Report (1st Day) (Continued)
Clause 14 : Post-mortem examinations
32: Clause 14, page 7, line 31, at end insert—
“( ) The coroner should, whenever possible, seek to ascertain the wishes of the deceased’s relatives prior to the post mortem examination and such wishes may—
(a) specify—(i) the possible extent and purposes of the examination, and(ii) the possible retention and future use of tissue samples, in accordance with guidance that shall be published by the Chief Coroner in conjunction with the Medical Adviser,(b) be conveyed to the practitioner asked to undertake the post-mortem examination, and(c) be regarded as appropriate consent in relation to the provisions of the Human Tissue Act 2004 (c. 30).”
My Lords, I shall speak also to Amendment 33. Amendment 32 is in keeping with the Government’s desire to make investigations at post-mortem more relevant and helpful to the family of the deceased, as in paragraph 37 of the draft charter for the bereaved.
At post-mortem, it is often possible to go beyond the needs of the coroner and to get information relevant to relatives’ future health. Currently, it is a criminal offence for a pathologist to undertake work to further examine tissues if the wishes of the relatives are not known at the time of the post-mortem. Indeed, it is illegal for the pathologist to remove small samples of tissue for further examination, irrespective of what he finds, even if the coroner is no longer involved.
It is also important to remember that if the wishes of the relatives are known, such as that they want a post-mortem which is to the absolute minimum, a pathologist can satisfy the needs of the state and still meet some of the wishes of the relatives by modifying the way in which the post-mortem is undertaken. A clear example of that is if, in the body cavities, it is quite obvious that the cause of death is natural and what the cause of death is, it may not be necessary to undertake a full examination, including slicing the brain.
The first report from the Human Tissue Authority revealed that post-mortems are being undertaken in complete ignorance of the wishes of the relatives, and it made recommendations. However, the second report shows that problems still persist and that the wishes of the relatives are still not known by the pathologist. Sadly, that is probably because the Human Tissue Authority cannot influence how coroners work.
Some coroners try to get round that before a post-mortem by trying to gain permission from the relatives for the blocks and slides to be retained so that they form part of the medical record. One would think that that would be good, humane and ethical practice. Sadly, some coroners do not go to the effort of obtaining that additional consent. Amendment 33 is designed as an enabling provision so that the Human Tissue Act can have flexibility without any possibility of return to the post-mortem practices which led to the 2004 Act. It will allow it to be brought closer to the Human Tissue (Scotland) Act 2006.
The present problems fall into two categories: first, the inability to provide work for the benefit of the state; and, secondly, the inability to provide work for the benefit of the deceased’s relatives. For the benefit of the state there are three broad groups: the first is forensic research. Research into shaken baby syndrome currently demands consent from the person accused of murder. There is no alternative. Research intended to prevent severe miscarriages of justice is in fact prohibited by law.
Secondly, when the cause of death of an infant is not ascertained, the death is classified as being due to sudden infant death syndrome. A small proportion of those are unnatural deaths, but the vast majority are likely to be due to infections or other processes which are not yet identified. If there is a second death in that family, it could be essential to be able to go back and refer to tissues because you may then show that there was an inadequate immune response, for instance, to infection, which had not previously been detected because some highly sophisticated techniques would need to be used to stain the tissues.
The third area where the needs of the state are not being met at the moment is public health. The classic example is research into hidden infections. There was a recent important investigation into new variant Creutzfeldt–Jakob disease which planned to take a tiny sample from the spleen of each deceased person at post-mortem. The coroners perceived that obtaining consent was outside their remit so that important Department of Health-funded research folded and we have no idea what the true incidence is of new variant CJD.
The other area is work for the benefit of the relatives. That is best illustrated by sudden cardiac death in young adults, which is usually caused by a variety of cardiomyopathies, some of which are inherited. To sample the heart requires appropriate consent. Qualified consent, as in the Human Tissue Act, would cover only the DNA analysis, so to take a piece of tissue requires appropriate consent. The trouble is that if one person refuses consent, and they may well do in the trauma and turmoil of being immediately bereaved, all other relatives are denied the benefit as the heart cannot be examined further. When another family member dies suddenly, the tragedy is more than doubled. It is important to remember that some of these conditions are inherited as autosomal dominants, not autosomal recessives.
I am sure that the Government will say that consent is at the heart of the Human Tissue Act, and I am completely in agreement with the principle of consent, but it must be truly informed consent so relatives who have done no wrong are better served and miscarriages of justice can be more easily detected in future. Consent and well-being are at the heart of these amendments. I beg to move.
My Lords, I rise to support the two amendments tabled by the noble Baroness, Lady Finlay of Llandaff, and to speak to Amendment 34, which is tabled in my name and that of my noble friend Lord Thomas of Gresford. The noble Baroness, Lady Finlay, has with great elegance and eloquence, as usual, conveyed some of the problems that have arisen out of legislation and regulations that came into being after a considerable emotional response by the community to certain events with which we are familiar. The difficulty is that sometimes when one reacts to things in legislation of a relatively straightforward nature, only later do the complexities become apparent. In order to address the needs of families who are emotionally concerned, particularly at times of death, regulations were put into place, and it has become apparent that they go against those families’ best interests and what they want.
