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Recently there was an NCEPOD report about the variability in the standard of post-mortems. That has arisen because although the Royal College of Pathologists guidance is clear—that guidance sets a high standard for post-mortems—it has not been clear to those undertaking the post-mortem what the role of the coroner’s post-mortem is. Is it simply to establish non-natural causes and rule out foul play, or is it to establish as accurately as possible what the cause of death was, getting good data that are important for the health of the nation and that are certainly important if you are looking at governance systems in somewhere like a hospital, which is a large, complex organisation?

I hope that I have been able to explain some of the background to these amendments and why this gives us an opportunity to rectify an anomaly that has arisen in relation to the Human Tissue Act.

In Scotland the law is different. Blocks and slides of tissue—small blocks, about the size of small dice, and wafer-thin slices of tissue on microscope slides—are

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deemed to be part of the clinical record. They can therefore be retained without having to get explicit consent from the family for them to be retained if it is deemed to be either in the interests of the family or for the public good. I also think that while, in a theoretical world, it is ideal to obtain consent before you start the post-mortem, these families are often so pole-axed by the death and so overwhelmed by the shock of what has happened that they really cannot cope with being burdened with a lot of complexities, when you do not even know what tissue it might be wise to retain.

I therefore hope that the Bill can be amended to allow a degree of discretion by those undertaking the post-mortem at the time to retain tissues if it is in the interests of the family or of society. I beg to move.

Lord Walton of Detchant: A number of crucial principles arise here. In the investigation of an unforeseen or totally unexpected death, the performance of a post-mortem examination is crucial. Admittedly, the use of imaging techniques by radiologists and the use of magnetic resonance imaging and X-rays play an important part, but they can never themselves substitute for a full and complete post-mortem examination. I suppose that I must declare an interest: although I am not a pathologist, I did some training in neuropathology in the Massachusetts General Hospital in Boston back in the 1950s.

The Human Tissue Act, which was very fully debated in this House, arose as a result of what was called the Alder Hey scandal. A large number of human organs had been retained in the Alder Hey hospital and the great majority, if not all, of the families of the patients concerned said that they had not given consent for those organs to be retained.

What many people in the profession, and particularly in the public at large, did not recognise is that, when a post-mortem is performed, organs are examined. You can identify without difficulty someone who has been killed by a bullet, someone who has been killed by a knife wound and sometimes someone who has been killed by direct trauma to the head. There are situations, however, which are extremely complex. We all know about the so-called paper-thin skull syndrome, where an individual suffering a minor head injury as a result of trauma subsequently dies and it turns out that the X-rays demonstrate that the individual had a skull that was so thin that even a minor injury could have produced serious underlying brain damage. There have been cases in which trauma to the chest has led to a person being accused of murder, but when a post-mortem was carried out it was discovered that the individual had had a heart attack due to natural causes or had had an inflammatory condition of the heart—a cardiac inflammation—which might well have been the primary cause of death.

What people did not recognise after the Alder Hey situation was that, when the organs are taken out and examined by the pathologist during a post-mortem, however skilled the forensic pathologist, it is hardly ever possible—except in the most extreme circumstances—for the diagnosis of the cause of death to be made simply by inspection of the organs. The organs have to be retained. They have to be fixed in

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formalin over a period of two or three weeks. They then have to be subject to careful anatomical dissection, followed by examination of tissue sections under the microscope, before a diagnosis can ever be reached. This is particularly true in the field of neuropathology.

It is just not the case that you can make a diagnosis simply by inspecting organs removed from a body at post-mortem. The organs must be retained. After coroners’ post-mortems, as indicated by the argument put forward so lucidly by my noble friend Baroness Finlay, there is a strong case to be made for retention.

Before the Human Tissue Act, it is true that many pathologists—not necessarily in the coroner situation—would carry out a post-mortem examination and would not specifically, at that time, ask for permission for the organs to be retained. Perhaps they assumed knowledge on the part of relatives that those relatives did not possess; the relatives did not always recognise that the organs had to be retained, fixed and examined before the diagnosis could be made. Since the Human Tissue Act came into force, the organs retained in post-mortems not carried out for forensic purposes can be retained only with specific permission of the relatives.

In the case of coroners’ post-mortems, however, I believe that my noble friend’s case is very powerful, and I hope very much that the Committee will accept Amendment 45. I also confirm her view that such coroners’ post-mortems must be carried out by a pathologist with appropriate forensic training. That is crucial. Otherwise there are likely to be miscarriages of justice. I strongly support her amendment.

