Foote v Coroner's Court of the ACT [2020] ACTSC 141 | Case summary | Zoe

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Foote v Coroner's Court of the ACT [2020] ACTSC 141

[2020] ACTSC 141

Supreme Court of the ACT|2020-06-02|Before: McWilliam AsJ

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Supreme Court of the ACT

Decision date

2020-06-02

Before

McWilliam AsJ

Catchwords

CORONERS – s 93 of the Coroners Act 1997 (ACT) –
statutory review of findings made at an inquest – whether denial of
procedural fairness – whether new evidence
– whether insufficiency

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Catchwords

CORONERS – s 93 of the Coroners Act 1997 (ACT) –statutory review of findings made at an inquest – whether denial ofprocedural fairness – whether new evidence– whether insufficiencyof enquiry – whether fraud or other error – whether insufficientconsideration of publichealth and safety – whether it is in the publicinterest or interests of justice to quash the inquest

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Foote v Coroner’s Court of the ACT

Citation: [2020] ACTSC 141

Hearing Date: 15 August 2018

Submissions last 5 November 2018 received: Decision Date: 2 June 2020

Before: McWilliam AsJ

Decision: See [239]

Catchwords: CORONERS – s 93 of the Coroners Act 1997 (ACT) – statutory review of findings made at an inquest – whether denial of procedural fairness – whether new evidence – whether insufficiency of enquiry – whether fraud or other error – whether insufficient consideration of public health and safety – whether it is in the public interest or interests of justice to quash the inquest

Legislation Cited: Coroners Act 1997 (ACT) – ss 47, 55, 52, 93 Coroners Act 1980 (NSW) – ss 47(2) Coroners Act 1987 (NSW) – s 85 Court Procedure Rules 2006 – r 1203

On the afternoon of 19 May 2011, Ms Corrina Medway gave birth to twin daughters at Calvary Private Hospital (Calvary Hospital), under the care of her obstetrician, Dr Foote. That evening, Ms Medway suffered a stroke. She was transferred to Canberra Hospital for urgent neurosurgery, where she later died on 22 May 2011. An inquest into Ms Medway’s death was held and on 18 December 2015, the Coroner’s Court of the ACT delivered a report (Coroner’s Report), which concluded that the cause of Ms Medway’s death was a ‘massive post partum intra cerebral haemorrhage of a spontaneous hypertensive origin’. The Coroner found that Ms Medway was suffering from pre-eclampsia, which continued undiagnosed and untreated in the critical hours after the birth of her twins.
As part of the Coroner’s findings, interim or subsidiary findings were made that were critical of Dr Foote’s diagnosis and treatment of Ms Medway. In particular, the Coroner considered that Dr Foote failed to treat Ms Medway’s rising blood pressure on the evening of 19 May 2011, and that this was what caused the stroke and Ms Medway’s death.
Dr Foote seeks to quash the findings of the Coroner. He brings the present proceedings under s 93 of the Coroners Act 1997 (ACT) (Coroners Act), which is in the following terms: 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) 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).
The power in s 93 has been described as applying only to those extreme cases where the entire coronial process is tainted or has miscarried or, as anticipated in the section, new facts or evidence emerge requiring a new inquiry: Peter Lucas-Smith & Ors v Coroners Court of the Australian Capital Territory & Ors [2009] ACTSC 40; 166 ACTR 42 (Lucas-Smith) at [35] per Higgins CJ.
Dr Foote contends that, for a number of reasons that are discussed below, this is precisely what has occurred.
I have earlier ruled that the legislation does not permit the quashing of individual findings in Foote v Coroner’s Court of the ACT [2018] ACTSC 119 at [81]. Accordingly, if Dr Foote is successful, then the result will be that not only are the findings with regard to Dr Foote’s conduct set aside, but all of the findings of the inquest are quashed, and a new inquest will be ordered.
Dr Foote was self-represented in this Court (although he did have legal representation at the inquest). The Coroner’s Court, as first defendant, has filed a submitting appearance. Mr Sharwood of counsel appeared for the second defendant, representing Calvary Hospital. The Attorney-General of the Australian Capital Territory (the Intervener) appeared as of right, pursuant to s 93(2) of the Coroners Act, represented by Ms Musgrove of counsel.

In order to understand the nature of Dr Foote’s application, part of which concerns the detail of the evidence at the inquest, it is helpful to first have in mind an overview of what happened. Facts that are the subject of complaint in these proceedings are identified throughout the chronology that follows.
On 13 May 2011, six days before going into labour, Ms Medway had blood pressure readings that were consistently elevated 149/90, 145/90 and 148/90 mmHg (all blood pressure references hereafter are in mmHg). I interpolate here that there was evidence during the inquest to the effect that the upper end of a normal blood pressure range was 140/90.
Dr Foote was Ms Medway’s obstetrician. He diagnosed that Ms Medway had developed pregnancy induced hypertension. He prescribed labetalol 100mg to be taken three times daily. The labetalol stabilised Ms Medway’s blood pressure and Dr Foote subsequently made a decision on 16 May 2011 to withhold the labetalol and ultimately to cease administering the dose.
On 19 May 2011, Ms Medway gave birth to twins at just before, and just after, 3pm. She was discharged from the birthing suite at 5.35pm. The discharge notes recorded Ms Medway’s blood pressure in the birthing suite as 138/76, although the time of that reading was uncertain and is the subject of complaint with regard to assumptions made during the inquest.
There was then a critical period of just over two hours, between approximately 6pm and 8pm on 19 May 2011. At 6pm, Ms Medway was experiencing chest pain and shoulder pain. She had an elevated blood pressure, with a reading of 189/91, taken by a registered nurse and registered midwife, Ms Lynette Balfour (midwife Balfour) at 6.05pm. Dr Foote also recorded a reading of 190/90. He diagnosed musculoskeletal pain and prescribed morphine. Maxalon was also administered to suppress any nausea caused by the morphine.
As Ms Medway had a known pre-existing Factor V Leiden condition, had just completed a pregnancy with twins and had an elevated Body Mass Index, Dr Foote also sought to exclude a pulmonary embolus. Dr Foote ordered that Clexane be administered at this time, which appears to have been approximately 6.10pm. It is unclear whether that occurred and is one of the matters of concern in these proceedings. Dr Foote also requested an ECG be undertaken. He did not prescribe any medication to directly treat the elevated blood pressure, but his evidence was that he considered that high systolic blood pressure usually responds to pain relief, particularly to morphine.
Dr Foote left the hospital shortly after seeing Ms Medway. There is some dispute over what time Dr Foote left and whether Dr Foote was aware of certain further blood pressure readings taken around the time Dr Foote says he left. Another registered nurse and registered midwife, Ms Joy Horsham (midwife Horsham), took Ms Medway’s blood pressure and observed a reading of 188/100. She believed this occurred at around 6.15pm, although she did not record that reading on the observations chart. She also believed Dr Foote was in the room at the time and that is why she did not record the reading, although this was, and remains, disputed by Dr Foote.
An ECG was carried out at 6.16pm (according to a time stamp on the ECG) and the nurse and midwife who did the ECG (midwife Balfour) noted that Dr Foote had left the ward by that time. The ECG did not reveal any abnormality.
At 6.18pm, Ms Medway’s blood pressure was taken by midwife Balfour and was recorded in the observations chart as 177/93.
By 6.53pm, with Ms Medway having received no relief from the pain, nursing staff contacted the resident medical officer (RMO) on duty, Dr Lock.
At 7pm, midwife Horsham took Ms Medway’s blood pressure and it was recorded in the observations chart at 197/112. Dr Lock arrived, it appears shortly afterwards, and checked Ms Medway’s blood pressure himself, observing 187/85 for the left arm and 186/86 in the right arm. Clexane was also administered at approximately 7pm by midwife Balfour.
Midwife Balfour also recorded in the observations chart taking Ms Medway’s blood pressure at 7.10pm. The recorded reading was 185/88 on the left arm and 181/84 on the right arm. This may have been before or after Dr Lock took his own blood pressure readings but that is not of any particular significance.
At approximately 7.30pm, Dr Lock contacted Dr Foote to discuss treatment for Ms Medway. Dr Lock proposed Clexane for a possible pulmonary embolus. He told Dr Foote that Ms Medway’s blood pressure was elevated. Whether Dr Lock discussed with Dr Foote the specific readings, including the reading of 190/112 taken at 7pm, was unclear. The Coroner found that Dr Lock did communicate that reading during the phone conversation, although that remains disputed by Dr Foote in these proceedings.
Dr Foote told Dr Lock to have a physician see Ms Medway, and said that he was coming to the Hospital. Dr Lock complied with that request. Dr Lock asked Dr Choi, who was already in the hospital, to examine Ms Medway. Dr Choi told Dr Lock to arrange a CT pulmonary angiogram to exclude or confirm a pulmonary embolus. Dr Lock contacted the radiology department in Calvary Public Hospital to arrange that test and took blood from Ms Medway for testing.
While that was occurring, midwife Horsham administered a further 5mg of morphine, and 4mg of Ondansatron to suppress nausea. Midwife Balfour took another set of blood pressure observations at 7.50pm. The reading was 180/90. She then left the ward to take the blood sample to pathology.
Before Dr Choi attended the ward, Ms Medway became drowsy and could not move one of her arms. Her partner pressed a buzzer for assistance and when no one came, he urgently sought out Dr Lock, who was arranging the imaging and scan. Dr Lock went into Ms Medway’s room and Dr Choi arrived at about the same time which was approximately 8pm. Ms Medway was clearly gravely ill and taken for an urgent cerebral CT scan. She deteriorated further while in the radiology and imaging room. Ms Medway was unable to give any meaningful verbal response and lost consciousness. At 8.37pm, a call was made for a Medical Emergency Team (MET).
Ms Medway was taken to the resuscitation unit in the Emergency Department in Calvary Public Hospital shortly before 9.00pm, and intubated at approximately 9.10pm.
The CT scan indicated that Ms Medway had suffered a significant haemorrhage in her brain. She was transferred to Canberra Hospital for urgent neurosurgery to reduce the swelling in her brain and to stop the bleeding. She arrived at 10.20pm and was taken directly to the operating theatre for an urgent craniectomy. Dr Halcrow, Specialist Neurosurgeon for ACT Health, performed the surgery shortly after Ms Medway’s arrival.
After the surgery, Ms Medway’s prognosis was extremely poor and the neurosurgeon, recommended no further surgery. The family agreed that no further life-sustaining treatment would be given. Ms Medway was extubated at 5.38pm on 22 May 2011 and died at 6.33pm the same day. (The Coroner’s Report records that life was pronounced extinct at 5.03pm, but this appears to be an error as it is in conflict with the autopsy report and the evidence of Canberra Hospital. No party raised the time of death as an issue and nothing turns on that fact.)
The inquest relevantly found that Ms Medway was a high-risk patient with a complex set of symptoms. She was suffering from pre-eclampsia (pregnancy induced hypertension), which the Coroner found had developed prior to birth and was treated with labetalol by Dr Foote on 13 May 2011, following a blood pressure reading of 140/90.
The Coroner was not satisfied that there was a proper explanation for the decision to cease labetalol, as Ms Medway’s blood pressure readings were at that stage within a normal range, suggesting that the labetalol was working.
In any event, the Coroner found that Ms Medway’s pre-eclampsia continued after the birth of the twins. After Ms Medway had given birth and the epidural had worn off, her blood pressure increased again.
The Coroner found that the blood pressure reading of 188/100 (taken sometime between 6.10pm and 6.30pm) represented a significant and rapid escalation of Ms Medway’s pregnancy induced hypertension, that Dr Foote was in the room when the midwife took that reading, that the reading should have been of concern to Dr Foote, and that Ms Medway should have received anti-hypertensive treatment following that reading. The Coroner observed that was particularly the case given that Dr Foote had prescribed labetalol earlier in Ms Medway’s pregnancy, when her blood pressure reading was lower (on 13 May 2011).
In relation to Dr Foote’s treatment of Ms Medway, the Coroner concluded as follows:

