I move: "That the Bill be now read a Second Time."
I am introducing this Bill because of particular concerns about a pending inquest but there are far wider implications. I am grateful to the Government, especially the Minister for Justice, Equality and Law Reform, for agreeing to facilitate its speedy passage before Christmas, for reasons with which we are both familiar.
It says something about our sense of priorities that there has been legislation on tribunals on nine occasions since 1921, including four Acts this century, yet the Coroners Act has remained unamended since 1962, despite the fact that we have had less than 30 tribunals in the State's history, while dozens of coroners hold hundreds of inquests throughout the State every year. This fact cannot be seen as evidence that the system is working. On the contrary, the difficulties and inadequacies of the system have been known for years.
The Coroners Act 1962 is acknowledged to be in need of substantial reform. The Minister is on record as saying, "As has long since been acknowledged, the current Irish legislation, the Coroners Act of 1962, is outdated and can no longer be said to equip coroners with the appropriate measures to conduct the best possible death investigation." A working group reported to the Department of Justice, Equality and Law Reform in October 2004 and made more than 100 recommendations. The report has been accepted by the Government and work is ongoing within the Department on a comprehensive replacement statutory code. I understand a draft Bill will be brought to the Government by the Minister very soon and that it will be published early in 2006, if not this year.
The immediate need for legislation turns around the fact that a baby died of brain damage after being admitted to hospital on his second birthday for a routine operation linked to his condition as a haemophiliac. Pierce Nowlan of Saggart was admitted to Our Lady's Hospital for Sick Children in Crumlin last October to have a device fitted into a vein that would have allowed the regular injection into his blood of factor eight, a clotting agent. During the procedure, it seems an artery was inadvertently punctured as surgeons were attempting to access the vein where the device was to be fitted. Pierce bled from a hole in his artery into the left side of his chest. The oxygen flow to his brain was adversely impacted and he died as a result. His parents, Stephen and Jean Nowlan, had been told this procedure was minor and that there was "nothing to worry about".
The Dublin city coroner, Dr. Brian Farrell, held an inquest last July and adjourned it until September to study the complicated evidence that had been heard. He also wanted to consider reports on the matter that had been put before the court and to possibly consult others on the case. He needed such time, he said, in part because of restrictions in the Coroners Act that permitted him to call only two medical witnesses in any one case.
Section 26 of the Act states:
(1) A coroner may, at any time before the conclusion of an inquest held by him, cause a summons in the prescribed form to attend and give evidence at the inquest to be served on any person (including in particular any registered medical practitioner) whose evidence would, in the opinion of the coroner, be of assistance at the inquest.
(2) A coroner shall not exercise, in relation to the attendance at an inquest of a second registered medical practitioner, the power conferred on him by subsection (1) of this section unless—
(a) a majority of the jurors at the inquest, it having appeared to them that the cause of death has not been satisfactorily explained by the medical practitioner giving evidence thereof at the inquest, have by a requisition in writing called upon the coroner to cause a summons under that subsection to be served on another registered medical practitioner, or
(b) that practitioner had assisted at a post-mortem examination upon the person in relation to whose death the inquest is being held.
The effect of the section is to limit the number of medical witnesses who can give evidence at an inquest to two. The restriction is universally accepted as unwarranted and unfair, particularly in cases where the adequacy or appropriateness of medical treatment given to the deceased may be the key issue at an inquest. For example, there were 23 possible medical witnesses involved in Pierce Nowlan's case, given that 23 medical clinicians had been involved in his care. The section dates from an era when, although patients may have died, doctors never differed, at least not on the public record. The prohibition was always wrong in principle and its survival on the Statute Book is contrary to the interests of truth, accountability and justice.
When he adjourned the Nowlan inquest, Dr. Farrell called on the Government to introduce an amendment to the legislation lifting the restriction as soon as possible. He said the present circumstances ran contrary to the rights of all involved under the Constitution for access to "natural justice, fair procedures and due process". In September, the Dublin city coroner adjourned the inquest again until 9 November after considering further submissions in the case.
Mr. Raymond Bradley, a lawyer for the Nowlan family, asked for a further adjournment. He said, in the coded language used in such cases, until legislation was introduced allowing the coroner to call more than two medical witnesses, a certain verdict "cannot be delivered". He pointed out that doctors involved in the case had given conflicting versions of events. He said that unless more medical witnesses could clarify issues, "It would be wrong, it would be unjust for the family, and even for society, for a verdict to be delivered."
