Certification of Death (Scotland) Bill: Stage 1
The next item of business is a debate on motion S3M-7821, in the name of Shona Robison, on the Certification of Death (Scotland) Bill.
14:56
I am pleased to open the debate on the general principles of the Certification of Death (Scotland) Bill. Before I turn to the substance of my speech, I want to thank a number of people. First, I thank the organisations and individuals who helped to shape the legislative proposals and those who provided evidence to the Health and Sport Committee—our proposals have benefited from their expertise and experience. Secondly, I thank Christine Grahame and the Health and Sport Committee for their detailed scrutiny of our proposals and considered conclusions in the stage 1 report. I stress that I will continue to listen to and work with stakeholders when taking forward the proposals in order to ensure that we have a sound and workable system.
The bill will introduce a single system of independent scrutiny of medical death certificates that will apply to deaths that do not require a procurator fiscal investigation. It will replace the current crematoria medical referee system and associated forms and will, therefore, abolish the cremation fees that families pay to doctors. As well as removing historical differences between cremation and burial that were introduced when medicine was less advanced, the new system will provide us with a robust and modern approach to scrutiny of death.
As the committee acknowledged in its scrutiny, a death certification system cannot prevent criminal activity of the kind that was carried out by Harold Shipman, but our proposals have been designed to deter malpractice and to provide public reassurance. They have been developed with the people who will be most affected in mind. Foremost of those are bereaved families, to whom we owe a duty to ensure that the new system minimises distress, avoids undue delay to funerals, and is affordable. Consequently, the reforms will result in a financially sustainable and proportionate system.
At the heart of the new system will be an emphasis on improving the quality of death certification. Improved quality of information on cause of death will help us to understand the distribution and determinants of mortality and to identify at-risk populations. It will inform quality improvements in national health service services and provide better information to help us to deal with outbreaks of infectious disease.
The provisions will create the posts of medical reviewer and senior medical reviewer, who will be independent medical practitioners. Their key function will be to review death certificates. The bill provides powers for the reviewers to scrutinise an agreed number of death certificates each year. Those arrangements have been discussed in detail with the committee. Medical reviewers will undertake 1,000 comprehensive, random, real-time level 2 reviews and they will carry out additional targeted reviews, when they believe that there may still be cause for concern, after discussion with the certifying doctor. Crucially, the bill will also for the first time empower individuals to request a review, where they have concerns. Taken together, the package of reviews will amount to around 2,000 cases a year. Furthermore, medical reviewers will randomly scrutinise 25 per cent of all deaths—around 13,500 in all—by way of shorter level 1 reviews.
Medical reviewers will also assist families and authorise funding for post mortems in certain circumstances if the death has occurred abroad, the cause of death is unknown and the funeral is to take place in Scotland.
I now turn to the key issues raised in the stage 1 report. The report highlights a number of matters on which I have been asked to report back to the Health and Sport Committee. It also contains some specific recommendations for amendments, which I have considered. I will, of course, consider those points carefully and sympathetically and report back in detail to the committee shortly.
I am grateful for the committee’s recommendation that the general principles of the bill be agreed. I am also grateful for its general welcome for our proposals to reform the death certification system and to align procedures between burial and cremation. I also welcome its response to the additional proposals that I outlined during stage 1.
The appropriate level of scrutiny has clearly been a key consideration for all of us. We have worked hard with the committee to try to reach a satisfactory conclusion. I will clarify what the proposals entail and reflect on the reasons for reviewing the current system.
Under the current system, in which up to 3 doctors countersign cremation forms and receive a substantial fee from families, there is no guarantee of detecting malpractice. We know from discussions with many stakeholders and from the conclusions of the independent review group—which examined the subject in recent years—that existing checks may, in some cases, be perfunctory. In addition, quality can be poor and there is no systematic approach to improving quality nationally.
We should not forget that the failings of the current system led the previous Administration to establish the independent review group and to the group’s recommendations for change. Our proposals, as they will be amended after stage 1, will deliver a deterrent effect, be proportionate and deliver on quality.
On deterrence, level 1 reviews will maintain the checks by a second and now fully independent doctor for 25 per cent of all death certificates, with an option for each of those reviews to be increased to a more detailed level 2 review if required. Level 2 reviews will provide detailed checks of 1,000 certificates. Importantly, those checks will be entirely random and doctors will not be in a position to predict when their certificates will be scrutinised.
Additional targeted scrutiny will also be carried out where medical reviewers have identified issues locally, based on analysis by the new posts of statisticians who will examine all death data. Further reviews will also be initiated by families or other interested persons.
In fact, our proposed reviews, combined with the number of cases that are reported to the procurator fiscal each year, will mean that around 50 per cent of deaths in Scotland will be subject to more robust scrutiny than under the current system.
The bill’s provisions on quality will establish a quality improvement programme to change behaviour and practice around death certification. The programme will place the medical reviewers’ reviews within an audit cycle of continuous improvement.
Informed by the evidence that has been gained from a number of sources—including NHS deaths data, General Register Office for Scotland statistics, national statistics and patterns of death produced by the national mortalities statistician, random reviews and interested party reviews—the reviewers will carry out interventions ranging from targeted reviews, to critical clinical governance links with NHS boards, to training. Those interventions are intended to follow up concerns and bring about changes in behaviour and practice—some immediate, others over longer periods of time—and will be monitored so that they can be adjusted over time.
The 1,000 random level 2 reviews will provide a Scotland-level benchmark and year-on-year monitoring information that will allow us to gauge progress in driving up quality standards for death certification. The number of reviews that will be conducted remains flexible and can be changed upwards or, possibly, downwards in the light of the evidence that we gather from early implementation of the new system, including the proposed test sites.
