Why are grieving families waiting years for answers in the Coroner's Court?

Friday, 7 August 2020

Coroners Court delays continue to balloon, prolonging the agony of grief for those left behind. Nikki Macdonald talks to families caught in a coronial whirlpool, and asks if there’s a better way.

A daughter's wedding, the births of two grandsons and the death of the family dog that was snuggled up to Erica Hume in her last photo. But still no answers about how their youngest daughter died. Six years of life lived in the shadow of death.

Erica’s parents Owen and Carey Hume have just been shunted onto their third coroner, after Gordon Matenga was appointed a district court judge in January. No-one thought to tell them – they only found out through the media.

After 21-year-old Erica died of suspected suicide in the care of Palmerston North Hospital's mental health unit in May 2014, Carey asked the coroner’s office how long investigations usually took. They were told 15-18 months.

**READ MORE:

* Not only people with mental illness end their lives, says former coroner

* New support coroners will reduce case waits, but is it enough?

* Grieving limbo - five years of waiting and still no answers

* Families push for Manawatu mental health reform

**

“I said to Owen: ‘This is going to be our life for the next two years.’”

Six years later, the Bay of Plenty couple are still waiting. They can't book holidays or make plans. They can't afford a lawyer, so they’ve gone from their only court experience being a rent tribunal to making legal submissions and trying to represent Erica as best they can.

“Where are we at in the system? I'd say absolutely nowhere, and being totally ignored, and Erica being totally disrespected,” Carey says.

“We have no closure. A room in my house has been taken over with the paperwork. It’s never-ending, you keep having to add things in… You have to relive everything. The tears and lost opportunities and the anger. The anger…” Carey stops and swallows more tears. “Constantly in the background is the worry you’re going to miss something, we’re going to let Erica down by not doing a good enough job. You can deal with all the other stress, but letting them down is the hardest thing to deal with.”

What has it cost them, in time and money? “Six years,” Owen says.

Erica’s death came just a month after 30-year-old Shaun Gray​ died of suspected suicide in the same mental health unit. His family is also still awaiting an inquest date.

Last month, both families independently complained to Chief Coroner Deborah Marshall about their treatment. Shaun’s brother Ricky, who lives in Australia, says the Grays also only found out Shaun's case was being transferred to a third coroner after reading media reports of Matenga's appointment as a district court judge. They were also not told he had been on six months extended sick leave.

The lack of communication gave the family no confidence Shaun’s death was being given the respect it deserved, Ricky wrote to Marshall.

“No other words come to mind except appalling… You all ought to be ashamed of what you have put Mr Gray’s parents through,” he wrote.

The Humes say there should be a three-year time limit on all coroner’s investigations, with a public tracking system for accountability.

Despite previous acknowledgements from Justice Minister Andrew Little that coroners’ cases were taking too long, delays have ballooned further.

On January 31 this year, 2502 coronial cases were more than a year old. That's almost half of all open cases – miles short of the court's target of 70 per cent of open cases being less than 12 months old.

It also shows a massive increase in two years. In June 2018 the Justice Ministry told Stuff that 723 cases were older than 12 months. It now says those figures were completely wrong – but cannot explain why.

According to its new numbers, 1676 grieving families were waiting more than 12 months in January 2018.

In May 2019, Little promised eight extra part-time coroners, who he hoped would be in place within three to four months. Instead, they were not appointed until March this year.

And the retirement or redeployment of five full-time coroners has left the service down one full-time coroner.

Judge Marshall apologised to both the Humes and the Grays for the delay and lack of communication. But the bigger question remains of how investigations can take so long; why families are left to fend for themselves while government agencies arm themselves with the best lawyers money can buy; and whether suicides in particular could be treated differently.

Every year the coroners court looks into about 3500 deaths – from people dying in state care to car crash victims, suspected suicides and deaths that are simply unexpected and unexplained.

The cases are handed to one of 18 coroners around the country – lawyers who decide whether an inquiry is needed to discover how the person died, and what lessons might be learnt and recommendations made.

Until October 2019, one of those coroners was Carla na Nagara​. Appointed a coroner in 2007, she is now the director of the new Suicide Prevention Office.

Carey says no-one can justify to her how it can take six years to investigate a death. Na Nagara offers some insight. While she can't speak for all coroners, she says her workload was heavy, juggling up to 300 cases at a time.

“Each file requires work, so it doesn't take long to extrapolate that out into delay.”

