Evidence submitted by Tom Luce CB, Chair,
Fundamental Review of Death Certification and Investigation in
England, Wales and Northern Ireland, 2001-03
INTRODUCTION AND
SUMMARY
1. The coroner and death certification services
have essential roles. They provide each person who dies with a
last, posthumous, service from the state; they serve families
and friends by clarifying the causes and circumstances of the
death; and they contribute to the health and safety of the public
as a whole by providing information on mortality and preventable
risks to life.
2. The systems in England and Wales have
been for decades a forgotten service. They are staffed in the
main by people of competence and integrity, but their structures
are obsolete, they have historically received only modest support
from Governments and until recently they engaged little public
and political attention.
3. After a flurry of political concern about
occult homicide in the mid-1960s, the Government established the
Brodrick Inquiry which reported in 1971. [1]Its
main conclusion—"there is no requirement to strengthen
the present machinery of death certification simply in order more
efficiently to prevent or detect secret homicide"—has
been shown by events to be wrong. Most of its recommendations
for other improvements were not followed up.
4. The conviction in January 2000 of Harold
Shipman for multiple murder of his patients, and some high profile
cases during the 1990s in which the effectiveness of the coroner
service came under challenge, led to appointment of the Shipman
Inquiry under Dame Janet Smith and of the Fundamental Review of
Death Certification and Investigation which I chaired. [2]
5. The resulting reports, both published
in summer 2003, [3]concluded
that the death certification and coroner systems were in important
respects unsafe and ineffective:
— The death certification and coroner
systems are isolated from each other, from the mainstream healthcare
and justice systems, and from other public safeguarding agencies
(eg public health, child protection, care home regulation).
— No public authority with effective
powers is responsible for regulating all deaths, ensuring that
they are properly dealt with and supporting the professionals
involved.
— There has been no clear and effective
focus of responsibility in central government.
— Death certification procedures in
their present form provide unreliable protection, and are particularly
vulnerable to abuse by care system insiders.
— As a judicial structure, the coroner
system is obsolete and un-modernised. It lacks leadership, and
mechanisms to ensure consistency and adaptation to changing circumstances.
It resorts excessively to routine autopsies and public inquests,
and gives a patchy response to the emotional and practical needs
of bereaved families. It lacks the medical skills to deal confidently
with deaths from natural disease, and powers to investigate some
complex and contentious deaths and mass disasters convincingly.
— The role of coroners' officers is
under-recognised and inadequately supported.
6. The review's main recommendations for
reform were:
— A new national coronial service should
be created with responsibility for regulating all deaths—both
those certified as natural and those needing special investigation.
It should contain both legal and medical skills, and have full-time
leadership locally and nationally.
— A single Government Department—the
Department for Constitutional Affairs—should be have the
main responsibility for supporting the new service; the Department
of Health should assume policy responsibility for death certification.
— A statutory Coronial Council should
be established to oversee development and effective relations
with other safeguarding services.
— Death certification should be reformed
to improve its reliability and independence. There should be a
common procedure for burials and cremations.
— Coroners should have wider powers
to investigate complex and contentious deaths including mass disasters;
the present inquest "verdicts" should be replaced by
narrative and analytical outcomes with a greater emphasis on preventability;
public inquests should be used more sparingly.
— The present high scale of compulsory
autopsies should be reviewed, and an evidence-based policy for
the role in coroners' investigations of autopsies and other scientific
tests should be evolved.
— A "Family Charter" with
legal status should set out standards for the service's interactions
with bereaved families, including respect for privacy and religious
and cultural feelings about the disposal of the dead as well as
the service's powers and obligations to investigate all deaths
as fully as necessary. Families should be given fuller and better
presented outcomes of investigations into deaths (the very large
majority) which are investigated without a public inquest. The
service's interactions with families should be monitored by a
small inspectorate.
7. The rest of this paper summarises the
present system and the case for change. It argues that the primary
legislation necessary for most of the changes should be enacted
as soon as is now possible. The main priorities for reform should
be the creation of new structures, the implementation of a more
effective and safer death certification system, and improved training
and development for coroners' officers.
PRESENT SYSTEM
AND STRUCTURES
8. Every death has to be registered with
the Registrar of Births, Deaths and Marriages before the body
may be buried or cremated. For registration, there needs to be
a certificate of the cause of death either from a doctor or the
local coroner. If the body is to be cremated, a family member
must make an application and two more doctors are involved—a
second certificant and the crematorium medical referee. The second
certificant is usually chosen by the first. Cremations account
for some 70% of deaths in England and Wales. Families pay fees
totalling £100 for doctors' cremation certification.