It can be seen that the above section requires an opportunity for an affected person to respond to a proposed adverse comment. The Coroners Act does not expressly require the Coroner to provide the reasons for the proposed adverse comment, nor does it require the Coroner to provide the evidence on which the proposed adverse comment might be based. However, s 55 does provide for a further written statement or submission in relation to the proposed adverse comment. An affected person will be unable to make a meaningful submission unless they understand the basis for the proposed adverse comment.
In my view, the content of the obligation to afford procedural fairness in relation to a ‘proposed adverse comment’ in s 55 should be construed to include an obligation to provide information or material sufficient to enable the affected person to meaningfully respond to the proposed adverse comment. This is consistent with the principle that where a summary of a document or information is disclosed, the substance of the information disclosed must be ‘sufficient to enable any person wishing to make a submission…to do so’ Minister for Immigration and Citizenship v Maman [2012] FCAFC 13; 200 FCR 30 at [37]-[42], per Flick and Foster JJ; Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 at 574, per Lockhart J. As applied to this case, the potential adverse comment is a conclusion or summary.
It will be a question of fact and degree as to how much detail ought to be provided to the affected person. Depending on the comment or comments the Coroner has in contemplation, it may be incumbent upon the Coroner to also provide the affected person with additional material, such as reasoning or a reference to the particular evidence that gives rise in the Coroner’s mind to the potential adverse comment.
Section 55 is an important part of, and check upon, the power arising from the nature of the inquisitorial coronial process. Many people might be called to assist an inquest, yet they are not parties having rights of appeal. They cannot prevent or protect themselves from reputational damage that may be suffered by a criticism – regardless of whether the comments are fair or unfair. Care must therefore be taken to ensure that the obligation in s 55 is strictly complied with.

[99] Pursuant to section 55(1) of the [Coroners Act] a person must be given notice if the Coroner intends to make a comment adverse to [a] person identifiable from the finding or report. [100] It is submitted that there was a failure on the part of Dr Foote to recognise and adequately treat Ms Medway’s acute severe hypertension which exhibited shortly th after childbirth on 19 May 2011 at about 1800 hours and continued untreated until th 2005 hours on 19 May 2011 when Ms Medway was noted to be “hemiplegic, drowsy and had no meaningful verbal response” with “blood pressure of 197/112 at 1900 hours.” Dr Foote said in his evidence that he had extensive experience in the management of preeclampsia. He was aware that post-partum, a patient who had experienced pregnancy induced preeclampsia continued to be at risk of preeclampsia post-partum. Dr Foote had th th diagnosed and treated Ms Medway’s hypertension between 13 and 16 May 2011. No adequate explanation was provided by him as to why he ceased antihypertensive treatment. No antihypertensive treatment was provided to Ms Medway notwithstanding th blood pressure readings shortly after midnight on 19 May 2011 of 150/86 and at 0545 hours of 163/83 the latter which was accompanied by upper abdominal and shoulder tip pain. He asserted he was not aware that Ms Medway’s blood pressure fluctuated whilst the epidural was in situ and prior to the delivery of the twins but should have been aware of th this. He claimed he was unaware that shortly after delivery on 19 May 2011 her blood pressure was recorded as 138/76 at about 1730 hours (page 305 Exhibit 8A) and had escalated to 189/91 by 1805 hours. Dr Foote failed to adequately treat Ms Medway’s blood pressure which he recorded as 190/90. He failed to consider the implications of the escalation in her blood pressure and the risk to Ms Medway that she may be experiencing post-partum preeclampsia. It is submitted that Dr Foote’s failure to treat Ms Medway with antihypertensive medication at that time contributed to her death. Further he left Ms Medway and “went home” when on his view Ms Medway’s provisional diagnosis was “pulmonary embolism” a life threatening condition. [101] The Coroner should reject any assertion on Dr Foote’s part that he was not informed that Ms Medway’s blood pressure at 1900 hours had reached 197/112. He told Mr Sharwood at this point (had he known) he would have administered intravenous hydralazines (to lower her blood pressure). It is submitted that Ms Medway’s death may have been prevented had Dr Foote treated her hypertension when exhibited at around th 1810 hours on 19 May 2011.