In the past, a pathologist, as part of his professional understanding and commitment to the work, the patient and his relatives, would normally have gone a little further in completing the post-mortem and finding out what happened and its implications. Now, that is forbidden; it is not possible to go ahead. Knowledge is set back, and it is knowledge that is of great interest for the families, particularly when it comes to genetic disorders. The case put forward by the noble Baroness merits a strong, positive response from the Government. I have no doubt that the Minister appreciates some of these subtleties and that it is not easy to put them in place. However, we do not visit the Coroners Act on a regular basis. It is done once in a lifetime. The problem is that during those 25 or 30 years, many other things change.
That takes me to my Amendment 34. It is clear that not only for the convenience and satisfaction of the family, but also, I suspect, for economic reasons in order to make sure that post-mortem examinations can be done quickly and relatively cheaply, it is being suggested that rather than full post-mortems, partial post-mortems or particular kinds of examinations might be undertaken. They would be briefer and less expensive. Of course, with new technology, they may be extremely helpful, and the technology will continue to develop over the next 20 years or so. The problem is that if a partial post- mortem is requested, it will be conducted by a medical practitioner—in many, if not all, cases a forensic pathologist—who will understand that each finding must be related to the findings in the body as a whole.
However, the Bill implies—indeed, it rather clearly states—that a particular kind of examination that is not a partial or full post-mortem but perhaps a radiological or other less intrusive examination can be ordered by someone who may not be medically qualified. Indeed, a lot of these specialist examinations are increasingly being undertaken by people who are not medical practitioners, whether those examinations are haematological, biochemical, neurophysiological or histopathological.
The problem is that that person, with their expertise, can come up with a perfectly accurate answer for the particular thing that they are asked to look at, but a coroner is not medically qualified and does not have the training, background or understanding of the body as a whole. Moreover, he requests a test to be conducted by someone who does not have that understanding, which is why this amendment asks that the coroner should consult a medical examiner. Perhaps other medically qualified people could be consulted—I do not have my mind closed to that—but the idea that it should not be someone with a medical understanding is a serious error and is likely to lead to misjudgments and serious mistakes in the conduct of these examinations and therefore to the wrong result from the inquest.
I was not clear from the Minister’s last response why there will be such a problem of delay. The main force of that response was that to insist that the coroner consults the medical examiner would occasion such delay as to be of great disadvantage to the family. It is unlikely that a medical examiner would be so unavailable that he could not be consulted. However, if there are other ways in which this problem can be satisfied, I look forward to what the Minister has to say in response.
My Lords, we are indebted to the noble Baroness, Lady Finlay of Llandaff, for introducing a very important subject. As I understand it, both she and the noble Lord, Lord Alderdice, understand and support the central importance of consent in the removal, storage and use of post-mortem tissue samples. They highlight the fact that, since the Human Tissue Act 2004, a number of situations have developed that are probably beyond the circumstances that this House and the other place had in mind when we debated that legislation and it was taken through Parliament.
We are indebted to the noble Baroness for giving examples of those situations, which were not envisaged. I was particularly struck by the circumstances she outlined in which pathologists are prevented from undertaking potentially life-saving research for the benefit of relatives of the deceased; in which vital forensic research is possible only with the consent of the accused; in which evidence that may become crucial to a successful criminal investigation cannot lawfully be retained; and in which public health research, such as the example given of the project into the epidemiology of variant Creutzfeldt-Jakob disease, has proved to be logistically impossible.
I am greatly benefited by a letter, which the noble Baroness shared with me, from Professor Peter Furness, President of the Royal College of Pathologists. We must now look to the Minister to outline how the Government intend to respond to these situations, and how we can create the necessary flexibility to solve the most important of these problems while maintaining an appropriate level of scrutiny that would satisfy this House—and of course the public—that the underlying intent of the Human Tissue Act 2004 is not being undermined or eroded. We therefore await the Minister’s response with great interest.
My Lords, I, too, thank the noble Baroness, Lady Finlay of Llandaff, for again raising this area of concern. The noble Lords, Lord Hunt and Lord Alderdice, have said that this is a difficult, complex and subtle area. Because the level of subtlety is such that we need to write in response to this debate, I will end by inviting the noble Baroness to withdraw her amendment and inviting noble Lords not to press their amendments. In those circumstances, I understand that it would be appropriate for amendments to be brought back at Third Reading if we were unable to satisfy the general direction that we have talked about. I will, of course, add that caveat about the spirit.
We have once again returned to the emotive issue of post-mortems and tissue retention and, as in Committee, we have heard a number of highly informed opinions. I am confident that most if not all of the issues raised in Amendment 32 can be more than adequately dealt with in other ways. These include guidance issued by the Chief Coroner, the provisions of the Charter for Bereaved Families and provision in regulations to be made under Clause 38(3)(g) governing the preservation, retention, release or disposal of bodies, including body parts.
