Help Avant to help you in coronial inquests

By: John Kamaras, Avant Special Counsel – Coronial

Sep 26, 2014

A medical practitioner giving evidence in a coronial investigation or inquest without the benefit of legal advice, is a bit like buying a house without a conveyancer.

Seeking legal assistance early on in coronial matters will make the process easier and minimise the risk of any disciplinary proceedings being brought against you, or even criminal prosecution.

It may well be the case that as a factual witness you have done nothing wrong and have nothing to worry about but, unless you have the benefit of legal advice and/or legal representation, you could be exposing yourself to an unforseen risk.

Although the coroner’s role is primarily to determine manner and cause of death, there are occasions where a coroner may criticise a medical practitioner and refer them for disciplinary proceedings to a health care complaints body, Australian Health Practitioner Regulation Agency (AHPRA), or even to the Director of Public Prosecution for consideration to be given to criminal prosecution. Medical practitioners can also face the risk of the deceased’s family commencing civil negligence proceedings and possibly bad publicity.

Coronial investigations often take more than a year for the evidence to be gathered. All the issues and areas of concern may not have crystallised or even be known at the time that you are asked for a statement or called to give evidence.

If you are asked to prepare a statement for the coroner, or you are subpoenaed to give evidence at a coronial inquest, it is recommended that you notify Avant as soon as possible.

Some medical practitioners have attended inquests without representation and found themselves subjected to difficult cross-examination in the witness box. There have been situations where Avant has arranged for legal representation of a member at an inquest, only to find out at the last minute that another Avant member is also giving evidence and is unrepresented because they failed to notify us of their involvement. Occasionally, it has been necessary for the Avant-appointed solicitor and barrister to step in and ‘rescue’ the unrepresented member. This is clearly not an ideal situation and sometimes not even possible if a conflict arises between the two Avant members which necessitates separate legal representation.

A considerable amount of preparation is required before an inquest commences – instructing a solicitor and barrister, obtaining and reviewing the brief of evidence, preparing statements, arranging conferences and sometimes obtaining independent expert reports. The sooner you seek Avant’s assistance, the better position your legal representative will be in to protect your position.

This applies even in cases where inquests result from a death in a hospital setting where the hospital will indemnify you. Hospital indemnity ordinarily only applies to monetary compensation claims (medical negligence) made against a practitioner and not representation for any disciplinary (complaints) or criminal proceedings that might flow from a coroner’s criticism or referral. Therefore, you should contact Avant regardless of any advice you may have received from your employer or hospital administration.

Learn more

For more information on coronial inquiries refer to Avant’s new Health and Wellbeing microsite.

You can also read Avant’s fact sheet:‘The Coroner and you.’