[20] When she did this she said that Dr Foote was still in the room [at 18.15hr] and was aware of her high blood pressure because he saw that observation himself. [21] Dr Lok reviewed Ms Medway and examined the observation charts. He noted that the BP readings were very high for Ms Medway however there was no note written by Dr Lok to that effect. Dr Lok spoke with Dr Foote and advised him of the clinical findings he made, including observations which he said would have included Ms Medway’s high blood pressure. … [46] Professor Brennecke considered that there was no downside to the giving of the antihypertensive medication [at 18.05hr on 19 November 2011] and that the net benefit or cost ratio would be very much in favour of giving of the medication. … [135] …Dr Foote was asked why he had not put in his notes the conversation he said he had with Dr Lok about a diastolic blood pressure of 112 and 120. Dr Foote stated that he was not aware of the 112 diastolic reading until he was taken through the material. He could not explain why he did not write it in his notes given its importance. … [141(t)] Dr Lok advised Dr Foote of his findings including the high blood pressure and of the treatment plan. … [150] I am satisfied particularly given the contemporaneous notes of midwife Horsham that Dr Foote was informed of the high blood pressure particularly the BP prior to 1820 hours which was recorded at 188/100 where Dr Foote was said to be in Ms Medway’s room and he witnessed that reading. … [167] …it was to Dr Lok’s credit that he did not say with any certainty that he had informed Dr Foote of his observations and findings, however it stands to reason that he would have done so when he spoke to him. [195] …Dr Peat gave evidence in respect to the BP reading at 18:00 hours and considered that Ms Medway should have actively been treated for her hypertension at the time. Dr Peat criticised Dr Foote because he failed to respond appropriately to the systolic elevation in BP. [232] I am also satisfied having considered the evidence of Professor Brennecke that this blood pressure represented a significant and rapid escalation of her pregnancy induced hypertension. This in my view should have been of concern to Dr Foote. [240] Dr Foote stated that he did not know about the diastolic being 100 or 112 and that had he known [it] he would have treated her for her hypertension. I find it curious, to say the least, that Dr Foote was not concerned about a BP reading with a diastolic of 100 and yet it was catastrophic at 112. [248] I am fortified in that view because after Dr Lok had told him his observations, Dr Foote recommended that a physician be called upon to examine Ms Medway. Clearly Dr Foote was concerned about her condition and that concern could have only arisen from the information Dr Lok provided. [251] I also noted that he tended to blame others for what was basically his responsibility. That reflected poorly on him in my view. At times I was of the view that Dr Foote was not being entirely truthful. [258] I note Dr Foote omitted to mention in his letter to the coroner that Dr Lok had told him that Ms Medway’s BP that evening was 197/112.

There was a non-compliance in the Coroner requiring a response within 14 days of the date of the letter, which was one day shorter than what the Coroners Act required in terms of a notice period. That of itself was a legal error, but it is not the substantive issue raised by Dr Foote for consideration.
A number of the paragraphs which Dr Foote says he would have responded to or addressed are simply a recording of the evidence. They include the comments in [20], [21], [46], [135] [141(t)] and [195] of the Coroner’s Report extracted above. Having regard to the words of s 55 of the Coroners Act, and in circumstances where Dr Foote was represented throughout the hearing at the inquest and therefore had the opportunity to hear what the evidence was, there was no legal error in the Coroner not providing Dr Foote with a proposed summary of the evidence elicited, whether from other witnesses or from Dr Foote himself.
The position is different where the Coroner proposed to draw an inference from the evidence that was an opinion critical of Dr Foote (that is, an adverse comment). In that case, pursuant to s 55 of the Coroners Act, the Coroner was obliged to provide Dr Foote with an opportunity to address the proposed inferences or opinions, which are seen from the words emphasised in the extracts at [54] above.
The words of s 55 only required the Coroner to notify Dr Foote of a proposed adverse comment, but on the construction of s 55 discussed above, that required providing material sufficient to enable Dr Foote to meaningfully respond to the finding or comment proposed. The Coroner provided Dr Foote with the submissions of Counsel Assisting. The Coroner was not required to provide a draft of the Coroner’s reasons to Dr Foote. It would be too onerous to require a Coroner to give a running commentary on which aspects of the evidence the Coroner proposed to accept and why. Moreover, the Coroner’s reasons may change after the receipt of further submissions by a person or persons potentially the subject of an adverse comment.
The difficulty in the present case is that I am not satisfied the Coroner’s findings were confined to the proposed adverse comments raised in the submissions of Counsel Assisting.
When the submissions of Counsel Assisting (at [99]-[101]) are compared with the findings made by the Coroner set out above, it can be seen that a number of adverse comments were not raised with Dr Foote for response. These were:

It is one thing to say, as Counsel Assisting submitted in her written submissions, that given his knowledge of her previous history, Dr Foote should have adequately treated Ms Medway’s high blood pressure following his observation of 190/90 at 6pm, and that the failure to do so contributed to her death. The submission about whether to accept Dr Foote’s evidence that he was not told of the later reading of 190/112 reads as almost an afterthought on the submissions of Counsel Assisting the Coroner.
The Coroner went further than this. She found that Dr Foote knew of two additional blood pressure readings taken by other people (at least one, if not both, of which were taken when Dr Foote was not at the hospital), that Dr Foote was at times untruthful and blamed others, and that it was Dr Foote’s omission to diagnose and treat pre-eclampsia that caused Ms Medway’s death. The Coroner relied on her own rejection of Dr Foote’s evidence that he did not know about the reading taken by midwife Horsham of 188/100 to then criticise Dr Foote, saying it was ‘curious to say the least’ that he was not concerned by a diastolic reading of 100 when he considered that 190/112 was ‘catastrophic’ (being the language used by Dr Foote when giving oral evidence in the inquest). On the contrary, Dr Foote’s evidence was that he would have been concerned by a reading with a diastolic pressure of 100, but he did not know about it.
Although the Coroner’s comments and findings obviously overlap and encompass the submissions of Counsel Assisting that were provided to Dr Foote, they are not the same in substance, so that it cannot be said that the submissions disclosed the gist of what became the finding. There are material differences in the inferences drawn by the Coroner.
Where the Coroner adopts a course of simply pointing to Counsel Assisting’s submissions as the potential adverse comments, if it transpires that materially different adverse comments are to be made in the Coroner’s Report – whether further, wider or more serious – then the Coroner was obliged to further notify the affected person.
Calvary Hospital submits that closely analysed, there were only two adverse comments at [251] and [261] of the Coroner’s Report, each of which was raised by Counsel Assisting’s submissions. It will be apparent from the reasons set out above that I consider there were a number of adverse comments in addition to those two identified by the Hospital, that the comments were significant, and that the Coroner was obliged to give Dr Foote an opportunity to respond to them.
The Intervener argues that an adverse view of Dr Foote’s credibility was intimated in the submissions of Counsel Assisting and that in all of the circumstances, there can be no suggestion that Dr Foote was not aware that the Coroner could make findings of fact and credit. Again, it will be apparent from the reasons above that I do not accept that Counsel Assisting’s written submissions raised Dr Foote’s credit in the way in which the Coroner found, either expressly or impliedly. For example, a person’s evidence may be rejected because their memory was inaccurate. That is different from a finding that a person was untruthful at times and blamed others for matters that were his responsibility.
In any event, it seems to me that the Intervener’s submission does not really address the failure to comply with s 55 of the Coroners Act. It is no answer to say that Dr Foote ought to have been aware that findings of fact and credit might be made against him. Coronial proceedings are inquisitorial not adversarial and Dr Foote was not in the position of having to establish or prove any particular fact. He was a witness in an inquest. The purpose of s 55 is to set out the process of identifying for an affected person the particular findings of fact and credit that the Coroner may make about an individual, so that the person has an opportunity to respond directly.
Dr Foote may have been aware that the Coroner might not accept his evidence, but that is different from the concern of s 55. It was not for Dr Foote to trawl through the evidence to identify what might be rejected and then to determine whether that gave rise to the possibility of an adverse comment about him. Nor should Dr Foote be in a position of guessing at a possible implication that might be drawn from the submissions of Counsel Assisting. He was entitled to know specifically the adverse comment that might be made about him so that he could meaningfully put forward a response, including requesting that the Coroner include a fair summary of that response in the final report. That was what the Coroners Act required.
The consequences of the legal error are addressed separately as part of considering the second question of whether the error means that it is in the public interest or the interests of justice to order a fresh inquest.

