Chamber and committees

Scottish Government submission of 15 November 2021

PE1911/B – Review of Human Tissue (Scotland) Act 2006 as it relates to post-mortems

I am responding as Interim Deputy Director for the Health Protection Division, with responsibility for the legislation and overarching policy governing the Human Tissue (Scotland) Act 2006.  

The death of a loved one is stressful at any time and the death of a child is the most difficult thing any family can go through. That is why when someone dies it is crucial that services work together in a coordinated and appropriate way to reduce the burden on bereaved people. 

A post-mortem examination is a thorough medical examination of a deceased person’s body to establish the cause of death. It is carried out by a pathologist. The post-mortem examination should be carried out as soon after death as possible, although in very exceptional circumstances the examination can take place after some time has passed. Post-mortem examinations are not necessary if a doctor can certify the cause of death but in some cases they must be carried out to help establish the cause of a sudden, unexplained or suspicious death. There are three types of post-mortem examination in Scotland, a Procurator Fiscal post-mortem examination, a hospital post-mortem examination and a private post-mortem examination that the family arrange. Post-mortem examinations are more likely in certain circumstances, such as the sudden or unexplained death of a child.

A ‘View and Grant’ is a non-invasive procedure which involves an experienced pathologist externally examining the body of the deceased whilst considering the deceased’s history and the events surrounding the death. The pathologist will confirm to the Procurator Fiscal that a full post-mortem examination is required if they are not in the position to certify the cause of death on the basis of a ‘View and Grant’ examination.

The Crown Office and Procurator Fiscal Service (COPFS) is responsible for the investigation of all sudden, suspicious, accidental, unexpected and unexplained deaths in Scotland. It is for the Procurator Fiscal to decide which deaths it investigates and in how much detail, when a death is reported under the specified categories. For a post-mortem examination instructed by the Procurator Fiscal, authorisation from the nearest relatives is not required as it essential that COPFS are able to undertake independent investigations to determine the cause of death, without which the death cannot be registered. In most cases the relatives' attitude to a post-mortem will be sought. If a post-mortem is necessary it can proceed irrespective of the wishes of the next of kin.

If the post-mortem reveals the cause of death and no further investigation is required, the pathologist completes the medical certificate of death and the Procurator Fiscal informs the Registrar of the cause of death. The death can be registered and the body released for burial or cremation, with the Procurator Fiscal’s permission.

The deceased’s face, hands and feet are not normally affected by the post-mortem examination and relatives should be able to see the body again after the post-mortem examination. Any organs removed for investigation will be replaced unless required for further examination, as described in the paragraph below. In most cases a pathologist will carry out as thorough an examination as possible, to ascertain the cause of death.

Tissue samples are a very small part of an organ. These tissue samples are placed in formalin and are often placed directly into plastic cassettes. The tissue is then chemically treated to remove water, which is replaced by wax. This produces a tissue block, which is a hard block attached to the cassette and from which a very thin section can be cut by a biomedical scientist. This thin section (10 times thinner than a human hair) is mounted on a glass slide before being stained. A very large number of sections can be cut from one tissue block, and a number of different stains can be used to show different features. Tissue blocks and glass slides are stored in special cabinets and are kept securely in laboratories that keep very good records and control access to the laboratory. These techniques are the same as those used to examine tissue from living patients.

From 1st September 2006, tissue blocks and slides from the post-mortem examination automatically become part of the deceased’s medical record and can be used without the need to obtain authorisation for the purposes of: providing information about or confirming the cause of death; investigating the effect and usefulness of any medical or surgical intervention carried out on the person; obtaining information which may be relevant to the health of any other person (including a future person); and audit. Exceptionally, the nearest relative may seek the return of such material and if this occurs any reasonable request will be treated sympathetically by the Procurator Fiscal. However, in certain cases, for example where suspicious circumstances cannot be excluded, it will be appropriate to retain tissue blocks and slides for possible further investigation. In cases of Sudden Unexpected Death in Infancy (SUDI) or Sudden Infant Death Syndrome (SIDS), there is no determinate cause of death and advances in medical knowledge may eventually provide a definite answer. Slides or blocks will therefore be retained with the post mortem records notwithstanding any request for their return. This arrangement also preserves the option of their future use for research purposes provided that the necessary consent or authority is obtained. In all cases, authorisation must be obtained from the nearest relative to use samples for training, education or research beyond what is needed to ascertain or review the cause of death.

In the case of hospital post-mortem examinations, authorisation of a family or nominated representative is required for hospital post mortems for all children aged under 12, and for all people aged over 12 who did not give their own authorisation when they were alive.

In summary, in cases of a sudden, unexplained or suspicious death, post-mortem examinations instructed by the Procurator Fiscal have a vital role in establishing the medical cause of death and play an important role in understanding if criminality was involved in a death. It essential that COPFS are able to undertake independent investigations into a cause of death, without which, the death cannot be registered. As such, the Procurator Fiscal cannot seek authorisation from the family before doing so. It is for this reason the Scottish Government does not intend to alter the Human Tissue Act 2006 in order for families to give consent to Procurator Fiscal post mortems.