Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

1st Report, 2011 (Session 3)

The Certification of Death (Scotland) Bill at Stage

CONTENTS

Remit and membership

Report

Introduction

Procedure
Purpose of the Bill
Pre-legislative scrutiny
Other UK legislation
Committee consideration

The purpose of death certification

Background
Detection and investigation of unnatural death
Accurate recording of the cause of death
Confirming the fact of death

Operation of the system proposed

Background
Workload
Use of technology
Timescales
Deaths abroad

Financial implications of the Bill

Background
Consideration by the Finance Committee
Collection of the new fee
Scottish Government
Conclusion

Subordinate Legislation

Background
Delegated powers provisions in the Bill
Conclusion

Conclusions

Summary of conclusions
Overall conclusion and recommendation

Annexe A: Extracts from the Minutes

Remit and membership

Remit:

To consider and report on (a) health policy and the NHS in Scotland and other matters falling within the responsibility of the Cabinet Secretary for Health and Wellbeing and (b) matters relating to sport falling within the responsibility of the Minister for Public Health and Sport.

Membership:

Helen Eadie
Ross Finnie (Deputy Convener)
Christine Grahame (Convener)
Rhoda Grant
Michael Matheson
Ian McKee
Mary Scanlon
Dr Richard Simpson

Committee Clerking Team:

Clerk to the Committee
Douglas Wands

Senior Assistant Clerk
Douglas Thornton

Assistant Clerk
Seán Wixted

Committee Assistant
Andrew Howlett

The Certification of Death (Scotland) Bill at Stage 1

The Committee reports to the Parliament as follows—

Introduction

Procedure

1. The Certification of Death (Scotland) Bill (“the Bill”) was introduced by Nicola Sturgeon MSP, Deputy First Minister and Cabinet Secretary for Health and Wellbeing (“the Cabinet Secretary”), on 7 October 2010. The Bill was accompanied by Explanatory Notes (SP Bill 58–EN), which include a Financial Memorandum, and a Policy Memorandum (SP Bill 58-PM), as required by the Parliament’s Standing Orders. The Health and Sport Committee was subsequently designated lead committee on the Bill. Under Rule 9.6 of the Parliament’s Standing Orders, it is for the lead committee to report to the Parliament on the general principles of the Bill.

Purpose of the Bill

2. The Bill, if passed, would introduce a new system of scrutiny of death certificates, which are formally called medical certificates of cause of death (“MCCDs”). It would create the posts of medical reviewer and senior medical reviewer whose functions would be to review for accuracy the MCCDs referred to them from a variety of sources, including random referrals by district registrars. The Registrar General would be responsible for ensuring the referral of MCCDs in accordance with the chosen selection scheme. Persons with some connection to the deceased would be able to apply for a review and medical reviewers themselves would also be able to select MCCDs for scrutiny.¹

3. Medical reviewers would be involved in the training of doctors in the completion of MCCDs. Information derived from reviews would feed directly into that training.²

4. The Bill provides for the form of MCCDs to be amended to show additional relevant medical information. This could include, for example, an indication that it is safe to dispose of the body by cremation. The Bill also provides for the form of still-birth certificates to be amended to show additional relevant medical information to indicate any risk to public health presented by the body.³

5. Where a person dies outwith Scotland and the body is to be cremated in Scotland, medical reviewers would determine whether it is safe to cremate the body. They would also in such cases be able to assist persons to make arrangements for a post-mortem examination (including meeting the cost of the examination) for deaths outwith the UK where no cause of death is available.⁴

6. A fee could be charged to pay for the review system and in cases requiring authority to cremate a body from outwith Scotland.⁵

7. It would be an offence to dispose of a body or body parts without authorisation.⁶

Pre-legislative scrutiny

Independent review of existing legislation in the light of the Shipman Inquiry

8. An independent review group (“the Review Group”) was established in January 2005 by the former administration to make recommendations on the law relating to burial, cremation and death certification, much of which was over 100 years old and was not felt to reflect 21st century life. There was also a need to examine the processes governing death certification following the independent public inquiry into the issues arising from the case of Harold Frederick Shipman (“the Shipman case”). The Review Group published a report, A review of the Burial and Cremation legislation in Scotland⁷, in April 2008.

Scottish Government consultation

9. The Scottish Government consulted on the report’s recommendations early in 2010. It has given priority to introducing legislation on the aspects of the report relating to death certification, with the remaining aspects relating to burial and cremation to be introduced at a later date.⁸

10. The Scottish Government consulted on the alternative models of death certification proposed by the Review Group: the Medical Investigator (“MI”) model and the Medical Examiner (“ME”) model. In both models it was proposed that a statistician would run regular statistical tests on all death data to identify unusual results and patterns of behaviour over time both nationally and at local NHS board level. The difference between the two models, as proposed by the Review Group, lay in the level of scrutiny of MCCD forms—

• · Under the MI model, medical investigators were to scrutinise comprehensively a 1 per cent random sample of deaths, plus any deaths where concerns had been raised e.g. by a relative or doctor (estimated to account for up to a further 1 per cent of all deaths) and countersign the 2 per cent of MCCDs linked to those deaths;
• · Under the ME model, in addition to the comprehensive scrutiny proposed for the MI model, medical examiners were to undertake a basic level of scrutiny of all other deaths (with much of this work carried out as administrative checks by their assistants) and therefore countersign all MCCDs in Scotland.⁹

11. In its consultation, the Scottish Government expressed an initial preference for the MI model.¹⁰

12. The consultation attracted 102 responses. Of these, 56 respondents commented on the models and a small majority (52 per cent) of these were in favour of the Scottish Government’s preferred option, the MI model, while just over a third favoured the ME model. Seven respondents wanted neither model, either because they were content with the existing system or because they wanted an alternative, such as the model being developed in England and Wales. An analysis of the consultation is available on the Scottish Government’s website¹¹.

13. Following the consultation, further work was undertaken to address and take into account points made by respondents to the consultation. A range of stakeholder meetings was conducted to examine key issues and to explain to stakeholders the Government’s proposals and the rationale underpinning them.¹²

Other UK legislation

14. Primary legislation reforming the system for England and Wales¹³ has been passed by the UK Parliament and further work, including pilots, is underway. Secondary legislation outlining the detail of the new system to be established in England and Wales is expected to be brought forward in 2011.¹⁴

Committee consideration

15. The Committee records its thanks to those who gave evidence to, or otherwise participated in, its inquiry into the general principles of the Bill.

Formal evidence

16. The Committee issued a call for written evidence on 8 October 2010, with a closing date of 18 November 2010. 39 written submissions were received in response to the call for evidence. The Committee also took oral evidence from—

Mike Palmer, Deputy Director for Public Health, Frauke Sinclair, Bill Team Leader, Certification of Death (Scotland) Bill, Jacqueline Campbell, Head of Health Protection Team, and Edythe Murie, Scottish Government Legal Directorate, Scottish Government;

Professor Stewart Fleming, Professor of Cellular and Molecular Pathology, University of Dundee;

Dr Colin Fischbacher, Consultant in Public Health, Information Services Division, NHS National Services Scotland;

Ishbel Gall, Mortuary Manager and Vice-Chair, Association of Anatomical Pathology Technology;

Dr Jeremy Thomas, Consultant Pathologist and Clinical Lead, Scottish Pathology Network;

Jim Nickerson, Chairman of the Scottish Sub Committee, Federation of Burial and Cremation Authorities;

Gerard Boyle, Immediate Past President, National Association of Funeral Directors;

Elizabeth Allan, President of the Association of Registrars of Scotland and Chief Registrar, City of Edinburgh Council;

Leah Granat, Deputy Director, Scottish Council of Jewish Communities;

Dr Salah Beltagui, Convenor, Muslim Council of Scotland;

Shona Robison MSP, Minister for Public Health and Sport, Mike Palmer, Deputy Director for Public Health, Dr Mini Mishra, Senior Medical Officer, and Frauke Sinclair, Bill Team Leader, Certification of Death (Scotland) Bill, Scottish Government.

17. Extracts from the minutes of all meetings at which the Bill was considered may be found in Annexe A. Where written submissions were made in support of oral evidence, they are reproduced, together with the extracts from the Official Report of each of the relevant meetings, in Annexe B. All other written submissions are reproduced in Annexe C.

Consideration by other committees

18. A letter of 1 December 2010 from the Finance Committee, about the Financial Memorandum, is attached at Annexe D. The letter is taken into account in the section entitled ‘Financial implications of the Bill’ below.

19. The provisions within the Bill for making subordinate legislation were considered by the Subordinate Legislation Committee; its report to the Committee is attached at Annexe E. The report is taken into account under the heading ‘Subordinate Legislation’ below.

The purpose of death certification

Background

Principles of the death certification process

20. Professor Stuart Fleming of the University of Dundee submitted that death certification served to fulfil three aims—

• · to allow the detection and investigation of unnatural death;
• · to confirm as accurately as possible the cause of death for input into health care planning;
• · to confirm the fact of death.¹⁵

Scottish Government approach

21. Scottish Government officials explained that the Government’s approach was to propose the implementation of a set of arrangements for a sample of scrutiny on a random basis. Mike Palmer, Deputy Director for Public Health, stated—

“... any interested person who was connected to the death would be able to request scrutiny by the team of medical reviewers. We also propose that the medical reviewers would be at liberty to scrutinise up to 100 per cent of cases in any geographical area or any practice where there might be a concern and they believed it was appropriate to go in and implement more intensive scrutiny.”¹⁶

22. Mike Palmer recognised concerns that random scrutiny was proposed for “only about 500 cases a year”, which, he said, appeared to be “significantly lower than the scrutiny in 100 per cent of cases” proposed in England and Wales. He emphasised, however, that random scrutiny was “only one small element” of the package of measures proposed.¹⁷ He explained—

“On the ethos that underpins our proposals, we are seeking to drive up the standard of completion of death certificates at source. In England and Wales, the proposal is to institute a check on every single certifying doctor’s medical certificates. Essentially, the assumption that lies behind that is that it is necessary to check every single doctor’s work, and that that is the only way to institute an effective and robust system around death certification.

