Committee (3rd Day)
Clause 16 : Post-mortem examinations
Amendment 41
Moved by
41: Clause 16, page 9, line 42, after “may” insert “after consultation with the appointed medical examiner”
This group of amendments concerns the way that post-mortems are conducted, who conducts them and who authorises what can be done during a post-mortem, and attempts to rectify an anomaly relating to retained tissues that has arisen from the Human Tissue Act. First, I thank the Minister for pointing out an error in my drafting of Amendment 42. The amendment refers to page 10, line 3. After the words, “at the end insert” only the second proposed new paragraph should be inserted because the phrase,
“is an appropriately trained pathologist”,
is already in the Bill and should not appear twice. I apologise to the Committee for not having had that corrected before the Marshalled List went into print.
I shall address how a coroner may decide who will undertake a post-mortem. Clause 16(2) states:
“A request under subsection (1) may specify the kind of examination to be made”.
I have a concern, which I have discussed with pathologists from the Royal College of Pathologists, because the coroner is not medically trained. Hence, the requirement to insert the words “after consultation”. The reason is that there has been a change in the way that post-mortems are conducted. The post-mortem in which the body is, essentially, cut up, the organs looked at microscopically and then tissues taken and examined under the microscope is now being supplemented by other investigations using scanning such as CT and MRI. However, I emphasise that these are supplementary examinations, not substitute examinations. The information that you get from them is different and complementary to that from a conventional post-mortem. There have been problems, too, for families, who have the expectation that a scan will somehow be quicker and less invasive than an ordinary, what you might term, old-fashioned post-mortem. These scanning examinations are conducted by a radiologist.
However, there are complexities over the governance of the system because if these examinations are part of an investigation of death, the clinical governance for them should fall under a pathologist, although, of course, because of radioactivity, the examination and the control of the machinery falls to a radiologist, as does the interpretation of the images. That is why it is important that there should be a discussion over the investigation of each case. In an ideal world, the pathologist would supervise everything, but we do not have an infinite number of staff. What matters is that it is not left to a legally qualified coroner and a radiologist on their own but that it involves a pathologist who, ultimately, has the experience and expertise in the governance of the investigation of deaths. In forensic work you can get important additional information from, particularly, CT scanning.
However, there are two aspects to a coroner’s work: first, to ascertain whether the death was unnatural and whether there was foul play of any kind and a case to be pursued; and, secondly, to establish the cause of death where it is a natural death. There needs to be a balanced assessment, on a case-by-case basis, of how each case is best investigated, not only for the most cost-effective way but the most appropriate way to obtain the information needed. The problem is that imaging and microscopic investigation can delay the process.
On Amendment 43, there is currently a grey area in training and post-mortems are essential for the training of the next generation of pathologists. However, it is not currently clear how a coroner can authorise a coroner’s post-mortem to be used for training purposes—certainly not when it goes beyond the training of pathologists and into the training of nurses, mortuary technicians and other people who may be involved, or when it involves the presence of medical students to observe what is happening. Very few post-mortems now occur apart from coroners’ post-mortems and therefore the emphasis on training in these post-mortems has become greater, not less, since the passage of the Human Tissue Act.
Of course, using a coroner’s post-mortem for training goes beyond its current statutory remit. Ideally, you should have full consent from the relatives for everyone who is present at the post-mortem, but the consent process takes time and personnel. It can be very burdensome and there is no real benefit when people are in training and coming along to observe the post-mortem. The process of obtaining consent can be a burden on the relatives and certainly the coroners’ officers are not happy to do this.
There is a need for consistency across the country. At the moment, under different coroners’ jurisdictions, different practices occur and training is happening much more in some than in others. It would seem very sensible that the Chief Coroner should be able to authorise what happens but my amendment makes an assumption that the post-mortem examination is authorised for training purposes unless it is specifically prohibited by the coroner. It would make it much easier and practical to have an assumption that, just as in any teaching hospital, teaching goes on and there are students around, similarly at a post-mortem there would be the ability to train unless of course there was a problem over national security, public health or if somehow the conduct of an inquiry would be jeopardised. It would then seem that the Chief Coroner could produce guidance as to how those who would be in attendance at a post-mortem should be vetted. They might even be required to sign a form to verify that they had no connection whatever with the deceased or with the case involved, but there may be times of course when a clinician who has been involved in looking after a patient should, quite rightly, be present at the post-mortem, because the post-mortem can be the most revealing and important time for them to learn.