I would wholeheartedly agree that, as a matter of best practice, it may well be appropriate for the coroner to attempt to explain and discuss the extent and purpose of any post-mortem examination before the examination is commissioned and carried out. Among other things the coroner would explain what would happen to any tissues taken as samples after the coroner’s jurisdiction over them has finished. However, such prior contact with the next of kin may not always be appropriate or practical, particularly in situations where the next of kin cannot be immediately contacted, where the death is especially complicated or distressing, or in situations where the next of kin may be implicated in the death. It may also be the case that the coroner is not best placed to ascertain the wishes of the family. It is often the case that either a medical professional or a police officer is liaising with the family in the immediate aftermath of a death and they would be best placed to raise this issue.
The draft Charter for Bereaved Families, published alongside the Bill, already contains relevant passages at paragraphs 15 to 20, 36 and 37, and we will consult further on this as part of the implementation process. In addition, I should say that the concept of “appropriate consent” is predicated on who gives the consent rather than on to whom the consent is given, so any such consent given to a coroner or to a coroner’s officer, police officer or medical practitioner is already regarded as appropriate consent under the Human Tissue Act 2004.
The 1984 coroners’ rules, which were updated in 2005 following the passage of the Human Tissue Act, contain provisions on material retained after a post-mortem examination. The coroner is required to inform the deceased’s relatives of the period that material will be retained and the options regarding the material at the end of that period. One of those options is that the relatives may consent to the material being retained and used for medical research. Similar provisions could be made in regulations under Clause 38(3)(g) and we consider that this would be preferable to ascertaining wishes before the post-mortem when the family may be distressed and treating those wishes as consent.
As regards Amendment 33, I must reiterate the Government’s position that the regime set up by the Human Tissue Act 2004 is a consent-based regime and that the consent of the next of kin should be obtained in all circumstances before human tissue samples are kept for the purpose of scientific research, including those samples taken during a coroner’s post-mortem. The Government cannot give their backing to any proposal that seeks to undermine the fundamental principle of next of kin consent established by Parliament in passing the Human Tissue Act. Therefore, once the coroner has finished his or her investigation and their jurisdiction is at an end, and if there is no requirement for tissue to be kept for evidential purposes, the state has no right to retain tissue without appropriate consent from the next of kin.
I appreciate that it is a long-standing contention of bodies such as the Royal College of Pathologists that it is desirable that tissue be retained when it is for the good of the family; for example, when there is a genetic element to a cause of death. But the Government take the view that it is ultimately for the family to decide what is in their interests, and not for the state to dictate that their relative’s tissue should be retained “for their own good”. The current legislation allows such tissue to be retained for these purposes with appropriate consent, and we wish that to retain that position. I can offer the noble Baroness some comfort with regard to paragraph (b) of Amendment 33 in that, under PACE, powers already exist for tissue to be seized as evidence and retained for criminal justice purposes.
The provision at paragraph (c) regarding,
“any other matters as the Secretary of State may instruct”,
would provide the Secretary of State with wide-ranging powers to take away decisions about the retention of tissue from families, without even the safeguard of the requirement for parliamentary approval for such a change in the law. This would again contravene the spirit of the Human Tissue Act which has at its heart the concept that it is for individuals and their families to have the right to decide what happens to their bodies after they are dead. I am sure that organisations such as those representing the families affected by Alder Hey, Bristol and other organ retention scandals in the past would be very concerned at any attempt to weaken this principle. Also deeply concerned would be those who belong to many faith groups, who believe strongly that a funeral should take place with the body of the deceased person untampered with as far as possible.
I hope that I have been able at least to satisfy the noble Baroness that her first amendment is unnecessary. I know that she will not be satisfied with my response to her second amendment, but I hope that she will agree that it raises an important point of principle which goes to the heart of the Human Tissue Act and, as such, this is not the occasion to take the matter further. I repeat that we will look at her speech with great care, consider its general thrust and write to her as soon as is reasonably practical. We will copy that letter to other noble Lords who have taken part in the debate.
Finally, on Amendment 34, I reiterate that we anticipate that guidance about post-mortems issued by the Chief Coroner, in conjunction with and on the advice of the medical adviser to the Chief Coroner, 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, for example, when family members have concerns about a possible congenital defect, which a routine post-mortem may not reveal, if one or more family members die at an unexpectedly young age. Provided that the family consent, there is no reason why such a post-mortem cannot be held—they could even be contacted by phone while the post-mortem is taking place.
It is expected that the new medical examiners, whose primary responsibility is to confirm the cause of death entered by doctors on medical certificates, will indeed make important contributions to that decision-making process in the following situations. The first is where a coroner may be unsure as to whether a post-mortem, or related scientific examination, is required in a particular case. In that 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 which relate 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 make a suggestion about 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. On the coroner’s involvement in research projects, to which the noble Baroness referred, this is a matter that will be dealt with by the Chief Coroner in the future. We envisage that his approach will be more constructive than some individual coroners in the current system. I agree with the noble Lord, Lord Alderdice, that there needs to be a close working partnership between coroners and medical examiners. The difficulty I have with his amendment is that it would place in primary legislation a statutory requirement for the coroner to consult a medical examiner in all situations where a partial post-mortem examination or a particular kind of examination was being requested. I believe that 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. I hope we can agree that such delays would be undesirable and that, accordingly, it would be better to leave such matters to the discretion of the coroner.
