations have fewer entities to which they are accountable. This is significant for two reasons: firstly, these private bodies may have the capacity to respond to, and take action in response to, coroners’ recommendations due to increased independence and flexibility; and secondly, a lack of accountability and oversight mechanisms within the private sphere may conceivably lead to industry failures that result in otherwise preventable deaths. There is also a practical consideration to note relating to an increased encroachment of private industry into roles traditionally executed by the state. An oft cited example is the use of private security companies in the running of prisons. The involvement of these quasi-governmental bodies in the regulation and delivery of public services can blur the distinction between private and

public. This may result in confusion at times as to who is obligated to respond and who is not. A requirement that all entities must respond, including both public and private bodies, could avoid this.

A mandatory response regime will not be effective unless there is a monitoring process to ensure that responses to recommendations are made. Such a monitoring regime could also provide opportunities for critical evaluation of responses to specific recommendations and collation of information allowing the effectiveness and impact of coronial recommendations to be measured.1470 However, there are a number of questions that arise in relation to a proposal for such follow-up. These include: who should be responsible for monitoring responses and the nature and scope of this role (that is, whether it should be limited only to monitoring whether responses are made, or whether it should also include monitoring the adequacy of those responses). Closely related is the question of whether, and if so, how, implementation of coroners’ recommendations should be monitored.

There are a number of overseas models available with respect to who should follow- up to ensure responses are made. In Australia, for example, several different types of government organisations may follow up responses to recommendations, depending on the state jurisdiction.1471 In Victoria and (when applicable) the ACT, coroners themselves have the responsibility to ensure that responses are made and subsequently published on the Internet. In Victoria, the CPU assists coroners in carrying out this function. In Queensland, New South Wales and the Northern Territory, each Attorney General takes responsibility, collating and consolidating responses once they are made. In Southern Australia, Ministers with responsibility over government entities to which recommendations are directed must file a report containing details of any action taken or proposed to be taken to the legislature

1471 For a summary of the administrative requirements in each Australian jurisdiction with respect to monitoring responses to coronial recommendations, see Standing Committee of Attorneys-General Implementation of Coronial Decisions Across Australia.

directly, although it is unclear who within the House of Parliament is responsible to ensure this does in fact take place.

There are problems involved with each of these methods of monitoring responses. Most coroners’ recommendations tend to be aimed at government entities, so relying upon a government official, the Attorney General, to ensure government responses are made appears problematic. Ideally, an external watchdog would certify compliance rather than expecting the government to hold itself accountable.

On the other hand, in New Zealand, the Attorney General fulfils a similar accountability role at times, for example, in notifying Parliament when proposed legislation contravenes the New Zealand Bill of Rights Act 1990.1472 One benefit of a governmental follow-up approach to coroners’ recommendations, particularly where the Attorney General then tables agencies’ responses, or summaries of these responses, in Parliament, is that “if coroners know that a recommendation and responses to it would be put before Parliament, they are going to be very careful how they would frame that recommendation.”1473 Notably, some participants interviewed agreed that government departments “need to report to Parliament about what they are doing with recommendations.”1474

Relying upon coroners themselves to follow up the recommendations they issue also invites attendant problems. The extra government expenditure this new coronial role would require must be taken into account, although given the potential of a monitoring regime to aid death prevention measures, funding this role may be justified. Additionally, coroners, as judicial officers, have a specialised role in terms of marshalling evidence and controlling a courtroom in the processes of death investigation and prevention. To require a coroner to monitor entities’ compliance with recommendations even after those processes are complete would “change the coroner’s role.”1475 To this end, an issue commonly raised by coroners during the interviews was that many do not systematically read organisations’ responses because they are functus officio once investigations are completed.

It is accepted that a coroner should not alter a formal recommendation once finalised, particularly in response to untested evidence provided by agencies following an investigation. However, there should be no functus concerns if coroners and/or their researchers are reviewing previous responses to recommendations in order to assess the

1473 Parliament of Victoria Law Reform Committee, above n 53, at 401. 1474 Goddard (Department of Conservation), above n 183.

1475 Ministry of Justice Coroners Bill: Departmental Report 27 February 2006 (2006) at 19.

feasibility of those recommendations. This is essential in enhancing the preventive potential of recommendations. Organisations’ responses may contain important information which coroners should bear in mind when formulating a new recommendation. For example, if an organisation’s response points out that the recommendation was not able to be implemented because the recommended policy change was already in existence or was not feasible for some reason, the coroner can use this knowledge when drafting the new recommendation. The coroner would not then make the same recommendations that, for reasons already stated by the particular agency, cannot be implemented. Additionally, as one organisation noted, information in organisations’ responses could also be used to “better profile the organisations so that recommendations were better directed to the appropriate organisation.”1476

While it is preferable that information concerning coroners’ recommendations be collected centrally within the coronial system, rather than independently through the Attorney General, there remain constitutional concerns if coroners are to monitor government responses.1477 As discussed above in relation to mandatory implementation regimes, it is for this reason that it is improper for coroners to determine whether government responses are satisfactory. That being so, if coroners were merely requiring the agency’s response to conform to specified requirements, and were not forming an opinion on a response’s substance, then such judicial encroachment concerns may be allayed. This appears to be the approach taken in Victoria, where coroners must ensure that responses specify “a statement of action (if any) that has, is, or will be, taken in relation to the recommendations made by the coroner.”1478 Victorian coroners therefore monitor the process of response-making but not the substance of the responses made.

An alternative to either follow-up regime is to designate (or establish) a person within the CSNZ who is to assume responsibility for monitoring responses to recommendations. Such a role has been established within the HDC in New Zealand. As the HDC commented in relation to follow-up to and compliance with recommendations:1479

...we also make recommendations. We don’t have any statutory power to enforce them. But we do follow up. I was discussing this with a colleague. We find that 99% of our recommendations are complied with. I think this is because when we make the recommendation we say “please report back to us

1476 Interview with HealthCareOrganisation377 (Jennifer Moore, 13th December 2012). 1477 Cabinet Paper, above n 198, at [21].

on such and such date providing evidence about what you have done.” We then write to them to ask what has happened. We follow up.

With respect to who is responsible for this follow-up process, the HDC further noted:

...we have a person called the ‘recommendations liaison coordinator’. She follows up on all sorts of things. Under our Act, if we conduct a formal investigation, we go to sections 45 and 46, which talk about the recommendations. But we often make recommendations in cases which were not investigated. We call these recommendations as well, but they are not statutory recommendations I suppose. So our recommendations liaison coordinator follows up on all those types of recommendations. She also follows up other things. For example, under our Act we might refer a complaint to a different body, or we might refer a complaint back to the provider to deal with. They will have to report back under our Act about what they have done. So the coordinator follows that up too. She has relationships with the registration authorities, the DHB patient liaison people and so on.

The HDC has thus designated a liaison officer whose position includes monitoring responses to, and implementation of, recommendations issued by the Commissioner. Creating a similar position within the CSNZ has a number of key advantages. It would avoid burdening resource-limited and time-constrained coroners with a follow-up role, while still facilitating a direct means by which coroners can receive feedback concerning their recommendations. This would ensure that issues relating to the quality and practicality of those recommendations can be identified and disseminated quickly to all coroners and researchers in order to improve the preventive potential of future recommendations. Without this feedback mechanism, important opportunities to save lives through the making of recommendations may potentially be lost.

As we stated in chapter 3, in NZ at present, the CSNZ collates responses, where received, and summaries of these responses may then appear in the Recommendations Recap publication. This publication, as mentioned earlier, is disseminated to all coroners and is available to the general public. 1480

The English coronial regime adopts a similar approach; the Chief Coroner’s six- monthly reports summarise Coroners’ Rule 43 reports and associated responses. In addition,

1480 These publications can be accessed from the Coronial Services’ website at

these summary reports record the agencies that have, or have not, responded to coroners’ reports.

However, for both the NZ and English jurisdictions, full responses from agencies are not published in these summaries nor are they published on the Internet. This differs from the approach taken in Victoria, whereby agencies’ responses are published in full alongside corresponding recommendations on the Coroner’s Court of Victoria website.

If a mandatory regime is to improve the quality of coroners’ recommendations and to confer the touted benefits of increased accountability and transparency, it is important that coroners and the public have full access to feedback in the form of agencies’ responses. As one coroner noted, “there needs to be clear and correct information in the public domain.

... A high level of transparency is required for people who die in the State’s grip.”1481 For this reason, any monitoring regime should ideally adopt Victoria’s approach in publishing agencies’ responses online in full, in addition to summarising these responses in summary or annual reports.

The next issue requiring consideration concerns the nature and scope of the monitoring regime. Again, for the reasons discussed above, permitting coroners to comment on the adequacy of government policy in the form of responses is constitutionally undesirable. On the other hand, however, the absence of such power may mean that the quality of organisations’ responses is reduced.

In NZ at present, there is variation in the extent to which agencies provide considered responses to coroners’ recommendations. Responses, where received, can range from pro forma, ‘tokenistic’ responses that specify, for example, a vague commitment to consider the matter in some future forum; to comprehensive responses stating the reasons why further action will or will not be taken. As the Chief Coroner explained:1482

It ranges from being totally ignored, to a bland letter that says “The Ministry is giving active consideration to all the matters you raise”, end of story. If you look at the release we have done on huffing, you can see a rather non- committal response from the Ministry of Youth Affairs to our recommendation about ways of reducing kids from huffing themselves to death. That will be coming out tomorrow. There is an increasing tendency for

1481 Interview with Coroner Fitzpatrick (Jennifer Moore, 25 September 2012). 1482 Coroner, above n 289.

actual Ministers like Tony Ryall, Steven Joyce and some others, who will actually read the recommendation, absorb it and will write a detailed letter back saying that they have read the recommendations, considered them and are doing X and Y about it. And it is not just an official reply. It is the Minister taking a genuine interest. Many Ministers say that they find our recommendations interesting and they do respond.

It cannot be doubted that some form of review mechanism would serve a valuable role in terms of providing accountability and discouraging agencies from giving such ‘tokenistic’ responses to coroners’ recommendations. These responses, unaccompanied by meaningful consideration or action, will not advance the object of death prevention. In fact, they may hinder progress in public health by creating the appearance of progress in the implementation of public health principles when in fact there is none, and by failing to give coroners and public health researchers a sense of the worth of coronial recommendations.

