Dupois v State Coroner of Queensland Michael Barnes [2012] QDC 304

DISTRICT COURT OF QUEENSLAND CITATION: Dupois v State Coroner of Queensland Michael Barnes [2012] QDC 304 PARTIES: CHARLES DUPOIS (Applicant) AND STATE CORONER OF QUEENSLAND MICHAEL BARNES (Respondent) FILE NO/S: D306/12 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 19 April 2012 DELIVERED AT: Brisbane HEARING DATE: 10 April 2012 JUDGE: Reid DCJ ORDER: (1) The application is dismissed; (2) Subject to any submissions to the contrary, I make no order as to costs; (3) I give the parties until 4:00pm on Monday 23rd April 2012 to notify other parties of any intention to seek costs of this application and in such circumstances order that the matter is to be heard by me on either party given two days‘ notice in writing to the other of a date arranged with my associate. CATCHWORDS: Coroners Act – Application for inquest – Public interest – Sufficiency of mere assertions CASES REFERRED TO: Gentner v Barnes [2009] QDC 307; Lockwood v Barnes [2011] QDC 84 -- 1 of 15 -- 2 COUNSEL: M.D. Hinson SC for the Respondent SOLICITORS: Crown Law for the Respondent IN PERSON: C. Dupois (the Applicant) Introduction [1] This is an application by Charles Dupois pursuant to s 30 of the Coroners Act for an order that an inquest be held into the death of Mr Dupois‘ father, Antoine Chakra. Mr Chakra died on 11 July 2011. He was at that time a patient at the Allamanda Hospital, Southport. [2] Following his death a detailed autopsy report was prepared by Dr Diane Little, a forensic pathologist. The report is exhibit 93 to an affidavit of Paula Campbell, filed by the respondent on 29 March 2012. The report concludes that the cause of Mr Chakra‘s death was: ―1(a) Megacolon with rupture, due to, or as a consequence of 1(b) Rectosigmoid diverticular disease and debility due to metastatic Merkel cell carcinoma, malnourishment and chronic subdural haemorrhage. Other significant conditions 2. Chronic cardiac arrhythmias.‖ [3] I shall return to the autopsy report in more detail later. Applicant’s case [4] Mr Dupois believes the cause of his father‘s death was more sinister. In a 28-page submission he raises numerous matters, including: 1. An assertion that Mr Chakra fell twice, on 23 June 2011, as a result of the hospital‘s neglecting to ensure he was appropriately restrained when in bed, and when his family had consented to such restraint being used. He asserts -- 2 of 15 -- 3 that as a result Mr Chakra suffered, inter alia, a subdural haemorrhage, but appears to concede, at p 2.7 of his submission, that a CAT scan of 28 June 2011 showed no increase in the size of his subdural haemorrhage from that shown in earlier scans. 2. An assertion that it was agreed between Mr Chakra‘s family and Dr Stylin, his treating oncologist, that a PEG tube would be put in place when he was admitted to Allamanda Hospital. Mr Dupois says Mr Johnson, a rehabilitation doctor employed at the hospital, felt Mr Chakra was eating sufficiently and said a PEG tube was not required. Mr Dupois says his father did eat, but not sufficiently. Mr Dupois says, at p 8.6 of his submission, that Dr Stylin had scheduled to place a feeding tube down his nose on 11 July 2011, but he died at about 3:00am on that day before any such procedure occurred. 3. Mr Dupois also says he made it known to hospital staff that Mr Chakra ―must be resuscitated no matter what‖, and this did not occur. A nurse bathed him at 2.15 am on 11 July but he was found by that nurse at 3.10 am on 11 July. She summoned medical assistance but he was found to be dead when examined by Mr Henry Coombs, an accident and emergency doctor at the hospital. Mr Dupois says that the failure to resuscitate him was directly contrary to the family‘s specific instruction. There was no evidence that Mr Dupois pointed to that suggested resuscitation was possible. [5] Mr Dupois also raised a number of other issues involving his father‘s treatment and the manner in which hospital staff have communicated with him, both before and after Mr Chakra‘s death. He says Dr Stylin believed Mr Chakra was recovering for -- 3 of 15 -- 4 his cancer and had responded well to radiotherapy. No report from Dr Stylin has been provided. Indeed, the applicant in his submissions points to no medical report to support his thesis that his father died as a result of his treatment in Allamanda Hospital. [6] Mr Dupois also asserts: (i) Dr Chin Han Wong and Dr Michael Johnson, both rehabilitation doctors at the hospital, should be charged with murder or manslaughter and that other employees of the hospital should also face criminal charges; (ii) That his ―father was killed‖ by the actions of those employed at the hospital and