As to reading (a), Dr Foote submits that it was assumed the reading was taken around 5pm when Ms Medway was discharged from the birthing suite. This meant that when the blood pressure reading of 190/90 was taken by Dr Foote at around 6pm, and further elevated blood pressure readings were taken, the assumption was made that there was a rapid escalation in blood pressure. In particular, Professor Brennecke was asked to assume there was a rapid rise in blood pressure when giving his opinion.
However, there was no specified time recorded for that reading and it remains unknown when the last blood pressure reading in the delivery ward was actually taken. Dr Foote submits there may have been a period of three and a half hours, between 2.30pm and 6pm, when there was no monitoring of Ms Medway’s blood pressure. If the blood pressure reading was in fact taken hours earlier, Dr Foote argues that the increased blood pressure was not rapid and that this is relevant to the ultimate diagnosis of pre-eclampsia.
As to reading (b), Dr Foote submits that had the Coroner completed an accurate timeline of events, it would have been established that he left the ward before the ECG was taken, and this was done at 6.16pm according to the time stamp. Midwife Horsham thought that she took the blood pressure reading at around 6.15pm which was a time when Dr Foote had already left the ward. Accordingly, Dr Foote could not have observed the reading as midwife Horsham suggested when she wrote her retrospective note some days later.
The second avenue of enquiry that Dr Foote submits was not part of the investigation, but should have been, was whether there were factors after the stroke occurred that could have contributed to Ms Medway’s death. Dr Foote suggests that one of those factors was the delay in ambulance transfer from Calvary Hospital to Canberra Hospital, which delayed the craniotomy surgery. Dr Foote contends that an earlier control of haemorrhage and release of intracranial pressure may have prevented the brainstem injury, but there was no investigation of that issue during the injury.
The third avenue of enquiry raised by Dr Foote is the Coroner’s failure to investigate why a MET call was not made at 7pm when midwife Horsham took a blood pressure reading of 197/112.
As part of this concern, the plaintiff tendered before the Court a ‘Standard Maternity Observation Chart’ used in other hospitals, which has blood pressure readings recorded in a clearer manner. The diastolic and systolic pressures are recorded separately. Each column is then colour coded red, yellow and white across the blood pressure readings. Yellow and red are indicators of varying seriousness that a person’s blood pressure is too high or too low. On the back of the observations chart is a description of what should happen if a reading is taken which falls in the yellow or red zone. If either the systolic or diastolic pressure falls in a red zone, that is an automatic trigger for the equivalent of a MET call. Such an observations chart is commonly described as a ‘between the flags’ chart.
The plaintiff submits that the observations chart used by Calvary Hospital was partly to blame. It did not have clear colour coding, nor did it have an automatic procedure if a person’s blood pressure was at a certain level. Dr Foote contends that if a chart of the kind just described had been used, and a midwife charted a blood pressure reading of 190/112, this would have automatically triggered a MET call, with the likely consequence that anti-hypertension medication would have been administered at that point.
The fourth avenue of enquiry Dr Foote submits should have been undertaken concerns a failure to call two experts:

As to the first expert, the plaintiff’s theory is that a double dose of Clexane may have been administered. If so, it may have caused an intracranial haemorrhage. It may also have contributed to Ms Medway’s condition during neurosurgery, where she was found to have ‘persistent general oozing of blood’. The issue appears to have been first raised as a possibility in one of the reports of Professor Brennecke.
Dr Foote has also raised whether an adverse reaction to Clexane may have resulted in the excessive bleeding during neurosurgery.
A second reason why Dr Foote says an expert haematologist ought to have been consulted was because part of the evidence given by Professor Brennecke during the inquest was that Ms Medway’s blood platelet levels were falling prior to the stroke and that this was consistent with the syndrome of pre-eclampsia. Dr Foote again relies on the opinion of Dr Lindeman to the effect that the full blood count sample, taken at 7.50pm on 19 May 2011, was within the normal range and was essentially the same as the platelet levels measured three days earlier. His view is that it is quite normal for the platelet count to drop a little with pregnancy.
Further, an expert haematologist would have been able to comment on the effect of platelet clumping, which occurred on the film taken to measure the platelet levels of Ms Medway. The proposed evidence was that platelet clumping can produce an artificial reduction in the platelet count. Again, the inference to be drawn from that fact is that Ms Medway’s platelet levels were not falling and therefore that this was not indicative of pre-eclampsia.
With regard to the second expert, in pathology, Dr Foote has presented some evidence that severe pre-eclampsia leading to death usually causes vasoconstriction and reduced perfusion to the liver, kidneys and brain. None of these changes were seen in the autopsy results for Ms Medway. Dr Foote therefore disputes whether severe pre-eclampsia was the conclusive cause of death.
The final avenue of enquiry raised by Dr Foote is a failure to adequately supervise the nurses at Calvary Hospital, including in particular midwife Horsham, who was returning from an eight-year period of leave from midwifery. Dr Foote submits that if the nurses had been adequately supervised, a blood pressure reading of 197/112 would have produced an escalated response – either a telephone call to Dr Foote, or a MET call. There was no investigation as to why escalation did not occur.

On consideration of the parties’ arguments, the evidence and the circumstances leading to the death being investigated (in that the stroke occurred within hours of Ms Medway giving birth), I accept that the timing of blood pressure readings in the birthing suite and during the hours leading up to the stroke is an important part of any inquiry into the subsequent death, as is the communication that occurred at different times between the relevant health professionals.
Establishing a timeline of what occurred, what was recorded and what was communicated is usually of great assistance in an inquest of the kind in question here, but there will be cases where the evidence makes it difficult to determine timings with precision. Where there are conflicting accounts, what is the ‘accurate’ timeline may be a matter of subjective opinion, and the Coroner’s task involves making findings that do not always accord with every witness’ recollection of events.
Having reviewed the evidence of the witnesses and the clinical records, I accept the submissions of Calvary Hospital and the Intervener that the lack of a precise and conclusive timeline in the Coroner’s Report was a product of the variable and changeable evidence itself, rather than any lack of thoroughness in the investigation. It is perhaps important to emphasise that although the evidence gathered might be insufficient to make a particular factual finding, that does not necessarily equate to an insufficiency of inquiry.
In setting out what occurred above ([8]-[26] of these reasons), it is clear that the investigation was sufficient to establish a timeline, even if some of the detail of the timeline was not expressly set out in the Coroner’s reasons and parts were disputed.
Turning to address the two key aspects of Dr Foote’s concern, when Ms Medway was discharged from the birthing suite, no time was filled in next to the blood pressure reading. Dr Foote is therefore correct that there is a gap in the timeline on the documentary evidence.
Midwife Balfour was asked about the timing of the blood pressure reading in the birthing suite. Her evidence was that although she did not take the reading and could not say for sure, the observations are usually undertaken about 10 or 15 minutes before the person leaves the birthing suite and is transferred to the ward. That evidence was presumably from midwife Balfour’s own experience of the practice in the birth suite and it may or may not have been correct in this case. Asking Professor Brennecke to assume the rise in blood pressure between approximately 5.15pm and 6pm was rapid may therefore not have been the right assumption. However, that does not create an obligation for further inquiry. The truth might be that the blood pressure reading was taken up to a couple of hours earlier, but it is unlikely that further inquiry could improve the evidence already given and the uncertainty in the evidence does not reveal a lack of thoroughness in the investigation in that regard.
Moreover, whatever the reading in the birthing suite was, it was accepted that readings of 190/90 or 188/100 between 6pm-6.30pm were elevated blood pressure readings. Dr Foote agreed that the blood pressure was elevated and that he was attempting to stabilise the blood pressure through treating Ms Medway’s pain – an approach which Professor Brennecke, Dr Peat and more recently, Professor Chapman, all accepted was a reasonable approach in the first instance. The management of Ms Medway’s blood pressure once it reached the levels it did at around 6pm was properly the significant issue for the inquest, and I am not satisfied that the outstanding question of how rapid the rise in blood pressure was from the time Ms Medway left the birthing suite discloses any shortcoming in investigation.
Similarly, the conflicting evidence as to who was in the room and what was administered between 6pm and 6.30pm is a product of the best recollections of all the witnesses and the detail of the documentary evidence at the time. The Coroner made a finding based on the specific evidence of a witness, notwithstanding the time stamp of the ECG. It is difficult to see what further questions could have been asked or what other additional inquiries could have been made which would have helped to clarify the timing of particular readings or conduct.
I am not satisfied that any further certainty in the timeline, in terms of whether Dr Foote was in the room or not when midwife Horsham observed the reading of 188/100, would have any bearing on the verdict previously reached. In this respect, it is important to focus on the function of the Coroner (s 52 of the Coroners Act). Relevantly here, it is to determine the manner and cause of death. Other than to the limited extent that they are necessary to determine the manner and cause of death, findings as to the degree of responsibility of a particular person or matters relevant to legal liability do not form part of the Coroner’s function.
Understandably, Dr Foote is concerned, at least in part, about the Coroner’s findings that referred to failures in diagnosis and treatment attributable to the decisions he made at the time. Establishing a more precise timeline than that determined by the Coroner might provide stronger justification for the decisions made by Dr Foote at the time, or highlight failures by others involved in the care and treatment of Ms Medway, rather than by Dr Foote.
However, those matters do not alter the fact that Ms Medway’s blood pressure was rising, or at least fluctuating, and for whatever reason, she was not given anti-hypertensive medication which would have lowered or stabilised her blood pressure.
For these reasons, the complaints about the lack of an accurate timeline do not establish that the inquiry was insufficient.

