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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
38
Protocol with Aboriginal legal and health services for autopsy
The Commission notes that whilst the conduct of a thorough autopsy is generally a prerequisite for an adequate coronial inquiry some Aboriginal people object, on cultural grounds, to the conduct of an autopsy. The Commission recognises that there are occasions where as a matter of urgency and in the public interest the Coroner may feel obligated to order that an autopsy be conducted notwithstanding the fact that there may be objections to that course from members of the family or community of the deceased.
The Commission recommends that in order to minimise and to resolve difficulties in this area the State Coroner or the representative of the State Coroner should consult generally with Aboriginal Legal Services and Aboriginal Health Services to develop a protocol for the resolution of questions involving the conduct of inquiries and autopsies, the removal and burial of organs and the removal and return of the body of the deceased.
It is highly desirable that as far as possible no obstacle be placed in the way of carrying out of traditional rites and that relatives of a deceased Aboriginal person be spared further grief. The Commission further recommends that the Coroner conducting an inquiry into a death in custody should be guided by such protocol and should make all reasonable efforts to obtain advice from the family and community of the deceased in consultation with relevant Aboriginal organisations.
It’s all good to say would you like to object to an autopsy, but our mob don’t, deep down we can’t object because you’re going to do what you want to do.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 38 was to develop a culturally respectful protocol for autopsies involving Aboriginal individuals that honours traditional practices, reduces family distress, and supports timely and thorough coronial investigations.
Practice Direction 6 refers to Recommendation 38 and the Coroners Act 2008 (Vic) which require coroners to consult with the senior next of kin of an Aboriginal person who has died in custody in relation to any cultural considerations around proposed autopsy and release of the body.
When the person who has passed is in the car of the Victorian Institute of Forensic Medicine (VIFM) the Aboriginal Medico-Legal Liaison Officer is the central point for communication with all Aboriginal families. They work closely with the Coroners Court Yirramboi Murrup Unit to liaise with families on cultural matters and considerations to ensure appropriate arrangements are made.
Recognising that some families may have cultural or religious objections to an autopsy being undertaken, Section 25 of the Coroners Act 2008 (Vic) provides for the senior next of kin to make an objection (within 48 hours) to an autopsy. The coroner must consider the request, determine whether an autopsy is necessary or not, and provide the senior next of kin with written notice of their determination.
A protocol with Aboriginal legal and health services for autopsy has not been developed. Practice Direction 6 was developed with input from some Aboriginal groups but includes only some provisions relevant to this recommendation.
Caucus members, including those referred to in this recommendation, felt that it wasn’t necessary to develop a specific protocol in response to it, provided the needs of Aboriginal families were met, and their cultural requirements recognised and responded to. This could occur through responses to other RCIADIC recommendations, and Practice Direction 6, by ensuring that it covers specific aspects of the coronial inquest process, to make sure that families are being appropriately engaged at the right times and in the right ways.
Priority for Further Work:
Moderate
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Strengthen Practice Direction 6 and related guidance for VIFM staff
Coroners and VIFM staff to be guided by the principle in the VIFM Act 2024 and support the carrying out of traditional rites and any other cultural practices requested by Aboriginal families to care for their kin, so that they may be spared further grief.
Training for pathologists on determinants of Aboriginal health and the RCIADIC (also in response to Rec 37)
Ensure all Victorian Institute of Forensic Medicine pathologists are trained on the determinants of Aboriginal health, relevant RCIADIC findings, and the implications for coronial inquests when a death in custody is determined to be due to ‘natural causes’. Training should aim to build capability to enable pathologists to perform their functions in line with the Aboriginal cultural rights principle in the VIFM Act 2024.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) recognised that autopsies can be deeply distressing for Aboriginal families, especially if they conflict with cultural beliefs and practices around death. The Commission acknowledged that while there may be strong cultural objections, there are times when an autopsy may still be required.
To ensure these situations are handled respectfully, the Commission recommended that the State Coroner work closely with Aboriginal services to create a protocol to guide how investigations and autopsies are carried out. When following this protocol, coroners also need to make every effort to consult with the deceased person’s family and community, to ensure decisions are made with cultural understanding and care.