I thank the noble Baroness, Lady Finlay, for the time that she has spent with us both today and beforehand. We shall of course be available for further consultation after we have written to her. On that basis, I invite her to withdraw the amendment.
I am most grateful to the Minister for his extensive reply and for those extensive discussions before we came on to the Floor of the House, which have been most helpful. I am also reassured that he will write to me. I shall not respond to the individual points that he made; he has given me a lot of important reassurances today which are on the record.
I simply repeat that consent must be at the heart of processes, but I should like to go one stage further and say that we must make sure that it is truly informed consent for it to be valid. That means recognising that, in acute bereavement, people are sometimes in such a state of shock that they really cannot give true, informed consent. CRY, an organisation that deals with sudden death, knows of families where consent forms have been sitting on the kitchen table for up to two years before they could even face tackling them. That is the extent to which people are traumatised. I am most grateful for the Minister’s response. I beg leave to withdraw the amendment at this stage, but may return to it.
Amendment 32 withdrawn.
Amendments 33 and 34 not moved.
35: After Clause 18, insert the following new Clause—
“National Medical Examiner
(1) The Secretary of State may appoint a person as National Medical Examiner.
(2) The National Medical Examiner is to have—
(a) the function of issuing guidance to medical examiners with a view to securing that they carry out their functions in an effective and proportionate manner;(b) any further functions conferred by regulations made by the Secretary of State.(3) Before appointing a person as National Medical Examiner or making regulations under subsection (2)(b), the Secretary of State must consult the Welsh Ministers.
(4) A person may be appointed as the National Medical Examiner only if, at the time of the appointment, he or she—
(a) is a registered medical practitioner and has been throughout the previous 5 years, and (b) practises as such or has done within the previous 5 years.(5) The appointment of a person as National Medical Examiner is to be on whatever terms and conditions the Secretary of State thinks appropriate.
(6) The Secretary of State may pay to the National Medical Examiner—
(a) amounts determined by the Secretary of State by way of remuneration or allowances;(b) amounts determined by the Secretary of State towards expenses incurred in performing functions as such.(7) The National Medical Examiner may amend or revoke any guidance issued under subsection (2)(a).
(8) The National Medical Examiner must consult the Welsh Ministers before issuing, amending or revoking any such guidance.
(9) Medical examiners must have regard to any such guidance in carrying out their functions.”
This group of government amendments places on a statutory footing the separate posts of the national medical examiner and the medical adviser to the Chief Coroner. The Government have tabled the amendments after careful consideration of the views expressed in Committee by the noble Baroness, Lady Finlay, and the noble Lords, Lord Thomas of Gresford, Lord Alderdice and Lord Alton.
Amendments 35 and 143 allow for the appointment of a national medical examiner, who will provide professional leadership to medical examiners and, in particular, issue guidance with a view to securing that they carry out their functions effectively and proportionately. It will be for the Secretary of State for Health to agree the detailed job description of the national medical examiner. However, it is envisaged that the national medical examiner will also act as the main point of liaison with the medical adviser to the Chief Coroner to ensure that close working relationships between coroners and medical examiners at local level are also mirrored at national level.
In terms of qualifications for the appointment, the national medical examiner will have been a registered medical practitioner for at least five years and have practised within the previous five years. The Secretary of State will determine the terms and conditions of the national medical examiner and their remuneration or allowances.
Amendments 49 and 51 provide for the Lord Chancellor to appoint a medical adviser to the Chief Coroner and as many deputy medical advisers to the Chief Coroner as the Lord Chancellor thinks appropriate. As the title suggests, the medical adviser will advise and assist the Chief Coroner in relation to medical matters which are relevant to the coronial system.
It will be for the Lord Chancellor, in consultation with the Chief Coroner, to agree the precise job description. It may be helpful if I confirm what we envisage to be the key elements of the post. First, it is likely to be a strategic role, involving liaison with organisations such as the British Medical Association, the General Medical Council, the Royal College of Pathologists, the Human Tissue Authority and the Commissioner for Mental Health, as well as specialists in particular medical fields. More particularly, he or she will establish a strong working relationship with the new national medical examiner. The second main tranche of work is likely to see the medical adviser being responsible for formulating, promulgating and monitoring the use of best practice for medical aspects of the coroner system, including post-mortem examinations, the release of bodies and organ and tissue retention.
The amendment keeps open the option of appointing more than one in terms of deputy medical advisers. We anticipate that there will be one deputy, but the amendment keeps open the option of appointing more than one in case the need arises at some point in future. This is important, given that the medical adviser is a new role, and one which may evolve in future. As for qualifications, the medical adviser and deputy will have been registered medical practitioners for at least five years, and have practised within the past five years. The Lord Chancellor will decide the roles’ terms and conditions and remuneration or allowances.
Noble Lords will be aware that we have until now used the term “national medical adviser” to refer to this role. I hope noble Lords will agree that the term “medical adviser to the Chief Coroner” makes the nature of the role clearer. In addition, it distinguishes the role clearly from that of the national medical examiner. I beg to move.
