Hewit v NSW State Coroner [2019] NSWSC 1724 | Case summary

The facts

Ms Hewit was a resident at the Thomas and Rosetta Aged Care Facility in Wahroonga from 7 June 2018 until her death. That facility is operated by the United Protestant Association of NSW Ltd.
In April 2018, her cardiologist recorded that Ms Hewit suffered from: 1. ischemic heart disease with recurrent chest pain and oesophageal spasm; 2. mild diastolic dysfunction; 3. mild degenerative aortic and mitral valve disease; and 4. cognitive impairment due to Alzheimer's disease.
In August 2018, Ms Hewit met with a registered nurse for a palliative care consultation. The registered nurse reported a palliative diagnosis of dementia, with a number of comorbidities including Alzheimer's disease, myocardial infarction and subarachnoid haemorrhage (stroke). At the time, Ms Hewit was "unable to mobilise", at "high risk of aspiration" and "incontinent of both". The registered nurse also noted the main concerns in Ms Hewit's care regime were "feeding problems/force feeding" (with nursing staff reporting it took 40 minutes to feed Ms Hewit and that she was exhausted afterwards); and "differences between Ron and Alan regarding the care of their mother". She suggested that only comfort feeding be maintained.
The registered nurse's notes record that end of life (referred to as "EOL") care was discussed with Mr Ronald Hewit, as her guardian at the time.
The August 2018 palliative care consultation letter relevantly concludes: In anticipation of deterioration and EOL [end of life] care in RACF [residential aged care facility] please chart the following S/C PRN end of life medication to be activated once the patient is no longer able to swallow. End of life care medication: SUGGESTIONS: 1. For pain/SOB: Morphine 2.5mg s/c q2h [quaque 2 hora or "every two hours"] PRN [pro re nata or "as required"] …
By early September 2019, Ms Hewit's health had deteriorated further such that on 2 September 2019, Mr Ronald Hewit and Dr Zeng signed a NSW Ambulance "Authorised Adult Palliative Care Plan" in respect of Ms Hewit which provided for: 1. CPR to be withheld in circumstances of cardiac arrest; 2. airway management, oxygen, nasopharyngeal suctioning and intravenous access to be withheld in other circumstances; and 3. pain medication to be administered by NSW Ambulance paramedics.
On the same day, Mr Ronald Hewit also appears to have given an advanced care directive to the Thomas and Rosetta Aged Care Facility under his medical power of attorney: When Dying: Not for Resus., Not to be fed artificially, No antibiotics EXCEPT to promote comfort, No Hospital transfers EXCEPT to maintain comfort. 2/09/19 Authorised Adult Palliative Care Plan consulted Ron the Enduring Guardian. Withhold CPR as per plan.
On 4 September 2019, Dr Joanne Wright, an old age psychiatrist, reviewed Ms Hewit and wrote the following by letter to Dr Zeng: Mrs Hewit is very difficult to feed. Staff report that she turns her face away and doesn't open her mouth. She is not coughing during feeding. It is normal for oral intake to decline and ultimately stop in late dementia and for swallowing impairment. Aspiration pneumonia with feeding is a risk. Mrs Hewit is on limited medications: pantoprazole, two cal and Sustagen, aspirin, vitamin D, vitamin B12, Rosuvastatin, eye drops. At this stage of dementia it would be appropriate to stop most oral medications but this decision would need to be made by the Guardian, Ron Hewit. A palliative approach to her care at this stage of advanced, incurable dementia would be most appropriate. The focus is on keeping her comfortable, rather than life saving interventions. I understand that Ron has consented to a Not For Resuscitation order which is appropriate. Resuscitation in the case of cardiac arrest is statistically highly unlikely to be successful and is also an unpleasant way to die. I have no concerns about the quality of Mrs Hewit's care, which is excellent. I think Ron is providing appropriate advocacy for his mother's best interests. It is definitely in her best interest to stay at UPA Wahroonga as moving elsewhere would be distressing and disorientating for Mrs Hewit. I have no plans to see Mrs Hewit again unless requested. (Emphasis added.)
