Wednesday, 28 March 1962
Seanad Eireann Debate
Mr. Fitzpatrick: Arising out of remarks made by other Senators, I of course would be quite satisfied, or  even more satisfied, if the papers were sent to the county registrars every year instead of every five years. I was rather timid about putting down once a year.
Mr. Haughey: Two separate matters are involved here. There is a proposal in Senator Fitzpatrick's amendment which at first sight seems fairly reasonable but it is not so simple as it leads to two very definite problems. In the first place this is a new provision. At the moment there is no machinery for the handing over of these documents and if we were to accept Senator Fitzpatrick's suggestion we would, I think, put a very real and immediate strain on the storage space which county registrars have available. There is that objection. I think it is more desirable to introduce this over a period so that only as coroners leave office will their documents be handed over. Otherwise we would have either now or in five years from now a sudden flood of documents descending on county registrars. Over a period of years they can make the necessary arrangements to deal with the situation.
Another objection is that I think I would be in serious trouble with coroners themselves if I adopted this proposal. These records after all are to a large extent the coroners' own records and coroners would wish to keep them until they leave office and would object if they were compelled to hand them over at any stage before they retired from office. Some of these are documents to which they must have recourse from time to time and I understand that fees accrue from the supply of copies of these documents.
Those are two very reasonable objections to Senator Fitzpatrick's proposal and sufficient to rule it out. I am not sure that we are losing a very great deal by not accepting it. All of us are anxious that the documents be preserved and we achieve that by the proposal in the Bill that if a coroner leaves office for any reason the documents  are handed over at that stage but not before that.
The question has also been asked: who is to hand over these documents? Again I think the Bill is all right as it stands. We do not indicate anybody in particular as being responsible for handing them over. The Bill leaves the situation at large and merely indicates that they must be handed over. The obligation is placed on whoever would be responsible. If a coroner retires under the new age provisions the obligation clearly is on him to comply with subsection (2). If the coroner dies in office then the obligation, it seems to me, devolves on his executor or administrator or on whatever person has his records in his possession. That is the right way to deal with this: to indicate in the Bill the simple obligation to hand over. Naturally, in the normal course of events, that obligation applies itself to a particular person who for the time being has the records in his or her possession.
Mr. Fitzpatrick: I do not think, with all respect to the Minister, that there is any real sense in what he says about storage. County registrars have a lot of storage space. County registrars do send on their documents and records to the Public Records Office at given intervals, I think every twenty years. At least they keep the records in the office only for twenty years and that means that every year a certain supply goes to the Public Records Office. Furthermore, the amount of documents which Coroners would accumulate at one time would be considerable. I understand from one coroner that there is some obligation, perhaps not a legal obligation, but they do pass them on to somebody every year. I may be wrong. Some coroners will be glad to be rid of them and certainly a loss of revenue would not arise at all because depositions are required from coroners only within months of their being taken when they are required by a solicitor for criminal or civil proceedings which take place within a reasonable time after the depositions are taken.
I still think that the amendment is a sound one. I think that an  obligation which merely says the documents shall be handed over and does not impose that legal obligation on the legal representatives of the deceased coroner——
Mr. Fitzpatrick: If the coroner himself is alive he should hand them over but if his term of office comes to an end on his death that is where the difficulty arises. It should be clearly stated that either his personal representative or better, the person into whose custody the documents come, should hand them over. That would put it beyond doubt. I am not pressing the amendment although I strongly recommend it.
I should like to pose a question. What authority has a coroner to call on a practitioner to carry out an examination? Supposing the medical practitioner in the locality, or the county surgeon, for some reason said: “I do not want to carry out the post-mortem examination”, has the coroner any power to call on him to do it? Is it a term of the conditions of appointment of, say, a dispensary doctor or a county surgeon that he should carry out such post-mortem examinations as he may be called upon to carry out by the coroner?
Mr. Haughey: There is no question of the coroner being able to compel a physician or a pathologist to carry out a post-mortem examination. A coroner can compel anyone to come along as a witness. I do not know the terms and conditions of the appointment of dispensary doctors, but I should not imagine there is such a condition. I shall have the matter looked into for the Senator.
“(b) for the purpose of paragraph (a) of this subsection, a coroner or deputy coroner who is a solicitor and an executor of the deceased shall not be taken to benefit under a testamentary disposition merely because he is authorised to charge fees in respect of the administration of the estate.”
