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Schaeffer v Ryan[2017] QDC 120

 

[2017] QDC 120

 

DISTRICT COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

JUDGE RYRIE

 

No 1087 of 2017

 

JULIETTE SCHAEFFER and ANOTHER Applicant

and

TERRY RYAN Respondent

 

BRISBANE 

 

12.20 PM, TUESDAY, 4 APRIL 2017

 

JUDGMENT

 

DELIVERED EX TEMPORE

Short introduction

The deceased, Mr Schaeffer, was admitted from orthopaedic out-patients into the Princess Alexandra Hospital, hereinafter referred to as the PA Hospital, on the 16th of June 2016 for treatment that related to an infection of his left foot.  After a prolonged period in the hospital, Mr Schaeffer passed away, that date being the 26th of September 2016.  The daughters of Mr Schaeffer, namely, Rebecca and Juliette, are the present applicants.  They seek an order pursuant to section 30, subsection (6) of the Coroners Act 2003 that an inquest be held into the death of their father because the State Coroner had refused to hold such an inquest. 

The Crown solicitor appeared on behalf of the respondent to this application before me.  Written submissions were received by the respondent (document number 4).  Included in the outline was an indication that the respondent would abide to any order ultimately made by this court but reserved its right to be heard on the question of costs.  No written submissions were received from the applicants, however.  In view of the fact that they were self-represented, I invited each of them to provide oral submissions if they so choose before me.  This was in addition to my consideration of the supporting affidavit material, which had been filed by them (document number 2).

Relevant background

On the 16th of June 2016, Mr Schaeffer was admitted into the PA Hospital for treatment of a diabetic left foot ulcer and osteomyelitis with sepsis.  The discharge summary completed by Dr Huang (PFC-4 of affidavit of Paula Campbell, filed 31st of March 2017, document number 5) confirms that this admission was against a background of chronic history of left diabetic foot ulcer and osteomyelitis, having been present over the preceding two weeks.  Mr Schaeffer eventually underwent a left below knee amputation, which ultimately was successful. 

Under the heading “In-patient clinical management”, Dr Huang sets out the various and significant medical events occurring during the course and throughout the admission of Mr Schaeffer in hospital.  The relevant death certificate also on file also sets out the cause of death, which was that Mr Schaeffer had died of sepsis of multifactorial aetiology after an extended hospital admission.  During the period of Mr Schaeffer’s admission into hospital, Mr Schaeffer’s family utilised the “Ryan’s Rule” process on four occasions.  Those four occasions were the 24th of July 2016, 16th of August 2016, the 24th of August 2016 and the 9th of September 2016.  Those occasions are in fact noted in the relevant discharge summary that was prepared by Dr Huang.  The last of those occasions is also referred to in an annexure to document number 2 at pages 24 to 35.  

As a consequence of Mr Schaeffer’s unfortunate passing in hospital, the family sought a coronial inquest into his death.  The Coronial Court of Queensland engaged the assistance of Dr Lincoln for the purpose of their consideration as to whether or not an inquest should be held or otherwise.  Dr Lincoln is a forensic medical officer from the Clinical Forensic Medical Unit, SER, who conducted an independent review of the hospital records that were provided with reference to specific concerns which had been raised by the family. In short, that report contained in document number 5 sets out the findings that Dr Lincoln made.

In summary and in short, Dr Lincoln could not identify any specific areas of concern in relation to Mr Schaeffer’s clinical care beyond poor communication between hospital staff and Mr Schaeffer and his family about his complex medical problems and management decisions.  She could find no evidence of any neglectful or negligent care by staff during the extended hospital admission of Mr Schaeffer.  As a consequence of that advice, Dr Buchanan, who was associated with the office of the Coronial Court of Queensland, determined that even though Mr Schaeffer’s death was a reportable death, it did not warrant any further coronial investigation. 