On 6 September 2019, a Dietary Assessment for Ms Hewit was undertaken by a dietician. The dietician recommended that Ms Hewit be provided on a daily basis with at least three milk drinks totalling 600ml and dietary supplements added to thickened milk totalling 200ml and, in the event that Ms Hewit was not eating, extra fluid should be provided.
On 22 September 2019, most of Ms Hewit's oral medications were no longer administered. This was consistent with Dr Wright's advice of 4 September 2019.
In his affidavit, the plaintiff asserted that when he was visiting the facility between 6 September 2019 and 26 September 2019, the minimum dietary requirements were, to his observation, not being provided. I am unaware of the regularity of the plaintiff's visits; neither am I aware as to whether he visited during scheduled mealtimes. There are no clinical notes or nursing records in evidence prior to 25 September 2019, earlier records having not been the subject of subpoena.
The plaintiff also gave evidence that on 25 September 2019, at around 5pm, he raised a concern about the well-being of his mother with the Care Manager.
On the evening of 25 September 2019, Registered Nurse Fevidal recorded the following notes: [The plaintiff] has been assisting [Ms Hewit] with apple juice using teaspoon since 1530 at the dining area … [The plaintiff] reported to RN that [Ms Hewit] was again twitching and probably had a stroke at 1800. … [Ms Hewit] was also observed to have been keeping food and drinks in her mouth. Advised to stop giving her anything and clean her mouth.
That entry is in direct contradiction to the plaintiff's assertion in his evidence that Ms Hewit was denied sustenance or fluids on the night before her death. I am satisfied that despite the plaintiff's efforts to encourage his mother to drink, as reflected in the notes, she was not swallowing. Again as Dr Wright advised, that is not unexpected for a patient in Ms Hewit's condition. To the contrary. It is precisely what Dr Wright had said was "normal" where a person is in advanced stages of dementia. In any event, the medication administration records of the Thomas and Rosetta Aged Care Facility record that a suite of fluids and food supplements were administered throughout 25 September 2019 (for example, Sustagen Liquid, TwoCalHN Liquid), with the last being at 5:27pm.
The plaintiff's involvement with his mother, as per the nursing notes of 25 September 2019, is consistent with a direction from Mr Ronald Hewit in an email to the facility on the same day as follows: … from today we will trial [the plaintiff] visiting mum between 1pm and 5pm if he desires, and he may feed mum with drinking (either water or juice appropriately thickened) using a teaspoon… Custard or yoghurt will also be made available for him to feed mum afternoon tea if he wishes.
Mr Ronald Hewit directed that the plaintiff was not to bring other foods or drinks "or the sippy cup" into the facility or to interfere with staff feeding his mother.
I note that the authority from Mr Ronald Hewit by email of 25 September 2019 was superseded the following day. He then directed that the plaintiff was not to be permitted to feed his mother or provide food or drink to her and was not to be present at her mealtimes.
Although there is nothing in the clinical notes or evidence otherwise to indicate why the authority was countermanded, I note from the plaintiff's affidavit that he was directed by the Care Manager to leave the facility on 25 September 2019. It would appear that was as a result of an earlier interaction between the plaintiff and a member of the nursing staff where the plaintiff apparently complained that, in his view, his mother was displaying symptoms of severe dehydration. The Care Manager advised the plaintiff that he observed no symptoms of dehydration and none were reported in the clinical notes, and that unless Ms Hewit displayed clinical symptoms of dehydration he would not request that a doctor attend to her. The attending nurse confirmed that on examination of Ms Hewit there were no clinical symptoms of dehydration.
At 10:22am on 26 September 2019, a nurse recorded: Reported by staff that [Ms Hewit] is not swallowing apple juice, RN went to check, [Ms Hewit] was not responding well, had labored breathing … Unable to check BP as was very faint. Informed CNC, unable to obtain BP as well. (Emphasis added.)