Our proposals on proportionality will maintain an appropriate balance between cost and scrutiny. Let us not forget that any increase in scrutiny will have an impact on costs. The proposed system is affordable to the public and I have agreed with the committee that the Scottish Government will bear the cost of the additional reviews that we discussed at stage 1. That amounts to around £600,000 in addition to the set-up costs that we already intend to fund.
The anticipated fee charged to the public is £30. For those who currently pay cremation fees, which is around 60 per cent of the public, that represents a substantial saving of about £120. I appreciate the committee’s positive comments about the setting of the fee and the abolition of the higher cremation fee in favour of a lower universal fee for all deaths. We will continue to work constructively with stakeholders on developing an effective fee collection mechanism.
The proposed legislation has been designed to require an annual report to Parliament on the activities and performance of the medical reviewers. That will allow for a transparent examination of the operation and impact of the new system by all interested parties, including colleagues in the Parliament, and for adjustments to be made to the level of scrutiny, as required. I have also committed to report back to the Health and Sport Committee following the operation of the test sites before full roll-out. That will take account of stakeholder input and will feed into the monitoring and evaluation plans.
The committee considers that faith groups’ needs—particularly the needs of the Jewish and Muslim faith groups—for a quick funeral should be specifically reflected in the bill. I assure members that we have carefully considered the issue and have met faith groups’ representatives. We have considered the committee’s point thoroughly. The expedited procedure that is included in the bill is intended to benefit a range of individuals who need to arrange a funeral quickly. That includes faith groups, although it will cover other circumstances.
I welcome the committee’s attention to the impact of the proposals on certain remote and island communities. I confirm that it is absolutely not my intention to disadvantage remote communities. We will examine that aspect specifically during the test-site phase before implementation. We will also consult funeral industry representatives from remote areas regarding the specific issues that are raised.
The committee also raised the question of where responsibility for checking certificates that are associated with deaths overseas should lie. Having reflected on that matter and listened to stakeholder concerns about the proposals in the bill to give that function to superintendents at local burial grounds and crematoria, I will amend the bill at stage 2 to require the medical reviewers office to carry out that function instead. I hope that that will address the concerns of stakeholders and the committee.
I welcome the committee’s comments on training and education. The bill seeks to improve existing training requirements and we will be examining the issue of supervision and training in more detail.
On electronic certification, I recognise the potential benefits that it could bring and I will further explore the feasibility of introducing such a system. Legislation already exists to allow for the introduction of electronic medical certificates of the cause of death, should implementation be desired.
The committee expressed a concern that the number of medical reviewers might not be adequate. We believe that our figures are robust, and they have been revised to take account of the additional proposed reviews. However, the number of reviewers is not specified in the bill and can therefore be adjusted. Furthermore, in the year before implementation, we will run test sites, a key evaluation aim of which will be to provide more detailed information on the duration of reviews. That will let us know how many staff are required.
I move,
That the Parliament agrees to the general principles of the Certification of Death (Scotland) Bill.
15:08
I speak as convener of the Health and Sport Committee on yet another cheery topic for the committee. Going from patients’ rights and palliative care to certification of death with, for some, a detour through end of life assistance was a logical but grim direction of travel—that is the popular phrase, I think. The process was lightened by gallows humour off camera, none of which I can repeat on the record for reasons that members will understand. Suffice it to say that the deputy convener’s sonorous baritone voice seemed most appropriate to the business at hand.
Speaking of business, I turn to our stage 1 report. It is a bit difficult when speaking as convener if a minister has addressed in advance many of the things that the committee put in its stage 1 report. Perhaps we should turn round the procedure so that the committee gets to speak to its report first and the minister then addresses our concerns. However, that is for another day.
The bill was introduced on 7 October 2010 and was referred to the Health and Sport Committee. We launched a six-week call for written evidence, during which we received 39 written submissions. We began taking oral evidence on 24 November, when we heard from the Scottish Government’s bill team officials. We went on to take evidence from witnesses representing the University of Dundee, the Information Services Division of NHS National Services Scotland, the Association of Anatomical Pathology Technology, the Scottish Pathology Network, the Federation of Burial and Cremation Authorities, the National Association of Funeral Directors, and from the chief registrar of the City of Edinburgh Council. We concluded our oral evidence taking on 15 December, when we heard from the Scottish Council of Jewish Communities, the Muslim Council of Scotland and, last but not least, the Minister for Public Health and Sport.
On behalf of the committee, I put on record our thanks to everyone who provided evidence, especially the people who braved the inclement weather and lengthy and testing journeys in December—through blizzards or black ice and sometimes both—to give oral evidence to the committee. I also thank the minister and her officials for the evidence that they provided.
As the minister said, the bill’s overall purpose is to introduce a new system for the scrutiny of death certificates in Scotland. The primary objective is to increase the quality of, and confidence in, the system of death certification.
The bill will introduce a new system in Scotland for scrutiny of medical certificates of cause of death, which will be useful in public health planning. It will create the posts of medical reviewer and senior medical reviewer, whose functions will be to review the accuracy of death certificates. It will provide for the form of MCCDs to be amended to show additional relevant medical information, for example to indicate whether it is safe to dispose of the body by cremation. It will make it an offence in Scotland to dispose of a body or body parts without authorisation.
The bill also provides that if a person has died outwith Scotland and the body is to be cremated in Scotland, medical reviewers will determine whether it is safe to cremate the body. In a case in which a person dies outside Scotland and the body is to be buried or cremated in Scotland but no cause of death is available, the bill provides that a medical reviewer may assist with arranging a post-mortem to establish the cause of death.
