Evidence submitted by the Royal College
of Pathologists
The Royal College of Pathologists agrees that
reform of the coroner system is needed and strongly supports most
aspects of the draft Bill. However, we are particularly concerned
by the many important issues which are omitted from the draft
Bill. We note with regret that even the Summary to the draft bill
acknowledges that it addresses only "some of" the weaknesses
in the present coroner system.
We believe it to be self-evident that a successful
coronial system is entirely dependent on collaboration between
legally qualified personnel, principally coroners, and medically
qualified personnel, principally pathologists.
1. DEATH CERTIFICATION
We remain of the opinion that the failure to
reform the death certification process is a mistake. Reform has
been recommended by a succession of reports, including the Brodrick
Report (1971), the Luce Report (2003), and most recently by Dame
Janet Smith's report on the Harold Shipman affair. We believe
that a reformed death certification system, coupled with appropriate
statistical analysis of patterns of death, would be a considerably
more effective tool to detect and prevent similar crimes in the
future than is this Bill. We believe that a reformed death certification
system would be a reassurance to the bereaved. Rather than increase
bureaucracy, it could replace or even reduce the existing bureaucracy
of the cremation form system, and by eliminating the obsolete
aspects of that system it need not significantly increase overall
cost. The decision not to abandon cremation forms (an expensive-to-families
and demonstrably unjustified and ineffective procedure—see
the Shipman reports) is highly regrettable.
We have been informed that a decision not to
address these issues has been taken at a high level and is unlikely
to be reversed. We regard this position as mistaken, but as a
result we have therefore sketched out our proposals only briefly
in Appendix A below. We would be delighted to discuss this
in more detail if there is any possibility that this decision
might be reversed.
2. THE PROVISION
OF MEDICAL
ADVICE
The draft Bill emphasises the legal aspects
and barely mentions the medical aspects of ascertaining a cause
of death. We were seriously concerned by this. We have respectfully
suggested to the Department of Constitutional Affairs that a meeting
with the Royal College of Pathologists, as the body charged by
its Royal Charter with upholding the standards of practice in
pathology in the UK, would have been appropriate before, rather
than after, the draft Bill was published. Ascertaining the cause
of death is almost invariably dependent on medical expertise,
and the draft Bill does not acknowledge this. The Department for
Constitutional Affairs has said that legal advice indicated that
medical input need not be mentioned on the face of the legislation;
with respect, our medical advice accords rather greater importance
to the medical aspects of the process.
3. We have received a verbal explanation
of the intentions regarding improved medical input to the process.
We were assured that it remains the intention to appoint a chief
medical examiner to advise and assist the chief coroner, and that
guidance will be produced on how to obtain appropriate medical
advice at a local level.
We remain very disappointed that there is no
intention to appoint medical advisors at a local level, because
correctly investigating and identifying the cause of death is
in most cases primarily a medical process. We suggest that concerns
about the potential cost and bureaucracy are dependent on the
mechanism employed and on the role and duties of the local medical
examiners. Our suggestions are in Appendix A.
4. THE CONDUCT
OF A
POST-MORTEM
EXAMINATION
We are concerned that under Clause 26, it appears
to be the coroner who tells the pathologist how to examine the
body—eg MRI scan only, gross examination only, which organs
may or may not be sampled for further analysis, whether or not
toxicology studies might be done etc. This is not appropriate.
A legally qualified coroner cannot sensibly make these decisions
without medical advice. This reflects the lack of medical input
into the legislative process so far. Whatever may be apparent
at the time of reporting the death, the actual autopsy process
usually reveals other and additional aspects. It should be up
to the professional judgement of the pathologist to determines
what is done—as is the case at present under Coroners Rule
9 re taking samples—not just that of the coroner or his
officers. See also Appendix A.
5. INVESTIGATION
OF SUDDEN
UNEXPECTED DEATHS
IN INFANCY—(A)
Baroness Kennedy's report into Sudden Unexpected
Death in Infancy (SUDI) had recommended that tissue blocks and
slides should be retained "in perpetuity" after a post
mortem examination in a case of sudden infant death syndrome (SIDS),
in case future developments justified re-examination of those
samples. We explained that the Human Tissue Act 2004, far from
implementing this recommendation, had made such retention illegal
in England, Wales and Northern Ireland, because such retention
would be illegal without "appropriate consent" once
the work of the Coroner had been completed. The situation in Scotland
is exactly the opposite, because under the Human Tissue (Scotland)
Act the blocks and slides become part of the deceased's medical
record and the pathologist is specifically prohibited from disposing
them or returning them to the parents.
This polar difference between Scottish and English
law is contrary to the stated intention of Ministers that the
tissue legislation in the two jurisdictions should have broadly
the same effect.
6. We suggested that the Coroner should
retain a formal interest in cases where a cause of death has not
been ascertained, until such time as a definite cause of death
is ascertained, or for a suitably prolonged period (such as 100
years).
