Examination of Witness (Quesitons 40-59)
RT HON
DAME JANET
SMITH DBE
7 FEBRUARY 2006
Q40 Keith Vaz: But they were all
very well aware of your views before these proposals were announced,
were they not?
Dame Janet Smith: Yes, but there
has been a change of department since then. The change was in
May of last year.
Q41 Keith Vaz: Have you not met Harriet
Harman or the Lord Chancellor?
Dame Janet Smith: Not until last
Thursday. I met them both on that occasion. I have met the Lord
Chancellor on other occasions but nothing to do with this. I see
him from time to time in the course of other judicial matters,
yes.
Q42 Chairman: We need to clarify
this because one of the things said yesterday was that the Department
of Health would be dealing with issues of registration and ongoing
work. Can that be enough or are there aspects within the remit
of the Department for Constitutional Affairs which in your view
need to be strengthened in their proposals whatever may be achieved
by the work the Department of Health is going to do?
Dame Janet Smith: One of the difficulties
is having these systems across departments. I do recognise that
there is not a department of state that is ideally suited to dealing
with all of these issues, I accept that entirely. It is a question
of a need for joined-up government. It seems to me that we do
need a new system of death certification. I was disappointed,
for example, to see that there was no reference at all to cremation
certification in the announcement yesterday. I think that cremation
certification is unsatisfactory, Mr Luce thinks it is unsatisfactory
and the Brodrick Report of 1971 thought it was unsatisfactory.
I think if we go back to 1956 we will see there is another report
that thought it was unsatisfactory. Here we are and nothing has
happened about that. I do think that we need a reform of death
certification and that it needs to be completely dovetailed in
with the reform of the coronial system. You have to decide how
the two are going to be related to one another. In my report I
drew attention to how very difficult it is for doctors to know
when they ought to report a death to the coroner, that the existing
statutory rules are opaque, that those rules have been built upon
and there are lists in existence which try to elucidate the statutory
rules, that local coroners have their own local rules and it is
extremely difficult for doctors to form a view. I myself and my
inquiry team tried to draft a list that would be comprehensive
and easy to understand and easy to apply. We failed! I notice
that the DCA says that they are going to do it and I await their
efforts with interest. I wish them luck. They have decided to
go down this route. It is important that we have a list of types
of deaths that have to be reported to the coroner, but it is not
an easy task.
Q43 Chairman: Are you really suggesting
that every death should be reported to the coroner?
Dame Janet Smith: Yes, but not
every death should go for full investigation. I have condensed
my proposals into a page or two for ready reading and understanding
and if you want I will send something in to you. Essentially what
it comes down to is that there should be some information coming
from the person who certifies the fact of death. At the moment
we do not have any system for certifying a fact of death other
than a policeman will not allow you to move the body until it
has been done, but nobody writes anything down about it. You do
not know who was there or what time it happened, there is no record
made at all. I suggested that we should have a very simple form
of recording a bit of information about that. I was interested
to see that Mr Burgess said it is very important that we collect
information. My system was designed to collect information contemporaneously
because it is not much good when you look back and try and remember
what was happening days and weeks ago. It is much better to make
the record contemporaneously. So that would be number one. Form
2 would be something akin to the present cremation Form V, which
is the one that is completed by the treating doctor. It would
not matter if he had not seen him within 14 days and it would
not matter if he was not the one who certified the fact of death.
He would provide some information about the medical history and
express an opinion, if he felt able to, as to the cause of death.
The case would then go into the coroner's office where a member
of the staff would examine the material. If it looked straightforward
and there was not any apparent concern about the circumstances
of the death that would obviously call for further investigation
and if the doctor felt able to express a view about the cause
of death then what I proposed is that a member of the coroner's
staff should speak to a member of the family to find out what
happened from their point of view and to take that opportunity
to explain to them what is happening. I think it is extremely
important—and I know the government recognises this—that
we have to bring the bereaved into the equation in a way that
they have not been brought in in the past. We need direct contact
between the coroner's office and a member of the family, if there
is one, there is not always, or a carer if there is not and just
cross-checking that there is not a disparity between what they
are telling you and what the doctor has told you or the person
who has signed Form 1. Then if you find that there is no disparity
the death can be certified without further investigation. My estimate
was that something like 80% of deaths could be certified in that
way without an inquest and without further investigation.