However, it is difficult to see how legislation could be drafted to require truly meaningful responses to coroners’ recommendations, particularly in an environment where some organisations may not regard coroners’ recommendations as worthy of considered responses. Medsafe, for example, noted that “[m]eaningless responses to meaningless recommendations are much easier to manage from a purely bureaucratic and cynical perspective. It’s easier to write a meaningless standard letter back to the coroner, but we haven’t fixed the system.”1483 Upstream changes to improve the quality of coroners’ recommendations are therefore critical in ensuring that organisations feel that responding to recommendations is worthwhile. The quality of recommendations and responses needs to be improved, otherwise the system risks “getting rubbish in, and putting rubbish out.”1484

Beyond this, approaches taken in other mandatory response jurisdictions to ensure organisations respond adequately generally rely on guidelines, rather than legislating specific requirements to which agencies’ responses must conform. In Victoria, for example, alongside a legislative requirement that agencies specify “a statement of action (if any) that has been, is being, or will be taken” 1485 in response to coroners’ recommendations, the Coroner’s Court of Victoria has published a Practice Handbook containing guidance for legal practitioners. Included in this Handbook is a table of possible categories of responses and the suggested information that ought to be included to assist entities in fulfilling their

statutory obligations.1486 While these guidelines are not binding on entities, most organisations’ response letters to coroners’ recommendations appear to conform to the Handbook’s suggested approach.1487 One reason for this relates to the fact that all responses are then published online in their entirety, allowing for public scrutiny of the adequacy of the response. This provides a powerful incentive for agencies to comply with the Handbook’s recommendations in order to fulfill their statutory obligations and avoid any adverse publicity.1488

Some jurisdictions also provide a review mechanism whereby the Chief Coroner or the State Coroner’s Office may comment on the adequacy of agencies’ responses in summary reports and/or an annual report tabled in Parliament. In Ontario, for example, the Chief Coroner issues annual reports that contain detailed statistical analyses of coroners’ recommendations and agencies’ responses from all inquests held in a particular year. Ontario agencies responding to recommendations are also given the opportunity to evaluate their own responses according to a list of codes that represent different degrees of implementation or reasons for non-implementation, failing which staff at the Chief Coroner’s Office will assign appropriate response codes.1489

A combination of both these approaches may be effective in motivating agencies to provide considered responses to recommendations. At the very least, responses should be published in full to ensure organisations are accountable to the public. A review mechanism whereby the Chief Coroner can comment on the adequacy of responses in a published summary or annual report should also be included in tandem with any mandatory response regime, if introduced. This would not be an onerous task: while there is currently no legislative requirement in NZ to publish reports summarising recommendations and any responses received, this is done informally through quarterly publications of the Recommendations Recap. However, for any review mechanism to be worthwhile in terms of maximising the preventive potential of the coronial system, upstream improvements to the quality of recommendations must be made prior to introducing such a review function.

1486 Coroner’s Court of Victoria Practice Handbook: A Legal Practitioner’s Guide to the Coronial System in Victoria (2011) at 60.

1487 Telephone discussion with Georgina Sutherland, Melbourne, July 2014. 1488 Informal interview with Lyndal Bugeja at CPU, 13 December 2013.

The final factor to consider with respect to monitoring responses is whether a monitoring regime should include measuring the extent to which agencies implement coroners’ recommendations. As we explained in chapter 5, currently there is sparse information concerning the implementation rate of recommendations in NZ. This has led to difficulties in evaluating the effectiveness of coroners’ recommendations in terms of contribution to injury avoidance and death prevention. Introducing a monitoring regime that includes within its purview agencies’ implementation of recommendations would indicate the health and safety impact of coronial investigations and enable “data-informed decision making about how to adjust and evolve the coroner’s jurisdiction.”1490

Extending the level of monitoring beyond a mandatory response requirement and an assessment of the adequacy of responses through summary and/or annual reports is not without difficulty. Cognisant of the funding and time constraints such a follow-up role would entail, the Victorian Parliament Law Reform Committee acknowledged that “[i]t is likely that the only realistic monitoring which could be done beyond the receipt and assessment of a mandatory response would be dependent on the voluntary reporting by relevant agencies of their implementation progress.”1491 As such, few jurisdictions have legislated towards monitoring implementation. In theory, the best approach involves a prevention team supporting the Coroner’s Court in publishing, monitoring and evaluating responses to and implementation of coroners’ recommendations.1492 In Victoria, for example, one of the functions of the CPU includes “monitoring and collecting information on the response to, and implementation of, coronial recommendations.”1493

However, the CPU is not a statutory body and there is no explicit legislative guidance concerning its role. Further, in practice, Victorian follow-up of recommendations consists of collecting responses and publishing them online. There does not usually appear to be capacity – and in any case, any funding made available – to systematically monitor the rate of implementation of recommendations, let alone to monitor how that subsequent implementation might be contributing to death prevention.1494

Any coronial law reform should consider introducing some mechanism whereby the implementation rate of coroners’ recommendations can be measured. This is important given that the “practical and policy impact of coroners’ recommendations will depend upon the extent of their implementation.”1495

One option would be to designate or create a role within the CSNZ, similar to that of the recommendations liaison coordinator within the HDC, whose responsibilities include monitoring implementation. As the HDC has indicated, with respect to the role of the liaison officer, there is certainly scope to monitor the steps taken by health providers following receipt of a recommendation.1496 The HDC’s follow-up model could be adopted within NZ’s coronial regime. Alternatively, if a research team equivalent to Victoria’s CPU was established within the CSNZ, it would not be unreasonable to extend funding for this role to enable monitoring of implementation rates. There was support among several participants for provision to be made for this function. For example, one participant commented that:1497

Maybe the coroner could make recommendations and then the Coronial Services could do a review to check whether anything has changed. Has anything been learned? That would be useful for the victims to see too and to see whether anything has been learned.

It should be noted that there are also opportunities to monitor implementation outside the coronial regime itself, such as through the creation of dedicated public pressure groups like INQUEST in the United Kingdom.1498 These groups contribute to the follow-up of agencies’ implementation of coroners’ recommendations, for example, by identifying and publicising the names of agencies who fail to take appropriate action in response to coroners’ recommendations. Thus, regardless of the form any monitoring regime ultimately takes, it is important that sufficient information is made publicly available (for example, by publishing responses in full) to enable members of the public and community groups to carry out these activities effectively.

1496 Interview with the HDC (Jennifer Moore, 22nd February 2013). 1497 Barlow, above n 182.

A number of commentators in the literature have expressed the view that there should be some form of sanction for agencies who do not respond to coroners’ recommendations. Significantly, no jurisdiction punishes failures to respond to recommendations with penal sanctions. Instead, these regimes rely primarily on potential adverse publicity brought about by the coroners’ increasingly prominent community role; substantial media/public interest in coronial proceedings; and the pressure these bring to bear to ‘name and shame’ parties into responding.1499 For many regimes, such ‘naming and shaming’ involves publicising on coroners’ websites, cases where the relevant entity has not responded within the mandatory time period. This process has proved extremely effective in Victoria: responses are usually provided within a very short time following publication of a failure to respond.1500 At the time of writing, the Victorian Coroner’s Court website shows that of the 639 cases where findings are published, none have outstanding responses outside of the mandatory three month limit provided by the Victorian legislation.1501 In England and Wales, the ability of the Chief Coroner to record the names of agencies that fail to respond to Rule 43 reports in the six-monthly summaries appears to have also been effective in generating a high rate of compliance with the mandatory response requirement.1502

It is possible the negative publicity brought upon agencies that fail to respond to coroners’ recommendations may be enough to secure compliance in NZ. Additional sanctions in the form of legislative penalties may therefore not be necessary. There is nothing new in legislation imposing obligations without any punitive consequences for non-

1500 Hands with Law Reform Commission of Western Australia, above n 1100, at 174.

1502 Ministry of Justice (UK) Summary of Reports and Responses under Rule 43 of the Coroners Rules: Ninth Report: For period 1 October 2012 – 31 March 2013 (June 2013) at para 2.5. Since the mandatory response requirement was introduced in England and Wales, the number of agencies recorded in Rule 43 summary reports as having failed to respond to Rule 43 reports within the time limit are as follows: 2.5 per cent for the period between 17 March 2008 to 31 March 2009; no outstanding response for the period between 1 April and 30 September 2009; 1.2 per cent for the period between 1 October 2009 and 31 March 2010; 2.2 per cent for the period between 1 October 2009

and 31 March 2010; 4.2 per cent for the period between 1 October 2010 and 31 March 2011; 6.5 per cent

for the period between 1 April 2011 and 30 September 2011; 5.7 per cent for the period between 1

October 2011 and 31 March 2012; 1.7 per cent for the period between 1 April 2012 and 30 September

2012; and 0.6 per cent for the period between 1 October 2012 and 31 March 2013. Summary Reports for these periods can be accessed from the Ministry of Justice’s website, available at:

compliance. The Resource Management Act 1991, for example, requires local authorities to process applications for resource consents "within 20 working days", but there are no penalties in the Act for failure to comply.1503

The main pitfall of mandatory response legislation which imposes no sanctions for outstanding responses beyond ‘naming and shaming’ is that entities might still fail to take coroners’ recommendations seriously. While the experiences in other jurisdictions suggest that naming and shaming may be effective in securing at least formal compliance with response requirements, agencies could still theoretically write pro forma responses to recommendations. The political reality is that, faced with a controversial recommendation implying an entity could have done something to prevent a death, that entity is not going to publicly criticise the Coroner’s Court.1504 Rather, they are more likely to formally acknowledge the recommendation and say, for example, they have created a working group to consider the issues raised.1505 Imposing further penalties or enforcement powers could arguably be justified if this would encourage substantive, and not merely formal, compliance with a response regime.

However, this is difficult to enforce given the current variable quality of coroners’ recommendations. It would therefore be difficult to frame legislation in a way that will secure considered responses from agencies, let alone to impose legislative sanctions for agencies that fail to respond adequately. Thus until upstream changes are introduced to improve the quality of coroners’ recommendations, problems relating to the quality of agencies’ responses may not be adequately resolved.

That being said, effective monitoring regimes where follow-up to responses includes an ability to progress matters further where an entity fails to take appropriate action in response to a recommendation may increase the likelihood of substantive compliance with a response requirement. As discussed, an example of such a monitoring regime is that of the HDC. As the Health and Disability Commissioner noted:1506

If they [health providers] don’t comply – and that is rare – we sometimes say that we will notify the health practitioner’s registration authority that they have declined to follow our recommendations. This could become a professional misconduct issue, but of course that would be for the professional body to decide. They don’t want to have something referred to their professional body. We would always let them know that we planned to

1504 See for example Interview with CYFS (Jennifer Moore, 29 May 2013). 1505 Telephone discussion with Prof Ian Freckelton (12 December 2012). 1506 Interview with the HDC (Jennifer Moore, 22nd February 2013).

do this. If we were dealing with an organisation, we would look at their funders. For example, if we were dealing with a rest home, we may let them know that we will notify their DHB that they have not complied with our recommendations. We may let their auditors know. So I think that is why we get compliance.

In Ontario, the ability of a coroner to progress matters from regional reviews to public inquests similarly provides a powerful incentive for entities to respond to and/or implement a coroner’s recommendation.

There are difficulties in adopting the follow-up regimes used by Ontario Coroners and the HDC to secure substantive compliance with a response requirement. Such referral powers, whereby coroners refer organisations’ responses if they are adjudged inadequate, arguably transform any mandatory response regime into a mandatory implementation regime. With respect to Ontario’s approach, there are also important differences between Ontario and other jurisdictions’ coronial systems, which make direct translation of the Ontario follow-up regime less straightforward.1507 As the Victorian Parliament Law Reform Committee noted, “coroners in Ontario are medical practitioners, not lawyers, and coronial inquests occur before a jury; both of these factors provide strong motivations for all parties to attend informal conferencing.”1508 Finally, in relation to the HDC’s follow-up model, whereas the HDC is a Crown entity with a narrow jurisdiction in the delivery of health and disability services and the rights of health consumers, the coroner is a judicial officer who must investigate deaths in variable circumstances and engage with a diverse range of entities. As such, a coroner may not have the knowledge, time and/or resources to determine whether action taken, or proposed to be taken, by an entity, is appropriate.

