Appellant v Respondent

1 The appellant is the son of Mrs Audrey Farrar, who died at Myrtleford Lodge Aged Care ('Myrtleford Lodge') on 12 September 2021. The appellant has several sisters.

2 At the time of her death, Mrs Farrar was 85 years of age. She had been a resident at Myrtleford Lodge since about April 2019.

3 Mrs Farrar was diagnosed with Alzheimer's disease in late 2015 or early 2016. At some point, the appellant became her carer. There was friction between the appellant and his sisters relating to the care of their mother. In about June 2018 a limited guardian was appointed.

4 At some point, the appellant's father, Mr Alwyn Farrar, died in a different nursing home. The appellant was convinced that his father had been poisoned by unnecessary drugs. He harbours similar concerns relating to the passing of his mother. The appellant made several submissions to the Aged Care Royal Commission and Disability Royal Commission.

5 On 24 August 2021, Dr James Wei attended upon Mrs Farrar at Myrtleford Lodge. The progress notes record that Mrs Farrar may have had eight minutes of seizures.[1] Dr Wei's impressions included potential mass lesion, stroke or other pathology. The notes refer to a discussion with one of Mrs Farrar's daughters and a decision not to transfer Mrs Farrar to hospital. The plan anticipated the prospect of future seizures (in that Clonazepam drops were specified in connection with seizure activity of more than two minutes and Midazolam was specified if seizures continued for more than 10 minutes) and stated, specifically, 'not for transfer' and 'palliative/comfort measures'.

6 The notes also record that Dr Wei communicated with the guardian. Among other things, it was noted that -

In light of Audrey's advanced dementia - non-verbal, bed bound, fully dependent with all aspects of care, I have determined that CPR is futile treatment, ICU, HDU level care is futile.

Transfer to acute hospital will not advance her cause from a quality of life perspective. Surgery will not be offered to her; given her co-morbidities, unless it is for palliative reasons, ie hip surgery from a pain management perspective.[2]

Dr Wei recorded that the guardian was happy with the plan.

7 Dr Wei saw Mrs Farrar again on 7 September 2021. He noted nausea and vomiting. Mrs Farrar was treated with Maxolon.[3]

8 The following day, on 8 September 2021, at 8:49pm, a nurse noted that staff at Myrtleford Lodge had noted a decline in Mrs Farrar's health 'over the last three days'.[4]

9 The nursing notes indicate that on 9 September 2021, at about 11:57pm, the family were or were to be notified of Mrs Farrar's deterioration. At 12:20pm, it was noted that the family had been advised to come to Myrtleford Lodge to visit Mrs Farrar 'if they wished to'.[5]

10 Shortly after that, at 12:48pm, Mrs Farrar was seen and examined by Dr Simon Shute.[6] He noted that she was not eating and had minimal fluid intake. She had not vomited that day. He noted an email from the guardian, presumably concerning the plans made on 24 August 2021. In respect of management, he recorded -

dtr present - discussed appears in end stage of dementia, likely to dehydrate and pass away, goal of care is palliate any distress.

Brother attending shortly, will check if he in agreement for that.

If not can speak to him, as we cannot deny pain relief.

11 Dr Shute also noted a discussion with the appellant, as follows -

Lengthy discussion with son Douglas. He notes dad died dementia/hospital/had morphine and maxolon made him stiff. Ventilated concerns. Interested in autopsy as to why she vomited. I said I would not be requesting an autopsy. Encouraged to liaise with sister (antagonist relationship) re funeral director choice etc.

12 In the present hearing, it was not in dispute that by this time 'something serious was happening' and the death of Mrs Farrar was expected.[7]

13 As I have noted, Mrs Farrar passed away on 12 September 2021. On that day, Dr Shute certified that he had examined the body and that 'Alzheimer's dementia' had directly led to Mrs Farrar's death. In his opinion, the death was not a 'reportable death' within the meaning of the Coroners Act 2008 (Vic) (the 'Coroners Act').[8]

14 The next day, the appellant corresponded with the Coroners Court and sought to report a 'reportable death'. [9] Among other things, he stated -

I have spoken to police and a doctor at the nursing home, both suggest I contact the Coroner if I think something untoward has taken place.

There is a long history of abuse from the medical profession directed at Audrey Farrar and this has continued while she has been in this nursing home. Multiple attempts have been made to damage her, with everyone seeming to turn a blind eye if I try and point this out. Obvious examples of neglect and ignoring things going wrong have taken place. Medical treatment without consent has been a continuing theme up to the present. Medical treatment has continually damaged her and I suspect has caused her severe deterioration recently.

