Appellant v Respondent

Principal In-House Solicitor, Coroners Court of Victoria

1 The appellant, Ms Mary Bruinink, appeals orders and determinations of a Coroner acting under the Coroners Act 2008 ('the Act').

2 Ms Bruinink's father, Mr Tivadar Tibor Horvath, died in hospital on 10 January 2021, aged 87 years. She was his medical treatment decision maker and the executor of his will. On 12 January 2021, she emailed the Coroners Court requesting that an autopsy be performed on her father's body.

3 On 27 January 2021, the Coroner signed a document titled 'Determination by Coroner that Reported Death is not a Reportable Death'. In it, he stated that he discontinued the investigation into Mr Horvath's death. The Coroner did not make a decision on Ms Bruinink's application for an autopsy. But, counsel representing the Coroners Court suggests that by 'necessary implication', the Coroner's statement that the investigation into the death was discontinued also constituted a refusal of the request for an autopsy. It is conceded that the Coroner did not comply with his statutory obligation contained in s 27 of the Act to provide Ms Bruinink with an express notification of his refusal of her request for an autopsy, nor provide her with reasons for that refusal. Section 27 is an important provision that should be observed.

4 Ms Bruinink appeals against the Coroner's determination that her father's death was not a reportable death. She also, in effect, appeals against the Coroner's decision, or failure to make a decision, that an autopsy of her father's body should be refused. Those appeals are brought under ss 78(1) and 79(3), both of which are limited to questions of law by s 87 of the Act.

5 Ms Bruinink considers that the Medical Certificate of Cause of Death issued by the hospital incorrectly identified the cause of her father's death. The medical certificate gave as the cause of death: (a) Aspiration pneumonia; (b) Congestive heart failure; (c) Alzheimer's disease.

6 As I have mentioned, the Coroner determined that the reported death was not a reportable death in a determination. He stated:

1. Having investigated the death, I determine that the death is not a reportable death under section 16(1) of the Coroners Act 2008 (the Act) because the death is not a reportable death described in section 4, for the following reasons -
   1. The medical records and the applicant's concerns of care were extensively reviewed by me and, at his direction, reviewed by Dr. Melanie Archer, Forensic Pathologist. It is her opinion:

This application for a Coronial investigation is being made by the deceased's daughter, and raises some complex issues. I did not find any features of the case to suggest that the cause of death is anything other than natural causes. Moreover, I did not find anything to suggest that the cause of death is anything other than natural causes. Moreover, I did not find anything to suggest that the death is due to anything other than the cause death given on the MCCD, and I did not find any features to suggest that this case is reportable to the Coroner.

The most notable circumstance from the information given is that the deceased's daughter appears to have fed the deceased against advice from the medical and allied health team looking after Mr Horvath. He was at risk of aspiration pneumonia due to dysphagia in the context of advanced dementia, and that is why it was not deemed medically safe to feed him. The deceased was eventually diagnosed with aspiration pneumonia, which led to his death. There is evidence of possible temporal association with the deceased's daughter having fed him against advice prior to the development of the terminal pneumonia. However there are no investigations that we could offer which could offer a causative link between the episode of feeding and the development of aspiration pneumonia. Even if we were to verify the presence of aspiration pneumonia, we cannot link any particular episode in the deceased's care, including that provided by his daughter.

I endorse Dr. Archer's medical opinion.

1. A Medical Certificate of Cause of Death was issued by Dr. Loo with a Cause of Death:

1(a) Aspiration pneumonia

1(b) Congestive heart failure

2 Alzheimer's disease.

1. I discontinue the investigation into the death under section 16(3) of the Act.

4. I direct that a copy of this determination be provided to the following:

a. The family of the deceased

b. the reporting person

c. Registrar of Births, Deaths and Marriages.[1]

7 Ms Bruinink does not agree with the medical certificate's statement that aspiration pneumonia was a cause of her father's death. She said that the doctor who signed that certificate was not a treating doctor. She referred to a discharge summary from Box Hill Hospital on 9 October 2020, which showed that her father had an abdominal CT, which showed an abdominal aortic aneurysm. She considers that a ruptured aneurysm was, or may have been, the cause of her father's death and may have been caused by invasive medical procedures performed on him.

8 On the day before her father's death, 9 January 2021, while she was at Maroondah Hospital visiting him, she witnessed him suddenly experiencing excruciating pain and fear, screaming 'my stomach, my stomach' in Hungarian. He was shaking violently, turning a grey or white colour before slumping. Eventually, many staff attended him and she was ushered out. She said that she knew at this point this was a fatal event, but that none of the staff would tell her what had occurred.