Ms Medway was at Calvary Hospital when she suffered the stroke around 8pm and deteriorated at 8.30pm on 19 May 2011. She did not arrive at Canberra Hospital for urgent neurosurgery (which could not be carried out at Calvary Public Hospital) until 10.20pm that night.
Dr Foote argues that although a stroke had occurred, it may have been possible to make some recovery from the stroke, and that what caused the death was the extent of the brain injury. He considers that the almost two hour delay between the time of the MET call and the surgery to relieve the pressure on Ms Medway’s brain may have been critical in this regard, and yet the Coroner did not investigate whether an earlier control of haemorrhage and release of intracranial pressure may have prevented Ms Medway’s brainstem injury.
There appears to be some substance to this argument. Ms Elizabeth Trickett, Executive Director of the Quality and Safety Unit for the ACT Health Directorate both met with, and subsequently wrote a letter to, the coroner as part of the inquest. It appears that the coroner at the time of the meeting and correspondence was different to the coroner who ultimately conducted the hearing and wrote the Coroner’s Report. In any event, Ms Trickett states that following Ms Medway’s death, the Health Interagency Clinical Committee recommended improvements for interhospital transfers and the development of an ACT wide policy for the management of high risk obstetric patients, including the appropriate health location to manage such patients.
The Intervener rejects Dr Foote’s submission that delay may have been a factor as pure speculation, submitting that posing questions based on small extracts or comments is not sufficient to establish an insufficiency of enquiry. However, it was obviously something that the ACT Health Directorate took seriously enough at the time to discuss with the Coroner and inform the Coroner’s Court that it had since made improvements.
Dr Foote says the issue was not dealt with during the inquiry. The operating surgeon, Dr Halcrow, gave evidence to the inquest via a statement. He does not appear to have been asked whether the ‘persistent general oozing of blood’ and extent of the brainstem injury was a result of any delay in getting Ms Medway into surgery after the stroke.
Dr Chan provided a report to the inquest after Ms Medway’s surgery. He was responsible for Ms Medway in intensive care. Part of Dr Chan’s report is as follows:

The point made by Dr Foote is that people do not necessarily die from a stroke. Strokes can vary from being mild to severe to fatal. If part of the brain is lost, the brain has the capacity to compensate. However, if the brain stem is injured, that is fatal. When the stroke occurred that was not fatal to Ms Medway. However, the build-up of pressure that injured Ms Medway’s brain stem was fatal, and Dr Foote says this could well have been prevented if she was operated on an hour earlier.
There was some evidence in passing that Mannitol was administered after the MET call in an attempt to reduce the swelling caused by the pressure, which in turn was caused by the haematoma. However, neither the Intervener nor Calvary Hospital were able to identify any evidence where this issue was directly canvassed in the inquest. Similarly, the transcript and statements of witnesses do not disclose that there was any consideration of the issue and I have otherwise been unable to find any evidence that consideration was given to what may have been a significant contributing factor in terms of the extent of the injury suffered.
It was worth asking the question as to whether a patient who has bleeding and pressure on the brain for half an hour or even an hour, as opposed to almost two hours, might have a very different surgical outcome and prognosis.
There may be a simple or obvious reason for why the inquest did not examine whether any delay in neurosurgery contributed to the death. For example, the CT scan performed before Ms Medway was transferred from Calvary Public Hospital in the ambulance may have made it clear that Ms Medway’s stroke was already catastrophic. It may be that there were essential steps to be undertaken before Ms Medway could be taken in for surgery, so that what appears to be a delay was in fact the earliest Ms Medway could feasibly be treated. However, in the absence of such explanations, I have accepted Dr Foote’s concern that the circumstances of delay call into question whether pre-eclampsia and the failure to treat it were the sole causal factors for Ms Medway’s death, as opposed to her stroke.

The possibility that a double dose of Clexane may have been administered, and that this contributed to Ms Medway’s stroke and subsequent excessive bleeding in surgery, arises from the uncertainty about whether the dose of Clexane ordered by Dr Foote at around 6pm was administered at that time. Dr Lock’s evidence was that he also ordered Clexane at 7pm. The medications chart records only one dose of 40mg of Clexane given and midwife Balfour’s evidence was that she administered it, not at 6pm but at 7pm.
I accept that the issue is one relevant to the cause of death as found by the Coroner. If the cause of death was potentially due to a reaction to the amount of Clexane given and not to pre-eclampsia, then that would certainly call into question the Coroner’s verdict and further inquiry may be required.
However, the questions at the inquest did traverse the dosage of Clexane given to Ms Medway, including when it was administered. Midwife Balfour had the primary care and responsibility for Ms Medway, and her recollection was that although Dr Foote ordered Clexane at 6pm and that it was charted at that time, it was not in fact given until later in the evening, being approximately 7pm. Dr Lock’s evidence that he also ordered Clexane does not mean that there were two doses given. No midwife gave evidence that either Clexane had been administered earlier but not recorded on the medications chart, or that a double dose was subsequently given.
Professor Brennecke gave consideration to the issue and discarded the possibility that two doses were given and Dr Foote’s ongoing concern about the possibility of a double dose as not a cogent enough reason to find that there was a lack of thoroughness in the investigation into the issue. Again, as the full clinical notes, including the medications chart, and statements from relevant witnesses were before the Coroner, I am not satisfied that there are further inquiries that should have been made, or could be made now.
Dr Foote further submitted that the ‘unusual episode’ of pre-eclampsia (being the language of Professor Chapman used and discussed further below) could be explained by the new evidence of a possible adverse reaction to Clexane. The theory that there may have been an adverse reaction to Clexane is a possibility, but the evidence does not rise any higher than speculation. Professor Chapman’s view was that obviously an allergic reaction to a drug was a possibility but that it was very rare, particularly with Clexane. I am not persuaded that there was any shortcoming in the investigation in declining to consider a possible reaction to Clexane as an issue.
As I have not accepted that there was an insufficient inquiry with regard to any potential double dose of Clexane or adverse reaction to it, there was no call for any further investigation as to the consequences of any double dose of Clexane, which is where the expert haematology evidence might be of use.
Alternatively, assuming that a double dose of Clexane was given to Ms Medway, the fresh evidence of the expert haematologist, Dr Lindeman (which is discussed further below) was:

With regard to any failure to call an expert pathologist, Dr Foote suggests that severe pre-eclampsia usually causes an impact to the liver. He relied in part upon a medical journal article concerning hypertension in pregnancy, which reported the results of a study involving 317 maternal deaths. There is reference in the material supplied by Dr Foote to liver sections showing periportal/portal necrosis and sinusoidal fibrin in 72.2% of cases surveyed. The conclusion of the study was that pathological changes in cases of eclampsia include widespread injury in vulnerable organ beds.
It is unnecessary to descend into the detail of translating medical research into an understandable explanation for the lay person. The point made by Dr Foote was that if Ms Medway had pre-eclampsia for six days, being from 13 May 2011 when Dr Foote first prescribed labetalol, to 19 May 2011 when the stroke occurred, the autopsy results would have shown an impact to the liver, kidneys and brain. In his evidence before the inquiry, Professor Brennecke also accepted that pre-eclampsia can affect the liver. The liver can swell and become dysfunctional in pre-eclampsia and that swelling of the liver can cause pain symptoms.
However, Ms Medway’s autopsy results for her liver, kidneys and brain were all normal. Dr Foote’s submission is that Ms Medway’s autopsy results were, in his view, inconsistent with a finding that Ms Medway had pre-eclampsia, meaning that the cause of death identified by the Coroner is potentially incorrect.
The medical evidence, including the autopsy results, were before the Coroner. Professor Brennecke had also read the autopsy results. In his view, there was evidence in the pathology reports that in the interval between delivery and Ms Medway’s stroke, her liver enzymes began to rise quite sharply. That suggested to Professor Brennecke some liver disfunction, which can be linked to pre-eclampsia, and could potentially explain the pain that Ms Medway experienced. Given that the liver sits under the right ribs, it is possible that the pain could have been referred from Ms Medway’s liver.
Professor Brennecke was not asked how that evidence sat with the autopsy results, which did not reveal any impact on Ms Medway’s kidneys, liver and brain.
Professor Chapman, whose evidence is discussed in detail below when considering the ‘new evidence’ issue, agreed that the likely pathology was that the rising blood pressure was the result of severe pre-eclampsia. Professor Chapman went on to state:

It does seem from the evidence that there may have been a missed opportunity for emergency intervention at the point where a blood pressure reading of 197/112 was taken and that this was not as thoroughly investigated as it might have been.
For example, there does not appear to have been any investigation of the hospital systems in terms of the charts used and the type of discretion given to midwives at the Hospital. There was no discussion of the benefit of using a ‘between the flags’ maternity observations chart.
On the maternity observations chart used by other hospitals at the time, which was in evidence before this Court, it is clear from the coloured columns when there is an observation that requires urgent attention. The system or protocol in place in the sample chart given to the Court also significantly reduces the discretion given to midwives taking the observations. If a reading of 197/112 is recorded, a MET call must be made.
That point was also made by Dr Peat as part of the evidence summarised in the AHPRA Report (at 8.12). Dr Peat states that the blood pressure reading at 7pm would definitely have triggered a MET call had the general observations chart used at other hospitals been used by the Hospital. The AHPRA Panel recommended that the Hospital review its documentation in light of this.
Given this professional body’s recommendation, it is surprising that the Coroner did not devote any attention to investigating that issue.
Dr Foote argues that had the same type of chart been used here, that would have occurred at 7pm, anti-hypertensive medication would likely have been given, and this could have averted the stroke that occurred around 8pm.
That argument highlights the further lack of investigation as to any likely consequences if a MET call had been made at 7pm. Whether the team responding to the MET call would have administered anti-hypertensive medication was not examined. It must be remembered that Ms Medway’s case was a complex or confusing one in terms of presentation of symptoms. When Dr Lock attended and took his own blood pressure readings shortly after midwife Horsham’s observations, they were significantly different from the reading of 190/112. No one suggested that a MET call should have been made on the blood pressure readings taken by Dr Lock.
Further, if it was established that anti-hypertensive medication would have been administered, there is the additional question of whether administering anti-hypertensive medication during that period could have made a difference. The findings of the inquest focused on whether administering anti-hypertensive medication following the elevated readings at around 6pm would have made a difference, but the questions asked of the expert witnesses did not deal with whether administering anti-hypertensive medication at some point between 7pm and 7.30pm may also have averted the stroke.
On balance, I accept that there was a shortcoming in the investigation and that decisions that needed to be made urgently around 7pm were also relevant to the manner of Ms Medway’s death, or circumstances surrounding the death. There was a team of people managing Ms Medway’s care that night. Dr Foote’s decisions were an important part of that management given he was Ms Medway’s obstetrician, but so too was the communication between the midwives, Dr Lock and Dr Foote, through written records as well as oral consultation. The use of a clear maternity observations chart that assists midwives in decisions such as whether, when and how to escalate a treatment response when there are observations that are of concern to them may have been an improvement to the systems in place at Calvary Hospital. This was worthy of at least consideration and possibly recommendation in a Coroner’s Report. Was there a need for further inquiry as to whether a lack of supervision of midwives contributed to the death?
The issue partially overlaps with the failure to initiate a MET call at 7pm. Dr Foote’s concern focused on the conduct of midwife Horsham. She was the midwife who took the readings of 188/100 and then 197/112. Dr Foote notes that she was also returning from a period of eight years’ leave from midwifery. Dr Foote’s submission as to appropriate supervision arises from his view that midwife Horsham did not record the first reading on the observations chart, or otherwise make him aware of the reading, and she did not initiate a MET call after taking the second reading. He suggests that such conduct brings into question her competency, arguing that closer supervision or clearer direction may have avoided the tragic events that unfolded.
I am not satisfied that there was any insufficiency of inquiry in this regard. At the time midwife Horsham took the first elevated blood pressure reading between 6 and 6.30pm, the problem was not that she did not tell Dr Foote (accepting that fact for the moment) or anyone else.
The problem was that Ms Medway’s pain and pre-existing Factor V Leiden condition were suggestive of other diagnoses and morphine had just been given to treat the pain with a view to also reducing the blood pressure. When that did not work and midwife Horsham took the second significantly elevated blood pressure reading, Dr Lock attended to Ms Medway within minutes.
Any further investigation as to lack of supervision of midwives could not change the Coroner’s verdict that there was a lack of appropriate anti-hypertensive treatment for what was an unusual case of pre-eclampsia.