Amendment 45 has been tabled because of a number of concerns about the present regulation of the retention of tissue samples from those who have died. The existing legislative framework for the retention of tissue samples fails to serve the interests of families with inherited conditions, especially those who suffer the trauma of a sudden adult death. That is because two legislative systems apply to the retention of post-mortem samples—the Human Tissue Act and the Coroners Act—and they do not currently operate in a joined-up way. This Bill gives us the opportunity to rectify that.
There have been tragic consequences for families where tissue from one family member who died unexpectedly could have been used to identify other family members who are themselves at risk of sudden death. I should declare here that I am grateful to the Foundation for Genomics and Population Health for its help in providing background to the amendment and indeed to the Royal College of Pathologists as well. Noble Lords will be aware that I raised this concern during the passage of the Human Tissue Act and nothing that has happened since that time has allayed the concerns I expressed then. I am most grateful to the Minister for meeting me recently to discuss this matter.
The Human Tissue Act of course was prompted by concerns that health services were failing to respect the interests of families when they retained tissue from dead family members. The Act attempts to right the wrongs that had occurred towards families when tissues had been retained, and regulates retention storage and use of tissue held for DNA analysis for a number of prescribed purposes by introducing a statutory obligation for those wishing to use or store tissue to seek consent from qualifying family members. These purposes include determining the cause of death and obtaining scientific or medical information about a living or deceased person which may be relevant to other persons in the future.
The difficulty is that once the coroner is satisfied with the cause of death that is attributed to the deceased, the coroner’s authority lapses, and the continued retention of any samples after that time will be lawful only if consent has been obtained from qualifying family members as prescribed by the Human Tissue Act. The codes of practice published with that by the Human Tissue Authority prescribe that, in the absence of the necessary consents, tissue should be destroyed up to 10 weeks after any deadline imposed by the coroner has expired. That is the nub of the problem. The coroners and their officers have a statutory responsibility for obtaining consent for continued retention of tissue for which they may be and often are inadequately trained and resourced. Although it is best practice for local protocols to be set up between genetics departments and coroners’ offices, these are rare in practice.
So what happens? The coroner undertakes a post-mortem of an unknown cause of death. On taking the heart out and examining other tissues, he realises that this is a sudden cardiac death. Having taken the heart out, he then has to put it back again, because he cannot retain it. He then asks the relatives about permission to retain the heart and other tissues and then he has to take it out again. It is manifestly important and in the interests of the family that if a young person has had a sudden cardiac death, it is understood as there may be others in the family who are genetically related and are at risk, and whose death can be prevented by appropriate interventions.
Another situation arose recently where, again, the retention of tissues was making progress in the common good difficult. The Department of Health had been supportive of a project trying to understand the incidence of new variant CJD, and it was thought that very small samples from the spleen taken at the coroner’s post-mortems would allow a broad epidemiological study to occur. The problem was that, even though tiny tissue samples were to be taken, consent had to be obtained, and consent was not viewed as a coroner’s task. The coroners’ officers did not want to be part of that process and there was no funding for a whole additional layer to go in to obtain consent, so the project has fallen through. It would have been for the benefit of society, not for the benefit of the individual families, which is why the amendment is worded as it is.
I had also felt it important that the whole supervision of autopsies was done under a trained pathologist and not put out to technicians or others. The reason is that diagnosing the cause of death is incredibly complicated. It is easier to do so when there has been a crime such as a knife crime or a shooting, but unexpected deaths and deaths in hospital can be very complex to diagnose. Someone who has training in pathology but also has full diagnostic skills training is needed in order to integrate all the information that comes together.
Recently there was an NCEPOD report about the variability in the standard of post-mortems. That has arisen because although the Royal College of Pathologists guidance is clear—that guidance sets a high standard for post-mortems—it has not been clear to those undertaking the post-mortem what the role of the coroner’s post-mortem is. Is it simply to establish non-natural causes and rule out foul play, or is it to establish as accurately as possible what the cause of death was, getting good data that are important for the health of the nation and that are certainly important if you are looking at governance systems in somewhere like a hospital, which is a large, complex organisation?
