Supplementary evidence submitted by Tom
Luce CB, Chair, Fundamental Review of Death Certification and
Investigation in England, Wales and Northern Ireland, 2001-03
1. In this note I offer comments on the
Government's Draft Coroner Reform Bill, as requested by the Select
Committee. After a summary of main points, there is a proposal
for overcoming the regulatory and cost issues the Government now
associates with its 2004 proposal that all deaths should be reported
to the coroner before registration. In the final paragraphs I
cover some other points arising from a first study of the Bill
MAIN POINTS
2. It is valuable that the Government has
published the Bill in draft for pre-legislative scrutiny.
3. The draft Bill's scope and coverage is
limited to procedural and other reforms within the Coroner Service.
In this it is consistent with the Government's statement of 6
February 2006, which made clear that the Government is no longer
willing to proceed with some of the components of its Position
Paper of March 2004 which covered death certification as well
as coroner reform. In particular the Bill does not carry forward
the intention then described to create a centrally—financed
coroner service with an overview responsibility for the proper
certification and handling of all deaths and which would scrutinise
all individual deaths.
4. The Bill is presented as "part of
a package of reforms aimed at addressing some of the weaknesses
in the present coroner system, identified in the reports of the
Fundamental Review of Death Certification and Investigation and
the Shipman Inquiry, both published in 2003". Beyond confirmation
that coroners and the new post of Chief Coroner will be provided
with medical advice, no other components of the package have so
far been described.
5. Within the area of coroner reform, the
Bill nevertheless offers the prospect of valuable and urgently
necessary changes, which (subject to some clarification and amendment
of detail) could pave the way for the most important reform and
improvement of the England and Wales coroner system since the
reforms in the Coroners (Amendment) Act 1926 or even since the
election of coroners was abolished through the Local Government
Act 1884.
6. Central to these improvements are the
creation of a new unified coroner jurisdiction to replace the
120 independent local coroners, the institution of new national
leadership under a chief coroner, the building of a new service
around whole-time legally qualified senior coroners newly selected
and appointed to fewer, larger coroner areas, new rights and status
for bereaved families and other interested people, the creation
of a statutory advisory council, the modernisation of coroners'
inquiry and investigation powers, a rationalisation of the jury
role in inquests, providing the new service centrally and locally
with some medical expertise, a sensible new approach to the handling
of overseas deaths, and the removal of the "treasure"
function from the mainstream coroner service.
7. The Government's decision to leave the
resourcing and administration of the coroner service with local
authorities is likely to compromise the prospect of achieving
uniform improvements and standards in the new service (though
central financing and direction of public services does not of
itself provide any guarantee of either adequate funding or the
achievement of uniform standards).
8. The most critical defect, however, in
the Government's position as so far disclosed is that it contains
little if anything to remedy the structural defect that was a
major contributor to the long drawn-out Shipman catastrophe—the
absence of any effective supervision or support of death certification
by doctors, and of any mechanism to ensure so far as is reasonably
possible that deaths which should be reported for investigation
by the coroner are so reported. In the absence of such a mechanism,
the coroner service will remain reactive, and though the Bill
should improve its standards of investigation, the failure to
tackle this issue is surprising and extremely serious.
9. In my view the right course in the circumstances
is to encourage the Government to proceed without delay with its
Bill, amended and improved as necessary on certain key points
of detail, but to press the Government very strongly to provide,
in addition, better safeguards against such systems failure and
its consequences for public safety and public confidence in the
regulation of deaths.
10. In the following paragraphs I outline
a basis on which the structures could be made more joined up and
the safeguards against incompetent or abusive certification improved
to a worthwhile extent without adding significantly to costs or
to regulatory process for families, and would seem feasible to
include in the present Bill without delaying its introduction.
AMALGAMATING DEATH
REGISTRATION AND
INVESTIGATION; OR
BRINGING THE
REGISTRATION AND
CORONER SERVICES
CLOSER TOGETHER
11. The objective is to make a public authority
with the necessary skills responsible for supporting and auditing
the death certification process, and, preferably, checking each
death not already identified as requiring further investigation
(and therefore reported directly to the coroner) before the death
is registered and disposal of the body is authorised.
12. There is at present no public authority
tasked to audit and support death certification. The function
of registering deaths and authorising disposal of the body without
further investigation is the responsibility of local Registrars
of Births, Deaths and Marriages to whom after a death which has
not been reported to the coroner the bereaved family must take
the Medical Certificate of the Cause of Death. However, the Registrar
service, in spite of its undoubted skills in registration matters,
is not equipped with any medical or investigative skills, and
does not have the range of knowledge of local circumstances and
facilities in which deaths may occur (hospitals, care homes, prisons
etc) that comes to coroners and their staffs from their death
investigation work.