Mr. Haughey: They may be  discussed together because amendment No. 10 was put down with the same object as amendment No. 9. Deputy Sweetman raised this matter in the Dáil and, on consideration, I felt that I should meet his point of view. This amendment is designed to do that. The point involved is fairly simple. As Senators will see, Section 35 prohibits a coroner or a deputy coroner from holding an inquest if he draws up, assists in drawing up, or benefits under a will. Deputy Sweetman was anxious that where a will included a provision that a solicitor should be entitled to charge his professional fees for work done in connection with the estate, that would not be regarded as a benefit sufficient to disqualify him from carrying out the inquest. Amendment No. 9 meets Deputy Sweetman's point in that regard.
Mr. Moloney: I suggested to the Minister on Second Reading that the same people should not be called too often for jury service. I suggested that provision might be made whereby the same personnel would not be summoned to jury service more than once in every 12 months or couple of years and that jurors should be recruited from a wider variety of people. Up to now the practice seems to have been that the same 10 or 12 people were always called. That is undesirable. There are many reasons why it is necessary that the scope should be widened. In that way we would tend to get more impartial  verdicts. Juries can have a very big influence in bringing in verdicts no matter what directions are given by the coroner.
Mr. Haughey: I have considered this matter since it was mentioned by the Senator on Second Stage, but I do not think it is a matter appropriate to the Bill. It would be more appropriately dealt with administratively. I propose to mention the matter to the Commissioner of the Garda. That is probably the best way of dealing with it. I shall mention the fears which the Senator has expressed.
Question proposed: “That Section 44 stand part of the Bill.”
Professor Hayes: This means that, taking Section 41 and Section 44 together, four people suffice for a verdict—a majority of the six.
Mr. Haughey: Yes.
Question put and agreed to.
Section 45 agreed to.
Mr. Fitzpatrick: I move amendment No. 11:
In subsection (1), page 14, line 36, to delete “place” and substitute “building under the control of a local authority or Department of State”.
Section 46 (1) provides:
Where a coroner considers it necessary to hold an inquest on, or a post-mortem examination of, the body of a deceased person, he may direct that the body be removed into a convenient mortuary or morgue or other suitable place (whether inside or outside his district) and kept therein until he otherwise directs, and he may make such arrangements for the removal of the body as he considers necessary or desirable.
By virtue of that subsection it would  be possible for a coroner to direct that a dead body be removed to a private house nearby and kept there until such time as he makes such arrangements as he considers necessary or desirable, or until such time as the post-mortem examination was carried out or the inquest disposed of, or permission given to bury the body. Under the law as it stands an obligation is imposed on licensed publicans to receive a dead body on the direction of a coroner. That obligation was considered onerous and it has been removed in this Bill as I understand it, but this very wide discretion is given to the coroner to direct that the body be removed to a mortuary, morgue or other suitable place. Human nature is human nature and sometimes coroners are not the most reasonable people whom one could wish to meet. While by and large they may be reasonable you could meet an unreasonable coroner who would act in an unreasonable manner.
I wish to press this amendment fairly strongly because it is no more than reasonable and in substitution for that very wide discretion which is given to the coroner. I suggest that the coroner be given authority to direct that the body be removed to a convenient mortuary or morgue or other suitable building under the control of the local authority or a Department of State. Certainly, within a mile or a very short distance of where a sudden death is likely to take place, one would find a mortuary, morgue, or public building under the control of the local authority or a Department of State. Why should one take the risk, even if it only happened once in a lifetime, of some unreasonable coroner deciding when a sudden death took place to deposit the body in an adjoining private house? That is highly undesirable and unreasonable and is an unnecessary risk which should not be run. As I say, there are courthouses, Garda barracks, schools, dispensaries—one could give a whole litany of suitable places—where a body could be brought.
Mr. Mooney: I do not agree with the previous speaker. He mentioned courthouses in regard to suitable places to which a dead body could be  brought. There are places where you would travel more than a mile before coming to a courthouse. I have villages in mind where there are no public buildings except possibly a national school. My worry was in regard to having the body removed from the scene. The Minister should take cognisance in this Bill of the fact that bodies should not be left lying for long periods especially after road accidents when measurements are being taken. I know of one case where solicitors were brought in, in a case where legal proceedings were to follow, at the mid-hour of night with the body lying there. I would urge on the Minister the necessity of having a body removed as soon as possible. The coroner would fulfil his obligation by having seen the body without having to wait until all the arrangements were made. It would be much easier on the people bereaved. The body could be removed to the home of the people concerned, apart from a public building. I would urge on the Minister the necessity for having this terrible delay wiped out and for not having the body left there for everybody to gaze at.
Professor Dooge: The question of the place, disposal and rapid disposal has been raised. I want to raise again the question of the wide powers being given to the coroner in regard to the manner in which the body should be conveyed——
An Cathaoirleach: That matter does not arise on the amendment. The Senator can raise it when the section comes up for discussion.