Q44 Chairman: Mrs Morgan is going
to ask you some questions about bereaved relatives in a moment
but it immediately puts in my mind the question that in a very
large number of deaths, where there is nothing very suspicious,
doctors reporting then enter into a process which the present
coroners system certainly could not handle without delay and a
reformed coroners system with a limited number of full-time coroners
might not handle without the kind of delays where relatives want
to agree with the undertaker the date for a cremation or a funeral,
finding slots in what is often a very busy timetable of a crematoria
only to be told, "Well, you have missed this week and you
have to wait another week or another week" because these
processes have to be gone through.
Dame Janet Smith: We have quite
a complicated process for cremation at the moment involving three
sets of certification. We manage to get that done in about a week
in general. I know there are some religious minorities who want,
and understandably, to have their certification dealt with very
quickly so they can go to the rapid disposal. By and large, people
in this country accept a period of about a week between death
and disposal. We manage that with a three form cremation certificate
in about 75% of all deaths. I do not think there would be any
real reason why there should be delays in 80% of the cases that
I am talking about. About 20% of cases have got to go to the coroner
for proper investigation anyway. The coroner tries to allow disposal
as soon as possible, as soon as the medical aspects of the case
have been looked at. The rest of the investigation takes place
afterwards. One of your questioners—I am not sure whether
it was Mrs Morgan or Ms Morden—was saying that a constituent
had complained about a long delay. That does not mean to say that
there has been delay in disposal. Yes, I do accept that the resources
would have to be there in the coroners office, not requiring a
lot of judicial coroners, I wanted to see some medical coroners
because most of these decisions are medical decisions and I want
to see a well-trained core of coroners' officers because, as Mr
Burgess was saying a moment ago, they are the ones that have most
of the direct contact with the families. They are the ones that
need the bereavement training and they are the ones who would
do the bulk of the work that I am talking about. If there are
enough of them I do not think it would cause undue delay.
Q45 Julie Morgan: This is about how
the bereaved relatives are treated and you have already covered
some of those points. You do state in your report that the families
of the bereaved are not well-served by the present system. I do
not know if you want to expand on that a bit more and what you
would like to see in place? You have already covered that a little.
Dame Janet Smith: I have given
you some indication. At present, officially, the system ignores
them and that is really bad. There are many doctors who are very
good and very nice and do explain what is happening in the official
system because, as Mr Burgess was saying, most of us do not have
much experience, fortunately, of how the system works and an explanation
is required. At the moment there is nobody to do it other than
the doctor and believe me it does not happen in a lot of cases.
I would like to see somebody officially responsible for telling
people, the bereaved, what is going to happen, what is required
of them and what will be done for them. It seems to me that the
person that one could best ask that of is a member of the coroner's
staff. I think it was you who was asking about bereavement training,
there is very little at the moment. I will go back to the bereaved
but, I just want to say a word, if I may, about coroners' officers.
I notice that the proposal is that they should still be employed
by the police or their local authority, I think that is a real
pity. For the police and for local authorities, coroners' officers
are not mainstream employees, they are sidelines. Consequently,
there is no training for them within their own organisations.
The Coroners' Officers Association has tried in the last few years
to set up some training and they are making a bit of progress
and that is very good but many of the employers, the police and
the local authorities, do not want to provide the day release
or the cover that would have to be supplied if somebody goes on
to release and they will not pay for the expenses either. The
result is that there are coroners' officers who have had no training
at all. Another problem with them remaining with their old employers
is that it is a career backwater, there is no career structure
for somebody who wants to become a coroner's officer and do it
well, learn the job and rise up the system. That is not possible,
it is very much a backwater and I propose, and I think Tom Luce
did too, that coroners' officers should be employed by the Coroners
Service. I am disappointed to see that is not proposed in the
present proposals. You asked me about the bereaved, how should
they be handled? How they should be dealt with? The main thing
is that they should be consulted and kept informed and really
by somebody who knows how to do it. It has been suggested to me,
and it was suggested during the inquiry, that the bereaved would
find it intrusive to be spoken to by the coroner's office in every
case, we should not insist upon that. The advice I was given by
Cruse Bereavement Care was their view is that people do not resent
it, they welcome it. First of all, they welcome it because very
often they want to talk to somebody. Second, they need to know
and her advice was that also if there is bad news to be given
it is better that it should be given straight rather than in a
circuitous way, people should be treated as adults and told what
is going to happen and why it has to happen. In general, if you
do that in a straightforward way you are not doing any harm, you
receive co-operation. The same goes for post mortems. Many people
do not want their loved ones to have an autopsy and one can understand
why. If you explain to them why it has got to be done in a sensitive
way certainly the Cruse Bereavement view, and indeed it was also
the view of Professor Brazier's group who did work on retained
organs, that if you explain properly to people why you need to
do something that they do not want you to do, they will accept
it. I think that ought to be the approach.