13. In its 2004 Position Paper, the Government
accepted this line of argument in its proposal that all deaths
should be reported to the coroner's office before registration
could occur and authorisation for disposal of the body could be
given. This procedure would replace the present certification
processes under which a doctor may certify a death without any
further medical check or opinion if the body is to be buried but
the family must obtain (and pay for) three medical certificates
or clearances if it is to be cremated.
14. For reasons apparently connected with
cost and the extra regulatory step that would be involved in burial
cases by adding a referral to the coroner's office before the
death could be registered, the Government is now unwilling to
go forward with its 2004 proposal.
15. It would however be possible to avoid
the extra regulatory step for families of referring the death
to the coroner's office before it could be registered by the Registrar,
if the registration could be effected in the coroner's office
and there was therefore, from the family's perspective, no further
regulatory step or process through which they needed to go.
16. This could be achieved in a number of
different ways:
(a) responsibility for the local registration
of deaths (but not, of course, births or marriages) could be transferred
from local registrars to local coroners;
(b) alternatively, the coroner or members
of his or her staff might be appointed Deputy Registrars who would
deal only with deaths (not births or marriages) but who would
continue to have their normal death investigation functions;
(c) or, a Deputy Registrar could be out-posted
from the Registrar's office to the coroner's office to deal with
death registration there;
(d) or, Registrars' and Coroners' offices
could be co-located.
17. Under any of these variants the death
registration process would continue to be performed under the
guidance and powers of the Registrar General.
18. The first two of these variants (and
possibly the third) would probably need alteration of registration
legislation. This could be included in the present draft Bill,
adding somewhat to its scope but probably little to its length.
19. We estimated the recurrent cost of death
registration to be £6 million a year. That would in principle
need to be transferred from the registration service to the new
coroner service under the first two variants (to compensate the
coroner service for the new responsibility it would have for covering
all deaths). There would be some additional training and process
costs in the coroner's office but they probably would not be great.
20. The simplest and probably from every
perspective the best variant would be the second—the appointment
of the coroner and/or members of his or her staff as Deputy Registrars
of deaths. This would enable the coroner service to have an oversight
responsibility for and bring its special skills and knowledge
to bear on all deaths without involving any extra process for
families, or risking the fragmentation at local or national level
of the Registrar General's important responsibilities for population
statistics and for registration.
21. A solution on these lines would pave
the way for the abolition of the separate cremation certification—which
every informed interest has wanted to abolish for decades and
was recommended in the Brodrick report of 1973 as well as both
the 2003 reform reports. This would save families the £25
million a year they now have to spend on cremation certification
fees.
22. Since local registration is a local
authority responsibility it would also capitalise on the Government's
decision to leave the resourcing and administration of the local
coroner service at local level with local authorities, and provide
wider scope for the kind of constructive local authority engagement
about which the Local Government Association spoke in its recent
oral evidence to the Select Committee.
23. It would be a timely and logical change
now that the coroner service is to be provided with new medical
skills, and represent a necessary improvement in "joined
up" Government and public administration. The present situation
under which the information provided by doctors and families in
the certification process is not available for scrutiny by the
public service with the skills and experience best suited to safeguard
the public interest, when the need to improve the safeguards is
now so widely recognised, is indefensible.
24. I understand that present registration
legislation may prevent the sharing between registrars and coroners
of registration data on any deaths other than those formally reported
to the coroner. If this is so, it would prevent the coroner service,
or its new medical advisers, undertaking any post-registration
audit and scrutiny of death certification. There seems an unanswerable
case for ensuring that such sharing is possible.
25. I respectfully invite the Select Committee
to consider recommending that the Government should include powers
in the legislation version of the Coroners Bill for the new coroner
service to bring to bear its skills and knowledge on all deaths
along the lines broadly explored in this note, by arranging for
death registration to be performed in the coroner's office.
OTHER MAJOR
POLICY POINTS
ON THE
BILL
Inquests
26. The provisions in Chapter 2 of the Bill
appear to require a coroner to hold an inquest into all deaths
he investigates, unless he specifically decides not to do so for
one or more of the reasons specified in the Bill. The present
arrangements implicitly mean that in most cases a coroner holds
an inquest after making a specific decision in favour of doing
so. It is said in the Explanatory Note on Clause 11 that "It
is not anticipated that the number of inquests will increase in
the reformed system". However the way in which the inquest
duty is presented in the Bill may in practice mean that whatever
the intention the number of inquests may increase, particularly
bearing in mind the new rights of appeal the Bill provides for
families and other interested people.