The committee published its stage 1 report on Friday 21 January. Although we supported the general principles of the bill, we sought more clarity from the Government on several areas. To some extent the minister has pre-empted what I will say in that regard.
The bill will introduce arrangements for a sample examination of death certificates by medical reviewers on a random basis. We welcomed the steps that the minister announced to increase the random sample size—indeed, we welcome much that she said today, which we will consider. We were concerned that there should be rigorous statistical analysis of the sample, to create confidence in the system.
As a result of the evidence that we received, we were concerned that the proposed new system for scrutiny of death certificates could prove to be less rigorous than the system that is currently in place. In the light of recent controversial cases, the most notable of which is the Harold Shipman case, the committee thinks that it is essential that the public have confidence in any system for examining and scrutinising causes of death. That is vital, in the context of the identification of possible cases of medical negligence or criminal activity, and in the context of accurate recording of public health data.
The committee thought that the proposed new scrutiny system could be improved through the use of modern technology to collect, collate and analyse information on causes of death. We were surprised—that is the diplomatic word—to learn that the Government is not taking this opportunity to specify a modern electronic system for death certification in Scotland. Instead, the bill calls for the continuation of a paper-based system.
An electronic system would have obvious advantages. There could be prompts and guidance for completion of death certificates, and the need for repeated data entry would be reduced. There would also be benefits from having a readily accessible audit trail. The committee did not make this point, but the activities of a Shipman, who I understand regularly moved practice and area, thereby covering his tracks, would be more readily detectable, because the electronic database would surely uncover a suspicious pattern. In the light of the benefits of an electronic system, the committee strongly urged the Scottish Government to provide for the use of such a system for death certification before national roll-out. We accept that it would not be possible to use such a system in the pilot.
The committee was anxious to ensure that the new system for death certification would not give rise to undue delay for grieving families who must make funeral arrangements. Such delays could present issues for various faith communities and for remote communities, and would potentially cause difficulties in relation to organ donation. The bill should be amended to clarify such matters. I think that the minister is addressing the issue.
Another area of concern that emerged from the committee’s scrutiny related to the role of inexperienced junior doctors in signing death certificates. To ensure the accurate recording of causes of death, the committee thought that a doctor should be required to attain a specified level of experience before he or she is considered eligible to perform that function. In the absence of any oversight of that process by an experienced consultant, junior doctors should not be allowed to sign a death certificate without having completed appropriate training. I am sure that the committee will consider what the minister has said on that today.
The committee welcomes the provision in the bill to strengthen the current procedures for dealing with circumstances in which a death occurs outside Scotland. However, under the current proposals in the bill, examination of the relevant paperwork and certificates provided by the authorities in the country where the death occurred would fall to staff of the crematorium or cemetery here in Scotland. As only a small number of such cases occur each year—the Government estimates the figure to be around 250—the committee felt that the assessment of the validity of such documentation should be carried out centrally by the Scottish Government. I note the minister’s comments in that regard, which we can consider.
On the financial aspects of the bill, the committee welcomes the abolition of the higher fee that relates to the disposal of a body by cremation, which currently applies in about 64 per cent of cases, in favour of a lower and universal fee that will cover all cremations and burials in Scotland. The committee also supports the Government’s original policy intention that any new system of death certification should be self-funding; I note that the minister reinforced that intention today.
We noted the rationale for giving the responsibility for collecting the fee to registrars, but we acknowledged the concerns that their representatives raised on that issue.
I welcome the opportunity to debate these important issues, and I look forward to hearing contributions from other committee members in developing the general concerns that I have highlighted.
15:16
The bill is important, as much of the legislation on burial and cremation is more than 100 years old. Although it was the Shipman inquiry that led to the substantial revision that the bill proposes and to the revision in England, it was increasingly evident that this area of Scots law was no longer fit for purpose.
Today, there are many fewer post mortems, which are the most accurate form of diagnosis, although stillbirth remains one of the areas in which that process is frequently recommended to ensure a clear understanding of cause. Moreover, we are in the early stages of a new era of non-invasive post mortems, which may make a major contribution to accurate diagnosis in the future.
We know that the accuracy of existing medical certificates of cause of death is not great, although the minister’s suggestion that old age was never acceptable as a diagnosis hugely irritated my colleague Dr McKee; I am glad that that slur on his—and indeed my—past certification was later corrected by officials.
Evidence on the current system pointed to significant levels of inaccuracy. Professor Fleming said in columns 3752 and 3754 of the Health and Sport Committee Official Report that in the 62 per cent of disposals that took place by cremation, the required reviews to be undertaken by two further independent doctors resulted in some 20 or 30 post mortems through the procurator fiscal, but more importantly resulted in 15 per cent of certificates being “fine-tuned”. That amounted to 4,500 cases.
Dr Colin Fischbacher from the Information Services Division indicated that he has to contact doctors about 2,000 MCCDs annually, which is around 4 per cent of total deaths. I found it disturbing to learn for the first time that those doctors were not obliged to respond to the request for further information, so that needs to be addressed. Despite all that, however, it is agreed that the current system—and indeed any system—could not have prevented Shipman from killing hundreds of patients over the past quarter of a century.
Regrettably, it has taken a long time to go through this process in Scotland. It began in 2005, with a group reporting three years later in 2008 and a consultation, which led to the bill, in 2010. When the committee began to consider the matter, it was quickly established that the priorities included the need to retain public confidence, about which we must be very clear. Another issue, which the Government has highlighted, is the need for quality and accuracy.