I am probably known to the Coroner as I have already provided some information about Audrey Farrar's treatment in 2016 at the hands of Northeast Health Wangaratta, my guess is the Coroner is familiar with the goings on in relation to this hospital and Illoura nursing home. Kevin Alwyn Edward Farrar (my father) was abused and his case at the Coroner Court was; CASE 5001/15.

Audrey Farrar's story is very long with abuse taking place for years, I can provide much information, way too much to put in this email. I have provided most of the information about the ongoing abuse (mostly real time) to the Aged Care Royal Commission and the Disability Royal Commission. These Royal Commissions can provide all this information to you or I can provide the voluminous information as well.

...

Just a few days before Mum died a staff member said Mum was happy over the weekend.

Audrey Farrar's vomiting and death was out of the ordinary and unexpected, we were told after a recent hospital visit that all tests were normal and Mum was healthy.

15 The appellant continued to correspond with the Coroners Court in relation to his concerns.[10]

16 On 14 September 2021, one of the appellant's sisters emailed the Coroners Court.[11] She said that her brother had asked for an investigation 'for no reason at all'. The email referred to events relating to the death of their father. She stated -

Now our mother passed away on Sunday also with Alzheimer's but in a different nursing home. The same is now been duplicated, that he states the nursing home had poisoned our mother also. We do not want to go through all this again with autopsy's and deal with the stress all over again. We all sisters want to bury our mother and grieve accordingly and to move on with our grieving.

17 The guardian for Mrs Farrar corresponded with the Coroners Court by email dated 23 September 2021.[12] That email referred to various aspects of history. Among other things, the guardian stated -

Audrey Farrar appears to have died from dementia related decline and her death was generally anticipated. Discussion between myself and her GP, Dr James Wei, around her care had taken place, most recently on 24th August 2021, at which time Dr Wei was clear that she was not a candidate for CPR or other assertive intervention and in the case of an event or other significant decline, her care was to be provided at Myrtleford lodge and would focus on palliation and comfort measures only.

It is my view that Doug Farrar's request to the Coroner is more consistent with his longstanding and deep mistrust of conventional medicine and care services. In this he has maintained a fixed and intense position not open to alternative theory. His explanation is rooted in a view that medical malpractice, deliberate neglect and cover up conspiracy are at the heart of what has occurred with his father, and now his mother.

18 At the request of the Coroner, Dr Melanie Archer, pathologist, undertook a 'preliminary examination' pursuant to s 23 of the Coroners Act. In that connection, she reviewed the medical certificate and medical records from Myrtleford Lodge and completed a 'preliminary examination form' dated 23 September 2021.[13]

19 Among other things, Dr Archer referred to the allegations made by the appellant concerning the death of his mother. The form also noted that while the sister wanted the inquiry undertaken by the Coroners Court to be stopped, it would be 'continued until the court is satisfied'. Ultimately, Dr Archer expressed the following opinion -

Case is not reportable

- the cause of death is appropriate, and there are no suspicious features.

- the deceased was given standard palliative drugs for explainable end stage dementia symptoms, in a manner that was well documented by the GP, and had OPA oversight.

- the deceased was treated for standard comorbidities with clear diagnostic criteria, and the drugs for these conditions do not cause dementia.

20 On the same day, Dr Archer was given access to further relevant records, in respect of which she emailed the Coroner as follows -

I have read the newly uploaded records, including nursing notes from Bentley Wood Aged Care. These records include nursing notes and correspondence with the OPA guardian. I confirm that my original advice remains unchanged, and I do not have anything to add.[14]

21 On 26 September 2021, the Coroner determined that the death of Mrs Farrar was not a 'reportable death' under the Coroners Act.[15] As a consequence of that written determination, the Coroner's investigation into the death of Mrs Farrar was formally discontinued pursuant to s 16(3) of the Coroners Act.

22 Section 4 of the Coroners Act identifies the circumstances in which a death will be considered to be a 'reportable death'. The section has several sub-sections and multiple sub-paragraphs. The appellant presently relies upon s 4(2)(a) and (b) -

(a) a death that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury; or

(b) a death that occurs -

(i) during a medical procedure; or

(ii) following a medical procedure where the death is or may be causally related to the medical procedure -

and a registered medical practitioner would not, immediately before the procedure was undertaken, have reasonably expected the death;

...