Cases requiring an inquest tend to be more complex, na Nagara says. Evidence has to be gathered, expert reports commissioned and parties given time to respond.

“You might seek an expert’s opinion on something, it might take ages to come because they’re so busy and they’re the only expert in their field. So all of a sudden something you might expect – if it was the only matter anyone in the process was dealing with – would take a month, takes six. And it just accumulates.”

Some cases are also held up by investigations by other agencies, such as police or the health and disability commissioner.

Coroners are acutely aware of the toll long delays take on families, na Nagara says.

“My abiding memory as a coroner… is this sense of worry at the amount of time it was taking. Because we knew that behind every file was a bereaved family. That was probably the thing that would keep me awake at night – all these families are waiting for me to do my job and I'm doing it as fast as I can.”

Former coroner Wallace Bain, who retired in March after 28 years in the job [see sidebar], also says coroners’ caseloads are too high. The process has also become more time-consuming, he says.

Agencies under investigation now take the process much more seriously, meaning they invest more time, effort and money. A complex case such as the suicide of Nicky Stevens in Waikato District Health Board care, or the death of abused toddler Moko Rangitoheriri, could produce a file 15cm thick.

“They stopped our office. I just didn't have the resource, so you couldn't do anything else. You were just doing that almost full time… I had a case manager and an administrator and that was it. If you take the Stevens or the Moko case, you get three or four QCs and all sorts of people before you.”

Bain hopes the extra part-time coroners will help, but says his gut reaction is that more will be needed to cut the backlog.

But it’s not just obviously complex cases that take years to resolve. Coroner's findings published this year included a scuba diver running out of air, which took almost three years to investigate.

The findings into the death of Daryl Murray, who died of a known side effect of schizophrenia drug clozapine, took 3½ years. There was no inquest and Murray's mother Jen Rutgers – who Murray lived with and who would often go with him to mental health appointments – feels she never got to have her say.

“It’s been quite traumatic actually. For 3½ years I had a death certificate for him that said ‘referred to the coroner’… I would have liked to have been allowed to go to that final hearing… I don't know if it would have made any difference, but it would have made me feel better.”

Marshall acknowledges a “significant backlog” of cases, partly because the Coroners Court took on 200 more cases in 2018/19. Of those, 51 were mosque shooting victims, but the reason for the other 150 is unclear.

“Once the newly appointed coroners are up to speed and we are at full strength, I expect to the see the backlog of cases reduce,” Marshall says.

The Coroners Act allows for up to 20 full-time coroners. At present we have 17, with recruiting continuing to replace the 18th.

Asked if he was considering appointing extra permanent coroners to reduce delays, Little said only that the new relief coroners would help reduce the backlog.

LAWYERING UP

Corinda​ Taylor has lost track of how much they've spent on lawyers. Too much – they had taken on a lawyer and barrister for the coroner's investigation, but just couldn't afford it.

The family had already spent $30,000 on a lawyer for the Health and Disability Commission investigation into the 2013 suspected suicide of their son Ross. That took four years.

Instead, she now has to go through Ross’ records, again and again, writing submissions with no legal expertise. Taylor took a 3834-signature petition to parliament in December 2019 calling for more coroners and free legal representation for suicide-bereaved families.

She is getting some pro bono legal help, but most families are not so lucky. Unless the dead person was the victim of a crime, legal aid for coroner’s investigations is means-tested and may have to be paid back.

“It is brutal on families to have to compete in the legal field, when we ourselves don't have any legal training or expertise. It’s a complicated process, but it's also traumatising.

“I can't tell you how many times I've had to go through the medical file and each time we are given a deadline to deliver our response. It causes flashbacks, it gives me sleepless nights. I feel vulnerable. It's just really, really upsetting to go through the whole process over and over and over again.

“It's a fight to get support. It's a fight to get justice. And it's tiring on families. Most families just give up and walk away, because it's just too hard. And that's how the truth gets covered up.”

Carey wrote to Little in October 2018, also calling for free legal help for bereaved families, especially when their loved one has died while in the care of a mental health unit.

“Why are families having to incur debt just to get answers about what happened to their loved ones while in state care? It's mind-boggling to me.”

Na Nagara agrees coroner’s investigations are difficult for the families of suicide victims, and an advocate or representative would help.

“It is kind of self-evident that a bit of support would help families.”

Bain also believes that, in cases stacked with high-powered barristers, families should get funded lawyers.

