Wednesday, 15 May 2019
Coroners (Amendment) Bill 2018: Report and Final Stages
I move amendment No. 1:
In page 5, between lines 24 and 25, to insert the following:" 'designated officer of the Ombudsman Commission' means—(a) an officer of the Ombudsman Commission, orwho is designated by the Ombudsman Commission under section 73 of that Act for the purpose of performing functions under Part 4 of that Act relating to a relevant Ombudsman Commission investigation;".
(b) a person engaged by the Ombudsman Commission under section 74 of the Garda Síochána Act 2005,
I thank the Deputies present for their engagement on Committee Stage. They will recall that a number of amendments were flagged on Committee Stage, all of which relate to the proposed role for the Garda Síochána Ombudsman Commission to interact with, or assist, a coroner in place of An Garda Síochána in respect of any death which is the subject of a GSOC investigation under Part 4 of the Garda Síochána Act 2005.
The general position is that in any death that is the subject of a criminal investigation, there is interaction between the Garda Síochána and the coroner. The Garda will inform the coroner if it is launching a criminal investigation and the coroner will defer the inquest until after the completion of the Garda investigation. The Garda will meanwhile keep the coroner informed on the progress of its investigation. Second and more generally, the Garda assists the coroner in such matters as attending with a family member for identification of the body, or serving a witness summons for an inquest. Such assistance may be provided whether or not there is a criminal investigation into the death. A number of provisions in the Coroners Act 1962 expressly provide for Garda assistance of this sort to the coroner.
GSOC opens an investigation into the death of a person under Part 4 of the 2005 Act in the small number of cases where there is a possible Garda connection with the death. This may arise, for example, where a person dies in a road traffic accident following Garda pursuit, where a Garda firearm is discharged, or where a person takes their own life while in Garda custody. In these cases, GSOC rather than An Garda Síochána becomes the lead statutory agency investigating the death and interacts with the coroner in the manner already explained for the Garda. More broadly, given that GSOC is investigating possible Garda implication in the death, it appears more appropriate for a GSOC officer, rather than the Garda, to provide assistance to the coroner in such cases. This is no reflection on the independence or integrity of An Garda Síochána, but I suggest to Members that it is clearly desirable for all concerned that the assistance provided to the coroner in such cases should be demonstrably at arm’s length from the matters being subject to a GSOC investigation.
It is already the practice that interaction with the coroner’s investigation and assistance to the coroner is undertaken by GSOC in a case where it is investigating. Coroners are satisfied with these arrangements and GSOC is satisfied to continue this practice. The intention of this group of amendments, as requested by the chair of GSOC, is to provide an express statutory footing for this to be done.
Amendment No. 1 defines the GSOC designated officer who will interact with or assist the coroner in place of a member of An Garda Síochána. This definition is consistent with the definition used in Part 4 of the Garda Síochána Act 2005, which provides for investigation by GSOC into a complaint received by it, a matter referred to it by the Garda Commissioner, or a matter identified by GSOC itself.
Amendment No. 2 defines GSOC as "the Ombudsman Commission" in the definitions section of this Bill. That term is used here for consistency with the Garda Síochána Act 2005.
Amendment No. 3 defines the term "relevant Ombudsman Commission investigation" as used in this Bill. The effect of this definition is that a GSOC designated officer will replace a member of An Garda Síochána for the purposes of interaction with and assistance to the coroner in any case where GSOC is investigating or has already investigated the death of the person whose death is now the subject of the coroner’s inquiry, but only in these cases.
On amendment No. 6, I refer to section 20 of the Coroners Act 1962, it being the principal Act. This addresses a situation where neither the coroner nor the deputy coroner for a district can proceed to hold the inquest into a death due to a vacancy or the coroner being ill, absent, incapacitated or disqualified. Section 20 provides that in such a situation, a member of An Garda Síochána not below the rank of inspector may request the coroner for an adjoining district to hold the inquest. The amendment makes the following changes: first, it provides that where there is a relevant GSOC investigation, it is a GSOC designated officer rather than a Garda who makes the request for a coroner to be appointed; second, it provides that the Garda inspector or GSOC designated officer requests the Minister to appoint another coroner, who does not have to be from an adjoining district; and third, there are two minor changes to adapt the wording of the section to the particular case of the coroner’s district of Dublin, which in administrative terms now falls under the Minister’s responsibility rather than the local authority which used to be the case.