9. In 2004, some 44% of the 514,000 deaths
in England and Wales were reported for investigation by coroners.
These referrals are usually made by doctors, the police, or Registrars.
Coroners have no powers to investigate deaths which are not reported
to them, and no information on or responsibility for any such
deaths in their locality. The most common reason for such referrals
is that the doctor looking after the patient at the time of death
does not meet the requirement to have seen the patient within
a month of the death (for example because he or she is a deputising
service doctor with no previous contact with the patient), or
is not sure of the cause of death.
10. Of the deaths reported to coroners in
2004, 51% led to autopsies (22.5% of all deaths), and 13% (5%
of all deaths) to inquests. [4]
11. Referrals to coroners have tended to
rise over the years (for example from 38% to 44% of all deaths
between 2001 and 2004). The proportion of reported deaths in which
autopsies are ordered has tended to fall as the proportion of
all deaths reported has risen. The proportion of all deaths in
which autopsies are ordered has in recent years been stable in
the range 22% to 23%.
12. These activity rates are high by international
standards. At annex 1 (not printed) is table extracted
from the Review report comparing the rates of reporting, autopsy
and inquest between England and Wales, Scotland, Northern Ireland,
the Republic of Ireland and some Commonwealth jurisdictions on
which we obtained information. It shows that at the time in England
and Wales, compared to the other jurisdictions
— deaths were reported on a scale between
double and 50% higher;
— the autopsy rate was twice or three
times as high; and
— the inquest rate was much higher
than in most other jurisdictions.
13. Registrars are statutory office-holders
appointed and resourced locally by local authorities but working
under the guidance of the Registrar General in the Office of National
Statistics. Coroners in the roughly 120 local jurisdictions that
now exist are independent judicial officers appointed and resourced
by local authorities. Most are part-time and the large majority
are legally qualified; the others are doctors. The roughly 420
Coroners' Officers, their investigative support staff, are employed
by the police in some localities but by local authorities in others.
14. Within central government, the Home
Office was responsible for coroners and death certification until
June 2005 when responsibility for coroners was transferred to
the Department for Constitutional Affairs.
15. Because the coroner service is fragmented
between local and police authorities, who meet its costs, no overall
figures for its spending are issued by Government. We estimated
that in 2000-01 public spending on the coroner service was £71
million, of which around half went on mortuary, autopsy and other
testing costs. Registration cost a further £6 million. Cremation
fees paid by families totalled £30 million.
RECOMMENDED NEW
STRUCTURE AND
DEATH CERTIFICATION
PROCEDURES
16. A new unified coroner and death certification
service should be created to oversee the certification and investigation
of all deaths. It should be financed by the Department for Constitutional
Affairs and have around 60 local offices each led by a full-time
legally qualified coroner and including also a new medically qualified
statutory officer. The new local districts should be broadly aligned
with police authority boundaries, though there should be a flexible
and sympathetic approach to rural areas with long travel distances.
17. At the centre there should be a full-time
Chief Coroner of Circuit Judge from the higher judiciary to set
practice standards for the judicial side of the work, deal with
appeals within the jurisdiction, and conduct, or in consultation
with the Lord Chief Justice arrange for another judge to conduct,
a small number of exceptionally complex or contentious inquests.
There should also be a Deputy Chief Coroner to develop consistent
approaches and standards throughout the service and run training
and other essential central services.
18. Deaths from natural causes would continue
to be certified first by the doctor looking after the deceased
in his or her last illness. All such deaths, whether to be followed
by burial or cremation, would need confirmatory second certification
from a second doctor from a panel of doctors selected, appointed
and supported by the new medical office-holder in the coroner
service. The second certifying doctor would be sent copies of
the attending doctor's recent file notes, specialist reports and
prescribing records relevant to the death. The coroner service
doctor would systematically monitor and audit the certification
of all deaths in the locality, including the certification records
of individual doctors.
19. Coroners would be appointed after open
advertisement through the same mechanism as judges—ie through
the Judicial Appointments Commission. Coroners' Officers would
be employed by the new service. Their training and development
would be an early priority, and individuals would be encouraged
to develop some specialist areas of expertise—for example
in the handling of child deaths, deaths from industrial disease,
or workplace deaths.
