Minutes of the Second Meeting of the Bills Committee on the Coroners Bill

Election of Deputy Chairman

Mr Ronald Arculli was elected Deputy Chairman of the Bills Committee.

Declaration of interest

2. Mr Albert HO declared interest as the legal adviser of the Hong Kong Patients’ Right Association.

Confirmation of Minutes

3. The minutes of the first meeting held on 17 April 1996 had been issued to members vide LegCo Paper No. CB(2) 1194/95-96 on 2 May 1996. No amendment was received. The minutes were taken as confirmed.

Visit to Coroner’s Office

4. The Chairman reported that Mr Albert HO and himself had visited the Coroner’s Office and received a briefing of the work of coroner on 29 April 1996 by Mr J L Saunders. Mr Saunders had pointed out that in the United Kingdom, the registrar was not required to report the death to a coroner if it appeared to him, from the particulars contained in duly completed certificate of cause of death or otherwise, that the deceased was seen by the certifying medical practitioner after death or within 14 days before death.

(Mr Ronald Arculli, the Deputy Chairman, took over the chair of the meeting from the Chairman for the ensuing discussion.)

Meeting with Representatives of the Hong Kong Medical Association and the Administration

5. Members noted the submission from the Hong Kong Medical Association (HKMA) and comments of the Director of Administration on the submission, which had been issued vide LegCo Paper Nos. CB(2) 1041/95-96 and CB(2) 1162/95-96 respectively. The Administration’s comments were tabled for reference of representatives of the HKMA.

6. A supplementary submission from the HKMA on the Bill was tabled at the meeting and subsequently issued to absent member vide LegCo Paper No. CB(2) 1223/95-96. At the invitation of the Deputy Chairman, Dr SO Kai-ming briefed members of the supplementary submission. Members raised a number of questions for representatives of HKMA and the Administration to respond. The gist of their deliberations is summarised in paragraphs 7 - 24.

Items 2, 5, 6 & 9 of the list of reportable deaths in Part 1 of Schedule 1

7. HKMA proposed to remove items 2, 5, 6 & 9 from the list of reportable deaths because to report them would not be in the interest of the public and the inconvenience and grievances suffered by the public would outweigh the benefit. Dr SO quoted a few examples to illustrate that strict observance of these reportable deaths was unnecessary.

8. Miss Margaret NG remarked that the list of reportable deaths was unnecessarily wide although the purpose was to enable the coroner to inquire into any problematic death. She pointed out that the Administration had intended to remove any subjectiveness and arbitrariness from the medical practitioners. However, inserting objective criteria might not be very helpful in the light that these criteria had missed out a lot of complicated factors. She therefore suggested that the Bills Committee should go through the list and the Administration should reconsider its basic approach to the problem. The Deputy Chairman concurred with Miss NG’s view and sought HKMA’s assistance in identifying unnecessary and borderline cases with actual examples.

9. Both Mr James TO and Mr Albert HO appreciated the need to narrow the scope of reportable deaths. However, Mr TO took the view that, for the sake of public interest, the Bill should define the statutory duty to report death. In this regard, Dr LEONG Che-hung reiterated that the medical profession was not against the spirit of the Bill. It only had reservation on certain parts of the Bill which would cause unnecessary inconvenience, suspicion and grievances.

10. Mr Albert HO asked and Dr LI Kin-hung confirmed that narrowing the circumstances for mandatory reporting for items 2, 5, 6 & 9 would be acceptable to HKMA. The Deputy Chairman therefore asked HKMA to propose in writing as to how the circumstances for mandatory reporting could be narrowed. Miss Margaret NG also suggested HKMA to consider whether it was acceptable to require a medical practitioner to make an express declaration in the certificate of death, that element of uncertainty had been considered, in respect of these four kinds of reportable death.

HKMA

Reporting to the Commissioner of Police instead of to the Coroner (Part 2 of Schedule 1)

11. HKMA did not support the proposed requirement for the medical practitioners to report to the Commissioner of the Police in place of the existing arrangement to report to the Coroner in respect of reportable deaths on the grounds that: (a) in most cases of natural deaths, the Police could not decide whether to proceed with investigations or not; and (b) the Police could not make the final decision.