Amendment No. 7 refers to section 13 of the Bill, amending section 27 of the principal Act, which deals with identification of the body of the deceased person. Section 27 provides for a garda to assist the coroner by attending with a family member of the deceased or other suitably qualified person to view the body and receive evidence of identification which can be given at the inquest. The amendment provides for a GSOC designated officer to so attend and give evidence in place of the garda if the death is one which is the subject of a GSOC investigation.
Amendment No. 10 refers to section 17 of the Bill, where it substitutes into the principal Act a new section 33A, restating that where a death has been reported to the coroner, the coroner must direct a post mortem examination to be made if a member of An Garda Síochána not below the rank of inspector requests the coroner to do so and provides reasons. The new section 33A already provides that such requests may be made by a designated GSOC officer in any death being investigated by GSOC. The amendment adjusts that wording for consistency with the new definitions I have just proposed in section 2.
Amendment No. 14 refers to section 17 of the Bill, where it inserts into the principal Act a new section 33D, providing that when the report of the post mortem examination is sent to the coroner, the coroner shall provide a copy to any statutory investigating body which earlier requested the post mortem examination. Section 33D already provides for the report to be provided to GSOC rather than to An Garda Síochána where GSOC is the requesting body. Again, this amendment merely adjusts that wording for consistency with the new definitions I have proposed in section 2.
Amendment No. 15 refers to section 18 of the Bill, amending section 36 of the principal Act, which provides for a garda to assist the coroner by serving a witness summons or jury summons to attend at an inquest. The amendment provides for a GSOC designated officer to serve the witness summons in place of the garda if the death is one which is the subject matter of a GSOC investigation. I trust that Members are in agreement with me that these amendments are merely for consistency.
Amendment No. 16 provides for a GSOC designated officer to assist the coroner by empanelling a jury for an inquest in place of a garda if the death is one which is the subject of a GSOC investigation.
Amendment No. 17 refers to section 23 of the Bill, amending section 47 of the principal Act, which empowers a garda not below the rank of inspector to apply to the coroner to seek an order for An Garda Síochána to exhume a body if the Garda is of opinion that the death may have occurred in a violent or unnatural manner. We are replacing that with GSOC in appropriate circumstances.
Similarly, amendment No. 18 does so for section 23 of the Bill.
Amendment No. 19 again refers to section 23 of the Bill, providing that it will be an offence for any person to obstruct an accompanying GSOC officer who is acting under the authority of such a warrant in the same way as it referred to An Garda Síochána.
Similarly, amendment No. 20 introduces a new section into the Bill and is being made for the avoidance of doubt.
All of these amendments concern giving GSOC officers the same power as gardaí when they are acting as coroner's officers. As the Minister has explained, the amendments are for circumstances where it is more appropriate for a GSOC officer to act as an aid to a coroner, for example, where gardaí might be suspected of involvement in a death. I am happy to support all of the amendments and they seem fairly straightforward but I want to make some general points about the Bill, how we got here and how long it has taken us to get here because there are important lessons to be learned from this.
My involvement in the issue of maternal deaths began eight years ago, which is as long as the length of time I have been here. In May 2011, the Association for Improvements in the Maternity Services, AIMS, Ireland contacted me to ask for help in raising parliamentary questions about why there had not been a full inquiry into the tragic death of Bimbo Onanuga in the Rotunda Hospital in March 2010. From those first parliamentary questions I stayed in touch with AIMS Ireland and with a dedicated group of activists on this issue, most notably Jo Murphy-Lawless, and I did what I could to support it in the fight to gain an inquest. It took nearly eight months to get that. It took a further eight months for the case to be heard over four devastating days of evidence which were heartbreaking and shocking but even more shocking was the fact that before Bimbo's inquest took place in autumn 2012, six other women lost their lives in our maternity services and inquests were held for only two of them.