“We approach the issue from a different perspective. The goal that we are aiming at is to drive up standards at source so that we do not need to worry about having to check every single doctor’s completion of a death certificate. We aim to drive up the attention and priority that are given to that particular function, which we feel is a Cinderella function to an extent in some parts of the national health service. We also aim to drive up the priority and attention that are given to the standards of completion of the certificate, and to change the culture and practice so that certifying doctors complete certificates to a much higher level of accuracy at source. We do not believe that the heavy education and training element in our proposals is as prominent in the English proposals. Almost half of the remit for the medical reviewers will be to do with education and training to drive up standards at source.”¹⁸

Detection and investigation of unnatural death

Detecting criminal activity

23. Asked whether the proposed new system would have the public’s confidence in the context of preventing another case like the Shipman case, Dr Colin Fischbacher of NHS National Services Scotland replied—

“No. Allowing interested parties to raise concerns about a death, sampling or the collection of other information might have a small deterrent effect, but no absolute assurance can be given that someone like Shipman would be detected. Indeed, as research carried out by Bruce Guthrie and colleagues in my organisation indicates, it is not feasible simply to rely on statistical methods to detect criminal activity and the response to the Shipman case depends not only on changes in death certification but a range of actions including better clinical governance, the revalidation of doctors and the reform of opiate prescribing. The short answer, therefore, is no.”¹⁹

24. Professor Stewart Fleming of the University of Dundee and Dr Jeremy Thomas of the Scottish Pathology Network agreed. Professor Fleming stated that deaths such as those in the Shipman case occurred so rarely compared with other unnatural deaths such as industrial disease, suicide, road traffic accidents and so on that they could not be detected by statistical methods.²⁰

25. Dr Colin Fischbacher went on to explain that, if a statistical approach were to be employed in detecting murderers, “the number of false alarms would far exceed the number of true signals”. He stated that such an approach could not feasibly be taken and that other approaches were “more appropriate”. He added—

“Moreover, because of the way in which patients in Scotland are registered, we can monitor mortality in general practice only at practice level, not at individual doctor level. Murderers are clever. Dr Shipman moved practice during his career, perhaps deliberately to avoid detection, and we cannot be sure that that will not happen again. This is just a distraction from the real purposes of statistical monitoring.”²¹

26. Dr Fischbacher went on to state that it was possible that the Bill might have some effect but stressed that the impacts would be “relatively minor” and “certainly would not offer any reassurance” that such criminal activity would be detected. He believed that it was “fair” to state that the unlikely event of another Shipman would be made “marginally less likely” if all the measures proposed in the Bill were enacted.²² Professor Fleming put it more strongly—

“I think that the proposed measures make it much less likely that a Shipman-type case would be picked up, compared with the current system.”²³

27. Asked to develop the point, he stated—

“Under the current system, 62 per cent of deaths have three doctors reviewing them, two of whom are not part of the professional practice of the first doctor. Under the bill’s proposals, a doctor looking after a patient will sign a death certificate. That means much less scrutiny. Sampling will not pick up cases like Shipman; statistical analysis will not pick them up; but scrutiny by a second and third doctor, as occurs at the moment for cremation papers, is more likely to pick them up. They might not all be picked up, but it is more likely under those arrangements. If we do away with those arrangements, it will be less likely that we will pick up such cases.”²⁴

28. Dr Jeremy Thomas stated—

“The real concern relates to the size of the sample, which is set at around 1 per cent. The Royal College of Pathologists has experience of concerns about pathologists who make diagnostic errors, and there have been cases where pathologists have been reviewed to see whether their practice is up to scratch.

“From the samples that we have to take of a pathologist’s practice and his annual workload, we know that a 1 per cent sample will not detect those errors at all. We probably need to get up to around the 10 per cent level to have a realistic chance of picking up errors. You must remember that there will be a lot of noise but not a lot of signal, because the errors that we will see in death certification will be relatively minor. Picking through all that noise to find the signal will be difficult, particularly on a 1 per cent sample.”²⁵

29. Dr Colin Fischbacher agreed—

“We are not saying that there is nothing that can be done about cases like Shipman, far from it. We are just saying that statistical methods are not the way to go, and that there are better approaches, including those that I mentioned: better clinical governance, the regulation of opiate prescribing and the revalidation of doctors. Those measures would be more appropriate.”²⁶

30. Professor Stewart Fleming added that this concern was wider than “detecting or deterring a Shipman”. He stated—

“... many unnatural causes of death are picked up only at the confirmatory medical certificate on the cremation form. Somewhere in the region of 30 cases a year are picked up at that point. Some of them are road traffic accidents. An old lady dies of bronchial pneumonia and it is only when the doctor who is filling in part C enquires into the circumstances and mode of death that it becomes apparent that she was in hospital because she was knocked down by a car and was dying as a long-term or later consequence of a road traffic accident. Many unnatural deaths are picked up only because a second doctor scrutinises the cremation certificate.”²⁷

31. The confirmatory checks were also felt to be important by funeral directors. Gerard Boyle of the National Association of Funeral Directors stated—

“The funeral directors’ issue with the bill is that the system it would introduce is not as robust as the current one. We welcome any improvement to the medical certification for statistical analysis, but we feel that, for cremation, going from a two-doctor system plus a medical referee at the crematorium down to one doctor is, as was said in the previous session, a bit of a backward step … Although we welcome any changes to the medical cause of death certification, the proposed system is definitely not as robust as the current one.”²⁸

32. Asked what difference the signing of the MCCD and authorising of the cremation by one medical practitioner rather than two would make if the purpose of the Bill was not to prevent, for example, a determined, cunning murderer, Gerard Boyle explained—

“It primarily comes down to safeguards and the fact that it is in the public interest that proper checks are done for everybody who is to be cremated. At the moment, only one doctor signs a certificate for a burial, but the system is different for cremation. Fortunately, we have not had any incidents like Harold Shipman—I do not think that we can legislate for that sort of occurrence anyway. If people set out to carry out that sort of crime, legislation will not prevent them from doing so, but we are moving from something that is quite robust to something that is not.”²⁹

33. Jim Nickerson of the Federation of Burial and Cremation Authorities went on to explain further the importance of confirmatory checks—

“What happens now with the cremation papers is that they come into the cremation office and the office staff check that they are consistent. They will check that the name is right, the address is right, the age is right, the date of death is right and that all questions are filled in. The start of form B states that it is a statutory form and that all questions must be answered. That is the form that asks who was present at the time of death, what the cause of death is and so on. In about 20 per cent of cases not all the questions are answered. What concerns us is the accuracy of the MCCD. If the existing system, which is not entirely accurate, is swept away, how accurate will the replacement system be?”³⁰

Preserving evidence

34. It was put to witnesses that the Bill would result in burial and cremations being treated in the same way but that, in practice, there was a reason for paying more attention in cremation cases: cremation destroyed any evidence recoverable from the body whereas, in burial cases, the body could be exhumed and further tests could be performed. Ishbel Gall of the Association of Anatomical Pathology Technology agreed, stating that once a body had been cremated, there was very little that could be gleaned from the ashes.³¹ She argued in favour of double treatment—

“If the bill is passed, the body will not have to be examined by even one doctor before the medical certificate of cause of death is issued. That is rather worrying.”³²

35. Dr Jeremy Thomas described the proposals as a “dangerous move”, stating—

“The concern is that the whole system is being dumbed down. At the moment, the system requires two signatories to safeguard against the concerns that have been raised by Dr McKee. We are moving away from that, and that appears to me to be a backward step.”³³

36. Professor Stuart Fleming suggested that the Bill’s approach went the wrong way—

“I support the move to a single process for both burial and cremation, but I would move to one that is similar to the process for cremation rather than, as the bill suggests, one that is similar to the process for burial.”³⁴

Stillbirths

37. Asked about current arrangements for stillbirths in the absence of a doctor or midwife, Ishbel Gall of the Association of Anatomical Pathology Technology responded—

“Depending on the circumstances, certain changes happen in a baby that can help to determine whether it died in the womb prior to its birth or died during birth—I do not want to get too technical. In many cases, the mother and baby will present at the maternity hospital, where qualified staff decide whether what has happened is a stillbirth with no suspicious circumstances or whether there might be merit in reporting it to the procurator fiscal. At the moment, it is determined on a case-by-case interpretation of the circumstances.”³⁵

38. Asked about the proposal to make a referral to procurators fiscal in all cases where no doctor or midwife is present at a stillbirth, Ishbel Gall stated—

“In certain cases it is obvious that what has happened is a stillbirth with no suspicious circumstances. If, for example, maceration is quite well developed, there will be no need for an inquiry. Moreover, in most cases, the parents will authorise a hospital post mortem to establish what has happened.”³⁶

Scottish Government

39. In oral evidence to the Committee, the Minister recognised the concerns raised in other evidence that the proposals might not act as a sufficient deterrent to wrongdoing nor involve sufficient scrutiny. She went on to announce “significant enhancements” that she believed would help to address those concerns—

“First, I propose to double the number of cases in the random sample, which is designed to provide a benchmark for measuring annual quality improvement, from 500 to 1,000 a year. When that is added to the proposed number of targeted and interested person reviews, it will amount to around 2,000 comprehensive—or level 2—reviews a year.

“Secondly, I propose to add to that a larger programme of independent level 1 reviews that are to be applied randomly to around 25 per cent of all deaths. That will capture around 13,500 deaths a year. Level 1 reviews will be conducted by medical reviewers, who will check the medical certificate of the cause of death and discuss it with the certifying doctors before sign-off. If a medical reviewer found cause for concern, a level 2 review could follow.

“Furthermore, the legislation has been designed to require an annual report to Parliament on the activities and performance of the reviewers. I would be happy to agree that a report should come back to the committee on the workings of the new system after a suitable period, to review how the system is working before further roll-out. That would take account of stakeholder input, which will feed into the monitoring and evaluation plans that will be developed in due course.

“I believe that the package provides robust enough deterrence and reassurance to the public through widespread independent scrutiny of MCCDs, while harnessing the benefits of a targeted quality improvement approach that is proportionate and keeps the financial burden on bereaved families and the Government at a reasonable level.”³⁷

40. Asked whether the decision to double the number of cases to be scrutinised from 500 to 1,000 and to increase the proportion of level 1 reviews to 25 per cent had been made on a statistical basis or on a reasonableness basis, the Minister responded—

“A reasonableness test has been applied, with the recognition that, when the test sites have been in operation for a year, that should begin to give us some ability to judge whether there are any concerns about the new system. That is why the test sites are so important. As the figure of 25 per cent will be under ministerial direction to the registrar, it can be changed upwards or downwards in light of the evidence that we gather from the practice of the new system.

“What is proposed is a reasonable compromise, and it is proportionate cost-wise. The proposed system is affordable and it will increase the Government’s contribution by around £600,000. I feel strongly that I do not want to increase the level of fee to be paid by members of the public; I want to hold that at the £30 that we have proposed. We therefore propose that Government expenditure will cover the additional cost of having level 1 reviews in 25 per cent of cases.

“That is the rationale, and it can be tested during the test site period.”³⁸

41. She added that the doubling of the number of comprehensive reviews from 500 to 1,000 was a “significant step” in itself—

“After all, those level 2 reviews will be fairly in-depth and will involve checking not only the paperwork associated with the death but the appropriate medical records and the results of any medical investigations; discussions with the certifying doctor, other relevant staff and the deceased’s family or informal carers; and consideration of any other evidence including, if necessary, arranging to view the body.