12. Miss Margaret NG shared the view of HKMA and added that since the investigation procedure of the Police was very different from that of the coroner’s officer, Police’s involvement might cause unnecessary delay and affect adversely the trust between the medical practitioner and the deceased’s family. In this regard, she stressed that the grief of the deceased’s family should not be underplayed.

13. Mr Albert HO then informed the meeting that he was given the understanding during his visit to the coroner’s office that reporting to the Police did not necessarily lead to investigation procedures similar to that of criminal cases. Only a standard form might need to be filed at the coroner’s office to be reviewed by the coroner. He reminded that police inspectors had been assisting the coroners in investigation work. However, Miss Margaret NG maintained that it would be difficult to expect a policeman to conduct different investigation procedures for natural reportable deaths and criminal cases. Dr LEONG Che-hung supplemented that the police inspectors seconded as coroner’s officers would not be able to be on duty around the clock and station sergeants might therefore receive reports of deaths. These policemen did not have the experience and expertise to make the judgement as to whether the circumstances were suspicious or not. Dr LEONG also pointed out that the deceased’s family had the right to make a report or to request an inquest into the cause of death. The Deputy Chairman then asked HKMA to consider whether it was acceptable for medical practitioners to write down the request of the deceased’s family in the certificate of death or in reporting the death.

14. Mr James TO asked whether it was feasible for the coroner’s office to have its own staffing establishment. Mr Stephen Fisher responded that the Law Reform Commission (LRC)’s recommendation for an independent unit of investigators under the control of coroner was not implemented because (a) there were resources implications; (b) civilian investigators did not have the Police’s powers of investigation and special powers would have to be provided under the Bill for such staff; (c) it would be difficult to recruit suitable persons who were trained to conduct this kind of investigation; and (d) policemen were properly trained to perform such kind of investigation work. Dr LEONG Che-hung said he could not agree with these reasons for not following the LRC’s recommendation in this respect. He also queried the rationale for entrusting the coroner with the power of seize and search, to be exercised through the police officers. As a third issue, Dr LEONG also pointed out that police officers should not be the appropriate persons to deal with cases of death of a person under police’s custody. Miss Margaret NG suggested the Administration to reconsider the issue and to avoid any appearance of conflict of interest. In the light of members’ views expressed at the meeting, Mr Albert HO urged the Administration to consider the feasibility of appointing independent coroner’s officers to assist in the investigation work.

HKMA

Adm

Coroner’s power of entry and search (section 10)

15. HKMA did not support the proposal to empower a coroner to issue a warrant to a police officer to enter and search any premises or place where the coroner was satisfied by information that there were reasonable grounds for believing that a thing might be relevant to the cause of or the circumstances connected with the death. It was of the view that issue of such a warrant would cause inconvenience and disruption of services in hospitals and medical institutes. HKMA therefore put forward a proposed amendment to section 10(1) by requiring the coroner to consider all the prevailing circumstances and the consequences arising from the entry and search when he invoked such a power.

Administration’s misconception perceived by HKMA

16. Dr LI Kin-hung informed members that HKMA had a meeting with Mr Stephen Fisher and perceived that the Administration’s decision to put forward the Bill was based on a number of misconceptions. Dr LI clarified such misconception by saying that (a) the LRC of Hong Kong’s Report on Coroners published in 1986 was not supported by the medical profession; (b) the medical and legal guidelines as drawn up by the public hospitals were not strictly followed and doctors would exercise their discretion particularly in reporting cases of natural deaths; (c) the numbers of reportable deaths and post-mortem would rise tremendously if the proposed list of reportable deaths was followed; (d) there would be great difference in handling procedures between reporting to the Commissioner of Police and reporting to the coroner; (e) objection of medical profession to the Bill was not due to possible incriminalization for failure to report reportable deaths but because of the negative consequences to follow the Bill strictly; and (f) a detailed list of reportable deaths to qualify sudden deaths was not necessary because sudden deaths could be natural. As regards the last point, Dr LI suggested that natural deaths should be separated from violent deaths and unknown deaths and that the current practice of reporting with discretion by doctors should be applied to cases related to natural deaths.