In autumn 2014, there were three further inquests, all of whose verdicts were of medical misadventure. It was clear the issue had to be stepped up and that we had to do everything to prevent such tragedies from happening again. In July 2012, I introduced a Bill to provide for mandatory inquests into cases of maternal deaths, which the Government did not oppose. It was debated in the House but the small matter of a general election was in the way. We got it out of the way and one of the first tasks of the new Joint Committee on Justice and Equality was to draft the Bill. I salute the efforts of my colleagues on the justice committee, of all parties and none, who, together with me, the Ceann Comhairle and the Business Committee, have moved might and main to keep the issue on the Government's list of priorities.
In November 2016, officials from the Department of Justice and Equality appeared before the justice committee and agreed with us that reform of the coroner service was needed. The committee gave them six months - a long time - to revert with amendments to my Bill that they considered necessary to get the job done. The committee pressed the officials and told them that was as long as they would have. The committee meeting was scheduled for 9 a.m. on 10 May 2017 but at 5.30 p.m. on 9 May, the last minute before we were to go home, the then Minister, Deputy Fitzgerald, contacted the justice committee secretariat to say the Government would not give the Bill a money message. Sean Rowlette and other partners of deceased women who had made arrangements to attend the committee meeting the following morning were devastated that at the 11th hour, the Department had spiked the Bill. Everyone was devastated. I met the then Minister the next day, almost exactly two years ago, and was told the Government would bring forward its own Bill. In fairness to the then Minister, she agreed how important the issue was and indicated that it would be rushed through. We spent the next couple of months liaising with the Department to get the Bill passed by summer 2017. Given that the then Minister and the current Minister, Deputy Flanagan, had this as a priority, which I believe it was for them, and given that the justice committee, the Ceann Comhairle and the Business Committee, and county councils throughout the country are pushing it, we must ask ourselves how in God's name a 28-page Bill would take that level of effort to get this far.
We must learn lessons from that situation. It suggests that the State's apparatus contains many rusty cogs, some of which turn very slowly. It is a source of great regret to me that even after what I have outlined, we are not fully there yet. A number of the amendments the Minister flagged on Committee Stage for Report Stage are not yet ready but we have been told we will have to wait for them to be tabled in the Seanad. On behalf of all Deputies and some of the dedicated staff who have worked on the Bill, I suggest that the drafting delays in the Bill have been the source of the most unspeakable frustration for the House. I emphasise to the Minister that we cannot let the summer recess arrive without the Bill being enacted. It will not be tolerated. Since Committee Stage, another woman, sadly, has died in our maternity services, although there may have been more. It is devastating. We cannot afford to have any more delays.
The first grouping contains 13 amendments, all of which I will support because they are sensible. Their purpose is to recognise the role of GSOC in investigations it conducts. It is important there is specific recognition within the coroner legislation to recognise the role played by GSOC. Some of the amendments are significant in their power, such as amendment No. 17, which seeks to amend section 47 of the principal Act. It will give a significant power to the coroner to request the Minister to seek an exhumation of a body if the coroner believes that the death was caused in unusual circumstances. All the amendments in the grouping are sensible and I will support them.
For efficiency, I will address the general issue with the Bill and the delay in the system, as raised by Deputy Clare Daly. I welcome the progress we have made. It is important the legislation is enacted as soon as possible. I am concerned that further amendments will be tabled in the Seanad but, like Deputy Clare Daly, I hope that will not unduly delay the enactment of the legislation. The legislation is very important because, unfortunately, a significant number of maternal deaths have occurred in Ireland. The families of the women who died are fully entitled to have a proper inquest and inquiry into the circumstances of the women's death. It is a gaping absence in the legislative system that we must ensure is filled. I commend Deputy Clare Daly on pushing the legislation. I am a member of the justice and equality committee with her and I know how diligent she has been in seeking to promote, advance and accelerate the legislation.