We need a modern system that has some chance of providing Scotland today with legislation that will stand the test of time—if not 100 years, then a reasonable time—but that was not contained in the original bill. I welcome the interaction that is already occurring between the Government and the committee, which has resulted in some improvements. Nevertheless, the removal of the three-doctor review on cremation and its replacement with a two-level review system as originally proposed is wholly inadequate. Around 500 random reviews, and a further 500 reviews that were either targeted or resulted from interested person requests, would have resulted in only 1,000 level 2 reviews, which is 2 per cent of deaths. Some of those reviews could be retrospective, taking place up to three years after death, which is not exactly an immediate response.
The increase to 2,000 level 2 reviews, along with an increase to 25 per cent for level 1 reviews, is excellent. As the committee report says, that is a step in the right direction. We have no idea, however, where that figure comes from, and it contrasts with the English proposal to have reviews in 100 per cent of cases—which I acknowledge will be far more expensive. Our system has to be proportionate, but it must be driven by public confidence, and it cannot be driven solely by short-term cost considerations. It must be recognised that all the experts agreed, as I have mentioned previously, that no system could totally eliminate criminal activity.
The absence of a requirement to examine the body is still a matter of some concern, and we might need to make that a requirement for cremation if it is not already provided for.
If the Government’s other main intention is to improve the quality of the MCCD, it is extraordinary that it has not considered moving to an electronic system from the very start of the process. That we are now going to rush into having paper test sites and will then probably have to consider using further test sites with an electronic system is frankly a sign of some timidity and lack of vision.
Let us consider some small elements that would improve our health care system, but that have not been mentioned—the minister can correct me on that. The inclusion in the MCCD of ethnicity was considered at the joint cross-party group meeting by the racial equality in Scotland and mental health groups last night, and that would help us in our understanding of some of the premature death outcomes among ethnic minority groups.
The automatic requirement to include the community health index number—the CHI number—would allow for data linkage in a way that is crucial for determining a number of epidemiological factors. At least in the hospital and care-home settings, the requirement to say whether there is a presence or absence of health care-acquired infection would improve the quality of outcome data substantially.
As the committee convener mentioned, there is an issue around the experience of the signing doctor. The current system means that 34,000 of the MCCDs that are signed in hospital are probably being signed by an FY2—a foundation year 2 doctor—or another inexperienced junior doctor. It is appropriate that that should be part of their training, but as things stand 22,000 of those cases would be reviewed by a doctor of at least five years’ experience, because of the cremation process. In my view the MCCD must be signed only by a doctor who has completed a module of training specifically on death certification. If an FY2 signs it, it should be countersigned by a consultant.
Moreover, there should be a feedback system to ensure that, as part of their training, all specialists and general practitioners have some of their certificates reviewed automatically at level 1. That might require a greater focusing of level 1 prescribing. All of that will be much easier if the MCCD is electronic.
I do not have time in this opening speech to review a number of other important issues, including post mortems ordered by the family, the disposal of body parts and foetuses, the certification of the absence of devices that could cause dangerous explosions at cremation, expedited MCCDs for faith groups, the implementation of the eventual act for remote and rural communities, overseas deaths and the whole financial approach, but I know that other members will cover those areas.
Labour supports the bill at stage 1.
15:23
I appreciate the timetable for dissolution in March, but in my view it is not good practice when committee members and those who are speaking in the debate do not get an opportunity to see or hear the Government’s response to the committee’s stage 1 report until the minister speaks at the start of the debate. That system might suit the Government, it might suit our timetable and it might suit officials, but it certainly does not enhance the democratic process or the debate.
When the Certification of Death (Scotland) Bill came to the Health and Sport Committee for scrutiny I thought that it would be uncontentious, that it would probably be fairly technical and that it was likely to pass all stages without hitches or criticisms. I could not have been more wrong.
The policy memorandum cites the
“need to examine the processes governing death certification following the inquiry into the case of Dr Harold Shipman.”
At the very least, I expected proposals for a more robust system of death certification than is currently in place. It is only right to put on record that it was funeral directors who raised concerns about the deaths of elderly people under Dr Shipman’s care.
Professor Stewart Fleming from Dundee stated with regard to the bill:
“I am not convinced that it will necessarily improve accuracy on the medical causes of death. I am even less convinced that unnatural deaths will be identified as a result of it.”—[Official Report, Health and Sport Committee, 1 December 2010; c 3750.]
He said that, under the proposals, a doctor would be checked on every five to 10 years.
Ishbel Gall expressed her concerns about a body not being examined by even one doctor before the medical certificate of cause of death was issued.
The National Association of Funeral Directors said that the bill, as introduced, would mean that the system would be not nearly as robust as the one that we have in place at present, and that it would be nowhere near as robust as the system in England and Wales.
Given that the certification of death sets out to confirm the fact of death, to confirm the cause of death for input into health care planning, and to detect and investigate unnatural death, the concerns that were raised in evidence are very worrying indeed. When I asked Professor Fleming whether there would be more accurate information on the death certificate as a result of the bill, his response was “I do not believe so”. There will be no improved input into health care planning. That is well outlined in the Health Committee’s stage 1 report.
The committee welcomed the increase in the sample size for review to 4 per cent, but that falls well short of the 10 per cent that is said to be necessary if there is to be a realistic chance of errors being identified. I acknowledge the points that the minister made today, but there is a lack of experience and training. That and other issues were well covered by Dr Simpson; I have no doubt that we will return to them.
As a Highlands and Islands MSP, I am concerned that there seems to be very little comprehension of the difficulties that are faced by remote and island communities, which could lead to potential delays in certification and review.