I hope that I have been able to explain some of the background to these amendments and why this gives us an opportunity to rectify an anomaly that has arisen in relation to the Human Tissue Act.
In Scotland the law is different. Blocks and slides of tissue—small blocks, about the size of small dice, and wafer-thin slices of tissue on microscope slides—are deemed to be part of the clinical record. They can therefore be retained without having to get explicit consent from the family for them to be retained if it is deemed to be either in the interests of the family or for the public good. I also think that while, in a theoretical world, it is ideal to obtain consent before you start the post-mortem, these families are often so pole-axed by the death and so overwhelmed by the shock of what has happened that they really cannot cope with being burdened with a lot of complexities, when you do not even know what tissue it might be wise to retain.
I therefore hope that the Bill can be amended to allow a degree of discretion by those undertaking the post-mortem at the time to retain tissues if it is in the interests of the family or of society. I beg to move.
A number of crucial principles arise here. In the investigation of an unforeseen or totally unexpected death, the performance of a post-mortem examination is crucial. Admittedly, the use of imaging techniques by radiologists and the use of magnetic resonance imaging and X-rays play an important part, but they can never themselves substitute for a full and complete post-mortem examination. I suppose that I must declare an interest: although I am not a pathologist, I did some training in neuropathology in the Massachusetts General Hospital in Boston back in the 1950s.
The Human Tissue Act, which was very fully debated in this House, arose as a result of what was called the Alder Hey scandal. A large number of human organs had been retained in the Alder Hey hospital and the great majority, if not all, of the families of the patients concerned said that they had not given consent for those organs to be retained.
What many people in the profession, and particularly in the public at large, did not recognise is that, when a post-mortem is performed, organs are examined. You can identify without difficulty someone who has been killed by a bullet, someone who has been killed by a knife wound and sometimes someone who has been killed by direct trauma to the head. There are situations, however, which are extremely complex. We all know about the so-called paper-thin skull syndrome, where an individual suffering a minor head injury as a result of trauma subsequently dies and it turns out that the X-rays demonstrate that the individual had a skull that was so thin that even a minor injury could have produced serious underlying brain damage. There have been cases in which trauma to the chest has led to a person being accused of murder, but when a post-mortem was carried out it was discovered that the individual had had a heart attack due to natural causes or had had an inflammatory condition of the heart—a cardiac inflammation—which might well have been the primary cause of death.
What people did not recognise after the Alder Hey situation was that, when the organs are taken out and examined by the pathologist during a post-mortem, however skilled the forensic pathologist, it is hardly ever possible—except in the most extreme circumstances—for the diagnosis of the cause of death to be made simply by inspection of the organs. The organs have to be retained. They have to be fixed in formalin over a period of two or three weeks. They then have to be subject to careful anatomical dissection, followed by examination of tissue sections under the microscope, before a diagnosis can ever be reached. This is particularly true in the field of neuropathology.
It is just not the case that you can make a diagnosis simply by inspecting organs removed from a body at post-mortem. The organs must be retained. After coroners’ post-mortems, as indicated by the argument put forward so lucidly by my noble friend Baroness Finlay, there is a strong case to be made for retention.
Before the Human Tissue Act, it is true that many pathologists—not necessarily in the coroner situation—would carry out a post-mortem examination and would not specifically, at that time, ask for permission for the organs to be retained. Perhaps they assumed knowledge on the part of relatives that those relatives did not possess; the relatives did not always recognise that the organs had to be retained, fixed and examined before the diagnosis could be made. Since the Human Tissue Act came into force, the organs retained in post-mortems not carried out for forensic purposes can be retained only with specific permission of the relatives.
In the case of coroners’ post-mortems, however, I believe that my noble friend’s case is very powerful, and I hope very much that the Committee will accept Amendment 45. I also confirm her view that such coroners’ post-mortems must be carried out by a pathologist with appropriate forensic training. That is crucial. Otherwise there are likely to be miscarriages of justice. I strongly support her amendment.