It is unquestionably the case that Opposition Deputies, such as Deputy Clare Daly and me, become frustrated as a result of delays in important legislation. The Minister will be aware that, like Deputy Clare Daly's important legislation, the Parole Bill 2016 is also important. I introduced it to the House and it was passed on Second Stage. I welcome that the Government agreed to adopt the Parole Bill and to seek to work on it but we are still waiting for Report Stage amendments to be tabled in respect of it. I urge the Minister to try to ensure that those Report Stage amendments are brought before the House during the current session. I do not say that because I am proprietorial about the Bill or because I want to have a Bill that I drafted enacted. Rather, it is because the Parole Bill will have a significant impact on people's lives. We are aware that when people currently apply for parole, there is a limited role for the victims of crime and their families. The Parole Bill seeks to provide that statutory recognition. I am conscious the Department of Justice and Equality is busy, given that the justice and equality committee deals with a great deal of legislation. I attended a meeting of the committee earlier with the Minister and we passed two other important items of legislation on Committee Stage. Legislation is ultimately a matter of priority and I ask the Minister to recognise that some legislation must be prioritised. We need to ensure that the Bill before us is enacted before the end of the current session. It is cruel and unfair for the people and for the families of women who have died in childbirth to proceed in circumstances where there is no statutory obligation to hold an inquest in respect of their deaths. The Parole Bill, too, is important and the Minister should seek to expedite it as a priority. It would reflect positively on the Government, as would enactment of the legislation before us. Most importantly, however, both items of legislation are necessary and appropriate for the people.
On Committee Stage, I tabled an amendment to increase the retirement age of coroners from 70 to 72, although it was ruled out of order on the basis it was a charge on the Exchequer. A similar amendment has not been tabled by the Minister and I express my disappointment about that. Many useful people are forced to retire when they reach 70 years of age but we need to recognise that people still have ability and capacity beyond that age. The Minister might also take that into account in the case of judges. It is not so long ago that judges had a retirement age of 72 in the superior courts but it was reduced to 70. People are sharp when they are in their 70s, although I accept that nobody present in the House is in his or her 70s yet. We should not consign people in their 70s to a retirement home at a time when one could say they are in the prime of their professional lives.
I acknowledge the support of the Deputies and the constructive manner in which they have approached the Bill, and in doing so, I acknowledge the leadership of Deputy Clare Daly. I, too, would like to have the legislation enacted and I will be reliant on the co-operation of the House in that regard.
I note in particular that Deputy Clare Daly has given notice of her intention to leave the House. I would be keen that we have the legislation enacted as she is departing. I have already acknowledged that it has taken considerably longer than any of us, including me, would have wished. There are very complex issues. I am not in the business of making excuses. I am pleased we are here now to deal with a number of amendments. I will seek to finalise the remaining Government amendments swiftly as we proceed through the Seanad.
I have to acknowledge this is one of between 115 and 120 Bills on my desk at present, all of which are active. That is a sizeable number. We had the omnibus Brexit Bill, which required a very careful level of calibration on the part of officials in the Department. I have Private Members' Bills, programme for Government Bills and priority legislation. Deputy O'Callaghan should note that I am very keen to report progress on the Parole Bill 2017, the amendments to which are at an advanced stage of drafting. I acknowledge the co-operation of the Dáil committee this morning, in particular Deputies Ó Laoghaire, Daly and O'Callaghan. We progressed two Bills through Committee Stage, on which the House heard the messages earlier. All of the legislation is important. While it is often difficult to prioritise, I am very anxious to work with Deputies on this Bill. I hope we can see our way towards having the Bill enacted in its entirety by the end of July.
I move amendment No. 3:
In page 7, between lines 14 and 15, to insert the following:" 'relevant Ombudsman Commission investigation' means an investigation of a complaint or matter by the Ombudsman Commission under Part 4 of the Garda Síochána Act 2005 concerning the death of the person in relation to whose death a coroner is performing functions under this Act;".
I move amendment No. 4:
In page 13, line 25, to delete "subsections" and substitute "subsection".
These two amendments take us to section 8 of the Bill, which amends section 17 of the principal Act that requires the coroner to hold a mandatory inquest in certain categories of deaths. Section 8 introduces an express requirement for mandatory inquest in all cases of maternal death or late maternal death. It also provides for an exception where the coroner is satisfied, taking account of specified criteria, that the death is a natural death. The section, as originally put forward by the Government, placed this exception at the discretion of the coroner following consultation with a family member of the deceased. Deputy Clare Daly tabled an amendment on Committee Stage to change the terms on which the exception would take effect and that amendment was approved by the committee. I am conscious of the support commanded by the amendment, representing as it does the views of the House. Nevertheless, I recall the debate we had on Committee Stage when the wording gave rise to a legal difficulty of some import. I am now in a position to propose amendments Nos. 4 and 5, which I believe represent a solution on this important point for the legal difficulties that were not apparent in the course of the debate but were mentioned as being potentially difficult. I hope this is acceptable to Deputy Daly. My office was in contact with her and I thank her for her engagement.
