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“The procedure for certifying the medical cause of death has remained virtually unchanged for over 75 years ... it has a number

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of disadvantages. The most serious of these is that it is dependent on the integrity and judgement of a single medical practitioner ... The fact that the system of certification of the cause of death depends on a single doctor does not give rise only to the risk of concealment of crime or other wrongdoing by that doctor. There may be occasions when a doctor knows that a death may have been caused or contributed to by some misconduct, lack of care or medical error on the part of a professional colleague. In those circumstances, it takes considerable courage and independence for a doctor (particularly a junior doctor) to refuse to certify a death, when s/he knows that, if s/he does refuse, the death will be subject to a coroner's investigation”.

The point that is being made in the inquiry’s report is that when relationships become too cosy, or when someone is at quite a junior level and part of a local circle, there may not be the kind of independence that is required to determine the sorts of events that were investigated by the Shipman team.

I was also very struck by the fact that the BMA, which is the only professional body fully to represent future medical examiners, has also raised concerns about Clause 19 in its briefing note. It says:

“The BMA has concerns about the independence of the medical examiner, given that the roles will be recruited for and managed by the Primary Care Trust or Local Health Board within which the post would be based ... we are still concerned that medical examiners could be subject to pressure or a conflict of interest under this arrangement”.

It also highlights the failure to discuss this issue on Report in another place. In a sitting of the Public Bill Committee on 24 February, the Minister, Bridget Prentice, made a promise when she said that further details would be given of accountability and leadership arrangements. Perhaps the omission can be remedied today.

The BMA has pleaded for further discussions with the Government on issues such as terms and conditions, remuneration, recruitment, retention, training and accountability, and I hope that between now and Report the concerns which my noble friend and the noble Lord, Lord Alderdice, have identified today may also be properly addressed.

Dame Janet had the invidious job of sifting through evidence and listening to the witnesses detailed in hundreds of pages of evidence, but the fact that we were willing to set aside £20 million of public money to enable this comprehensive review to be undertaken demonstrates Her Majesty’s Government’s proper concern about this matter. It is therefore all the more frustrating and disappointing that we have not acted on some of the committee’s recommendations in crucial respects. The need to place a cordon sanitaire around the appointments system and to place it in the hands of the Chief Coroner is a glaring example, and I hope that the Government will be willing to give this further thought.

Lord Walton of Detchant: This is an extremely important matter, and it is crucial that we get it right. As my noble friends Lady Finlay and Lord Alton have made clear, many of the clauses in the Bill derive if not directly then indirectly from the report on the Shipman case, which was the result of an inquiry that was chaired by Dame Janet Smith. It is crucial that Clause 19 creates the new role of medical examiner, who will ensure the independent scrutiny and confirmation of medical certificates of the cause of death and will

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provide general medical advice to the coroner. However, my noble friends and the noble Lord, Lord Alderdice, have made the case for having a chief medical adviser to the Chief Coroner for exactly that purpose: to give general medical advice to the Chief Coroner, just as the medical examiners will give advice to the coroners at a local level.

The Medical Protection Society has considerable anxieties about the details of these appointments. It says that,

It is questionable whether this is the best arrangement, particularly for ensuring,

As the Minister will be aware, the Justice Committee in another place pointed out that the role of the medical examiner requires,

whom it hopes to see appointed to the new Chief Coroner. The need for more direct access to medical expertise, via coroners, is accepted and, because of this, the Justice Committee suggested that it would be more appropriate for the medical examiners to be employed by the Ministry of Justice, or by the coroners’ service, than by the NHS. Will the Minister comment on that recommendation?

The role of these medical examiners must be monitored. A potential conflict could arise if PCTs or local health boards were to employ them because those bodies would be responsible not only for paying the medical examiner but also for monitoring performance, a role that I think is much better in the hands of the chief medical adviser to the Chief Coroner. For that reason too, an independent funding arrangement may be more suitable.

Clause 19(3) proposes that:

“A person may be appointed as a medical examiner only if, at the time of the appointment, he or she—(a) is a registered medical practitioner and has been throughout the previous 5 years”.

It is important to clarify the position with regard to registration because, from this year, doctors who are practising in any aspect of clinical medicine will require a licence to practise. Doctors who are retired may remain on the register and be registered medical practitioners but do not have a licence to practise. It is crucial that medical examiners must be individuals holding a licence to practise because they will have to undergo revalidation to demonstrate to the GMC on a regular basis that they remain up to date and fit to practise. It is therefore necessary that we should see details of the skill sets that medical examiners will have to demonstrate at an early stage.