“The test sites will allow us to reflect on whether the system is working not just with regard to level 1 and level 2 reviews but in a number of areas. For example, communication with families will be important and we will be able to find out whether we need to do more in any area in response to feedback from stakeholders on the test sites. I regard that as very important, and I want to involve the committee in this work. Indeed, I have committed to reporting back to you on what stakeholders are saying and reflecting on whether any changes need to be made before the new model is rolled out.”³⁹

42. In response to a question asking how often, on average, each doctor would have a review, it was stated that it would really depend on the number of certificates that a doctor signed—

“It is difficult to make an average because a doctor in a remote area might sign few certificates, whereas a doctor who looks after a care home might sign many. We can categorically say that one certificate in four will be reviewed, but the link between the certificate and the doctor is quite tenuous.”⁴⁰

43. In relation to the removal of confirmatory checks, the Minister was asked whether the public would be convinced that the system had been improved when, instead of, in 60 per cent of deaths, the first doctor being interrogated by a doctor with no financial or professional interest in the workings of the first doctor and the relatives or people nursing the deceased also being questioned, 25 per cent of death certifications would require a telephone conversation between a central doctor and the doctor signing the certificate. She replied—

“The question is really about the purpose of what we are trying to achieve. The review group, which debated those issues for two years, concluded that there was little to be gained for the public purse or for public reassurance from the current system. That is why we are sitting here debating a new system to replace it. The old system was seen as out of date and unnecessary ... and it was extremely costly to the bereaved family. We could not continue to justify the ash cash issue, which has caught the public’s attention, and times and understanding have moved on from when that system was established medical practice.”⁴¹

44. In response to a question about the proposal to make referral to a procurator fiscal mandatory when a child is stillborn and no medical practitioner or midwife was present, it was stated—

“It is applicable in less than 1 per cent of cases; it hardly ever applies. We are not really changing many circumstances here. The number of stillbirths in Scotland in 2009 was 317, so we are talking about a couple of cases. Referral of stillbirths to a procurator fiscal is very rare.”⁴²

45. It was then asked whether it was necessary to do this in cases where there were no suspicious circumstances—

“Any doctor who is asked to certify a stillbirth will always say, if they were not present at the death, that it was a sudden death. On that basis, they would refer the stillbirth. If it was a death in utero, the mother would in most cases deliver in a hospital setting. In that case, somebody would be present at the birth. What we are really looking at is sudden deaths where a young girl delivers a baby—a concealed pregnancy or whatever—and the baby is found dead. In those circumstances I think that the doctor would be required to refer to the procurator fiscal, because the cause of death is uncertain.”⁴³

46. In addition, the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists and the Crown Office and Procurator Fiscal Service (“COPFS”) had been consulted and all had been content with the proposals. The Minister agreed to reflect further and subsequently wrote to the Committee on the matter—

“COPFS currently requires all sudden and unexplained deaths to be reported to the procurator fiscal (PF). While a sudden or unexplained death may not be suspicious, there is a requirement to report it, just as suspicious deaths have to be reported to the PF. If a baby has died in utero and is diagnosed, then the delivery will usually occur in a hospital, where clinical staff will be available at delivery. If a baby dies during birth, and a midwife or a doctor is present, they may be able to establish a cause of death and sign a stillbirth certificate. If the cause of death is not known or death is sudden or unexpected, the doctor or midwife cannot offer a cause of death if they have not witnessed the event, i.e. delivery, or examined the body. The COPFS currently expect the doctor or midwife to discuss the case with the PF. There will be no change to this practice as a result of this Bill.

“In investigating non-criminal deaths all PFs are expected to act with sensitivity in dealing with nearest relatives. Where the deceased is a child (perhaps a sudden unexpected death in infancy) or where stillbirth has occurred this duty of sensitivity is particularly acute. It is paramount that parents are informed that the involvement of a PF is not an indication of wrongdoing but rather that the PF is exercising his/her "other" role as deaths investigator. The only change being made by the Bill is to remove the current requirement in section 21(2)(b) of the Registration of Births, Deaths and Marriages (Scotland) Act 1965; this requires a qualified informant (usually a family member) seeking to register the stillbirth to complete a declaration to the effect that the child was not born alive and that there was no doctor or midwife present at the birth. As the PF will, in practice, be involved in such cases, this requirement is unnecessary.”⁴⁴

Conclusion

47. The Committee has concerns about the Bill as introduced. Whilst the Committee accepts that no system can eliminate the possibility of criminal activity by, for example, a serial killer, the initial proposals were for a level of scrutiny and review of MCCDs that was much less rigorous than the existing arrangements. In particular, the Committee notes that a sample size of 10 per cent was said to be necessary to have a “realistic chance”⁴⁵ of identifying errors.

48. The Committee welcomes the increasing of the random sample size and the planned addition of an extra tier of review, as announced by the Minister. However, the Committee notes that the sample size would be increased only to 4 per cent and remains concerned as to why this figure has been selected.

49. The Committee notes the intention to report to the Parliament on the outcome of the pilot in the test sites. In the meantime, the Committee will seek views on the Minister’s new proposals from witnesses who were critical of the Bill.

50. The Committee remains concerned, however, about the removal of the requirement for approval from a second and a third doctor from cremation cases. The Committee notes the argument that the procedures for burials and cremations should be aligned but believes that, owing to the finality of cremation, any alignment should have taken as its benchmark the rigour of the current cremation procedures.

51. The Committee notes the Minister’s further explanation regarding proposals relating to stillbirths, given in correspondence⁴⁶ following her oral evidence.

Accurate recording of the cause of death

Background

52. Dr Colin Fischbacher acknowledged that there were weaknesses in the current system—

“Two important weaknesses of the current system are that there is no systematic method of feeding back the problems that are detected by the form C doctor or others in the process, and my understanding is that there has been little or no improvement in the accuracy of death certification in Scotland in the past 10 years. The present system is therefore not delivering any improvement and it is not completing the feedback loop.”⁴⁷

Analysis of the proposals

53. Asked whether the Bill would result in more thorough or more accurate information on the death certificate, Professor Fleming stated that he did not believe so—

“At the moment, in 62 per cent of deaths, the disposal of the body is by cremation. There is a separate cremation form, a second doctor and a confirmatory medical certificate. We know from our local experience and the nationwide crematoria experience that in about 15 per cent of cases—the figure is somewhere in that ball park—there is a fine tuning or even an alteration of the diagnosis by the confirmatory medical certificate. That involves someone standing back, looking at the bigger picture and inquiring into the circumstances and mode of death. A system that does away with that will be inherently less accurate.”⁴⁸

54. Witnesses were asked about the Scottish Government’s view that the signing of a confirmatory certificate by a second and a third doctor in cremation cases – around 60 per cent of all cases – was conducted “in a relatively perfunctory manner” and did not deliver a “robust check”⁴⁹ and that secondary checks should therefore be removed entirely. Professor Fleming responded that this view did not reflect his professional experience—

“The doctor who completes the confirmatory certificate has to speak to the doctor who has filled in the first part and to other individuals who are named on the certificate, such as nursing staff, family members, or other doctors involved in the person’s care, and then they have to complete the certificate. In hospitals such as Ninewells and those in Fife, a relatively small number of individuals carry out that task.

“I have already said that on approximately 15 per cent of occasions the diagnosis is fine-tuned or changed. In Scotland as a whole, between 20 and 30 cases a year end up with a full procurator fiscal investigation for an unnatural death. Some of those cases are suicides and some are industrial diseases, and they have just slipped through the net; no malice is intended. A 15 per cent improvement in accuracy and picking up on dozens of unnatural deaths does not seem to me to be perfunctory.

“I would much rather that the approach had been to look for the flaws in the system and to improve it, rather than do away with it completely.”⁵⁰

55. Ishbel Gall of the Association of Anatomical Pathology Technology agreed that the confirmatory certificate was “far from perfunctory”, stating that it picked up “quite a few anomalies” that were usually ironed out before the cremation papers went to the medical referee at the crematorium.⁵¹

56. Dr Jeremy Thomas stated that he accepted the Scottish Government’s assertion that the quality of the current system was patchy but argued that the principles were sound. He also made a point about the seniority of the two practitioners who are involved in the signatory process—

“It is proposed that an FY2, which is a doctor who has been qualified for just one year, will be the person in hospitals who will normally sign the only certificate to allow a burial or cremation to proceed. The current system requires a second doctor who has been registered for five years.”⁵²

57. It was suggested to witnesses that it was in some cases impossible to be accurate unless a post mortem was requested and that another doctor reviewing the first certificate could not give any more accurate a guess than the first doctor. Professor Fleming acknowledged that this was correct, explaining that research-based studies had shown that, in cases in which a post mortem had been performed after the completion of a death certificate, the inaccuracy rate was about 20 to 30 per cent. He added, however—

“... there are some circumstances in which a second doctor who has come to a case fresh and who reviews it from more of a distance and inquires into the circumstances and the mode of the death may suggest an altered diagnosis. That is what happens with the confirmatory medical certificates at the moment.

“I fully agree that we will not get anywhere near 100 per cent accuracy with death certificates, but I think that we can improve on the present accuracy rate. I am concerned that the bill’s proposals will make it less likely that we improve accuracy.”⁵³

58. Ishbel Gall echoed this view—

“A post mortem is the ultimate audit, but it is probably not possible or feasible, given the number of pathologists we have in the country at the moment, to go back to the number of post mortems that we carried out 20 or 30 years ago.

“I do think that having a second doctor from a hospital setting, who is usually more qualified, adds something to death certification, because of their depth and breadth of experience. When they read through the case notes, they quite often pick up on something that a more junior, newly qualified doctor did not pick up on.”⁵⁴

59. Dr Jeremy Thomas added—

“In my experience of the process of carrying out a post mortem, scrutiny of the case notes usually takes you a long way towards the correct diagnosis. If a second doctor reviews the case notes carefully, he can usually get a long way towards the correct diagnosis. The post mortem does not usually throw up that many surprises. I believe that taking a little bit of time to review the medical records—that does not have to be done by a pathologist; a senior practitioner could do it—can do an awful lot to improve the accuracy of death certification.”⁵⁵

60. Gerard Boyle of the National Association of Funeral Directors also spoke of the advantages of the checks by further doctors—

“There have occasionally been marks or bruises on bodies that cannot be explained from the doctor’s first signing of the form. The doctor who signed the death certificate might not have been aware that the person had had a fall in the previous weeks, and the second doctor might find unexplained bruising on the body. The second doctor will examine the remains if they want to do so.”⁵⁶

61. He added—

“… I cannot think of any case in which a funeral director or an embalmer who was preparing the deceased noticed something that both the first and second doctor had missed, although I can think of occasions when the second doctor has seen something.”⁵⁷

Scottish Government

62. Asked about reservations expressed in other evidence to the Committee on whether the proposals would improve quality, the Minister explained that the “whole raison d’être of the review system, including both level 1 reviews and level 2 reviews” was to “drive up the quality of MCCDs in general”. She stated that a “very important part of the new system” was that, “unlike in too many cases at the moment”, every certifying doctor was to ensure that the quality improved—

“The issue is not just how many certificates each doctor might end up having scrutinised; it is more about driving up the general quality of those certificates across the board.”⁵⁸

63. She went on to state—

“In addition, it will be possible to take an in-depth look at practice in certain areas of Scotland—for example, groups of care homes, GPs or hospitals—and consider whether there are statistical anomalies that require to be further investigated. Furthermore, there is an education and training element, in which medical reviewers will play an important part.