Amendment No. 4 is a technical amendment that refers to the change made in amendment No. 5. The effect of amendment No. 5 is to remove the discretionary exception to mandatory inquest in cases of maternal death or late maternal death. The position will now be, as was originally proposed by Deputy Daly, a simple requirement of mandatory inquest in all cases, without exception. This is already the case under section 8 regarding any death that occurs while a person is in State custody or detention. My preference would have been to allow for an exception, as put forward by the Government, where the coroner is satisfied, having consulted the family, that the death is a natural one and that an inquest may not required. However, I acknowledge what was said on Committee Stage and honour the view of the House, which I respect. I hope Deputy Daly will be satisfied to accept the amendment, which has been shown to be acceptable to coroners.
These two amendments are at the heart of the issue. This is where we diverged from the Government on Committee Stage. Of course, I am absolutely delighted there has been a change of heart on that side and that the Government now agrees with us that inquests must be 100% mandatory with no discretionary loopholes through which cases might disastrously slip. I am also delighted that the coroners are very much on board with the process and doing away with the discretionary element. I sincerely thank them for their patience, help and wisdom throughout the long process of getting the Bill to where it is today. That is important.
I remind everyone why we are here. I discussed it briefly when speaking on the previous group of amendments. We have been joined by some of the stalwart campaigners in the Gallery. The campaign started with the tragic death of Bimbo Onanuga and the titanic struggle her family had to go through to get an inquest into her death. Her family was not the only one. Between 2008 and 2014, inquests were held for eight women who died in maternity services, all of which ended in verdicts of death by medical misadventure. In other words, all of the deaths were avoidable. Families had to fight tooth and nail for every one of those inquests, adding trauma to the tragedy they had already experienced. We are here, and I am very glad we are, to make sure it never happens again.
We are also here to honour the memories of all of the women who died in pregnancy or childbirth in this country over a long period. I am getting very emotional; I am obviously too tired. We are here to reiterate our commitment to the families of those who have lost their wives, partners, daughters, sisters and mothers to avoidable mistakes in our maternity units and to say to them that we will do everything in our power to put in place systems to ensure it never happens again. This is an incredible achievement by those in the Gallery.
We are also here to put on record the names of some of those women for whom inquests were hard fought and which found they died as a result of medical misadventure. This has happened over the past ten years and is, therefore, is very recent. Their inquests have brought the issue of maternal deaths into the public domain and given it the public attention it deserves. They are Tania McCabe, Evelyn Flanagan, Jennifer Crean, Bimbo Onanuga, Dhara Kivlehan, Nora Hyland, Savita Halappanavar, Sally Rowlette and Malak Thawley. I will also name their husbands and partners, some of whom are here today. They are Sean Rowlette, Michael Kivlehan, Abiola Adesina, Aidan McCabe, Stephen Hyland, Francis Crean, Padraic Flanagan, Praveen Halappanavar and Alan Thawley. Sally Rowlette's children, Leanne, Joseph, Abbey and Sally, are also with us today in the Gallery. Leanne Rowlette is a great singer. Members should look her up on the Internet.
We are here for women like Antoinette Pepper who died 30 years ago in St. Vincent's hospital and whose family has been repeatedly denied an inquest.
We are here for Helen Moynihan, who died in the National Maternity Hospital in 1981. We are here for all the women whose names we do not know and for whom no inquest was ever held. We are here to make sure, happily, that it never happens again, and to take steps to ensure that no family has to go through the agony these families have had to go through. We are here to throw down the gauntlet to the HSE that we are not going to accept another family being put through this trauma or being stonewalled by a litigation obsessed health service. We need and want a health system that works for women and their families; a health system that does not compound the families' suffering by denying, defending and covering up in the face of the most devastating tragedy. This is why we need mandatory open disclosure and mandatory inquests. There is something really wrong with our health service when more is paid in damages and legal fees than on our maternity services. I am aware that some of those in authority like to talk about Ireland having a litigious culture but it is a fact that without the transparency that comes from full and mandatory open disclosure and full inquests the only way people have to get the truth and information is to go through a legal system. It should not be like that. We need transparency, we need inquests and we need recognition of the wrong. We also need lessons to be learned.