Q46 Julie Morgan: I am very interested
that you mentioned Cruse because I think often voluntary organisations
like Cruse have a lot of experience in working directly in this
field and have the knowledge and the lack of inhibitions that
many of the rest of us may have because of their direct knowledge
of dealing with situations like this.
Dame Janet Smith: That is what
I want to see incorporated into the coroners service in particular
through coroners' officers because there is a right and a wrong
way to talk to bereaved people and the more you do it—witness
Cruse—the better in general it is done.
Julie Morgan: My limited experience of
constituents, and I accept the fact that they usually only come
to us when they feel there is a problem, is the problem is the
lack of communication and I think that you have put that case
forward very well today. Thank you.
Q47 Chairman: Without challenging
the argument you put perhaps I should place on the record, from
personal experience, how very good, sensitive and thoughtful many
police officers and ex-police officers are in dealing with bereaved
people on the basis of the other situations I have to deal with.
Dame Janet Smith: I was going
to say they often have to bring very bad news of accidents and
matters of that kind and they do have some experience of it, that
is true.
Q48 Barbara Keeley: I have a few
questions on areas you have already touched on but I think if
I still put the questions it will help us be sure that we are
clear about what your recommendations are. The first is about
jurisdiction. Clearly you recommended in your report that decisions
on jurisdiction in reporting deaths would be taken by other medically
qualified coroners or coroners' officers with a medical background.
Dame Janet Smith: I am not sure
that I understand the question. To me jurisdiction means have
I got power to make a decision on this matter? I was suggesting
in my report that many decisions on whether a death should be
certified and registered could be made by either a member of the
coroner's staff or the medical examiner, those being decisions
on what I would call the straightforward cases that I was describing
to Mr Beith, where you have a form from the doctor saying that
he believed he understood the cause of death and this was it;
and the conversation with the bereaved family or a carer revealed
no inconsistencies and then the death could be certified without
more. Anything that could not be certified in that way would become
a proper coroner's investigation, a full coroner's investigation,
and it would be up to the coroner, possibly the medical coroner
or the medical examiner initially, to decide what form the investigation
should take. It would depend on whether the problem was a medical
one or a circumstances problem because many inquests do not contain
a medical problem, they contain a "what happened?" problem.
That is really a matter for a legally qualified coroner, "How
are we going to investigate this and what statements are we going
to get?" and so on. There is a very important area I ought
to mention and that is clinical negligence deaths which do require
a combination of medical and circumstantial inquiry. I suggested
in my report that it would be a good thing if there was to be
a special group, a regional group, of investigators for that particular
kind of work. It is not well done on the whole at the moment.
It does require special expertise.
Q49 Barbara Keeley: That was my point
really, how locally would you see that?
Dame Janet Smith: I see that as
a regional function because I felt that it needed a small team
that was focusing on that kind of work all of the time.
Q50 Barbara Keeley: In fact, you
made some comment about local rules that you seemed to have some
concern about.
Dame Janet Smith: My concern about
local rules is the rules that the coroner makes, and many coroners
make, about the particular types of cases that have to be reported.
For example, some coroners will say that if a death has occurred
within 24 hours of admission to a hospital, it must be reported.
That might be a good idea or might not; it is not a statutory
requirement and is not a requirement in all parts of the country,
it is a local rule in some places.
Q51 Barbara Keeley: On autopsies
and whether or not those are automatically triggered, could you
tell us why you believe that autopsies should not be carried out
as a matter of course in the case of referrals to coroners?
Dame Janet Smith: Yes, because
in quite a number of cases it is not necessary. I can give you
as an example a body that was very badly damaged in the course
of a road traffic accident or a train accident, you only have
to look at it to see that the body is dead and in general terms
why. Is there any advantage in detailed dissection of the body
parts in order to discover precisely which organs have been damaged
in which particular way? The inquest is really about how the train
crash happened, how the car accident happened or how the pedestrian
was knocked down. It can just be an additional source of distress
for the family to think that the body is going to go through an
autopsy as well.
