Coroners’ Recommendations and the Promise of Saved Lives

Dr Jennifer Moore examines two highly debated questions: do coroners’ recommendations save lives and how often are they implemented?

Top misconceptions about Coroners

During my research about coroners, many families who had appeared in the Coroner’s Court asked me if the coroner would perform an autopsy on their loved one and whether coroners’ public health and safety recommendations must be acted on by the agencies that receive them. During these discussions, several families referred to television series about death investigation and crime. I realised that there are many misconceptions about coroners and the most common misconceptions are as follows:

1. All coroners are doctors
2. Coroners perform autopsies
3. Coroners must make recommendations and they must be implemented.

1. All coroners are doctors

Popular American television series such as Crossing Jordan and Body of Proof depict medical examiners undertaking autopsies and solving mysterious crimes following sudden and unexplained deaths. It is perhaps unsurprising, then, that a common misconception is that all coroners are doctors, or medical examiners, and, specifically, pathologists. However, the reality is that most (although not all) coroners are lawyers.

As coroners are public officials, embedded within distinct political and legal environments, there is variation across and within countries. In England, Australia and New Zealand, coroners are legally qualified and operate as judges or magistrates. In Scotland, death investigation is undertaken by legally trained procurator fiscals and sheriffs. By contrast, most Canadian coroners are medical practitioners. In Ontario and Alberta, for example, death investigations are conducted by medical examiners (doctors). However, in another Canadian province, Saskatchewan, coroners come from a wide variety of backgrounds including medical, legal and business.

The United States (US) has a fragmented system with two models of death investigation: 1) medical examiner; 2) coroner. US coroners do not need legal training. They are usually elected, training requirements are minimal and a wide range of individuals may hold the office of coroner; some of them are funeral directors. US medical examiners are doctors, usually pathologists, who are appointed.

2. Coroners perform autopsies

 This misconception likely arose for two reasons: 1) the depiction of medical examiners performing autopsies on television series and 2) the coroner’s duties in Medieval England. Historically, coroners undertook a primitive form of postmortem examination where the coroner would inspect and feel the naked body of the deceased, searching for wounds, bruises and other signs of injury. This duty is outlined in the 1276 English statute De Officio Coronatoris. But, the coroner’s primary duty in England in the 1100s was to safeguard the King’s revenue. The Crown had rights in what had been the property of felons. Especially important was the coroner’s involvement in the determination of suicide cases because the law stated that the property of a person who committed suicide was forfeited to the crown. Coroners also investigated unnatural or suspicious deaths, particularly homicides and heard appeals of felony. Coroners could hold inquests (public hearings in court) with juries. In addition, coroners and their juries were required to investigate cases involving the discovery of treasure troves.

Today’s legally qualified coroners do not undertake autopsies; whereas medical examiners, trained in medicine, may perform autopsies. Coroners work with forensic pathologists who conduct the autopsies.

If modern-day coroners do not perform autopsies, what work do they conduct and which deaths get reported to the coroner? The coroner’s primary function is to investigate the ‘who, how, when and where’ of unexpected, unnatural and violent deaths. Typically, a coroner’s work commences once s/he receives a report from police. Not all deaths are referred to the coroner. Deaths that are typically referred include deaths:

• Without known cause, suicide, or unnatural or violent
• For which no doctor’s certificate is given
• During medical, surgical, dental or similar operation or procedure
• In official custody or care.

A controversial issue is whether coroners should be permitted to investigate stillbirths. The English, Australian and New Zealand approach is that coroners cannot take jurisdiction of stillbirths because these infants are not born as living people; the death of these fetuses occurs in utero. Nevertheless, an English coroner, Coroner Osborne, requires all stillbirths and neonatal deaths in his jurisdiction to be reported to him so that he can determine whether an inquest should be held. Coroner Osborne adopted this approach after a reportable infant death was not reported to him. A baby who was born alive was wrongly recorded as a stillbirth. The distraught parents of this baby fought for two years to get their baby’s death investigated.

Once a death is referred to the coroner, s/he decides whether to conduct an inquiry, hold an inquest, and direct the pathologist to perform an autopsy.

3. Coroners must make recommendations and they must be implemented

Coroners in many countries such as England, Canada, Australia and NZ may make public health and safety recommendations to prevent similar deaths from occurring. For example, coroners have made recommendations on a range of topics such as: the introduction of warning labels on soft drinks; regulations mandating the use of lifejackets on boats; mandating the use of appropriate helmets for riders of quad bikes; safe sleeping practices for newborns and their parents. One of the media’s favourite topics is coroners’ recommendations. Recommendations also attract controversy, with some commentators objecting to the “draconian” or “nanny state” nature of recommendations, which link an “odd death or one accidental fatality to some kind of systemic failing in our society.”

Coroners can choose whether to issue recommendations. Debate continues about whether coroners issue too many recommendations. There is also debate about whether the office of the coroner is “toothless” because the organisations that receive coroners’ recommendations are not legally required to act on them. In a couple of countries, the organisations that receive coroners’ recommendations must respond to say what, if anything, they will do. This table from my recent book, Coroners’ Recommendations and the Promise of Saved Lives, shows different countries’ approaches to coroners’ training and mandatory responses:

Jurisdictions’ Approaches to Coronial Investigations

Notes:

* Since 2013 newly appointed coroners must have the five year judicial eligibility qualification (like all judges) which requires five years of legal practice or part-time judicial practice. Coroners appointed before 2013 could be lawyers or doctors.

** Ontario has a unique system which typically garners responses from organisations.

If coroners do not need to issue recommendations, organisations do not need to implement them, and only a couple of countries require responses, what is the point of coroners’ recommendations and does anyone take any notice of them? When I was doing research about coroners’ recommendations my conversations with journalists about this question would usually go like this:

Journalist: Well, don’t we know that no one takes any notice of coroners’ recommendations?

Jen: We won’t know the answer to that question until we’ve looked at the data.

Journalist: Sure, but don’t we read in the paper every day about government bodies that simply ignore coroners’ recommendations.

Jen: Yes, we do, but we don’t know the numbers. How many government bodies do not implement coroners’ recommendations and how much uptake is there?

Two eminent coronial law scholars have claimed that it is rare for coroners’ recommendations to be ignored by agencies because of media and political pressure. Who is right? How often are coroners’ recommendations implemented? I answer this question in my book. Specifically, interested readers can read chapter 4 of my book where I explore whether coroners’ recommendations really do “disappear into a black hole”.