27. The two reform reports both argued in
favour of using the inquest process more sparingly.
28. An important issue arises on Clause
10, which is concerned with the scope of inquests and investigations.
The Government's statement acknowledged that "Since the mid-1990s
questions about the effectiveness of the inquest system have been
voiced, particularly following major disasters such as Hillsborough,
Zeebrugge, the sinking of the Marchioness and the complexities
which arise in investigating such as deaths occurring in police
custody or in prison". However, the provision in Clause 10
appears to constrain all inquests to a narrow scope except those
into deaths which fall under Article 2 of the ECHR. The category
of deaths which the courts have so far found to be within the
scope of Article 2 are mainly those which occur in custody or
as a consequence of police or other law and order operations.
Deaths in other settings, including those which occur in mass
disasters such as the Marchioness sinking and call into question
the adequacy or observance of the relevant safety regulations,
have not so far been held to be within the scope of Article 2.
29. The effect of the Clause as it stands
appears to be to limit the scope of "disaster" or other
complex and contentious inquests to an investigation of "by
what means" the deceased died. In case of multiple deaths
in the sinking of a public transport vessel, this may mean that
the inquest would be limited to finding that the deaths had been
caused "by drowning", without any investigation of the
underlying causes or circumstances.
Few would accept this on its own as an adequate
or sensible outcome to a serious investigation and such a limitation
on the bounds of inquiry would undermine the valuable structural
improvements which the Government intends for complex inquests—the
use of the permanent judiciary in some cases, and the appointment
of "Counsel to the Inquest", for example
30. If there is a concern that inquests
into deaths where the wider scope is not mandated by Article 2
may be disproportionately long and expensive, it could be addressed
by allowing senior coroners to conduct "non-Article 2"
inquests with the wider Article 2 scope, provided that they have
the authority of the Chief Coroner.
POST-MORTEMS/AUTOPSIES
31. The provision in Clause 26 (1) giving
a senior coroner power to define the "description" of
post-mortem he commissions should be strongly supported.
32. It is to be hoped that the language
of the sub-clause is sufficiently broad to enable the coroner
to order, for example, that there should be an expert external
inspection of the body which should not proceed to an autopsy
unless, taken with all available clinical and other information
on the death, the external examination shows grounds not previously
known to the coroner for a partial or full autopsy.
33. If so, the Clause would seem to provide
for the Scottish "View and Grant" system in which the
Select Committee has shown a consistent interest and which could
with great advantage be introduced to England and Wales.
34. However, Clause 9 can be interpreted
as requiring the coroner to commission a "post-mortem"
before he can conclude any investigation. This may not be the
intention (though the Explanatory Note seems to convey the same
idea). The meaning of the provision needs clarification, and perhaps
justification. If it means what it seems to, the effect would
be significantly to increase the number of "post-mortems",
which, whether the term is given the broader meaning as in paragraph
32 above or the narrower meaning of "autopsy"—its
meaning in normal usage—seems to be going in the wrong direction.
PROHIBITIONS ON
PUBLICATION
35. Clause 30 gives coroners power to prohibit
the publication of the deceased's identity, even in cases where
there has been a public inquest. No doubt the whole set of issues
around publicity and privacy will be fully explored in proceedings.
The Government's February statement said "Coroners will have
discretion not to hold a public inquest in limited cases, for
example some suicides and child deaths, where no public interest
would be served by a public hearing". However, this intention
does not seem to be conveyed in the Bill which seems instead to
provide for public inquests in such cases, with a power to prohibit
publication of the deceased's name (notwithstanding that the inquest
may be attended by the press, other family members, and the public),
but not any power to prohibit publication of intimate or domestic
details which may be referred to at the inquest but which there
is no public interest in broadcasting.
36. This whole area may need further thought.
It is one thing to conduct investigations into such cases out
of the public eye if there is no public interest in public proceedings,
or to hold public inquests and then restrict the broadcasting
of intimate material not essential to the outcome. It is another
thing altogether to allow the death investigation system to conceal
the identity of the deceased, particularly since the statutory
registration process requires coroners to provide registration
details, including the deceased's identity, for inclusion in the
publicly accessible register of deaths.
Tom Luce CB
July 2006
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