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.’
Share your view
We welcome your feedback on this article – email the Editor at: editor@avant.org.au