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The noble Baroness said: My Lords, my noble friend Lord Walton spoke most eloquently on this issue in Committee on my behalf, and I am most grateful to him. Having read carefully those proceedings in Hansard, I have returned to the issue because it is one of fundamental human rights.

In Committee it was made clear that the Coroners' Rules are being rewritten and should clarify the extent of the authority of the coroner. However, we do not have those rules before us, and when they are introduced, the statutory instrument will not be amendable. Therefore we must ensure that the clause complies with human rights.

The Bill as written makes illegal the retention of any blocks and slides after completion of the coroner's inquest or after six months beyond the end of a sentence if a criminal conviction were brought. In discussion with the Bill team, I have been told that blocks and slides would be available to the family, who would be asked to consent to some of them being retained. The Minister stated in Committee that it was felt that almost all families would agree to this. If that is the case, why subject them to this distress, because those who refuse must de facto be the cause of suspicion, leading to reinvestigation which in turn would cause more distress?

No one would think that any specimens could or should be used for research without the family's consent, and no one would think that the family should not be entitled to know which slides and blocks were being retained. But if the obligation of the state under Article 2 of the European Convention on Human Rights is to be complied with, there must be an ability to revisit some blocks and slides as part of the clinical record.
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If there has been a wrong conviction, there must be the ability to revisit. First, let us take the example of a father who works in the chemical industry and is sexually abusing his daughter. When he realises that she is about to spill the beans, in a fit of panic he poisons her. However, her death occurs when she is out clubbing with her boyfriend—a bit of a bad lad who has convictions for joy riding and possession of cannabis. He is convicted of her murder but did not supply her with any drugs that night. He will find it difficult to prove his innocence. The father, who is desperate for all evidence to be destroyed, encourages all blocks and slides to be returned to him and the girl's mother and appears grief stricken. I do not have to remind your Lordships of Soham and Huntley's public display of grief.

Secondly, and crucially, Article 2 requires that deaths in hospital can be and are properly reviewed; the process must be transparent. Under Article 2, sudden and unexpected deaths, whether medical or surgical, within the NHS place procedural obligations on the public authority to investigate adequately.

When a death occurs within 24 hours of admission or of surgery, it is reported to a coroner. Other unexpected deaths may be reported but the decision often depends very much on junior medical staff. In Middleton v West Somerset Coroner, the noble and learned Lord, Lord Bingham, described the procedural obligation to investigate, and Glass v UK has established that a hospital trust is indeed a public body. The procedural obligation outlined in Jordan v UK makes clear that it cannot be left to the initiative of the next of kin to either lodge a formal complaint or to take responsibility for the conduct of any investigative procedures. Indeed, it is financially impossible, and often crippling, for most to be able to do so. Amin v Home Secretary established the principles underpinning such an investigation.

The positive obligations that the state has to protect life under Article 2 of the Convention extends to requiring hospitals to have regulations to protect life and to investigate failures, whether systemic or due to individual negligence. Make no mistake, the fact that a post-mortem has taken place does not mean that there will be an inquest; there are wide variations in coroners' practices across the UK. The recent case of Mellar v Sheffield demonstrated that failure occurs when specimens are not taken at post-mortem and retained beyond the time the coroner is involved.

So where a death has been referred to the coroner and a post-mortem undertaken, blocks and slides must be retained so that they can be revisited. The state body, the NHS, must be held accountable. Serial systemic failures will be apparent only after a series of deaths. The families of victims must be informed of the investigation and its conduct must be transparent. But bereaved relatives cannot be shouldered with the responsibility of determining, when grieving, whether or not a future investigation will require a revisiting of blocks and slides as part of the clinical record. This is consistent with the Luce review recommendations.
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Now that the national confidential inquiry into perioperative deaths has been disbanded, this becomes even more pressing.

The Government's own publication, An Organisation with a Memory: Learning from Adverse Events in the NHS, explored deficits and a recent BMJ editorial argued that each surgical death should be subject to detailed forensic and statistical analysis. The state has a responsibility to its citizens. It is because of that that I have tabled the amendment. I beg to move.