23 A Coroner must investigate a death if 'it appears to the Coroner that the death is a reportable death'.[16] That said, a Coroner may determine that a death is not a reportable death.[17]

24 Under s 78(1) of the Coroners Act, the determination of a coroner that a death is not a reportable death may be appealed, by the person who reported it, to the Trial Division of the Supreme Court. Such an appeal is 'an appeal on a question of law', which includes an appeal on the ground that the finding is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made it.[18]

25 In respect of a 'preliminary examination', s 23 of the Coroners Act provides, relevantly, that -

(1) The purpose of a preliminary examination is to assist the coroner in the performance of his or her functions in respect of a death.

(2) A coroner may provide a body to a medical investigator to enable a preliminary examination to be performed on the body.

(3) The provision of the body authorises the conduct of the preliminary examination.

26 In that connection, the appellant relied upon rule 33(1) of the Coroners Court Rules 2019, which provides -

(1) If a coroner has provided a body to a medical investigator to enable a preliminary examination to be performed on the body under section 23(2) of the Act, the medical investigator must provide a report to a coroner on the preliminary examination in accordance with this Rule.

27 By notice of appeal dated 21 October 2021, the appellant appealed to this Court under s 78 of the Coroners Act.

28 An amended notice of appeal dated 24 November 2021 identified three purported questions of law together with three associated grounds. The grounds of appeal were essentially in the nature of argument and stated, relevantly, as follows -

Grounds of appeal for question of law 1

1. The coroner erred in interpreting the meaning of the word unexpected or expected, of course every old person is expected to die, but if the law was interpreted this way then no persons would fit the criteria in this part of the law. Audrey Farrar was eating and drinking and not losing weight and was mentally similar for the last many months. I note that not one person used the word expected in the coroner's reasons. If you are stable and are not being treated for any proven medical conditions, then death is unexpected, and that is where the coroner tries to determine which organ or system failed and it may not be the obvious.

2. The weight of the evidence is that the nursing home staff did not expect Audrey Farrar to die anytime soon, or even that she would die after the recent vomiting episode. The Coroners Court has not given me access to the medical records that they based their determination on (I applied for the documents) so I spoke to the nursing home to see what the records have recorded. Based on a variety of evidence no reasonable coroner could have made the finding. The weight of the evidence is that Audrey Farrar's death was unexpected.

3. The coroner erred in the investigation into whether it was a reportable death by relying on irrelevant information. James Doran has only seen Audrey Farrar once back in 2019, my sisters have only confirmed my efforts at trying to protect my parents from dangerous drugs, and Melanie Archer has not even laid eyes on Audrey Farrar, let alone knows what examinations and testing may uncover. Melanie Archer talks about palliative drugs, but what is relevant is the circumstances leading to needing palliative drugs. The only recent medical testing took place in May 2021 in hospital and the doctor said Audrey Farrar was healthy.

4. The coroner erred in deciding that Audrey Farrar's death didn't fit the criteria for being unnatural, the weight of evidence, as I tried to point out with some examples, is that medical history shows unnatural drugs often cause damage, sometimes devastating, what can be more devastating than death? The coroner had access to as many past medical records as she wished to get proof of Audrey Farrar's susceptibility to major damage from drugs.

Grounds of appeal for question of law 2

1. The coroner erred in paragraph 9 of her determination where she stated "I note that there are no circumstances in relation to the death which would otherwise make it reportable under section 4(2) of the Act." The investigation into whether it was a reportable death is required to have regard to all the parts of section 4 of the Act.

2. There was a circumstance that is contained in the medical records and told to me by the nursing home staff that directly relates to section 4(2) (b) (ii) of the Act, and that is that a medical procedure took place and a drug was prescribed, this drug was maxolon. This death is or may be causally related to the medical procedure, as the staff told me and contained in the records, is that Audrey Farrar deteriorated over the next few days. Eating and drinking before the procedure, but soon ceasing both. As previously mentioned, in the medical history of Audrey Farrar is contained many instances where a medication damages her.

3. The coroner made an error in law by failing to consider the above medical procedure, when she should have.

Grounds of appeal for question of law 3

1. The coroner erred in making decisions about whether Audrey Farrar's death was a reportable death or not. There must be an investigation as the death fits the criteria for section 15 of the act. The coroner's form 2 determination does not appear to investigate the criteria required under section 4 (2) of the act as there is no mention of unexpected, unnatural, violent, or medical procedure, it appears to rely on irrelevant information as argued in Grounds of appeal for question of law 1 paragraph 3, the only information that may be relevant is Melanie Archer's preliminary examination report, which would apply to section 17 (b) of the act. I gave information to the coroner in my emails, with evidence, that the nursing home and I all acting as if the death was unexpected. The Coroners Court of Victoria Practice handbook describes this situation; part of page 20,21 is copied below. If the investigation is ceased under section 17 then a finding is written, and then a person may make an application under section 77 to re-open the investigation. If the coroner was only relying on the preliminary examination report then we have a problem, section 23 of the Coroners Act 2008 describes preliminary examinations and section 23 (2) (3) "(2) A coroner may provide a body to a medical investigator to enable a preliminary examination to be performed on the body. (3) The provision of the body authorises the conduct of the preliminary examination" may be important. Mum's body was never provided to the medical investigator.

