HUMAN RIGHTS - Statutory Interpretation - victim for purposes of ss 40B, 40C Human Rights Act, only person whose right is infringed - granddaughters of victim are not victims themselves

STATUTORY INTERPRETATION - deceased death preceded in time by negligent medical procedure - when Court can make order directing coroner to conduct hearing into death: s 91 Coroners Act 1997 (ACT) - whether in the interests of justice - where no evidence negligence was cause of death

JURISDICTION PRACTICE AND PROCEDURE - whether ACT executive capable of being made a party to proceedings - where executive conferred power by legislation and Court is asked to make rules in relation to the exercise of power

JURISDICTION PRACTICE AND PROCEDURE - whether Court can order appointment of board of inquiry: s 5 Inquiries Act 1991 (ACT) - whether Court can order statutory discretion to be exercised in a particular way - mandatory injunction: s 24 Court Procedures Act 2004 (ACT)

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 36

Coroners Act 1997 (ACT), ss 13, 34, 34A, 52, 64, 91, 92, 93; Pt 8

Court Procedures Act 2004 (ACT), s 24

Inquiries Act 1991 (ACT), s 5

Human Rights Act 2004 (ACT), ss 10, 40, 40B, 40C

Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1

1. the application in proceeding by the plaintiffs dated 26 September 2012 be dismissed with costs.

1. There are before the Court applications by both sides in this proceeding, which was commenced by Originating Application on 6 March 2012. The application sought certain declarations under the Human Rights Act 2004 (ACT) of breach of rights of the deceased; and orders for the appointment of a board of inquiry under the Inquiries Act 1991 (ACT).

2. The proceeding arises out of the death of Lima Ray Thatcher at the Canberra Hospital on 8 March 2011. In the Originating Application, the present plaintiffs and the executrix of the estate of the deceased were named as plaintiffs. On 13 April 2012, Higgins CJ ordered by consent that the executrix be removed as a party, and gave leave for the filing of an Amended Originating Application. That document was filed in May 2012. This application additionally sought an order under the Coroners Act 1997 (ACT).

3. In July 2012, the defendant applied for an order that the proceeding be dismissed or stayed.

4. In September 2012, the plaintiff applied for leave to join the Australian Capital Territory Executive and the Australian Capital Territory Coroner as defendants, and for leave to further amend the Originating Application. The application sought to amend the wording of the existing grounds and orders, and in addition sought a direction to the proposed third defendant "the coroner for the Australian Capital Territory" to conduct a hearing into the death of the deceased.

5. Prior to the hearing of the applications the lawyers for the plaintiffs accepted that it was inappropriate for the Australian Capital Territory Coroner to be named as a defendant, there being no such officeholder, and instead sought leave to add as a defendant Peter Geoffrey Dingwall, a Magistrate and Coroner for the Territory.

6. Both the application to further amend dated September 2012 and the defendant's application for dismissal of July 2012 remain to be determined.

7. The deceased was born on 30 April 1924 and was 86 at the date of her death. She had been a resident at an aged care facility at Yass, New South Wales. She fell at the facility and was admitted to Yass Hospital, from which on 26 February 2011 she was transferred to the Canberra Hospital. She had suffered a fracture to the neck of the right femur.

8. The deceased suffered from dementia and was incapable of making decisions. One of her daughters, who lived in Canberra, held an enduring power of attorney to act on her behalf, and gave consent to the hospital to carry out surgery to replace the fractured hip. Whilst the consent form is not in evidence, it appears that the daughter of the deceased did not sign it, but rather gave consent over the telephone to a hospital staff member who completed the consent form. The form was completed incorrectly, stating that the fracture was to the left and not the right femur. The staff member who completed the form was apparently an orthopaedic registrar, that is a medical practitioner employed by the hospital. Other documentation on the hospital file before surgery correctly identified the fracture as to the right femur, including a referral letter from the general practitioner for the deceased in Yass; a triage and observation form; the admission form; notes by the admitting orthopaedic registrar in the Emergency Department; and a neurovascular observation chart.

9. It appears that the surgeon who performed the operation on the deceased, Dr Burns, looked at the consent form only, and not at the other file documentation. He proceeded to operate on the left hip of the deceased rather than the right hip. Unnecessarily and in error, the surgeon carried out a replacement operation to the left hip. During the course of the surgery the mistake was realised, and the surgeon then operated on the right hip, carrying out a hip replacement, under the same anaesthetic. The total duration of the operative procedure was about three and a half hours, apparently more than twice as long as it should have been if the right hip only had been replaced.