We have a responsibility to the women, to the families of the women and to the campaigners. I want to pay tribute to those campaigners, to the activists in the Elephant Collective, many of whom are in the Public Gallery today, to the 24 county councils in the State that passed motions calling for mandatory inquests into maternal death, and to all those who sent letters to the Minister and who emailed and called to keep the pressure on to get the Bill to this point. I pay particular tribute to the families. Their struggle has been extraordinary. The families are ordinary people who have lived through extraordinary tragedy. The families' dignity, persistence, dedication and strength is absolutely humbling. I am totally in awe of the families and so very glad that we are here today.
It is difficult to follow that contribution, and I have little enough to add. I support the point that has been made very eloquently and passionately by Deputy Clare Daly that there is a clear need for mandatory inquests into maternal deaths. In the past some people have tried to paint Ireland as a country with no problems around maternity and health, but clearly the experiences of many women and their families reflect the many circumstances in which women and their families have been badly let down where lives have been lost. I support this sentiment.
I missed the opportunity at the start of the debate so now I pay tribute to Deputy Clare Daly. She has been persistent on this legislation. Since I have been on the Joint Oireachtas Committee on Justice and Equality the issue has come up every couple of weeks where members have sought an update on the legislation. I am glad the Minister is now progressing it and there is communication back and forth. Deputy Clare Daly deserves a great deal of credit for pursuing this very valuable legislation. I also acknowledge the campaigners for this legislation and the families who are with us today. I pay tribute to the memory of the women who were named in the Chamber today and to their families. It is valuable legislation and I hope it can be enacted as soon as possible.
I move amendment No. 6:
In page 15, between lines 23 and 24, to insert the following:“Amendment of section 20 of Principal Act
12. Section 20 of the Principal Act is amended—(a) in subsection (1), by the substitution of “any member of the Garda Síochána not below the rank of inspector, or a designated officer of the Ombudsman Commission where there is a relevant Ombudsman Commission investigation concerning the death of the person in relation to whose death an inquest is to be held, may request the Minister to direct any other coroner to hold the inquest and the Minister may, if he or she so thinks proper, so direct another coroner” for “any member of the Garda Síochána not below the rank of inspector may request the coroner for an adjoining district to hold the inquest”, and
(b) in subsection (2), by—(i) the insertion of “, or the Minister if that coroner is a coroner for the coroner’s district of Dublin,” after “the local authority liable to pay the salary of the coroner who would ordinarily hold the inquest”, and
(ii) the substitution of “such sum to cover his or her travelling and other expenses as shall be agreed upon between him or her and the local authority, or the Minister, in the case of a coroner for the coroner’s district of Dublin” for “such sum to cover his travelling and other expenses as shall be agreed upon between him and the local authority or, in default of agreement, as shall be fixed by the Minister”.”.
I move amendment No. 7:
7. In page 16, line 7, after “Síochána,” to insert the following:“a designated officer of the Ombudsman Commission where there is a relevant Ombudsman Commission investigation concerning the death of that person, ”.
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.
I also acknowledge the presence in the Visitors Gallery of the families of women who died as a result of maternal deaths. Deputy Clare Daly is correct in stating that when people with such a legitimate cause canvass and encourage their Legislature to change the law that has a powerful impact, as can be seen in respect of this legislation.
I support the amendments proposed by the Minister. Amendment No. 12 is a significant amendment in that it makes provision for the High Court on the application of a coroner to make a determination in respect of documents. The power given to the coroner is such that the coroner can direct any medical institution or doctor to produce medical records relating to the deceased. That is an important power that will assist coroners in determining the cause of death, and a power they should have. There may be circumstances in which people wish to resist the production of those documents and provision is made within the section to allow the coroner to apply to the High Court for directions in circumstances where an individual has brought to his or her attention an objection. It gives the coroner an opportunity to apply for directions. It is important that included within the new statutory framework is a recognition that the High Court in determining that application should take into account the public interest. I welcome that this is provided for in the legislation.