20. The Shipman Inquiry also recommended
a double death certification process, though it would have some
different features and be within a somewhat different structure.
All deaths would be finally certified not by a second medical
certifier in clinical practice but by investigators in the local
coroner's office. Local coroners would be doctors and entitled
"Medical Coroner". There would be legally qualified
"Judicial Coroners" to deal with circumstantial investigations
at a higher regional tier.
21. In its first response to the Review
and Inquiry reports—"Reforming the Coroner and Death
Certification Service" (March 2004)—the Government
outlined a proposal under which, after the treating doctor has
given a cause of death certificate, all deaths would be finally
certified in the coroner's office under the supervision of a medically
qualified "medical examiner" who would be working alongside
a legally qualified coroner. There would be no regional structure.
In my view the Government's proposal should be supported.
A CORONIAL COUNCIL
22. The Review recommended that a Coronial
Council should be established with a strategic, reporting and
guidance role. It would, for example, prepare the Family Charter.
23. The new coroner service will have a
complex range of professional tasks covering both medicine and
law. In character it will be both regulatory and judicial. It
will be interacting with families and the public on matters of
great sensitivity such as the role of autopsies and other post-mortem
procedures, the retention of body parts and tissues, and support
for bereaved families. It will serve a variety of objectives—administrative
and statistical through the registration system, public health
and epidemiological, legal and judicial. The Council would help
the service to keep these different perspectives in view and in
balance and encourage it to adapt to new challenges. The lack
of any mechanism to bring about adaptation in a consistent way
lies at the heart of some of the problems encountered in recent
years.
COMPLEX AND
CONTENTIOUS DEATHS:
INQUESTS AND
PUBLIC INQUIRIES
24. We recommended that the public inquest
should be used only where there is a public interest in a public
process, or there are uncertainties or conflicts of evidence best
resolved by a public forensic process. If this approach is adopted
there will be fewer public inquests into traffic deaths, deaths
from occupational disease where the diagnosis is clear, and suicides
with no suspicion of third party involvement or negligence. There
would continue to be investigations of such deaths accessible
to families and other interested parties, but they would no longer
be in public.
25. Inquests would continue to be held into
deaths in custody (unless it were clear beyond reasonable doubt
that they were from natural disease), police shootings, traumatic
workplace deaths, deaths attributable to crashes, collisions or
sinkings of public service aircraft, vessels or road transport,
child deaths of uncertain circumstances, and other deaths judged
by the coroner to justify a public forensic process or with significant
public interest features.
26. On this basis, inquests would tend to
be held into more complex cases, and the overall number of inquests
would fall appreciably though to nothing like the extent that
they have fallen in some Commonwealth jurisdictions where they
are now reserved for investigations on the scale of major public
inquiries.
27. We were also concerned to re-establish
the coroner's inquest as a viable and effective procedure for
investigating complex and contentious deaths, which would enjoy
public confidence and security from challenge in the higher courts.
We were struck by the amount of litigation in the higher courts
over inquest scopes and outcomes, the scale and instancy of demand
for ad hoc public inquiries after contentious or multiple deaths,
the development of European Human Rights Convention jurisprudence,
and the evidence of a large number of people - lay and professional—who
had been through inquests in complex or highly contentious cases
and found the process unsatisfactory. All these factors combined
to convince us that the inquest in its traditional form and with
its traditionally narrow scope was in need of reinforcement before
it could meet the needs and expectations of the modern public
to the standards increasingly required by modern law.
28. As well as the structure reforms which
would enable exceptionally complex cases to be handled by a more
senior judicial figure than the first instance coroner (in the
same way that exceptionally complex criminal or civil cases are
heard in the higher courts) we recommended some broadening of
the inquest scope in cases where this is necessary for a convincing
inquiry. We also recommended that the traditional inquest "verdicts"
should be replaced by narrative and analytical outcomes exploring
the causes and circumstances of the death, and the effectiveness
or otherwise of the safety regimes designed to reduce the risks
of deaths of the kind under scrutiny. It is clear that these "verdicts"
(e g lawful killing, unlawful killing, accidental death, misadventure
etc) can in complex cases generate more heat than light, and they
prevent the coroner from making findings which do justice to the
often complex issues around the preventability of deaths.
29. In two recent judgements[5]
the House of Lords Judicial Committee has ruled that in cases
which engage Article 2 of the European Human Rights Convention
(so far interpreted to mean mainly deaths occurring in state custody
or at the hands of the police or armed forces) the scope of the
inquest should be extended to cover the circumstances as well
as the immediate causes of a death.
