Coronial inquests consider matters concerning public health and safety, with public access and open media reporting considered important in this context. However, transparency may come with personal and professional costs to witnesses before the inquest.
In the first article of The Inquest Series, we explore whether, and in what circumstances, doctors required to give evidence in connection with a death can obtain non-publication orders to protect their identities.
Open justice and coronial processes
Coronial investigations and inquests aim to examine the circumstances of particular deaths to help prevent similar deaths in the future. A coronial inquest is a public hearing during which a Coroner may comment on matters connected with deaths, such as public health and safety, or the administration of justice.1 In many cases, considerations of public health and safety involve scrutiny of the treatment provided by medical professionals to their patients.
Open justice refers to the principle that court proceedings should be conducted in full view of the public. It’s the reason anyone, including media, can walk into the courtroom gallery of most proceedings. The rationale is that transparency allows public and professional scrutiny of the courts which yields an improvement in court processes and the maintenance of public confidence in the administration of justice.2 Essentially, sunlight is the best disinfectant.
The purpose of open justice in coronial processes is to scrutinise the inquest process and the way evidence is considered, and to allow the public to understand why decisions are made and how the process works. An inquest is conducted on behalf of the public and for their information, so it carries a particular need for openness.3 It is through the media that inquest proceedings and findings have their most significant impacts on the public.4
The perils of publicity
The publicity associated with open justice can present significant difficulties for witnesses involved in the process. This issue of collateral harm to witnesses has been expressly recognised by Coroners Courts across the various Australian jurisdictions.
In the inquest into the deaths arising from the Lindt Café siege, the New South Wales Coroner remarked that some media posts appeared to lay blame on de-identified parties and there were significant foreseeable negative impacts on those parties which could flow from this.5 In the inquest into the death of Marcia Anne Kathleen Maynard, the ACT Coroner remarked that the court’s role included minimising the potential for the inevitable counter-therapeutic harm to witnesses.6 In the inquest into the death of Ruth McKay, the Queensland Coroner’s Court remarked that it 'must be mindful that its operation has real life impacts for those unfortunately swept up in our remit.'7
The public may develop negative views about a medical practitioner when the conduit of media reporting communicates the remarks of witnesses or the coroner that are critical of the medical practitioner’s professional decision-making or conduct, or even where a doctor is merely associated with a tragic series of events. In these circumstances, publicity can have significant personal and professional consequences for doctors.
For example, in Medical Board of Australia v Bird,8 a psychiatrist’s treatment of their patient had previously come before the Coroner’s Court at inquest before progressing to regulatory action brought by the Medical Board. A patient of the psychiatrist was involved in a motor vehicle accident which caused the death of himself and others. The court considered the appropriateness of medications prescribed by the psychiatrist to the patient. There was significant media reporting of both the inquest and the regulatory proceedings. The psychiatrist raised the following at the regulatory proceedings:
- There were 24 articles, 13 YouTube videos and a segment on Today Tonight relating to him.
- He suffered a downturn in his professional practice which coincided with the escalation in media attention.
- His patients expressed distress that their treating doctor was the subject of media coverage and public speculation over his competency.
The Tribunal in that matter acknowledged the significant impact upon the psychiatrist and their family of the publicity associated with the coronial and regulatory proceedings.9
What can be done to protect witnesses?
The courts and legislature recognise that the principle of open justice, while fundamental, is not absolute and that some circumstances warrant steps by the court to protect information.
Each jurisdiction has provisions in the legislation enabling the court to place restrictions on publication. For example, the Queensland Coroners Court10 has express jurisdiction to make an order prohibiting the publication of information relating to an inquest or pre-inquest conference.11 Additionally, the court may close aspects of the court proceedings to the public,12 and has an inherent power to give directions as necessary for the conduct of the inquest.13 There is also a general exception to the principles of open justice recognised at common law whereby a court may order an incidental or procedural restriction in the interests of a witness or party in a proceeding.14 Witnesses called at inquest may, for example, seek orders requiring that their name and identifying details not be published in any judgment or court reporting.
It is broadly recognised that the principle of open justice yields to the extent to which the privacy, safety or health of those called before a court to give evidence will or may be compromised beyond that which is necessary for the legitimate objects to be achieved. In Porter v Australian Broadcasting Corporation,15 the court considered an application to suppress the ABC’s defence in relation to a claim by Christian Porter (the Attorney-General at the time) for defamation, following its resolution by agreement.16 The orders were opposed by non-party media outlets. The court ultimately granted the orders, noting they were sought by consent, but stressed that it is for the court to independently determine if the orders are necessary for the administration of justice. Following the judgment, then Chief Justice Allsop amended the Federal Court Rules regarding non-party access to the court file and remarked that suppression or non-publication orders are 'about ensuring the rules of the court are not used, knowingly or innocently, as an instrument of injustice.'17 Although this decision and practice note operate under a different jurisdiction, they involve the same fundamental legal principles of open justice and the administration of justice.
However, courts and legal commentators emphasise that non-publication orders should be granted sparingly given the fundamental importance of open justice. The courts have made it clear that the exercise of a non-publication order may not be made merely to save a party/witness from loss of privacy, embarrassment or other collateral disadvantage.18 Something more must be demonstrated, and compelling evidence is required.
