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Lord Alton of Liverpool: Clause 20 looks at the issue of medical certificates detailing the cause of death. Amendments 64 and 66 in this group stand in my name and that of my noble friend Lady Finlay of

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Llandaff. These two amendments need to be read together. The effect of Amendment 64 would be to make an alteration in line 4, page 12, leaving out the word “may” and instead inserting the words,

As it presently stands the Bill says that the Secretary of State,

It then goes on to list a considerable number of provisions. My amendment would require the involvement of the Chief Coroner.

Amendment 66 would make an addition at page 13, line 19, by inserting the words:

“An attending practitioner's certificate prepared under subsection (1)(a)(i) will replace the existing separate certificates issued for Cremation and Burial under the Cremation Acts 1902 (c. 1) and 1952 (c. 31), and the Births and Deaths Registration Act 1953 (c. 20) respectively”.

Current arrangements for death certificates reach back to the 1800s and there has been little change since 1935. The Shipman inquiry stated that the existing arrangements for certification were confusing and provided inadequate safeguards for the public. That is a view with which Tom Luce—who chaired the fundamental review of death certification and the coroner service in England and Wales—concurred. I was surprised when looking at the death certificates that are currently in use to see how long ago it was since we made any fundamental change to the death certification process. The certificates authorising cremation were given statutory standing in 1902 and 1952 and the burial certificates were prescribed by the Deaths and Births Registration Act 1953, with regulations following in 1987.

There is, I think, broad consensus and support for the general thrust of the Government's intentions to reform the system of certification, and I certainly welcome that. I note that the British Medical Association has, for instance, given a guarded welcome, although it does raise two questions that perhaps deserve a response from the Minister today. It says that it would like to see the introduction of short death certificates alongside the medical certificate of cause of death as proposed by the 2002 Office for National Statistics report, Civil Registration: Vital Change: Birth, Marriage and Death Registration in the 21st Century. It also argues that the right to confidentiality extends beyond death and that the bereaved should have the option of withholding the cause of death when disclosure is not required. Although it may be necessary—for instance, as a requirement stipulated by an insurance company—to know the cause of death, or, as we debated earlier in Committee, for statistical information vital to the construction of public health policy to include cause of death, we have to accept that it can also be distressing to relatives to be required to disclose sensitive information to organisations such as utility companies for which it is not necessary to have access to that information. I think that these are reasonable concerns which the BMA has raised and which we should ponder on. I wonder whether the Minister, with his usual alacrity, sees a way through that dilemma. I should be grateful to him for his response on those important points.

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I would also be grateful if the Minister will tell us about the funding of the PCTs and the local health boards which will be required to make available to medical examiners the disclosure of their functions and whether we are satisfied that there will be adequate funds to deal with the changes to the certification process.

If we were able to accept the two amendments tabled today, it would abolish the two certificates currently in use and open the way to the introduction of the sort of streamlined procedures advocated by Dame Janet Smith in the Shipman inquiry. Indeed, she has produced a prototype form, copies of which I have here in the Chamber and which can be found in Appendix G of the third report of the Shipman inquiry at page 563. She believes that these integrated forms would overcome the weaknesses in the present system of certification which were identified in her inquiry. At Appendix M, pages 611 to 615, she sets out the details of how the new death certification would work in practice. It is indeed those proposals that are incorporated in these amendments. At the very outset of her report, on page 3—I referred to this earlier—she talks about the disadvantages of the present system. At the very minimum, I hope the Minister will agree that a pilot scheme trial-running Dame Janet's proposed system of certification might well be in order. My amendments would pave the way for the introduction of such certification and replace it—if I may be mildly critical of the half-hearted wording in the Bill, which simply suggests that the Secretary of State “may” proceed, a point which was referred to by my noble friend Lord Neill of Bladen in another context earlier today—with new certification and a duty on the Chief Coroner to get on with it.

What possible justification can there be in reserving this question to the Secretary of State? Surely this is a classic example of something that should be devolved through subsidiarity, in this case to the new Chief Coroner whom we are appointing in this legislation and whose duties should clearly include the production of new certification. We should trust him to get on with that, and mandate him to get on with it. That is the substance of my amendments. I beg to move.