“Looking at the package, quality improvement comes through all that. The quality of the completion of the certificates should improve—I very much believe that it will—because of all the elements of the system.”⁵⁹

64. In relation to the issue of false certification in error relative to underlying causes of death, it was put to the Minister that such cases would not be detected by the systems proposed. Asked whether the information would be more accurate under the proposals, the Minister responded that she believed that it would—

“… quality will be driven up. Unfortunately, at the moment some death certificates still say that a person died of old age. That is completely unacceptable in this day and age.”⁶⁰

65. The Minister and the Senior Medical Officer, Dr Mini Mishra, later acknowledged that, in some circumstances, it was “acceptable under the current guidance to specify "old age" in people above the age of 80”.⁶¹

66. The Minister added that the current system did not detect issues such as erroneous false certification and reiterated that the aim of the proposals was to “drive up quality”. She stated—

“The nub of … [the] question is whether there is any system that we could put in place that would detect some of the issues that have been mentioned. That would be a difficult task. Unless a post mortem is conducted and a toxicology report is produced for every one of the 50,000-plus deaths in Scotland each year, we will not necessarily be able to get at some of the issues that she raised. However, we can have the best and most proportionate system that includes a sufficient level of deterrence … The best that we can do is ensure that the level of deterrence is strong enough, that any statistical issues that arise are detected—the national statistician has a hugely important role—and that the quality of completion of death certificates improves. I believe that the system that we propose will do that. That is the best and most proportionate approach—affordability is an issue. The bill establishes the best system for doing all the things that we want to do.”⁶²

67. Asked to give an example of how the position would be strengthened, the Minister responded—

“Under the new system, families will be able to raise with the medical reviewer concerns about the cause of death, which is not the case at the moment ... At the moment, families have no mechanism to say in an easy way that they are concerned that something about the cause of death has been omitted from a death certificate. Under the new proposals, a family will be able easily to contact the medical reviewer to say that they are not happy, which will allow the reviewer to look into the case. At the moment, that mechanism does not exist, but it will be part of the medical reviewer’s role. That is an important additional element for families that will enable them to raise their concerns.”⁶³

68. A question was asked about whether any consideration had been given to specifying a level of experience and training required of doctors before being eligible to sign an MCCD, given that, currently, MCCDs in cremation cases could not be signed other than by doctors who had a specified minimum number of years of experience and who had completed a module of training. In response, it was stated that the question had been considered—

“Any registered doctor who is beyond F1—that is, who is in F2 onwards—can certify death. If we are restricted to people who have more than a certain amount of experience, two issues arise. One is that doctors in training do not get that training, and the other is that we will not have enough doctors to do the certification, which would lead to delays and other problems.

“We spoke to educationists, who feel strongly that junior doctors should have a role in certifying deaths, but that they should be supervised by their seniors, which is what is meant to happen. That is also relevant to general practice, where GP registrars should be supervised by their trainers.

“That is the way that deaneries would like us to go. They would like us to emphasise the educational supervisors’ role in death certification, just as in other activities, such as operations.”⁶⁴

Conclusion

69. The Committee considers that the new proposals increasing the level of scrutiny, announced by the Minister during oral evidence to the Committee, take a step towards addressing the main concerns about quality and confidence in the system.

70. The Committee remains concerned that no level of experience is specified as a pre-requisite for a doctor to be eligible to sign MCCDs in a professional culture where supervision can be very variable – with, for example, junior doctors sometimes being left responsible for death certification at weekends without consultants being present. The Committee believes that, if the aim is genuinely to drive up quality, there must either be an experience qualification or junior doctors should not be allowed to sign a death certificate unless they have been signed off by the deanery⁶⁵ as having undertaken a module.

71. The Committee also believes that accuracy could be improved with appropriate use of technology. This is discussed later in the report under the heading ‘Use of technology’.

Confirming the fact of death

72. Ishbel Gall of the Association of Anatomical Pathology Technology explained that it was currently legal for a registered medical practitioner to issue a death certificate without examining the deceased but that, in cremation cases, at least two doctors had to examine the body of the deceased. She argued that the Bill’s removing of the confirmatory signatures of a second and a third doctor was therefore problematic—

“In the bill, there is no plan to insist that the registered medical practitioner must view and examine the deceased before issuing the certificate. It is therefore perfectly possible that somebody could be cremated without having been examined by a registered medical practitioner. That is definitely a retrograde step, because currently at least two people examine the body.”⁶⁶

73. She said that a situation where a GP who knew a terminally-ill patient very well presented the sort of circumstances that gave rise to a risk—

“If somebody has been very ill at home for a long time, rather than just taking somebody’s word that life is extinct—that the person has died—it would be prudent to insist that a medical practitioner examine the body before issuing a certificate.”⁶⁷

Conclusion

74. The Committee is concerned that it might still be possible for a medical practitioner to sign an MCCD without examining the deceased. The Committee draws this point to the Minister’s attention and requests that she respond to it in the Scottish Government’s formal response to this report.

Operation of the system proposed

Background

75. According to the Policy Memorandum, under the model proposed by the Bill, a senior medical reviewer (“SMR”) and up to six regionally based medical reviewers (“MRs”), all medically qualified, would be employed by Healthcare Improvement Scotland (“HIS”). The SMR and each MR would be supported by an administrative assistant. In addition, there would be a statistician located within, and employed by, NHS National Services Scotland who would produce both national and local statistics for further consideration by MRs. The statistician, a non-statutory role, would also be supported by an assistant. The Policy Memorandum states that the SMR and MRs would be accountable to the HIS board but would “have a high degree of operational independence in the exercise of their functions”.⁶⁸

76. The Policy Memorandum also states that the exact number of MRs required would be decided following test site work on the operation of the new system and that the work to be conducted by MRs would involve the following—

• · comprehensive checking of all relevant paperwork associated with the death including the MCCD, appropriate medical records and the results of any medical investigations;
• · discussions with the certifying doctor and other relevant clinical and healthcare staff, as required;
• · discussions with the family of the deceased or an informal carer, as required;
• · consideration of any other relevant evidence, including viewing the body, if necessary.⁶⁹

77. MRs would be required to consider whether to approve the MCCD for every death subject to scrutiny, unless the case is referred to a procurator fiscal; approval is likely to take the form of a countersignature and MCCD forms would be updated to allow for this. All MCCDs not subject to scrutiny will feature the signature of the certifying doctor only.⁷⁰

78. In cases of disagreement between an MR and the certifying doctor regarding the information provided on the MCCD, the certifying doctor would have an opportunity to issue a replacement certificate following discussion with the MR. Where agreement between the certifying doctor and the MR cannot reached, a second opinion could be sought from the SMR and, if necessary, a further opportunity given to the certifying doctor to issue a replacement certificate. In cases of irresolvable disagreement over the cause of death, the SMR could refer the case to a procurator fiscal for investigation into the cause of death.⁷¹

79. Any discussions entered into by MRs would be documented in order to provide a record of the discussions undertaken. Where the review of an MCCD gave rise to any suspicions of criminality, an MR or the SMR would have to report the matter to a procurator fiscal.⁷²

80. The Policy Memorandum summarises the role of MRs as being—

• · to undertake comprehensive scrutiny of a sample of around 500 deaths annually and to consider any interested person cases reported to them (estimated to amount to an additional 500 deaths annually);
• · to consider reports from the statistician and make available and discuss those reports with the relevant NHS board medical directors for further investigation or action;
• · to perform additional checks where required e.g. at regional, hospital, practice or individual level, in the light of information gathered by the statistician (up to 100 per cent of deaths if required);
• · to support certifying doctors directly in making effective decisions in relation to death certification through, for example, phone support;
• · to support and guide registrars directly in respect of information provided on MCCDs that is inaccurate, incomplete or requires further inquiry;
• · to offer, potentially, ‘on-the-job’ and ‘off-the-job’ education and training of doctors and other healthcare professionals, for example through speaking about their role and through continuing professional development;
• · to liaise closely with procurators fiscal.⁷³

81. The Policy Memorandum summarises the role of the SMR as involving—

• · strategic leadership and the promotion of improved and consistent high quality standards nationally in relation to death certification;
• · provision of professional leadership and peer support to MRs, including support for aspects such as continuing professional development and medical revalidation;
• · input to development of medical education and training in relation to death certification, linking in with NHS Education for Scotland (NES) and the royal colleges;
• · delivery of a proportion of education and training at national level by giving seminars, conference talks, local sessions, etc;
• · management of MRs and their staff and reporting to the HIS board;
• · provision of second opinions in cases of disagreement between an MR and a certifying doctor and, where necessary, carrying out a full review of the case; and
• · liaison with the Chief Medical Officer and Scottish Government officials, the Scottish Association of Medical Directors, the Crown Office and Procurator Fiscal Service and other appropriate persons (such as counterparts in other parts of the UK).⁷⁴

Workload

82. Witnesses were asked how realistic it was to expect MRs to fulfil their educational functions in respect of training, guidance and support to persons required to complete medical certificates of cause of death, given that that function would be performed by at least 5,000 general practitioners alone, as well as by many other medical practitioners. According to Professor Stuart Fleming of the University of Dundee, it was “clear” that six medical reviewers would “not be able to deliver an education programme to around 12,000 doctors and 1,000 new graduates every year”. Commenting that neither the Bill nor the associated documentation contained any detail on how it would be done, he suggested that that work would “have to be outsourced, probably through the medical schools”.⁷⁵

Scottish Government

83. The Scottish Government informed the Committee that there were 19,224 licensed doctors with a registered address in Scotland, anyone of whom would be eligible to sign a death certificate.⁷⁶ The scale of the task of educating 20,000 doctors for a small number of MRs, with other functions to fulfil, was raised with the Minister. Asked how she envisaged that MRs would fulfil their education function, she responded—

“The medical reviewers will have the opportunity of some strong local links with the professionals in their areas. I envisage that they will take the opportunity, particularly in the early stages of the new system, to hold educational sessions locally. However, the most important aspect will be the on-going relationship. The medical reviewer should develop a relationship with the doctors in their area so that they can lift the phone, for example, should anything require to be clarified, particularly in the early stages of the new system. Some of the work might indeed involve formal input—obviously, that will have to be manageable time-wise—but some of it might be more informal, such as doctors checking on the phone with the MR that they understand the system correctly.”⁷⁷

84. It was also stated that the Scottish Government did not expect that MRs would personally undertake the training of nearly 20,000 certifying doctors—

“That would not be feasible. We have had initial talks with educational bodies and, for example, the postgraduate deans. Their view is that the education supervisors have a responsibility to ensure that there is quality in this area.