I strongly support the sentiments that underlie the interventions of my noble friends Lady Finlay of Llandaff and Lord Walton of Detchant. However, I should like to enter a cautionary note, partly from the very experiences that my noble friend has just referred to at Alder Hey Children’s Hospital. For 18 years I served as a Member of Parliament for a Liverpool division and I was involved with the parents of some of the children whose organs and tissues had been retained. The noble Lord, Lord Walton, was right to put his finger on a central question there—that the parents themselves did not know about the retention of those organs. Their permission had never been sought and it came as a terrible shock to them to learn subsequently that the remains of their children had been retained. To go through the funeral services and cremations that subsequently occurred often years after the event and the reopening of the grief involved was a terrible ordeal for those parents. So we must tread sensitively.
However, I think that the case advanced by my noble friends is overwhelmingly correct. If we can derive knowledge by the retention of organs for a reasonable period of time that we could not derive from an autopsy immediately after death—for instance, in the kinds of circumstances that my noble friend Lady Finlay described—then surely any reasonable person would accept the force of that argument.
Often parents are traumatised when their children have died, and that includes the parents of the children who died in Alder Hey hospital itself. I declare a non-financial interest in that two of my own children were treated in that hospital, which is a very fine hospital. Perhaps the worst thing to come out of all that experience was the damage done to its reputation because of decisions that had been taken over the heads of the parents in the belief that the scientists and the medics involved in a sense knew best.
The arguments that have been advanced are rational, reasonable and intelligent. I think that if they are put properly to parents in these circumstances, permission will be given. However, the important thing is not to presume or to press ahead on the presumptive basis that we know better than others. With that brief cautionary note, I conclude my intervention.
I speak in support of the noble Baroness, Lady Finlay of Llandaff, in respect not only of Amendment 41 but of Amendment 43 and of Amendment 44, which is in my name and the name of my noble friend Lord Thomas of Gresford and is in this group. I also declare an interest, as I have before, in that my wife is a consultant pathologist in the National Health Service, though not one who does work for the coroners.
Over the last number of years there have been a number of substantial changes in pathology services and the way in which they are conducted which might not come immediately to your Lordships’ minds. The human organs inquiry was referred to earlier. I can remember before that time when I was a young doctor and the Government’s ambition was to ensure that post-mortems were conducted in 10 per cent of all deaths in hospital as a form of audit. Essentially the post-mortem is the final determinant of what has happened, at least in terms of the physical death. Since the human organs inquiry, not only has a figure like that not been remotely achieved but things have gone completely in the other direction, so that now it is extremely difficult to persuade people to have post-mortems conducted. Of course persuasion is not required in coroners’ cases because the decision is a matter for the coroner. Generally, however, the percentage of deaths in hospitals upon which post-mortems are conducted has absolutely plummeted to the point where it is now difficult for trainee pathologists to do enough post-mortems to get proper experience before they qualify as pathologists.
That is why Amendment 43 is relevant. It will ensure that where post-mortems are conducted, and required to be conducted by the coroner, they can be used for training purposes. We are getting to a point where the Royal College of Pathologists has to look at whether it should require so much experience of post-mortems in pathologists’ training. If it were to change, we would not be able to train people as pathologists at all in some cases.
Noble Lords may also not be aware that not all members of the Royal College of Pathologists are medically trained. Nowadays it is possible to be a member of the college with scientific training. One reason for this is that, as we become more specialised in various kinds of investigation, scientific training may enable someone to be acutely aware of particular approaches to an investigation. What they will not be aware of—in contrast to a doctor, who is trained in all aspects of the body and mind—is that various disorders may make their appearance in one part of the body, with symptoms of various kinds, when the origin of the problem is somewhere else. I suspect that a number of noble Lords will sometimes get pains in their legs, only to be told by their general practitioner that the problem is in their back, and what they have is referred pain. Sometimes there are also psychological reasons for sore backs, but that is another matter that I will not go into.
It is frequently the case, in all aspects of medicine, not least pathology, that a proper, full assessment is a time-consuming business, and a medical or other professional colleague may say something like, “Would you cast your eye over this? Do not spend too much time on it, I just want your best guess”. That is not good enough, which is why professional bodies have gone to considerable trouble to set out the fullness required for a proper assessment, whether a post-mortem or another kind of assessment. There is great pressure on people both to do a full assessment because it is the right thing to do, and to do things quickly and briefly because that is where financial and time-resource pressure comes.