That report is contemporaneous evidence that Ms Hewit was being offered fluids on the day she died but she was not swallowing them and is further evidence contradicting the plaintiff's assertion that his mother was, in his view, suffering "extreme dehydration".
Three minutes later, the nurse recorded: Most of the oral medications are ceased, only supplements and toothpastes (Cusasept and Neutrafluor), are charted, changes reflected in medsig. However, is withheld this morning.
The Palliative Care Plan report for 26 September 2019 records that the staff were "unable to be feed [Ms Hewit] due no response". Consistently with that information, the Medication Administration records show that fluids and supplements were not provided to Ms Hewit that morning. Again, that course of events was not unexpected. It was consistent with Dr Wright's advice as to what was likely to occur as Ms Hewit passed into the end of life phase.
At 12:14pm, a nurse recorded that Ms Hewit remained in the same condition and that her treating doctor, Dr Zeng, had been sent Ms Hewit's chart.
At 12:56pm, a nurse recorded: Morphine and Midazolam charted, medication chart faxed to pharmacy as unable to scan.
In his affidavit the plaintiff said that some time after he arrived at the hospital on 26 September 2019, he phoned for an ambulance. Mr Ronald Hewit arrived and refused to allow the paramedics to transport Ms Hewit to hospital as it was his view, as Ms Hewit's guardian, that her fragility was such that she would likely die en route.
The plaintiff requested that his mother be provided with intravenous fluids by nursing staff. That request was refused, again in accordance with her guardian's directions. The request of his brother that he instruct nursing staff to administer intravenous fluids was also refused.
At 1:12pm, a nurse recorded that the pharmacist had been notified and "will deliver meds this afternoon".
At 2:10pm, Ms Hewit was given 2.5mg of morphine subcutaneously via a butterfly canula in her left thigh. This was the first administration of palliation medication.
At 2:40pm, Ms Hewit died.
By letter dated 27 September 2019, the plaintiff wrote to the Coroner asserting a dispute as to the cause of death as certified on his mother's death certificate. At that time he appeared to assert that the administration of morphine was the cause of death. That proposition was not pursued at the hearing.
The plaintiff's complaint to the Coroner that his mother died from "organ failure resulting from severe dehydration" was maintained at the hearing. No medical evidence was adduced to support it. The plaintiff's assertion that the appearance of his mother's limbs changing colour was evidence of her dehydration and her "organs shutting down" is of no evidential value. He has no medical qualification to provide for the reception of the evidence under s 79 of the Evidence Act 1995 (NSW). Given the issues raised by the summons, the plaintiff's assertion has no probative value as a lay opinion, even if admissible under s 78 of the Evidence Act.
The plaintiff's letter to the Coroner repeated what the plaintiff deposed to in his evidence, namely his interactions with Mr Rigor, the Care Manager, and the registered nurse on the afternoon of 25 September 2019. He also asserted in his letter to the Coroner that, despite making direct requests to staff to provide his mother with liquids, chronic staff shortages meant that she was not provided with any assistance in drinking. He went on to complain about staff preventing him from providing his mother with her preferred food and drinks, a state of affairs which he seemed to suggest had been persisting for some time. Notably, he made no reference at all to the fact that his brother was Ms Hewit's sole legal guardian and that nursing staff were obliged to comply with his directions insofar as the administration of food and drink was concerned, including intravenously, subject of course to the discharge of the duty of care the nursing staff owed Ms Hewit as a patient in their care.
The plaintiff enclosed a number of documents in his correspondence with the Coroner, including a complaint to the Healthcare Complaints Commission and a complaint to Safe Work Australia. They have no relevant bearing on the matters I am asked to decide. The death certificate was also included.
