Inquests and Fatality Inquiries
An inquest or fatality inquiry is an investigation into a sudden, unexpected or suspicious death or into a death which legislation requires to be reported to a coroner or medical examiner. It is usually a public hearing, although some provinces1 provide for closed hearings to safeguard public security or where disclosure of records could affect the mental or physical welfare of a third party.
Why are inquests held?
While the systems may vary between provinces and territories (coroner or medical examiner), the purpose is the same. An inquest or a fatality inquiry must answer five questions concerning the deceased: who he was; when he died; where he died; how he died; and the manner of death e.g. accident, homicide, suicide, natural or undetermined.2 An inquest is not held to determine civil or criminal liability.3 Recommendations arising out of an inquest may be used to try to prevent similar deaths from occurring.
What is the role of the police?
In some jurisdictions the police assist the coroner in investigating the death of the deceased and may wish to question the nurse. This is NOT a criminal investigation.
What is the role of a witness at an inquest?
A nurse involved in the care of the deceased may be served with a summons to attend as a witness at an inquest and must comply. Failure to attend could result in the arrest of the nurse, fines or imprisonment.4 A witness should not bring nurses’ notes nor the patient’s chart to the inquest unless the subpoena requires this. The coroner may already have the chart and other relevant documents. Coroners have broad powers of search and seizure and may not require a search warrant to access the deceased’s patient record.5
An inquest is presided over by a coroner or by a provincial court judge who will have a witness swear an oath or affirm that the evidence given is true. The nurse witness will be questioned by the coroner’s counsel and may be asked about chart entries, debriefings and any other relevant matters. The witness may also be questioned by lawyers for persons with standing at the inquest6 and then re-examined. The coroner may question the witness at any time. Where a jury sits to hear the matter, jurors may directly question the witness. A transcript of testimony is made by the court reporter.
After all witnesses have been heard, the coroner’s counsel and lawyers representing parties with standing will present closing statements. A jury will then address the five questions and may make recommendations to prevent future deaths. In the absence of a jury, a coroner or judge will carry out the same functions. No finding of legal responsibility can be made nor any conclusion of law expressed.7
Does a nurse witness need a lawyer at an inquest?
Usually not.8 While a nurse may talk with a lawyer concerning her rights as a witness, that lawyer cannot participate in the inquest without permission of the coroner.9 However, if the care given by the nurse is in question, the nurse should speak with a lawyer. There have been circumstances where a coroner has reported a nurse to the nurse’s licensing body.
If it appears that a witness is going to give self-incriminating evidence, the coroner will warn the witness of her rights.10 Generally, testimony given by a witness at an inquest cannot be used against the witness in any other legal proceedings except perjury.11
How can you protect yourself as a witness at an inquest?12
- Discuss any concerns with a nurse lawyer at CNPS
- Know your employer’s policies relating to death of a patient e.g. notification of coroner or medical examiner; preparation for morgue
- Document clearly in nurses’ notes
- Review nurses’ notes beforehand, if possible
- Answer questions accurately, clearly, and factually from personal knowledge
The Canadian Nurses Protective Society (CNPS) offers information for witness appearances and legal assistance when required. If you would like help with an inquest appearance, contact CNPS at 1-800-267-3390.
- Nova Scotia, Prince Edward Island, New Brunswick, Manitoba.
- Coroners Act, R.S.O. 1990, c. C-37, s. 31; The Coroners Act, 1999, S.S. 1999, c. C-38.01, s. 19.
- Coroners Act, R.S.N.W.T. 1988, C-20, s. 22.
- Coroners Act, R.S.Y. 1986, c. 35, ss. 21(3)-(4).
- Fatality Inquiries Act, R.S.A. 2000, c. F-9, ss. 21(1)(a)-(b), 21(3)(a)-(b); Coroners Act, R.S.N.B. 1973, c. C-23, s. 9.1(1)(b).
- Standing may be granted to parties with a substantial and direct interest in the hearing with accompanying rights. The Manitoba Association of Registered Nurses was granted standing at the Manitoba Pediatric Cardiac Surgery Inquest into twelve pediatric deaths at the Winnipeg Health Sciences Centre in 1994; the Registered Nurses Association of Ontario was granted standing at the Inquest into the death of Joshua Fleuelling in 2000, regarding emergency room overcrowding.
- Coroners Act, R.S.O. 1990, c. C-37, s. 2(2).
- infoLAW, Vol. 5, No. 1, June 1996.
- Coroners Act, R.S.O. 1990, c. C-37, s. 43; The Coroners Act, 1999, S.S. 1999, c. C-38.01, s. 43(2).
- Canada Evidence Act, R.S.C. 1985, c. C-5, s. 5.
- Coroners Act, R.S.O. 1990, c. C-37, s. 42(1).
- Supra note 8.
N.B. In this document, the feminine pronoun includes the masculine and vice versa.
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.
Vol. 12, No. 2, March 2003