“The medical reviewers will carry out their education and training functions in a number of ways. We will particularly look for the senior medical reviewer to take a leading role in the area. For example, they will be expected to contribute to training through seminars, making links with the deans and talking to boards. The regional medical reviewers will have one day a week, not half their time, in which to carry out their training and education role. They will mainly focus on the scrutiny and review role.”⁷⁸

Conclusion

85. The Committee notes the explanation that MRs’ training and education role would be primarily supervisory whereas the responsibility for providing training and education would fall on doctors’ educational supervisors. The Committee has reservations that, with a remit to advise, to train and, now, to carry out 25 per cent level 1 scrutiny, which is likely to lead to an increase also in level 2 review, the proposed workforce may still be inadequate.

86. The Committee also draws the Parliament’s attention to paragraph3 of Schedule 1, which states that any function conferred on MRs may not be delegated by Healthcare Improvement Scotland, and requests that the Scottish Government clarify whether it will be possible, in the context of this provision, for the educational and training role of MRs to be exercised by third parties as was suggested in oral evidence to the Committee.

Use of technology

87. Given the policy objective to improve accuracy, it was put to witnesses that electronic submission of death certification would be desirable as it could restrict the data entered to pre-determined formats.

88. In response, Dr Colin Fischbacher of NHS National Services Scotland stated that he understood the value of such an approach but was reserved about its feasibility.⁷⁹ Professor Stuart Fleming of the University of Dundee, however, stated that he “strongly” supported it—

“We have a number of front-end systems like that. In my clinical job, I am a renal and transplant pathologist. We have a Scottish renal biopsy registry where we register diagnoses. There are subtle wording differences for describing things, and there are prompts to qualify the answer if it does not match the coding system. The software is available, but obviously quite a bit of work would need to be done. However, I strongly support the principle of the suggestion.”⁸⁰

Scottish Government

89. It was confirmed in oral evidence that there were no plans for electronic underpinning of the new system of death certification.⁸¹ The Minister stated, however, that it had been considered and could be introduced in the future—

“I reassure you that nothing in the bill confines practice to a paper-based system. My only note of caution is that introducing new information technology systems is costly.

We will certainly continue to consider the suggestion. I suspect that it might be difficult to have a system up and running for the test sites, but we would always consider where IT solutions could help. On your main point, I reassure you that nothing in the bill requires the system to be paper based, so it is future proof.”⁸²

Conclusion

90. The Committee notes the Minister’s comments that the Bill would not confine practice to a paper-based system. The Committee is surprised, however, that an electronic system was not specified from the outset, given the evident advantages: an electronic system could provide prompts and help to those completing MCCDs, as well as ensuring that non-compliant MCCDs were impossible to submit. The need for repeated data entry, which is another source of possible error, would also be removed from the process. Using an electronic system would also establish a chain of evidence and would do much to clarify matters. The Committee notes that it would now be difficult to devise and implement such a system in time for the beginning of the test sites but, if this proves impossible to achieve, strongly urges the Scottish Government to do so as soon as possible and, in any case, before the eventual roll-out of the new system nationwide.

Timescales

Background

91. The Policy Memorandum states that the additional checks required for those deaths selected for scrutiny pre-registration would introduce an extra step to be completed before a body could be released for a funeral. The Policy Memorandum also states that the average wait for a funeral is, “in most cases”, close to 7 days, based on “informal research of recent online family newspaper announcements”. It is anticipated that this aspect of the system would be examined and tested as part of the operational test of the new system, with a view to ensuring that scrutiny would, as a norm, be completed immediately following death (i.e. within a day or two of the death) with, therefore, no perceptible impact for bereaved families on the scheduling of funerals.⁸³

92. It is conceded, however, that, in exceptional circumstances, selection for scrutiny could have an impact on the scheduling of funerals – for example, where records need to be retrieved from rural and remote locations or where public holidays constrain the swift retrieval of records. It is further recognised that there may be circumstances in which the delays inherent in a scrutiny system, even when they are fairly short, might create difficulties for particular bereaved families. The Policy Memorandum states that, accordingly, in cases randomly selected for review only, families would be able to request that registration take place in parallel with the review process. The registrar would refer the request to the MR for a decision on whether registration may proceed in parallel with scrutiny. It would then be for the MR to consider whether there was a good cause to justify this and whether there was likely to be a need to retain the body to allow a referral to a procurator fiscal, for example where the MR had a valid concern about the cause of death on the MCCD. Where the MR approves use of this expedited procedure, the registrar would allow the death to be registered, the funeral could take place according to the family’s requirements and scrutiny would proceed in parallel with family kept informed of the outcome as usual.⁸⁴

93. The Policy Memorandum envisages that, in most cases, the above process would take place within office hours and would not require any out-of-hours working. However, there are currently circumstances in which registrars open their offices in an emergency – for example, at the weekend – and there could, therefore, be circumstances in which out-of-hours working by a MR would be required. These issues would be considered further during the consideration of guidance and contracts for MRs.

94. The Policy Memorandum suggested that the expedited procedure would be used in circumstances such as—

• · funerals taking place outwith Scotland;
• · death of a child;
• · compliance with strict requirements of faith;
• · preservation of a body for donation to medical research.

Organ donation

95. Ishbel Gall of the Association of Anatomical Pathology Technology was asked whether the Bill would make it more complex for medical practitioners to consider tissue and organ donation. In response, she explained that, currently, a procurator fiscal was involved in many such cases because they typically resulted from some sort of traumatic event—

“If there is a chance that the death certificate may have to be reviewed, many people would feel uncomfortable going ahead and retrieving tissue. In much the same way as we need permission from the procurator fiscal, we would expect to have permission from the medical reviewer to proceed. Unfortunately the medical reviewer will not be a 24/7 operation, so we may have difficulty getting that tissue and therefore lose some of the valuable donations that we currently get.”⁸⁵

96. She went on to confirm more specifically that the presence of the medical reviewer “could make it more difficult to retrieve, or could delay, potential organ or tissue donations” and illustrated the point with a practical example—

“… if the death occurs, say, on a Friday, we might not be able to contact the medical reviewer or get the death registered until the Monday morning. At the moment, if we have an adequate cause of death and there is no procurator fiscal involvement, we go ahead with the retrieval.⁸⁶

Remote communities

97. Witnesses were asked about the logistics of matters such as moving bodies and storing them for long periods in the context of the proposals. In particular, it was asked whether any problems were anticipated, despite the provision allowing for an expedited procedure. Ishbel Gall of the Association of Anatomical Pathology Technology believed that there were—

“I have spoken to quite a lot of the funeral directors in my area and, although they are based in Aberdeen, they deal with a lot of deaths from Aberdeenshire, the Highlands and Islands and Orkney and Shetland. Most of the undertakers in those areas do not have refrigerated accommodation, which is part of the reason why burials in those areas go ahead quickly—in many cases, they take place within two or three days of death.

“The funeral directors to whom I spoke said that they would do nothing until the family had successfully registered the death, which is different from the way in which things happen at the moment. Often, in the case of deaths that are some distance from Aberdeen, the funeral director will collect the deceased and will also pick up any personal effects and the certificate of cause of death, which he will convey to the family to save them having to travel to pick up the certificate themselves. However, they have stated that, now, they would definitely not be going to collect the deceased and the death certificate, because they would then be responsible for the deceased until such time as the funeral arrangements were made, and they just do not have the facilities. In this kind of weather, it is not such a problem but, in summer, storage of the deceased is often a problem.”⁸⁷

98. Ishbel Gall went on to explain that, typically, the deceased was taken to funeral directors’ premises, put in a coffin and then taken to the family’s home before, on the night before the funeral, being moved to the church—

“That process takes two to three days. Under the proposals, therefore, the undertakers would be expecting that the deceased would stay with us for an extra two to three days, in most cases, which would cause major problems for us at certain times of the year, especially if the medical reviewer were working 9 to 5, Monday to Friday, and taking all the public holidays.”⁸⁸

99. Asked whether mortuaries would have the capacity to manage the extensions that she had cited in her examples, Ishbel Gall responded—

“Currently, the mortuary at Foresterhill hospital in Aberdeen is the busiest by ratio of space to the number of people passing through it. We see ourselves as being relatively efficient because we have quite a lot of burials and people spend as little time as possible in the hospital mortuary. We also have a duty of co-operation under the Public Health etc (Scotland) Act 2008 to work with the local authority on its body storage, which is also woefully inadequate. My concern is that the proposals will be a major issue not just in our area. We already have a problem in that there are no out-of-hours GPs and most of the services are run by an out-of-hours service, which is not particularly good at issuing certificates out of hours because the circumstances surrounding the death are not always known. It is common for the deceased to be moved to the public mortuary because no certificate is forthcoming until such time as a GP can be contacted. If the death occurs on a Friday night, that might happen on Monday morning and, if there is a public holiday, it might take even longer. We already have pressures on the available space and the proposed review would exacerbate the problem.”⁸⁹

Impact on faith-based practices

100. In its written submission, the Scottish Council of Jewish Communities stated that it supported the principle of effective scrutiny but suggested that accuracy “should not be an overriding consideration” if no “significant issues” depended upon it, “such as legal proceedings”. Asked whether this concern was about burials being delayed only to ensure a more accurate diagnosis for statistical purposes, Leah Granat of the Scottish Council of Jewish Communities stated in oral evidence that there needed to be a balance between, on one hand, the need for accuracy and information to plan appropriate medical provision and, on the other hand, the need for communities and people who are bereaved to be able to begin grieving, which she described as the “overriding factor”. She added—

“In the Jewish community, the seven-day shivah period—in other words, the formal grieving process—begins only after burial. There has been a lot of research in this area and, according to psychologists, when grieving is delayed it becomes a much longer and much more difficult process for the bereaved.”⁹⁰

101. She went on to state that the proposal to subject 1 per cent of deaths to more rigorous scrutiny involving a medical reviewer travelling various distances, looking at notes, interviewing the doctor and relatives for the sake of accuracy and so on would cause problems for religious communities—

“In the Jewish community, there is a very strong imperative for speedy burial. At the moment, the vast majority of Jewish burials in Scotland take place either on the same day or early the following day and if a review had to be carried out before burial could go ahead it would cause delays and a great deal of distress to a lot of people.”⁹¹

102. Dr Salah Beltagui of the Muslim Council of Scotland stated that the experience of burial was also important in Islam and was supposed to take place on the day of death or the next day, unless there was some necessary delay. He spoke further about the issues that could be caused by a delay—

“If the bereaved see no reason for it, it becomes a cause of anxiety for them. It is important to make the point that the burial provides a kind of closure for the bereaved; the recovery process starts after that. If the burial is delayed, it is like starting again after a week. That is the main reason for having the burial take place on the same day.”⁹²

103. Leah Granat commented on how wide the impact could be—

“The issue does not affect only the Jewish and Muslim communities or even only ethnic minority communities. Delay to burial is distressing generally. If we establish that there is no reason why registration and disposal—certainly by means of burial—cannot go ahead in parallel with review, that will be of benefit widely across the community.”⁹³

Relationship between review and registration

104. Gerard Boyle of the National Association of Funeral Directors expressed a concern that delays under the Bill could affect funerals more widely than only those relating to cases selected for review—

“From the funeral directors’ point of view, it is important that the certification is right before we carry on with any funeral arrangements. The bill proposes a 1 or 2 per cent review of cases with six medical reviewers. Our concern is that that would add undue delay to all funerals.”⁹⁴

105. Professor Stuart Fleming of the University of Dundee questioned whether delays to registration were at all necessary—

“If, as is probably the case, the primary purpose of the review is to benchmark the error rate rather than anything else, it is not clear … why that cannot be done as a post-registration event. It is not there to pick up flaws that would block registration, so why block registration?”⁹⁵.