Other issues that were raised in the committee’s stage 1 report relate to organ donation and bodies that have been donated for medical research.
The minister addressed some of the concerns that were raised by the Association of Anatomical Pathology Technology, but the association still states its concern that there will be less scrutiny than there is at present when the deceased is to be cremated. With 62 per cent of deceased persons being cremated, that is a notable concern. Given the large number of cremations, there does not seem to be a system of identifying and removing implanted devices such as cardiac pacemakers, which must be removed prior to cremation. Currently many of those devices are discovered after the MCCD is issued by the second medical practitioner after reading the medical records or examining the deceased.
The Scottish Pathology Network still contends that the new death certificate should bear two signatures for level 1 reviews, and it notes that the level 2 reviews are still considered to be too low.
I will reflect on the minister’s statements today and I am sure that many of the witnesses will keep a watchful eye on the bill.
In this age of technology, it is quite ridiculous that the idea of using electronic death certificates was first raised by Richard Simpson. That is a reflection of the poor standard of the bill. I hope that the Government has heard all the significant criticisms and that it will respond to them with amendments at stage 2 and stage 3. We support the general principles of the bill, while acknowledging that the Government and the bill team still have much work to do.
15:28
The prospect of being able to take part in the scrutiny of a bill such as the Certification of Death (Scotland) Bill will almost undoubtedly guarantee that the number of candidates who offer themselves for election to the Parliament in May will reach record levels.
As Richard Simpson said, this is a serious debate. The certification of death is an important matter. The legislation on it is extraordinarily old and, in many ways, not fit for purpose.
The changes were driven by both a recognition of that and an element of the Shipman inquiry. I am bound to say that we accept the Government’s proposition that no system will deal with the particular perfidy of Dr Simpson—sorry, Shipman. I repeat, Shipman. [Laughter.]
He said it.
I hear Dr McKee trying to correct me again.
The important point is that, in all walks of life where there are attempts by some perverse purpose to subvert a system, there needs to be a system of checks and balances. Therefore, I hope that the Government is not reading into the committee’s and parties’ criticism of the level of check and balance some view that we aspire to eliminating the chances of a Shipman-type situation. That is not what we are saying; we are saying that we should concentrate on the checks and balances.
The minister mentioned in her opening remarks her pleasure that there is a sense that we want to accept the harmonisation between the systems for burial and cremation. In accepting that, I direct her attention to much of the evidence in which many of the witnesses stated that, if the Government wants to harmonise the two systems, it should be moving towards the degree of certification, check and balance inherent in the cremation system, not the other way. If one supports the harmonisation, one does so not on the basis of moving towards the burial system but to be aware of the other.
The difficulty is that the Government proposes other fundamental changes in the training, preparation and standards that it expects the medical profession to reach. That is a question of assessing risk. I want to make an important point to the minister. The evidence led to the committee by Dr Thomas, which is quoted in paragraph 28 of the committee’s stage 1 report, was that there might be a requirement for 10 per cent of certificates to be checked. That is contrasted with the fact that, even on the basis of the Government’s revised plans, a rate of around 4 per cent would be reached.
I do not want the minister to believe that I am advocating that she has to go to a rate of 10 per cent, because the 10 per cent figure is based on an existing system with the existing level of training and everything else. I believe that the committee, the political parties and, more important, the public would like a better statistical analysis of the confidence that the Government wishes to claim to have in the system.
In other words, to put that in simple terms, Dr Thomas was of the view that on the existing system and with existing methodology the Government would have to get the rate of checks to 10 per cent. I am not saying that the Government has to get to 10 per cent; I am saying that, given the changes that it is recommending, including in training, and the different system, it ought to be able to indicate to Parliament the degree of comfort that it is deriving and the statistical basis for that. That would be enormously helpful in resolving the real difficulties and reservations that have been expressed by committee members and by every speaker in the debate from the political parties so far.
That is the major issue. Richard Simpson raised a number of other issues. It was good of Mary Scanlon to give Richard Simpson credit for proposing an electronic system, but I am bound to say that in its report in October 2007 the burial and cremation review group stated at paragraph 24:
“It was considered by all that change was indicated to the current death certification process in Scotland, not only as an outcome of the Shipman Inquiry, but to reflect modern society, facilitate electronic transfer and storage and use of data”.
Even the review group suggested that electronic storage of data was in its thinking. That point is a major concern.
I am pleased to hear the minister’s response on the change in who is responsible in relation to deaths overseas and the other changes that she has mentioned, which we can reflect upon. Those matters are all manageable and can be addressed. However, the one thing that the general public are looking for is something that they can point to as a level and degree of public confidence in the system. I regret to say that, as things stand, that question has not been satisfactorily answered. I believe that it can be answered, but it needs to be answered before we go much further.
The Liberal Democrats will, however, support the bill at stage 1.
15:35
I welcome this long-overdue reform of the arrangements concerning the certification of death in Scotland. I comment on the bill not only as a member of the committee that has scrutinised it, but as a person who has signed scores, if not hundreds, of death certificates as well as cremation forms B and C.
The original driver for change in this field was the events surrounding the Harold Shipman case, but I share the Government’s belief that we cannot guarantee to prevent the criminal actions of an intelligent but psychopathic doctor, although electronic record keeping and careful surveillance could possibly detect such actions at an earlier stage. Several goals have subsequently become apparent. The Government sensibly wishes to initiate a system that is affordable and simple, that improves the quality and accuracy of medical certification and that provides improved public health information and clinical governance. Let us consider how those objectives have been met, and I will express some genuine but remediable concerns.