Baroness Finlay of Llandaff: My noble friend Lord Alton of Liverpool has explained the background to the first amendments in this group. I should like to focus on the amendment that is solely in my name, Amendment 72A, and explain the thinking behind it. It may not be correctly worded but I hope that we can make some progress on the principle behind it and end up with a short death certificate, or possibly a series of two that are fit for purpose.

The first instance, referred to in paragraph (a) of the amendment, covers cases where such certificates are needed,

That is meant to deal specifically with brain-stem death. When somebody is diagnosed brain-stem dead, the diagnosis is made on the basis of brain-stem-death testing conducted by two doctors according to a clear protocol. The doctors usually, though not always, conduct the tests with a time gap in between, and they usually, though not always, witness each other's testing.

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However, the family is told that the time of death is the time of the second brain-stem-death test occurring. That is the time when the person is stated to have died. However, their heart may continue to beat and they may continue to be ventilated.

It is in such situations that the family is approached about becoming an organ-donor family. For the family, the whole situation is incredibly distressing. It is very difficult for them to believe that the pink, well-perfused, warm body in front of them is indeed dead, particularly when they see the chest rise and fall, there is still a pulse, and so on. However, the person is already brain-stem dead. He is irreversibly dead.

Some intensive care units issue their own certificates to such families to help them understand that the person is brain-stem dead and to help them cope with the subsequent process of organ donation. I have tabled the amendment to try to standardise the format of that certificate and to improve practice. Sadly, there are some families who have declined to donate organs because they had not understood that the person was dead. Indeed, I know of one instance, which to my shame occurred in Wales, in which a consultant whom I know gave the family inappropriate information about the child. The family believed that the child would not be certified dead until after the organs had been harvested. It was a disaster and the family understandably declined to donate organs.

The amendment would therefore clarify for the public the point at which death has occurred. It would give them a piece of paper with force in law which states that that was the time of death. After that the organs can be harvested from either a heart-beating or a non-heart-beating donor.

The second situation, dealt with in paragraph (b) of the amendment, is quite different. I fully accept that it is possible that I should not have dealt with both situations in one amendment and that it might be better if they were dealt with in regulation and secondary legislation rather than in the Bill. However, this provision deals with the situation, which has already been alluded to, where there has been a death, particularly in a small community, which the family understandably do not want all and sundry to know about, especially when they have to contact utility companies and so on. Perhaps there is a hereditary illness of which others in the family have not been informed. Indeed, the death may have come as such a shock that they are not ready to cope with the implications for themselves and their own children. It may be a death of which they are deeply ashamed; it may involve suicide, drug addiction, alcoholism and so on. It is not necessary for utility companies to know why someone has died, but it is necessary for them—and for housing authorities and so on—to know that someone is dead. That is the purpose of having a short death certificate. It would afford a degree of privacy to the person who has died when the cause of their death does not need to be known for the legal purposes following death. I hope that that clarifies the situation that I am trying to achieve with the amendment.

6.30 pm

Lord Kingsland: Our amendment in this group is, I hope, straightforward. It would allow a fresh medical

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certificate to be issued in place of an old one if there was a subsequent change in the perceived circumstances surrounding someone’s death.

In another place, my honourable friend Mr Henry Bellingham raised the case of a constituent whose relative died. The original certificate recorded the cause of death as “not ascertained”—it was not possible to say at that point how death had occurred. When later it emerged that the person had been unlawfully killed, the certificate could not be changed—all that could be done was to make a note in the margin. Plainly, this was very distressing for the family. I accept that our amendment is wide. However, it is intended to cover a wide set of circumstances. It has the merit of being helpful for the bereaved, and would do away with unhelpful and overbureaucratic rules.

Lord Bach: Amendment 67 in this group is a technical government amendment designed to avoid any unnecessary requirement to make regulations under the Cremation Act 1902. The medical examiner system will replace the system of certifying cremations in the statutory forms set out in the schedule to the Cremation (England and Wales) Regulations 2008. Currently, the doctor who attended the deceased and an independent doctor complete these forms, which are checked by a medical referee at the crematorium before cremation can be authorised. The medical referee’s role will be replaced by that of a medical examiner appointed under Clause 19. Therefore, the bulk of the current regulatory framework will be replaced. It is important, however, that the regulation-making powers contained in other legislation, including the Bill, do not have the unintended consequence of retaining what would clearly be superfluous regulation. In due course, I will move a government amendment on this matter.