10. Before proceeding to operate on the right hip, Dr Burns made contact with the daughter of the deceased. She was told what had happened, and, it is said, gave her consent to proceed with surgery on the right hip.

11. On 1 March 2011, two days after the operation, the hospital arranged a meeting with the daughter of the deceased and other family members including one of the present plaintiffs. The meeting was also attended by Dr Burns and by Dr Ashman, Director of Surgery of the hospital. The meeting was chaired by the Director, Operational Support, Quality and Safety Unit at the hospital. The family members were, as one would expect, shocked about what had happened and also it seems, by the fact that they had not been told when the operation would be performed, and were unaware that it was in progress until Dr Burns telephoned to tell them what had happened and to seek consent to continue the operation on the correct side.

12. Dr Burns told the family that the surgery had been successful, and without complications. He told them that the deceased by the time of the meeting had what he described as a decreased loss of consciousness, common in elderly people following surgery, and that this might last for some weeks. She had a number of conditions including hypertension, diabetes, dementia and cardiac problems. He told them that even without those conditions and if the mistake about the wrong hip had not been made, there was a 50% chance that she would not have been alive after twelve months, because elderly people did not tolerate major stresses. The family confirmed that they did not wish active resuscitation measures to be taken if the condition of the deceased deteriorated.

13. The deceased died on 8 March 2011, nine days after the operation.

14. The death of the deceased was reported to police. A police report was prepared, referring to the surgical procedure which had been carried out and recording her post-surgical progress. The death was apparently reported to police by a doctor at the hospital who felt that she was not able to give a certificate about the cause of death. The body of the deceased was taken to the Kingston Forensic Centre, where, some days later, Dr Sanjiv Jain, pathologist, performed an autopsy. A copy of the autopsy report is in evidence. Dr Jain was aware of the history of the error which occurred during the operation. He noted that on 5 March, three days before she died, the deceased had been found to be suffering from pneumonia. He found in the course of the autopsy the following:

(a) 80-90% stenosis of coronary artery lumen related to calcific atherosclerosis of the right coronary artery and left anterior descending coronary artery.

(c) Mitral valve calcific annular ring with retraction of posterior leaflet resulting in mitral regurgitation and left atrial dilatation.

15. Dr Jain expressed the opinion that death had been caused by ischaemic heart disease and probably contributed to by mitral valve regurgitation. He reported to the coroner accordingly.

16. Magistrate P G Dingwall was the coroner for the purposes of an inquest into the death. Section 13 of the Coroners Act 1997 provides that a coroner must hold an inquest into the manner and cause of death of a person who died where a doctor has not given a certificate about the cause of death.

17. Section 34 of the Act provides that a coroner may conduct a hearing for an inquest. Section 34A provides that a coroner may decide not to conduct a hearing into a death if satisfied that the manner and cause of death are sufficiently disclosed and that a hearing is unnecessary. A coroner deciding not to conduct a hearing must notify the family of the deceased of the decision. Magistrate Dingwall expressed himself to be satisfied that the manner and cause of death were sufficiently disclosed by Dr Jain's report, and that a hearing was unnecessary. He accordingly decided not to conduct a hearing into the death of the deceased, and notified the family of this.

18. Section 52 of the Act requires a coroner holding an inquest to find the identity of the deceased, the time and place or death and the manner and cause of death. Magistrate Dingwall made and published his findings on 4 November 2011. He found that the deceased died at the Canberra Hospital on 8 March 2011 and that the manner and cause of death was ischaemic heart disease and probably contributed to by mitral valve regurgitation, the cause of death established by the post-mortem examination. He noted that police officers conducting investigations on his behalf had reported that no suspicious circumstances had been disclosed by the enquiries.

19. At the time of publication of the reasons, s 52 of the Coroners Act provided that a coroner may comment on any matter concerned with the death, including public health and safety or the administration of justice. The coroner did not make any such comments. The Act was amended the following month to require a coroner to state whether a matter of public safety had been found to arise in connection with an inquest, and if it had, to comment upon it. No such obligation existed at the time of Magistrate Dingwall's findings and report.