I thank the Government for having incorporated in the Bill something that I think is absolutely essential for the smooth functioning of the new coronial service. I congratulate them on the wording of the amendment, for which all of us who spoke before are most grateful.
I, too, thank the Minister, who has responded not only positively and constructively but in some detail, in the amendments and in his detailed description of them, about how the posts will come into being, qualifications, consultations and so on. I go along with the terminology that he has identified. I welcome the amendment and appreciate the Minister’s positive response.
36: After Clause 18, insert the following new Clause—
“Short death certificates
The Lord Chancellor must by regulations make provision to introduce short death certificates, which omit the cause of death.”
The amendment introduces short death certificates, which omit the cause of death, to be used alongside the current system of medical certificates with cause of death. They would simply record the fact of death. The noble Lord, Lord Bach, outlined the Government’s objections to including short death certificates in Committee, on IT changes and the cost implications. However, since that time I have had a Written Question answered by the noble Lord, Lord West of Spithead—in green ink; I shall consult my noble friend about that. He told me that the high-level forecast of the cost of introducing short death certificates indicated costs in the order of £130,000, which would cover changes to the software used by registrars in England and Wales and provision of an additional supply of serial-numbered secured stationary. So the expense is not great—I inform my friends to my left, noble Lords on the Conservative Benches—and it is not a new concept to have short death certificates.
The Government stated their intention to introduce them in their 2002 report, Civil Registration: Vital Change: Birth, Marriage and Death Registration in the 21st Century. In that report, they said that the revised arrangements for access to registration information meant that there would be a certificate that omitted the cause of death. The document mentioned that the short death certificates were a particularly popular idea among respondents to the public consultation and had been advocated by the British Medical Association since 1995.
It is important that there is an accurate record of the cause of death and that that be kept, for all sorts of purposes. But it is important to remember the position of bereaved people. There may be reasons why people would not want to share their relative’s medical cause of death. Perhaps the person died of a hereditary disease, or the death may be sensitive, such as suicide, the consequence of drug addiction or alcoholism. For understandable reasons, the family may not wish to disclose these matters to others. A vast number of companies require a death certificate when they are notified of a termination, for example of a bank account. In some circumstances, when informing an insurance company, it is obviously important to give the cause of death, but telling banks, utility companies and other financial services that a person has died does not require telling them why. Ethically the obligation of confidentiality extends beyond the patient’s death.
There is a balance to be struck between society’s need for accurate data, which can be used for statistics and so on, and the duty of confidentiality owed to deceased people and the bereaved. Those are the circumstances that lie behind this amendment. I beg to move.
It may be in the best interests of the House if I give the Government’s response now. The amendment is about the death registration system, and would oblige the Lord Chancellor to make provision in regulations for short death certificates. I fully understand the reasons for this amendment. The cause of death of a loved one is a private matter unless it is clearly necessary for an organisation, such as an insurance company, to have that information. I can well understand that its unwarranted disclosure can cause the bereaved family unnecessary hurt.
In principle, the Government have accepted the case for the introduction of a short death certificate. That remains our position. But we need to prioritise the reforms to the death registration system. Our priority in this Bill is to address the deficiencies in the current arrangements for scrutinising deaths identified by the Shipman inquiry. Implementing the reforms in the Bill will be a major undertaking. The introduction of a short death certificate would require changes to IT systems and have other resource implications. I do not want to exaggerate the scale of the resource implications, but it is a consideration that we need to keep in mind.
The difficulty that I have with the wording of this amendment is that it places an absolute duty on the Lord Chancellor to make regulations. As an aside, it is worth pointing out that the regulations should properly be made by the Registrar-General. We need some flexibility to allow us properly to sequence reforms to the death certification arrangements. If the noble Lord would agree to withdraw his amendment, I will see what I can do about bringing forward an appropriately worded amendment at Third Reading that would confer a power to introduce a short death certificate, but afford some greater flexibility as to the timing. Of course, it will be open to the noble Lord to reintroduce his amendment at Third Reading if he is not satisfied. I hope on that basis that he will agree to withdraw his amendment.
I am most grateful for the undertaking given by the Minister. Clearly an amendment in the terms he describes would be acceptable, giving a power for it to be introduced at an appropriate moment. However, I warn him that I am sure both the BMA and I will be on the case. If that power is not exercised within a reasonable time we will return to the matter at a subsequent date. I look forward to Third Reading and the amendment that the Minister proposes, and thank him for the consideration that he and his department have given this matter. I beg leave to withdraw the amendment.
Amendment 36 withdrawn.
Clause 2 : Coroner areas
36A: Schedule 2, page 124, line 10, leave out sub-paragraph (2) and insert—
“Responsibility for the coronial system shall lie with HMCS and each coroner area is to consist of the area covered by an HMCS area.”
I apologise for bringing this amendment forward so late in the proceedings but, I suspect like other noble Lords, I have been very concerned about the general content and tone of this Bill which seemed rather more to be a sort of patch-up rather than a new or more inspired coverage of the coroner system, bearing in mind the fact that it is 130 years since the system as a whole was last renewed.