A number of clarifications are required from the Minister on these provisions.

Lord Neill of Bladen: My Lords, up to now, those who have spoken have all been experts in the field. It may be a relief to have a non-expert such as myself simply commenting on these proposals. I limit myself to Amendments 47 and 48.

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With great respect to those who are proposing the amendments, I do not think that in their present form they are of the necessary quality if we are seriously saying that there should be a national medical adviser to the Chief Coroner. The noble Lord, Lord Alderdice, uses the word “may” in his amendment:

“The Secretary of State may appoint a person as the National Medical Adviser”.

That conveys a lack of clarity and lack of necessity about the appointment. The noble Baroness, Lady Finlay of Llandaff, on the other hand, boldly, and I think quite rightly, says:

“The Secretary of State shall ... appoint”.

With respect to the noble Lord, Lord Alderdice, there is nothing in his amendment about the nature of the responsibilities. The noble Baroness, Lady Finlay, however, says in subsection (1)(b) of her proposed new clause that, after consultation with the Lord Chancellor, regulations should be produced,

I would hope that before the Bill leaves this House an attempt will be made by those who are behind this proposal to draw up the basic responsibilities that one would expect the chief medical adviser to carry out.

The only specific that the noble Baroness mentions is in subsection (2)(c) of her proposed new clause, which states:

“The Chief Medical Advisor must ... monitor the performance”.

That would no doubt lead to a report from time to time. However, that is not a chief advisory role. I hope that we will have a further and better definition of that.

The noble Baroness also referred to this officer’s powers being important. If you are giving the officer powers, the place to find those should be in the primary legislation. She referred to prosecutions. Will this officer have some role in connection with that? Will the finger point to him at some stage of the prosecution? I am not at all clear about that.

I am anticipating that the amendments will not be pressed to a Division today. I may be wrong; I do not know what the Minister is going to say. I respectfully suggest to the proposers of the amendments that we should have a quite different and clearer text to look at and report on. We will then have a grip of who this new officer that we want to have in place is so that when the Bill goes back to the other place they will know what we are backing. At the moment, that is lacking.

5.30 pm

Baroness Butler-Sloss: I support these amendments, with the very helpful caveat of the noble Lord, Lord Neill of Bladen. The ideal would be for the Government to be prepared to take over the idea of a national or a chief medical adviser and to use their facilities for drafting to insert the points put forward by the noble Lord and the noble Baroness. Among coroners, there are concerns about medical examiners being appointed by the local primary care trust. First, they may be perceived not to be independent. The second concern is the point made by the noble Lord, Lord Alton, as to the difficulty sometimes in rather small areas with small primary care trusts where everyone is rather hugger-mugger. The perception is as important as the

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actuality in having medical examiners outside the primary care trust. Maybe they can be employed for other reasons by primary care trusts, but for the purpose of being a medical examiner, that should come under a different system.

Lord Colwyn: Noble Lords have stressed the importance of the medical examiners, who will ensure independent scrutiny and confirmation of medical certificates of the cause of death and provide general medical advice to the coroner. My simple amendment, Amendment 63A, requires medical examiners to liaise with the clinical governance teams in primary care trusts and local health boards to ensure that patterns or clusters of deaths are identified and shared with the relevant teams at local level. I should point out that my amendment does not say “may” or “shall”; it says “must”. I recognise that the Department of Health has indicated in other places that medical examiners will in practice forge close links with clinical governance teams. However, it is important for that to be explicitly reflected in the Bill, not least because it would send a strong message to the public that lessons from, for example, the Harold Shipman inquiry, to which the noble Lord, Lord Alton, referred extensively, have been learnt.

It would also show an absolute commitment by everyone involved in this area that problems will be identified and lessons learnt from deaths where that is possible. Further, this amendment will clarify the scope of the responsibility medical examiners will have in relation to clinical governance.

Lord Kingsland: Our amendments, like those of the noble Lord, Lord Alton of Liverpool, seek to place responsibility with the Chief Coroner to make the appointment, although we retain the link via consultation with the primary care trusts. As the noble and learned Baroness, Lady Butler-Sloss, has already indicated, this is so important because there is concern that the impartiality of an examiner appointed by the primary care trust may be seen as compromised in a situation where the death was caused by failings within the trust itself, through medical negligence or for other reasons.