20. Section 64 of the Act provides for reconsideration of certain decisions. Where a coroner makes a decision to dispense with a hearing, the section provides that on application by a person requesting reconsideration of the decision, the Chief Coroner, if satisfied that the person has sufficient interest in the inquest, must request the coroner to reconsider the decision. Such an application must be in writing setting out the grounds relied on. No such application was made in this matter.

21. The Act gives jurisdiction to this Court in certain circumstances. The provisions are contained in Part 8 of the Act. The relevant sections are as follows:

The Supreme Court may, on application by a person, if it is of the opinion that it would be in the interests of justice to do so, make an order directing a coroner to conduct a hearing into a death or fire.

1. Supreme Court - Power to order inquest or inquiry

(1) The Supreme Court may make an order directing a coroner to conduct a hearing into a death or fire if, on an application made by or under the authority of the Attorney-General or by anyone else it is satisfied that -

(a) a coroner does not intend to conduct a hearing into a death or fire; and

(b) it is in the public interest or the interest of justice that a hearing into a death or fire should be conducted.

(2) If an application is made under subsection (1) by a person (other than the Attorney General or someone acting under the Attorney- General's authority), the application must be served on the Attorney-General.

(3) The Attorney-General may appear on the hearing of any application under subsection (1).

1. Supreme Court - Power to quash, or order fresh, inquest or inquiry

(1) If -

(a) an inquest into the cause of the death of a person, or an inquiry into the cause of a fire or disaster, has been held; and

(b) the Supreme Court, on an application made by or under the authority of the Attorney-General or by anyone else is satisfied that, because of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, discovery of new facts or evidence or otherwise, it is necessary or desirable in the public interest or the interests of justice that the inquest or inquiry be quashed and that another inquest or inquiry be held;

the Supreme Court may order that the inquest or inquiry be quashed and another inquest or inquiry be held into the death, fire or disaster.

(2) If an application is made under subsection (1) but a person (other than the Attorney-General or someone acting under the Attorney-General's authority), the application must be served on the Attorney-General.

(3) The Attorney-General may appear on the hearing of any application under subsection (1).

The applications

22. It seems to me that the preferable approach to the present applications is to assume, for the purposes of the application by the defendant, that the Originating Application will be amended as sought by the plaintiffs.

23. The relief sought in the Further Amended Originating Application is as follows:

(1) A declaration or order pursuant to s 40C of the Human Rights Act 2004 (HRA) that the rights conferred by s 10 of the HRA on Lima Thatcher (the deceased) were breached by the first defendant.

(2) A declaration or order that the deceased was treated in an inhumane and/or degrading way and/or was subjected to medical treatment without her consent in contravention of s 10(1) and 10(2) of the HRA.

(3) A declaration under s 40C of the HRA that the first defendant breached the rights of the deceased pursuant at s 10(1)(b) and 10(2) of the HRA.

(4) An order under s 40C of the HRA or in the alternative an order pursuant to the Court's inherent jurisdiction that the second defendant appoint a board of inquiry pursuant to s 5 of the Inquiries Act 1991 to consider why and how the deceased was treated and subjected to medical treatment by the defendant.

(5) An order directing the third defendant to conduct a hearing into the death of the deceased pursuant to s 92 of the Coroners Act 1997.

(6) In the alternative, an order pursuant to s 91 of the Coroners Act 1997 directing the third defendant to conduct a hearing into the death of the deceased because it is in the interests of justice to do so.

(7) Any other orders that the Court considers appropriate in the interests of justice.

(8) The defendants pay the plaintiff's costs of and incidental to this application.

24. The Territory is the first defendant. The proposed second defendant is the Australian Capital Territory Executive, and the proposed third defendant is Mr Dingwall.

25. The grounds for the application, set out in the draft Further Amended Originating Application, include the following:

The deceased's treatment and care while a public patient at the Canberra Hospital raises issues and questions regarding the provision of public health care in the Territory at the Canberra Hospital. It is in the public interest for an independent board of inquiry to be appointed to inquire into those issues and questions so as to prevent a similar occurrence in the future. As a consequence of the death of the deceased, concerns over patient safety must be answered.

26. Relevant sections of the Human Rights Act 2004 are as follows:

10 Protection from torture and cruel, inhuman or degrading treatment etc

(b) treated or punished in a cruel, inhuman or degrading way.

(2) No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.

[There can be little argument that the deceased was subjected to medical treatment, being the surgical replacement of the left hip, without her free consent.]