In an email forwarded to the plaintiff by a departmental officer associated with the Coroners Court on 1 October 2019, the plaintiff was advised that the correspondence and documents forwarded by him had been considered by the Duty Forensic Pathologist and the Duty Coroner in order to determine whether the Coroner had jurisdiction under the Coroners Act to enquire into his mother's death. After extracting s 61 of the Act he was advised that both the Duty Forensic Pathologist and the Duty Coroner were of the view that Ms Hewit's death did not fall into any of the categories of a "reportable death" in ss 6(1)(a)-(f) and, in those circumstances, the Coroner did not have jurisdiction to convene an inquest. That being the case, the plaintiff was informed that he was is at liberty to make arrangements for his mother's funeral.

The submissions of the parties

Central to the plaintiff's claim for declaratory relief, relief under s 69 of the Supreme Court Act and the relief he seeks under s 84 of the Coroners Act is the proposition that this Court would find that the Coroner was wrong to conclude that Ms Hewit's death was not a reportable death under s 6 of the Coroners Act.
The plaintiff's case, as crystallised in his counsel's final submissions, is that there was sufficient material drawn to the Coroner's attention in the plaintiff's request that an inquest into his mother's death be convened for the Coroner to undertake an inquiry into whether the cause of his mother's death was due to a "suspicious, unusual or unnatural cause" (being dehydration), being a "reportable death" in accordance with s 6(1)(c) of the Coroners Act, and to inquire into the failure on the part of the certifying doctor to specify dehydration as a "significant condition contributing to her death but not related to the disease injury or condition causing death". The relevance of that contention is that her death was a "reportable death" within the terms of s 6(1) of the Coroners Act.
At the hearing on 28 November 2019, the Attorney General maintained his opposition to the relief sought by the plaintiff. He submitted that the plaintiff has failed to demonstrate any error of law in the Coroner's determination that the plaintiff's application for an inquest into his mother's death should be refused because there was no evidence adduced by the plaintiff to give rise to any suggestion that her death was "suspicious, unusual or unnatural" (s 6(1)(c)), or that the cause of death was unknown (s 6(1)(b)) such that it was a "reportable death" attracting the Coroner's jurisdiction under s 21 of the Coroners Act to convene an inquest. To the contrary; the Attorney General submitted that Ms Hewit's death was, as reported by the certifying doctor, the direct result of Alzheimer's disease of many years' duration with myocardial infarction a contributing condition. The Attorney General submitted that in those circumstances the declaratory relief and the relief sought under s 69 of Supreme Court Act should be refused.
As to the plaintiff's claim under s 84 of the Coroners Act, the Attorney General submitted that the Court would not be satisfied that it is necessary or desirable in the interests of justice that there be an inquest into Ms Hewit's death.
The Attorney General submitted that there was nothing in the information available to the Coroner, or in the evidence tendered in the proceedings, to raise any questions or doubts as to the direct cause of death certified by Ms Hewit's treating doctor, Dr Zeng, on 26 September 2019, apparently within hours of her demise at 2:40pm that day. No antecedent cause of death was specified. I emphasise that the death certificate records that both Alzheimer's disease and myocardial infarction had an apparent duration of "years" between onset and death and that both conditions were noted in a cardiologist's report of April 2018 as they were in the course of the palliative care consultation in August 2018.
Further, I note that on 2 September 2019, Mr Ronald Hewit in his capacity as his mother's guardian and Dr Zeng as her treating clinician, signed a NSW Ambulance "Authorised Adult Palliative Care Plan" which also notes a diagnosis of "advanced Alzheimer's disease" and "dementia" and a history of "feeding difficulty", with co-morbidities "IHD" (ischemic heart disease), "SAH" (subarachnoid haemorrhage) and "retinal detachment".