At the top of the note is an email address for a person who was accepted at the inquest to be the Calvary Critical Incident Manager. Although this might suggest that the document was emailed to the said Manager, when the plaintiff subsequently issued a subpoena with a view to obtaining any such email, there was nothing to produce. Midwife Horsham produced the document from her personal papers, not from the Hospital file.
Midwife Horsham also prepared a statement dated 3 March 2015. In it she refers to taking a blood pressure reading at 19:00hrs of 197/112. This does not appear in the note above.
The Coroner relied on the note above in finding that the plaintiff was aware from seeing a blood pressure reading of 188/100 that Ms Medway’s blood pressure was significantly elevated. The Coroner considered that Dr Foote should have actively treated Ms Medway for hypertension at the time.
Dr Foote says the note is fraudulent. He denies he was in Ms Medway’s room at the time the reading was taken and says that he was not otherwise told of that reading. He did not witness any vomiting, any injections, or any ECG test. Dr Foote also complains that the note has a number of inaccuracies so as to be unreliable.
I accept the submissions of the Intervener that the Court would need to be positively satisfied that there was fraud, and not just the suggestion of it, before finding that an inquest ought to be quashed because of ‘fraud’. That is not to say, however, that something short of fraud would not of itself be sufficient reason to quash an inquest, as depending on the circumstances, it might constitute a reason that falls within the ‘otherwise’, catch-all category of the section. The numerous inaccuracies of a critical piece of evidence relied upon by the Coroner might be one such circumstance.
I will deal with the allegation of fraud first. The concept of fraud might carry different meanings depending on the legal context: Magill v Magill [2006] HCA 51; 226 CLR 551 at [17]; Nadinic v Drinkwater [2017] NSWCA 114 at [22]. In the present statutory context, having regard to the text, context and purpose of the provision in the Coroners Act, ‘fraud’ should be construed to include a false representation made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false: Derry v Peek [1889] UKHL 1; (1880) 14 App Cas 337 at 374.
During the hearing, the plaintiff sought to tender an expert report of Dr Terry Royce, who holds a PhD in linguistic science and is the Director of Forlingua, a body providing forensic linguistic consultancy services. Dr Royce was asked to provide an opinion about the retrospective note prepared by midwife Horsham.
The Intervener raised a preliminary issue about the report of Dr Royce not complying with the expert witness code of conduct (Code): r 1203 and schedule 1 to the Court Procedure Rules 2006 (Rules). When I admitted it at the hearing, I indicated I would give brief reasons for receiving the report.
The Rules applying to hearings in this Court would ordinarily prevent the admission of an expert opinion that did not comply with the Code. However, the current proceedings are a statutory review of a process that was not itself an adversarial hearing where the rules of evidence applied: s 47 of the Coroners Act. The type of evidence that is able to be received on the review must be wide enough to include any evidence that could be, or could have been, received at an inquest, otherwise the Court would be unable to fulfil its task under s 93 of the Coroners Act. Dr Foote also informed the Court that regardless of whether he had a requirement to do so, he had provided a copy of the Code to Dr Royce before the report was written, notwithstanding that the report does not record that fact. Accordingly, I have received and had regard to the report of Dr Royce
With the supporting evidence of Dr Royce, Dr Foote argues that midwife Horsham’s note is not a contemporaneous recording of medical notes. It commences ‘statement of what I remember’, which is consistent with having been written significantly later, not days later. The ‘statement’ has a narrative feel to it, with a degree of editorialising, such as the comment that the birth suite ‘had been extremely busy with deliveries’, and that midwife Horsham ‘hurried back’ to the room.
The plaintiff draws together the language of the note, the lack of it being included in the Calvary Hospital file and the fact that the note contains a number of errors (discussed separately below) as indicating a document fraudulently created. He submits that the midwife had a ‘motive’ to lie; that is, she inserted the untrue detail about Dr Foote seeing the observations because she was attempting to cover up her own failure to inform him.
I accept that the language of the document is different from the medical records of other nursing staff that were also in evidence at the inquest (as opposed to their later statements). I do not accept that is an indication that the document is fraudulent.
Although written on ‘patient progress’ notepaper, the note is expressly not a record of progress notes. It is a ‘statement’ written on the day Ms Medway died. The document’s more detailed and descriptive language clearly marks it out as a ‘statement’ and not a medical progress record. There is no dispute that the note was written retrospectively. Dr Foote submits, relying on the evidence of Dr Royce, that the document may have been written more than days after the events that occurred due to the formality of the language and it being more narrative in style. However, it is also plausible that the document was written when it says it was written. The document may have been written at the request of the Critical Incident Manager (given the handwritten email address), which might equally explain the more formal or detailed language than might have otherwise been the case. Alternatively, it may have been written unprompted but in anticipation of an investigation, given the death. It is hardly surprising that a person involved in the care of a patient who had died that day might wish to write a detailed record of what they recalled about their involvement in the care of that patient, prompted or unprompted.
Whatever the reason, I am unable to accept that the language of the document, its absence from the Calvary Hospital file and the fact that the its contents differs in style, tone and content from that of other witnesses (including the recollection of Dr Foote on a critical blood pressure reading), leads to a conclusion that the note was fraudulently created. Midwife Horsham may not have recalled events accurately. Dr Foote may have been in the room very shortly before the blood pressure was taken, so that her recollection was that he saw the reading, when in fact that was incorrect. Dr Foote has given sworn evidence that is the case. However, assuming (without deciding) that the record is wrong, there is insufficient material to establish that midwife Horsham wrote that part of the note knowing that it was false or without believing it to be true, or careless as to whether it was true or false.
The plaintiff’s second complaint is that the note contains a number of inaccuracies, errors or omissions, which makes the evidence unreliable. This argument would be covered by the words ‘otherwise’ in s 93 of the Coroners Act). They are as follows:

The task of determining whether these asserted errors or difficulties with the evidence constitute a reason ‘otherwise’ has a close connection to the question that follows, of whether whatever the ‘other’ reason is, it is in the public interest or interests of justice to quash the inquest. The words ‘or otherwise’ in s 93 ought be given full meaning and should not be limited by reference to what precedes them: Makings v Jacobsen (1985) 18 A Crim R 138 at 146, but nor should the word be construed to mean any other reason, no matter how fanciful or weak. I consider that whether something is a reason ‘otherwise’ must be informed by considering the nature and extent of the defect, its bearing upon the outcome or probable outcome of the coronial inquiry and the likelihood of a fresh inquiry being conducted without such a defect producing a different finding or verdict, to use the language of Crombie at 31-32. These are matters that also bear on the second question.
In my view, assuming (again, without deciding) that the contents of the note with which Dr Foote takes issue are inaccuracies, they are insufficient to constitute a reason ‘otherwise’ to quash the inquest. The disputed facts may suggest that the note was unreliable, and they may further indicate that the Coroner should not have accepted some of the contents of the note. However, none of the discrepancies ultimately had a significant bearing upon the final conclusions of the Coroner as to the manner and cause of death.
The failure to submit the record to Calvary Hospital (if it is assumed to be a failure) simply means that the note was not part of the formal clinical notes, but there can be no suggestion that the failure to submit a retrospective note had any bearing on either the manner or cause of death. The retrospective record is simply part of the evidence of what a witness remembered occurring on 18 May 2011.
With regard to the approximate timings given in the note, the inability to achieve certainty of the timing of events on 19 May 2011 is a difficulty already discussed. As I have found above, the Coroner pieced together the chronology from the totality of the evidence, and any errors are not of such significance as to call into question either the manner or cause of death. This includes errors such as the precise timing of when Maxalon or Morphine was administered. There was no suggestion that either drug contributed to Ms Medway’s stroke or death.
Similarly, whether an ECG occurred 15 minutes earlier was not a critical matter as the ECG was normal. The only relevance it has for these proceedings is that it is used by others (midwife Balfour) to give a time by which Dr Foote had left the ward.
It is true that midwife Horsham’s handwritten note does not refer to a specific reading of 197/112, but in fairness to midwife Horsham, she did recall that observations were done again, and that the blood pressure was still elevated (see the emphasised words above, in the third last paragraph of the extract), and she did otherwise write the reading she took on the observations chart. In those circumstances, the fact that she did not recall the specific blood pressure reading of 197/112 when documenting her role in Ms Medway’s care retrospectively is not of great significance in terms of any inference that might be drawn.
I also do not regard the fact that the notes of Dr Lock, Dr Choi or midwife Balfour do not refer to the blood pressure reading of 197/112 as being of any significance. The evidence of each was a record of what each person knew, observed and did in the management of Ms Medway’s postnatal care. It is unsurprising that their contemporaneous notes do not refer to the blood pressure of 197/112 as none of those people were in Ms Medway’s room when the reading was taken. It may be that each was unaware of that reading until after the stroke had occurred. I will return to Dr Lock’s evidence about that particular reading below.
The question mark about the administration of Clexane has been considered earlier in these reasons and it has not been established that the issue has any significance in suggesting a possible alternative cause of death.
Accordingly, none of the claimed inaccuracies, either individually or cumulatively, create sufficient doubt about the findings of the inquest to be a reason ‘otherwise’ giving cause to consider quashing the inquest.

Section 93 of the Coroners Act empowers the Court with a wide discretion: Herron v Attorney General (1987) 8 NSWLR 601 at 613 (Herron).
There is no definition of what may be in the ‘public interest’ or what constitutes the ‘interests of justice’ in the Coroners Act. The words 'in the interests of justice' are words of the widest possible reference: Herron, at 613 per Kirby P. Herron concerned s 47(2) of the Coroners Act 1980 (NSW), the predecessor to s 85 of the equivalent NSW legislation, which is in similar terms to those under consideration here.
There has been previous judicial consideration of the words “necessary or desirable in the interests of justice that the inquest be quashed and a fresh inquest be held”. The authorities include Herron at 613, 617; Country Energy v Deputy State Coroner Paul MacMahon & Anor [2010] NSWSC 943 (Country Energy) at [40] per Schmidt J; Cecil v Attorney General of New South Wales & Anor [2012] NSWSC 1186 (Cecil) per Hidden J at [47]-[50].
What is required is a real possibility that the original finding as to the manner and cause of death was erroneous, with the result that the inquest has failed to achieve what the statute envisages, namely that the manner and cause of death be determined: Country Energy at [40].
If there exists a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner and cause of death was erroneous, the public interest will likely require that the finding as to the manner and cause of death, if it be an error, be corrected: Herron, at 617 per McHugh JA.
It is not fundamental to the making of an order that a fresh inquiry would be likely to lead to a different finding or verdict. It will be sufficient if there is a possibility that the result of a second inquest will be different from the first: Veitch at [43] and the cases there-cited; Crombie at 31 per then Master Harrison.
However, the possibility of a different finding must be real, meaning something more than mere speculation: Veitch at [43]-[44]. Mere dissatisfaction with a conclusion reached at an inquest, or that a different conclusion might have been available on the evidence (whether existing or on new evidence subsequently discovered which supports evidence already before the Coroner in the earlier inquest), may not provide a sufficient basis for the discretion to be exercised: Country Energy at [40].
In weighing the interests of justice, it is relevant to consider whether any practical end is likely to be gained by ordering a fresh inquiry. The Court does not look to mere technical deficiencies but, whether there is a real risk that justice has not been done: Crombie at 32.
The Intervener has also drawn the Court’s attention to Maureci v Deputy State Coroner MacMahon and Ors [2017] NSWSC 545, where Bellew J observed at [23]:

The Intervener submitted that the evidence relied upon by the plaintiff did not meet the stringent test of establishing that the original finding as to the manner and cause of Ms Medway’s death was erroneous.
The authorities to which I have earlier referred indicate that a positive finding that the cause of death was erroneous is not necessary. I accept that simply pointing to what are said to be gaps or outstanding questions arising on the evidence is unlikely to persuade the Court to quash an entire inquest under s 93. To some extent, aspects of this application fall into that category, in postulating other theories, rather than establishing a real possibility that the result of a second inquest will be different from the first.
However, I have found there are unsatisfactory aspects about the Coroner’s Report and the question really is whether, as a consequence, the entire coronial process is tainted or has miscarried. Further, as I have accepted there is new evidence, the issue arises as to whether that evidence gives cause for real concern about the correctness of the existing verdict.
With regard to the lack of sufficient inquiry, I have considered the extent to which any additional avenue of investigation or additional material is capable of bearing upon the verdict previously reached.
The lack of a MET call being made at 7.00pm may have been a contributing factor. But it does not justify quashing an inquest.
Had that additional avenue of enquiry been pursued, including whether ‘between the flags’ maternity observations charts should have been used, any additional evidence or findings arising from investigating whether a MET call should have occurred at 7.00pm cannot potentially change the manner and cause of death.
That is because if it were to be established in a subsequent inquest that what occurred at 7.00pm was a ‘failure’ in Ms Medway’s treatment, the nature of that failure was simply that it was another missed opportunity to ensure that Ms Medway’s elevated blood pressure was treated – assuming any treatment at that time could have made a difference.
What might be achieved by further inquiry is a broadening of the responsibility for the failure. Instead of a finding that it was Dr Foote’s failure to treat Ms Medway that caused the death, on further investigation it might be found that there were a series of missed opportunities by a number of medical staff to address the issue, such as failing to have the MET intervene earlier.
I also accept that, based on the supplementary material, additional recommendations to improve the promotion of general public health and safety might be made, in terms of clearer charting of medical observations, to make it easier for nurses and midwives to identify circumstances where urgent medical intervention is required.
However, because the issue involves essentially the same mistake in the treatment of Ms Medway, only made by a different person (whether because of documentation that could be improved, or lack of communication, or lack of training as to what should trigger a MET call), that is also not something that warrants further investigation at a fresh inquest. Those additional avenues of enquiry could not change what were the key findings as to Ms Medway’s death, being a failure to administer anti-hypertensives from approximately 6pm. That was sufficient to discharge the function of establishing the manner of death.
With regard to the delay in operating on Ms Medway, due to a delay in ambulance transfer or other conduct that occurred between the time of the stroke and her arrival at Canberra Hospital, I have taken a number of considerations into account in forming a view as to whether a fresh inquest should be ordered. On the one hand is the desire to thoroughly interrogate every potential contributing factor to a person’s death. On the other hand are the consequences of putting Ms Medway’s family and other witnesses through a further inquest, the resource intensive nature of an inquest and what might actually be achieved in a fresh inquest, bearing in mind the strong public interest in the finality of litigation, a principle which I accept applies to the coronial inquest despite the hybrid, inquisitorial nature of the process.
The death being investigated was one of fast deterioration in Ms Medway’s health following the birth of her twins. The need to act quickly must be a given and the improvement of hospital transfers has already been addressed by ACT Health. Even if a fresh inquest found that the delay in surgery was a contributing factor, on any view, the major cause of Ms Medway’s death was a stroke caused by a large haemorrhage that was of such magnitude as to render Ms Medway unconscious, with a Glascow Coma Score of five.
Any delay in getting Ms Medway into surgery could not change the fact that she had already suffered a significant brain haemorrhage (a large left frontal parietal intracerebral haemorrhage) before she was transferred for surgery and I do not consider it to be in the interests of justice for a further inquest to attempt to dissect whether the overriding cause of death was the initial stroke itself or the inability to recover from the stroke due to pressure on Ms Medway’s brain for a sustained period of time.
As to the fresh evidence relevant to the findings of the inquest, in the form of expert opinions contradicting those of Professor Brennecke, again I am not satisfied that it is necessary or desirable in the public interest or in the interests of justice that the inquest be quashed and that another inquest be held because of the additional expert opinions.
The new evidence does not meet the threshold of a reputable body of evidence which, if accepted, would indicate that the original finding as to the manner of death was erroneous: See Herron at 617, cited more recently in Bhattacharya v Hamilton [2000] NSWSC 102 at [59], per Dunford J. Professor Chapman accepted that the cause of death was a stroke and that the most common cause was hypertension. He was equivocal as to whether pre-eclampsia was the cause of the hypertension but that is not sufficient reason to return the matter for further investigation.
What Professor Chapman’s evidence was really directed towards was Dr Foote’s treatment at the time and whether the decisions he made were reasonable in the circumstances. While I am very sympathetic to the personal consequences for Dr Foote in terms of his professional reputation (which he has given evidence about), ordering a fresh inquest for the purposes of justifying decisions made at the time which led up to a person’s death is not the mischief that s 93 of the Coroners Act is designed to address.
Ultimately, none of the grounds established by Dr Foote cause me to view the inquest as now having a question mark (including if the new evidence were accepted) about the manner and cause of Ms Medway’s death. The factual complexity surrounding the cause of death is more clearly identified, but the central causes remain the same.
That conclusion also applies to the lack of procedural fairness accorded to Dr Foote, but it is necessary to give additional reasons as the procedural issue is in a different category.
The findings in the Coroner’s Report with regard to Dr Foote’s diagnosis and treatment were unfair – both procedurally, as I have found above, and in substance. Professor Brennecke, Dr Choi, Dr Peat, Professor Chapman and Dr Lock all agreed that an initial presumptive diagnosis treating Ms Medway’s pain and a potential pulmonary embolus was reasonable.
The findings that Dr Foote knew about a diastolic reading of either 100 or 112 because he was in the room or because Dr Lock informed him were based on what I consider to be tenuous evidence. In answer to the question whether Dr Lock told Dr Foote of the high readings of blood pressure from 6pm until 7.30pm, Dr Lock said that he could not really recall whether he mentioned them to Dr Foote. His evidence was that it would have been his practice to tell Dr Foote “everything that I’ve known” and “all the observation finding and the clinical presentation”. Clarification was sought but none of the questions asked of Dr Lock were more specific than asking Dr Lock to confirm that he told Dr Foote that Ms Medway had elevated blood pressure. There are varying degrees of what elevated meant. Dr Foote knew that Ms Medway had elevated blood pressure. What he did not know was the fluctuations that occurred since he had last observed her blood pressure himself.
Dr Lock’s reference to telling Dr Foote ‘everything that I’ve known’ and ‘all the observation finding’ are ambiguous. It is unclear whether he meant that he took Dr Foote through the detail of all the previous observations as to Ms Medway’s blood pressure, and in particular, to a specific reading of 197/112. He may have meant that he told Dr Foote all his own observations. That is certainly Dr Foote’s recollection. The highest that Dr Lock’s evidence rises is that he told Dr Foote of Ms Medway’s ‘raised blood pressure’. Nowhere did Dr Lock confirm that he told Dr Foote of a specific reading of 197/112 as inferred by the Coroner.
However, the remedy Dr Foote was seeking was to quash the entire inquest. The adverse comments the subject of complaint here were all directed to matters relevant to Dr Foote’s treatment decisions and his credit. The Court retains the power under its supervisory jurisdiction to quash particular findings through judicial review, a remedy which was discussed in Foote v Coroner’s Court at [77]-[81]. Following that decision, Dr Foote had the opportunity during these proceedings to amend the application to include judicial review as an alternative avenue of relief. He chose not to do so.

Foote v Coroner's Court of the ACT [2020] ACTSC 141

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