40B Public authorities must act consistently with human rights

(1) It is unlawful for a public authority -

(a) To act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

...

40C Legal proceedings in relation to public authority actions

(1) This section applies if a person -

(a) claims that a public authority has acted in contravention of s 40B; and

(b) alleges that the person is or would be a victim of the contravention.

(2) The person may -

(a) start a proceeding in the Supreme Court against the public authority; or

(b) rely on the person's rights under this Act in other legal proceedings.

(3) A proceeding under subsection (2)(a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

(5) This section does not affect -

(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or

(b) a right a person has to damages (apart from this section)

27. These proceedings were commenced with three plaintiffs, the first being the executrix of the deceased and one of her daughters (Ms Poidevin). She is no longer a plaintiff. The remaining plaintiffs are granddaughters of the deceased.

28. It is not entirely clear that a breach of s 10 of the Human Rights Act is pleaded against a public authority. Public Authority is defined in s 40 of the Human Rights Act. It seems plain that the Canberra Hospital is a public authority for the purposes of the Act. It is not a legal entity, and the Territory, it seems to me, is the appropriate defendant for an action against the Canberra Hospital as a public authority. However, it is not clear from the facts asserted in the grounds of application within the draft Further Amended Originating Application that it is alleged that it was the hospital which subjected the deceased to medical treatment without her consent. It appears that the surgeon and the anaesthetist were visiting medial officers, that is private practitioners with a right to perform surgery at the hospital. The surgeon, Dr Burns, frankly conceded during the conference with the family that he had "made a massive error and was ultimately responsible". An orthopaedic registrar who would have been an employee of the hospital had made a mistake filling a form out, but he did not subject the deceased to medical treatment. The deceased was treated medically by Dr Burns. It is not alleged that the Territory is vicariously liable for a breach of s 10 of the Human Rights Act by Dr Burns, or that Dr Burns is caught by the Act.

29. Additionally, whilst it is asserted in the grounds that the continuing plaintiffs (the granddaughters) are victims of the contravention of s 40B of the Human Rights Act, it seems to me that this assertion is misconceived. The victim of a contravention of s 40B, it seems to me, can only be the person whose human right is infringed. The deceased, if she were alive, would be a victim. There is an argument that following her death, her executrix has a right to bring an action on behalf of her estate, based upon her status as a victim at the time of her death. But it does not seem to me that the granddaughters can be victims for the purposes of s 40C. They cannot succeed in that part of the proceeding which seeks relief pursuant to s 40C of the Human Rights Act.

30. This brings me to the relief sought under the Coroners Act. The jurisdiction of this Court to make orders under ss 91, 92 and 93 is not dependent on the applicant for relief having any particular relationship to the deceased. There is no reason why, in an appropriate case, a granddaughter of a deceased person could not succeed in such an application. The difficulty, however, is that there is no causative link pleaded between the negligence of Dr Burns in replacing the wrong hip and the death of the deceased. Nor is there any evidence that the negligence was a cause of the death. Certainly there was no such evidence before the coroner, who, it seems to me, did what he was required by the Act to do. He considered the material before him, including the information and evidence about the negligent surgery. He was satisfied that the manner and cause of death were sufficiently disclosed by the information available to him, and that a hearing was unnecessary. He made findings as to when and where the death happened, and as to the manner and cause of death. The discretion conferred by the Act as it then stood, for him to comment on matters involving public health or safety or the administration of justice, was limited to commenting on matters connecting with the death. The fact that a mistake had been made during the surgery nine days earlier was deeply regrettable and understandably shocking for the family, but on the material before Mr Dingwall, it was not connected with the death of the deceased. There is no assertion of new facts or evidence now which would connect it with the death, nor is a causal connection between the negligence and the death asserted. Assuming that the plaintiffs are able to make out all the facts they assert in the draft Further Amended Originating Application, they would not have established that the coroner made any error, or that there was any material or information he should have taken into account which he failed to take into account. Nor is there any suggestion of fresh material not available at the time of the inquest which might justify ordering the coroner to conduct a hearing into the death.

31. The additional relief sought by the plaintiffs is an order that the Australian Capital Territory Executive appoint a board of inquiry pursuant to s 5 of the Inquiries Act 1991 to consider why and how the deceased was treated and subjected to medical treatment by the Territory.