One might have thought that the Government would be sympathetic to this position in the light of the charter for the bereaved. It is a relatively simple change to make, which nevertheless will command more confidence in the system. The creation of the post of Chief Coroner would seem an ideal opportunity to transfer the power of appointment to a demonstrably independent figure.

Baroness Paisley of St George's: Having neither legal nor medical practices, I hesitate to stand here at all and contribute to this debate, but some things worry me. I am concerned that this amendment would not prevent the families involved having the distress of police involvement, which is currently cited as an argument in its favour. But that would necessitate further legislation to prevent the police interviewing persons who had assisted in procuring someone else’s death. I cannot understand the noble and learned Lord, Lord Falconer, who would have us consider what he describes as a,

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There is no such thing as a civilised approach to suicide, which is an act of deliberate killing, irrespective of the circumstances. I do not think that we should ever pass legislation that gilds the termination of life, nor removes protection from the vulnerable. There are too many shortcomings in this for it to be an improvement on current law.

Lord Walton of Detchant: This comes much later.

Baroness Paisley of St George's: I am sorry. But I want to support the noble Baroness, Lady Finlay, and the noble Lord, Lord Alton, on these amendments.

Lord Bach: I am grateful to all noble Lords who have spoken, particularly the noble Lord, Lord Alderdice, for welcoming the principle of having medical examiners in this field. I think that other noble Lords have agreed with him on that. I say straightaway that the amendments would be acceptable had the Government chosen a model or system of coroner and death certification reform which had led to the introduction of a unified death investigation service. But, in fact, such amendments would not have been required as they would have been important parts of the policy and therefore already reflected in the Bill.

However, those of you who studied the 2006 draft Coroners Bill will know that, although the Government very carefully considered this recommendation made in broad terms by two parallel independent inquiries, our preferred approach is to have two independent services with close and clear links between the two. It is in that context that my reply will continue on the basis of considering each of the amendments.

I understand that the noble Lord, Lord Alderdice, and the noble Baroness, Lady Finlay, want to increase the accountability for medical examiners. The amendments provide for the appointment of a statutory national medical adviser to the Chief Coroner as a way to achieve this. In doing so, the amendments seek to confer on the national medical adviser the power to make regulations on the training of medical examiners and to set down minimum standards as to the service which should be provided by medical examiners. In effect, they provide the national medical adviser with a leadership role in relation to medical examiners.

We do not believe that the medical adviser to the Chief Coroner is the appropriate person to undertake that role. That is because the Chief Coroner will have jurisdiction only for deaths which are violent, unnatural, in custody or other state detention, or from unknown causes. Like senior coroners, the Chief Coroner will have no responsibility over natural deaths unless they have occurred in custody or other state detention. It follows that the remit of the medical adviser to the Chief Coroner should not stray into the generality of deaths except to the extent that I will describe shortly.

The national medical adviser, who we believe should be appointed on a non-statutory basis along with the other staff to support the work of the Chief Coroner—it is not suggested that they should be in the Bill—will advise the Chief Coroner on policy and practice in relation to post-mortems, on issues relating to the prompt release of bodies for funerals and related issues about the retention of organs and tissues, including

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liaison with faith groups and others with an interest. We also envisage that another role for the national medical adviser will be to develop training for coroners and coroners’ officers on medical issues, and to advise the Chief Coroner on medical aspects of appeals by interested persons.

In relation to medical examiners, it is intended that the national medical adviser will be involved in agreeing job descriptions, agreeing protocols setting out the scrutiny that medical examiners must complete, how they interact with coroners and agreeing the curriculum for the training they require. He or she will also be involved in resolving any disputes which arise between coroners and medical examiners about a conflict of views in particular cases. The Department of Health intends to bring forward secondary legislation on these matters, as set out in Clauses 19 and 20, and the role of the national medical adviser in relation to medical examiners will be better, more fully defined there.

Amendment 63A, in the name of the noble Lord, Lord Colwyn, requires that medical examiners must work with clinical governance teams in primary care trusts and local health wards to establish whether patterns of deaths give cause for concern. We agree that this aspect of the work of medical examiners is vital. The Department of Health has made clear in its consultation on improving the process of death certification, and in response to the consultation itself, that this will be one of the main responsibilities of medical examiners. As such, this responsibility will be set out by the Department of Health in secondary legislation brought forward under Clause 19. I hope that goes some way towards satisfying the noble Lord.