responsible for his care, either as a result of a ―fall which has been covered up, as no incident report was made‖, or he ―was injected with a lethal drug to make it look like he just died in his sleep‖. (See page 13.8 of his submissions) [7] He submitted that the motive for the ―killing‖ of Mr Chakra was a desire to avoid a possible legal claim and/or criminal charges arising out of alleged neglect of Mr Chakra while he was a patient at the hospital. [8] Mr Dupois‘ anger towards the hospital appears, at least in part, to be due to a decision by Dr Wong that Mr Chakra was to be treated as a palliative patient and was ―not to be resuscitated no matter what‖. It is said in the applicant‘s submission that this notation was written in Mr Chakra‘s medical chart by Dr Wong on 27 June. [9] That particular document is not identified in the bundle of material before me, but I do not doubt that it may be included in the significant volume of material on the file. I proceed on the basis that such a document exists, because I note there is -- 4 of 15 -- 5 reference to such a document dated, however, 25 June 2011, in the autopsy report. The autopsy report indicates the note is as follows: ―Order for no intensive care treatment and not for resuscitate if cardiac arrest occurs.‖ [10] Two things should be noted about this: (1) It is not suggested that Mr Chakra died of a cardiac arrest. (2) There is no evidence anywhere before me that it was possible to have resuscitated Mr Chakra after he was found by the nurse in the early hours of 11 July and was pronounced dead by Mr Coombs. It is not suggested by the applicant that any medical reports suggest that an appropriate response at that time was to attempt to resuscitate Mr Chakra, or that to do so was possible. [11] It is alleged by Mr Dupois that the hospital attempted to ―cover up‖ this notation by Dr Wong. As I have already said, there is a clear reference to it in the autopsy report. It seems clear that Dr Little must have been provided with the relevant documentation containing Dr Wong‘s notation. In my view, to have made the note Dr Wong did is not indicative of any such intention. To have made the note, of course, meant that there was a permanent record of that matter, a record then provided to Dr Little when she conducted the inquiry. In my view, the assertion that there was a ―cover up‖ is impossible to maintain in those circumstances. Furthermore, Mr Dupois asserts at p 15.9 of his submission that ―it was now clear that [Rodney Green and Caroline June Shaw]1 both conspired to have our father killed and did not want our family to be aware of Dr Chin Han Wong‘s notes in our 1 Senior employees of Allamanda Hospital. -- 5 of 15 -- 6 father‘s hospital chart or be made aware of our father‘s condition as they were planning on allowing him to die.‖ Respondent’s submissions [12] In the written submissions of Mark Hinson SC, who appeared by leave for the Attorney-General as Amicus Curiae, he referred to s 30 of the Coroners Act, which provides: ―30 Applying for inquest to be held (1) A person may apply to the coroner investigating a person‘s death to hold an inquest into the death. (2) The application must— (a) be written; and (b) outline why the applicant considers it is in the public interest for an inquest to be held. (3) The coroner must, within the prescribed period, decide the application and given written reasons for the decision to— (a) the applicant; and (b) if the coroner is not the State Coroner – the State Coroner. (4) If the coroner decides not to hold an inquest, the person may apply for an order that an inquest be held to— (a) if the coroner is not the State Coroner – the State Coroner; or (b) if the coroner is the State Coroner – the District Court. (5) The application must be made within 14 days after the person receives the written reasons for the coroner‘s decision. (6) If the State Coroner refuses an application, the person may apply to the District Court. (7) The application must be made within 14 days after the person receives the written reasons for the State Coroner‘s decision. -- 6 of 15 -- 7 (8) The State Coroner or District Court may order that an inquest be held if satisfied it is in the public interest to hold the inquest. (9) In this section— Prescribed period, for the coroner to decide the application, means— (a) 6 months after the coroner receives the application; or (b) the longer period the coroner considers necessary to enable the coroner to obtain relevant information for making the decision.