106. This suggestion was supported by Leah Granat of the Scottish Government Council of Jewish Communities—

“… the committee has received evidence that it is unlikely that review would involve post-mortem examination of the body ... In that case, why should not registration and subsequent disposal of the body simply go ahead? The review could take place in parallel and continue afterwards. Where the disposal is by means of burial, it will still be available in the extremely rare circumstances in which the body needs to be examined.”⁹⁶

107. Dr Salah Beltagui of the Muslim Council of Scotland added—

“The delay that will be caused by the review, which is a paper exercise, could continue after the burial. Muslims do not practise cremation. As Leah Granat indicated, because the body still exists, there is a chance of getting it back, if necessary.”⁹⁷

108. Leah Granat went on to point out that, whilst the Bill provided for “parallel registration and review”, it did not refer to parallel disposal and review—

“In earlier evidence … [it was] said fairly explicitly that the Scottish Government view is that in this case “disposal” and “registration” mean exactly the same thing. We would certainly appreciate reassurance that that is the case. Perhaps—thinking about the drafting of the bill—if it means parallel disposal and review, the bill should refer to that rather than simply to registration, which might imply that registration can go ahead but the burial cannot until the review is concluded.”⁹⁸

109. She added that the Bill would give Scottish Ministers regulation-making powers to prescribe the types of documentation required before disposal could go ahead and questioned whether one of the required documents would be a confirmation that any review had ended—

“… that would put a stay on burial. It would be problematic if registration had gone ahead but disposal could not.”⁹⁹

110. Dr Salah Beltagui made the point that the first point in the summary of recommendations in the Review Group’s report was—

“The procedure for certifying deaths should be sensitive to the many different faiths and beliefs in Scotland and ensure as short a delay as possible between death and disposal.”¹⁰⁰

111. He called for the word “faith” and consideration of faith to be included in the Bill not just for Muslim and Jewish interests but for the future. Leah Granat followed up on this point—

“In the equality impact assessment, there is discussion about the bill being fair because there will be a uniform process for everybody. I just want to emphasise that fairness is not the same as uniformity.”¹⁰¹

Scottish Government

112. The Scottish Government wrote to the Committee about organ and tissue donations, stating that “early discussions with relevant stakeholders” had taken place with a view to ensuring that the new system would not adversely impact on organ and tissue donation—

“Specifically, we have spoken to the Tissue and Cells Medical Director at the Scottish National Blood Transfusion Service and concluded scrutiny would not affect organ and tissue donation because by the point at which scrutiny is flagged up (when the MCCD is presented to the registrar) tissues or organs would already have been removed. Equally, it would be of no concern for the purposes of scrutiny that some parts of the body had been removed.”¹⁰²

113. The letter also stated that consideration had been given to whether scrutiny would cause any delays that would affect whether bequests of bodies donated for medical research could be accepted—

“We have had early discussions with university anatomy departments and will be continuing these to consider the need to develop guidance. In the meantime, we have noted that these cases would be justifiable reasons for the expedited procedure (section 6 of the Bill) to prevent any delay and deterioration of the body.”¹⁰³

114. The availability of the expedited procedure to facilitate prompt burials – for example, in the observance of faith-based practices – was raised in oral evidence. The Minister stated—

“We need to reassure faith communities that there would not be a delay, because that is a significant issue for them. The main thing to understand is that the review can happen concurrently with the registration at the discretion of the medical reviewer. We want to ensure that that happens. We would also highlight to the General Register Office for Scotland the need to ensure that there are no delays in the system. The test sites will be important because they will give us an opportunity to monitor and, if required, to make adjustments at that stage, before further roll-out. We recognise the sensitivities and we would certainly not want to create difficulties for our faith communities.”¹⁰⁴

115. In response to a question about the definition of registration compared with that of disposal, it was confirmed that registration and disposal would not be the same and that disposal could not take place whilst a review was taking place. The procedure envisaged was explained as follows—

“In the expedited procedure, when somebody makes an application, the MR, apart from screening out the vexatious requests, will communicate with the registrar after cursory, superficial scrutiny to say that, in his view, there will be no need to retain the body and that registration and disposal can go ahead while he deals with the more detailed aspects of the certification process. Another point that was made was that the disposal documents might require an MCCD and that that could tie in while the funeral arrangements are being made in the expedited procedure, bearing it in mind that getting the notes and doing about a three-hour review should all tie into an expedited burial as well. In the expedited scenario, there is provision for the MR to say that registration and disposal can go ahead while they carry out a concurrent review.”¹⁰⁵

116. The Minister went on to clarify that disposal would only go ahead at the stage where the medical reviewer was satisfied that there were no outstanding issues—

“It would not happen automatically but would have to be at the say-so of the medical reviewer. In effect, it would be a judgment made by the medical reviewer. If the committee is uncomfortable with that, we can certainly explore it further. We felt that it was important for the discretion to be kept.”¹⁰⁶

117. She added that it was planned to address the issue in guidance but that the Scottish Government could “certainly consider” the matter further if the Committee felt that more than that was necessary.¹⁰⁷ She subsequently wrote to the Committee about this matter—

“Under the expedited procedure it will be possible to proceed to dispose of the body before the review is complete. When a case is selected for review, an application may be made directly to the medical reviewer who will confirm to the registrar as soon as possible whether the expedited procedure can be used.

“Where a case proceeds using the expedited procedure, registrars will be able to register the death right away and will not need to wait until the review has been completed. Registrars will be able to issue a Form 14 certificate there and then, confirming that the death has been registered. In such cases, this confirmation certificate is all that will be required to dispose of the body (this will be set out in regulations to be made under the new section 27A of the Registration of Births, Deaths and Marriages Act 1965, inserted by section 24 of the Bill). Accordingly, families will be able to proceed directly to funeral, whilst the review is ongoing.”¹⁰⁸

Conclusion

118. The Committee believes it is important to respect the position of different faith groups in relation to the Bill’s provisions, particularly the Jewish and Muslim faiths. The Committee considers that the system should not unduly delay disposal of the body and this should be clear in the Bill. In the light of the Scottish Government’s evidence on this point, the Committee is not confident the Bill is entirely clear on this point and believes the expedited process should reflect the faith needs of certain groups in society. The Committee welcomes, therefore, the clarity brought by the Minister’s explanation given in correspondence but believes the Bill should be amended in order that the position be similarly clear in the legislation itself.

119. Concerns were also raised with respect to particular difficulties for remote and island communities, relating to potential delays in both initial certification and review.

120. The Committee notes the important concerns raised in relation to organ donation, which appear to conflict with the Scottish Government’s position on the matter. The Committee looks to the Government’s response for further clarity on this issue.

121. The Committee also notes the need for expedited procedures where bodies were being donated for medical research and notes the Minister’s response that this would be dealt with in guidance.

Deaths abroad

Background

122. The Policy Memorandum explains that, currently, Scottish Ministers have a role under the Cremation (Scotland) Regulations 1935 in giving authority for cremation in Scotland where a death has occurred abroad and there is adequate documentation equivalent to the certificates required under those regulations. It is added that this does not apply to burials of those who have died abroad, where Scottish Ministers have no involvement. The administrative element is undertaken on behalf of Scottish Ministers by civil servants and senior medical officers who check the paperwork and the cause of death. The paperwork is then passed to the relevant medical referee to sign off with the authority to cremate (“Form F”) and the cremation can proceed.¹⁰⁹

123. According to the Policy Memorandum, where current checks by the Scottish Government fail to establish a satisfactory cause of death, current administrative practice is to refuse to authorise a cremation. Families then have either to arrange a private post mortem in an attempt to establish cause of death or to opt for burial.¹¹⁰

124. The Scottish Government handles an average of 130 requests a year for cremation authorisations resulting from repatriation of Scots who have died abroad. There are no statistics on the total number of annual repatriations (i.e. burials and cremations) but the Policy Memorandum assumes that the 40/60 split between burial and cremation in Scotland applies also to deaths of Scots abroad and estimates a total of around 250 deaths per year requiring repatriation for a funeral service. It also estimates that in around 10 per cent of these cases the cause of death will not have been established.¹¹¹

125. The Bill would impose a duty on persons having charge of a place of interment or cremation to ensure that the disposal is authorised by the correct certification (which, for deaths outside Scotland, is likely to be certification equivalent to the MCCD and the certificate of registration of death). In addition, where a person has died outside Scotland and it is intended that he or she be cremated in Scotland, the case will be referred to an MR, who will examine the paperwork to determine whether it is safe for the body to be cremated, such as checking for information about whether the deceased had a pacemaker or other implant that might be hazardous during the cremation process.¹¹²

126. With the exception of certain powers in relation to service personnel who die abroad, the Lord Advocate does not have jurisdiction to investigate deaths occurring outside Scotland, nor any power to instruct post mortems of such deaths. This is in contrast to the position in England and Wales where coroners hold such powers. The Policy Memorandum states there was a high level of agreement amongst those who responded to the Scottish Government consultation (just over 40 per cent) that, when the death of a person who is normally resident in Scotland occurs abroad, a government body in Scotland should be able to assist in the arranging of a post mortem to seek to establish the cause of death if this is unknown.¹¹³

127. It is proposed that a power be given to allow MRs to assist in the arranging of a post mortem (including providing financial assistance) to help support relatives whose family member is returned to Scotland for disposal and no cause of death is available. This power would be used in limited circumstances (to be set out in guidance) where it is deemed appropriate on compassionate grounds to address a need that a bereaved family may have to establish the cause of death. This might be, for example, to establish whether a hereditary medical condition may have existed. The Policy Memorandum points out that post mortems can help families through their bereavement but that they currently have no option but to carry out the procedure privately, the cost of which is prohibitive for some. The Policy Memorandum draws a comparison with the position in England and Wales, where post mortems of deaths abroad can be instructed by the coronial authorities.¹¹⁴

Responsibility for judging the validity of foreign certification

128. The Institute of Cemetery and Crematorium Management’s written submission argued that it was “inappropriate” for the responsibility for registration to fall on the person having charge of the cemetery or crematorium – a medically‑unqualified member of staff – bearing in mind the penalties to be introduced for disposing of a body without authorisation.¹¹⁵ Commenting on this point, Jim Nickerson of Federation of Burial and Cremation Authorities stated—

“The Government envisages that the medical reviewer will review the medical notes from Britain to determine whether the person had an implant or something else that is likely to explode or be hazardous when it cremates. If there is not, they will say to the crematorium, "It is safe to cremate." However, that system would rely on the crematorium staff ensuring that they have the equivalent of the death certificate and the registration of death from whatever country the person died in. We would have totally unqualified people making decisions on whether a document is a death certificate.”¹¹⁶

129. He went on to speak from his experience of running two crematoria, which, between them had handled 12 to 15 deaths from abroad in the past year—

“In only one case out of the last three was there a proper registration of death from the country where the death occurred—Spain. The death certificate stated in Spanish at the top that it was a death certificate, and the registration of death also stated what it was in Spanish at the top, so that was okay.