17. Dr LEONG Che-hung referred the Administration’s attention to the letter from the HKMA to the then Attorney General on 15 January 1988 (attached to HKMA’s submission dated 16 April 1996 issued vide LegCo Paper No. CB(2) 1041/95-96) which summarised the serious objections of the medical profession at the time when the LRC of Hong Kong’s Report on Coroners was published.

18. Miss Margaret NG also expressed her resentment of the Administration’s interpretation that a representation made by a profession must be a case of the profession’s self interest against public interest. She suggested the Administration not to prejudge any representation of profession as necessarily a representation of self-interest.

19. The Deputy Chairman then thanked representatives of HKMA for attending the meeting. Representatives of HKMA then left the meeting.

Responses by the Administration

List of reportable death

20. Mr Stephen Fisher referred to Chapter 2 of the LRC of Hong Kong’s Report on Coroners which was tabled at the meeting and subsequently issued to absent member vide LegCo No. CB(2) 1223-95/96. He briefed members on the rationale for including items 2, 5, 6 & 9 in the list of reportable deaths as set out in the report. He stressed that the Subcommittee of the LRC had consulted various interested parties on the subject. The objection from the medical profession was noted at that time. He explained that it was the recommendation of the LRC to prescribe by legislation objective criteria for reportable deaths and not to leave the reporting of such deaths to the discretion of persons who had a duty to report. Objective reporting criteria would bring to the notice of the coroner all deaths of which he should be aware. The coroner could not perform his statutory functions satisfactorily if he was not informed of deaths which required his attention. The coroner might be able to identify from such reported cases circumstances leading to deaths that were avoidable.

21. In response to Dr LEONG Che-hung’s query, Mr Fisher explained that the LRC had to maintain a balance between different interests in setting the cut-off point for item 2 at 14 days. He pointed not that the same requirement also applied in U.K..

22. Mr Albert HO agreed that it might not be necessary to report deaths in a lot of circumstances. Yet, an inquest was sometimes necessary even if the cause of death was certain. He concurred with Mr Fisher’s view that it was important to study the circumstances leading to the death with a view to avoiding similar occurrence in the future. In this regard, Miss Margaret NG shared his view and agreed that discretion should not be totally left to the medical practitioners. However, she opined that the list of reportable deaths had failed to strike a right balance.

Legal and medical guidelines drawn up by public hospitals

23. Mr Fisher referred to the guidelines for public hospitals and health institutions which were broadly similar to the provisions of the Bill. He expressed concern that such guidelines had not been generally followed, as suggested by the representatives of the HKMA. He added that since doctors did not have to follow the guidelines, it strengthened Government’s belief that laws must be established if guidelines did not necessarily need to be followed.

24. Miss Margaret NG cautioned that guidelines, as differed from code of practice, were not to be followed strictly without flexibility. Dr LEONG Che-hung also expressed strong objection to the view expressed by Mr Fisher, as a defamation against the medical profession. He emphasised that guidelines could be followed with discretion. In this connection, Dr LEONG requested that Hospital Authority’s recent letter to the Health and Welfare Branch, which set out its views on the Bill, should be provided for members’ reference. Mr Fisher agreed to provide the letter after consulting the Policy Branch. Mr Fisher also apologized for any misunderstanding caused.

Adm

Way forward

25. Miss Margaret NG suggested and members agreed that views from the Health and Welfare Branch, Department of Health and Hospital Authority should be sought on (a) how the guidelines issued by the Hospital Authority and the Department of Health regarding reportable deaths to the coroner were currently implemented in the hospitals and health institutions; (b) whether they were being strictly or flexibly observed at the various hospitals and health institutions at the moment; and (c) whether as a rule these guidelines should be followed with or without departure. Mr Albert HO further suggested and members agreed that the Hospital Authority and the Hong Kong Patients’ Right Association should be invited to attend the next meeting of the Bills Committee to present their views on the subject.

Clerk

Clerk

Date of next meeting

26. The next meeting would be held on Tuesday, 28 May 1996 at 4:30 p.m. to meet with deputations and to continue discussion with the Administration.

27. The meeting ended at 10:45 a.m..

LegCo Secretariat
30 May 1996