‖ [13] The Coroner originally investigating Mr Chakra‘s death was Mr Hutton. He ordered an autopsy on 11 July 2011 and, as I have earlier indicated, that was conducted by Dr Little, who provided the report dated 27 October 2011. On the following day, after receiving the autopsy report, Mr Dupois applied to Mr Hutton to hold an inquest. Mr Hutton decided against doing so and notified Mr Dupois in writing of the reasons for that decision. [14] Subsequently, Mr Dupois applied to the State Coroner, Mr Barnes, under s 30(4)(a) for an order that an inquest be held. The State Coroner refused the application and notified Mr Dupois in writing of the reasons for that decision. [15] The present application is thus made under s 30(6) of the Act and under s 30(8) the court may order that an inquest be held if satisfied that it is in the public interest to do so. [16] Mr Hinson set out in his submissions the following: ―7. The expression ‗in the public interest‘ is not defined by the Act. It has been held to import a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter, scope and purpose of the enactment in which the expression -- 7 of 15 -- 8 appears enables particular maters to be pronounced definitely extraneous to any objects the legislature could have had in view: see O’Sullivan v Farrar (1989) 168 CLR 210 at 216 and the discussion in Gentner v Barnes {2009] QDC 307 at [21]0[323] and [38]. 8. The objects of the Act are set out in s 3. It is apparent from those objects and the heading to part 3 of the Act that an inquest is part of the investigation of a death. The purpose of an investigation is to make findings as to the identity of the deceased; how, when and where the person died; and what caused the death: s 45(2). Where the investigation is by way of inquest, a coroner may, whenever appropriate, comment on anything connected with a death relating to public health or safety, the administration of justice, or ways to prevent deaths from happening in similar circumstances in the future: s 46(1) and s 3(d). 9. Section 28(2) contains a non-exhaustive list of relevant factors for a coroner to consider in deciding whether it is in the public interest to hold an inquest. It provides: ‗28 When inquest may be held … (2) In deciding whether it is in the public interest to hold an inquest, the coroner may consider— (a) the extent to which drawing attention to the circumstances of the death may prevent deaths in similar circumstances happening in the future; and (b) any guidelines issued by the State Coroner about the issues that may be relevant for deciding whether to hold an inquest for particular types of deaths. 10. Since an inquest is a form of investigation of a death, and since the purpose of an investigation is to make the findings required by s 45(2), the holding of an inquest may be in the public interest if it will allow such findings to be made where, in the absence of an inquest, such findings could not be made.‖ Case law -- 8 of 15 -- 9 [17] In Gentner v Barnes [2009] QDC 307, Robertson DCJ considered what was said to be the first application under s 30(6) of the Coroners Act for an inquest into the death of a young motor cyclist in a motor vehicle accident on 8 April 2006. It was asserted by the deceased‘s family that the cause of the accident was loose gravel on the roadway brought about by drilling on the roadway the day before the accident, rather than excessive speed and/or inexperience, as police who investigated the matter believed. In that case his Honour ordered that an inquest be held. [18] Counsel for the applicant in that case referred to the State Coroner‘s guidelines issued pursuant to s 14 of the Coroners Act as supporting the argument for an inquest in that case. Those guidelines were also tendered by Mr Hinson SC before me. [19] At paragraph 20 of his Honour‘s decision in Gentner v Barnes (supra), Robertson DCJ said: ―The phrase ‗in the public interest‘ has been considered judicially on many occasions. In O’Sullivan v Farer (1989) 168 CLR 210, Mason CJ, Brennan, Dawson and Gaudron JJ said [at 216]: ‗… The expression ―in the public interest‖, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ―insofar as the subject matter and the scope and purpose of the statutory and actions may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.‖: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J‘.‖ [20] He continued at paragraphs 22 and following: ―(22) Accordingly, whether it is ‗in the public interest‘, within s 30(7), that an inquest be held involves a judgment about which reasonable minds may differ: Buck v Bovone (1976) 135 CLR 110 at 118-119 per Gibbs J. -- 9 of 15 -- 10 (23) What is ‗in the public interest‘ must be regarded in light of relevant provisions of the Act. s 28(2) is in these terms: (2) In deciding whether it is desirable to hold an inquest, the Coroner may consider— (a) the extent to which drawing attention to the circumstances of the death may prevent deaths in similar circumstances happening in the future; and (b) any guidelines issued by the State Coroner about the issues that may be relevant for deciding whether to hold an inquest for particular types of deaths.