The proposed system is certainly much less costly for the 62 per cent of Scots who are cremated. In place of the cremation certificate combined fee of £158, the cost has been reduced to £30. Members will know that I have never been regarded as an apologist for the British Medical Association—indeed, that body has been the only organisation to threaten to sue me in my time in Parliament. However, having been on the receiving end of lawyers’ fees of £220 an hour plus VAT, I believe that the sum of £73.50 for an experienced professional to take evidence from the doctor who is signing the medical certificate, interrogate those who have been looking after the deceased in his or her final days and travel to a chapel of rest or mortuary to view the body is a relative bargain. The fee of £30 must be even more acceptable. That sum is less acceptable, of course, if the deceased is to be buried, as there is no charge for that at present; however, it fades to almost nothing in comparison with the total cost of a funeral these days.
Let us consider the quality and accuracy of a medical certificate. Here, two issues are at stake. The first issue arises if a non-recognised term such as asthenia is used by the certifying doctor. Such a term cannot be codified and is useless for the purpose of another objective—to improve public health information—although the proposed medical reviewers can follow up such indiscretions and have them corrected. The second issue is much more complex. All the wording on a certificate may be totally correct for coding purposes but still get the cause of death completely wrong. That may be unavoidable, especially when the number of post-mortems that can be carried out is falling year by year. When an elderly, frail person gets weaker and dies, an accurate diagnosis of cause of death is often impossible, yet something has to be put on the certificate. Alternatively, the error may be due to clinical incompetence or inattention to the deceased’s history on the part of the certifying doctor.
Some of that can be picked up by another doctor. The committee heard evidence from Professor Fleming of Dundee University that, every year, about 30 cases of unnatural deaths in Scotland are detected only at the stage when the second part of the cremation certificate is completed. He cited the case of an elderly lady whose cause of death was initially stated to be bronchial pneumonia, only for the second doctor to unearth the fact that she was slowly dying in hospital as the result of a road accident—a difference of some public health significance. So, having at least a second doctor to complete a certificate has value.
We should contrast what happens now with what is proposed. Today, the 62 per cent of us who are cremated do not go to the furnace until three doctors have signed the necessary certification and the process always involves an impartial doctor who quizzes usually those who were present at around the time of death. Only one doctor signs for a burial, but with a burial exhumation is a possibility if there are subsequent doubts as to the cause of death.
What is proposed in future is that up to 4 per cent of deaths will be intensively investigated, 25 per cent will have the certifying doctor quizzed over the telephone by a medical reviewer and, by the minister’s estimate, 50 per cent of all deaths will be certified only by a single doctor—perhaps even one who is relatively junior and who might not even have seen the body after death. However, there is the safeguard that a doctor or doctors suspected of failing may have all his or her deaths subjected to selective scrutiny. We must decide whether that system, while undoubtedly less expensive overall, is more likely to achieve the stated objective of more accurate medical certificates of higher quality.
Of course, an important function of medical reviewers will be to provide training and guidance to those completing medical certificates. A problem to be overcome here is that there are about 20,000 doctors in Scotland with this potential responsibility. Paragraph 3 of schedule 1 states that any function of a medical reviewer may not be delegated by healthcare improvement Scotland, yet it is obvious that most of this function must be delegated to the postgraduate deaneries. Will even they have the time and resources to complete satisfactorily this huge task?
Those are some of the issues that come to mind when considering the bill, which I strongly support in principle. I will listen to the minister’s response with interest.
15:41
This was not the most gripping of bills, but it is safe to say that it is one that will affect us all eventually.
The bill seeks to change the process under which death certification is carried out. As the minister said, the work towards the bill was instigated as a result of the Shipman inquiry and the need to try to provide more robust checks. However, witnesses told us that, if anything, the bill will give less protection.
Evidence also stated that the sample to be reviewed was not of any statistical use and would act only as a deterrent rather than provide adequate scrutiny—even though the Government has stated that it will raise the sample size to 4 per cent. In evidence we were told that a sample of 10 per cent would be required to pick up any anomalies.
The policy memorandum stated that the average time to organise a funeral is around seven days and that, therefore, there is ample time to carry out the review without delaying the burial process. However, that does not take account of social customs or religious beliefs that dictate a much quicker burial. The Jewish and Muslim communities require burial to be on the day of death if at all possible. Their formal grieving process cannot start until the burial has taken place. Therefore, any delay will lead to further distress.
The Government responded to those points by saying that medical reviewers would have the flexibility to fast-track the process to deal with those issues. In response to that, we have had further written evidence from the Scottish Council of Jewish Communities, which suggests some fairly straightforward remedies that would speed up the process. It has asked that the bill be amended to require a presumption that registration take place in parallel with a review. It would be for the medical reviewer to state if that was not the case.
The council also asked that it be clear in the bill that the expedited procedure permits disposal as well as registration. That way, funeral directors would begin their work immediately. Otherwise, they would wait until the body was released for disposal before making arrangements, which would build in a further delay.
The council states that there should be an out-of-hours service and that adequate cover should be available when the reviewer is attending to their training duties. It went on to quote a case where there was a delay in burial due to a registrar being unable to register a death timeously because they were taken up with other duties—I think that they were conducting weddings on that day—which meant that the funeral was delayed, which caused the family further distress. Our laws need to be sensitive to those needs.