29 In this connection, the appellant filed and served six affidavits affirmed 29 October, 14 November, 15 November, 23 November and 3 December 2021. Those affidavits, and their exhibits, were received together as Exhibit A.[19]

30 Collectively, the appellant's affidavits and their exhibits are extensive. Parts of the material are repetitive and argumentative; however, the events together with the appellant's concerns are clear enough. The appellant also filed and served written submissions.

31 The respondent filed and served two affidavits. The affidavits and their exhibits were also extensive. Those affidavits were received as Exhibit 1.[20] The respondent also filed and served an outline of written submissions.

32 I should note that the respondent adopted the stance referred to by the High Court in R v Australian Broadcasting Tribunal & Ors; Ex parte Hardiman.[21] It can be difficult for a party in the position of the respondent to adopt that position without becoming invested in the debate, particularly when appearing.[22] In my view, the balanced and helpful approach of the present respondent, and counsel who appeared on its behalf, are to be commended.

33 Finally, I should note that the appeal was, in substance, given an expedited hearing. It was noted that Mrs Farrar's body 'should be preserved until the final determination of the appeal'.[23]

D Ground 1: 'unexpected', 'unnatural' and 'irrelevant' information

(a) the words 'unexpected' and 'unnatural' did not appear in the Coroner's reasons and so, it was essentially said, the Coroner had failed properly to take account of the definition of 'reportable death' stated in s 4(2)(a);

(b) in that regard, the death of Mrs Farrar was 'unexpected' and 'unnatural', at least from the perspective of the appellant and also, it was said, the perspective of the staff at Myrtleford Lodge;

(c) the Coroner had taken irrelevant considerations into account when considering the email from the appellant's sister, the email from the guardian and the 'preliminary examination' form of Dr Archer.

35 In connection with the above, the appellant surveyed various aspects of the history relating to his mother. In broad terms, that included reference to the onset of Mrs Farrar's symptoms of Alzheimer's disease in about 2012, her having undergone hip surgery in 2016 (which the appellant seems to have considered to have been unnecessary, at least at one point), the appellant's observations concerning his mother's condition after the administration of medications at various times (which he described as 'side effects'), her visit to hospital in May 2021 and his observations at various times concerning her morning spasms or seizures, loss of taste, toenails, hot skin, mouth movements, problems with balance, nappy rash, urinary tract infection, swelling, bruising, a red eye or eyes and teeth. In the course of that survey, the appellant also referred to particular observations concerning his father. In respect of his observations concerning his mother, the appellant emphasised that he knew her very well.

36 A particular focus of the appellant's submissions concerned how rare it was for Mrs Farrar to vomit. He noted that Mrs Farrar had vomited after having takeaway with his sisters, which seems to have made him suspicious. She also vomited in 2016 after she had taken Maxolon. She vomited again in April 2021 after having a vaccination for COVID-19, although the appellant had 'no idea' whether that had been as a consequence of the vaccine. In the appellant's 'non-expert opinion', vomiting in his mother was caused by external sources and he considered it to be 'unexpected' that his mother would vomit.[24]

37 The appellant then sought to link the history to which I have referred, together with the rarity of vomiting, to events more proximate to Mrs Farrar's death. In that regard, he referred to -

(a) the statement of a hospital doctor in May 2021 that his mother was 'healthy';

(b) the notes of Dr Wei on 24 August 2021 which, he contended, did not suggest that death was expected;

(c) the record of Mrs Farrar vomiting on 7 September 2021 and the administration of Maxolon; and

(d) the COVID-19 visiting rules, which, he said, restricted visits to nursing homes in ordinary circumstances, but not if death was expected.

38 The appellant contended that prior to 9 September 2021 the staff at Myrtleford Lodge could not have expected that his mother would deteriorate or die. In that connection, the appellant confirmed that his mother's deterioration and later death was unexpected by him.