I have no difficulty with these amendments and I will support them. An amendment in my name was ruled out of order. I accept the Ceann Comhairle's ruling but I want to put the Minister on notice that an amendment dealing with the potential of entering a verdict of iatrogenic suicide will be introduced in the Seanad. I ask the Minister to bear in that the issue will be debated in the Seanad.
I move amendment No. 12:
In page 19, after line 43, to insert the following:
“Medical records of deceased person for purposes of post-mortem examination
33D. (1) Where, under section 33, 33A or 33C, a coroner directs that a postmortem examination of the body of a deceased person be made, the coroner may direct—(a) a person in charge of a hospital, or other health institution, in which the deceased person received treatment immediately before his or her death,
(b) a medical practitioner, nurse or midwife who has possession or control of medical records relating to the deceased, or
(c) a paramedic or advanced paramedic registered with the Pre-Hospital Emergency Care Council under the Pre-Hospital Emergency Care Council (Establishment) Order 2000 (S.I. No. 109 of 2000) who has possession or control of medical records relating to the deceased,to give to the registered medical practitioner making the examination, within such period as may be specified in the direction, such medical records relating to the deceased person as are, in the opinion of the coroner, necessary to enable a proper examination of the body to be made.
(2) Subject to subsection (3), a person to whom a direction is given by a coroner under subsection (1) shall comply with the direction forthwith.
(3) A person to whom a direction is given by a coroner under subsection (1) may refuse to comply with the direction in relation to a medical record only if he or she would be entitled, by virtue of section 38(3), as a witness at an inquest to refuse to comply with a direction of the coroner to produce the record at the inquest.
(4) A direction given by a coroner under subsection (1) shall be given in writing or, if given orally, it shall be confirmed in writing as soon as practicable.
(5) The validity of a direction given by a coroner under subsection (1) shall not be limited to the coroner’s district in respect of which he or she holds the office of coroner.
(6) Where a person to whom a direction is given by a coroner under subsection (1) fails or refuses to comply with the direction, other than in circumstances to which subsection (3) applies, the High Court may, on application to it in that behalf by the coroner—(a) order the person to comply with the direction immediately or within such period as the Court may determine and specify in the order, and
(b) make such other order, if any, as it considers necessary to enable the order made under paragraph (a) to have effect and such order as to costs, if any, as it considers just.(7) An application under subsection (6) may, if the High Court so directs, be heard otherwise than in public.
(8) In determining an application under subsection (6), the High Court shall have regard to—(a) the public interest in the medical record concerned being given for the purposes of the post-mortem examination of the body of the deceased person concerned,
(b) the likely importance of the information contained in the medical record concerned for the purposes of that examination, and
(c) the likely impact on the effectiveness of that examination if the medical record concerned is not given, or there is a delay in its being given, for the purposes of that examination.
(9) A registered medical practitioner to whom medical records are given pursuant to a direction of a coroner under subsection (1), or an order of the High Court under subsection (6), shall return those records to the hospital or other health institution or the medical practitioner, nurse, midwife, paramedic or advanced paramedic, as the case may be, from whom they were received, as soon as practicable after the post mortem examination of the body of the deceased person concerned has been made or, as may be appropriate, an inquest in relation to the death of that person has been held.
(10) Rules of court may make provision for the expeditious hearing of applications to the High Court under subsection (6).".
I move amendment No. 15:
In page 20, after line 44, to insert the following:
“Amendment of section 36 of Principal Act
18. Section 36 of the Principal Act is amended by the insertion of ", or, where there is a relevant Ombudsman Commission investigation concerning the death of the person in relation to whose death the inquest is to be held, by a designated officer of the Ombudsman Commission," after "a member of the Garda Síochána".".
