The Inquest Series: Giving evidence at a Coronial Inquest – trips and traps

A coronial inquest can be a complex process, particularly for medical professionals. Navigating it effectively requires an understanding of the process, awareness of common challenges, and careful preparation guided by practical strategies.

In the final article of The Inquest Series, we explore the complexities medical professionals face when giving evidence at a coronial inquest and offer practical strategies to navigate the process effectively while avoiding common pitfalls.

Overview of coronial inquests

An inquest is an investigation by a Coroner into the cause and circumstances of a death. It is a fact-finding investigation and does not seek to apportion blame. An inquest is usually held in the Magistrates Court closest to where the death occurred.

Not all coronial investigations proceed to inquest. Inquests are mandated for deaths in certain situations (such as a death in custody). A Coroner may elect to hold an inquest if it is in the public interest to do, if there is significant doubt surrounding the cause of death, or if it is considered that an inquest may prevent future deaths or uncover systemic issues that affect public health and safety.

At the conclusion of an inquest, the Coroner will adjourn the inquest in order to make their findings on the identity of the deceased, including when, where and how they died, and the cause of death. As part of those findings, the Coroner can also comment on anything connected with the investigation of the death, such as:

• public health and safety
• ways to prevent deaths from happening in similar circumstances in the future

For example, a Coroner may identify like causes or circumstances surrounding the deaths of patients and provide that information to the Clinical Excellent Division for Queensland Health for statewide consideration. The recommendations made, and actions by health providers following inquests, can lead to important changes in health care service delivery and public health matters (i.e. 'Ryan’s Rule').

Whilst a Coroner cannot make a determination about civil or criminal liability, a Coroner can still determine if a person caused a death. The evidence presented during an inquest and the conclusions reached by a Coroner can be determinative in interested parties to an inquest later deciding if there are grounds to pursue a civil claim. Findings made by a Coroner have the potential to cause reputational damage.

A Coroner also has powers to provide information on a person’s conduct to the disciplinary body for the person’s profession if the Coroner reasonably believes the information might cause the body to enquire into the conduct (i.e. Office of the Health Ombudsman or AHPRA referral). A Coroner may also refer the matter for consideration as to criminal charges to the Office of the Director of Public Prosecutions or to the Crime and Corruption Commission.

All findings are publicly available and published on the Coroner’s Court website.

Medical professionals are often involved in giving evidence in inquests either as a medical witness or provider of health care prior to the person’s death or as an expert independently appointed by the Coroner.

Navigating the process

The Coroner has significant powers to obtain information from relevant parties and institutions and does this by issuing a ‘Form 25 – Requirement for Information’ to a relevant party. The Form 25 might be a request to produce identified documents or a request to produce a statement in response to questions posed by the Coroner. It is an offence not to comply with the request without a reasonable excuse. Shortly after the death and prior to the inquest, you may have been asked to produce a statement to assist the Coroner in their investigation, which will form part of the ‘Brief of Evidence’. The provision of such information is authorised in circumstances where it would otherwise be a breach of the duty of confidentiality.

If you are required to attend an inquest to give oral evidence, you will receive a summons to appear with details of when and where you will give evidence. Once you arrive at the court room, you will most likely be required to wait outside before you are called to enter the court (unless you are an expert witness, in which case you are usually permitted to remain in the court room prior to giving evidence). When called, you will need to make your way to the witness box, and prior to commencing your evidence, you will be required to take an oath of affirmation.

Counsel Assisting is a lawyer or barrister whose role is to assist the Coroner to ensure all relevant information is presented. Counsel Assisting will ask you some introductory questions, such as your name and occupation, followed by a series of questions which may arise from your statement, evidence already given by other witnesses, or from the Brief of Evidence.

After Counsel Assisting has asked you questions, the barrister/s representing other ‘interested parties’ in the inquest may ask you questions. This is typically referred to as ‘cross examination’.

Your legal representative will usually ask you questions last, and if any further information is required to clarify your evidence, this will be the opportunity to do so. The Coroner may also interject at any time throughout your evidence to ask you questions.

Trips and traps

Most people find giving evidence to be a foreign and stressful experience, so feeling nervous is to be expected. Some tips to assist in the process include:

• Utilise the legal support available to you throughout the process, either through the Hospital legal team or your Medical Indemnity Organisation. It is advisable to seek this support early in the process when you are first asked to provide a statement.
• Inquests can be high profile and attract considerable publicity. If you have concerns about a serious risk of harm resulting from such publicity, speak to your legal representative about whether steps to protect your identity should be considered. For further information, see our related article here.
• Familiarise yourself with your statement and the deceased’s medical record or your expert report (and the key material you relied upon as the basis for your opinion) before giving evidence.
• If advised by your legal representation, take a copy of your statement or expert report and the relevant medical record, unmarked, with you into the witness box.
• The Coroner is referred to as His or Her Honour, and if you are addressing the Coroner directly, 'Your Honour'. The barrister or lawyer assisting the Coroner is referred to as Counsel Assisting.
• While it can be tempting to anticipate where the questions are heading, it is important to only focus on the question being asked and answer only the question asked succinctly and directly. You do not need to volunteer information superfluous to the scope of the question asked.
• If the question is unclear or ambiguous, ask for an explanation or request that the barrister or Counsel Assisting repeat or rephrase the question.
• Inquests are often held considerable time after the event and it is normal not to remember a particular examination or consultation. Giving evidence is not a memory test and you can ask to refer to the medical record or your expert report to assist you in responding. If you want to refer to your statement or report, you can ask the Coroner to do so.
• It is fine if you don’t remember – you can simply say you don’t recall. However, if you are able to refer to what your ‘usual practice’ is in the scenario, you can respond that you don’t recall and then explain your usual practice.
• Remember that most people in the court room will not be medically trained (they will be lawyers or barristers or lay people). Use clear and simple English to explain medical terms to alleviate confusion.
• A barrister may 'put to you' various scenarios when questioning. If you do not agree with the scenario that is being put to you, simply say so. Avoid being argumentative, defensive or evasive. It is quite common for a cross-examiner (the barrister representing other parties) to attempt to provoke a witness.
• Don’t be afraid to make concessions. A witness who is immoveable in an unreasonable position is often perceived as less credible. Be prepared to change your opinions in light of the circumstances.
• If you are concerned that any of your answers could incriminate you in a criminal matter, speak to your legal representative prior to giving evidence as there are protections which can be afforded to you. For further information, see our related article here.
• Allow for last-minute changes in scheduling as witness schedules are often rearranged or the witness before you can run over or finish early. The court will usually only sit from 10:00am until 4:00pm, so if the witness before you runs over their allocated time and into the afternoon, this can often mean the next witness is rescheduled to the next day. Solicitors, barristers and coroners are sensitive to the needs of medical practitioners and will try to accommodate them wherever possible, so as to cause minimal interruptions to their practices.
• If you have the opportunity to sit in and observe another inquest prior to giving evidence, this may be a worthwhile exercise to assist in calming nerves and familiarising yourself with the court process. The inquest proceedings list is published on the Coroner’s Court website.

An inquest can provide a health provider with the opportunity to take steps to prevent a like death in the future, implement learnings, assess the effectiveness of those implementations, rectify deficiencies, and conduct retraining and audits. Taking such actions before an inquest is heard may avoid regulatory referrals or published recommendations.

Barry Nilsson regularly assists medical professionals and health providers in the preparation for and attendance at coronial inquests. Your MDO or Hospital Legal Department will also be a wealth of knowledge in assisting you in preparing to give evidence.