These above considerations suggest that the introduction of a mandatory response regime need not, and indeed should not, be accompanied by the imposition of penalties or enforcement powers to secure substantive compliance with coroners’ recommendations. The ability to publicly ‘name and shame’ organisations that fail to respond adequately, together with a review mechanism whereby the Chief Coroner can comment on the adequacy of responses in summary reports, may suffice. There is existing power under the Coroners Act 2006 to refer a death to other investigating authorities, presumably including oversight bodies such as the Health and Disability Commissioner and the Health Practitioner Disciplinary Tribunal. In certain circumstances, referral might be appropriate where an

1507 Parliament of Victoria Law Reform Committee, above n 53, at x1ix. 1508 At x1ix.

entity that is subject to professional oversight failed to take action in response to a death and that failure has contributed to another death.1509

It has been recognised that the introduction of a mandatory response regime would be a “significant and revolutionary step.”1510 As such, a number of practical and operational considerations must be taken into account. The empirical evidence and available literature suggests that if such a regime were to be introduced in NZ, it should require both public and private organisations to which coroners’ recommendations are directed to respond. There should be a three month timeframe within which organisations must respond, although extensions should be available at the discretion of coroners to agencies where complex policy matters are involved. In addition, monitoring of agencies’ responses should occur centrally within the coronial system, preferably through a recommendation liaison coordinator and/or a research unit affixed to the Coroner’s Court. Responses should be published online in full on the Ministry of Justice website, and the Chief Coroner should collate and consolidate all agencies’ responses in summary reports, commenting on the adequacy of these responses and/or identifying those agencies that fail to respond.

7.5.4 Changes during the coronial investigation to improve the quality of coroners’ recommendations

While almost all organisations interviewed were supportive of the introduction of a mandatory response regime, the majority nonetheless considered that a response regime should only be introduced in combination with additional changes that are required during the coronial investigation. The small number of organisations who were not supportive of the introduction of mandatory responses were concerned that other reforms were more important. Medsafe, for example, observed that a response regime would not necessarily encourage meaningful consideration and responses from organisations:1511

If you make responses compulsory, you might get that sort of meaningless gesture. I would much rather see considered and appropriate

recommendations coming out of the system, than meaningless responses to inappropriate recommendations.

Recurring reasons raised by those participants who were not supportive included the variable quality of coroners’ recommendation, incorrectly targeted recommendations, poor consultation by some coroners, limits arising from organisational structures, and the low likelihood of meaningful consideration and response from organisations. As Federated Farmers explained:1512

We’re a subscription based organisation, and we are not flush with money. We run a lean machine. If we had to do it, we’d have to, but it’d be hard to increase the workload without extra cash...If the job got filtered down to elected people like me, it’d be really hard. It’d be better to be done by paid, fully employed staff. Then it’d be part of their job, but it’d be much harder for elected members. Our organisation is structured differently. If the recommendation is grossly wrong and it requires a lot of work to make a bit of it feasible, then it’d take heaps of time to write meaningful responses. It depends on the quality of the report, the relevance of it and it depends on how much time we have to make meaningful responses. It might be easier to have the coroners consult with the Federated Farmers earlier in the process, rather than writing a response after the fact. That would be less work. The bottom of the cliff is never as successful.

Another concern with the introduction of a mandatory response system is its potential to create further delays in a coronial system that is already burdened with time pressures. Requiring mandatory responses could further extend the inquest process if sufficient notice and consideration is required to be given to those entities at which recommendations are directed. Freckelton and Ranson describe the effects of delay on the coronial system as follows: 1513

[Delay] reduces the immediacy of the coronial response, allows distress and anger to fester on the part of family and community members, and takes the sting out of recommendations by coroners for change, as these can be readily dismissed as dealing belatedly with different times and different factual scenarios than those currently obtaining.

Concerns about delay and the need to increase efficiency in New Zealand’s coronial system have been a significant focus of the Ministry of Justice’s current review of the Coroners Act.1514 One NZ practitioner already feels that “delays in the present system make

1512 Interview with Federated Farmers (Jennifer Moore, 18 December 2012). 1513 Freckelton and Ranson, above n 26, at 741.

recommendations pointless,”1515 serving only to reopen old wounds and delay closure. This is because by the time coroners have issued recommendations, organisations and health professionals have often already identified their own internal changes to minimise future deaths, making the recommendations redundant. Delays are therefore arguably inhibiting coroners from achieving the Act’s purpose.

Introducing a mandatory response regime may not be worthwhile unless, and until, the atmosphere into which recommendations are released is improved and existing delays in the system are reduced. Despite broad support among the organisations interviewed for a mandatory response regime, it is significant that the need for such upstream reform was highlighted by almost every organisation interviewed. For example, Standards New Zealand commented, “[i]n principle, I would support a response regime, but it’d have to be part of something broader, rather than simply ‘agency you must write letters to the Coroner.’”1516 Child, Youth and Family Services similarly commented:1517

It [mandatory response regime] may improve the whole quality of the process. So it would probably make the coroners think more carefully about the quality of their recommendation and it would make us pay more attention to what they are suggesting. I think that would have to be set, within a wider set of changes we talked about earlier....So you'd probably want some training and guidance for coroners about making sensible recommendations. You probably want to back that up with some sort of external checks and balances on what their thinking is and if there is an evidence base to support their decisions. (Emphasis added)

Detailed discussions of the changes that should be introduced alongside a mandatory response regime have been discussed in other chapters; for example, recommendations must be targeted (as discussed in chapters 4, 5, and 6) in order to ensure a mandatory response regime is worthwhile.

The best way forward may be to provide coroners with feedback upstream and focus on improving the atmosphere into which recommendations are released. This would involve enhancing the quality of coroners’ recommendations in terms of sources of advice,

1515 Interview with lawyer02 (Jennifer Moore, 10 September 2012). 1516 Interview with Standards NZ (Jennifer Moore, 26 October 2012. 1517 Interview with CYFS (Jennifer Moore, 29 May 2013).

practicality, adherence to prevention principles, timeliness and effectiveness. Once an environment of increased respect for coroners’ recommendations is created, the cultural and political expectation could be that organisations make meaningful responses to coronial recommendations, rather than tokenistic replies, which are then given purposeful consideration by the CSNZ.

Recent research in Victoria, Australia (one of the jurisdictions with a mandatory response regime) found that three quarters of respondents approved of this statutory system.1518 The NZ empirical evidence suggests that the Coroners Act 2006 should be amended to include a mandatory response regime for coroners’ recommendations. However, the introduction of a mandatory response regime, in isolation from the other necessary reforms discussed in this report, is unlikely to enhance the preventive potential of coroners’ recommendations.

Judge: Is morally, ethically Munchkin 1: Spiritually, physically Munchkin 2: Positively, absolutely Munchkin 3: Undeniably and reliably dead

This scene from the movie The Wizard of Oz depicts the citizens of Oz appealing to coronial expertise. After examination of the crushed body of the Wicked Witch of the East, the coroner confirms for the public her untimely accidental death. The coroner officially declares her dead with the production of an oversized ‘Certificate of Death’: “Ding dong, the Witch is dead...”

The duties of modern NZ coroners no longer include examination of the deceased. Despite their “shape-shifting” roles throughout history, the coroner continues to play an important role in investigating and certifying sudden, violent and unnatural deaths.1520 An important purpose of an inquest is to establish that a person has in fact died (or, is “spiritually, physically, positively, absolutely, undeniably and reliably dead.”) The State is interested in ascertaining the causes of deaths in order to prevent similar deaths from occurring in the future.

1519 The Wizard of Oz (Warner Bros, California, 1939). 1520 Freckelton and Ranson, above n 26, at v.

At the centre of this report is the coronial preventive function. For this statutory prophylactic purpose to be achieved, coronial inquiries should be of social and statistical significance in a modern community.1521 The coroners we interviewed for this study recognised the importance of their prevention role. The following comment resonated with many coroners:1522

Obviously first of all I’m looking for any avenues that would make a recommendation applicable. That’s a key point of the Act in my view: to identify where a recommendation could properly be made. But at the same time I don’t think we should be making recommendations where it’s just self- evident. If there’s someone who drinks and drives and smashes into a tree, it’s ridiculous to say that people shouldn’t be drinking and driving, because that’s the law, and everybody knows it anyway. But if you can find specific areas where a comment, when brought to the public’s attention, might prevent further deaths; or, an actual recommendation, then that’s really what we’ve got to be doing.

Coroners may not make recommendations in their findings in cases where known risk factors are present and prevention strategies are in place. For example, as the above quotation demonstrates, legislation and enforcement of BAC limits for drivers of motor vehicles to deter drink driving are unlikely to generate coronial recommendations. In Ippel (a case about drinking and driving) Coroner McDowell declined to issue recommendations, explaining that “as the message about speed, and not drinking and driving is well known I do not propose to make any further comments or recommendations in this matter.”1523

The prevention role of the coroner was recognised as early as 1821. However, this role has evolved and strengthened over time to include the identification and promotion of prevention interventions via their capacity to make recommendations and comments. The information generated from the coroners’ death investigation is important as a source to describe the injury burden and identify risk factors.

Although recommendations are the formal mechanism by which coroners can address death and injury prevention, coroners’ findings that do not contain recommendations could also influence the development of prevention strategies. For example, the circumstances or facts stated in the coroner’s finding, in the absence of a formal recommendation, may prompt changes to prevent a recurrence, particularly if the case receives media attention.

1521 Re Hendrie HC Christchurch CP 445/87, 12 January 1988 Hardie Boys J. 1522 Owen, above n 1405.

Given the Ministry of Justice’s expenditure on the coronial jurisdiction and the high public profile of NZ coroners, it is surprising that the main preventive tool (recommendations) has been under-researched. It is “remarkable that no empirical base” had been generated.1524 An important objective of this research was to fill these knowledge gaps for the benefit of the CSNZ and the public. A major strength of this project is that it was the first empirical study of NZ coroners’ recommendations. It aimed to describe and investigate the nature, recipients and preventive potential of NZ coroners’ recommendations from 1 July 2007 to 30 June 2012. A retrospective study of coroners’ recommendations during the study period was undertaken. Interviews were conducted with coroners, recipients of recommendations and interested parties. Surveys were completed by recipients of recommendations to generate robust data to test whether the Coroners Act 2006 should be amended to include a mandatory response regime for coroners’ recommendations.

This research has informed coronial practice and organisations’ policies. In addition, the findings have contributed to law reform, including the NZ Government’s current review of the coronial jurisdiction.

An additional strength of the study was its mixed methods: legal, qualitative and quantitative. The advantages of mixed-methods research are acknowledged in the literature.1525 The response rates for coroner and organisation participants are strengths of the project.