39 In addition to the above, the appellant said that it was his view that death in persons with dementia or Alzheimer's disease is usually caused by 'something else'.[25] In respect of any suggestion to the contrary, the appellant seemed to intimate that Dr Archer had not been provided with a full record. As I have also noted, the appellant contended that the emails from his sister and the guardian (Mr Doran) were irrelevant.

40 In this overall context, the appellant essentially submitted that it was 'unexpected' and 'unnatural' that his mother could have deteriorated and later died. He plainly regards the circumstances as both 'reportable' and requiring of coronial investigation.

41 Most or all of the aspects of the overall history to which I have referred were before Dr Archer and, in turn, the Coroner.

42 In respect of Dr Archer, it is evident from the terms of her 'preliminary examination' form[26] that, among other things, she appreciated that -

(a) Mrs Farrar had been in Myrtleford Lodge, suffered a seizure on 24 August 2021 and been under palliation 'for end stage dementia';

(b) the appellant considered that Mrs Farrar had been abused by the medical profession and that her death was suspicious;

(c) Mrs Farrar had vomited on 7 September 2021 and the appellant had wanted an autopsy to see why she vomited; and

(d) the appellant had also been of the view that Mrs Farrar was poisoned by drugs given at the end of her life.

43 For the reasons which she gave, Dr Archer did not consider the death of Mrs Farrar to be 'reportable'. Upon her review of the extensive body of material, the cause of death was 'appropriate' and there were 'no suspicious features'.

44 In my view, Dr Archer was provided with a body of material that was quite sufficient in order for her to form her opinions. She was provided with an initial tranche of material; prepared and provided her 'preliminary examination' form; was provided with a further tranche of material, which she read; and she then confirmed that her advice was unchanged.

45 I do not accept that Dr Archer's form and opinions were irrelevant - either at all or because she did not examine the body. That issue is considered further below in connection with ground 3. In any event, Dr Archer was evidently qualified to examine the considerable body of medical and other material provided and had been requested by the Coroner to do so. Her evaluation of that material was plainly relevant to the Coroner's task, whether or not she examined the body.

46 Finally, although Dr Archer's 'preliminary examination' form did not use the terms 'unexpected' or 'unusual', that seems to me to have been the essential substance of what she was considering. If a death was 'suspicious', the likelihood is that it would answer the description of being 'unexpected' or 'unnatural' or both.[27]

47 In respect of the Coroner, it is evident from her written determination that, among other things -

(a) she approached the correct question - namely, whether the death was a 'reportable death';

(b) in that regard, she referred, correctly, to s 4(2) of the Coroners Act;

(c) she had before her the written complaints of the appellant, including submissions made by him to the Disability Royal Commission and Aged Care Royal Commission;

(d) she understood that the appellant had alleged that his mother had been poisoned and the victim of medical mismanagement over a number of years;

(e) she had also reviewed the medical certificate of Dr Shute, the records from Myrtleford Lodge and the report of Dr Archer;

(f) in the circumstances, she did not consider the death to be 'reportable'.

48 I do not accept that the Coroner overlooked s 4(2)(a) or (b) of the Coroners Act. It is evident from the terms of her written determination - particularly the use of the word 'otherwise' - that she must have given consideration to whether, in the circumstances, any part of s 4(2) could apply.[28] That necessarily included considering whether the death was 'unexpected', 'unnatural' or, for that matter, potentially causally related to a 'medical procedure'.

49 Further, those concepts had to be at the heart of any consideration of the circumstances in the present case, having regard to the circumstances in which Mrs Farrar had died and the nature of the claims made by the appellant (both of which, as I have indicated, were referred to and apparently understood by the Coroner).

50 In this connection, I do not consider that the Coroner approached the issue from the wrong perspective. In argument, the appellant sought to emphasise that Mrs Farrar's deterioration was unexpected to him and, inferentially, to the staff of Myrtleford Lodge. However, s 15(b) of the Coroners Act directs attention to that which 'appears to the coroner'. It is apparent that the Coroner correctly approached the issue from that perspective.

51 I also do not accept that the Coroner was, in the circumstances, compelled to find that the death was 'reportable' within any meaning of s 4(2). There was evidence that supported her finding, particularly -

(a) the medical certificate of Dr Shute - specifically, the opinion that the death was not 'reportable'; and

(b) the preliminary examination form of Dr Archer - also, specifically, the opinion that the death was not 'reportable'.