30. This judgement helpfully improves the
capacity of inquests to provide a suitable form of inquiry in
the types of case that it covers. However, it does not cover cases
where the role of the state is regulatory rather than custodial
or involving the use of force. In consequence it appears that
deaths, including multiple deaths, which result from train or
aircraft crashes or the sinking of public service vessels, for
example, will not generate inquests with the wider scope. In such
cases, therefore, it seems likely that the inquest will continue
to be regarded as too narrow in scope to satisfy families and
the pressure for the Government to set up ad hoc judicial
public inquiries will continue. [6]
31. The higher courts may gradually expand
the category of case in which they rule the wider inquest to be
required by the European Human Rights Convention, but it would
be preferable in coroner reform legislation, or in the subordinate
Regulations which govern the conduct of inquests, to put beyond
doubt the power of the coroner system to conduct inquests which
properly address the circumstances and the preventability of deaths
as well as their immediate causes.
32. Setting the bounds of inquiry in individual
cases within the wider general inquest scope will require careful
decisions by coroners and judges in complex and contentious cases.
There is often multi-party representation at inquests and representation
costs, as well as the inquest court's own costs, may be high.
It may be worth considering whether the new statute should stipulate
that the likely cost and length of proceedings and the likelihood
of findings of importance to wider public safety should be amongst
the factors to be weighed. The aim would be to ensure that inquests
are proportionate in scale and cost to the public benefit likely
to stem from them in terms of the protection of life.
33. A provision akin to S 39 of the Inquiries
Act 2005, which gives a Minister in certain circumstances discretion
to withhold funding from a Government-appointed statutory inquiry
if it examines matters he has certified to be outside its terms
of reference, would be out of place since the Government has and
will continue to have no influence over coroners' decisions on
the holding and scope of inquests, and would not be involved in
the direct funding of individual inquests.
REFORM COSTS
34. We estimated that after transitional
costs the underlying costs of the coroner service might increase
by roughly 10% after some efficiency gains from scrutiny of autopsy
rates and currently high referral rates for investigation. There
would however need to be some additional public finance to allow
for the fact that the new "two layer" certification
system applicable to all deaths would replace the "three
layer" system now in force for cremations, for which families
pay. It does not seem likely that families would be expected to
pay for any of the new service.
RELATED REFORMS
35. The Home Office has in hand a programme
to improve recruitment and quality assurance in forensic pathology.
36. The Office of National Statistics launched
in 2003 a programme of change to Registration procedures to make
telephone and digital registration of deaths possible and to improve
the privacy protection for some personal and health information
used in death registration. An announcement is awaited on implementation.
37. The Human Tissue Act 2004 introduced
new safeguards against malpractice in the use of body parts and
tissues. It does not apply to coroners.
TIMING OF
REFORM
38. There are more than half a million deaths
each year in England and Wales. Since Shipman's conviction in
early 2000, when the effectiveness of death certification and
coroner investigation as a safeguard became seriously suspect,
there have already been more than two and a half million deaths.
Since 2003, when the work of the Shipman Inquiry showed incontrovertibly
the systems weakness that had allowed him to get away with his
crimes for so long, there have been more than a million deaths.
The reform agenda is complex and needs careful preparation but
it is to be hoped that time for legislation will be found without
fail in the Parliamentary session of 2006-07, following the Select
Committee's important and timely Inquiry.
Tom Luce CB
January 2006
1 Cm 4810 Back
2
The other members were Elizabeth Holder, Deirdre McAuley, Sir
Colin Berry, Anthony Heaton-Armstrong, and Sir Iqbal Sacranie.
The review covered England and Wales, and Northern Ireland Back
3
The Review report was Cm 5831, the Inquiry Report Cm 5854 Back
4
The figures in paragraphs 8 and 9 are from the Department for
Constitutional Affairs' Statistical Bulletin "Statistics
on Coroners" of September 2005 Back
5
Regina vs HM Coroner for West Somerset ex parte Middleton 11 March
2004 [2004 UKHL 10] and Regina vs HM Coroner for West Yorkshire
ex parte Sackler [2004 UKHL 11] Back
6
It is relevant that the Government's announcement recently that
it will not set up a public inquiry into the Potters Bar Rail
crash was followed by a statement from the coroner to the effect
that he does not regard an inquest as an adequate form of inquiry
into the issues Back
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