A Strange Thing To Do
By Marcus Elliott
Marcus Elliott is a coroner based in Christchurch. Before that he was a barrister at Canterbury Chambers practising in civil and criminal litigation. He was counsel assisting the Canterbury Earthquakes Royal Commission in 2011-12. He was appointed a coroner in 2015.
Across New Zealand on a Saturday morning, people are taking their kids to netball or cricket, mowing the lawn, buying fruit, reading the paper, checking Facebook, living life. I am at my desk at home. I started duty at 5 pm yesterday. Since then I have spoken to doctors, police officers and a pathologist, and I have directed three post-mortems. I was woken at 2 am to speak to a doctor about a child who had just died. There’s no such thing as real sleep when you’re the coroner on duty, only periods of reduced alertness.
This became my way of life on 23 March 2015. Before that day, I was a practising lawyer. Over the years, I had worked in law firms and then as a barrister in chambers. One of the privileges of being a lawyer (and there are many) is the opportunity to help people at the time they need it most. Perhaps the most appealing thing about being a lawyer, and the feature which attracts many to the role, is being able to speak on behalf of people who, for some reason, are not able to speak for themselves.
Becoming a coroner meant that I would have the chance to apply the skills and experience I had gained in legal practice. More importantly, it presented the opportunity to help people and to contribute to society. As the Chief Coroner in Ontario has articulated, a coroner speaks for the dead to protect the living. The role is unique within the justice system: the coroner finds facts and conducts inquiries as opposed to presiding over disputes. In its report on coroners the Law Commission outlined how their responsibilities reflect the concerns of the state:
Protecting the lives of its citizens is a primary function of the State. Its processes for investigating sudden death ideally should be geared to finding the causes and eliminating them for the future, while respecting the sensibilities of the family in its grief.
…
The State takes a vital interest in ascertaining, as precisely as possible, the cause of all deaths so that suspicions of foul play, homicide or neglect of human life can be fully investigated. The underlying objective is to identify practices that have cost human lives and then to modify or eliminate them.
My life as a coroner began when I entered a courtroom on 23 March 2015. Unlike all my previous times in court over the last twenty years, I walked in through the judges’ door and sat at the bench. Now I was looking down at the tables where I used to sit as a lawyer. In the presence of my family, friends and colleagues I recited the judicial oath:
I swear that I will well and truly serve Her Majesty Queen Elizabeth, Her heirs and successors, according to law, in the office of coroner and I will do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will.
Many people I know were confused and even concerned that I had decided to become a coroner. ‘Don’t coroners just deal with death all day?’ I was asked. ‘Why would you want to do that? It seems like a strange thing to do.’
The only way that a case can end up before a coroner is by a person dying. Every one of the files in my office (there are always 200–300) relates to a person who has died, leaving a family, friends and unfulfilled goals and dreams. It would be natural to dwell on the pain and grief that each of those deaths has caused. It is always tempting to reflect on your own mortality or, given the inevitability of death, to contemplate the great joy and utter meaninglessness of, for example, a sunrise. But it wouldn’t be possible to do this job if this was how you spent your working day.
There are people in our society who deal with death regularly. Police officers and paramedics see death in all its immediacy and indignity. Doctors see patients die. Pathologists perform post mortems. Funeral directors embalm bodies. No one could do this work if they allowed fear or fascination with death to descend on them for too long. From my point of view, death is only one part of a much larger story. Death is a doorway to learning about people and about our society.
Like many other countries, New Zealand keeps records about how people die. This means that it is possible to identify common causes of death and publish information about how to minimise the risk of dying prematurely. For example, heart disease is the main cause of death in New Zealand. According to the Heart Foundation’s website, 186,000 people are living with the disease and one person dies from it every 90 minutes. Lung cancer is also a significant cause of death, and the leading cause of cancer death in New Zealand. Given their prevalence, there is a great deal of information available to the public about how they can lower the risk of dying a premature death from heart disease and cancer.
Interestingly, the risks of dying prematurely from both can be reduced by doing the same things: being physically active, eating a diet high in fruit and vegetables, maintaining a healthy weight, getting enough sleep, refraining from smoking and either abstaining from alcohol or only drinking in moderation.
Apart from lung disease and heart failure, the other major causes of death in New Zealand include breast cancer, colorectal cancer, chronic obstructive pulmonary disease, cerebrovascular disease (stroke) and diabetes.
Deaths due to ‘natural causes’ such as those mentioned above, are usually not addressed by coroners. In about 80 per cent of deaths, a person’s treating doctor will be able to identify that an illness caused their death, in which case they will sign a certificate, which describes the cause. The information in these certificates is then gathered and used to assemble a picture about the overall health of society and to develop strategies for improving it.