When the Ministry of Justice issued its coroner briefing system note in January this year, it said that the Government were committed to improving the system and reforms would introduce national leadership to ensure greater consistency between areas. Paragraph 15 of the Explanatory Notes states:
“The purpose of the Bill is to establish more effective, transparent and responsive justice and coroner services for victims, witnesses, bereaved families and the wider public”.
The reference to “effective, transparent and responsive” caused me some concern. Looking at the history, the post-Shipman inquiries initiated by the Home Office in 2004 have already been mentioned. At that time, the Home Office brought forward proposals to create a new unified coroner and death certificate agency, which would work out of local offices but be centrally financed and managed. It would replace local authorities in the appointment and support of coroners. It appeared at that time that the Home Office was aiming at something more centralised.
However, between 2004 and 2006, responsibility passed to the Ministry of Justice, where a rethink was carried out and, instead of the centrally-financed agency envisaged by the Home Office, it stated that coroners would continue to be appointed and supported by local authorities. This prompted a sharply critical report from the Constitutional Affairs Committee, particularly on the Government’s retreat from the centralised agency. This led to another rethink and to this Bill, which is really a hybrid because, if you like, it establishes a national service with local delivery. It will provide for a new national leadership but local authorities will still appoint and support coroners. I have wondered about this because, frankly, a hybrid never works as well as something which is centrally directed and run.
My next port of call was to look at the rather inadequate impact statement which came with the Bill. In that there were four options, two of which were dismissed. Option three, which is the one we have before us—the enhanced service locally based—lists a summary of savings and benefits, including greater rights for bereaved people, improvements in case handling, more effective handling of cross-district major emergencies and greater accountability through inspection arrangements. There is nothing very significant in that. However, option four—the unified national service— includes all those savings and benefits and adds effective introduction and enforcement of good practice, common standards for the public, a charter for bereaved people and a complaints/appeals process, leadership and public accountability; it would enable comprehensive, co-ordinated forward planning, resource management and efficiency savings; it would provide a single career structure for coroners and staff and allow for management of personnel; there would be a single system of medical expertise to support the service; and it would allow streamlining and modernising of investigations and inquests for greater efficiency and with more focus on bereaved people. In other words, the Government acknowledged that a unified national service actually met all the aims they were trying to achieve and I suggest, was far better than anything else that had been suggested before.
Along with a number of other people, I wondered how I could suggest that we should not accept option three just because it is the recommended option but should look seriously at option four because we are considering, for the first time for 130 years, the reform of something fundamental. I was very interested to find that among my supporters was the Local Government Association, which believes that the coroner and service should be a national service under the control of the Ministry of Justice and that councils should not be expected to manage a service where the national standards are established and monitored by the Chief Coroner, where coroners can be removed from office only by the Lord Chancellor; and where they have no control over costs. If the Local Government Association, representing those people who are meant to be supporting and accommodating the service, is uneasy, we ought at least to raise this matter during the debate rather than let it go by default.
I also found that Mr Tom Luce, who was responsible for the first inquiry initiated by the Home Office, says that he was one of those who would have preferred a new, centralised structure as the best solution—or, at least, that support of the coroners service should have been transferred to the Courts Service, which already exists. The service would then be completely independent of the public service’s responsibility for the facilities in which deaths occur, while a national agency or other centralised arrangement should be able to equalise standards and practices between different areas.
If the coroners service was transferred to the Courts Service, it would be under the aegis of the Lord Chancellor or of the Secretary of State for Justice. I then looked at the Bill again, to see whether in fact such a service would be directed by the Lord Chancellor, and provision for that is already effectively made. Clause 22, with Schedule 2, allows,
“England and Wales to be divided into coroner areas and gives the Lord Chancellor the power to set and alter the boundaries of these areas … after consultation with the relevant local authorities”,
while Part 4 of Schedule 3,
“makes provision for the relevant authority for the area to pay salaries to senior coroners … The amount of these … fees is for the … coroner and the relevant authority to agree. If they fail to reach an agreement the matter can be referred to the Lord Chancellor”.
Her Majesty’s court inspections are carried out by an agency that reports to the Lord Chancellor, so everything is already in place for what would seem a logical outcome with better impact, without having to go too far.
However, one has to consider the coroners themselves. I consulted one senior coroner who had always felt that coroners were in a difficult and hybrid position, because they were not part of the court system as a whole. He also commented that, unlike the remainder of the court service, coroners do not get a pension until they have been coroners for 40 years, which makes life pretty difficult for somebody who is appointed one at age 50. He also pointed out that, currently, being funded by local authorities meant a postcode lottery—because some authorities were less supportive than others—and that different coroners being paid different salaries by different local authorities was thoroughly unsatisfactory. Like other coroners, he is concerned about the clout that the Chief Coroner would have without funding.
Finally—and this was the most important part of all—he mentioned the fact that were they part of the Courts Service, they would have access to all of its facilities, the courts and other support. That would be a major factor in reducing delay, which is one of the prime objects of the Bill. Of course, it is not surprising that the Government have shied away from something which has the centralisation of responsibility and is financing a system that probably requires more cost, certainly to the Courts Service. Neither is it surprising that there will be those in the court system—the judicial system, and others—who are concerned that that system is already under strain, and therefore not in a position to provide resources to the coroners to help them in their task.