3.30 pm

Lord Alton of Liverpool: I strongly support the sentiments that underlie the interventions of my noble friends Lady Finlay of Llandaff and Lord Walton of Detchant. However, I should like to enter a cautionary note, partly from the very experiences that my noble friend has just referred to at Alder Hey Children’s Hospital. For 18 years I served as a Member of Parliament for a Liverpool division and I was involved with the parents of some of the children whose organs and tissues had been retained. The noble Lord, Lord Walton, was right to put his finger on a central question there—that the parents themselves did not know about the retention of those organs. Their permission had never been sought and it came as a terrible shock to them to learn subsequently that the remains of their children had been retained. To go through the funeral services and cremations that subsequently occurred often years after the event and the reopening of the grief involved was a terrible ordeal for those parents. So we must tread sensitively.

However, I think that the case advanced by my noble friends is overwhelmingly correct. If we can derive knowledge by the retention of organs for a reasonable period of time that we could not derive from an autopsy immediately after death—for instance, in the kinds of circumstances that my noble friend Lady Finlay described—then surely any reasonable person would accept the force of that argument.

Often parents are traumatised when their children have died, and that includes the parents of the children who died in Alder Hey hospital itself. I declare a

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non-financial interest in that two of my own children were treated in that hospital, which is a very fine hospital. Perhaps the worst thing to come out of all that experience was the damage done to its reputation because of decisions that had been taken over the heads of the parents in the belief that the scientists and the medics involved in a sense knew best.

The arguments that have been advanced are rational, reasonable and intelligent. I think that if they are put properly to parents in these circumstances, permission will be given. However, the important thing is not to presume or to press ahead on the presumptive basis that we know better than others. With that brief cautionary note, I conclude my intervention.

Lord Alderdice: I speak in support of the noble Baroness, Lady Finlay of Llandaff, in respect not only of Amendment 41 but of Amendment 43 and of Amendment 44, which is in my name and the name of my noble friend Lord Thomas of Gresford and is in this group. I also declare an interest, as I have before, in that my wife is a consultant pathologist in the National Health Service, though not one who does work for the coroners.

Over the last number of years there have been a number of substantial changes in pathology services and the way in which they are conducted which might not come immediately to your Lordships’ minds. The human organs inquiry was referred to earlier. I can remember before that time when I was a young doctor and the Government’s ambition was to ensure that post-mortems were conducted in 10 per cent of all deaths in hospital as a form of audit. Essentially the post-mortem is the final determinant of what has happened, at least in terms of the physical death. Since the human organs inquiry, not only has a figure like that not been remotely achieved but things have gone completely in the other direction, so that now it is extremely difficult to persuade people to have post-mortems conducted. Of course persuasion is not required in coroners’ cases because the decision is a matter for the coroner. Generally, however, the percentage of deaths in hospitals upon which post-mortems are conducted has absolutely plummeted to the point where it is now difficult for trainee pathologists to do enough post-mortems to get proper experience before they qualify as pathologists.

That is why Amendment 43 is relevant. It will ensure that where post-mortems are conducted, and required to be conducted by the coroner, they can be used for training purposes. We are getting to a point where the Royal College of Pathologists has to look at whether it should require so much experience of post-mortems in pathologists’ training. If it were to change, we would not be able to train people as pathologists at all in some cases.

Noble Lords may also not be aware that not all members of the Royal College of Pathologists are medically trained. Nowadays it is possible to be a member of the college with scientific training. One reason for this is that, as we become more specialised in various kinds of investigation, scientific training may enable someone to be acutely aware of particular approaches to an investigation. What they will not be aware of—in contrast to a doctor, who is trained in all

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aspects of the body and mind—is that various disorders may make their appearance in one part of the body, with symptoms of various kinds, when the origin of the problem is somewhere else. I suspect that a number of noble Lords will sometimes get pains in their legs, only to be told by their general practitioner that the problem is in their back, and what they have is referred pain. Sometimes there are also psychological reasons for sore backs, but that is another matter that I will not go into.

It is frequently the case, in all aspects of medicine, not least pathology, that a proper, full assessment is a time-consuming business, and a medical or other professional colleague may say something like, “Would you cast your eye over this? Do not spend too much time on it, I just want your best guess”. That is not good enough, which is why professional bodies have gone to considerable trouble to set out the fullness required for a proper assessment, whether a post-mortem or another kind of assessment. There is great pressure on people both to do a full assessment because it is the right thing to do, and to do things quickly and briefly because that is where financial and time-resource pressure comes.