9 Ms Bruinink's father died at the hospital at some stage the next day, Sunday 10 January 2021. She received a phone call at 2:34pm from the hospital to say he had just passed away. I note that Ms Bruinink stated that she considers that her father may have died at an earlier time, perhaps even the day before, but I do not consider that the evidence supports that conclusion.

10 As mentioned, on 12 January 2021, Ms Bruinink contacted the Coroners Court Office and applied for her father's body to undergo an autopsy. In an attached 8 page document, she detailed her father's health and his care since about 2011. Ms Bruinink has obviously devoted much time and effort in caring for her father and brought him to Melbourne in 2013. Her document describes incidents of medical neglect and abuse of him at aged care facilities and hospitals, including lack of proper feeding and falls that he suffered. She said that her father lost at least 20 kilograms in weight. She lodged a complaint with the Aged Care Royal Commission.

11 Ms Bruinink summarised her case in submissions filed shortly before the hearing. She stated:

I am requesting an autopsy on my father's body to ascertain true cause of death which I believe is a rupture of an abdominal aortic aneurism around 6.30pm on 9/1/2021. I would like an examination of my father's brain to confirm Alzheimer's Disease Dementia conclusively as per the secondary cause of death.

I allege that the Medical Certificate of Death is incorrect and there are anomalies that need to be corrected before being accepted by the BDM Victoria. The BDM has flagged 'review the Medical Practitioner's ability to submit cause of death'.

I allege that my father died after I last saw him alive at about 8.30pm on 9/1/2021. I believe when I next time saw my father on 10/1/2021 at approximately 1.00am he had already been deceased for some time, and attached to an AIRVO oxygen therapy machine to make it appear he was still living.

I allege that my father did have invasive procedures (enemas) and this was marked as 'no' on the Medical Certificate of Death for the BDM.[2]

12 The essence of Ms Bruinink's questions of law and grounds of appeal concern the Coroner's determination that her father's death was not a reportable death. There is also a question of whether her father was a patient immediately before his death within the meaning of the Mental Health Act 2014. Ms Bruinink also referred to s 27(2) of the Act and the Coroner's duty to give written reasons for refusing to give a direction for an autopsy and believed that the Coroner 'took a much longer than expected amount of time to provide a determination and no direction was made or mentioned regarding the autopsy that was requested'.

13 Ms Bruinink seeks to overturn the determination of the Coroner that her father's death was not reportable on the basis that she witnessed a catastrophic and fatal event when he suffered excruciating pain on 9 January 2021, which was not mentioned in the Medical Certificate of Cause of Death. She says that she provided documents to the Coroner that showed that her father had an infra renal abdominal aortic aneurysm diagnosis. Ms Bruinink challenged Dr M Archer's medical opinion contending that she had not considered evidence that she provided about her father's medical treatment. She said that Dr Archer did not identify who had made the diagnosis of aspiration pneumonia.

14 Ms Bruinink strongly denounced any inference that she may have been responsible for her father's death by feeding him. It can be said immediately that that suggestion is not in any of the medical assessments before the Court.

15 Ms Bruinink considers that the Coroner did not properly consider her concerns. She also alleges that the Coroner was biased because he had given evidence to the Victorian Parliamentary Inquiry into End of Life Choices. That Inquiry preceded the legalising of euthanasia in Victoria. I should state that I do not consider that anything has been established to substantiate that allegation.

I have clearly documented for the Coroner in my request for an autopsy that my father was not palliative or at end of life, as confirmed by a palliative care nurse.

A person or persons within the Hospital System deemed my father was at the end of his life and actively denied and thwarted my right as his Medical Treatment Decision Maker. This was all about my father's treatment. The right to be informed, the right to inform diagnosis to accept or reject in my father's best interests, to ensure he received care, comfort, sustenance, regardless of the team of medical and allied health teams who based their decisions on incorrect and false notes.

17 Counsel appeared at the hearing on behalf of the Coroners Court. Although the Coroner adopted a Hardiman appearance, counsel made submissions about the scheme of the Act in order to assist the Court.

18 It was not suggested that Ms Bruinink lacked standing to make her appeal to the Court.

19 During the hearing, I raised the issue of whether Dr Archer's report properly addressed Ms Bruinink's contention that her father died from a ruptured abdominal aortic aneurysm. I accept that when dealing with questions of law, this Court should not finely scrutinise the wording of decisions and assessments made by medical practitioners. I am satisfied that the preliminary examination form of Dr Archer that was sent to the Coroner did note Ms Bruinink's contention that the cause of death was ruptured abdominal aortic aneurysm or cancer. The form appears to record that that issue was considered by Dr Archer and the Coroner.