The purpose of this chapter is to highlight the lessons from the empirical evidence about how the preventive potential of coroners’ recommendations can be realised for the benefit of New Zealanders. In the next section of this chapter we review the preceding chapters. Then we discuss the implications and limitations of our research. Finally, we make suggestions for further research.

This report explored NZ coroners’ recommendations over the five year study period: 2007-2012. We have quantified, described and analysed these recommendations to assess their frequency, content, implementation, and preventive potential. Our research aimed to

1525 JEM Sale, LH Lohfeld and K Brazil “Revisiting the Quantitative-Qualitative Debate: Implications for Mixed-methods Research” (2002) 36 Quality and Quantity 43.

provide much-needed empirical data to inform the NZ Government’s review of the coronial jurisdiction and the debate about whether law reform is required to enable coroners to fulfil their statutory prophylactic function.

Chapter 1 introduced the subject of the report, outlined the aims, pivotal agendas and significance of the research. One of the aims of this project has been to inform coroners’ practice in light of the research findings. We have also provided information to inform the debate about the law reform required to enhance the coronial jurisdiction. In chapter 1, we also described the NZ coronial jurisdiction and compared it with overseas Coroner’s Courts. We highlighted that in NZ, no empirical research had been undertaken about coroners’ recommendations. Despite these significant knowledge gaps, coroners spend time making recommendations and considerable financial resources are spent on public inquests and the administration of the Coroners Act 2006. The outlay of cash is justified, partly, on the basis that coroners’ recommendations contribute to public health goals. Yet, until our study, no research had assessed the preventive impact of coroners’ recommendations. We argued that the NZ community has an interest in, and could benefit from, an efficient and effective coronial system.

The methodologies that were used to analyse coroners’ recommendations were outlined in chapter 2. This chapter was a reflexive analysis which examined our research methods and methodologies. As a mixed-methods project, we outlined the legal, qualitative and quantitative methods that were applied. In particular, we justified our inclusion of the surveys in addition to the 1,644 recommendations and 123 interviews. We outlined the approach used to analyse the data and discussed the ethical issues in conducting and presenting research, such as the importance of feedback to participants.

In chapter 2 we explained that many researchers and agencies regard coronial findings as a rich source of data, yet it is not easy to access this information. In the third chapter, we discussed coronial information sources, record-keeping and under-reporting. We described the difficulties that we experienced when trying to access the data for this project, despite the excellent assistance that we received from the CSNZ. Chapter 3 analysed this problem of under-reporting of coronial decisions in detail. Although the Coroner’s Court is a court of record, there are no official Coroner’s Court Law Reports. Only 38 full coronial findings are available online on the CSNZ website and only summaries of coroners’ recommendations and comments are available on NZLII. We offered proposals for improving reporting of coronial information. We argued that coroner’s court law reports should be introduced and full coronial findings should be available electronically, for

example on NZLII. These improvements in coronial record keeping would maximise the preventive potential of recommendations.

Chapter 4 described and quantified the coroners’ recommendations in our study period. Given the limitations of the coronial information that we outlined in the previous chapter, an important contribution of this study was quantifying the number of recommendations from 2007 to 2012. The results and discussion in this chapter addressed our research objective to describe the nature, frequency and recipients of NZ coroners’ recommendations, 1 July 2007 – 30 June 2012. An important finding was that 23% of recommendations in our study period were untargeted.

In the next chapter we analysed the organisations’ responses to our interview questions about what action (if any) they took and what factors influenced their decision. We explained that little is known about whether, and how, organisations that receive recommendations act on them. But there is much speculation that the majority of coronial recommendations are not implemented. The most prevalent concern (expressed by coroners, public inquiries, the media, and the public) is that coroners’ recommendations are ineffective and have little or no preventive impact because the organisations to which they are directed ignore them. This chapter provided landmark NZ data on the actual rate of implementation of coronial recommendations.

Chapter 6 traced the origins of coroners’ statutory prophylactic function. It also analysed the key barriers to maximising this function and strategies for improvement. This chapter highlighted that the majority of research participants are supportive of the statutory preventive function. While there have been improvements since the introduction of the Coroners Act 2006, the findings suggest that the prophylactic potential of coroners’ recommendations has not yet been fully realised in NZ. The empirical evidence in this chapter suggested that recommendations could be improved by encouraging more coroners to consider similar cases, undertaking analysis of patterns and comparative risks.

The preventive potential of coroners’ recommendations could also be improved by the introduction of a mandatory response regime, which was the topic of chapter 7. We analysed the debate about whether mandatory response regimes should be included in coronial legislation, drawing from overseas experiences. This chapter described the participants’ overwhelming support for the introduction of such a regime. We highlighted that introduction of a mandatory response regime cannot be a replacement for early consultation with organisations and interested parties during the coronial process. We argued that the Coroners Act 2006 should be amended to include a mandatory response

regime and that the government’s review (which excludes this proposal) is inconsistent with the empirical evidence.

As this study was the first of its kind in NZ, the findings make an important contribution to the NZ and international literature and the CSNZ. Many participants (33) made positive comments about the potential contribution of this research. For instance, a lawyer remarked that “this piece of work is overdue and is really important.”1526 Another health sector organisation stated that it “is heartening to know you’re doing this research...because it is important that someone investigates the [coronial] process.”1527

A key finding was that there were 607 coronial inquiries that resulted in 1644 recommendations during our study period. There were 309 recipients of coroners’ recommendations. These figures were previously unknown. Therefore, these figures, alone, are an important contribution to our understanding of the coronial jurisdiction.

Government organisations received the highest proportion of recommendations (121/309). Not for profit organisations received 67 recommendations, for profit organisations received 44 recommendations and individuals received 5 recommendations. There were 72 recommendations that did not specify an identifiable organisation. The Ministry of Health received the second-highest proportion of coroners’ recommendations. Transport accidents, drowning, intentional self-harm and complications of medical or surgical care were the main underlying causes of death categories investigated by coroners. Fifty-eight of the 607 enquiries involved complications from medical or surgical care.

The 123 interview participants reported that there have been improvements in coronial recommendations since the introduction of the Coroners Act 2006, but that the prophylactic and patient safety potential of recommendations is not being maximised.

This study was also the first in NZ to provide data on implementation rates for coroners’ recommendations. The most prevalent concern is that coroners’ recommendations are ineffective because the organisations to which they are directed ignore them. Therefore, this study’s findings about implementation are an important contribution to the CSNZ and the public.

We are focused on research-practice translation. Feedback to participants is a vital component of this endeavour. We sent all interested participants copies of the preliminary themes elicited from the interview transcripts and/or their interview transcripts. Interested participants were also asked to comment on the draft version of an article published on the findings of this research.1528 They were able to comment on a draft version of the final report. Their feedback was invaluable. The final research findings were presented to CSNZ in both written and oral formats.

Coroners reported that a positive outcome of this research was learning more about their colleagues’ practices. As we outlined in this report, coroners sometimes work in “silos” and they only meet twice per year. Coroner Aitken explained:1529

We don’t know what other coroners do. I only know because I have appeared as counsel. It will be helpful to know what other coroners do...We hope your research can help us to do our job better. Just talking to you stimulated me to think of things to put in the bench book.

Organisations also commented that they were pleased to learn more about coronial procedures. Many organisations reported that they were glad to learn that they were “not a lone voice” and that other agencies had similar experiences during coronial inquiries. This government agency’s description captured other organisations’ views:1530

Sometimes we have wondered whether it is just us. It’s useful to know that we are not alone.

Another important outcome for organisations was that the research provided the impetus to build or strengthen relationships with the CSNZ. Coroners were also pleased to develop such relationships with external bodies. One coroner asked us for the contact details of the participating organisations. With the permission of the organisations, we will provide this information after submission of the final report. This result is invaluable because a key finding of the research was that consultation with, and input from, organisations is vital to quality coronial investigations and findings. During the research, we have connected coroners with organisations e.g. a coroner was connected with our contacts from Federated Farmers and the Chief Coroner with clinicians from a DHB.

Our recent article about coroners’ recommendations and health care-related deaths generated lots of attention from health organisations and the media. Many organisations contacted us to request copies of coronial recommendations that our study identified as directed to them, but that had never been received. We supplied the requested information. For example, on 21 July, the Health Quality and Safety Commission contacted us to request all the coroners’ recommendations that had been directed to them during our study period. We included the CSNZ in the discussion and they provided further information. These outcomes are important because it may increase the likelihood that the recommendations will be considered and implemented.

We have been in contact with the CSNZ, particularly the Chief Coroner Judge MacLean, throughout the research process. The coroners’ support, enthusiasm for the research and willingness to adopt recommendations stemming from the empirical evidence has been impressive. For example, since we discovered that 23% of coroners’ recommendations are untargeted, the Chief Coroner has announced publicly that the CSNZ has taken that “on board” and they have changed their practices accordingly to ensure that recommendations identify specific organisations.1531

Our objective to inform coronial practice, discussed in the section immediately above, should also improve the preventive potential of coroners’ recommendations. In chapter 6, we outlined numerous strategies to achieve this goal.

The findings of this study highlight the need for the establishment of protocols for coroners to identify the circumstances under which a recommendation is warranted and guidelines for their formulation. Ideally, recommendations should draw from the theoretical frameworks of injury causation and public policymaking to ensure they are targeted, evidence-based and, preferably, acceptable. The introduction of coronial guidelines or Coroner’s Court Rules would help to generate consistency in coronial procedures. Coroners should be consulted about the development of such documents.

Providing coroners with adequate support, resources and training, together with the introduction of Coroner’s Court Law Reports and electronic access to full coronial findings, are

key areas that need to be addressed if coroners are to be an effective public health and safety apparatus for the State.

There also need to be mechanisms for monitoring and evaluating coronial recommendations such as a mandatory response system and feedback about proposed recommendations during the coronial inquiry. This could include active engagement with the injury prevention workforce and the community, within the limits of coronial judicial independence.

Many of the organisations interviewed offered to provide assistance which may enhance the preventive potential of recommendations. For example, a DHB expressed “hope that this research creates a bit of change.”1532 Another health sector organisation offered to present the research findings to Health Board meetings in order to encourage change. This participant stated:1533

So let’s talk about how we can actually make sure that happens. If it’s something that’s related to health, you can give it to me and I’ll make sure it’s discussed by all of the Health Board Chairs, or we’ll give it to the organisation that can facilitate that change for us.

Some of the changes suggested by the empirical evidence do not require law reform. Instead, many require operational changes. As a government organisation put it, the coronial system “is not so broken that we need everything fixed, but we could make some useful changes.”1534

However, our findings suggest that some amendments to the Coroners Act 2006 are required to enhance the coronial preventive function. In particular, the Act should be amended to include a mandatory response system for coroners’ recommendations. The participants overwhelming supported the introduction of such a regime. Our findings provide robust empirical support for this law reform. Not only is our recommendation based on 123 interviews, but we also analysed over 40 surveys to corroborate the interview data. Australian research has evaluated the Victorian coronial jurisdiction, which has statutory mandatory responses, and the results were positive.1535 At the time of writing, the

1533 Interview with HealthCareOrganisation799 (Jennifer Moore, 12 November 2012).

Minister for Courts had not acted on this suggestion because of the cost. However, commentators have pointed out that the cost is not unreasonable and the costs are borne primarily by organisations, not the government.1536

To increase the likelihood of our findings having an impact on law reform, we published two articles about the findings of our research early in the research process and during the government review.1537 We have provided the Minister and his advisors with advance copies of these publications and we have given them oral explanations. Representatives from the Ministries of Health and Justice have also attended presentations about our research findings.