Amendments 51 and 53, in the name of the noble Lord, Lord Alton, would give the Chief Coroner responsibility for the appointment, resourcing and monitoring of medical examiners. Given the model that we have adopted—we know it is not the model preferred by a number of noble Lords—and the role that we envisage for the Chief Coroner, we are not persuaded that he or she is the appropriate person to appoint and oversee the work of medical examiners. As I have said, the Chief Coroner will be responsible only for deaths referred to coroners, not for the totality of deaths, whether from natural causes or otherwise. I hope the Committee will accept our reform model and agree that it is much more appropriate for Health Ministers to identify and appoint a leader for the medical examiner system.

Amendment 50, in the name of the noble Lord, Lord Kingsland, has similarities to the ones to which I have just referred. It suggests that the Chief Coroner should appoint the medical examiners but that this should be in consultation with primary care trusts and local health boards. Once again I emphasise that the Chief Coroner will be appointed for his or her qualities and skills for leading the coroner system in England and Wales for deaths which are not considered natural, not for the scrutiny of certificates of causes of death where the death is entirely uncontentious; that will be the role of the medical examiner.

I come back to Amendment 49, in the name of the noble Lord, Lord Alderdice, which would require the Chief Coroner also to appoint the national medical adviser, with the requirement that he or she should be

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an experienced forensic pathologist. We consider that it would be unduly restrictive to require the national medical adviser to be a forensic pathologist. Of course a forensic pathologist might be suitable for the position, but coroners deal with a broad range of types and causes of death. A registered medical practitioner with experience of treating or diagnosing industrial diseases might also have useful skills to bring to the role of the national medical adviser. We believe that the skills and experience required for the role of national medical adviser to the Chief Coroner is best left to the Chief Coroner to decide and should not be unduly constrained by the Bill.

Amendment 55 seeks to remove the requirement for primary care trusts and local health boards to monitor the performance of medical examiners, to ensure that they meet appropriate standards or required levels of performance. We understand that what the noble Baroness, Lady Finlay, intends is to distance medical examiners from the trusts and boards which appoint them. Of course, as other noble Lords have stressed, it is vital that the public can be confident that medical examiners will carry out independent scrutiny, which includes the requirement in the Bill that trusts and boards have no role in the way that medical examiners exercise their professional judgment. Medical examiners will also need to be sensitive to the needs of the bereaved and provide an effective and responsive service to the communities in which they work. Requiring medical examiners to be accountable to trusts and boards for the standard of service they provide is not incompatible with the need for medical examiners to be independent in the way they use their professional judgment to scrutinise cause of death.

5.45 pm

Amendments 48 and 57 to 63, in the name of the noble Baroness, Lady Finlay, seek to create a statutory post of chief medical adviser. As she explained, the intention is to provide leadership for the new cadre of medical examiners. The Department of Health is currently considering the whole issue of clinical leadership for medical examiners with key stakeholders. Clearly there are a number of options for ensuring appropriate accountability and leadership arrangements, including the appointment of a chief medical examiner or adviser. However, in our view, it is not necessary for it to be a statutory role and this position is consistent with the approach taken by the Department of Health in appointing national clinical directors; for example, the national director for heart disease and stroke and the national cancer director. I hope to provide further details of these arrangements while the Bill is still going through Parliament.

I appreciate the strength of feeling in regard to the inclusion in the Bill of the statutory post of chief medical adviser and I would like to consider in a little more detail, perhaps outside the Chamber, the arguments for and against such a course. I am not rejecting them utterly today but—I make this absolutely clear—neither am I in a position to say that eventually I will accept them.

Amendment 56, in the name of the noble Lord, Lord Alderdice, would require medical examiners to have completed an accredited course of study before

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they can be appointed. Again, we are not persuaded this needs to be in the Bill, as regulations made under Clause 19(4)(c) will specify the training which medical examiners must have successfully completed prior to their appointment and the ongoing training that they will need to undertake during the term of their appointment. A detailed medical examiner training curriculum has been developed by an intercollegiate group established by the Academy of Medical Royal Colleges. The group is being led on the academy’s behalf by Professor Peter Furness, who is president of the Royal College of Pathologists.

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