Q52 Barbara Keeley: In terms of inquests—and
this is something on which we have obviously heard different views—in
your report you call for the number of inquests to be substantially
reduced, and we heard Mr Burgess' view on that issue and I think
you were here for that.
Dame Janet Smith: Yes, broadly
speaking, I agree with what he was saying.
Q53 Barbara Keeley: In terms of what
he was saying though, in the light of the increased number of
Article 2 inquiries, do you still believe inquests should be limited
to the deaths in which there is a real public right to know, or
are you really arguing, as he was, for more inquests to be heard
outside the public domain?
Dame Janet Smith: I was arguing
for fewer inquests taking place orally in public because of the
distress that they cause unnecessarily. There are some cases where
you have to have it, and rightly so and, of course, anything to
do with Article 2 plainly has got to be fully investigated in
public either by a coroner's inquest or some other form of public
inquiry; suicides are a good example. I do not mean suicides in
prison, I mean suicides at home for private, distressing reasons;
child deaths are another example. I am not suggesting that there
should not be a decision about the cause and circumstances of
death, but I think that unless there is a dispute as to what has
happened, in which case you need a judicial decision which may
have to be made after the hearing of oral evidence, I cannot see
any reason why a written report is not adequate for the purpose
of deciding the cause and circumstances of death.
Q54 James Brokenshire: Dame Janet,
one of your principal recommendations, and I know you have touched
upon it in some of the comments that you have already made this
afternoon, was the need to have two different types of coroner,
a medical coroner and a judicial coroner. How do you see those
two different types of coroner inter-relating or working with
each other?
Dame Janet Smith: It was suggested
to me that they might quarrel and that one of them would have
to be the boss. I did not really see it in that way. It seems
to me that if you have two professional people, both officers
of the Crown, both responsible in a professional way, there really
would not be any reason for one of them to be the boss as opposed
to the other. Judges manage to work together without quarrelling,
other professional people do: doctors work together in hospitals
as part of a team, consultants in a group, general practitioners
work together. I did not see any difficulty about that and what
I am very keen on, as I mentioned earlier, is professional horses
for courses. I do not think it is a good idea to have a legally
qualified coroner who has to make a lot of medical decisions.
I know Mr Burgess says that he has acquired a good deal of medical
knowledge, and I accept that that is so, but that happens over
a long period of time. In my view, it is far better if you have
doctors taking medical decisions and judges and coroners taking
legal ones.
Q55 James Brokenshire: Is it not
a question of evidence and medical opinion that could be presented
to someone in a quasi-judicial situation as we have at the moment?
I notice from the Government's proposals that they are talking
about the creation of a chief medical officer to sit alongside
the new head coroner. Could it not be addressed in that way?
Dame Janet Smith: If you had an
inquest in which there was a dispute about medical evidence, then
plainly it becomes a judicial matter. Most routine decisions that
coroners have to make day in, day out in their offices do not
entail anything like that. The great majority of decisions that
are made in the coroner's office are medical ones. That was why
I suggested we should have a medically qualified coroner taking
those everyday decisions and being personally responsible for
them and the legally qualified coroners concentrating on the conduct
of inquests. The role of the chief coroner we will have to wait
and see the small print to know exactly what is proposed about
that. I had my own small print and quite a number of suggestions
as to what his functions should be, including some appellate functions
from decisions of coroners, in particular on questions of whether
there should or should not be an inquest, whether they should
be held in public or private and also whether or not there should
be a post-mortem, because sometimes that can give rise to objection.
I want to see the chief coroner having that sort of appellate
function as well as his leadership functions. The leadership functions
are very important also and standard setting can be an issue.
Q56 James Brokenshire: If I could
press you on the issue of the dual coroner system. I heard what
you said about making a comparison with the judiciary working
together but, in many ways, they work as a team, therefore, if
a judgment is made it is the decision of the judges sitting in
judgment and they reach a joint decision, or maybe they do not
in certain circumstances. It was interesting that you said effectively
the medical coroner would take certain types of decisions, the
judicial coroner would take other sorts of decisions and, therefore,
in some ways there was not any inter-relationship between the
two. Does that run the risk of some duplication of work?