As a consequence of receiving that indication, the family then made a request to the State Coroner himself on the 2nd of October 2016, requesting nevertheless that an inquest still be held into the death of their father.  They also made a request similarly for a review by the Health Ombudsman.  The reasons for the decision shows that it was determined in response to the former that the State Coroner determined by written notification to the family dated 13th of March 2017 that it was not in the public interest for an inquest to be held.  The Health Ombudsman in the latter determined that it was appropriate that the parties attend conciliation in order to resolve any issues. 

The application before me is brought by the parties pursuant to section 30, subparagraph (6) of the Coroners Act, which states that:

If the State Coroner refuses an application to hold an inquest, that person may apply to the District Court for such an order. 

By section 30, subparagraph (8) [indistinct]:

…the District Court may order that an inquest be held if satisfied it is in the “public interest” to hold such an inquest.

Given that this was determined to be a reportable death, section 28(2) of the Act provides that in deciding whether it is in the public interest to hold an inquest, the coroner may consider both the extent in which drawing attention to the circumstances of the death may prevent deaths in similar circumstances happening in the future and any guidelines that are issued by the State Coroner about issues that may be relevant to the decision. 

With respect to the views of the family or other significant members of the community, it was  noted by Judge Dorney in the decision of Lockwood v Barnes [2011] QDC 84, of which I have had regard – that an inquest should be held where those views, such as the views of the family or other significant members of the community, are such that an inquest is likely to assist to maintaining public confidence in the administration of justice. As Judge Dorney noted at paragraph 23:

The object of the Act, as stated in section 3 of the Coroners Act, relevantly, by paragraph D, is to, amongst other aspects, help to prevent deaths from similar causes happening in the future by allowing coroners at inquests to comment on matters connected with deaths, including matters related to public health or safety, or the administration of justice.

Prior to the decision of Judge Dorney, the only other case that appeared to have considered these provisions is the decision of one of my colleagues, Judge Robertson, in Gentner v Barnes [2009] QDC 307.  I have had regard to the decision of Judge Robertson and, indeed, the comments by his Honour Judge Dorney and I agree, with respect, with the conclusions that were reached by Judge Robertson here, namely, that when relief is sought of such nature here, it should be granted rarely or sparingly and that regard should be had to the specialist nature of the office of the State Coroner, including resourcing issues. 

I also agree, as did Judge Dorney, with Judge Robertson that the phrase “in the public interest” involves a discretionary value judgment of a kind identified in O'Sullivan v Farrer [1989] 168 CLR 210, in the judgment of Mason CJ, Brennan, Dawson, and Gaudron JJ at 216.  While I agree that it is unnecessary to conclude from my point of view, sitting and hearing an application such as this, that the decision of the State Coroner was erroneous, I do not agree that it will be sufficient for the application to succeed on the views based solely the family of the deceased or the local community. 

I agree with Judge Dorney that in this regard, the views of the relevant persons, such as family and/or significant members of the community, are only a factor to be brought into account, and that such things as uncertainty or conflict of evidence are factors that will also affect the decision to be made.  I also agree with Judge Dorney when he says it can only be that such views are to be taken in the context of the factual matrix of the circumstances of the death and of the investigation, in which uncertainty and conflict might play a part, to determine whether the touchstone of “public interest” has been triggered.  It is only then that a decision can be made whether the views satisfied the required likelihood.  Judge Dorney said this much at paragraph 25 of his decision. 

As Judge Dorney also acknowledged, in Gentner, Judge Robertson clearly found that the uncertainty and conflict of evidence, given the range and extent of it in that particular case being heard before Judge Robertson when taken with the impact of family confidence, particularly having regard to the extent which the views of the family were taken into account, justified the use of the procedures available for holding an inquest.  Having regard to those applicable principles, I now turn to the specific matters that have been raised for my consideration. 

Specific issues raised by applicants

While no written submissions were received for consideration upon the hearing of this application from the applicants themselves, the oral submissions received from them upon the hearing of this application coupled with my review of document number 2, which had been filed by them, has been condensed by me as being the main points for consideration that was raised by them collectively. 

