Health and the law

The purpose of a post-mortem examination (i.e. an autopsy) is to obtain a complete picture of the former health status of the deceased person and a fuller understanding of all the factors that may have contributed to the person’s death. This information may be important for the next of kin (e.g. if the person died from an infectious or genetic disease), or for the community as a whole (in identifying or tracing outbreaks of disease; in teaching doctors and nurses; and in checking the quality of the hospital’s diagnostic and treatment procedures).

Consent is required prior to carrying out a post- mortem examination unless it is ordered by the coroner. As is the case with organ and tissue donation, the law operates on the principle that the views a person expressed while alive about the use of their body after death will be respected once they are dead. Therefore, the law on consent for post-mortem examinations and for donation of bodies to medical schools is, in most respects, the same as for organ and tissue donation after death (see ‘Organ and tissue donation after death’, above).

Different rules apply to autopsies carried out as part of a coronial investigation. Where a coroner has jurisdiction to investigate a death, the HT Act prohibits the hospital or a senior available next of kin from authorising an autopsy unless the coroner consents.

Further, under the Coroners Act 2008 (Vic) the coroner must direct that an autopsy be performed by a pathologist approved under that Act regardless of consent. The coroner must take reasonable steps to notify the senior next of kin about the direction. Within 48 hours of receiving notice of the direction, the senior next of kin may consent to the autopsy or may ask that the autopsy be reconsidered. If the senior next of kin requests reconsideration, the coroner may still direct that the autopsy proceed.

Any person may also request that the coroner direct that an autopsy be performed. If the coroner refuses the request, they must provide reasons.

With some exceptions, an appeal can be made to the Supreme Court against a decision directing an autopsy be performed or refuse to conduct an autopsy that has been requested. Strict time limits apply to such appeals (see section 79 of the Coroners Act 2008 (Vic)).

Under the PHW Act (s 156), the Chief Health Officer has the power to require a doctor who has appropriate qualifications or experience perform an autopsy. An autopsy may be ordered if the Chief Health Officer believes that an infectious disease caused, may have caused, or contributed to the person’s death; an autopsy is necessary to determine whether there is a serious risk to public health; and the coroner does not have jurisdiction over the body.

An appeal can be made to the Supreme Court against a decision directing an autopsy be conducted. Strict time limits apply to such appeals (see section 157 of the PHW Act).