We continue to advocate for the introduction of mandatory responses, particularly in the media. There were 23 media items about the research findings on 18th July 2014.1538 We also advocate for this change in our roles as members of the NZ Law Society Health Law Committee. The committee will discuss our submission on the Coroners Amendment Bill 2014 at its September meeting.

The government announced their review in July 2012. Prior to that, in May 2012, one of the Minister’s advisors contacted us about this project after reading about it in the media.1539 The original terms of reference for the government’s review did not include coroners’ recommendations.1540 But, after discussion with us and the Chief Coroner, coroners’ recommendations were included. This inclusion is significant because the government review confirmed our preliminary research findings: coroners’ recommendations are one of the most important aspects of the coronial process and the government review.1541 The Minister has also adopted several of our other law reform suggestions. For example, his advisors adapted our findings about the ‘interested parties’ provisions in the Act which we published in an article in March 2014.1542 The data also supports the introduction of Coroner’s Court Rules or Guidelines to encourage consistency in coronial practice.

1538 For example, see Loughrey, above n 7; Tapaleao, above n 7; Devlin and Johnstone, above n 7. 1539 Searle, Private Secretary (Advisory) to Hon Borrows and Moore, above n 212.

1540 Searle, Private Secretary (Advisory) to Hon Borrows and Moore, above n 213. 1541 Cabinet Paper, above n 198, at 5.

A limitation of the study is that the interested party participants are not representative. Future research should be undertaken to further explore their views. Although selection criteria were applied, there may be selection bias in the interested party sample because of the high proportion of participants who contacted the researcher.

There may be case selection bias in the analysis of recommendations because the sample of repeated recommendations was limited to those that were identical in wording. Repeated themes were not eliminated which may have led to an overestimate of the total number of recommendations.

Another limitation of the study is the possible impact of the Ministry of Justice’s review of the Coroners Act 2006 which began in 2012 during the study period. The review may have impacted the coroners’ formulation of recommendations. As this was the first analysis of NZ coroners’ recommendations, it is exploratory only and further research should be undertaken.

Given that this was the first NZ study of coroners’ recommendations since the introduction of the Coroners Act 2006, more research is needed to corroborate these findings. As we discussed in the preceding section, future research could explore the views of interested parties. In addition, the same dataset of recommendations could be analysed for repeated themes (rather than repeated identical wording) for comparison with the results of this study.

This research found that coroners made 670 comments during our study period. Although coroners made more recommendations, 670 is a significant number of comments. It is beyond the scope of this study to provide in-depth analysis of the nature of coronial comments. However, the frequency of coronial comments and the coroners’ descriptions of their decision making suggest that further investigation would be useful.

Coronial recommendations could be a key patient safety resource and reduce the incidence of adverse events, subject to the necessary quality improvements identified in this

study.1543 The potential value of the quality of care learning that can be derived from coronial recommendations is currently under-researched, but is worth exploring further in future projects.1544

This chapter’s drawing together of the important threads from the preceding chapters has highlighted the strategies for maximising the preventive potential of coroners’ recommendations for the benefit of the NZ public. It has also presented a summary of our findings, an analysis of the limitations of our research and a call for further work. The chapter discusses the implications of our findings and how they might inform coronial practice and law reform.

Coroners’ recommendations have the potential to contribute to public health and safety. This study described prevention success stories where coroners’ recommendations have had a positive preventive impact. However, this study has also demonstrated that while coronial recommendations can be useful tools for intervention and policy development, coroners’ contribution to morbidity and mortality prevention at the population level requires further development. Although there is a paucity of research about the relationship between coronial recommendations and prevention, this study’s findings are broadly consistent with Australian research on coroners’ recommendations. This research seeks to address these gaps in knowledge for the benefit of coroners, organisations and the community.

Coroners’ recommendations rarely specified all the elements necessary to adhere to the principles of effective injury prevention. Given that the qualifications and training requirements for coroners are primarily legal, it cannot be assumed that coroners have knowledge of public health/prevention principles or the expertise to apply them. Furthermore, the CSNZ is under-resourced, hindering coroners from effectively fulfilling their preventive function. The empirical evidence supports the introduction of a service similar to the Victorian CPU in NZ.

A mechanism to monitor the implementation and impact of recommendations is also crucial for providing coroners with feedback for future death investigations and

recommendations. Feedback about proposed recommendations should also occur during the coronial inquiry to enhance the quality and feasibility of recommendations and, thus, increase the likelihood of their implementation.

The shortcomings identified in this study are also important for overseas coroner and medical examiner death investigation systems that are considering strengthening their preventive role. Although legislation has been reformed to include prevention as a purpose and several jurisdictions (e.g. Australia and the UK) require organisations to respond to recommendations, prevention principles are not adequately integrated into death investigation systems. Death investigation systems continue to evolve, with their level of contribution to public health a matter of much debate. This study is an important step towards improving coronial practice and the contribution of recommendations to injury and death prevention.

The CSNZ plays a role in highlighting where avoidable deaths occur and introducing measures to prevent recurrence. Although there have been advances since the introduction of the Coroners Act 2006, those who were interviewed consistently expressed the view that further improvements are needed. For example, Coroner Dymond “hoped that the 2006 Act would have been significantly better than it has turned out to be.”1545 Research about, and government reviews of, coronial law should be welcomed because by learning from tragedies, coronial systems contribute to public health and safety.

The Minister for Courts has stated that the government wishes to have a coronial service that can “deliver as high a standard as possible to families and the general public.”1546 To enable this, operational improvements to the CSNZ should be considered, such as strengthening resources, support and training for coroners. The Victorian CPU and CLS should be models to consider.

Any reforms for prevention must be balanced against the broader implications of improving a court system already burdened by time pressures. Australian research shows that the efficiency of coronial processes are improved when coroners have easy access to expertise such as clinical information. Moreover, given that a principal purpose of the Act is prevention (and the government has not indicated any changes to the legislation’s purposes), it would be in the public interest to introduce proposals which may enhance coroners’ preventive functions.

The government review presents an opportunity to initiate much-needed reforms. The reforms could be usefully informed by the empirical evidence in this project. A review that includes few proposals to enhance preventive functions may mean that coroners’ recommendations are a “lost opportunity” to save New Zealanders’ lives.1547

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Ibrahim, Joseph Elias and others The Role of the Coronial Process in Initiatives for Improving Patient Safety and Quality of Health Care: Final Report of a Consultancy into the Coronial Death Investigation Process in Australia (Report Submitted to the Australian Council for Safety and Quality in Healthcare 2003).

Justice and Electoral Committee Coroners Bill: Report from the Justice and Electoral Committee (2004).

Langley, John D and Cryer, Colin with Injury Prevention Research Unit, Department of Preventive and Social Medicine, University of Otago Submission to the Justice and Electoral Select Committee on the Coroners Bill (2005).

Legal System Division, Scottish Government Review of Fatal Accident Inquiry Legislation: A Consultation Paper (2008).

McArthur, Colin with NZ Chief Medical Officers Submission to the Justice and Electoral Select Committee on the Coroners Bill (2005).

Ministry of Justice Ministry of Justice 9 May 2005 Initial Briefing to the Justice and Electoral Select Committee (2005).

Ministry of Justice Coroners Bill: Departmental Report 27 February 2006 (2006). Ministry of Justice Coroner Statistics 2010 England and Wales (2011).

Ministry of Justice Summary of Reports Coroners Rules: Fifth Report (2011).	and	Responses	under	Rule	43	of	the
Ministry of Justice Summary of Reports Coroners Rules: Sixth Report (2012).	and	Responses	Under	Rule	43	of	the
Ministry of Justice Summary of Reports Coroners Rules: Seventh Report (2012).	and	Responses	Under	Rule	43	of	the
Ministry of Justice Summary of Reports Coroners Rules: Eight Report (2013).	and	Responses	Under	Rule	43	of	the
Ministry of Justice Summary of Reports	and	Responses	under	Rule	43	of	the

Coroners Rules: Ninth Report: For period 1 October 2012 – 31 March 2013 (2013).

Ministry of Justice Summary of Reports and Responses under Rule 43 of the Coroners Rules: Ninth Report: For period 1 October 2012 – 31 March 2013 (2013).

Ministry of Justice (UK) Implementing the coroner reforms in Part 1 of the Coroners and Justice Act 2009: Response to consultation on rules, regulations, coroner areas and statutory guidance (2013).

New Zealand Law Commission Coroners A Review: A Discussion Paper (NZLC PP36 1999).

New Zealand Office of the Auditor-General Responses to the Coroner’s Recommendations on the June 2003 Air Adventures Crash (2008).

NZ Ministry of Justice Coroners Act Review: Proposal for Reform - Cabinet Paper 2 (2013).

Office of Safety and Quality in Healthcare, Western Australia Department of Health From Death We Learn (2007).

Office of the Chief Coroner of New Zealand Recommendations Recap Edition 1 (2011).

Office of the Chief Coroner of NZ Recommendations Recap - Issue 2 (2012). Office of the Chief Coroner of NZ Recommendations Recap - Issue 3 (2012).

Office of the Chief Coroner, Ontario Guidelines for Regional Coroner Reviews (2002).

Office of the Chief Coroner Ontario Office of the Chief Coroner of Ontario 2010 Report on Inquests (2012).

Ontario Law Reform Commission Report on the Coroner System in Ontario (1971). Ontario Law Reform Commission Report on the Law of Coroners (1995).

Parliament of Victoria Law Reform Committee Coroners Act 1985 Review Final Report (2006).

Queensland Office of the State Coroner Office of the State Coroner Annual Report 2011 – 2012 (2012).

Queensland Ombudsman The Coronial Recommendations Project: An Investigation into the Administrative Practice of Queensland Public Sector Agencies in Assisting Coronial Inquiries and Responding to Coronial Recommendations (2006).

Standing Committee of Attorneys-General Implementation of Coronial Decisions Across Australia.

Strange, Helena, Health and Disability Commissioner Submission to the Justice and Electoral Select Committee on the Coroners Bill (2005).

Transport Safety Group A Guide to Occupational Health and Safety Transport Industry (2006).

United Kingdom Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review (’The Luce Report’) (Cmnd 5831 2003).

Wellington City Council Lower Speed Limits in Suburban Shopping Areas - Overview (2011).

Western Australia Department of Health From Death We Learn 2012 (2012). World Health Organisation The Global Burden of Disease: 2004 Update (2008). Ministry of Justice Departmental Report (2006).

Bugeja, Lyndal “Determinants of Coroners’ Recommendations on External Cause Deaths in Victoria, Australia” (PhD, Monash University, 2011).

