The torture of waiting
‘‘It’s more like a court of law than it is an inquisitorial process . . . There’s no way on this planet that process can ever get to the truth of what happened.’’
death of someone before there is an inquest, which is difficult for the family because it delays closure and delays them being able to get on with the grieving process.’’
At the May inquest into the 2015 death of Christchurch mother Nicola Pellett, who fell from her horse when it stepped on a wire, coroner Sue Johnson apologised for the almost three-year hearing delay. ‘‘This inquiry might bring up emotions that you have hopefully perhaps been able to put aside,’’ she acknowledged.
Time also takes a toll on those whose care or conduct is under scrutiny. Rhys Alderton – the epileptic driver who tragically killed Grant Smith – had just one word to describe his experience of the coronial process: ‘‘Long.’’ The coroner’s findings didn’t change anything – he was already on a fiveyear driving ban to ensure he’s seizure-free. And he still has to live with having killed someone. But the decision was a full stop of sorts.
‘‘It’s mostly psychological – it’s not a finished thing until you’ve seen the coroner’s report. There was no way of processing it, letting it go, moving on.’’
At the first inquest into the April 2011 death of Wendy Shoebridge, the Ministry of Social Development spent $11,958 on legal representation. Shoebridge died of suspected suicide, just days after receiving a letter from MSD falsely accusing her of fraud.
The first inquest was heard in 2013, but coroner Ian Smith died 18 months later, having still not released his findings. It was more than two years before a second inquest was held, in 2016, and another nine months before the findings were released. In her decision, coroner Anna Tutton mentioned the vast volume of documents and the family’s wish to re-examine all the evidence.
There were 14 lawyers at the second inquest, of whom eight represented either the ministry or its staff, at a cost of $297,000. Asked to explain the difference, the ministry said, ‘‘the first inquest only required one witness from the ministry to provide evidence, whereas the second inquest took more time, required more witnesses and therefore more lawyers and legal costs’’.
But there’s a bigger picture. A coroner’s court is supposed to be an inquisitorial court – a truth-finding mission led by the coroner. As opposed to an adversarial criminal court, in which prosecution and defence lawyers make a case (and unpick their opponent’s) and judge or jury decide who to believe.
In her 20 years, Antonia Fisher has seen an important change in inquests involving medical cases.
‘‘I’ve noticed a tendency to become much more defensive. Whereas you might have got one consultant giving evidence, you now have a number of doctors being called to account. I think because they lawyer up, it tends to be a much more defensive process, rather than an inquisitorial [one].’’
That’s odd, Fisher says, given our ACC system prevents medical professionals being sued, and DHBs seem increasingly willing – in their internal inquiries – to admit fault and apologise.
‘‘So it’s puzzling that when it suddenly gets before a coroner’s court, they become more defensive.’’
And when you’re on the receiving end, defence feels like attack. The lawyer who represented Nicky Stevens’ psychiatrist ‘‘completely rejects’’ the suggestion his crossexamination of Nicky’s parents was unnecessarily aggressive, ‘‘least of all to the point of bullying. In fact I regard that as offensive’’.
But like Nicky’s parents, Wendy Shoebridge’s mother, Barbara Cooke, felt under attack when she gave evidence at the inquest into her daughter’s death.
‘‘The whole process has seemed more like a cover-up of details than of getting to the truth. And it was extremely adversarial. We were representing the victim – Wendy – or her family. Everyone else was trying to cover their backsides.
‘‘So I was cross-examined like a criminal. It was terrible. There was no compassion, no respect, no nothing, except ‘We’re out to get you’, basically . . . That was the over-riding impression that was left.’’
While the Shoebridge findings were finally published in September 2017, the case has only just been closed.
You become so consumed by the fight you can become isolated from society, Cooke says. Who can make small talk when your life is dominated by death? And the longer it drags on, the greater the cumulative impact.
‘‘It’s affected my physical health, my financial standing, and my relationships. The amount of stress over a long term – it’s been like a kind of mental torture.’’
Chief Coroner Judge Deborah Marshall says inquest delays can result from other agencies investigating first, such as the Civil Aviation Authority, police or the health and disability commissioner.