Actions Taken Since Last Review
Coroners Court of Victoria
In case law, it has been emphasized that the decision to order an autopsy must take into account not only its necessity for the investigation of the death, but also whether conducting one is appropriate under the circumstances. The determination of appropriateness is a distinct and important consideration that,
calls into consideration a broad range of potentially relevant matters, including likely distress to the deceased’s next of kin and family, and likely distress which may arise as a result of cultural, religious and spiritual beliefs, laws and practices, if an autopsy is carried out.
In 2020, the State Coroner issued Practice Direction 6 – Indigenous Deaths in Custody (Practice Direction 6). This practice direction highlights the importance of culturally sensitive protocols for conducting coronial inquiries into Aboriginal deaths in custody. It requires the senior next of kin of an Aboriginal person who has passed in custody to be consulted in relation to any cultural considerations around proposed autopsy and release of the body.
The Yirramboi Murrup Unit (formerly the Coroners Koori Engagement Unit) may also liaise with families on cultural matters and considerations to ensure appropriate arrangements are made throughout the coronial process.
Victorian Institute of Forensic Medicine
The Aboriginal Medico-Legal Liaison Officer (AMLO) is the central point for communication with all Aboriginal families while the person who has passed is in the care of the Victorian Institute of Forensic Medicine (VIFM). The AMLO works closely with the Yirramboi Murrup Unit to ensure consistent messaging and ongoing support is provided to families.
The AMLO is responsible for gathering information from Aboriginal families. This includes concerns of care or concerns that the family would like recorded or investigated by the Coroner. If the concerns are of a medical nature, a nurse from the Coronial Admissions and Enquiries team will call the family to collect information.
The AMLO is involved in liaising with Aboriginal families about the type of medical examination to be conducted. An order is made by the coroner to conduct an autopsy, taking into account the wishes of the family.
Impact
Outputs
As above, the Coroners Act 2008 (Vic) and Practice Direction 6 require early contact with VALS and involvement of the Yirramboi Murrup Unit. Coroners consult with VIFM in relation to autopsies. The Aboriginal Medico-Legal Liaison Officer liaises with Aboriginal families about the type of medical examination to be conducted.
Outcomes
Practice Direction 6 emphasises the need for cultural sensitivity when responding to Aboriginal deaths in custody. Requiring court staff to contact VALS soon after a death has been reported, ensures that early advice and legal support can be provided to the senior next of kin. This helps families understand their rights and may facilitate culturally sensitive handling of the autopsy process.
Recognising that some families may have cultural or religious objections to an autopsy being undertaken, the Coroners Act 2008 (Vic) provides for the senior next of kin to make an objection (within 48 hours) to an autopsy. The coroner must consider this request, determine whether an autopsy is necessary or not, and provide the senior next of kin with written notice of their determination.
When making an order for postmortem examination, the Coroners Court of Victoria and Victorian Institute for Forensic Medicine ‘try to take into account the preferences of bereaved families.’ In the case of Aboriginal families, discussions they have had with the Aboriginal Medico-Legal Liaison Officer in VIFM and Coroners Court Yirramboi Murrup Unit help to ensure the Coroner knows of their preferences.
There are practices in place to support coroners to consider matters raised by bereaved families, but an absence of formal requirements:
Within Victoria, decisions on the extent to which bereaved family considerations are taken into account have been developed through the shared practices of coroners but have not yet been explicitly incorporated into legislation or legal handbooks.
A formal protocol for autopsy has not been developed with Aboriginal legal services or Aboriginal health services in Victoria, as intended by Recommendation 38.
Community Views
Centre for Innovative Justice
In their 'Research into Bereaved Family Members' Experience of the Coronial Process' the Centre for Innovative Justice (CIJ) captured the views of bereaved family members, staff involved in coronial processes including representatives from the Coroners Koori Engagement Unit and other stakeholders including VALS.
VIFM staff spoke of the practice of asking families about their wishes in relation to autopsies and allowing them to object on cultural or religious grounds but knowing that ultimately the Coroner can overrule the wishes of the families.
The short time frame required for a decision on autopsy was considered challenging and stakeholders noted that a decision to object to an autopsy can cause regret later.
Some stakeholders felt that for Aboriginal families, the idea of objecting to an autopsy seems pointless:
It’s all good to say would you like to object to an autopsy, but our mob don’t, deep down we can’t object because you’re going to do what you want to do.