“One of the others was in Malta—it was somebody who died on a cruise ship. We got permission from the Government to go ahead, and the paperwork that came to us consisted of an unheaded note that looked as if it had come from the ship, saying what the person died from. It had been stamped at the bottom by a police sergeant in Malta. Presumably, that is a registration.

“The other one concerned somebody who died in Turkey. The local consul had done a translation of the death certificate, but there was nothing about registration.”¹¹⁷

130. He added that, whilst the current system “might be vague”, but “at least someone in the Scottish Government” had the authority to make a decision—

“In future, it would be somebody in a crematorium or cemetery. There are many cemeteries in Scotland, some of which do only one or two burials a year. The people at those places might come across such paperwork only once every 10 years and they would have to make a decision on the matter. A part-time elder, for example, would have to decide whether the paperwork was correct.”¹¹⁸

131. He went on to describe the scale of this potential problem—

“The paperwork is to be distributed throughout the whole of Scotland and it is to be kept, but there is to be no review of it whatever. As far as I know there is no such review now, but at least all the paperwork is held by the Scottish Government so that if somebody wishes to do a review of how many people have died on a particular cruise ship, or in Turkey, for instance, the paperwork is available for that review to be carried out. The proposal is for the paperwork to be dispersed throughout the whole of Scotland, and unqualified people—hundreds of them—are to be asked to make the necessary decisions.”¹¹⁹

Conclusion

132. The Committee considers that the responsibility for assessing the validity of documentation in cases of repatriation of the deceased for burial or cremation should be exercised centrally.

Financial implications of the Bill

Background

Estimated cost of the new system

133. The Financial Memorandum states that its costings are based on assumed likely workload and tasks initially agreed by an independent Review Group which met between 2005 and 2007. It assumes that 500 cases would be sampled and a further 500 referred for investigation. This would mean that around 1,000 deaths would be scrutinised annually, around 19-20 cases per week. It is estimated that reviewing a single case would take an MR around half a working day. The Financial Memorandum recognises that the number of cases referred would vary and states that there is some spare capacity within the model, which would also cover additional scrutiny initiated by MRs.

134. Costings shown in the Financial Memorandum allow for six MR posts. This is intended to provide flexibility and speedy response times and to ensure that each MR has a reasonably sized territory to cover. It is estimated that this would allow (a) around three days per week for conducting additional focussed scrutiny and other functions and (b) additional flexibility if the number of interested person reviews exceeded expectations. The Financial Memorandum points out that the number of MRs would not appear in legislation and, as the proposed test sites are expected to inform the exact number of MRs required, the costings shown are estimated.

135. The Financial Memorandum explains that associated costs would not necessarily rise linearly with sample size, owing to factors such as flexibility between review and training time incorporated into the model, non-linear changes in travel cost and transport charges and possible economies of scale arising from conducting more than the currently assumed number of reviews per week. Each added MR post (including an additional medical assistant) would increase start-up costs by about £2,500 and annual costs by £151,124, composed of salary and on-costs for the MR and the medical assistant, as well as IT and telephony.

136. The recurring and start-up costs (excluding those relating to the test sites and recruitment costs, which would depend on whether posts were advertised together or separately and could range from £2,000 to £20,000) are summarised in the Financial Memorandum as follows—

137. Under the new system, the format of MCCDs would be changed to incorporate a unique identifier code for each doctor certifying deaths and to include questions on implants and public health. The Financial Memorandum sets out a cost to the General Register Office for Scotland (GROS) arising from making this change to the forms and from changing the GROS computer system used by registrars to capture the registration data. There would also potentially be a cost in updating the database at the Information Services Division in order to receive and hold the additional information. It is estimated that reprinting the MCCD to take account of any changes would cost GROS about £6,000.

138. In addition, the GROS vital events database, a system used for statistical outputs and analysis and based on the information held on the registration database, would need to be amended to include the unique identifier. It is expected that the cost of this would be in the order of £1,000 bringing the total costs for IT changes and support to £7,000.

139. There would be an additional expense to provide for materials to alert doctors and other stakeholders such as funeral directors and the public about the changes. It is expected that these materials would be placed within registrar offices. The Financial Memorandum states that, in a recent regulatory impact assessment on sunbed regulations, it was estimated that the issuing and distribution of leaflets and posters cost no more than £10,000. After initial distribution, information materials would be available on designated websites to download.

140. Training needs would vary in different phases of the programme. In the first phase after the inception of this model, the MR posts are likely to be filled by experienced specialists, such as those currently filling the position of medical referees. During this phase, only additional training through an e-Learning module at an estimated cost of £57,500 would be required to top-up the MRs’ skills set. The Financial Memorandum outlines an expectation that, after approximately seven years, a second phase would commence. This would coincide with new teaching cycles (with updated modules on the medical reviewer model) for training GPs and other specialists, who would form a pool of second or third generation of MRs after a few years’ experience of practice. After about 10 years, a third phase is envisaged in which the first group of MRs will begin to be replaced by new doctors, in turn requiring top-up e-Learning training. The recurring cost of training with this module is assumed to be low as there would be no accommodation or teaching costs.

Recouping the costs of the new system

141. The Financial Memorandum states that the initial set-up costs of the new system, estimated at around £94,500, would be paid by the Scottish Government and subject to a Spending Review bid. However, it is proposed that the annual running costs of operating the new arrangements would be self-funding through the charge of a fee to the public.

142. Currently, a fee is charged to bereaved families (or whoever arranges a funeral) by the doctors signing off certificates authorising cremation of the body. This fee, which goes to two doctors, amounts to £147 per cremation. It is paid as a private financial transaction between the family and the authorising doctors and is often handled by funeral directors acting as intermediaries. In addition, when a body is cremated, the medical referee at the crematorium performs the final check on the papers. The cremation authority pays the medical referee a fee which is recouped through the fee charged by the authority to the nearest relative as part of the funeral arrangements. The Financial Memorandum points out that the existing fee is inequitable insofar as it applies to cremations only and that the current arrangements are not regarded as having resulted in necessary improvements to scrutiny.

143. In future, the Scottish Government proposes that a universal fee should be introduced to fund the new death certification system, principally the role of MRs to carry out the review functions (and related national statisticians’ function). The new fee would apply to both cremations and burials; would fund improvements in scrutiny and clinical governance related to death certification, and is estimated at around £22, with an additional fee of £8 to £10 to recover the costs of collection. The Financial Memorandum concludes that for around 60 per cent of families, there would be a saving. The fee would be payable by the personal representatives of the deceased and would be treated as part of the general testamentary and administration expenses of the estate.

Costs relating to deaths abroad

144. The Financial Memorandum estimates an annual maximum of 25 deaths abroad with no clear cause of death, which could, therefore, be eligible under the Bill for MR assistance arranging a post mortem (including meeting the cost of the examination). The costs would be up to £12,500 annually and would be borne by the Scottish Government and not recouped through the fee.

Consideration by the Finance Committee

145. As is the case with all bills, the financial implications of the Bill were considered by the Finance Committee. In relation to the Bill, the Finance Committee sought written evidence from organisations financially affected using a standard questionnaire. The Finance Committee’s letter to the Committee, enclosing the one response received, can be found in Annexe D.

Collection of the new fee

146. Asked about the proposal that registrars collect the new fee for registering a death, Elizabeth Allan of the Association of Registrars of Scotland and Chief Registrar, City of Edinburgh Council, stated that there was currently no fee for registering a death, unless a choice is made to buy a certificate—

“If the procedure of registrars taking a fee is introduced, it might be perceived as a fee for registering a death, and that might deter people from coming in. That could cause problems for people who are not relative and who might not benefit from the estate of the person.”¹²⁰

147. She went on to explain the basis for her statement—

“… I make it on the basis of registering deaths for 33 years. I have seen people come in and I have seen how upset they have been. People do not understand what they are being told—it must be broken into bite-sized chunks for them. People have also complained about having to pay £8 or £9 for a death certificate. That has been when they have been physically given something. If we have to say to them that they will be liable to pay a fee, they will say, "What’s that for?" It would have to be explained to them when their relative has just died that they will be liable to pay it so that they can get a better service from the national health service. That will not be easy to sell to the public.”¹²¹

148. She added—

“We are more for keeping the status quo, whereby the funeral directors collect it.”¹²²

149. Gerard Boyle of the National Association of Funeral Directors disagreed—

“If there is to be a fee for issuing a death certificate, it will be a statutory fee. Where funeral directors currently collect fees for doctors for cremation certificates, most funeral directors will have entered into a contract or agreement with the doctors to supply those certificates. We would pay the fees for that. We do not enter into contracts for doctors at hospitals to sign death certificates. There were recommendations in the "Burial and Cremation Review Group: Report and Recommendations" that suggested that funeral directors were best placed to collect the money because we seem to collect money for everything else, but we do not think that we should be responsible for collecting a statutory fee. It was nice that the report said that we could charge an administration fee, but again we disagree with that. Why should we charge a fee for collecting a fee that is not ours? Registrars are the constant in everything. Not every family has to use a funeral director.

“On accountability and the management of the funds that are collected, it seems to me that every death must be registered. If a person does not register a death—I understand why they might have difficulties doing that—that is an offence. The law of the land is that a death must be registered within eight days. If it is not, the person must have a pretty good reason for not doing so.

“We have said that all deaths have to be registered anyway. The funeral directors thought that if the fee is not to be collected at the time of death from the hospital on the production of the certificate for the family, it should not be our responsibility to collect the fee on the Government’s behalf.”¹²³

Scottish Government

150. In oral evidence, the Minister confirmed that revised financial information would be provided in light of the “significant enhancements” that she had announced. This information was provided in correspondence on 13January2011.

