Whether autopsy ‘necessary’ and ‘appropriate’

Traynor & Websdale v Spooner [2012] VSC 651 provides a consideration by the Supreme Court of Victoria  in the context of objection by the parents of a deceased 7 year old girl, who suffered a mild form of autism.

The girl Sarah had been playing on a swing set and was found tangled in a skipping rope suspended from the swing set. The police investigation suggested accidental death.

The coroner determined an autopsy to be necessary. The court said that would depend on the extent to which other investigations by the coroner provide or are likely to provide relevant information to enable the coroner to perform his or her functions, In this case that was relevantly to determine the cause of death. The Court held that there was an error of law on the part of the Coroner, in asserting that it was necessary for an autopsy to take place.

On the second issue of whether an autopsy was appropriate, the Court commented:

I am also satisfied that the Coroner did not turn her mind to whether it was “appropriate”, as required by s 25(2)(b), to give a direction that an autopsy be performed.  The provisions of s 25 require that the Coroner form a belief that not only is it “necessary” to direct an autopsy in the circumstances, it is also “appropriate” to do so.  By such provision the legislature has clearly reflected its intent that although the Coroner believes an autopsy is necessary there must in each case also be consideration, resulting in the requisite belief, that an autopsy is appropriate.  This added requirement calls into consideration a broad range of potentially relevant matters, including likely distress to the deceased next of kin and family, and likely distress and which may arise as a result of cultural, religious and spiritual beliefs, laws and practices, if an autopsy is carried out.

Here, the Coroner failed to take into account the likely distress and anxiety to the parents and there was an error of law in the absence of an express determination of appropriateness.

The Court ordered that in the absence of any suspicious circumstances, no autopsy was to be performed.

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