I can imagine a situation where coroners would think that they have seen a particular investigation done on a number of occasions, would decide that it is the suitable one to do and would proceed to do it. There may be a concentration on radiological investigations. However, that is not what the Bill says; it refers to a partial post-mortem or a “particular kind of examination”. That could be anything—it could be a fine-needle aspiration or any other kind of investigation. The question is, how does one judge whether a partial post-mortem or another kind of investigation will give an accurate understanding or a partial and misleading understanding of what has gone on?
Some noble Lords have commented that if someone, for example, has a bullet through their head, it is pretty clear how they died. Well, it may or may not be. They may have died before they got the bullet through their head—looking at the brain is not necessarily going to tell you what has happened. There are many cases of people being fished out of water, but drowning did not kill them—they were dead before they hit the water. We have to be very careful in these cases not to take a simplistic view. We ask pathologists to look at these things properly so that we get the proper answer, not just a glance at the problem.
We must be careful. That is why I tabled an amendment very similar to that of the noble Baroness, Lady Finlay of Llandaff, saying that if a coroner feels that it might be appropriate to engage in a particular, lesser form of investigation—whether a partial post-mortem or another type of investigation—he or she can do so, but they should ask somebody who is medically trained and qualified. The requirement is that the investigation be conducted not by somebody who is medically qualified—that is clear in the Bill—but by somebody who is appropriately qualified. The appropriate qualification for certain kinds of investigation might be scientific rather than medical.
If we are going to continue to depend on coroners to get to the root of the problem, I am encouraged by the fact that the Government have now included the idea of developing the service of medical examiners, but we must make sure that they are fully used to ensure that the particular and partial forms of investigation that are done are adequate ones that will give us the results that we need.
I rise with considerable trepidation to speak to my two amendments in this group, in view of the characteristically remarkable expertise exhibited by all noble Lords in this debate. Moreover, I claim absolutely no originality whatever for them. I owe them entirely to the work of Dr Brian Iddon in another place, who spoke to them in Committee.
Both amendments are connected to the circumstances in which it is appropriate to substitute a non-invasive method of determining the cause of death and, in particular, the MRI scan. There are circumstances in which families would prefer an MRI scan to an invasive form of post-mortem. Of course, it is important to determine that such a scan would be appropriate and conclusive before permission for it is given by the authorities.
Dr Iddon has noticed that, if you add what is in the Bill to what is in the Explanatory Notes, the Government appear—quite properly, I think—to have given some very powerful support to this method of post-mortem examination. I refer particularly to paragraphs 148 and 150 in the Explanatory Notes. For that reason we have tabled an amendment to Clause 16(3)(a), which reads:
“For the purposes of subsection (1)”,
which concerns the power of a senior coroner to select a suitable practitioner to conduct a post-mortem examination,
“a person is a suitable medical practitioner if he or she—
(a) is a registered medical practitioner”.
Our amendment would add, “including a radiologist”. The effect of this would be to make it clear that radiologists would be recognised as appropriate persons to carry out post-mortem examinations. As I have said, this is stated in paragraph 150 of the Explanatory Notes, which reads:
“Subsection (3) defines a suitable practitioner as either a registered medical practitioner or where a particular form of examination is required, such as an MRI Scan, a practitioner who the Chief Coroner has designated is suitable to carry out such examinations”.
In other words, what is sought here is the incorporation into the Bill only of what is in the Explanatory Notes.
A similar situation applies to the amendment that we have tabled to the interpretation section, Clause 39. Here, we seek to insert between the definition of “person” and the definition of “prosecution authority” the expression,
“‘post mortem examination’ includes both invasive and non-invasive examination”.
This would make it absolutely clear that non-invasive examination is accepted as an appropriate examination in appropriate circumstances.
I, too, stand amazed at the expertise that we have heard from so far in this debate. I am very grateful to the noble Baroness, Lady Finlay, and other speakers for leading this important discussion on post-mortems. It may help if I start by giving a few broad, crude figures.
In England and Wales in 2008, there was a total of 108, 360 post-mortems out of a total of 234,784 deaths reported to coroners; that is, 46.2 per cent. In those cases where an inquest was held, 92 per cent involved a post-mortem being conducted. In those cases where an inquest was not held, 39.2 per cent involved a post-mortem being conducted.
