Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move amendment No. 9:

9. In page 17, line 26, to delete “section 33D” and substitute “section 33E”.

I too acknowledge the presence in the Gallery of people who have campaigned on this important issue. I acknowledge what Deputy Clare Daly has said. I did not envisage circumstances where the Government would not comply with the wishes of the committee. I was keen to ensure that this would be the case. The best legacy for all those concerned would be to see an early enactment and early implementation of the terms and conditions of the Bill, which is my objective.

I propose to discuss amendments Nos. 9 and 11 to 13, inclusive, together. These amendments all refer to the new power introduced in section 17 of the Bill on Committee Stage for a coroner to direct a hospital or other health institution, or a medical practitioner, to produce relevant medical records of a deceased person in time for the records to inform the post mortemexamination. I indicated on Committee Stage that I intended to bring forward on Report Stage additional provisions to ensure effective enforcement of that new power, and I am now doing so.

The substantive amendment in this grouping is amendment No. 12, which effectively introduces the new enforcement provisions. The other grouped amendments are technical. The power to direct production of records is currently contained in new section 33B of the principal Act, which also deals with other arrangements for the post mortem examination. I propose that the subsections dealing with the coroner’s direction to produce records should now be deleted in subsection 33B and should be re-inserted, along with the new enforcement provisions, as an independent new section 33D. The current section 33D will accordingly be renumbered as new section 33E.

Amendment No. 9 is a technical amendment. It amends an existing reference to current section 33D, to take account of that section’s proposed renumbering as section 33E.

Amendment No. 11 is a further technical amendment. It deletes subsections (4) to (6), inclusive, in proposed new section 33B of the principal Act. These are the provisions containing the new power for a coroner to direct production of medical records. I am proposing, in amendment No. 12, to reinstate those provisions as new section 33D, with the addition of further provisions to enhance their effectiveness and enforcement.

Amendment No. 12 deals with deals with the production of relevant medical records of a deceased person for the purposes of a post mortem examination, and the enforcement of such a direction. Section 17 already provides, in the proposed new section 33B of the principal Act, that where a coroner has directed a post mortem examination into a death, he or she may also direct the head of the hospital where the deceased person was treated immediately before the death, or a doctor who has medical records of the deceased, to provide the pathologist conducting the post mortem examination with such records as the coroner considers necessary to enable a proper examination to be made.

This amendment is necessary to enable the coroner to carry out his or her statutory functions effectively, and to ensure the fullest possible transparency in relation to the investigation of unnatural deaths or where the cause of death is unclear. It is expected that such records would be provided voluntarily on request by hospitals or other health institutions. That is normally the position. In certain cases, however, coroners have experienced considerable difficulties and delays in obtaining the relevant records. It is particularly critical that the relevant medical records of the deceased be provided promptly. Often the window for conducting the most effective post mortem examination is short, as we have already discussed.

The proposed new section 33D includes the existing provisions for a coroner to direct production of records, formerly contained in section 33B, and adds a number of new elements to support effective operation and enforcement of the power. I will outline the main additions. A direction may now be issued to a nurse, midwife or paramedic or advanced paramedic who has possession or control of medical records relating to the deceased person, as well as to a medical practitioner or health institution. Normally, a nurse, midwife or paramedic will be employed by the health institution and in such case the direction will be issued to the institution. The additions are made for comprehensiveness, to ensure that a situation such as a home birth, a private nurse or alternative medical practitioner may also be covered. Paramedics may in some cases also hold records of relevance, for example, on fluids administered to a seriously ill patient in transit.

Subsection (2) places an obligation on the recipient of a coroner's direction to comply with it forthwith. Following legal advice from the Office of the Attorney General, under subsection (3) a recipient of a direction may refuse to comply only in the most limited circumstances, including where he or she would be entitled to do so as a witness at an inquest under section 38(3) of the Coroners Act 1962. This provision states that a witness at an inquest shall be entitled to the same immunities and privileges as would apply if he or she were a witness before the High Court. Subsection (6) provides that if a recipient refuses or fails to comply with the direction other than in the limited circumstances mentioned the coroner may apply to the High Court, which can order the recipient to comply, to make such order as the court may consider necessary for effectiveness. Should a recipient fail to comply with an order of the High Court, the High Court's contempt jurisdiction then would be available to support enforcement. The High Court can also make an order for the recipient to pay the coroner's costs of the application if it considers that to be just in the circumstances. In addition, subsection (10) provides for the rules of the court to facilitate expeditious hearing of coroners' applications. Subsection (7) sets out the criteria to guide the court's consideration of the coroner's application, which refers essentially to the public interest in relevant medical records of the deceased. I am satisfied that these provisions will provide a quick and effective avenue for a coroner to enforce a direction in circumstances that might be appropriate depending on the individual case. The High Court's contempt jurisdiction and the power to award costs should provide an effective deterrent against any undue delay or refusal to comply with a direction or a delay that might in the circumstances be unfounded.

Amendment No. 13 is a technical amendment. As explained earlier, it provides that as the new section on the production of medical records is now to be numbered section 33D the current section 33D of the principal Act, which deals with the report of the post mortem examination, is to be renumbered 33E.

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