The Director-General of Health produces a report each year on the state of public health. The Director-General of Health has said that people’s life expectancy (how long we live) and health expectancy (how long we live in good health) are improving and that, over the past quarter century, New Zealand has achieved one of the fastest rates of decline in health loss from all causes combined among high-income countries. However, poor dietary habits remain a leading cause of health loss. For example, obesity is increasing – in 2015/16 almost one third of adults in New Zealand were obese. In the 2016 Annual Report, the Director-General pointed out that over one third of health loss is preventable, which means that a healthy environment and lifestyle have the potential to reduce ill-health and premature death.
Death must be reported to the coroner when the cause is unknown, when it is self-inflicted, unnatural or violent. About 5500 deaths are reported to coroners each year. Of these, coroners accept jurisdiction of around 3400. Post mortems are carried out in many of these cases, the result of which may show that the death was due to natural causes. The other cases relate to deaths due to medical treatment, transport accidents, assaults, death in prison, fire-related death, workplace accidents, choking, falls, overdoses, death during childbirth, infant death and suicide in its many manifestations.
Death can arouse much curiosity, especially when it is sudden and unexpected. Sometimes a person’s death can lead to rumours or suspicions within a community. The coroner’s function is to determine the cause and circumstances of the death and, if possible, to address any suspicions or rumours. The coroner must also consider making comments or recommendations to reduce the chance of death occurring in similar circumstances.
The coroner has the power to direct a post-mortem examination, otherwise known as an autopsy, to assist in determining the cause of the death. It is the process in which a pathologist, who is a medical specialist, examines the body internally in search of the traces that death may have left on the body. These traces may be clear to the naked eye (for example an occlusion in an artery of the heart or a clot in the brain) or they may be microscopic. The pathologist is like an investigator, searching the body for clues and then trying to make meaning of them.
After becoming a coroner I decided that, if I was going to direct post mortems, I would need to understand what actually happens. The only way to do this was to watch some. I have seen a number of post mortems now, on people who have died in many different ways. It is a confronting and visceral experience to watch as a body becomes the sum of its parts.
The information available before the post mortem may have given the pathologist a sense of what to look for. If there are injuries to the body which are thought to have caused death, these may be the focus. If there was a history of heart disease, the heart and the arteries around it will be a point of attention. In a suspected hanging, the injuries to the neck are important. Are they consistent with hanging? Do they match the ligature which was used?
Even though one part of the body may warrant attention, in a full post mortem all the organs are examined. Sometimes other potential causes need to be excluded before the suspected cause can be confirmed. Sometimes there is no suspected cause and all possibilities must be considered. Even where a cause of death seems identifiable, there may be other questions to answer. The person had some injuries but did those injuries kill them? The person was found hanging but had they taken drugs or alcohol? The person took an overdose, but what was the level of the drug in their system at the time of their death?
If there is a prospect that a person died due to a criminal act, there is no right to object to a post mortem. However, in all other cases, the family of the deceased is entitled to object. The most difficult cases for a coroner in this context are those where the pathologist’s advice is that a post mortem is necessary to identify the cause but where the family objects. Given the family’s inevitable shock and grief about the sudden death, and their desire to have the body returned as soon as possible, the decision about whether to direct a post mortem must be made under urgency, which makes it even more difficult.
The Coroners Act requires the coroner to consider a number of issues when deciding whether to direct a post mortem: whether the death was violent and, if so, whether it was due to the actions or inactions of other people; the existence of allegations, rumours, suspicions or public concerns about the death; the desirability of minimising distress or offence to people who by reason of their ethnic origins, social attitudes, customs or spiritual beliefs find post mortems offensive or require bodies to be available as soon as possible after death; as well as any other matter the coroner considers to be relevant.
In these situations, there may be a collision between society’s interest in identifying the cause of an unexpected death and the family’s objection to the prospect of their partner or parent or child undergoing an internal examination. For example, in the case of a baby who is found dead in a bed, there may be a public interest in knowing what the cause of death was, especially if the circumstances of death seem to be suspicious or if identifying the cause could help learn about how to prevent similar deaths. This must be weighed against any objection from the family, for example on cultural grounds, and it is usually necessary to talk to the family to explain the process and hear their concerns.
Thus, I have found myself in my study at home, talking on the phone to young parents in the early hours of the morning about whether their baby should undergo a post mortem. Nothing in my years of legal practice equipped me to do this.