Driscoll, Timothy Robert “The Epidemiology of Work-related Fatalities in Australia” (Doctor of Philosophy, University of Sydney, 2002).

Grech, Carol “Coronial Inquiries into Fatal Adverse Events in South Australian Hospitals: From Inquest to Practice” (PhD, The University of Adelaide, 2004).

Leslie, Stanley Myles MacKenzie “Speaking for the Dead: Coroners, Institutional Structures and Risk Management” (Doctor of Philosophy, University of Toronto, 2011).

Tidbury, Kate “Coronial Recommendations: Ensuring the Dead Really do Speak to Protect the Living” (LLB(Hons), Auckland University, 2011).

Borrows, Chester “beehive.govt.nz - Coronial system to be reviewed” (31 July 2012)

Bureau de Coroner Quebec “Recommandations — Bureau du coroner” (2007) Bureau du Coroner

Carroll, Joanne “Victim’s partner: Listen to coroner - National - NZ Herald News” (25 March 2012) The New Zealand Herald

Coroner’s Court of Victoria “Coroners’ Written Findings - Coroners Court of Victoria” Coroners Court of Victoria

Coroners Court of Victoria “Coroners Prevention Unit - Coroners Court of Victoria”

Coronial Services of New Zealand “Coronial data collection — Coroners Court” (14 February 2014) Coronial Services of New Zealand

Coronial Services of New Zealand “Findings and Recommendations — Coroners Court” Coronial Services of New Zealand

CPU, Coroners Court of Victoria “Brochure - Coroners Prevention Unit - Coroners Court of Victoria” (August 2013) Coroners Court of Victoria

Dive Magazine NZ “Dive New Zealand : Coronors and Accident reports” Dive NZ

Government of Saskatchewan “Frequently Asked Questions - Ministry of Justice - Government of Saskatchewan” Government of Saskatchewan

Houlahan, Mike “Speak up, chief tells new coroners - National - NZ Herald News” (16 June 2006) New Zealand Herald

Jones, Bob “Bob Jones: Coroners should shut up and do their jobs - Life & Style - NZ Herald News” (19 February 2013) The New Zealand Herald

Judiciary of England and Wales “Judges, Tribunals and Magistrates | 2013 | Chief Coroner: Implementation of relevant parts of Coroners and Justice Act 2009” (25 July 2013) Judiciary of England and Wales

Lark, Matthew “Chief Coroner comments on another round of change” (12 July 2013) ADLSI Independent Voice of Law <http://www.adls.org.nz/for-the-

profession/news-and-opinion/2013/7/12/chief-coroner-comments-on-another- round-of-change/>.

National Coronial Information System “About the NCIS | National Coronial Information System” (14 February 2014) National Coronial Information System NCIS

National Coronial Information System “How to access data? | National Coronial Information System” National Coronial Information System NCIS

NZPA “Goff backs proposal for chief coroner - National - NZ Herald News” (5 November 2001) New Zealand Herald

Ontario Ministry of Community Safety and Correctional Services “Ministry of Community Safety and Correctional Services :: About Death Investigations in Ontario” Ontario Ministry of Community Safety and Correctional Services

Slater, Cameron “Bob Jones on Idiot Coroners, They Deserve a Good Bum Kicking” (21 February 2013) Whale Oil Beef Hooked

Taylor, Cliff “Toxic gas death inquiry - National - NZ Herald News” (15 June 2008) The New Zealand Herald

Thomas, Kim “Call for wider licence review powers - national | Stuff.co.nz” (25 February 2009) Fairfax New Zealand Limited Stuff National News

Victorian Institute of Forensic Medicine and the Coroners Court of Victoria “Clinical Liaison Service, State Coroner’s Office and the Victorian Institute of Forensic Medicine, Victoria, Australia” Clinical Liaison Service

World Health Organisation “International Classification of Diseases ICD-10 Version:2010” (2010) World Health Organisation

“Editorial: Coroners deserve this better deal - National - NZ Herald News” (31 July 2000) New Zealand Herald

“Editorial: Professional era overdue for coroners - National - NZ Herald News” (6 October 2003) New Zealand Herald

“Ministry of Community Safety and Correctional Services :: List By Category” Office of the Chief Coroner Verdicts and Recommendations

“National Violent Death Reporting System|NVDRS|Violence Prevention|Injury Center|CDC” Centers for Disease Control and Prevention

“Magistrates Court : Coronial Numeric Index” Coronial Findings Tasmanian Coroners Court

“David Studdert, Jane Pirkis and Graham Sewell - ARC Linkage Project: Learning from Preventable Deaths” University of Melbourne

Email from Jackie Andrews to Jennifer Moore “regarding the dataset of coronial recommendations” (20 December 2013).

Interview with Coroner Armstrong (Jennifer Moore, 11 October 2012). Interview with Coroner Atwood (Jennifer Moore, 11 December 2012). Interview with Robert Barlow (Jennifer Moore, 11 October 2012).

Barrington, Mike “Tongariro Drownings aftermath” The Northern Advocate (17 April 2008).

Borrows, Chester “Changes to Coroner’s Court Signalled” Press Release (26 June 2013).

Borrows, Chester “Further Changes to Coronial System Announced” Press Release (17 October 2013).

Boyer, Sam “Coca-cola Addiction Linked to Death” Stuff (12 February 2013). Interview with Greg Brogden (Canterbury DHB) (Jennifer Moore, 21 January 2013).

Email from Donna Buckingham to Jennifer Moore “regarding the NZ Council for Law Reporting” (21 June 2013).

Chief Coroner Judge MacLean “Are Coroners Getting Out of Hand or Are They Being Misunderstood?” (Wellington Medico Legal Society, Wellington, 21 March 2013).

Interview with Chief Social Worker, Child Youth and Family, Ministry of Social Development (Jennifer Moore, 29 May 2013).

Interview with Clancys (Jennifer Moore, 11 October 2012). Interview with Coroner Clarke (Jennifer Moore, 29 October 2012). Interview with David Cliff (Police) (Jennifer Moore, 22 April 2013). Interview with Chief Coroner (Jennifer Moore, 12 September 2012).

Email from Chief Coroner to Jennifer Moore “regarding number of coronial findings on CSNZ website” (10 June 2013).

Email from Chief Coroner to Jennifer Moore “regarding the draft of JLM article” (19 July 2013).

Email from Chief Coroner to Jennifer Moore “regarding recommendations directed to HQSC” (22 July 2014).

Coroner Evans, Gary “The New Zealand Law Commission Report on Coroners 2000: Coronership in New Zealand in the New Millenium” (Australasian Coroners’ Society Conference, Brisbane, 2000).

Email from Joanna (Access Liaison Officer, NCIS) Cotsonis “Fees for Access to NCIS” (26 July 2013).

Email from (CSNZ) to Jennifer Moore “regarding coronial jurisdiction of deaths” (2 February 2011).

Email from (CSNZ) to Jennifer Moore “regarding cost to administer the Coroners Act 2006” (2 August 2011).

Email from (CSNZ) to Jennifer Moore “regarding the difference between recommendations and comments” (13 January 2012).

Email from (CSNZ systems administrators) to Jennifer Moore “regarding searching on CSNZ databases” (26 November 2012).

Cullen, Michael “Urgent Reports Sought on Christchurch Crash Finding” (Wellington, 30 May 2006) <www.beehive.govt.nz>.

Email from (Deaths in Custody Watch Committee of Western Australia) “Submission on the Inquiry into the Transportation of Detained Persons” (14 May 2010).

Devlin, Collette and Johnstone, Tessa “Report Highlights Failings of Coronial System” Dominion Post (Wellington, 18 July 2014).

Interview with Coroner Dymond (Jennifer Moore, 16 October 2012). Interview with Editor, Dive Magazine (Jennifer Moore, 5 February 2013).

Editor The New Zealand Herald “Coroners Must Not be Ignored” The New Zealand Herald (11 March 2012).

Interview with Electricity Engineers’ Association (Jennifer Moore, 7 February 2013).

Ensor, Blair “Calls to Fast-track Bouncer Bill” The Marlborough Express (Marlborough, 30 October 2009).

Interview with Federated Farmers (Jennifer Moore, 18 December 2012). Interview with Coroner Fitzpatrick (Jennifer Moore, 25 September 2012).

Fleming, Victor and Cukor, George The Wizard of Oz (Warner Bros, California, 1939).

Email from Coroner Frank to Jennifer Moore “regarding the draft of the JLM article” (22 July 2013).

Freckelton, Ian “Coronership Under Challenge: The Evolving Institution of the Modern Coroner” (The Greek Legal and Medical Conference, Corfu, Greece, 2009).

Freckelton, Ian “International Trends in Death Investigation” (World Association of Medical Law Conference, Brazil, 8 August 2012).

Email from Sarah Gebert and senior in-house solicitor, Coroner’s Court Victoria to Catey Boyce “regarding whether for profit and non government not for profit organisations are required to respond to coroners’ recommendations” (12 August 2013).

Interview with Sean Goddard (Department of Conservation) (Jennifer Moore, 14 May 2013).

Interview with GovtOrg01 (Jennifer Moore, 28 February 2013). Interview with GovtOrg02 (Jennifer Moore, 5 February 2013). Interview with GovtOrg03 (Jennifer Moore, 1 March 2013).

Interview with GovtOrg06 (Jennifer Moore, 22 February 2013). Interview with GovtOrg07 (Jennifer Moore, 20 February 2013). Interview with GovtOrg08 (Jennifer Moore, February 2013).

Interview with GovtOrg09 (Jennifer Moore, 12 February 2013). Interview with GovtOrg10 (Jennifer Moore, 1 May 2013).

Interview with GovtOrg11 (Jennifer Moore, 19 February 2013). Interview with GovtOrg12 (Jennifer Moore, 4 February 2013).

Email from Shelley Hanifan to Jennifer Moore “regarding recommendations directed to HQSC” (18 July 2014).

Hauge, Samantha and Bugeja, Lyndal “Enabling Public Health and Safety Through the Coroners’ Death Investigation System: The Principles and Practice of the Coroners Prevention Unit” (Asia Pacific Coroners Conference, Australia, 2011).

Interview with HealthCareOrganisation01 (Jennifer Moore, 4 December 2012). Interview with HealthCareOrganisation02 (Jennifer Moore, 12 February 2013). Interview with HealthCareOrganisation03 (Jennifer Moore, 5 February 2013).

Interview with HealthCareOrganisation214 (pseudonym) (Jennifer Moore, 13 March 2013).

Interview with HealthCareOrganisation299 (Jennifer Moore, 23 January 2013). Interview with HealthCareOrganisation377 (Jennifer Moore, 13 December 2012). Interview with HealthCareOrganisation399 (Jennifer Moore, 14 February 2013). Interview with HealthCareOrganisation499 (Jennifer Moore, 23 October 2012).

Interview with HealthCareOrganisation599 (Jennifer Moore, 10 December 2012). Interview with HealthCareOrganisation699 (Jennifer Moore, 19 June 2013).

Hyslop, Liam “Action, Not Words, Prevent Tragic Deaths” The Dominion Post (Wellington, 13 July 2013) A19.