I turn to the other amendments so ably moved in this group. Amendment 64, in the name of the noble Lord, Lord Alton, requires the Secretary of State to consult with the Chief Coroner on the regulations set out in Clause 20 that relate to the work of medical examiners. Our thinking in relation to the noble Lord’s amendment is that it is not necessary to set out in the Bill a specific requirement for consultation. I assure the noble Lord that the Department of Health intends to consult widely on the secondary legislation required to implement the new death certification regime. I certainly expect the Chief Coroner, once appointed, to be among those who would be consulted about regulations made under this clause. Equally, there will be other important stakeholders whom it would be appropriate to consult. We do not consider it necessary or appropriate to single out the Chief Coroner as a statutory consultee.

Amendment 65, tabled by the noble Lord, Lord Kingsland, introduces a general and open provision enabling an attending practitioner to issue a fresh attending practitioner certificate to replace the one he or she first issued. An attending practitioner must certify the cause of death to the best of his or her knowledge and belief at the time of death. If unable to do so, or there are reasons for further investigation of the death, he or she will have a duty under regulations made in Clause 18 to report the death to a senior coroner without completing a certificate.

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Under the provisions of Clause 20, a completed attending practitioner’s certificate will be scrutinised by a medical examiner before the death can be registered and documents can be issued allowing a funeral to take place. Errors, omissions or concerns about the accuracy of the information recorded on an attending practitioner’s certificate will come to light either when a medical examiner reviews the certificate and speaks to relatives of the deceased about the cause of death, or when a relative is interviewed by a registrar before the death is registered. For this reason, subsection (1)(c) of Clause 20 provides for either a medical examiner or a registrar to invite an attending practitioner to issue a fresh certificate. We think that this is preferable to a situation where the attending practitioner can change the certificate unilaterally if there is a change in circumstances.

I turn to Amendment 66, the second amendment tabled by the noble Lord, Lord Alton. Under the provisions set out in Clause 20, a medical examiner will scrutinise and confirm the cause of death stated on an attending practitioner’s certificate. This requirement will be applicable to all deaths that are not subject to a coroner’s investigation, regardless of the form of disposal. For this reason, a number of cremation forms currently issued under the Cremation Regulations 2008 will cease to be used. However, the certificate issued by a registrar under the Birth and Deaths Registration Act 1953, following registration of a death and prior to disposal, is being retained for a purpose under the proposed arrangements. This is because registration provides an opportunity for relatives to raise with an independent official any issues that might require investigation before a funeral takes place, and which, for whatever reason, were not brought to the attention of a medical examiner. We propose to retain this important additional safeguard at the request of stakeholders, including registrars and the Coroners’ Society. That is why we cannot accept that aspect of the noble Lord’s amendment.

The noble Lord asked about funding the medical examination service. The medical checks currently required before cremation cost families an estimated £45 million per year. The effectiveness of these checks, which are not subject to robust quality assurance, has rightly been criticised by a number of public inquiries, including the Shipman inquiry. Our preferred option for funding the proposed new system of death certification is a single fee for certification of all deaths, irrespective of whether death is followed by burial or cremation. The fee would replace the existing cremation fee of £160.50. As cremation accounts for some 70 per cent of disposals, most bereaved families would pay less under the new system.

I turn finally to Amendment 72A, an important amendment that has been debated. This would introduce short death certificates, to be issued in addition to full death certificates. The first type of short certificate is intended to speed up the possibility of organ transplantation after death by confirming that life is extinct. The noble Baroness, Lady Finlay, gave us an example of that. The organs could be removed as soon as possible in this instance. The second type of certificate would be a basic death certificate for families to use

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when dealing with administrative matters such as closing bank accounts after a person’s death. The amendment is intended to prevent upsetting the family and executors further by revealing to others the cause of death, which might have a stigma attached to it as far as the relatives are concerned.

We sympathise with the aims of the amendment, and I assure the noble Baroness that it remains our intention to make provision for short death certificates in future; but we need to prioritise. Amendments to the Births and Deaths Registration Act included in the Bill have been limited to those that are consequential to the changes to the coroner system and the new death certification provisions. These are major reforms, and there are dangers in attempting to do too much at once—not least because the introduction of short death certificates would require IT changes, which, as I have indicated, would need to be prioritised against the other changes that we are making to the death certification procedures. We will, however, keep the position under review.