52 Dr Shute's medical certificate identified the condition leading to death as 'Alzheimer's dementia'[29]. That is consistent with his earlier notation, upon examination of Mrs Farrar on 9 September 2021, to the effect that she 'appears in end stage dementia, likely to dehydrate and pass away'.[30]

53 Dr Archer, in turn, referred to the medical certificate of Dr Shute, 'Alzheimer's dementia' and 'end stage dementia'.[31]

54 Those elements of the evidence - to which the Coroner directly or indirectly referred in her written determination - support a conclusion that in the present instance it was open to find that the cause of death was 'Alzheimer's dementia'. While it is apparent that the appellant believes that persons with Alzheimer's disease usually fall to other causes, there was no expert medical evidence to that effect before the Coroner and, in respect to Mrs Farrar, there was in fact medical evidence that was implicitly to the contrary.

55 In respect of the related issue of 'deterioration', it is evident that Dr Archer referred to Mrs Farrar's seizure on 24 August 2021 and the dealings between Dr Wei and the guardian, including the references to palliation and the futility of assertive treatments. This does not suggest that the risk of Mrs Farrar deteriorating and dying shortly after 24 August 2021 was entirely to be unexpected, at least by the guardian and treating medical practitioner.

56 Indeed, that the risk of deterioration and death was evident from 24 August 2021 was made quite clear in the email of the guardian, in which he referred to discussion with Dr Wei on 24 August 2021 and stated that 'Audrey Farrar appears to have died from dementia related decline and her death was generally anticipated'.[32] For obvious reasons, the contention of the appellant that the email of the guardian was irrelevant cannot be accepted.

57 Notwithstanding the above, the appellant submitted that, as far as he was concerned, Mrs Farrar had not deteriorated significantly (except for the seizures[33]) in the eight or nine months prior to 9 September 2021. He also said that that was when there was a 'big deterioration' and palliation started. In that connection, the appellant also called upon the fact that the visiting rules were not relaxed in respect of Mrs Farrar until 9 September 2021.[34]

58 Further, the appellant submitted that there was really no difference between what Dr Wei determined on 24 August 2021 and the instructions given by the family upon Mrs Farrar's entry into Myrtleford Lodge in early 2019 to the effect that she was not to be admitted to ICU or given CPR and the like to keep her alive.[35]

59 In respect of this latter submission, I do not accept that there was essentially no qualitative difference between the family's instruction upon Mrs Farrar's admission to Myrtleford Lodge in about April 2019 and the determinations made and plans formulated by Dr Wei on 24 August 2021.

60 There is no suggestion that in April 2019 there was any real risk of proximate deterioration in Mrs Farrar that could lead to death. Further, the form relied upon by the appellant shows that, at that time, the limitations on treatment were confined to CPR, admission to ICU and artificial nutrition. At the same time, the written instruction was to continue with measures such as antibiotics, blood transfusions, nutrition and pain relief. It is not evident that, at that time, there was any real risk that any form of treatment could be considered to be 'futile'.

61 By contrast, on 24 August 2021 Mrs Farrar had had the seizure incident of up to eight minutes and Dr Wei had an impression of potentially serious causes such as mass lesion or stroke. It also seems to have been contemplated that there could be further such seizures (for which Clonazapam drops and Midazolam were planned) and, indeed, the plan referred specifically to 'palliative/comfort measures'.[36] It was in that context that Dr Wei evidently determined - after discussion with the guardian - that various forms of treatment were 'futile'.

62 In my view, the notes of Dr Wei's attendance and assessments on 24 August 2021, together with his dealings with the guardian at that time, suggest that there was then an emerging prospect and risk of death and an associated need for palliation, even if it could not then be said with precision when death might likely occur. As I have noted, that assessment is consistent with the email of the guardian which refers to death having been 'anticipated' from that time.

63 Further, and as the appellant acknowledged in argument, at that point the 'futile' treatment seems to have included going to hospital for any reason, not just ICU and more 'assertive' responses.[37]

64 In any event, much of the present debate might be thought to be best considered by reference to the distinction between the presence or not of a significant risk of deterioration leading to death and whether such a deterioration has in fact occurred. The appellant's essential point is that, for the reasons that he identified, the latter did not occur until 9 September 2021.

65 Even if that be accepted,[38] however, that does not seem to me to be conclusive of the question whether the subsequent death could properly be considered to be 'unexpected' or 'unnatural'. That is because death will not be unexpected or unnatural if, in the circumstances, a prior risk or prospect of deterioration leading to such death is evident. It is the quality of that risk or prospect, if any, which will bear upon whether the subsequent death is later to be viewed as having been 'unexpected' or 'unnatural'.