‖ [21] His Honour then said at paragraph 38: ―[38] … In my opinion, the proper approach to his application should be governed by the following principles: (i) The relief sought should be granted rarely or sparingly and regard should be had by this Court to the specialist nature of the office of Coroner and the specialist knowledge of the State Coroner and his office, and resourcing issues. (ii) The phrase ‗in the public interest‘ involves a discretionary value judgment made by this Court based on the evidence before it constrained by reference to relevant Objects of the Act set out in s 3 (namely (c) and (d)), and to s 28(2) and the relevant guidelines referred to above. (iii) It is not necessary that I conclude that the decision of the State Coroner was erroneous, however it is necessary that in order for the application to succeed there be such uncertainty or conflict of evince so as to justify the use of the judicial forensic process, and/or that the views of the family of the deceased are such that an inquest is likely to assist maintain public confident in the administration of justice. [22] His Honour in that case noted that an inquest ―would involve about 10 witnesses and it may occupy up to two days of court time. It would not be a long and resource-intensive hearing‖, and continued at paragraph 68: -- 10 of 15 -- 11 ―In applying the correct legal approach set out above, and taking into account the uncertainty and conflict of evidence relating to the possible cause of the loss of control of the motor cycle; and the matters impacting on public confidence in the administration of justice particularly having regard to the views of the family (to the extent to which I have taken these into account), I am satisfied that it is in the public interest that an inquest be held.‖ [23] A similar application was considered by Dorney QC DCJ in Lockwood v Barnes [2011] QDC 84. That case involved the death of a 16-month-old child on 9 July 2008. She had been observed by Queensland Ambulance Service to be dehydrated on 7 July 2008. She was subsequently admitted and treated at the Mater Hospital but discharged after treatment on 8 July 2008. She had been given medication to take. Her health deteriorated significantly after she had returned home and she died the next day. The autopsy report stated the cause of death was staphylococcus aureus sepsis. [24] Reports were obtained from Dr Don Buchanan, a forensic medical officer with the Clinical Forensic Medical Unit of Queensland Health, and from a specialist in infectious diseases and pathology, Dr Michael Whitby. Dr Buchanan‘s initial report was critical of the treatment given in the Mater Hospital. Ultimately, Dorney QC DCJ concluded that an inquest was not required. He was, in so finding, influenced, it seems to me, by the fact that the available medical reports did not suggest a different outcome would have been achieved if a different medical approach had been adopted and that the implementation of a root cause analysis by the hospital meant that appropriate measures had been implemented to address any deficiencies in hospital procedure. In making the orders he did, his Honour also emphasised that the relief sought should be granted rarely and sparingly, and that regard should be had to the specialist nature of the office of the State Coroner, including resourcing issues. This was a matter that Robertson DCJ must also have -- 11 of 15 -- 12 considered of relevance. His reference to the inquest taking two court days should be seen in that light. [25] In my view, the observations of Robertson DCJ and Dorney QC DCJ considering the proper approach in these matters are correct. Consideration [26] In this case, Dr Little, a forensic pathologist, had access to a vast array of material, as is made clear in her report (including the notation of 25 June 2011 made by Dr Wong on Mr Chakra‘s medical chart indicating that in the event of a cardiac arrest resuscitation was not to be undertaken.) [27] Ultimately, Dr Little found that Mr Chakra died as a result of his markedly dilated colon rupturing in the ascending part of the colon, causing faecal matter to spread into the abdominal cavity, causing rapid death after the rupture. [28] She said the causes of his markedly dilated colon, called by her a ―megacolon‖, were: (i) his pre-existing metastatic Merkel cell carcinoma; (ii) malnourishment and dehydration; (iii) chronic neurological disorder with chronic subdural haemorrhages