Mr. McAuliffe: On the amendment, I would not agree that public buildings should include a national school. It would be very undesirable to have a remains brought to a national school.
Professor Hayes: A national school surely is not a State building? It is controlled by a manager.
Mr. Hogan: There is a point which I wish to make in regard to the removal of a body. Although the Minister did say that with a little goodwill among a number of people,  the local authority, the coroner and possibly the Gardaí, there would be no difficulty in having a body removed after an accident, and when an inquest has been deemed necessary, I wish to inform the Minister that great confusion has occurred over that very simple matter in many counties, including my own when the local authority has a direction from the Minister for Health pointing out that the ambulance of the public authority should not be used——
An Cathaoirleach: That matter could be raised on the section. It does not arise on the amendment. We are dealing with amendment No. 11.
Mr. Haughey: I should like to meet Senator Fitzpatrick on this when he bases his plea on reasonableness. However, I think I am right in rejecting his argument. Indeed, a couple of illustrations he gave show how readily one could get into trouble in this matter. A dispensary was mentioned. I do not think a dispensary would necessarily be a suitable place. As often as not, there would be quite a number of children in a dispensary and you might completely immobilise a dispensary by depositing a body in it. The right thing to do is what we suggest in the Bill, to leave it to the coroner. We cannot legislate on the basis that a coroner will be unreasonable. A coroner may on occasion act unreasonably. We cannot help that. We must assume that coroners are reasonably sensible people, and retain the necessary latitude. We say in the Bill that the coroner shall make arrangements to remove the body to a mortuary, morgue or other suitable place. I think that is sufficient. I would not regard a private house as being suitable if anywhere else were available.
There is another aspect. If we were to withdraw the discretion from the coroner altogether he would not be able to order the removal of the body to a private house even though the relatives would want that. You could envisage a situation in which relatives would wish a body to be removed to some suitable private house, maybe  not their own house, and if we were to adopt Senator Fitzpatrick's amendment the coroner would not have the discretion to have that done. So that from every point of view, it is better to leave it as it is and rely on the good sense and discretion of the coroner to decide in the normal way what public building would be availed of. Local circumstances would be taken into account and the most suitable place decided on.
Mr. Fitzpatrick: It would be possible to add a saving proviso enabling the coroner to remove the body to the house of the deceased at the request of the relatives. That would be quite suitable.
An Leas-Chathaoirleach: Is the amendment withdrawn?
Mr. Fitzpatrick: I am not pressing it.
Amendment, by leave, withdrawn.
Question proposed: “That Section 46 stand part of the Bill.”
Professor Dooge: The section as it stands empowers coroners to direct that the body be removed but it does not specify whether he directs the local authority to remove it, and I take it the section allows the coroner to direct somebody other than the local authority to remove the body from the scene of death to a suitable place. If expenses are involved in the coroner exercising his powers to direct somebody other than the local authority, is the coroner liable for these expenses and how can they be recovered?
Mr. Hogan: Would the Minister say whose business it is to provide the means for the removal of a body? Is it the local authority's, the Gardaí's, the coroner's? I do not want a continuance of this dual direction. The local authority may have a suitable means of removing a body or they may not. I should like the Minister to define whether it is the coroner, the Gardaí or the local authority who are responsible for the removal of a body. I saw a dead body lying on the side of the main Dublin-Limerick road for eight hours  while the coroner, the local authority and some other parties concerned were making up their mind as to which of them would remove it. That should not be allowed.
Mr. Haughey: There is no doubt as to whose job it is. It is the coroner's job. Section 46 says:
Where a coroner considers it necessary to hold an inquest on, or a post-mortem examination of, the body of a deceased person, he may direct that the body be removed into a convenient mortuary or morgue or other suitable place...
That covers practically every case. By definition any road death—
Mr. Hogan: Does it specify the mode of conveyance and who is to provide it?
Mr. Haughey: I will come to that.
Mr. Hogan: There is a regulation governing the use of ambulances. There is no question about that.
Mr. Haughey: By definition that includes every death arising out of a traffic accident on the road. An inquest must be held and the responsibility for removing the body is clearly the coroner's. Secondly, if Senators will turn to Section 57 (c) they will see clearly that the expenses payable in connection with removal or custody of a body are part of the fees and expenses which shall be prescribed by the Minister in consultation with the Minister for Local Government. Also, under Section 58 fees are to be paid. So that the answers to the questions are that the coroner is responsible and he is entitled to recoup from the local authority any expenses which he may incur.