I move amendment No. 16:
In page 22, between lines 19 and 20, to insert the following:
“Amendment of section 43 of Principal Act
22. Section 43 of the Principal Act is amended by the substitution of "the coroner shall so inform a member of the Garda Síochána or, where there is a relevant Ombudsman Commission investigation concerning the death of the person in relation to whose death the inquest is to be held, a designated officer of the Ombudsman Commission, and the member or designated officer, as the case may be, shall assemble" for "the coroner shall so inform a member of the Garda Síochána and the member shall assemble".".
I move amendment No. 17:
In page 22, between lines 28 and 29, to insert the following:
“Amendment of section 47 of Principal Act
23. Section 47 of the Principal Act is amended by the insertion of the following subsection after subsection (1):
"(1A) Where there is a relevant Ombudsman Commission investigation and a coroner is informed by a designated officer of the Ombudsman Commission that, in his or her opinion, the death of the person concerned whose body has been buried in the coroner’s district may have occurred in a violent or unnatural manner, the coroner may request the Minister to order the exhumation of the body by the Ombudsman Commission.".".
I move amendment No. 18:
In page 23, line 9, after “Síochána” to insert the following:
", or designated officers of the Ombudsman Commission where there is a relevant Ombudsman Commission investigation concerning the death of the person in relation to whose death the warrant is issued,".
I move amendment No. 20:
In page 25, between lines 12 and 13, to insert the following:
“Performance of functions by designated officers of Ombudsman Commission under Coroners Act 1962
29. The Garda Síochána Act 2005 is amended by the insertion of the following section after section 101:
“101A.The Ombudsman Commission may, in connection with the investigation of a complaint or matter under this Part that concerns the death of a person, direct a designated officer of the Commission—
(a) to perform the functions conferred on such an officer by the Coroners Act 1962 in relation to the inquiry by a coroner into the circumstances of the death of the person under that Act, and
(b) to provide to the coroner, at his or her request, such assistance with regard to the holding of an inquest in relation to the death of that person as would be provided by a member of the Garda Síochána in the case of any other inquest under that Act, and a designated officer so directed shall perform those functions and provide such assistance whether or not the investigation under this Part is completed.".".
I move amendment No. 21:
In page 26, line 34, to delete "or".
This is a technical amendment. The list of deaths that must be reported to the coroner are contained in the Schedule at the end of the Bill. The amendment proposed is on the advice of Parliamentary Counsel. It deletes the word "or" in the list, where it is superfluous.
I again acknowledge the leadership and determination of Deputy Clare Daly in regard to this Bill. I also acknowledge that the processing of this legislation took longer than anyone of us would have wished or might have expected. I acknowledge the contribution of the Coroners Society of Ireland and the coroners' representative body in terms of their assistance throughout the process and I thank my departmental officials for their work on the Bill. I acknowledge this process has taken some time but I am sure Deputies will agree this is a complex area and ultimately we are responsible to ensure that all our legislation is not only constitutionally sound but legally robust and operable. I believe that we now have the shape on this important legislation.
My intention now is to seek early progression of the Bill through the Seanad with a view to enactment. There are nine weeks of this term remaining, which I consider that to be ample time to proceed. In respect of other issues that may remain outstanding, I assure Deputy Clare Daly and the House that we are well advanced in discussions with the Office of the Attorney General and other Departments on a small number of amendments that I propose to bring forth in the Seanad, in particular the introduction of a case stated type facility for a coroner. In circumstances where there is a difficult or doubtful point of law a case stated at the High Court might well be the most appropriate manner in which it can be dealt with. I will also bring forth a provision setting out guiding principles for regulations on appropriate and respectful treatment of human tissue or organs removed for the purposes of a post mortem or inquest.
I thank Deputy Clare Daly in particular and other Deputies who engaged with this Bill in committee and otherwise. This is important legislation that over the next few weeks will become law.
I take this opportunity to recognise the families in the Visitors Gallery, some of whom are close friends of mine. I am delighted that the Bill has passed in this House. Like everybody else, I congratulate Deputy Clare Daly on her great work on the Bill. I have taken an interest in it from day one and I am delighted on behalf of Fianna Fáil to welcome that the Bill has passed in this House. I urge the Minister to ensure that the Seanad amendments are produced quickly to facilitate the taking and passage of the Bill by the Seanad with a view to its enactment before the summer recess.