Inglis, Scott “Safety Must be Prime Concern” Bay of Plenty Times (31 January 2014)

Knight, Kim “Fatality, near-misses preceded gorge deaths” Sunday Star Times (21 February 2010).

Laws, Michael “Individual Stupidity No Reason to Curb Our Freedoms” Sunday Star Times (17 February 2013) A11.

Interview with Lawyer02 (Jennifer Moore, 10 September 2012). Interview with Lawyer04 (Jennifer Moore, 5 February 2013).

Loughrey, David “Chief Coroner Welcomes Study” Otago Daily Times (Dunedin, 18 July 2014).

McClelland, Matthew and Lewis, Adam The Laws of New Zealand (Lexis Nexis, 2012) Coroners.

Interview with Midwifery Council (Jennifer Moore, 17 December 2012). Interview with Ministry of Health (Jennifer Moore, 15 February 2013).

Interview with Ministry of Transport (Jennifer Moore, 4 February 2014). Interview with Dave Moran (Dive Magazine) (Jennifer Moore, 5 February 2013).

Morton, Jamie “Group Latches onto Quake Idea to Cut Baby Deaths” The New Zealand Herald (New Zealand, 29 June 2011).

Neill, Frank “Give Coronial Recommendations Some Teeth” (2012) 806 LawTalk 8.

Nichols, Lane “Infant Died in Bed with Sibling” The Dominion Post (Wellington, 22 July 2011).

Email from Lily Nunweek to Jennifer Moore “regarding access to full coroners’ findings” (22 June 2012).

Email from Lily Nunweek to Jennifer Moore “regarding dataset of coronial recommendations” (20 December 2013).

Interview with NZ College of Midwives (Jennifer Moore, 22 January 2013). Interview with NZ Law Commission (Jennifer Moore, 13 February 2013). NZPA “Doctor Calls for Action on Barrier” (New Zealand, 29 September 2005). Interview with NZ Transport Agency (Jennifer Moore, 12 February 2013).

Interview with Coroner Oldfield (Jennifer Moore, 12 October 2012). Interview with Org1 (Jennifer Moore, 18 February 2013).

Interview with Coroner Owen (Jennifer Moore, 3 October 2012). Interview with Ms Palmer (Jennifer Moore, 18 September 2012).

Email from Allan Panting (Royal Australasian College of Surgeons) to Jennifer Moore “regarding receipt of coroners’ recommendations” (3 December 2012).

Interview with Coroner Pennell (Jennifer Moore, 13 October 2012). Interview with Pharmac (Jennifer Moore, 27 November 2012).

Email from Wendy Proffitt to Jennifer Moore “regarding requests for coronial information” (26 November 2012).

Email from Wendy Proffitt to Jennifer Moore “regarding the CSNZ databases” (20 June 2013).

Email from Oliver Searle Private Secretary (Advisory) to Hon Borrows and Jennifer Moore “regarding our Law Foundation-funded coroners’ recommendations research and the New Zealand Government review” (16 May 2012).

Email from Oliver Searle Private Secretary (Advisory) to Hon Borrows and Jennifer Moore “regarding the scope of our Law Foundation-funded research compared to the scope of the New Zealand Government review” (31 July 2012).

Email from Oliver Searle (Private Secretary (Advisory) to Hon Borrows) to Jennifer Moore “regarding date for introduction of the Bill” (27 June 2013).

Email from Dean Skachill to Jennifer Moore “regarding full coronial findings” (28 September 2013).

Spiller, Peter Court of record(7th ed, Lexis Nexis, Wellington, 2011). Interview with Standards NZ (Jennifer Moore, 26 October 2012).

Stewart, Alastair “Centennial Highway Barrier Delay” Kapiti Observer (Kapiti Coast, 14 January 2010).

Email from Coroner Stewart to Jennifer Moore “regarding Carroll and adverse comments” (18 June 2013).

Interview with Surf Life Saving NZ (Jennifer Moore, 11 February 2013). Interview with Tairawhiti DHB (Jennifer Moore, 5 December 2012).

Tapaleao, Vaimoana “Findings by Coroners Fall on Deaf Ears” NZ Herald (Auckland, 18 July 2014).

Interview with Wayne Temple (National Poisons Centre) (Jennifer Moore, 13 February 2013).

Interview with Mr Todd (Jennifer Moore, 11 September 2012). Interview with Waikato hospital (Jennifer Moore, 12 December 2012). Interview with Coroner Walsh (Jennifer Moore, 13 October 2012).

Email from Ray Watterson “Submission on the Inquiry into the Transportation of Detained Persons” (14 May 2010).

Interview with Wellington City Council (Jennifer Moore, 31 January 2013). Interview with Professor Werry (Jennifer Moore, 12 November 2012).

York, Deon “Learning from Tragedy: New Zealand’s National Mortality Review Programme” (Health Services Research Centre Victoria University Seminar Series, Wellington, 5 September 2012).

“Clear and Present Danger Ignored” The New Zealand Herald (17 October 1998).

“Barrier on Notorious Road” The New Zealand Herald (Auckland, 24 November 2004).

“Coroner’s Plea After Man Dies While Held by Bouncer” The Marlborough Express (Marlborough, 16 September 2008).

“People Not Keeping to Cot Death Advice” Sunday Star Times (New Zealand, 16 November 2010).

“Ask Me Anything: Chief Coroner Judge Neil MacLean” The National Business Review (New Zealand, 14 December 2012) 31.

“Gadd Knight” on Outback Coroner (2013). Queensland State Coroner’s Guidelines(2013). Laws of New Zealand Court of record.

Thank you for showing an interest in this project. Please read this information sheet carefully before deciding whether or not to participate. If you decide to participate we thank you. If you decide not to take part there will be no disadvantage to you and we thank you for considering our request.

This research will analyse Coroners’ recommendations. We are interested in agencies’ decision-making about whether or not to implement Coroners’ recommendations. We are also interested in the nature of Coroners’ recommendations, and their potential public health impact. The study has the potential to benefit the coronial system and also public health by using the Coronial Services to maximise opportunities for prevention.

We hope that the research findings will assist you to fulfill your statutory preventive role effectively. This project will provide the Coronial Services of NZ (CSNZ) with data to inform the formulation of recommendations. The project will also provide information to inform the debate about whether law reform is required. For example, should the Coroners Act 2006 require agencies to respond to recommendations?

Should you agree to take part in this project, you will be asked to meet with the researcher for one interview which will be about one hour to one hour and thirty minutes in duration. This interview will take place at a place and time that is convenient to you. If you prefer, you can choose a telephone, instead of a face-to-face, interview. The interview will be audio tape recorded with your permission. You will be asked about the recommendations you make in your findings.

If you become uncomfortable with any of the interview questions, you have the right to stop the interview, pause, switch the audio tape off, or withdraw from the study. Please be aware that you may decide not to take part in the project without any disadvantage to yourself of any kind.

What Data or Information will be Collected and What Use will be Made of it? The interview will be audio tape recorded with your permission. You will be asked about the recommendations you make in your findings. After the interview, the interview tapes will be transcribed. The transcripts will be coded and analysed.

This project will provide information to inform the debate about whether law reform is required to enable Coroners to achieve their statutory functions. The research will explore the extent to which Coroners’ recommendations are implemented by agencies and provide the Coronial Services of NZ with data to inform the formulation of recommendations.

This research is funded by the NZ Law Foundation. There will not be commercial use of the data. The NZ Law Foundation, the researchers, research assistant and transcribers will have access to the data. The data collected will be securely stored in such a way that only these people will be able to gain access to it. Data obtained as a result of the research will be retained for at least 5 years in secure storage. Any personal information held on the participants, such as contact details, may be destroyed at the completion of the research, even though the data derived from the research will, in most cases, be kept for much longer, or possibly indefinitely. The

audio tapes will be preserved in the University of Otago Hocken Library. The researcher will not refer to you by name during the interview.

On the Consent Form you will be given options regarding your anonymity. Please be aware that, should you wish, we will make every attempt to preserve your anonymity. The terms “North Island Coroner” or “South Island Coroner” will be used as pseudonyms if you choose to remain anonymous. However, with your consent, there are some cases where it may be preferable to attribute contributions made to individual participants. It is absolutely up to you which of these options you prefer.

The results of the project may be published and will be available in the University of Otago Library (Dunedin, New Zealand) but every attempt will be made to preserve your anonymity, if you have chosen to remain anonymous.

If you are interested, you will have the opportunity to provide feedback on the key themes elicited from the interview transcripts. In addition, all interested participants will be provided with summaries of the results and/or copies of the final report and invited to presentations about the research.

This project involves an open-questioning technique. The general line of questioning includes topics such as your formulation of recommendations, your opinion about the advantages and limitations of recommendations and your perspective on law reform options for recommendations. The precise nature of the questions which will be asked has not been determined in advance, but will depend on the way in which the interview develops. Consequently, although the University of Otago Human Ethics Committee is aware of the general areas to be explored in the interview, the Committee has not been able to review the precise questions to be used.

In the event that the line of questioning does develop in such a way that you feel hesitant or uncomfortable you are reminded of your right to decline to answer any particular question(s) and also that you may withdraw from the project at any stage without any disadvantage to yourself of any kind.

Yes. You may withdraw from participation in the project at any time and without any disadvantage to yourself of any kind. Your work and relationship with the Chief Coroner will not be adversely affected if you decide not to participate.

If you have any questions about our project, either now or in the future, please feel free to contact either:-

This study has been approved by the University of Otago Human Ethics Committee. If you have any concerns about the ethical conduct of the research you may contact the Committee through the Human Ethics Committee Administrator (ph 03 479 8256). Any issues you raise will be treated in confidence and investigated and you will be informed of the outcome.

This research will analyse Coroners’ recommendations. An important purpose of the Coroners Act is to enable Coroners to make recommendations that, if drawn to public attention, may reduce the chances of the occurrence of other deaths in similar circumstances. We will investigate the nature and rigour of Coroners’ recommendations, and their potential for public health impact. We are also interested in agencies’ decision-making about whether or not to implement Coroners’ recommendations.

One of the aims of this project is to inform Coroners’ practice in light of the research findings. It will provide information to inform the debate about whether law reform to Coroners’ recommendations is required. The study has the potential to benefit the coronial system and also public health by using the Coronial Services to maximise opportunities for prevention.

Should you agree to take part in this project, you will be asked to meet with the researcher for one interview, which will be about one hour to one hour and thirty minutes in duration. This interview will take place at a place and time that is convenient to you. If you prefer, you can choose a telephone, instead of a face-to-face, interview. The interview will be audio tape recorded with your permission. You will be asked about Coroners’ recommendations, particularly those directed at your [agency/organisation/Commission/Ministry].

If you are interested, you will have the opportunity to provide feedback on the key themes elicited from the interview transcripts. All interested participants will be provided with summaries of the results and/or copies of the final report and invited to presentations about the research.

What Data or Information will be Collected and What Use will be Made of it? The interview will be audio tape recorded with your permission. You will be asked about Coroners’ recommendations. After the interview, the interview tapes will be transcribed. The transcripts will be coded and analysed.