The lawyers representing the hospital also agreed with the coroner's views on the limitations placed on him by the Coroners Act. However, they argued there was an obligation on the coroner to bring the inquest to a speedy conclusion rather than adjourn it indefinitely while awaiting Government action on amending legislation. Dr. Farrell eventually ruled that it was beyond his powers to adjourn a case indefinitely in the hope that long-promised legislation might eventually materialise. He stated:
It would be unprecedented for an inquest to be adjourned pending a change of legislation ... In principle it would be wrong and in my view it would not be legal either.
That ruling was entirely understandable. The coroner allowed one final adjournment, until the end of next month, to give the Nowlans time to consider their position and their legal remedies, if any.
Meanwhile, the Nowlans had been in contact with the Department, me and, eventually, the Minister, Deputy McDowell. They were treated courteously by the Minister and his officials and were told that the prohibition set out in section 26 was recognised by all concerned as anomalous and that it would be repealed in the forthcoming comprehensive amending legislation. However, although that legislation was to be finalised and published as a matter of priority, there was no way it could be on the Statute Book by the end of January next year.
The purpose of this short Bill is simply to prioritise and implement immediately just one of the various recommendations of the working group on coroners, that is, the repeal of section 26(2), to fill the gap that would otherwise inevitably arise while awaiting the comprehensive legislation being worked on by the Minister. The proposal is non-contentious and has been accepted by the Government. I am grateful to the Minister and his colleagues for facilitating the speedy passage of the Bill before the end of this parliamentary term.
In Eastern Health Board v. Farrell, Mr. Justice Hardiman stated in his judgment that section 26 of the Coroners Act “is in my view ... a serious obstacle to the proper discharge of the statutory duty of a coroner in the more complex type of inquest.” He continued: “If a coroner feels that the question of how the death occurred cannot be answered without further evidence, it seems remarkable that he cannot obtain it.” It is quite shocking that the legislation under which a coroner operates is so restrictive that it prevents all the evidence relevant to the circumstances of death from being made available to the coroner.
Such a default is more apparent where there is a potential conflict of evidence as to what occurred but the coroner can only hear one version of events. Serious issues can arise as to who gets to choose which witness should be presented to an inquest and as to whether that witness is simply presenting the collective, corporate view on behalf of a hospital rather than an expert personal opinion. If a coroner can only rely upon one version of events then, in such circumstances, the capacity of the coroner to ascertain the true cause of death or make recommendations arising out of the findings or verdict delivered must be significantly compromised. It is wrong that where deaths occur in a hospital environment, which cases are inevitably more complex for the coroner in terms of the evidence required to be delivered, the coroner is fettered by virtue of the limitations associated with section 26 in ascertaining the true cause of death.
I welcome the decision of the Minister for Justice, Equality and Law Reform to accept this Private Members' Bill and the co-operation between both sides of the House to ensure all stages of the Bill are passed by the Dáil by Wednesday of this week. I am grateful that the Leader of the Seanad, Senator O'Rourke, has agreed to facilitate the early taking of the Bill in the Upper House, which should allow it to become law before the end of the year. It is relatively rare for the Government to accept an Opposition Bill. The degree of co-operation between Opposition and Government in regard to this issue is a reflection of the desire on all sides to deal with these anomalies.
I will deal briefly with the provisions of the Bill as published, and then with the Government amendments, which have been given to me in advance of Committee Stage. Section 1 sets out three amendments to the Coroners Act 1962. First, section 26(2), which limits the number of medical witnesses who can give evidence at an inquest, is repealed. Second, section 37, which provides that a person who, having been duly served with a summons to attend an inquest as a juror or witness, fails to attend at the time and place specified in the summons is guilty of an offence and is liable on summary conviction to a fine not exceeding £5, is repealed. The substance of that section is set out in a new section 38. Third, a new section is substituted for the existing section 38. The new section provides that a coroner may, for the purposes of his functions under the 1962 Act, summon witnesses to attend at an inquest, examine on oath — which the coroner is by this section authorised to administer — the witnesses attending at an inquest, and require any such witness to produce to the inquest any document in his or her power or control.