I shall do my best to explain how the system for post-mortems is expected to work under the Bill and to respond to the points raised by these serious amendments. The decision whether to request a post-mortem examination will continue to remain a matter for the coroner’s judicial discretion. A coroner will also have discretion over whether a particular kind of examination is needed, including non-invasive examinations. I recognise straightaway how important the possibility of non-invasive examinations is to some faith groups, and I shall say a little more about those examinations later.
Clause 35(1)(b ) sets out that the Lord Chancellor may make regulations,
“for regulating the practice and procedure at or in connection with examinations under section 16”,
which deals with post-mortems. These regulations will be drafted with input from all those with an interest and will cover procedural matters connected to requests for post-mortems, including with whom the coroner should consult before requesting a post-mortem—for example, the pathologist or particular specialist, the medical examiner, and not least the bereaved family.
While respecting the judicial independence of the coroner, the Chief Coroner may also issue guidance to address the considerable variations in the number of post-mortems commissioned by individual coroners regarding the deaths that are reported to them, which range from 26 per cent in some areas to 69 per cent in others. There are considerable variations in the types of deaths reported to coroners, which we shall address in Clause 18. Therefore, these figures should be treated with caution. We anticipate that guidance about post-mortems would address the circumstances in which a non-invasive post-mortem might be appropriate and those cases which might warrant a kind of “post-mortem plus”. This might be appropriate when family members have concerns about a possible congenital defect if one or more family members die at an unexpectedly young age, which a routine post-mortem may not reveal.
It is expected that the new medical examiners, whose primary responsibility is to confirm the cause of death entered by doctors on medical certificates of cause of death, will contribute to the decision-making process in the following ways. First, a coroner may be unsure whether a post-mortem or a related scientific examination is required in a particular case. In this circumstance, the coroner will be able to consult the local medical examiner for advice in the same way that he or she may consult the medical examiner about other issues relating to the deceased person’s medical cause of death. Alternatively, a medical examiner may refer one of their own cases to a coroner because, after consulting the treating doctor, he or she is unable to confirm the cause of death given on the death certificate. In making the referral, the medical examiner may suggest a particular kind of scientific examination which may assist, or may be consulted by the coroner about the sort of examination that the medical examiner would recommend.
We agree with the noble Lord, Lord Alderdice, that there needs to be a close working partnership between coroners and medical examiners. The difficulty we have with his Amendment 44 is that it would require the coroner to consult with the medical examiner in certain circumstances. We believe that on balance such an approach would be unnecessarily rigid and could lead to delays in arranging post-mortem examinations, which could in turn lead to delays for families in making funeral arrangements. Everyone agrees that such delays would be undesirable and that accordingly it might be better to leave such matters to the discretion of the coroner. I shall set out in more detail the relationship between the coroner and the medical examiner systems during the debate on the next group of amendments on medical examiners.
To attempt further to reassure the noble Lord about the improvements we expect in post-mortems, I shall say a brief word about training, on which the noble Baroness, Lady Finlay, concentrated in her remarks. At present, coroners receive training on the medical aspects of their role, particularly when they first take up post. This will continue in a reformed system. Once the new regulations in respect of post-mortems have been devised, training for coroners will be arranged to ensure that these regulations are understood and are properly applied under the reformed system.
Given these intentions, and notwithstanding that coroners will retain their discretionary powers, we would expect over time to see greater consistency in the commissioning of scientific examinations. Bereaved families and those who represent their views and interests have told us that this reduction in the postcode lottery is particularly important for them.
I turn to some of the specific points raised in the amendments tabled by the noble Baroness, Lady Finlay. We are concerned that her Amendment 42 would place restrictions on which members of the medical profession could carry out post-mortem examinations. Frankly, this could be wasteful of pathologists’ time by requiring them to supervise procedures that they have no need to supervise. The noble Baroness will be more aware than I that there is already a shortage of pathologists in some parts of the country, particularly in some specialisms. This proposal would spread their resources even more thinly. I listened of course to her comments on the phrase “registered medical practitioner”, which she believes is a loose description, and I hope that can offer some reassurance.