due to multiple falls and generalised atrophy of his brain; and (iv) rectosigmoid diverticular disease with significant inflammation of the lower bowel. [29] She said these issues, together, resulted in his generalised debility and predisposed him to developing severe constipation. -- 12 of 15 -- 13 [30] Importantly, she said there were no recent injuries seen at autopsy and no evidence of poisoning was detected. The factual basis of these conclusions are clearly contained within the report and I especially refer to pages 9.8, 11.8-12.5, 13.9, 14.4, 14.7, 15.2 and 15.7-16.2 thereof. [31] In my view, the report of Dr Little is compelling evidence of the cause of Mr Chakra‘s death being unrelated to any fall that might have occurred at the Allamanda Hospital. She noted no recent injuries and no increase in the size of his chronic subdural haemorrhages that was attributed to a number of falls which occurred well prior to his admission to the hospital. Although she refers to his malnourishment and dehydration, there was no assertion in her report that this was related to any immediate issues concerning what occurred at the hospital. Indeed, there is reference in the report to some weight gain at the hospital and no clear evidence of loss of weight during the whole of the period that he was there. His BMI at the time of his death was said to be 19.8, which was not considered extreme. I note also that there was no evidence in support of the applicant‘s submission by way of medical reports to suggest that he was significantly malnourished or dehydrated or that this occurred as a result of any fault on behalf of the hospital. Rather, his submissions are characterised by assertions without clear reference to proven facts. [32] There is indeed an entire absence of any medical reports that support the applicant‘s assertions. In my view the submission, that was made, that Mr Chakra‘s treating oncologist, Dr Stylin, ―confirmed to our family that he was concerned that if he were to go public it would affect his working relationship with Allamanda Private Hospital‖, but that if ―he is called as a witness in court to give evidence of the true -- 13 of 15 -- 14 facts surrounding our father‘s unwarranted death that he would have to tell the complete truth!‖ cannot be used to justify the holding of an inquest in this case. [33] In so determining the application, I am also conscious, having regard to the manner in which issues were ventilated before me by the applicant, that any inquest would be likely to be inordinately protracted and unlikely to be readily confined to issues raised by any medical reports that might be, but are not yet, obtained to suggest any inappropriate treatment by hospital staff. [34] In my view, if it is to be alleged that any treatment by Dr Wong or any other hospital employee was inappropriate, the appropriate course for the applicant to take is a complaint, whether to the Health Rights Commission pursuant to s 57 of the Health Rights Commission Act and/or to the national agency under s 144 of the Schedule to the Health Practitioners Regulation National Law Act 2008, or otherwise. In my view, the fact that a person in the position of the applicant makes assertions, even vehement assertions, of malpractice does not mean that there is evidence to justify the use of the judicial forensic process of an inquest. Whether an inquest is to be held is determined by a consideration of whether or not such a procedure is ―in the public interest‖ and in my view, as a general rule in cases of medical malpractice, to enliven such a jurisdiction would require the production of evidence from an appropriate medical or other expert witness raising real issues to be determined. There may, no doubt, be cases where, on the basis of lay evidence, a court can be satisfied that there are likely to be issues of malpractice which have contributed to a hospital patient‘s death, but in my view the assertions by the applicant in this case do not meet that threshold. Conclusion -- 14 of 15 -- 15 [35] In my view, the applicant has failed to demonstrate that there is a real question as to whether or not Mr Chakra‘s death was related to any inappropriate treatment by hospital staff sufficient to justify the holding of an inquest. In the circumstances; (1) The application is dismissed; (2) Subject to any submissions to the contrary, I make no order as to costs; (3) I give the parties until 4:00pm on Monday 23rd April 2012 to notify other parties of any intention to seek costs of this application and in such circumstances order that the matter is to be heard by me on either party given two days‘ notice in writing to the other of a date arranged with my associate. -- 15 of 15 --