I can imagine a situation where coroners would think that they have seen a particular investigation done on a number of occasions, would decide that it is the suitable one to do and would proceed to do it. There may be a concentration on radiological investigations. However, that is not what the Bill says; it refers to a partial post-mortem or a “particular kind of examination”. That could be anything—it could be a fine-needle aspiration or any other kind of investigation. The question is, how does one judge whether a partial post-mortem or another kind of investigation will give an accurate understanding or a partial and misleading understanding of what has gone on?

Some noble Lords have commented that if someone, for example, has a bullet through their head, it is pretty clear how they died. Well, it may or may not be. They may have died before they got the bullet through their head—looking at the brain is not necessarily going to tell you what has happened. There are many cases of people being fished out of water, but drowning did not kill them—they were dead before they hit the water. We have to be very careful in these cases not to take a simplistic view. We ask pathologists to look at these things properly so that we get the proper answer, not just a glance at the problem.

We must be careful. That is why I tabled an amendment very similar to that of the noble Baroness, Lady Finlay of Llandaff, saying that if a coroner feels that it might be appropriate to engage in a particular, lesser form of investigation—whether a partial post-mortem or another type of investigation—he or she can do so, but they should ask somebody who is medically trained and qualified. The requirement is that the investigation be conducted not by somebody who is medically qualified—that is clear in the Bill—but by somebody who is appropriately qualified. The appropriate qualification for certain kinds of investigation might be scientific rather than medical.

If we are going to continue to depend on coroners to get to the root of the problem, I am encouraged by the fact that the Government have now included the

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idea of developing the service of medical examiners, but we must make sure that they are fully used to ensure that the particular and partial forms of investigation that are done are adequate ones that will give us the results that we need.

Lord Kingsland: I rise with considerable trepidation to speak to my two amendments in this group, in view of the characteristically remarkable expertise exhibited by all noble Lords in this debate. Moreover, I claim absolutely no originality whatever for them. I owe them entirely to the work of Dr Brian Iddon in another place, who spoke to them in Committee.

Both amendments are connected to the circumstances in which it is appropriate to substitute a non-invasive method of determining the cause of death and, in particular, the MRI scan. There are circumstances in which families would prefer an MRI scan to an invasive form of post-mortem. Of course, it is important to determine that such a scan would be appropriate and conclusive before permission for it is given by the authorities.

Dr Iddon has noticed that, if you add what is in the Bill to what is in the Explanatory Notes, the Government appear—quite properly, I think—to have given some very powerful support to this method of post-mortem examination. I refer particularly to paragraphs 148 and 150 in the Explanatory Notes. For that reason we have tabled an amendment to Clause 16(3)(a), which reads:

“For the purposes of subsection (1)”,

which concerns the power of a senior coroner to select a suitable practitioner to conduct a post-mortem examination,

“a person is a suitable medical practitioner if he or she—

(a) is a registered medical practitioner”.

Our amendment would add, “including a radiologist”. The effect of this would be to make it clear that radiologists would be recognised as appropriate persons to carry out post-mortem examinations. As I have said, this is stated in paragraph 150 of the Explanatory Notes, which reads:

“Subsection (3) defines a suitable practitioner as either a registered medical practitioner or where a particular form of examination is required, such as an MRI Scan, a practitioner who the Chief Coroner has designated is suitable to carry out such examinations”.

In other words, what is sought here is the incorporation into the Bill only of what is in the Explanatory Notes.

A similar situation applies to the amendment that we have tabled to the interpretation section, Clause 39. Here, we seek to insert between the definition of “person” and the definition of “prosecution authority” the expression,

“‘post mortem examination’ includes both invasive and non-invasive examination”.

This would make it absolutely clear that non-invasive examination is accepted as an appropriate examination in appropriate circumstances.

3.45 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): I, too, stand amazed at the expertise that we have heard from so far in this debate. I am very grateful to the noble Baroness, Lady Finlay,

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and other speakers for leading this important discussion on post-mortems. It may help if I start by giving a few broad, crude figures.

In England and Wales in 2008, there was a total of 108, 360 post-mortems out of a total of 234,784 deaths reported to coroners; that is, 46.2 per cent. In those cases where an inquest was held, 92 per cent involved a post-mortem being conducted. In those cases where an inquest was not held, 39.2 per cent involved a post-mortem being conducted.