I want to come to the question of ambulances. There is no doubt that the normal sensible way for the body to be removed in the sort of case mentioned by Senator Hogan is in the local authority ambulance. In that regard, I want to quote from a circular which the Department of Health has sent to each health authority and board of public assistance on 28 Meán Fómhair, 1957. It refers to the use of ambulances in  accident cases. The extract is as follows:
I am directed by the Minister for Health to enclose a copy of a statement issued to the Press in relation to the use of ambulances. The Minister does not wish health authorities to regard the circular of 11th March, 1936, as preventing them from using an ambulance to transport, immediately following an accident, a victim of such accident even though he is apparently dead. Having regard to the varied circumstances which may arise in this respect, the Minister does not wish to issue any general instructions on the use of ambulances in such cases; the decision as to such use is one for the health authority, having regard in each case to the functions of the coroner and the police authorities and, of course, to the over-riding need to have an ambulance available for the conveyance of sick persons.
It is as clearly put there as it possibly can be that the local authority ambulance is available. Indeed, there is an implication that it is available to remove or should remove the dead body following an accident.
Mr. Ted O'Sullivan: There is a suggestion that the circular of March, 1936, prevented that being done.
Mr. Haughey: It would appear that the circular of 1936 did prevent it. That situation was remedied and rectified in 1957.
Mr. Hogan: Can I take it from the Minister's explanation that the coroner, under the Bill we are about to pass, will be entitled to direct the local authority to send an ambulance to remove a dead body?
Mr. Haughey: No.
Mr. Hogan: The whole thing is foolish then.
Mr. O'Reilly: If the coroner fails in his duty, then the duty devolves on the health authority in so far as the health authority is also a sanitary authority. If the coroner fails in his duty, would the responsibility devolve upon the sanitary authority?
Mr. Haughey: I cannot understand Senator Hogan saying that the whole arrangement is all foolish. It is nothing of the sort. It is perfectly clear cut and precise. The coroner has the obligation placed on him by this Bill to get the body away from the scene of the accident to some suitable place fast.
Mr. Carton: Would he be entitled to go to an undertaker?
Mr. Haughey: He would.
Mr. Carton: If the health authority refused to supply an ambulance?
Mr. Haughey: That is exactly the point I am going to make. If he asks the local authority to remove the dead body and they do not do so and though it is absolutely clear that the local authority ambulance may do so, if it is not available or is refused, then the duty is on the coroner to make some alternative arrangement such as the one suggested by Senator Carton, such as to get an undertaker. The expenses are to be paid.
Mr. Moloney: Is it necessary to await the permission of the coroner before the body is removed? I thought the Gardaí. Obviously, if he were not accident would remove the body. There is the danger that a coroner might not be available. I should like to know how that is provided for.
Mr. Haughey: On Second Stage I suggested that it is a matter for sensible arrangement. I would certainly visualise that a working arrangement would be come to by the coroner with the Gardaí. Obviously, if he were not available, they would have his authority.
Mr. Mooney: Due to the fact that there have been occurrences of the type mentioned, we are insisting upon certain safeguards. The ambulance should be made available. There should be expedition in regard to the removal of a dead body. The body should be removed as quickly as possible after an accident.
Mr. Nash: I think the Minister has applied his mind to the fact that it is optional here. I gathered from the Minister's remarks that it was the  duty of the coroner to see after the removal of the body. He may direct the body to be removed.
Mr. Haughey: Only in regard to places.
Mr. Nash: I see. Thank you very much.
Mr. Moloney: I think it desirable that the Minister should look into this point further and not have the situation which developed in the past where the Gardaí put the responsibility on the coroner and the coroner put it on the Gardaí. I know of a case where it took 14 hours before the body was removed. The coroner was away at a football match in Dublin and the deputy coroner was not available. Why should we make ourselves ridiculous? Is it not obvious that expedition should be employed in this matter? The Gardaí ought to be competent to decide whether the person is dead and have him taken to the morgue or a hospital. Why wait for the coroner's direction at all?
Question put and agreed to.
Section 47 to 59, inclusive, agreed to.
Schedule agreed to.
Title agreed to.
Bill reported with amendments.
Agreed to take remaining Stages today.
Bill, as amended, received for final consideration and passed.
Mr. Haughey: May I just before leaving say through you, Sir, to the Seanad that I want to apologise for any inconvenience which my absence in the Dáil may have caused this evening, and which was completely unintentional? I appreciate very much the courtesy which the Seanad has extended to me in relation to it.
Mr. L'Estrange: The Minister got through safely there also.
Professor Hayes: The Minister showed great courtesy himself.
The Seanad adjourned at 9.55 p.m. until 3 p.m. on Wednesday, April 11th, 1962.
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