151. She went on to state that she did not believe it to be fair¹²⁴ that families opting for cremation paid at least £147 to doctors for that service—

“There is a real inequity in that—it has been described as the ash-cash issue. The proposed new charge will deal with that, as everyone will pay £30. For the vast majority who currently pay £147, it will be a vast improvement. You also have to consider the cost of some of the alternative systems. For example, in the English medical examiner model, the cost will be £100 plus £70 to £80 for the inspection of the body, so bereaved families in England face a bill of £170 to £180. You have to put the matter in context.”¹²⁵

152. She went on to comment on the question of who should collect the fee—

“The truth of the matter is that representations have been made on behalf of registrars that they do not want to collect the fee, for a number of reasons, and, similarly, the funeral directors have said that they do not want to collect it. Nobody is exactly falling over themselves to volunteer, so a choice has to be made and we need to look at the arguments for and against. I will not go to the wall on this one; the judgment is for the committee. There are a number of reasons why our preference is for the registrar. All deaths have to be registered. Registrars are used to dealing with the bereaved. There are registrars in all 32 local authorities, so there is a system in place. It is not necessary to use a funeral director to arrange a funeral, so there will always be some cases that fall outwith the funeral director. It also seems odd that a statutory fee for a public service should be collected by a commercial organisation. Funeral directors do not want to collect an admin charge for a service that they are not providing—I am sure that they have expressed that view strongly. There is also the danger of significant additional bureaucracy. Hundreds of funeral homes across Scotland would have to be registered and brought into some kind of monitoring and audit scheme. We would probably have to legislate to force them to collect the fee.

“Having heard all the disadvantages, I was put into the position of having to choose between two reluctant fee collectors. In the end, I came down on the side of the registrars. The list of disadvantages for a system where funeral directors are the collectors is longer than the list of disadvantages for registrars doing that.”¹²⁶

153. The Minister was asked what effect the doubling of the random sample size would have on the number of medical reviewers to be appointed. She told the Committee—

“We estimate that the number of medical reviewers will rise to 10. That is not set in stone, so we can make adjustments if required, but we estimate that there will be 10 full-time equivalents-there might be some part-time people. However, they will have administrative assistance to help with some of the paperwork, so it is not as if they will have to do all the paperwork themselves. We believe that that will be adequate but, again, we will be able to find out for sure through the test-site model.”¹²⁷

Conclusion

154. The Committee welcomes the Minister’s comments relating to the setting of the fee and the comparison with the expected fee in England.

155. The Committee also welcomes the abolishing of the higher fee relating to cremation only, until now paid in 62 per cent of cases, in favour of a lower and universal fee. The Committee supports the original intention for the new system to be self-funding. The Committee notes the rationale for giving the responsibility for collecting the fee to registrars but acknowledges the concerns raised by representatives of registrars.

Subordinate Legislation

Background

156. Under Rule 9.6.2 of Standing Orders, where a bill contains provisions conferring powers to make subordinate legislation, the Subordinate Legislation Committee (“SLC”) must consider and report to the lead committee on those provisions. The SLC may also consider and report to the lead committee on any provision in such a bill conferring other delegated powers.

Delegated powers provisions in the Bill

157. The SLC’s report is attached at annexe F. In it, the SLC reported that it considered each of the delegated powers provisions in the Bill and that it determined that it did not need to draw the attention of the Parliament to the delegated powers in sections 2 (Power of Scottish Ministers to give directions to the Registrar General), 4(5)(e), 4(8), 8(5), 17(4), 18(4), 22(3), 24, 25(1), 25(2), 27 and 31(3) nor to the power to be inserted in paragraph 7A of Schedule 5A to the National Health Service (Scotland) Act 1978 by paragraph 2 of schedule 1 to the Bill.

Conclusion

158. The Committee notes the Subordinate Legislation Committee’s report.

ConclusionS

Summary of conclusions

Detection and investigation of unnatural death

159. The Committee has concerns about the Bill as introduced. Whilst the Committee accepts that no system can eliminate the possibility of criminal activity by, for example, a serial killer, the initial proposals were for a level of scrutiny and review of MCCDs that was much less rigorous than the existing arrangements. In particular, the Committee notes that a sample size of 10 per cent was said to be necessary to have a “realistic chance”¹²⁸ of identifying errors.

160. The Committee welcomes the increasing of the random sample size and the planned addition of an extra tier of review, as announced by the Minister. However, the Committee notes that the sample size would be increased only to 4 per cent and remains concerned as to why this figure has been selected.

161. The Committee notes the intention to report to the Parliament on the outcome of the pilot in the test sites. In the meantime, the Committee will seek views on the Minister's new proposals from witnesses who were critical of the Bill.

162. The Committee remains concerned, however, about the removal of the requirement for approval from a second and a third doctor from cremation cases. The Committee notes the argument that the procedures for burials and cremations should be aligned but believes that, owing to the finality of cremation, any alignment should have taken as its benchmark the rigour of the current cremation procedures.

163. The Committee notes the further explanation regarding proposals relating to stillbirths, given by the Minister in correspondence¹²⁹ following her oral evidence.

Accurate recording of the cause of death

164. The Committee considers that the new proposals increasing the level of scrutiny, announced by the Minister during oral evidence to the Committee, take a step towards addressing the main concerns about quality and confidence in the system.

165. The Committee remains concerned that no level of experience is specified as a pre-requisite for eligibility to sign MCCDs in a professional culture where supervision can be very variable – with, for example, junior doctors sometimes being left responsible for death certification at weekends without consultants being present. The Committee believes that, if the aim is genuinely to drive up quality, there must either be an experience qualification or junior doctors should not be allowed to sign a death certificate unless they have been signed off by the deanery¹³⁰ as having undertaken a module.

166. The Committee also believes that accuracy in the completion of MCCDs could be improved with appropriate use of technology. This is discussed later in the report under the heading ‘Use of technology’.

Confirming the fact of death

167. The Committee is concerned that it might still be possible for a medical practitioner to sign an MCCD without examining the deceased. The Committee draws this point to the Minister’s attention and requests that she respond to it in the Scottish Government’s formal response to this report.

Medical reviewers’ workload

168. The Committee notes the explanation that MRs' training and education role would be primarily supervisory whereas the responsibility for providing training and education would fall on doctors' educational supervisors. The Committee has reservations that, with a remit to advise, to train and, now, to carry out 25 per cent level 1 scrutiny, which is likely to lead to an increase also in level 2 review, the proposed workforce may still be inadequate.

169. The Committee also draws the Parliament's attention to paragraph3 of Schedule1, which states that any function conferred on MRs may not be delegated by Healthcare Improvement Scotland, and requests that the Scottish Government clarify whether it will be possible, in the context of this provision, for the educational and training role of MRs to be exercised by third parties as was suggested in oral evidence to the Committee.

Use of technology

170. The Committee notes the Minister’s comments that the Bill would not confine practice to a paper-based system. The Committee is surprised, however, that an electronic system was not specified from the outset, given the evident advantages: an electronic system could provide prompts and help to those completing MCCDs, as well as ensuring that non-compliant MCCDs were impossible to submit. The need for repeated data entry, which is another source of possible error, would also be removed from the process. Using an electronic system would also establish a chain of evidence and would do much to clarify matters. The Committee notes that it would now be difficult to devise and implement such a system in time for the beginning of the test sites but, if this proves impossible to achieve, strongly urges the Scottish Government to do so as soon as possible and, in any case, before the eventual roll-out of the new system nationwide.

Timescales

171. The Committee believes it is important to respect the position of different faith groups in relation to the Bill’s provisions, particularly the Jewish and Muslim faiths. The Committee considers that the system should not unduly delay disposal of the body and this should be clear in the Bill. In the light of the Scottish Government’s evidence on this point, the Committee is not confident the Bill is entirely clear on this point and believes the expedited process should reflect the faith needs of certain groups in society. The Committee welcomes, therefore, the clarity brought by the Minister’s explanation given in correspondence but believes the Bill should be amended in order that the position be similarly clear in the legislation itself.

172. Concerns were also raised with respect to particular difficulties for remote and island communities, relating to potential delays in both initial certification and review.

173. The Committee notes the important concerns raised in relation to organ donation, which appear to conflict with the Scottish Government’s position on the matter. The Committee looks to the Government’s response for further clarity on this issue.

174. The Committee also notes the need for expedited procedures where bodies were being donated for medical research and notes the Minister’s response that this would be dealt with in guidance.

Deaths abroad

175. The Committee considers that the responsibility for assessing the validity of documentation in cases of repatriation of the deceased for burial or cremation should be exercised centrally.

Collection of the new fee

176. The Committee welcomes the Minister’s comments relating to the setting of the fee and the comparison with the expected fee in England.

177. The Committee also welcomes the abolishing of the higher fee relating to cremation only, until now paid in 62 per cent of cases, in favour of a lower and universal fee. The Committee supports the original intention for the new system to be self-funding. The Committee notes the rationale for giving the responsibility for collecting the fee to registrars but acknowledges the concerns raised by representatives of registrars.

Delegated powers

178. The Committee notes the Subordinate Legislation Committee’s report.

Overall conclusion and recommendation

179. The Committee invites the Scottish Government to consider the conclusions of this report and looks forward to the Government’s response

180. The Committee draws its conclusions to the attention of the Parliament and recommends that the general principles of the Certification of Death (Scotland) Bill be agreed.

Annexe A: extracts from the minutes

34th Meeting, 2010 (Session 3)

Wednesday 24 November 2010

Certification of Death (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Mike Palmer, Deputy Director for Public Health, Frauke Sinclair, Bill Team Leader, Certification of Death (Scotland) Bill, Jacqueline Campbell, Head of Health Protection Team, and Edythe Murie, Scottish Government Legal Directorate, Scottish Government.

35th Meeting, 2010 (Session 3)

Wednesday 12 December 2010

Certification of Death (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Professor Stewart Fleming, Professor of Cellular and Molecular Pathology, University of Dundee;

Dr Colin Fischbacher, Consultant in Public Health, Information Services Division, NHS National Services Scotland;

Ishbel Gall, Mortuary Manager and Vice-Chair, Association of Anatomical Pathology Technology;

Dr Jeremy Thomas, Consultant Pathologist and Clinical Lead, Scottish Pathology Network;

Jim Nickerson, Chairman of the Scottish Sub Committee, Federation of Burial and Cremation Authorities;

Gerard Boyle, Immediate Past President, National Association of Funeral Directors;

Elizabeth Allan, President of the Association of Registrars of Scotland and Chief Registrar, City of Edinburgh Council.

38th Meeting, 2010 (Session 3)

Wednesday 15 December 2010

Certification of Death (Scotland) Bill: The Committee took evidence on the Bill at Stage 1 from—

Leah Granat, Deputy Director, Scottish Council of Jewish Communities;

Dr Salah Beltagui, Convenor, Muslim Council of Scotland;

Shona Robison MSP, Minister for Public Health and Sport, Mike Palmer, Deputy Director for Public Health, Dr Mini Mishra, Senior Medical Officer, and Frauke Sinclair, Bill Team Leader, Certification of Death (Scotland) Bill, Scottish Government.

1st Meeting, 2011 (Session 3)

Wednesday 19 January 2011

Certification of Death (Scotland) Bill (in private): The Committee considered a draft Stage 1 report. Subject to a number of changes, the report was agreed to.

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