In our rural and island communities, there are customs that require rapid burial on a timescale of two to three days after death. The deceased’s body is normally brought home, where it remains until the funeral. In some communities, family and friends are able to view the body at this time, which is essential to them in their grieving process. If there was a delay in burial, the body would need to be stored in refrigerated conditions. That poses two issues. First, it would mean that the bereaved could not take the remains home, which would give rise to distress. Secondly, as Ishbel Gall from the Association of Anatomical Pathology Technology—that is hard to get my tongue round at this time of night—pointed out, there are very few mortuaries in remote and rural communities, and where they exist they are not likely to be refrigerated. If storage is not available locally, bodies need to be kept some distance away. With regards to island communities, that could culminate in delays to funerals, if weather conditions delay the movement of the body, and it would add to funeral costs and arrangements.
Delay can also be caused by access to a medical reviewer. Their numbers are limited and it is unclear where they will be situated. If every island group were to have its own reviewer, few would be based in the centres of population. If they are not based on islands and in rural communities, what happens when a body is randomly selected for review? In normal circumstances, the reviewer would have to make travel arrangements to get to islands, which can be challenging for a range of reasons, but would probably take longer than two to three days, which is the normal timescale for burial in those communities. We should also remember that flights and ferries can often be full in the summer, because of holidaymakers, or cancelled or delayed in the winter, because of adverse weather conditions.
A process must be put in place that deals with all those issues but which is still able to deliver the same level of protection to the communities that are affected. I welcome the minister’s commitment to considering the matter and working with those communities to find solutions to those issues.
There was some debate about who would collect fees for the process. The general consensus was that registrars should collect the fees, because that is the one duty that is carried out in relation to death. However, registrars were not keen on that. They felt that that could delay registration of death, because deaths are not always registered by family members or people with an interest in the estate. Quite often, a neighbour, a funeral director or a police officer registers a death, and they are not in a position to pay the fee. The Government needs to consider what can be done in such a situation to ensure that people do not put off registering deaths.
On the whole, this is a technical bill, which means that the community is dependent on experts who give evidence. There are tensions in the bill between keeping down costs and providing a robust service. It is clear that the bill will impact on people when they are especially vulnerable, so we need to ensure that what is in place is sensitive to community traditions as well as to religious beliefs. I believe that there is a will to get it right, and I hope that the Government will take those suggestions on board.
15:47
I find myself at both an advantage and a disadvantage in this debate, as I am a doctor’s son and therefore have much of the language of the medical profession but almost none of the understanding. As my father once said, that is a perfect fit for politics, because one is a plausible ignoramus.
The registration system that we have today came into operation in 1855. For many years after, it was not uncommon, in situations in which a doctor was not reasonably to hand, for the cause of death to be shown on the certificate as “Doctor not present” or something similar. As a person who has pursued genealogical studies for 50 years, I have come across many instances of that, almost invariably on the islands. It is interesting that, 150 years on, we are still confronting the issues that are associated with population sparsity and remoteness.
We have come a long way from the situation in 1855. In particular, cremation is now a significant option that is chosen by families. Even when my father became a GP in the 1940s, it was pretty much the exception. Of course, there were practical reasons for that. For example, where my father practised, in Cupar, there was no crematorium to hand. In my constituency, where the crematoria are some distance away, it is a less significant part of funeral arrangements than it might be elsewhere.
I hope to be cremated about a year after my death because, like others in my family, I have recorded my wish to be sent for medical research, and the arrangements are that the various bits come together a year later and are cremated. If I get my wish—it is increasingly difficult for the wish to be delivered, I have to say—I will be most thoroughly examined post mortem. Of course, for me, as for one or two others here who are perhaps, arguably, in the last quarter of our lives, this is not a matter of philosophical debate but a matter of practical concern.
The proposed measures will make more systematic and robust the system of checks and balances that oversees our system of registration. Of course, the bill is not simply about implementing a new process. It is about what that process has to deliver, and about detecting statistically significant variations from the norm and, crucially, the factors of personnel or treatment with which they are associated. In that sense, like others, I believe that we will have to move sooner rather than later to a process that, however it is achieved, allows the analysis of robustly captured data on computer systems. As a genealogist, however, I hope that we will continue to see the signature of the person who registers the death in the electronic record, because it is fascinating to see one’s ancestors’ signatures. Indeed, in one case, the signature showed me, to my surprise, that my father registered the death of someone I had not previously realised he was in contact with at that stage in his life, and that was before he was a doctor.
In one of its variants—I recognise that there are many—the Hippocratic oath includes the phrase:
“I will neither prescribe nor administer a lethal dose of medicine to any patient even if asked nor counsel any such thing”.
Not all doctors take the Hippocratic oath, which is perhaps diminishing in importance, but, after a period of 2000-plus years, it does still capture something important about the relationship between doctors and their patients. Above all, the ignoramus that is the general public in relation to medical matters places an immense trust in doctors and, if the bill can further build confidence in doctors and other health professionals, it will serve a good purpose indeed. What we do in the bill must address that issue.
When I was a trainee nurse some 47 years ago now—it is quite alarming how long ago it was—ours was essentially the ward that people came to if they were expected to die. When someone died, we did not necessarily wait for a doctor before laying out and moving the remains to the mortuary. I believe that practices such as that have been much refined and there is now clear involvement of doctors or other qualified health professionals. The fact that they are masters of the fact of death is important.
Let me talk about statistics and inspection. The issue of cover, be it 25 per cent, 50 per cent, 4 per cent or 100 per cent, is not a trivial one. Superficially, the higher the figure, the better it sounds, but a higher figure does not necessarily deliver better outcomes. What is equally important is what is examined and the depth of the examination. In many areas and different professions, if a large number of examinations are conducted for little return and there is little resulting intervention, the psychological phenomenon of ennui comes in, and when a case comes along that requires attention, people are more likely to miss it because there is less time to devote to each individual activity that is undertaken. I do not come up with any answer to that. I merely say that we have to be careful.