Earl Howe: My Lords, I support the case so ably made by the noble Baroness. There is a real issue here. I suspect that the Minister will tell us that this is outwith the scope of the Bill. If so, we are in a real bind. There is absolutely no way in which this House can affect the way in which the Coroners' Rules will eventually look because when they come in front of us we will not be able to amend them.

The noble Baroness has made an extremely important point. I hope that the Government will take it fully on board.

Baroness Neuberger: My Lords, I support the noble Baroness, Lady Finlay, and the noble Earl, Lord Howe, on this issue. I, too, am very worried because we have not received the Coroners' Rules and we need to look at them. I am extremely concerned that we are getting ourselves into a mess here. I support the amendment.

Baroness Andrews: My Lords, I am grateful to the noble Baroness for moving the amendment. It is reminiscent of an amendment tabled in Committee which, as I suggested then, goes to the heart of the Bill and the fundamental principles on which it is based—that is, that individuals or those who were close to a person who has died should have the right to determine the uses to which bodily material is put.

It has become evident—indeed, we are debating a Bill which reflects this—that existing practices are no longer acceptable and have lost the confidence of the public. We should keep in mind as we debate this serious subject that the centrepiece of the Bill is a requirement for consent for a range of medical and other related purposes. In relation to the deceased, consent will be required for those purposes set out in Schedule 1 to the Bill, with the exception of where the activity is required by the coroner.

Let me be quite clear, the Bill does not constrain the power exercised by coroners to retain tissue for their legitimate purposes. The Bill clearly ensures that the coroner's authority to retain human tissue for his purposes is unaffected, and this obviously includes any cases where there is the slightest suspicion of foul play. In the case, for example, of possible miscarriages of justice, we know that samples used in the course of a prosecution must be retained until after the end of any resultant prison sentence. However, material which is no longer required by the coroner will then fall within
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the consent provisions of the Bill, and consent will therefore be required for subsequent retention and use for scheduled purposes.

I am aware of the view—this was discussed in Committee—that forensic techniques may be developed in the future that could establish nefarious involvement in cases where this cannot currently be detected. I have previously written on this point to those Members of your Lordships' House who attended Grand Committee. The amendment suggests that even where the coroner has concluded his inquiries and is satisfied, tissue should be retained in case suspicion should arise at some time in the future. The problem is: where do we draw the line? Technically, one could argue that any case involving sudden heart failure might lend itself to this requirement.

We have to be very careful because, logically, this implies the retention of all tissue from the deceased in all cases, or in some subjectively selected subset of cases, regardless of suspicion at the time. I do not believe that that is a sensible or proportionate route to take.

The Government take the view that where the coroner and criminal justice authorities do not require retention for their respective purposes, retention of tissue for scheduled purposes cannot be justified without appropriate consent. Indeed, in other cases where no proceedings are to take place, evidence of other kinds is routinely returned to the owner by the police authorities.

The effect of the amendment would be to give the coroner precisely the kinds of powers that he does not and should not have. He may not order retention beyond what is needed to fulfil his duty to investigate the cause and circumstances of death. The Coroners' Rules will elaborate on the detail of how that will be communicated and families enabled to take charge once the coroner's work is complete.

As noble Lords may know, limited consultation is in progress until the end of the month in order to enable the rules to be prepared as quickly as possible. The consultation includes the Royal College of Pathologists and the Coroners' Society.

The noble Baroness made a broad and powerful case based on human rights, and I shall address the points that she made in relation to the European Court. The convention balances different rights. In considering the convention in the context of retention of material from the deceased, it is important to bear in mind Article 8, dealing with the rights of surviving families and loved ones. A provision that allows wholesale retention of material without families' consent in all cases, or cases when there is some unproven suspicion about the death, might risk infringing those rights.

On the other hand, I am not in a position to reply in detail to the case that the noble Baroness raised about Article 2. I should be happy to consider her particular concerns about Article 2 inquiries and write to her with
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more detailed views. I hope that on that basis, in order to take the argument further, she will allow us to do that.

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