It is uncontroversial that Ms Hewit was in palliative care as a resident of the Thomas and Rosetta Aged Care Facility at Wahroonga, a facility operated by the United Protestant Association of New South Wales Pty Ltd at the time of her death. She took up residence in that facility on 7 June 2018 at age 87. It cannot be doubted that she was in serious ill-health at the time of her reception into the Aged Care Facility. She was within weeks of her 89th birthday and in an end of life phase of palliative care at the time of her death.
Not unimportantly, having regard to the issues that are raised by the plaintiff in support of his contention that either the direct cause of death or a contributing cause of death was dehydration, Mr Ronald Hewit, her guardian, had given instructions to the nursing staff that his mother was not to be fed intravenously.
I am satisfied that there is nothing in the materials relied upon by the plaintiff to provide any evidential foundation to doubt the cause of death certified on Ms Hewit's death certificate or any suggestion that her cause of death was either "unknown" or "suspicious, unusual or unnatural". Not only is there no "error" in the Coroner's determination that Ms Hewit's death was not a "reportable death" such as might have invoked the jurisdiction of this Court under s 69 of the Supreme Court Act, I have grave doubts that the letter of 1 October 2019 informing the plaintiff of the findings of the Duty Forensic Pathologist and the Duty Coroner form the "record" of a Court or a Tribunal.
Turning to the relief sought under s 84 of the Coroners Act, where an order is made under s 84, the State Coroner is to be served with the order and must carry out an inquest or require another coroner to conduct an inquest. In those circumstances, the jurisdiction to conduct an inquest is conferred on the Coroner by s 87(2)(b) of the Coroners Act.
I accept that "in the interests of justice", as those words appear in s 84 of the Coroners Act, are of a wide discretionary import (see Herron v Attorney‑General (NSW) (1987) 8 NSWLR 601 at 608, 613 and 617; and see, to like effect, Channel Seven Perth Pty Ltd v S [2007] WASCA 122; (2007) 34 WAR 325 at [52]; O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216; and Re Minister for Resources; Ex parte Cazaly Iron Ore Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403 at [19], [80]).
Informing that discretion are the the statutory objects of the Coroners Act and the underlying policy considerations in the Coroner's statutory functions (see Veitch v State Coroner [2008] WASC 187 at [36]; Conway v Jerram [2010] NSWSC 371; 78 NSWLR 689 at 695).
Further, where, as here, the plaintiff seeks an inquest on the basis of an assertion that some error has been made in the attribution of the cause of death, at the forefront of the matters to be considered in assessing the interests of justice is "the existence of a reputable body of evidence which, if accepted, would indicate that the original finding as to manner and cause of death ... was erroneous" (see Bhattacharya v Hamilton [2000] NSWSC 102 at [59] quoting Herron at 617).
While it is part of the proper exercise of the jurisdiction afforded to the Coroner under the Coroners Act to determine the manner in which a death occurred, that jurisdiction does not extend to authorising a detailed inquiry into the anterior personal or medical factors that may have affected the deceased in this case in the months and days prior to her death, but which were not themselves the immediate cause of death but natural contributing causes to a death.
As is exemplified in this case, it is no part of the proper exercise of the discretion afforded to the Coroner under the Act, or the exercise of the discretion afforded to this Court under s 84 of the same Act, to provide the plaintiff with a forum for him to inquire into the circumstances that prevailed at the end of his mother's life. I am well satisfied that his mother was suffering from Alzheimer's disease and a range of co-morbid conditions at the time of her death which, in combination, had progressively impacted on her general health, including her capacity to safely consume nutrients, including fluids orally. I am also satisfied, having reviewed all of the evidence, that Ms Hewit was under careful and constant clinical review, and that she received entirely appropriate nursing care as the anticipated reaction to her reduced consumption of nutrients and hydration progressed in the end of life phase (see Conway v Jerram at [52]-[54], [61]).
In all the circumstances, I am not persuaded that it is in the interests of justice for this Court to order an inquest into the death of Ms Hewit.
Accordingly, the relief the plaintiff seeks is refused.

Hewit v NSW State Coroner

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