Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move amendment No. 2:

In page 7, between lines 36 and 37, to insert the following:

“Application of Act to stillbirths

3.The Principal Act is amended by the insertion of the following section after section 2:“2A.(1) This Act, other than sections 17, 18, 33A and 40, shall, where the context so requires, apply to a stillborn child in the same manner as it applies to a deceased person subject to the modification that the provisions in subsections (2) to (5) shall apply to a stillborn child instead of sections 17, 18 and 33A, and any other necessary modifications.

(2) Where a coroner is informed that the body of a stillborn child is lying within his or her district and that a medical certificate stating that the cause of death due to a natural cause or causes is not procurable, he or she may inquire into the circumstances of the death of the stillborn child and direct that a post-mortem examination of the body of the stillborn child be made under this Act and, if he or she is unable to ascertain the cause of death, may, if he or she so thinks proper, hold an inquest in relation to the death.

(3) A coroner may, for the purposes of performing his or her functions under subsection (2), have regard to any of the following circumstances in so far as they applied, or may have applied, to the mother of the stillborn child concerned and the likelihood that they may have caused or contributed to the death of the stillborn child:

(a) violence affecting the mother of the stillborn child at the time of the death, or immediately before the death, of the stillborn child;

(b) the mother of the stillborn child was in State custody or detention at the time of the death, or immediately before the death, of the stillborn child;

(c) the mother of the stillborn child was involved in an accident at work or was affected by an industrial or occupational injury or disease or industrial poisoning at the time of the death, or immediately before the death, of the stillborn child;

(d) the death of the mother occurred unexpectedly and from unknown causes or in an unexplained manner;

(e) the death of the mother was a maternal death or a late maternal death;

(f) the death of the mother occurred in circumstances which, under provisions in that behalf in any other enactment, require that an inquest in relation to her death should be held.

(4) When deciding under subsection (2) whether to hold an inquest in relation to the death of a stillborn child, a coroner shall—

(a) have regard to the matters referred to in subsection (5), and

(b) if it is practicable to do so, consult with a family member of the stillborn child.

(5) The matters to which a coroner shall have regard for the purposes of subsection (4) include the following:

(a) whether the death of the stillborn child concerned has been reported to the coroner in accordance with section 16A;

(b) whether, upon inquiry by the coroner into the death, sufficient information in respect of the death of the stillborn child concerned has been provided to the coroner;

(c) whether a post-mortem examination of the body of the stillborn child concerned has been made under this Act and the report of that examination;

(d) the views (if any) of a family member of the stillborn child concerned furnished to the coroner in writing as to whether the death was a natural one.”.”.

This is an important amendment which for the first time provides an express statutory power for a coroner to inquire into the death of a stillborn child. The Bill defines a stillborn child in section 2 as "a child of not less than 24 weeks’ gestation, or of birth weight of not less than 500 grammes, who is delivered without signs of life". This is the accepted medical definition in Ireland. It is also the definition used in the Civil Registration Act 2004, section 30 of which requires a stillbirth to be reported in the register of deaths as soon as is practicable. This is a mandatory reporting requirement applied to the doctor, the midwife and the head of the hospital concerned. The Civil Registration Act 2004 also provides in section 28 for the optional reporting of the stillbirth by the family and the issue of a special stillbirth certificate, if they so request. The Coroners (Amendment) Bill 2018 now also requires mandatory reporting of stillbirths to a coroner. Point 18 in the new schedule of reportable deaths specifies that any stillbirth must be reported to the coroner. Section 6 of the Bill inserts a new section 16B(4) into the principal Act and provides for mandatory reporting of a stillbirth by the doctor, nurse or midwife who is responsible for the care of the mother. The Coroner Service website lists certain stillbirths as reportable to the coroner as a matter of good practice and stillbirths are regularly reported to coroners by the doctors involved. Coroners indicate that the large majority of stillbirths reported to them are natural and expected spontaneous stillbirths and are certified as such to the coroner's satisfaction by the mother's doctor.

In a very small number of cases there are circumstances surrounding the stillbirth such as concerns about possible medical errors, for example, which give rise to concern. Coroners are very conscious of the sensitivity of such cases in practice and further inquiry is rare. It is typically where the bereaved parents request it. However, the mandatory reporting requirement introduced in the Bill will address the public concerns I have mentioned and support independent oversight and transparent investigation in the small number of cases where concerns arise.

The amendment I have brought forward complements the reporting requirements in the Bill by providing a discretionary power for a coroner to inquire into a stillbirth and, if the cause of death remains unclear, to direct a post mortem examination and, as appropriate, the holding of an inquest. There are two special features. While reporting a stillbirth to the coroner is mandatory, the coroner's inquiry and any post mortem and inquest into a stillbirth will be at the discretion of the coroner, subject to the criteria set out in the new section 2A, sections 17, 33A and 40 of the Bill which provide, respectively, for a mandatory inquest in certain cases, a mandatory post mortem in certain cases and mandatory juries in some cases, which are expressly disapplied to stillbirths. In exercising his or her discretion the coroner must consult a family member of the stillborn child if it is practical to do so. He or she must have regard to their views in deciding whether to hold an inquest. The provisions recognise the particular sensitivity of these cases and the very diverse circumstances that can arise.

The amendment is also a response to the advice from the Office of the Attorney General that a coroner's powers to inquire into a stillbirth should be clarified. This arises because the Coroners Act 1962 refers to a coroner inquiry into the death of a person. This phrase is interpreted in Ireland and similar coronial legislation in England and Wales as referring to a person who was born alive, took independent breath and subsequently died but excluding a stillborn child who never drew what can be described as independent breath. In practice, however, media reports indicate a small number of cases in recent years in which coroners have held a full inquest into a stillbirth, typically at the request of bereaved parents.

The question of extending the coroner's jurisdiction to stillbirths is also being examined across the water in England and Wales, as well as in Australia, but remains in early stages in both jurisdictions. The proposal was welcomed in the UK by the Royal College of Pathologists and by UK organisations that advocate for patient safety and transparency in the context of stillbirths and neonatal deaths.

Conversely, coroners in Northern Ireland can inquire into a stillbirth since a judgment of the Northern Ireland Court of Appeal in 2013 held that the coroners have jurisdiction under a Northern Ireland statute of 1959 to hold an inquest into the death in uteroof a child who was capable of being born alive. The fact that this is a new question for other common law jurisdictions makes it prudent for us to adopt a discretionary approach, at least initially.

The proposed subsection (3) sets out circumstances which may be taken into account by the coroner inquiring into a stillbirth where the cause of death remains unknown. Any of these circumstances, if applicable to the death of the mother, would give rise to a mandatory post mortem and inquest under sections 17 and 33A of the principal Act inserted by the Bill. As sections 17 and 33A are disapplied to stillbirths, these relevant circumstances are set out in section 2A(3) simply to clarify that a coroner can still take them into account when exercising his or her discretionary powers.