20 Counsel for the Coroner, in essence, submitted that the Coroner did not have general power to order autopsies but only where an autopsy might assist in determining whether a death was a reportable death. This was said to be the effect of the structure and operation of Part 4 of the Act.[3] Section 25(2) states:

A Coroner must direct a medical investigator to perform an autopsy on a body under the control of the Coroner if the Coroner believes that -

(a) the autopsy is necessary to the investigation of the death; and

(b) it is appropriate to give the direction.

21 Counsel argued that the Coroner may investigate a death that is or may be a reportable death subject to certain limitations. A reportable death for relevant purposes is defined in s 4(2) relevantly to include:

a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury.[4]

22 I do not consider that any of the other parts of the definition of reportable death are applicable. Mr Horvath was not a patient within the meaning of the Mental Health Act 2014.

23 Counsel submitted that the Coroner's powers included to investigate whether a death is a reportable death (s 14(3)). The Coroner may determine that a death that has been reported as a reportable death is not a reportable death (s 16(1)). In that case, the Coroner must give written notice of the determination to the person who reported the death.

24 I was not referred to any authority as to the meaning of a reportable death or as to the meaning of the term 'unexpected death'. The Macquarie Dictionary defines the word 'unexpected' as 'unforeseen or surprising'.[5]

25 In my opinion, it was open to the Coroner to decide on the basis of Dr Archer's report that the death of Mr Horvath was not an unexpected death. The Coroner does not make an error of law if there was some evidence or some probative information supporting his decision.[6] He was an elderly man with a number of conditions, one of which was an abdominal aortic aneurysm, but another of which was aspirational pneumonia. Ms Bruinink's document provided to the Coroner included a note for 14 October 2020, when her father was in hospital, which records that she had explained to a doctor who had been seeing her father that her 'dad was very unwell, and I felt that he was dying.'

26 Ms Bruinink's notes also included that on 6 January 2021, four days before her father's death, that she was told by a doctor at the hospital that her father had pneumonia and:

that he had had a chest x-ray with the right side of his lungs worse. He has fluid overload from heart failure. They have put him on two strong antibiotics (ceftrixone? and metronidazole?) in drip. Also Lasix for heart failure/water retention. Doing blood tests. Carbon dioxide is building up, he may need a bypath(?) oxygen mask.

27 On the same day, a second doctor at the hospital told her that her father had 'bad pneumonia'. The Hospital progress notes of 8 January 2021 do record 'aspiration pneumonia with baseline advanced dementia', although they also record Ms Bruinink's disagreement with that diagnosis.

28 Death of an elderly person from a condition associated with pneumonia could not be described as unexpected. It may also be that if Mr Horvath's death was contributed to, or indeed caused by, a ruptured abdominal aortic aneurysm, then his death would also not have been considered an unexpected death. While, the Coroner did not consider that possibility, this Court does not perform the role of the Coroner, but only decides whether he made a material error of law.

29 In my opinion, the Coroner did not err in law in deciding that Mr Horvath's death was not a reportable death. His failure to order an autopsy followed from his conclusion that it was not a reportable death and was not a material error of law.

30 One of Ms Bruinink's objectives is to obtain a corrected Medical Certificate of Cause of Death. But that is not a matter within the power of the Coroner when he determines that a death is not a reportable death. The events of her father's last days were understandably very distressing to Ms Bruinink. She is concerned about the standard of medical care provided to her father and to persons in similar circumstances. That concern is to her credit because the care of elderly people is a fundamental part of their human rights, including the right to life, and the protection of their dignity. But there are other avenues, such as the Health Complaints Commission, where those concerns can be raised.

31 I am not persuaded that the Coroner erred in law in a material respect in determining that Mr Horvath's death was not a reportable death and in not ordering an autopsy. In those circumstances, it is unnecessary to determine whether other next of kin need to be notified of this proceeding.

[1] Affidavit of Lindsay Spence in Bruinink v Coroners Court of Victoria, S ECI 2021 00334, 24 February 2021, LDS 16, LDS-17 ('Spence Affidavit').

[2] Bruinink, 'Submissions', Submissions in Bruinink v Coroners Court of Victoria, S ECI 2021 00334, 26 March 2021, 3-4 ('Appellant's Submissions').

[3] Reference was made to Traynor v Spooner [2012] VSC 651, [44]-[45], [51]; Horvath v State Coroner of Victoria [2004] VSC 452, [8]; Rosenbaum v West [2014] VSC 583, [16].

[4] Coroners Act 2008 s 4(2).

[5] Macquarie Dictionary (8th ed, 2020) definition of 'unexpected', 1664.

[6] Maund v Racing Victoria Ltd [2016] VSCA 132, [67]-[69]; Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322, [14].