The Justice Ministry’s 2018 legal aid review found means testing thresholds were too low. Little says making sure people can get legal support is an “access to justice issue”.

“Ensuring people can access justice is important to me. I have indicated to my officials that I am interested in looking further into legal aid policy for coroners’ proceedings. I expect advice following the election.”

IS THERE A BETTER WAY?

Suicides appear among the most difficult coroners’ cases, especially for bereaved families like the Taylors, Humes and Grays. Because they have usually been involved in the person's medical care, they inevitably become involved in the investigation into their death. Which means ripping off that scab again and again.

A priority for the new Suicide Prevention Office is to investigate whether there's a better way, na Nagara says.

“It's an extraordinarily difficult process for bereaved families to endure.”

The review is expected to kick off in the next 12-18 months and will canvas the views of everyone from coroners to investigating agencies to grieving families.

One reason agencies lawyer up and become defensive, which adds to delays, is society’s blame culture, na Nagara says.

“A coronial investigation or a review into any suicide should never be about attributing blame, but somehow it gets transferred into that. This idea that suicide is a simple matter – that if a clinician had done a, b or c this person wouldn't have ended their life. That over-simplification of the context of suicides contributes I think to that really unhelpful idea that we have to hold someone responsible.”

For the father of Nicky Stevens, Dave Macpherson, being able to speak in public at the coroner's inquest was worth the wait.

“We felt that we went to the right place. It was appalling that it took so long…The big thing was that we felt we had got our story out.”

And that's all Carey wants – she’s not looking for blood or blame. She just wants to stand in court and tell the world Erica wanted to live.

“I just want her to have that moment where they pay attention, and she's heard.”

DOES THE SYSTEM WORK? REFLECTIONS OF A 28-YEAR CORONER

When Wallace Bain ruled the suicide of Nicky Stevens in the care of Waikato DHB was avoidable, the lawyer for the DHB complained to the solicitor-general.

He alleged Bain had a pre-determined view and asked for another coroner to review the case.

It’s a symptom of the change in attitude to coroner's investigations since Bain began in the job 28 years ago.

“It has certainly become far more serious – far more lawyered up, if you like.”

What hasn't changed are the characteristics required of a coroner, Bain says.

“You need to be courageous. You do need to call it as it is. It has to be based on the evidence before you. Sometimes people are most unhappy about it, but that's the fact of the matter. If you don't do that, what’s the point of being there at all? Sometimes you get some stinging criticism. Well, that's part of life.'

He acknowledges coroners haven't had enough resources to keep up with caseloads. That’s meant fewer inquests and long delays.

Some argue the court’s influence is weakened by the fact it can only make recommendations, not enforce change. But Bain believes coroners still make a difference.

There were the three treacherous one-way bridges at Benneydale, near Te Kuiti, that were widened to two lanes, after Bain told the Transit NZ boss he could be liable for manslaughter if he ignored warnings of the fatal risk.

Repeated inquest warnings about co-sleeping helped cut sudden infant death numbers from about 60 to six a year; inquiries into texting, bullying, forestry and hunting deaths led to law and culture changes to reduce the risks.

One regret is the fact his recommendation for a register of children aged under five, which he suggested following the death of Nia Glassie and repeated in the findings for Moko Rangitoheriri, was not adopted.

“We register births, but then nobody knows where that child is for five years till they're supposed to go to school… If they were registered, the ministry or Plunket or someone could call on them. If anyone had gone into the house where Nia Glassie was, she would never have died. They would have found what the hell was going on immediately.”

While the increasing role of lawyers makes the process look more adversarial, the inquisitorial structure still makes the Coroners Court unique, Bain says. The coroner can cross-examine witnesses and direct the investigation.

“You must have that independent authority that has that inquisitorial power to cut through a lot of the nonsense that goes on and get to the heart of the matter. That's the power the Coroners Court has that other courts don’t.”

WHERE TO GET HELP

• 1737, Need to talk? Free call or text 1737 to talk to a trained counsellor.

• Kidsline 0800 54 37 54 for people up to 18 years old. Open 24/7.

• Lifeline 0800 543 354

• Rural Support Trust 0800 787 254

• Samaritans 0800 726 666

• Suicide Crisis Helpline 0508 828 865 (0508 TAUTOKO)

• Youthline 0800 376 633, free text 234, email talk@youthline.co.nz, or find online chat and other support options here.

• If it is an emergency, click here to find the number for your local crisis assessment team.

• In a life-threatening situation call 111.