32. A question was raised during the hearing as to whether the Australian Capital Territory Executive is a legal entity capable of being a party to a proceeding such as this one. The Australian Capital Territory (Self-Government) Act 1988 (Cth), by s 7, established the Australian Capital Territory as a body politic under the Crown. Section 36 of the Act provides that there shall be an Australian Capital Territory Executive. Succeeding sections set out the responsibilities and membership of the Executive. Its members are to be the Chief Minister and such other ministers as are appointed by the Chief Minister. Its principal responsibilities are to govern the Territory and to execute and maintain Territory legislation. The Act does not state that the Executive is capable of suing or being sued, or use other statutory language customarily used to establish a body as a legal entity.

33. Section 5 of the Inquiries Act provides that the Executive may appoint one or more people as a board of inquiry to inquire into a matter stated in the instrument of appointment. The Act gives a board of inquiry wide powers to conduct an inquiry, similar to the powers conferred on a Royal Commission in other jurisdictions.

34. I am not persuaded that the Australian Capital Territory Executive is incapable of being made a party to a proceeding like this one, where the Executive is given a power by legislation, and the Court is asked to make orders in relation to the exercise of that power.

35. The more significant issue is whether a Court can order the executive government to exercise a statutory discretion in a particular way. The question was considered by the High Court in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1. A number of NSW magistrates had not been appointed to a new court structure which had been created by statute, and the court of which they had been members had been abolished. The plaintiff respondent was one such magistrate. The High Court, reversing a decision of the NSW Court of Appeal, held that the appointment or otherwise was a matter for the executive government, not open to judicial review on the merits. Brennan J said at 35-36:

The question can be put quite starkly: when an administrative power is conferred by the legislature on the executive and its lawful exercise is apt to disappoint the expectations of an individual, what is the jurisdiction of the courts to protect that individual's legitimate expectations against adverse exercises of the power? I have no doubt that the answer is: none. Judicial review provides no remedies to protect interests, falling short of enforceable rights, which are apt to be affected by the lawful exercise of executive or administrative power.

...

The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository only.

The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The Courts are not equipped to evaluate the policy considerations which bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the Courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful or the simply litigious.

37. Those observations are apt in relation to the power to appoint a board of inquiry. That power has been conferred on the Executive. I can, I think, take judicial notice of the fact that the conducting of a board of inquiry, even into a set of facts in a relatively small compass, can be a lengthy and very expensive exercise. There would be the expense of remunerating the member or members of the board. Usual practice would require the appointment by the board of counsel to assist. Persons and organisations likely to be affected by the findings of the board would no doubt seek to be legally represented, in some cases at the expense of the Territory. As senior counsel for the Territory submitted, the decision whether or not to hold an enquiry involves a delicate balancing of questions of public interest and expenditure of public money, having regard to all of the other obligations of government. It would be extraordinary if this Court had jurisdiction to force the exercise of such a power, having regard to its unfettered nature.

38. This is not a question of a statutory provision requiring the Executive to take some action, and where the Executive is refusing to do so. It is a question of a statutory power, the exercise of which is entirely at the discretion of the Executive Government.

39. Senior counsel for the plaintiffs characterised the relief sought here as in the nature of mandamus. Senior counsel for the Territory correctly pointed out that that analogy is incorrect, and that what is sought by the plaintiffs is more in the nature of a mandatory injunction. As senior counsel for the Territory pointed out, a mandatory injunction against the Crown in any of its emanations is prohibited by s 24 of the Court Procedures Act 2004, except where there is jurisdiction to make an order of that kind under the Administrative Decisions (Judicial Review) Act 1989 (ACT). It seems to me that that section would of itself prevent the Court from making the orders sought in relation to a board of inquiry. But it seems to me that in any event, regardless of the section, the Court does not have jurisdiction to make such an order in relation to s 5 of the Inquiries Act.

40. For the reasons given above, the draft Further Amended Originating Application would be doomed to failure.

41. For the same reasons, the Originating Application as it presently stands would also be bound to fail.

42. Accordingly, granting leave for the Further Amended Originating Application to be filed would be futile, and that application must be dismissed with costs.

43. The Originating Application being doomed to failure, the appropriate order is that the proceeding be dismissed with costs.

I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Counsel for the plaintiffs: Mr F J Purnell SC with Ms K Katavic

Solicitor for the plaintiffs: Ken Cush & Associates

Solicitor for the defendant: ACT Government Solicitor