66 In this context, while the appellant plainly has his views concerning any progression in Mrs Farrar's condition prior to 9 September 2021 as well as the onset of deterioration in her condition from that time, those views could not be conclusive of the question to be considered and determined by the Coroner on the whole of the evidence.

67 On the whole of the evidence, it seems to me to have been quite open to the Coroner to conclude, as she did, that the death was not 'reportable' in any meaning of s 4(2) of the Coroners Act. In that regard, I am conscious of at least the following facts and circumstances -

(a) Mrs Farrar suffered with symptoms of Alzheimer's dementia for some years;

(b) Alzheimer's dementia is both serious and notoriously progressive;[39]

(c) in this connection, a limited guardian had been appointed;

(d) Mrs Farrar had been in Myrtleford Lodge since about April 2019;

(e) by August 2021, she was 85 years of age, and her Alzheimer's dementia was medically assessed to be 'advanced' (among other things, she was non-mobile, non-verbal and required full assistance);

(f) in that regard, on 24 August 2021 she had had an episode of seizures and was plainly anticipated to have further episodes and Dr Wei and the guardian discussed the futility of assertive treatments and anticipated a need for palliation and agreed upon a plan to that effect;

(g) consistently with that assessment, about a fortnight later Mrs Farrar's condition deteriorated and at that point her dementia was identified by Dr Shute to be 'end stage' and it could then be and essentially was determined that death was imminent and the family were advised accordingly;

(h) death followed, on 12 September 2021;

(i) Dr Shute certified Alzheimer's dementia to have been the direct cause of death and that the death was not reportable; and

(j) Dr Archer reviewed the extensive relevant records - including the complaints made by the appellant - and essentially agreed with the assessment of Dr Shute.

68 In such a context, as I have indicated, it was well open to the Coroner to conclude, as she implicitly did, that the death of Mrs Farrar was not unexpected or unnatural (or, for that matter, a consequence of any 'medical procedure').

69 In respect of the further and specific issue of vomiting on 7 September 2021, it is evident that the appellant's views about his mother's deterioration and the potential significance of her having vomited and the administration of Maxolon were raised with Dr Shute on 9 September 2021.[40] Having regard to his rejection of the appellant's 'interest' in an autopsy and later certification of the cause of death, Dr Shute's opinion plainly was that neither the vomiting nor the administration of Maxolon were of any causal significance.

70 Dr Archer was pretty clearly of the same view, as she referred to the appellant's claims concerning 'drugs' and 'vomiting', considered the cause of death to be 'appropriate' and did not consider there to have been any 'suspicious features'.[41]

71 In any event, as I have earlier noted, the nursing notes tend to suggest that Mrs Farrar's deterioration preceded the incident of vomiting and the administration of Maxolon on 7 September 2021.[42]

72 In the context described, I also do not accept that the Coroner's reference to the email of the appellant's sister was irrelevant. It is evident from the medical and other records - which the Coroner reviewed - that Mrs Farrar's daughter or daughters were notified of the decision made on 24 August 2021 and also of Mrs Farrar's deterioration on 9 September. In that context, it is of significance that, in her email, the appellant's sister plainly spoke on behalf of all of the daughters and had a view quite different to that of her brother.

73 In that sense, just like the email of the guardian, the email of the sister went, directly or indirectly, to the relevant issues of risk of deterioration and anticipation of death. Neither email was irrelevant. Indeed, in my view, both amounted to further evidence in support of the finding made by the Coroner.

74 In the circumstances described, whatever might be said about the appellant's various observations and concerns about his mother's treatment, deterioration and death, it is evident that the substance of those matters were conveyed to both Dr Archer and the Coroner and taken into account. It did not follow from the appellant's expressions of concern that the death was 'reportable'. That depended upon what 'appeared' to the Coroner on the whole of the evidence. There was, as I have indicated, ample evidence in support of the determination of the Coroner that the death was not 'reportable'. In this context, there could be no suggestion that the Coroner's finding is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made it.[43]

75 Finally, I am conscious that, in his claims to the Coroner, the appellant swerves into the territory of claiming that there was a 'cover up' by Myrtleford Lodge, or the medical practitioners involved, or perhaps both. In that, he claims that 'medical records and the word of the medical profession' are 'not a true representation of the facts and are written by bad apples in the profession'.[44]

76 The simple answer to that accusation is that Dr Archer and the Coroner - who each had no apparent connection to any of the medical or other practitioners involved - were both aware of the appellant's concerns, and each undertook a review of the considerable body of relevant records. Having regard to the volume of that material and the number of different people who seem to have been involved over a considerable period of time, it is significant that neither Dr Archer nor the Coroner could apparently find anything at all untoward. It is overwhelmingly likely that there was both no 'cover up' and nothing untoward.