A common thread of complaint, which is evident, which was raised both orally and in document number 2 was that there was inadequate care and treatment being provided to their father throughout the course of his prolonged admission into hospital.  This included, as I understand it, a lack of basic care being provided, such as a lack of proper nutrition;  inadequate supervision of fluid intake;  a failure to treat his chronic diarrhoea in a timely way, if it at all;  the failure to properly identify, treat and care for the development of an ulcer on his right heel that had arisen during the course of his hospitalisation;  the failure of a proper treatment of it, namely, a failure to properly elevate his foot;  the incorrect focus by certain medical staff, who failed to clinically and properly focus on their father’s declining health, such as suggesting that he may well have been suffering from the onset of early dementia about a week before he died, rather than addressing real issues behind the reason for his confusion and the like, being that he was, in fact, seriously ill physically as a result of any lack of care and support which was not being provided to him.

Most, if not all of those specific matters, were the subject of the Ryan’s Rule formal processes to which I have already referred to, which has been initiated by the family during the course of his admission.  Having regard to the evidence that is available before me for consideration of this issue, I could find no evidence to support a finding that there was, and had been, inadequate, neglectful or negligent care being provided by the relevant staff to Mr Schaeffer during his stay in hospital.  Dr Lincoln, who conducted an independent review, who had the benefit of all of the medical expertise available to her, coupled with the complete file, including medical records, found that there were no areas of concern, other than beyond the poor communication between hospital staff and Mr Schaeffer and his family about the complex medical problems and management decisions that were made in respect of his ongoing care within the hospital. 

As such, and in light of the findings that were made by Dr Lincoln – in particular, that there was no evidence of neglectful or negligent care by staff during the course of Mr Schaeffer’s admission, it is difficult to elevate this particular concern that has been raised by the family, over and above what the evidence provided on this application supports, namely, the medical conclusion that has been drawn by Dr Lincoln, as I have said, who had the expertise and benefit of having the full medical file for review. 

The next matter that was raised by the family concerned the failure of the PA Hospital, as they saw it, their failure to follow the protocol as set out in respect of Ryan’s Rule.  I have marked that document, coupled with other documents relating to Ryan’s Rule, as exhibit – collectively – number 1.  This was specifically referred to by the applicants at page 29, document 2, and again in oral submissions before me. 

I have had careful regard to the available evidence on this point.  Dr Lincoln was of the view that the hospital’s response on each of the four occasions appeared to be appropriate, with emphasis on facilitating (better) communication between Mr Schaeffer and his family. 

Dr Lincoln noted, at page 2 of her report, that the records she reviewed indicated his family was satisfied with the response on each of the occasions that they had initiated under the Ryan’s Rule.  This was clearly not reflected in the oral submissions that were made before me by the family.  In fact, it was refuted by the family, both in their oral submissions and in their correspondence to the State Coroner – see page 4, document number 2, dated 2nd of October 2016.  That document postdates Dr Lincoln’s report, dated 29th of September 2016.  On this point, during oral submissions, it became evident that the applicants stated that they were not, in fact, satisfied with the hospital’s response, and in particular, as it related to the last of the Ryan Rules occasions that they had been initiated on the 9th of September 2016, which they believe to show that the hospital did not, in fact, follow the protocol of the rule.  In this regard, the applicants referred me to the transcripts of the calls made on that last occasion, between 13 HEALTH and the relevant officers who were involved in the process under the rules, in accordance with the protocol – see pages 24 to 36 respectively, document 2. 

After a careful review by me of those transcripts of the protocol, as set out in the respective Ryan’s Rule, which I have marked, as I have said, collectively as exhibit number 1, I am regrettably not, however, satisfied, in my mind, that I can conclude – or that it is, in fact, suggestive of a failure by the PA Hospital to follow the relevant protocols, as they are currently stated.  Part 3 of the call on the 9th of September 2016 – page 33 onwards of document number 2 – confirms that the after-hours nurse unit manager in charge of the Ryan’s Rule at the PA Hospital (Jude) confirmed that the treating consultant had, in fact, been notified and spoken to by Jason, who had also organised, for the next day, a meeting with the family in order to discuss their concerns.  It was evident from that transcript that the meeting proposed with the family was considered to be the appropriate course to be taken, because there had been no acute clinical change or deterioration in Mr Schaeffer’s condition at that particular time – a factor relevant insofar as the application of the Ryan’s Rule itself.  It is also evident from the Ryan’s Rule Clinical Review evaluation form, page 36, document 2, that that call had in fact been considered and in fact been actioned in accordance with the protocol.  While the family argue that there is a failure in the protocol to have those who are treating the patient indeed be the ones then asked to conduct a review under the Ryan’s Rule, nevertheless the fact remains the same.  The protocol, as it currently stands, sets out that process and in fact, it was adopted. 