Dame Janet Smith: No, there would
not be any duplication. There would be some cases in which both
of them needed to apply their minds to it. Do you remember that
case of the man who drowned in the swimming pool? It was a very
famous case. There were medical issues and what happened circumstantial
issues in that case. In the preparation of that case for inquest
I would say both the medical coroner, or medical examiner, and
the legally qualified coroner would have an important role, they
would work together on a case like that. When the inquest happened
it would be the judicial coroner that heard it. The medical coroner
might sit by the side of him and listen to the medical aspects
so that they could discuss those but, in the end, it would be
the judicial coroner who reached the decision or a jury, if you
happened to have a jury. I think they both have an important role
to play. I do not think that there is, or would be, any duplication
of effort. I think it would lead to increased professionalism
which is what I think we ought to be aiming for.
Q57 James Brokenshire: In reaching
those recommendations in this proposal, did you give any consideration
at that time to the likely cost implications and also the practical
implications of whether there were sufficient suitably qualified
medical experts to be able to fill the posts that would obviously
arise from the medical coroner position?
Dame Janet Smith: Dealing with
that point first, one of the reasons that I disagreed with Tom
Luce's proposals for death certification was that I thought his
were very heavy on medical resources. It was he who suggested
that there should be double certification by doctors or second
certification by a medical examiner in every case. I thought that
was going to be very heavy on medical resources and that was one
of the main reasons why I went down the route of suggesting that
many of these cases could be certified by a coroner's officer,
subject to supervision by a medical examiner. Costings: all very
difficult because nobody could tell us what the present system
was costing. That is one of the problems with the system being
spread over so many different departments. The Coroners Service
is costed through local government and in many places it is run
on a terribly short shoestring. Death certification is paid for
partly through the Department of Health. In fact, doctors are
not paid separately for signing an MCCD; they are paid separately
for signing cremation certificates and that is paid for by the
families. Do you realise that it costs families about £100
for cremation certification? It is a matter of some concern to
me that that has not been addressed, because Tom Luce, Broderick,
somebody in 1956, and I, all think that the families are not getting
value for money out of that. Society is not getting value for
that money and that has not been addressed but, of course, if
you take that money out of the system, it is a significant feature
of the cost of the existing system.
Q58 James Brokenshire: If judicial
coroners were only able to operate essentially from regional offices
that would appear to break the more direct local connection to
a particular district. Do you see it as important to have that
more local connection retained?
Dame Janet Smith: There are two
issues arising there, one is the appointment of coroners and the
other is the place where they sit. I still think a judicial coroner
and more particularly a medical coroner (because there would be
more of them and they would have a smaller bailiwick) should have
a local connection. I am not in favour of direct local appointment
and, in my report, I suggested that the appointment of coroners
should be done, probably by the Coroners Service itself, if it
were to be set up as an independent organisation as I proposed,
with advice and assistance from the DCA, which has a great deal
of experience of appointment to judicial offices. It is about
to lose some of it to the Judicial Appointments Commission but
it has that expertise at the moment and I would like to see that
drawn upon. The evidence that I received about local appointments
of coroners did not give one confidence. Quite apart from the
issues of hereditary coronerships staying within a single firm
of solicitors, there was also evidence that many local authorities
would only appoint somebody who had already got experience as
a deputy or an assistant. As the deputy is appointed by the individual
coroner on the individual coroner's say so, in effect there has
been a self-perpetuating oligarchy because coroner appoints deputy,
new appointment comes up, local authority says "We will have
to appoint somebody with experience, it will have to be the deputy".
You can see examples of that happening all over. If the system
is improved, okay. I would prefer to see a central system with
some local input.
Q59 James Brokenshire: I was going
to say from the announcement that we saw yesterday it certainly
seems that the Government wishes to retain that local appointment
link. Why do you think they have come to that conclusion?
Dame Janet Smith: I detect a desire
not to set up a central structure. There is going to be a chief
coroner and he is going to have a chief medical adviser and there
is going to be an advisory council but there is not going to be,
as I understand it, an executive organisation. I would have liked
to see one because, as I mentioned earlier, I would like to see
coroners' officers employed by the Coroners Service to give them
a career structure and to ensure that they get the right sort
of training instead of the fragmentation that they have at the
moment by being employed either by a police service or a local
authority.
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