78 In argument, this ground was in substance directed to s 4(2)(b) of the Coroners Act and the contention that the administration of Maxolon on 7 September 2021 amounted to a 'medical procedure' that may be causally linked with the death. The appellant submitted that the Coroner had not or not properly taken that sub-section into account.

79 As I have indicated, I do not accept either that the Coroner overlooked any part of the definition of 'reportable death' or the relevant circumstances relating to the passing of Mrs Farrar.

80 Moreover, while the position advanced by the appellant tended to suggest that all he had to show was that a 'medical procedure' 'may have' caused the death of his mother, that submission took little or no account of the further statutory requirement that prior to the 'medical procedure' the death must not have been within the reasonable expectation of a medical practitioner.

81 In that regard, assuming that the administration of Maxolon is a 'medical procedure', the only medical opinions before the Coroner did not support the view that the administration of Maxolon or any other 'medical procedure' may have caused the death of Mrs Farrar. As I have noted, the assessments of both Dr Shute and Dr Archer suggest, implicitly, that the administration of Maxolon on 7 September 2021 was causally irrelevant to Mrs Farrar's deterioration and death.

83 In respect of this ground, the appellant pointed to s 23(1), (2) and (3) of the Coroners Act and rule 33 of the Coroners Court Rules (quoted above at [25]-[26]).

84 In that connection, the appellant contended, in effect, that the Coroner erred in considering that Dr Archer had conducted a proper 'preliminary examination' because, to the appellant's knowledge, Mrs Farrar's body had not been provided to Dr Archer.

85 Section 23 does not require that a 'preliminary examination' involve an examination of the body. So much is implicit in the form of the sequence of sub-sections to which the appellant referred and the rule to which the appellant referred does not require otherwise.

86 In any event, s 3(1) of the Coroners Act defines 'preliminary examination' to mean any of several identified 'procedures', including -

(b) the collection and review of information, including personal and health information relating to the deceased person or the death of the person.

87 It follows that while a 'preliminary examination' may involve the examination of the body, it may also comprise the collection and review of information relating to the death (or both).

88 The latter amply describes the 'procedure' undertaken by Dr Archer in the present instance and, as I have noted, she completed the 'preliminary examination' form and provided it to the Coroner as requested.

90 For these reasons, none of the appellant's grounds are made out and the appeal must be dismissed.

[1] Affidavit and exhibits of Natalie Savva sworn 22 November 2021 ('NS-1'); p 73-76 of 317.

[4] Affidavit of Douglas Edward Farrar, 23 November 2021 ('DEF-5'); p 30 of 42.

[7] T5. See also T37, where the appellant stated that 'once she deteriorated' even he expected his mother to die.

[9] Affidavit of Douglas Edward Farrar, 29 October 2021 ('DEF-1'); pp 12-14 of 39.

[14] Affidavit and exhibits of Nicole Savva sworn 2 December 2021 ('NS-2') (p 4 of 5).

[16] Coroners Act, s 15(b).

[17] Coroners Act, s 16(1).

[18] Coroners Act, ss 87(1) & (1A).

[19] As I have indicated, Exhibit A comprises six affidavits of Douglas Edward Farrar, together with their exhibits. The first affidavit together with exhibits is affirmed 29 October 2021 (39 pages in total), the second is affirmed 14 November 2021 (56 pages), the third is also affirmed 14 November 2021 (39 pages), the fourth is affirmed 15 November 2021 (33 pages), the fifth is affirmed 23 November 2021 (42 pages) and the sixth is affirmed 3 December 2021 (7 pages).

[20] Exhibit B comprised the affidavits and exhibits of Natalie Savva affirmed 22 November 2021 (317 pages) and 2 December 2021 (5 pages).

[21] [1980] HCA 13; (1980) 144 CLR 13.

[22] Both the authorities and learned academic writings in the area tend to show that real difficulties can arise from time to time.

[27] Cf., Bruinink v County Court of Victoria [2021] VSC 159, [24].

[35] T89-90. See, NS-1 (n.1); p 31 of 317.

[38] In my view, having regard to the nursing note of 8 September 2021, it would be open to find that, in fact, such deterioration preceded 9 September 2021 by at least three days (Cf., DEF-5 (n.4); p 30 of 42).

[39] Or, as the appellant put it, people 'start off with very mild symptoms which you don't really notice, and then they get worse and worse': T7.

[43] Coroners Act, s 87(1A).