Conclusion

Having regard to the available evidence which I have reviewed, to which I have just referred to, I am not satisfied in the circumstances of this application that it is in the public interest for an inquest to be held.  I shall now indicate why.  While I accept that the standard and level of care provided to an in-patient or, indeed, even an out-patient within the public hospital system will always be something that may in certain circumstances be a matter of public interest, I am regrettably not satisfied in the circumstances of this particular case that it is in the public interest to hold an inquest.

As noted already by Dr Lincoln in her independent review, Mr Schaeffer presented with multiple complex medical problems that were particularly challenging for medical staff in diagnosis and managing the problems as they arose during the course of his admission (see 3, subparagraph (c), page 2 of her report).  Dr Lincoln in that particular paragraph noted that it was clear from the records she reviewed that those multiple complex medical problems were distressing not only for him and his family, they were associated with considerable challenges for medical staff in diagnosing, managing problems as they arose, in particular with the persistent diarrhoea and the like.

That factor which I have already referred to by reference to Dr Lincoln’s observations is also evident from my reading of the medical notes that have been made available to me for consideration, including the observations of Dr Huang, particularly under previous medical history, as contained in PFC-4, document 5 and the notes regarding his in-patient clinical management, also contained in that document.  Section 46(1) of the Coroners Act requires a consideration of certain matters when a coroner who is investigating a death, if possible, can find who the deceased person is, how the person died, when the person died and where the person died, in particular whether the person died in Queensland and what caused the person to die.  Clearly, each of those factors are able to be addressed and were in fact addressed by the State Coroner, who concluded that none of those matters were left in doubt. 

As I have already indicated, when determining whether it is in the public interest to hold an inquest, the coroner can look at and should look at the circumstances of the death, which might prevent deaths in similar circumstances happening in the future.  I am not so satisfied in this case that this is an appropriate case or vehicle to allow for that consideration.  It is difficult to reach that conclusion, particularly in this particular case which was complicated and complex medical issues that presented with Mr Schaeffer even at the time of his admission and subsequently, that arose as a consequence of his admission within hospital. 

There also does not appear to be before me sufficient reason, such as things of uncertainty or conflict in the evidence, to be brought into account, which are factors that also could affect my ultimate conclusion.  While I agree that views of relevant persons, such as the family, are a factor to always be brought into account when considering such an application such as this, particularly if there is uncertainty and conflict in the factual matrix of the circumstances of the death, I am  not satisfied that it is in the public interest in this particular case to order an inquest.  In all the circumstances, therefore, of this application, I am not satisfied that it is in the public interest for an inquest to be held in this particular case. 

Order

In consequences of the conclusions which I have reached, I order that the application be dismissed.  Given the circumstances of this particular case, I do not consider that the making of any order as to costs should be made.  I understand that the Crown solicitor has reserved the right to be heard on the question of costs and I am happy to receive that.  However, I am still of the view that this is not an appropriate case for an order as to costs to be made.  That will be my reasons for the decision.  They will actually be published as soon as those listening can transcribe it.  The parties will then receive a copy of it once I review it in order to correct any spelling errors and the like.  They will be provided to the Crown solicitor, who is the respondent, as well as the applicants, both Rebecca and Juliette Schaeffer.

Close

Editorial Notes

  • Published Case Name:

    Juliette Schaeffer & Anor v Terry Ryan

  • Shortened Case Name:

    Schaeffer v Ryan

  • MNC:

    [2017] QDC 120

  • Court:

    QDC

  • Judge(s):

    Ryrie DCJ

  • Date:

    04 Apr 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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