However, my purpose in tabling this amendment now is because in a Bill of such magnitude, it is unfortunate that the one issue being ducked is whether, rather than a hybrid being presented as the answer, with all the problems associated with that, the House should not have considered the other option; that is, of going for what is clearly the best solution in efficiency of outcome while being absolutely open and clear that there are limitations to this which must be borne in mind. It is therefore probably not the right time to press this any further than a discussion, with the suggestion that, perhaps having also discussed the matter with the Ministers, we might reconsider the matter at Third Reading. I beg to move.
My Lords, I very much support the amendment moved by the noble Lord, Lord Ramsbotham. It is odd that the Ministry of Justice and its predecessors have been engaged in bringing all the different groups of those who are either judges, tribunal chairmen or judicial officers under one roof. The Leggatt reforms and the legislation passed by this House not so long ago have meant that tribunal chairmen now become judges. The tribunals right across the country which were not part of the Courts Service are now part of the Courts Service. The magistrates were a separate service; they are now, partly at least, run by the Courts Service. I believe I am right in saying that the only group of judicial officers with judicial functions who are sitting in a situation similar to a judge—except that their work is inquisitorial rather than largely adversarial—are not under the Courts Service. As far as I know, there is no other group of judicial officers that is not in the Courts Service.
There are obviously practical reasons why the Government do not want to do it. Presumably it would cost more money, but I know from personal experience that when there are very big inquests the Government foot the bill anyway. I would have thought that it was not beyond the wit of the Government—particularly the Ministry of Justice—to think of the importance of having all judges, all tribunal chairmen, all magistrates and all coroners operating under the same system. It would be a great advantage for the coroners. It would give them and their Chief Coroner added clout, as the noble Lord, Lord Ramsbotham, said. It would also be a very tidy way of dealing with every aspect of the judicial work that goes on in this country.
My Lords, I wholly support this series of amendments. I find it quite extraordinary that the coroners service should be outside the Courts Service. I have previously told your Lordships that I spent part of my youth in a coroner’s office, where I was articled, and that my principal was the coroner for Denbighshire. He sat on the Gresford colliery disaster inquest, which is probably one of the biggest that this country has ever seen. He sat in all sorts of places and it was most unsatisfactory. Today we are supposed to be updating the system.
In north Wales, we had for a period a full-time north Wales coroner. I think, although I am not sure, that there are now two—one for north-east Wales and one for north-west Wales. There are some eight local government organisations and, of course, they are subject to the Welsh Assembly. Local government is devolved, so we have a position in my part of the world whereby the coroner is selected, paid, controlled, disciplined and so on by the Lord Chancellor’s department, but is also paid for by a devolved organisation. I do not know how they split it, but it is an extraordinary muddle. The only reason for this can be that the Ministry of Justice simply does not want to take on the expense of court buildings. However, magistrates’ courts are closed all over the place. There are plenty of buildings and plenty of empty courts today in the Crown Court, as I am told. Certainly, in north Wales there are ample opportunities for a proper coroner service to be given to the people.
I look forward to hearing from the Minister whether there is any reason, save that of cost and budgets, which would prevent the very sensible reform proposed by the noble Lord, Lord Ramsbotham, being accepted. He has our full support.
My Lords, the noble Lord, Lord Ramsbotham, asked for a discussion on this issue, so I offer my thoughts from this Front Bench. As always, I hate to be the spoiler or wet blanket—that is the Government’s role on these occasions—but I cannot fully support what the noble Lord had to say, although I frequently agree with him, just as I frequently agree with the noble and learned Baroness, Lady Butler-Sloss.
The noble Lord made his case very well. Much of what he said has merit and his ideas are certainly worth considering. There are practical and logistical reasons for a merger. I know from speaking to coroners that they are concerned about pressures of space. Managing to get hold of a suitable venue can be troublesome. No doubt, the Minister will comment on that. Coroners have to take the courtrooms they can get. Many of the services, experts and facilities on which they draw are the same as those used by the Courts Service. But—from our point of view, this is a very big “but”, and I think the noble Lord knows that we cannot fully support his proposals—we believe that one of the strengths of the coronial system, which is unique in many ways, is its independence. We value a service that is renowned for its tireless investigation into the cause of deaths and its deep well of practice and expertise established over many centuries. Speaking as a good Conservative, I think that is worth preserving, and I would not want to make the change for the sake of it.
That is not to say that such experience would be diminished or destroyed by implementing the changes suggested by the noble Lord, but there is always a danger of that occurring, as could be the case if a massive upheaval occurred in the way that the coroners service and the Courts Service were organised, funded and operated. We do not think that we would be doing anyone a service by jumping into such an upheaval at this stage.
It was good to have this brief discussion. We cannot support the proposal at this stage but, as I said, the real spoilers have to be the Government. It is their job to respond and I look forward to hearing the Minister’s comments. He will do the proper hatchet job.