We regard this suggestion as self-evidently
reasonable. It would have the benefit under the Human Tissue Act
2004 of giving the Coroner the power to decide whether or not
small tissue samples should be kept "in perpetuity"
in cases of SIDS, as Baroness Kennedy recommended, because SIDS
is recognised to be an acknowledgement that a specific cause of
death could not be identified. Similar concerns apply to the much
smaller number of adult deaths where a cause of death cannot be
ascertained.
7. INVESTIGATION
OF SUDDEN
UNEXPECTED DEATHS
IN INFANCY—(B)
Baroness Kennedy's report into Sudden Unexpected
Death in Infancy (SUDI) had recommended that certain time-sensitive
samples (such as blood, cerebrospinal fluid and nasal swabs for
microbiological investigation) should be taken as soon as possible
after the death of a child had been confirmed, to maximise the
chances of ascertaining the cause of death. Baroness Kennedy clearly
anticipated that this sampling would usually occur in an accident
and emergency departments, before transfer of the body to a mortuary.
We explained that the Human Tissue Act 2004
has made this sampling illegal, even if authorised by a Coroner,
unless the accident and emergency department is covered by a Human
Tissue Authority licence to undertake such sampling. The cost
and complexity of obtaining such licences is disproportionate
to this sampling. We believe that many A&E departments will
not be covered by the licence obtained for an on-site mortuary.
It is our understanding that this consequence
of the Human Tissue Act 2004 was not recognised before that Act
obtained Royal Assent. It is our hope that the present Coroners
Bill could be an opportunity to amend the legislation, to give
Coroners the power to authorise such limited and urgent sampling
even if the body is not in an appropriately licensed location.
8. INTERFACE
WITH THE
HUMAN RIGHT
ACT 1998
One interpretation of the HRA is that all deaths
following medical intervention in health centres and hospitals,
ie where agents of the State may be involved, should be meticulously
investigated. Is it the intention to reinforce the investigation
by Coroners of such deaths? Will the desired standard of the autopsy
examination be defined? See also the next point.
9. Consistency of procedures and standards
of investigation. We are very concerned that under the present
system there is considerable and unjustifiable variation in many
aspects of the Coroners work. In addition to legal concerns about
whenther and how to conduct an inquest, which deaths require investigation,
the nature of written reports etc. these issues include medical
matters such as whether to conduct a limited post mortem examinations
rather than a full post mortem examination, the standards to which
the autopsy is performed (including the level of justification
for post-mortem tissue sampling and toxicology investigation)
and the standard of reporting of the post mortem examination.
10. APPEALS AGAINST
A CORONER'S
DECISION TO
UNDERTAKE A
POST-MORTEM
EXAMINATION (DRAFT
CHARTER FOR
BEREAVED PEOPLE,
SECTION 15)
We believe that the stated 24 hours in which
to make such an appeal is too rigid, because it could preclude
some investigations which must be undertaken rapidly in order
to ascertain the cause of death (such as microbiological sampling)
and could have the effect of unnecessarily delaying the examination
in cases where religious beliefs demand rapid burial. We understand
that the Department of Constitutional Affairs has acknowledged
that flexibility will need to be available on this point. We suggest
that the mechanism by which such appeals may be lodged and assessed
needs to be clarified.
11. WHO SHOULD
UNDERTAKE A
POST-MORTEM?
The draft Bill (clause 26(1)) uses the term
"medical practitioner". But it is a regrettable fact
that the majority of newly qualified UK medical graduates have
never seen a post mortem examination, much less been trained in
how to conduct one. It would be more appropriate to use the term
"qualified pathologist". If a precise definition of
this term is required we would be happy to assist. The amended
Coroners Rules 9 and 121 use the term "pathologist"—following
discussion with the Home Office and RCPath—so this Bill
should do the same. The restriction in clause 26(2-3) still pertains,
in the (unlikely but not impossible) event that the prospective
autopsy pathologist did somehow possibly contribute to the patient's
demise.
12. WHERE SHOULD
POST-MORTEMS
BE PERFORMED?
The Bill should refer to mortuaries licensed
under the Human Tissue Authority, with appropriate standards etc.
13. RETENTION
OF HUMAN
REMAINS
In Clause 53, does the term "the body"
include parts thereof? If so, down to what size—bearing
in mind that the Human Tissue Act's definition of "human
tissue" can be satisfied by a single human cell?
Appendix A
A SUGGESTED APPROACH
TO THE
MEDICAL SCRUTINY
OF CAUSES
OF DEATH
1. The Death Certificate should be completed
by a medical practitioner responsible for the deceased person's
medical care, as now, but with reconsideration of the current
restriction that the doctor must have seen the deceased within
14 days before death (28 days in Northern Ireland). This certificate
should be completed even if the responsible medical practitioner
believes that the death would have been referred to the Coroner
under present arrangements.