I shall do my best to explain how the system for post-mortems is expected to work under the Bill and to respond to the points raised by these serious amendments. The decision whether to request a post-mortem examination will continue to remain a matter for the coroner’s judicial discretion. A coroner will also have discretion over whether a particular kind of examination is needed, including non-invasive examinations. I recognise straightaway how important the possibility of non-invasive examinations is to some faith groups, and I shall say a little more about those examinations later.

Clause 35(1)(b ) sets out that the Lord Chancellor may make regulations,

“for regulating the practice and procedure at or in connection with examinations under section 16”,

which deals with post-mortems. These regulations will be drafted with input from all those with an interest and will cover procedural matters connected to requests for post-mortems, including with whom the coroner should consult before requesting a post-mortem—for example, the pathologist or particular specialist, the medical examiner, and not least the bereaved family.

While respecting the judicial independence of the coroner, the Chief Coroner may also issue guidance to address the considerable variations in the number of post-mortems commissioned by individual coroners regarding the deaths that are reported to them, which range from 26 per cent in some areas to 69 per cent in others. There are considerable variations in the types of deaths reported to coroners, which we shall address in Clause 18. Therefore, these figures should be treated with caution. We anticipate that guidance about post-mortems would address the circumstances in which a non-invasive post-mortem might be appropriate and those cases which might warrant a kind of “post-mortem plus”. This might be appropriate when family members have concerns about a possible congenital defect if one or more family members die at an unexpectedly young age, which a routine post-mortem may not reveal.

It is expected that the new medical examiners, whose primary responsibility is to confirm the cause of death entered by doctors on medical certificates of cause of death, will contribute to the decision-making process in the following ways. First, a coroner may be unsure whether a post-mortem or a related scientific examination is required in a particular case. In this circumstance, the coroner will be able to consult the local medical examiner for advice in the same way that he or she may consult the medical examiner about other issues relating to the deceased person’s medical cause of death. Alternatively, a medical examiner may refer one of their own cases to a coroner because, after consulting

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the treating doctor, he or she is unable to confirm the cause of death given on the death certificate. In making the referral, the medical examiner may suggest a particular kind of scientific examination which may assist, or may be consulted by the coroner about the sort of examination that the medical examiner would recommend.

We agree with the noble Lord, Lord Alderdice, that there needs to be a close working partnership between coroners and medical examiners. The difficulty we have with his Amendment 44 is that it would require the coroner to consult with the medical examiner in certain circumstances. We believe that on balance such an approach would be unnecessarily rigid and could lead to delays in arranging post-mortem examinations, which could in turn lead to delays for families in making funeral arrangements. Everyone agrees that such delays would be undesirable and that accordingly it might be better to leave such matters to the discretion of the coroner. I shall set out in more detail the relationship between the coroner and the medical examiner systems during the debate on the next group of amendments on medical examiners.

To attempt further to reassure the noble Lord about the improvements we expect in post-mortems, I shall say a brief word about training, on which the noble Baroness, Lady Finlay, concentrated in her remarks. At present, coroners receive training on the medical aspects of their role, particularly when they first take up post. This will continue in a reformed system. Once the new regulations in respect of post-mortems have been devised, training for coroners will be arranged to ensure that these regulations are understood and are properly applied under the reformed system.

Given these intentions, and notwithstanding that coroners will retain their discretionary powers, we would expect over time to see greater consistency in the commissioning of scientific examinations. Bereaved families and those who represent their views and interests have told us that this reduction in the postcode lottery is particularly important for them.

I turn to some of the specific points raised in the amendments tabled by the noble Baroness, Lady Finlay. We are concerned that her Amendment 42 would place restrictions on which members of the medical profession could carry out post-mortem examinations. Frankly, this could be wasteful of pathologists’ time by requiring them to supervise procedures that they have no need to supervise. The noble Baroness will be more aware than I that there is already a shortage of pathologists in some parts of the country, particularly in some specialisms. This proposal would spread their resources even more thinly. I listened of course to her comments on the phrase “registered medical practitioner”, which she believes is a loose description, and I hope that can offer some reassurance.

It is absolutely not intended that the standard of post-mortems will decline, or that those who are not properly qualified will conduct examinations, whatever form they take. I must emphasise that in most circumstances it is expected that a pathologist would conduct a post-mortem, particularly if it were a traditional invasive post-mortem; but we have heard that there are other types of post-mortem examination which it would be appropriate for a registered medical practitioner who is not a pathologist to carry out—for example,

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radiologists who carry out MRI scans. In our view, it would be an inefficient use of valuable pathologist resources to require, for example, the presence of a pathologist to supervise a qualified radiologist carrying out a post-mortem by way of MRI scan.

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