This research is funded by the NZ Law Foundation. There will not be commercial use of the data. The NZ Law Foundation, the researchers, research assistant and transcribers will have access to the data. The data collected will be securely stored in such a way that only these people will be able to gain access to it. Data obtained as a result of the research will be retained for at least 5 years in secure storage. Any personal information held on the participants, such as contact details, may be destroyed at the completion of the research, even though the data derived from the research will, in most cases, be kept for much longer, or possibly indefinitely. The audio tapes will be preserved in the Hocken Library, University of Otago, Dunedin. The researchers will not refer to you by name during the interview.

On the Consent Form you will be given options regarding your anonymity. Please be aware that should you wish we will make every attempt to preserve your anonymity. However, with your consent, there are some cases where it would be preferable to attribute contributions made to individual participants. It is absolutely up to you which of these options you prefer.

The results of the project may be published and will be available in the University of Otago library (Dunedin, New Zealand) but every attempt will be made to preserve your anonymity, if you have chosen to remain anonymous.

If you are interested, you will have the opportunity to provide feedback on the key themes elicited from the interview transcripts. In addition, if you are interested, you will be provided with copies of the final report and invited to presentations about the research.

This project involves an open-questioning technique. The general line of questioning includes topics such as your perspective on coronial recommendations, your decision- making about whether or not to implement recommendations, your opinion about how coronial recommendations can be enhanced, and law reform options for coronial recommendations. The precise nature of the questions which will be asked has not been determined in advance, but will depend on the way in which the interview develops. Consequently, although the University of Otago Human Ethics Committee is aware of the general areas to be explored in the interview, the Committee has not been able to review the precise questions to be used.

Yes. You may withdraw from participation in the project at any time and without any disadvantage to yourself of any kind.

If you have any questions about our project, either now or in the future, please feel free to contact either:-

University of Otago Research Ethics Committee Approval Reference Number 12/117

I have read the Information Sheet concerning this project and understand what it is about. All my questions have been answered to my satisfaction. I understand that I am free to request further information at any stage.

includes: the Coroner’s role and the purpose of the Coroners Act, my decision- making about recommendations, the implementation of recommendations and reform options. The precise nature of the questions which will be asked has not been determined in advance, but will depend on the way in which the interview develops. In the event that the line of questioning develops in such a way that I feel hesitant or uncomfortable I may decline to answer any particular question(s) and/or may withdraw from the project without any disadvantage of any kind;

............................................................................. (Participant’s name)

University of Otago Research Ethics Committee Approval Reference Number 12/117

............................................................................. (Participant’s name)

We are interested in hearing your comments about the recommendations that you make. We are also inviting agencies to which recommendations are directed, to discuss their decision- making about whether or not to implement recommendations. This project aims to assess potential reform options and to inform coronial practice in light of the research findings. The study has the potential to benefit the coronial system and also public health by using the Coronial Services to maximise opportunities for prevention. This research is a Faculty of Law, University of Otago project which is funded by the NZ Law Foundation.

Research interviews will last about one hour to one hour and thirty minutes. We understand that you are busy. The interview will be undertaken at a time and place that is convenient for you. If you choose to remain anonymous, every attempt will be made to preserve your anonymity.

Thank you for reading this letter. There is further information about the research attached to this letter if you are interested. This study has ethical approval from the University of Otago.

RECRUITMENT LETTER FOR SENIOR INDIVIDUALS FROM AGENCIES AND INTERESTED PARTIES

We are interested in hearing your comments about recommendations made by Coroners. We are also inviting Coroners to participate in the research. One of the aims of the project is to inform coronial practice in light of the research findings. This research is a Faculty of Law, University of Otago project which is funded by the NZ Law Foundation.

Research interviews will last about one hour to one hour and thirty minutes in duration. We understand that you are busy. The interview will be undertaken at a time and place that is convenient for you. If you choose to remain anonymous, every attempt will be made to preserve your anonymity.

Thank you for reading this letter. There is further information about the research attached to this letter if you are interested. This study has ethical approval from the University of Otago.

The questions in this interview schedule will act as a guide to promote discussion during the interview. An open-questioning technique will be used. The precise nature and number of questions will depend on the way in which the interview develops. You may prefer not to answer a particular question, or you may wish to add points that you think are relevant.

1.) When did you graduate? What tertiary qualification/s are relevant to your job? 2.) What is your professional history?

3.) What are your areas of professional interest and specialisation? 4.) How many years have you worked as a Coroner?

5.) What other experience or training have you received that assists you? 6.) What is your age group?

1.) How would you describe your role as a Coroner? What are your main functions as a Coroner?

3.) How does your role as Coroner contribute towards the achievement of the Act’s purpose?

4.) What role, if any, do you believe the Coroner should have in relation to public health, injury and death prevention?

1.) How would you describe and interpret ‘recommendations’ and ‘comments’? 2.) What, if any, is the difference between a ‘recommendation’ and ‘comment’? 3.) How would you describe the function of recommendations?

2.) How do you formulate and express recommendations? Could you please describe the process? Do you use criteria to formulate your recommendations?

3.) What sources do you rely on? Why? What information do you gather and why? How do you make these decisions?

4.) What evidence do you call to assist in making recommendations? Why? How do you make these decisions?

5.) How do you decide whether a death was preventable? What is an example and what did you do?

6.) Do you seek input about your proposed recommendations? If so, why and from whom?

3.) To what extent do you think Coroners’ recommendations are implemented? 4.) When they are implemented, do you know why?

6.) If you do receive responses to recommendations, what do you do? For example, do you assess the response, is it recorded in a formalised system?

7.) Do you think there is a connection between the form of the recommendation and its implementation? Why? Why not?

8.) How would you describe the relationship between recommendations and morbidity and mortality prevention? If possible, could you please give some examples?

9.) How would you describe the media’s coverage of Coroners’ recommendations?

1.) How would you describe the advantages and limitations of recommendations? 2.) What outcome/s do you hope to achieve in making recommendations?

3.) Are you aware of the debate about Coroners’ recommendations? What is your response to

4.) Are you aware of other jurisdictions’ approaches to coronial recommendations? What do you think about these approaches?

6.) How could the purpose under section 3(1)(b) of the Coroners Act be most successfully achieved?

7.) Do you believe the NZ coronial system fulfils its potential to prevent death and injury? Why/why not? What aspects, if any, could be improved to maximise future prevention outcomes?

1.) Do you have any other thoughts, concerns, or issues that you would like to raise? 2.) Is there anything that you would like to comment on about the interview?

The questions in this interview schedule will act as a guide to promote discussion during the interview. An open-questioning technique will be used. The precise nature and number of questions will depend on the way in which the interview develops. You may prefer not to answer a particular question or you may wish to add points that you think are relevant.

2.) What are your areas of professional interest and specialisation? 3.) What is your role in this agency?

2.) How would you describe the recommendation/s that your agency has received from Coroners?

4.) How would you describe the purpose/s and function/s of the recommendations? 5.) What is your understanding of Coroners and their role?

1.) How many recommendations has the agency received from Coroners? 2.) What was the nature of those recommendations?

3.) How would you describe the agency’s relationship with the Coronial Services of NZ?

1.) As a representative of this agency, how would you describe the media’s coverage of Coroners’ recommendations?

1.) To what extent do you think Coroners’ recommendations are implemented by this agency and in general?

4.) How would you describe your role and/or the agency’s role in the implementation of recommendations?

5.) If the agency did implement the Coroner’s recommendations, how did it do so? For example, have the agency’s attitudes or practices changed in response to coronial recommendations? If so, how and why? If not, why not?

6.) Did the agency liaise with the Coroner? If so, why and what information was the agency seeking?

7.) Do you think there is a connection between the form of the recommendation and its implementation? Why? Why not?

8.) How would you describe the relationship between recommendations and morbidity and mortality prevention? If possible, could you please give some examples?

2.) What outcome/s do you think Coroners hope to achieve in making recommendations?

3.) Are you aware of the debate about Coroners’ recommendations? What is your response to

4.) Are you aware of other jurisdictions’ approaches to coronial recommendations? What do you think about these approaches?

6.) Are you aware of the purpose under section 3(1)(b) of the Coroners Act? How could this purpose be most successfully achieved?

1.) Do you have any other thoughts, concerns, or issues that you would like to raise? 2.) Is there anything that you would like to comment on about the interview?

d.) How many years have you worked in the Coroner’s Court? Approx how many Coroner’s cases?

f.) Who are your clients in Coroner’s Court cases e.g. families, agencies/organisations, health professionals?

a.) How would you describe a Coroner’s role or function? If you are able to give examples of Coroner’s Court cases that you have experienced that would be helpful.

c.) How does, or should, the role of the Coroner contribute towards the achievement of the Act’s purpose?

a.) How would you describe and interpret ‘recommendations’ and ‘comments’? b.) What, if any, is the difference between a ‘recommendation’ and ‘comment’? c.) How would you describe the function of recommendations?

a.) What evidence and/or sources do Coroners call to assist them in making findings and recommendations? Why?

b.) What’s your view, as a barrister, about the Coroner’s Court process for making findings and recommendations?

d.) Do you have a view about how Coroners decide to whom recommendations should be directed?

b.) If relevant - What, if anything, do agencies say to you about recommendations? c.) To what extent do you think Coroners’ recommendations are implemented?

f.) How would you describe the media’s coverage of Coroners’ recommendations?

a.) How would you describe the advantages and limitations of recommendations? b.) What outcome/s do, or should, recommendations achieve?

c.) Are you aware of the debate about Coroners’ recommendations? What is your response to this debate?

d.) Are you aware of other jurisdictions’ approaches to coronial recommendations? What do you think about these approaches?

f.) How could the purpose under section 3(1)(b) of the Coroners Act be most successfully achieved?

a.) Do you have any other thoughts, concerns, or issues that you would like to raise? b.) Is there anything that you would like to comment on about the interview?

Dr Jennifer Moore Faculty of Law	or	Professor Mark Henaghan Faculty of Law
Telephone Number: 021 259 5661		University	Telephone	Number:
(03)4798856
Email Address: jennifer.moore@otago.ac.nz		Email		Address:
mark.henaghan@otago.ac.nz

Telephone Number: 021 259 5661	University	Telephone	Number:
(03)4798856 Email Address: jennifer.moore@otago.ac.nz	Email		Address:
mark.henaghan@otago.ac.nz

Demographic Gender	n	%
Female	4	26.7
Male	11	73.3
Total	15	100
Years of Experience 5-9 years	5	33.3
10-14 years	4	26.7
15+ years	6	40
Total	15	100

Recipients	n	%
Government	121	39%
Not for Profit and/or Non Government	67	22%
For Profit	44	14%
Individuals	5	2%
Untargeted	72	23%

Organisations	n	%
Government	121	52%
Not for Profit and/or Non Government	67	29%
For Profit	44	19%
	232

Year	N
2007*	5
2008	161
2009	386
2010	558
2011	368
2012*	166

New Zealand Law Foundation Research Reports

Moore, Jennifer; Henaghan, Mark --- "New Zealand Coroners' Recommendations 2007-2012" [2014] NZLFRRp 4