Coroners work with other organisations to avoid duplication, and the wasted time and resources that goes with it. But the slow wheels of justice compound – Office of the Health and Disability Commissioner complaints requiring a full investigation currently take two years to resolve.
In spite of the worsening statistics, Marshall does not appear to accept that delays have increased.
‘‘One old file can actually skew the statistics. Statistically they are [getting worse] but you’d have to look at each file.’’
Asked if it’s acceptable for families to wait 2-3 years in cases without complicating factors such as external investigations, she says, ‘‘it depends on the individual case’’.
Unlike criminal judges, who hear a case prepared by the prosecution and defence, coroners are doing the investigating themselves, which takes time. Providing a 24/7 duty coroner to respond quickly to new deaths also takes them away from ongoing inquiries, Marshall says.
Asked if she’s happy with the court’s timeliness, she says they’re doing the best they can with the resources they have. She notes that, while the Coroners Act allows up to 20 full-time coroners and relief coroners, only 18 full-timers are currently appointed.
Justice Minister Andrew Little says the delay statistics are concerning. Inquests are becoming more complex and those conducting inquiries are acutely aware of the potential for findings to be challenged. ‘‘It is an important thing to get right. If it is wrong, it can take a long time to overturn erroneous findings.’’
However, he concedes 2-3 years is ‘‘a long time’’ for families to wait for answers. The court received $7m extra in the 2018 Budget to hire seven legal researchers, plus a manager, but it’s too early to gauge their impact, Little says. He pledged to investigate hiring extra coroners to clear the backlog.
But it’s not just about time. It’s also about money, and culture. Nicky Stevens’ and Wendy Shoebridge’s families believe the process would be more constructive if you removed the lawyers. But if they have to be there, there should be financial support for families to have their voices heard.
Jane Stevens and Dave Macpherson had argued Waikato District Health Board should fund their legal representation, because Nicky died while under their legal care. The DHB said no, so the couple spent $10,000 hiring a Jane Stevens, mother of Nicky Stevens lawyer. That paid only for the first year. The DHB paid $20,000 for their own lawyer, but that’s not what the case cost. ‘‘The rest’’ was covered by their insurer.
Nicky’s parents were lucky to find an old friend to represent them pro bono. But few families are so fortunate. ‘‘Because it was adversarial we’re not sure the truth will actually come out,’’ says Macpherson. ‘‘It’s who has got the best lawyers.’’
Antonia Fisher says removing the lawyers wouldn’t work – those at risk of criticism need representation to make the findings valid. ‘‘I just think it needs to go back to the coroners, who control the process, and they need to be more directive about what they expect from the witnesses and what should and shouldn’t be allowed.’’
Marshall rejects the suggestion the process is becoming more adversarial, as the information is still gathered by the coroner, rather than by two opposing sides.
Witnesses have the right to a lawyer to protect their interests, and cross-examination can be useful to coroners, she says. If it becomes too aggressive, they can step in. ‘‘We try and protect the families as much as we can.’’
Nigel Hampton believes the coroners court remains important, as it’s the only place for relatives to be heard in public. But the ‘‘timid’’ 2016 reforms failed to provide coroners’ recommendations with any teeth to compel change. Anyone who has spent any time in a coroner’s court will have heard coroners state sadly that had their recommendations in a previous case been acted upon, they would not be here again, ruling on a similar case.
‘‘If, as the act states, the rationale is to prevent future deaths, then a degree of compulsion is essential,’’ Hampton says. ‘‘That is still the fundamental defect that needs urgent remedying.’’
Marshall believes the system is useful, even without compulsion, as it provides families with answers. And coroners report their recommendations, allowing the public to hold agencies to account.
‘‘Families are so grateful for having the facts set out for them, and for having answers to their questions. You can’t take away the therapeutic nature of our jurisdiction.’’
But Jane Stevens believes there must be a better way, starting with better support for grieving families. ‘‘It should be the thing that gives us hope of finding out what caused the death of our loved one and preventing it happening again. This is the thing that is dearest to our heart – what can we do to make sure this never happens again? Coroners court should be that, and it’s not.’’