2. The information required for such certification
should be extended to include the location of death and the names
of the medical practitioner(s) and others primarily responsible
for the care of the deceased immediately prior to death. This
information should be used routinely to scrutinise patterns of
deaths, with investigation by the Coroner of any unusual patterns
to detect any preventable causes of death (such as another Harold
Shipman, but also including healthcare which has fallen below
expected standards for non-malicious reasons).
3. A number of approved Medical Examiners
should be appointed by each Coroner, to provide appropriate cover
for the main hospitals and centres of population in the area.
These would probably be provided by part-time secondment of existing
hospital consultants (including pathologists) and GPs rather than
full-time posts.
4. Training for these Medical Examiners
should be made available to ensure consistency of approach.
5. The death certificate and the medical
casenotes should be delivered to a local Medical Examiner for
scrutiny. If an appropriate medical practitioner cannot suggest
a cause of death the medical notes should be referred to the Medical
Examiner without a death certificate.
6. The Medical Examiner would be expected
to scrutinise the casenotes pertaining to the recent history of
the patient, to an appropriate level to confirm that the stated
cause of death seems reasonable. Guidance and training on the
appropriate level of detail of this scrutiny would be provided
nationally. In most cases it should only be necessary to examine
the notes pertaining to the terminal illness. The Medical Examiner
would have the authority to question any other person about the
death. Notably, if the stated cause of death does not seem reasonable,
the Medical Examiner would contact the doctor certifying death
to make enquiries.
7. If the Medical Examiner considered that
referral to the Coroner is justified, this would be the next step,
along with a recommendation on whether or not a post-mortem examination
is likely to provide relevant information beyond that available
from other sources. We believe that many unnecessary post-mortem
examinations could be avoided in this way. Other sources of information
(eg key healthcare workers involved in the deceased's care) might
also be identified for the coroner's benefit. If an autopsy is
the outcome, the Medical Examiner can also assist the coroner
in advising what clinical questions are to be addressed by the
procedure, and therefore what needs to be focussed on by the pathologist.
8. If referral to the Coroner is not indicated,
registration of the death would proceed as at present, followed
by authorisation of burial. This process could be simplified.
9. The present Cremation Form system should
be abolished.
10. The current requirements for completing
the second part of the cremation forms should also be abolished:
(a) The requirement to speak to the doctor
who completed the first part is rarely of value, as it is in effect
to ask whether he/she has lied in completing the first part; the
answer to that question is invariably negative. Modern patterns
of working also mean that it often introduces an unnecessary delay,
as the doctor in question may cease to be readily available.
(b) Examination of the external surface of
the body is most unlikely to identify any suspicious features
which are not already obvious to carers, undertakers, mortuary
staff etc. In practice this examination is often extremely cursory.
11. Examination of the available medical
casenotes is currently good practice in relation to cremation
forms, but it is not a legal requirement. We believe that it should
be.
12. We acknowledge that a requirement to
examine medical casenotes will necessitate establishing systems
of secure transport of casenotes to an appropriate Medical Examiner.
In some cases this may also introduce a delay; the system should
be engineered to take account of the concerns of those with religious
beliefs which require rapid disposal of the body. But at most,
any delay should be no more than the delay introduced by the current
cremation form system. We suggest that these problems of transport
and timeliness would be minimised if Medical Examiners are part-time,
sufficiently numerous, and geographically distributed.
The examination of casenotes will be greatly
facilitated when current plans to make casenotes available electronically
are implemented.
13. Remuneration for Medical Examiners,
in straightforward deaths due to natural causes, should be proportionate
to the current fees for completing cremation forms. We have not
undertaken a formal financial assessment, and to do this accurately
would require a pilot study. However, as the majority of deaths
in the UK result in cremation, we believe that this proposal is
unlikely to be any more bureaucratic, onerous, time-consuming
or expensive than the current arrangements for disposal by cremation.
If (as we recommend) this approach was to be applied to all deaths
then it might be regarded as inappropriate to charge the bereaved
relatives for the process, as currently happens with cremation
forms. This would then result in an increased cost to the public
purse, even though the overall expense does not increase. We would
welcome this; we have long believed that the current system of
charging relatives for cremation forms is an inappropriate "death
tax" which should be abolished.
14. Savings are likely to result from more
efficient identification and investigation of Coronial cases,
with fewer post-mortem examinations.
15. Any stigma which might be associated
with referral of a death to the Coroner would be reduced overall,
because the number of deaths formally referred to the Coroner
should be reduced.
16. The public would be reassured that the
cause of every death undergoes independent medical scrutiny, and
may be surprised to know that, despite the crimes of Harold Shipman,
this is not the case at present.
Professor P Furness, Vice-President
Professor J Crane
Professor S Lucas
Dr C Wright
On behalf of the Royal College of Pathologists
July 2006
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