So, what must an applicant demonstrate to the court when seeking a non-publication order? In the absence of express statutory requirements regarding the test for non-publication orders, the Coroners Court will look to established common law principles. In a review of judgments regarding non-publication and suppression orders of the Federal Court, Chief Justice Mortimer remarked that 'there is no formula applied by our judges and each case very much turns on its own facts.'19 The body of common law built over time by parliament and the courts imparts an obligation on courts to strike a balance between conducting proceedings consistently with established principles of open justice and facilitating justice to all parties within the remit of the court’s processes.20 Courts may strike this balance by adopting protective measures over precise documents, information or identifying details, and/or prescribing precise time periods before the orders lapse.21
In this context, the factual circumstances of a given case may necessitate consideration of the relevant importance of media reporting to the general public, evidence of the kind of reporting which has already occurred (if applicable), and the likelihood of the applicant facing harm that is more than mere embarrassment or distress (with, if applicable, regard to evidence of any past instances of such actual harm).
An example where orders were granted
The inquest into the death of ES (2014/2590)22 revolved around the death of an elderly lady with significant medical conditions in 2014. She was discharged into the care of her family with an understanding that she would be commencing palliative care. She later passed away at her home. The matter only proceeded to inquest because staff at a private hospital reported that a nurse made comments about using medications to assist in the death of a family friend. The court ordered blood analysis which indicated potentially fatal levels of two opioid analgesics.
The court made non-publication orders over the identities of all witnesses called before the inquest (including a general practitioner and multiple doctors at a hospital) 'due to a concern that the controversial nature of some of the evidence had not been tested and may have unfairly damaged the reputations of some of those persons/organisations involved' (at [28]).
This matter occurred in relatively extreme circumstances; namely, that there was a possibility that medical practitioners had committed serious criminal offences or that the public may make such assumptions without there being sufficient evidence. Nevertheless, it indicates an awareness by the courts of the damage to reputation that coronial processes may cause medical practitioners, even by merely being associated with a tragic event.
What should you do?
It is not easy to close the doors to a court which requires a degree of openness to function.
The courts acknowledge that the need to keep proceedings open must be balanced against the need to minimise significant harm to those involved in an inquest. However, the cases indicate that such harm must be both serious and likely. Applications for non-publication orders rise and fall on the strength of the evidence adduced by the applicant seeking the orders, and a medical practitioner would need to lead persuasive evidence detailing the probable harmful effects of publicity in order to succeed in their application.
In seeking to persuade a court that the balance between the competing interests of personal protection and open justice favours the making of a non-publication order, practitioners should consider restricting the scope of the orders sought, such as by narrowing the precise identifying details or information to be excluded from publication, or by specifying a discrete period until the orders may lapse. The use of pseudonyms, to protect a practitioner’s identity from being publicly reported, can be a useful option, as in most cases this minimises interference with open justice (given that the substance of the issues and evidence remains a matter of public record) and does not compromise the legitimate objects of the inquest. In jurisdictions where the court has powers to order restrictions on media filming or photographing in and around the courtroom, the combination of such orders with a pseudonym order can be used to good effect in protecting a medical witness in a high-profile case.
Although non-publication orders can be difficult for medical practitioners to obtain under ordinary circumstances, the law does recognise that there are cases where the balance favours the court taking steps to protect a witness’s safety, health or privacy. Sunlight may be an essential disinfectant, but unwarranted exposure can cause damage.
1 Coroners Act 2003 (Qld) s 3(d)
2 Hogan v Hinch (2011) 243 CLR 506 at [20]
3 Mirror Newspapers Ltd v Waller Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1
4 Tasmanian Coronial Practice Handbook (2016)
5 Coroners Court of New South Wales, May 2017
6 Coroners Court of Queensland, 2015/3872, 5 September 2018
7 Inquest into the Death of Ruth McKay [2023] ACTCD 7 [9]
8 [2014] QCAT 411
9 Although non-publication orders in the regulatory context are outside the scope of this article, we note the tribunal made some non-publication orders, but it did not consider the extent of the prohibitions sought by the practitioner were necessary for the administration of justice
10 To the extent possible consistent with the purpose of the Coroners Act 2003 (Qld), the provision permitting non-publication orders must be interpreted in a way which is compatible with the human right to privacy: Human Rights Act 2019 (Qld) ss 25, 48
11 Coroners Act 2003 (Qld) s 41
12 Ibid s 31
13 Ibid s 35; Christensen v Deputy State Coroner
[2021] QSC 38
14 J v L&A Services Pty Ltd (No 2) [1995] 2 Qd R 10, at 45
15 [2021] FCA 863
16 Porter v Australian Broadcasting Corporation
[2021] FCA 863 at 85
17 Access to Documents and Transcripts (Practice Note GPN-ACCS, 10 February 2023) at [4.12]
18 J v L&A Services Pty Ltd (No 2) [1995] 2 Qd R 10, at 44
19 Ibid
20 Chief Justice Mortimer, 2 October 2024, ‘Reflections on the Concept of Open Justice’
21 For example, the making of interim non-publication orders over the identity of a witness at a pre-inquest conference to afford them an opportunity to consider the relevant material, the effects of publication and to consult legal practitioners about the prospects of any application
22 Coroners Court of Queensland, 2014/2590, 7 February 2017