One of the oddities about being duty coroner is that, from a legal perspective, you have custody of the body of every person whose death has been reported to the coroner. This means that, as I sit at home while on duty, I am the legal custodian of dead bodies all around the country. The police, funeral directors and mortuaries hold the bodies on my behalf. I must decide where the body can be taken and who is authorised to view it. Families are often anxious to see the body of their loved one and this can usually be facilitated, although it can obviously be distressing, especially when the deceased has suffered serious injuries. Once the post mortem is finished, the body cannot be released to the family until the coroner has authorised it.
In some ways, a coroner is similar to a judge. Coroners are appointed by the Governor-General and are independent judicial officers who are empowered under the Coroners Act to make decisions based on statutory criteria such as those I have mentioned already. But there is an important difference between a coroner and other judicial officers. Most courts in New Zealand operate on an adversarial basis. This means that one party presents a case to the court and, where the other party disagrees, the court must decide the dispute. In a civil court, a plaintiff brings a claim against a defendant based, for example, on the alleged breach of a contract. The court decides whether the breach has taken place and if so what the remedy should be. In a criminal court, the police or the Crown present a charge. Where the defendant disputes it, the court will decide whether the person is guilty or not. In these cases, the parameters of the dispute that the court must decide have been set by the parties.
By contrast, the coronial process is inquisitorial. This means that the coroner must decide what the issues are and how they should be explored. It is the same approach applied by Royal Commissions and Commissions of Inquiry in this country, and in some legal systems in Europe. It places the emphasis on the decision-maker to progress the investigation.
The coroner is required to determine the circumstances of a person’s death, as well as the cause. There is no definition in the Coroners Act of ‘circumstances,’ so the coroner will need to decide what is relevant. This will depend on the type of death. For example, if a person dies by suicide, it may be relevant to inquire into the nature of any mental health care provided in the months, or even years, before the death. If a person dies in a motor vehicle accident, it may not be necessary to look any further back than the day of the accident.
One of the most important coronial functions, and the one which probably attracted me to the role above all else, is the need to consider comments or recommendations to reduce the chance of death in similar circumstances. This function distinguishes the Coroners Court from virtually every other court. While other courts determine disputes between parties, the coroner must consider the ways in which society can learn from sudden, unexpected or violent death.
Coroners have made comments and recommendations about matters such as medical and surgical care, infant deaths, deaths in custody, drowning, drugs, alcohol and substance-related deaths, falls, fire-related deaths, homicide and interpersonal violence, mental health issues, natural disasters, self-inflicted deaths, transport-related deaths and work-related deaths.
However, at the heart of every coronial case is a grieving family. Grief seems to affect people in very different ways. Some families want as much information as possible and then to participate in the coronial inquiry, as is their right. Others do not wish to participate at all and do not even respond to correspondence. Again, that is their right.
Another distinctive feature of the coronial jurisdiction is the concept of therapeutic jurisprudence. This is the idea that, if possible, the legal process should help people to resolve the pain associated with the subject that is before the court. As a lawyer who has practised in adversarial courts for twenty years, therapeutic jurisprudence was new to me. Unfortunately, the court experience can be difficult and even abrasive. The possibility that the experience can be positive is liberating. It means that a coroner can, in some small measure, help a family to resolve questions about the death of a loved one. However, this must be balanced against the requirements of justice and fairness to others who have an interest in the coronial inquiry, especially those who face criticism from the bereaved family. This requirement is reflected in the judicial oath, under which the coroner must do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will.
The role of the coroner was perfectly encapsulated in a speech by the Honourable Sir David Baragwanath, who said:
[A Coroner has] two vital roles: to give the living the comfort that comes from closure; to know how and why a loved one has suddenly died. The other is to preserve life: by learning from the sudden death then speaking truth to power, however unpalatable that truth may be, so that disaster is turned to good.
These words remind me of the reasons why I chose to end my life as a lawyer and take on a new life as a coroner. It does seem like a strange thing to do. Death is a constant presence and the work is difficult. It takes its toll in ways it is difficult to convey. It is a role in which few could say they have not shed tears after talking to a family or walking out of a court after an inquest. It is possible to leave the workplace but not possible to forget photographs of a dead child. And no one can be more aware of their own mortality, and that of their family, than a person whose daily work involves death.
But it is a role which every coroner has willingly taken on and it is a privilege. So, when my life as a lawyer ended, a new life opened up in which there is great opportunity to help others, to search for truth and to try to improve society. I consider myself lucky to have been given the opportunity.
'This essay first appeared in Death and Dying in New Zealand, published by Freerange Press'.: https://projectfreerange.com/product/death-and-dying-in-new-zealand/