It is absolutely not intended that the standard of post-mortems will decline, or that those who are not properly qualified will conduct examinations, whatever form they take. I must emphasise that in most circumstances it is expected that a pathologist would conduct a post-mortem, particularly if it were a traditional invasive post-mortem; but we have heard that there are other types of post-mortem examination which it would be appropriate for a registered medical practitioner who is not a pathologist to carry out—for example, radiologists who carry out MRI scans. In our view, it would be an inefficient use of valuable pathologist resources to require, for example, the presence of a pathologist to supervise a qualified radiologist carrying out a post-mortem by way of MRI scan.
Post-mortems are certainly not tasks that we would envisage being carried out by someone fresh out of medical school, although it is of course possible that some routine functions of assistance to the pathologist could be carried out by someone recently qualified, particularly as part of further training. Noble Lords may point to subsection (3)(b) of Clause 16 as a way of enabling persons other than pathologists to carry out post-mortem examinations. However, this provision is not designed to enable the Chief Coroner to designate registered medical practitioners to carry out particular kinds of examination; it is certainly not intended to use the provision to enable a range of persons with no suitable qualifications or relevant skills to carry out examinations or tests on the body of a deceased person. The provision is there to enable the Chief Coroner to designate practitioners from outside the medical profession who may be called upon to provide expert advice, such as toxicological scientists or forensic archaeologists. I want to reassure the House that post-mortem examinations will be carried out only by someone who has the necessary medical qualifications or has been approved by the Chief Coroner.
I turn to Amendment 43. We can see value in making provision in the underpinning regulations or the guidance mentioned earlier about training provisions for trainee pathologists, perhaps based around their attendance at and participation in post-mortem examinations. I agree that this should be considered further in the context of that work.
On Amendment 45, about which the noble Lord, Lord Walton, also addressed the Committee, I am of course aware of the noble Baroness’s very long interest and expertise in the subject of tissue retention, and I acknowledge her reference to the different approach that is taken in Scotland. However, we do not believe that this is the time or the legislative vehicle in which to bring about the changes that she may wish to see, all of which were debated in this House some five years ago when the Human Tissue Bill was before us. As noble Lords may be aware, the Human Tissue Authority is currently preparing new codes of practice dealing with the handling and retention of human tissue, including the handling and retention of samples taken during coronial post-mortems conducted by pathologists. Officials from the Ministry of Justice have contributed to the review of the codes and we would prefer to see how the revised codes of practice bed down before we take any action.
I refer noble Lords to paragraph 37 of our published draft charter for bereaved people:
“Sometimes, organs or tissues are retained for additional examination. In this instance, the coroner should reach advance agreement with the appropriate next of kin as to what should happen when they are no longer required for coroners’ purposes. The coroner should convey the wishes of the next of kin to the relevant pathologist”.
We believe that such a statement is Human Tissue Act compliant and that it provides scope for families to agree to organs or tissues being retained indefinitely. We will also be making regulations under Clause 35(3)(g) in respect of the preservation, retention, release or disposal of bodies, including body parts. There will therefore be ample opportunity to consider these issues further with everyone who has an interest, and this debate will be taken into full account as part of that process.
I move on to the amendments tabled by the noble Lord, Lord Kingsland, and I hope I can put his mind at rest that they are already catered for in the Bill. His Amendment 41A seeks to add radiologists to the list of persons who are automatically allowed to conduct post-mortem examinations under Clause 16(3)(a). My understanding is that all practising radiologists should be registered medical practitioners and therefore I reassure him that they are already covered by that clause.
Moving on to the noble Lord’s second amendment, we do not believe it necessary to state in the legislation that a post-mortem examination includes both invasive and non-invasive procedures. This is permissible under the Bill as drafted. However, for the record, the provisions that refer to post-mortems do indeed apply to both invasive and non-invasive procedures.
More generally, as noble Lords will be aware, the Government are committed to pursuing the increased use of non-invasive MRI scans as a method of carrying out post-mortem examinations. This measure has been particularly welcomed by members of the Jewish and Muslim faiths, both of which require the body not to be tampered with after death and for burial to take place, wherever possible, within 24 hours of death. At present, scanning facilities for those who have died are available in only small pockets of the country, and under the current system coroners are prevented from moving the body outside their jurisdiction or an adjoining jurisdiction. Clause 17 allows bodies to be moved anywhere to enable the appropriate examination to take place. I am pleased to say that in the current system coroners in the Manchester area have led the way, in conjunction with local health providers, in making non-invasive post-mortems available to the communities they serve. We await the outcome of Department of Health research into the full effectiveness of such procedures, especially in the detection of particular causes of death, but we are already encouraging coroners in other parts of the country to engage with their local health services to establish whether there is a possibility of making use of local scanning facilities.