It is much too late to do a proper hatchet job. However, there is a nice irony about this debate—I am very grateful to the noble Lord for initiating it—namely, that a Government who have been falsely accused of centralist tendencies will defend localism and a local response as opposed to showing centralist tendencies.
The amendments would make Her Majesty’s Courts Service, rather than local authorities, responsible for coroner areas and appointments. In other words, they would make coroners part of a national organisation, and move away from the model of central leadership with local delivery that the Bill proposes. Our thinking on this issue has developed in a certain way. Following the reports of Tom Luce and Dame Janet Smith in 2003, we explored the option of a national coroner organisation in great detail. However, we were not persuaded that a centrally funded and operated service would significantly improve the coroners service and people’s experience of it. The Bill instead preserves the existing locally delivered and funded service but strengthens it through the introduction of national leadership and national standards.
The cost of a national organisation, whether part of the Courts Service or a separate entity, would be disproportionate to the benefits it would bring, and perhaps even unaffordable. As the impact assessment published alongside the Bill shows—I do not think it is one that impressed the noble Lord particularly—we estimate that a national organisation would cost three times more than our proposed model. The approximate figures are £10 million additional funding for running costs under the Bill’s scheme and at least £30 million additional funding for a more centralist model. The other argument is that the nationalised structure would take years to set up. We hope that our model will take only two to three years. Joking apart, it would also be out of step with the Government’s moves in recent years towards bringing services closer to the local communities which they serve.
We believe that the approach in the Bill is a better and more proportionate way forward. There will be a new national framework with leadership and guidance from the Chief Coroner, and we will retain local delivery with coroners and local authorities working together at a local level to ensure a high-quality service to bereaved families. The Chief Coroner will set national standards for all coroners and their staff in England and Wales, and will monitor compliance with those standards, oversee the services for families set out in the charter for the bereaved, and issue guidance on particular issues. We believe that the appointment of a Chief Coroner will make a significant difference over time. At the moment there are 110 coroners and, frankly, 110 different ways of doing things—some very good, others not so good. We want more of the former and less of the latter. Local authorities will continue to fund the coroner system and provide accommodation, staff and other resources, and police authorities will continue to provide coroners’ officers in the majority of jurisdictions to ensure that services are tailored to any particular local needs.
To confirm what my noble friend Lord Davies said in Committee on 9 June, if it seems that any particular coroner area is underfunded or that any coroner is using resources inefficiently, the Chief Coroner will step in to liaise between coroner and authority to improve the situation. Provision and use of resources will be looked at additionally by Her Majesty’s Inspectorate of Court Administration. We hope this will help to facilitate a consistency of service delivery across coroner areas while ensuring that coroners continue to be able to make independent decisions about individual cases.
Having said all that, we naturally wish to keep the impact of our reforms of this system under review. They will need time to bed down and we must not rush to judgment. I do not rule out taking a fresh look in a few years’ time at how we best organise the service. The Chief Coroner will undoubtedly have a view on this, as will the Justice Select Committee of another place, which will want to examine the impact of our reforms as part of the now normal process of post-legislative scrutiny. In future, there may be a stronger case for integrating coroners into the Courts Service, but given the long gestation period for the provisions in the Bill, that is a question for another day.
Can the Minister clarify where the extra £20 million will come from? Is it going to cost the taxpayer £20 million more, or the Ministry of Justice £20 million more and local government £20 million less? Is it just the shifting of money across budgets or is it more money out of taxpayers’ pockets? If so, how on earth can that be?
As I understand it, it will not come out of taxpayers’ pockets. It is just the extra cost of setting up a central structure. I will try and get more details and if I cannot, I will write to the noble Lord.
I was going to end by saying that the cost of the creation of a completely centralised service is disproportionate to the benefits and that not all nationalised organisations have always been successful.
In the Queen’s Speech debate, the right honourable Member for Berwick-upon-Tweed, who is a close colleague of the noble Lord, Lord Thomas, and the honourable Member for North West Norfolk, who is a close colleague of the noble Lord, Lord Henley, agreed that a system of central management with local delivery would be the correct course. That is what we believe, too. In spite of the two opposition Front Benches here agreeing on this issue, I think that we are right and I ask the noble Lord to withdraw his amendment.
My Lords, I am grateful to the Minister for his hatchet and I am grateful to those who have taken part in the debate. I did not expect to get more than I did from the noble Lord, Lord Henley, at this stage. However, like the noble Lord, Lord Thomas, I am concerned over the costings, which I think were put into the impact statement in a way to justify the selected case rather than to put the facts. I still hope that the Minister will engage in discussion on this before Third Reading and that we can get more clarity over these costings. Impact statements and assessments on Bills should be very useful to the House, but they are almost inevitably very poorly done. That is a great pity, as it hampers our ability to have an informed debate. With the proviso that we have that discussion, I beg leave to withdraw the amendment.
Amendment 36A withdrawn.
Amendments 36B to 36D not moved.
Schedule 3 : Appointment etc of senior coroners, area coroners and assistant coroners
Amendments 36E to 36Y not moved.
Consideration on Report adjourned.
House adjourned at 10.02 pm.