The noble Baroness said that perhaps she should have tabled two amendments, because she is dealing with two separate cases. She will gather in a moment that we are more sympathetic to the relatives’ side of the case than we are to the organ donation side. As I say, we will keep the position under review.

The position on organ donation is rather more complex. We are not aware of any difficulties when the death is entirely from natural causes. However, if the circumstances of the death are such that the coroner may need to investigate, it will not be possible to remove organs from the body until the coroner has determined whether he or she has jurisdiction over the death. Once the coroner has decided that he or she does have such jurisdiction, a decision will need to be made as to whether particular organs may be removed without compromising the coroner’s duty to investigate the cause of death.

It hardly needs saying that these are tricky, sensitive and delicate issues, but in view of the importance of ensuring a better supply of organs for transplantation, protocols between hospitals, transportation teams and coroners have been worked up, or are being worked up, across England and Wales. These will ensure that the appropriate balance is struck between the needs of families for a proper investigation into the death of a loved one—which may, in itself, reveal information to prevent future deaths—and the needs of those awaiting donated organs. I venture to think that the noble Baroness will not be entirely satisfied with my reply to the second part of Amendment 72A, but I hope she is more satisfied with the first part of my reply.

Baroness Finlay of Llandaff: I am grateful to the noble Lord. I am satisfied with the bulk of his reply because it states the situation as it is at the moment. It is completely right that the coroner must be asked for permission if organs are to be harvested from a donor in whom the coroner has an interest of any sort. That is the situation at the moment. The death certificate that I wanted to introduce is quite simply and solely to give the family a piece of paper at the time of the death stating that the person is dead, and giving the time of death and the names of the two people who

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were responsible for the brain-stem death testing. At the moment, the family does not have that. It does not have the names of both people who were responsible for the testing. They may be different from the people who ultimately sign the death certificate. It was to get that clarity for the family that I sought this. This is a discussion that we will probably pursue outside Committee. There may be merit in the Department of Health producing guidance on producing a short form of documentation that is copied into the clinical record and could be given to the family. It would not have the legal status of a death certificate but would still tell the family the time and the names of those who did the testing; and confirm that it was full brain-stem death testing, because it is so difficult for families to come to terms with brain-stem death.

Lord Alton of Liverpool: This has been a very helpful and thorough debate about these provisions in the Bill. I know that my noble friend Lady Finlay and the noble Lord, Lord Kingsland, will also want to reflect on some of the helpful points that the Minister has made. It certainly would not be my wish to push some of these questions much further. I was pleased when the Minister said that even though he was not prepared to put the role of the national coroner in working out new certification procedures on a statutory basis, there would nevertheless be proper consultation with him or her when they are appointed. I am also grateful to the Minister for his reply on funding. I had not heard that figure of £45 million before. I was glad to hear what he said about the need for more robust quality assurance and the introduction of a single fee, which would be less for families to pay in future. That is welcome too. The Minister made a remark about the need to guard against stigmatisation and the merits that there might be in a short certificate in guarding against that. I think there would be widespread agreement among the Committee over that.

The one matter that I would still like to press the Minister on, and which I will certainly think about further and would be willing to discuss further with him, is the introduction, at least, of some king of pilot scheme to try out the proposals that Dame Janet Smith and the Shipman inquiry team came forward with. My mind is always concentrated when I look at the examples that she gave me of certificates that were issued by Dr Harold Shipman. When I look at the cursory way in which some of these deaths, mainly of elderly people, were dealt with, I think it behoves us—in light of the enormity of the offences that were committed at that time—to consider the recommendations of Dame Janet and her inquiry team to streamline the way in which these certificates are issued after someone has died. Having looked through the Explanatory Note and proposals that she has put forward for a more unified form of certification, it would be sensible at least to trial this in some parts of the country to see how it works. I do not know whether that will be possible for regulation, but maybe I can correspond further with the Minister on that point. I beg leave to withdraw the amendment.

Amendment 64 withdrawn.

Amendments 65and 66 not moved.

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