It is provided that a witness appearing at an inquest is entitled to the same immunities and privileges as if he or she were a witness before the High Court. A summons must be signed by the coroner. The section also provides that a person who on being duly summoned to attend an inquest as a juror or a witness makes default in attending, or being in attendance as a witness refuses to take an oath legally required by the coroner to be taken, or to produce any document in his or her power or control legally required by the coroner to be produced by him or her, or to answer any question to which the coroner may legally require an answer, or does any other thing which, if the inquest were court proceedings and the coroner were a judge having power to commit for contempt of court, would be in contempt of such court, is guilty of an offence. The penalties are, on summary conviction, a fine not exceeding €3,000 or imprisonment for a term not exceeding six months or both and, on conviction on indictment, imprisonment for a term not exceeding two years or a fine or both.
Section 2 provides a civil remedy as an alternative to criminal proceedings in cases where persons called to attend an inquest as witnesses refuse to do so. It provides that, where a person who having been duly served with a summons to attend an inquest as a juror or witness, fails to attend at the time and place specified in the summons, or fails to comply with a requirement to produce a document or answer a question, the High Court may, on application to it, in a summary manner in that behalf by the coroner, order the person to comply with the summons or requirement and may make such other order as it considers necessary and just to enable the order to have full effect. Section 3 makes standard provision for the short title of the Bill and its collective citation and construction.
It is clear that the Bill as initiated proposes to deal with three simple issues. The first is the repeal of section 26(2). The second is the fact that the existing mechanism for imposing penalties for non-attendance at inquests, either by witnesses or jurors, is almost certainly unconstitutional. The third is the lack of any civil enforcement mechanism where witnesses decline to attend.
The additional issues were highlighted in the case of Attorney General v. Lee, decided by the Supreme Court in 2000. In that case the Chief Justice pointed out that if a coroner were to invoke the powers purportedly conferred on him and on the High Court by section 38(2) of the 1962 Act, so as to certify the non-attendance of a witness as an offence and send that person forward on his certificate to be punished by the High Court, “he would be met with the contention that the provision in question is clearly unconstitutional, having regard to the decision in re Haughey”. The coroner in that case had decided not to adopt what the Chief Justice described as “a futile course”. Instead, the Attorney General had issued proceedings and applied to the High Court for an interlocutory injunction relying upon what was claimed to be the general jurisdiction of the High Court to enforce the law by way of an injunction or other suitable remedy on the application of the Attorney General as the guardian of the public interest, where it was just and convenient so to do. It fell to the Supreme Court to refuse the Attorney General’s application. The consequence of this decision was that the offences provisions of the Coroners Act are unenforceable and that there are no civil enforcement mechanisms to ensure the attendance of necessary witnesses.
As to the Government approach to this Bill and its amendments, my understanding is as follows. First, the Minister agrees with the repeal of section 26(2), which is my principal and most pressing objective. Second, the Minister agrees with the need to increase penalties for non-attendance of witnesses and jurors. However, he points out that identical penalties are not appropriate in the case of jurors and witnesses. I accept that argument and the amendment to cover the point. Third, my understanding is that the Government accepts there is a need for a civil enforcement mechanism. However, the Minister and his advisers would prefer to address this issue in the comprehensive Bill and not, even on an interim basis, in what is essentially short-term legislation.
I accept the bona fides of the Minister's position, although I would be surprised if his published proposals are very far removed from those set out in this Bill. In the interests of expediting this matter, in maintaining consensus and in enacting the core proposals, I am happy to accept the Minister's amendment, which has the effect of deleting a proposal for a civil enforcement mechanism.
There is much to be done in the comprehensive Bill. Apart from the recommendations of the working group, there is, for example, a recent High Court judgment declaring that the family of a deceased person has a constitutional right to legal aid when being represented at an inquest. That judgment will have to be reflected in legislation. There are also the judgments of the European Court of Human Rights where coroners' inquests and the restrictions under which they operate were considered in the context of the State's duty to ensure an independent, effective and impartial investigation into the deaths of those who die at State hands. A new Coroners Bill will not provide a complete answer to the queries posed by the European Court but it will at least provide part of the solution.
There are basic procedural issues which arise time and again in the Coroner's Court. Yet again in recent weeks the State had to agree to the quashing of a coroner's decision to refuse the family of a deceased person prior access to the witness statements taken by the Garda Síochána. A new comprehensive Bill must set out these basic entitlements plainly and with certainty. In the interim, I thank the Minister for facilitating the introduction of this Bill. He knows how important it is to the family concerned, to which everyone in this House would offer sympathy for what it has endured. I hope this legislation will provide some adequate answers.