I hope that I have been able to give some reassurance to noble Lords whose amendments we have debated this afternoon and I look forward to hearing from them now.
I am grateful to the Minister for his full reply. I must begin by saying that I am not totally reassured, and I believe that this is something that we need to continue to discuss and came back to on Report. I am also grateful to all noble Lords who have contributed to this debate. There are a few points I would like to make, just to underline my reservations. I assure the House that I will be as brief as I can on these.
It is true that there are groups in society that do not want delays and who are worried about the body being tampered with after death. However, I think we should not be under any illusion that the non-invasive MRI is a substitute for a full post-mortem. It is not: the trials that have been done demonstrate that one gets different bits of information. I am concerned that the public may be feeling misled. It is also quite expensive to undertake these investigations, so there is therefore a problem of cost. Moreover, the machines in use for post-mortems either must be dedicated machines, or—if they are also patient machines—they may be taking up patient investigation time.
My main concerns relate to the post-mortem process being supervised by an appropriately trained pathologist. As the noble Lord, Lord Alderdice, already said, there are many people who are members of the Royal College of Pathologists. Some of them are chemists, some are haematologists, but very few of them would be able to undertake a post-mortem. I am a registered medical practitioner of many years standing, but I would not be able to do a post-mortem with any degree of competence. It would be completely fallacious to pretend that I could.
To do a post-mortem properly, one needs to be highly skilled with a great deal of training. My amendment does not state that the post-mortem itself has to be done start to finish by somebody with that level of training, but it says that it must be supervised by somebody with that level of training. Indeed, part of the initial preparation of the body and the closing-up afterwards does not have to be done by somebody with a very high degree of training at all. Certainly, however, somebody has to be available to come in and out to make sure that the standard of post-mortem is high. If the standard is not high, it is dangerously misleading and can create a false sense of reassurance. I have a concern that, when we may be faced with, for example, convictions of corporate manslaughter that could relate to deaths, it would be very important that a high quality of post-mortem is undertaken to provide the evidence to underpin, uphold or refute such a conviction.
Will the Minister say whether there is a need for primary legislation to amend the Human Tissue Act, and to allow the Human Tissue Authority to change the codes of practice to extend the length of time and the amount of tissue that can be retained while consent is being sought? My understanding—but I may be wrong here—is that it would require primary legislation for a step in that process.
I would also like to return later on to training—but I will not push the Minister on this now. If we do not train pathologists adequately, and we do not have a training environment created around post-mortems that are happening, we will indeed have an extending shortage of pathologists, and those we have will be inadequately trained. An inadequately trained pathologist would probably be more dangerous than not having enough pathologists around altogether, because there may be undue weight put on an opinion which is not appropriately or fully informed. That is another point to which I would like to refer after this debate.
My last point relates to the retention of tissues and justice for families. It may be that there is a conviction over the death of a child that is inappropriate, because it was not the parents who were the cause of death, and the child had died naturally. We have already seen that happen.
In the future, the opposite may occur, too; that there is a child’s death and the family is acquitted. The family is asked whether it consents to tissues being retained, but of course it says no and wants the tissues to be cremated. If there is a subsequent death in that family and the tissues have gone completely, there will be no way of linking across. We have an increasing range of chemicals that can be used in poisoning, and increasing access to all kinds of substances that are toxic and can be used. Not only gross external blows may be the cause of death, and I worry that, by not retaining even the blocks and slides, we may not do justice to the dead child or may commit a gross injustice through the wrongful conviction of parents who, acutely bereaved, are not in a position to argue their case. I would like to discuss with the Minister outside the confines of this debate some of the issues arising from the Human Tissue Act and whether primary legislation is required. In the mean time, I beg leave to withdraw the amendment.
Amendment 41 withdrawn.
Amendments 41A to 45 not moved.
Clause 16 agreed.
Clause 17 : Power to remove body
Amendment 45A not moved.
Clause 17 agreed.
Amendment 46 not moved.
House resumed.