Returning to electronic recording, I point out that there is a system that is operated by the registrars of births, marriages and deaths, and that is the system into which the data go. I wonder—without having any answers myself—whether it would be an idea to roll the system out more widely with mild adaptations to allow conditional registration by health practitioners and to capture data relatively early. However, I know that it can often be quite difficult to adapt computer systems.
It is remarkably easy to make errors. When, in 1984, I registered my mother’s death, I forgot her father’s name and put her grandfather’s name on the death certificate by accident. I had not known those grandparents; they were not familiar to me. There is plenty of scope at all levels for getting things wrong.
Ian McKee said that we will all die. Arguably, we will all die from heart attacks. It is not at all clear that there is no room for judgment and debate about what should go on a death certificate. Indeed, in these days of mechanical apparatus that keep the body functioning, if not alive, it is not always entirely clear when death might happen.
I hope that we respect the rites and practices of a wide range of religions—in fact, I am sure that we will—and I very much support the bill.
15:56
I identify with many of the opening remarks of the committee convener, Christine Grahame, on the various legislative proposals and bills that the committee has been dealing with. As I was walking to the chamber this afternoon, Ross Finnie crept up on me, humming a funereal dirge and saying that we should really walk very slowly to this debate. I smiled as the penny dropped about what he meant. Indeed, I also smiled at Stewart Stevenson’s research proposals. I have to confess that I have never thought about that before, but it seems to be very worth while and something that people should at least consider and explore.
I am very glad to hear that the minister will continue to listen very carefully as the bill proceeds and I am willing to support my colleagues’ view that the Parliament should approve its general principles. I also welcome the minister’s response to the faith communities, in particular the Jewish community, with regard to expediting burials. We received submissions to that effect not only during the consultation process but afterwards and, in her evidence, Leah Granat very much underlined the importance of addressing those concerns. I also welcome the minister’s response on the issue of electronic certification processes, which was raised by Richard Simpson and other colleagues.
Since we concluded our report, we have continued to receive a variety of views about the bill. Indeed, Mary Scanlon, Richard Simpson and Rhoda Grant have mentioned the submission that was made only this week by the Association of Anatomical Pathology Technology. I will not repeat the points that have been made in that respect—suffice it to say that I endorse my colleagues’ views—but I think that the issue of clarifying the position of burials abroad, which has also been raised in these papers, merits more careful thought.
Although nearly all the submissions that were received supported, for the reasons that others have mentioned, attempts to improve the death certification process and to reassure the public, many respondents did not believe that either of those aims would be achieved under the current proposals. Indeed, a report that we received details changes to the current situation, costs and problems with the timing of reviews and the training of doctors. As Christine Grahame pointed out, the proposals are not as robust as the current system or the new system in England and Wales. For example, 75 per cent of burials and cremations will take place after only one doctor has seen the deceased or the death certificate.
We should use this opportunity to change the certification of death for the better and not implement inadequate and unreliable changes just to save money. We need reassurances regarding the training requirements for doctors and reviews involving part-time doctors to ensure that there are no delays to funerals and, indeed, the bill’s proposals must be adequately resourced to avoid any such delays.
Currently, at least two doctors are required to examine a death certificate in cremation cases. Therefore, at least two doctors are involved in approximately 67 per cent of deaths. In the remaining cases, the body is buried, which leaves scope for further examination in the future if that is required. The Government has stated that the two-doctor check is perfunctory, but the BMA refuted that in giving evidence to the Health and Sport Committee. It said that those second checks resulted in a
“15 per cent improvement in accuracy and picking up on dozens of unnatural deaths”.—[Official Report, Health and Sport Committee, 1 December 2010; c 3754.]
The bill, as amended by the minister, will mean that approximately 75 per cent of funerals for burial or cremation will go ahead with only one doctor having seen the death certificate or body. The committee and others do not question the ability or professionalism of doctors, but we recognise that the proposed system is significantly less robust than the current system and does not provide any reassurance to the public. Training a doctor to fill out a form adequately will not provide any additional reassurance to the public.
Shona Robison stated that “affordability is an issue” and that
“The bill establishes the best system for doing all the things that we want to do.”—[Official Report, Health and Sport Committee, 15 December 2010; c 3878.]
We believe that we should use the opportunity to change the certification of death for the better and not implement inadequate and unreliable changes to save money.
The Government recently examined the numbers and decided that the number of reviews needs to increase. There will now be 25 per cent level 1 reviews and approximately 4 per cent level 2 reviews, but I believe that that is still not enough, and I highlight the need for more medical reviewers to undertake that additional number of reviews. In England and Wales, 100 per cent of death certificates will be seen by more than one doctor. That is an improvement on the current system, in which all cremation cases—or 67 per cent of those who are dead—are seen by more than one doctor. However, Scotland is moving to a system in which only 25 per cent of certificates will be seen by more than one doctor, and only 4 per cent will be examined in any depth.
The Government has defended that by arguing that the bill seeks to drive up completion of death certificate standards rather than using the assumption that checks on certificates are needed. The different approach will work only if the education and training element of the bill is adequately resourced and implemented. Indeed, there is a danger that, should the number of checks be increased—the bill contains the ability for a medical reviewer to scrutinise up to 100 per cent of cases in any geographical area or practice where they believe that that is appropriate—financial constraints could limit such a move or result in the important education and training side suffering, despite a medical reviewer’s belief that more reviews are necessary.
There are concerns about the additional workload for doctors and the short timescale for each review. We appreciate that that is required to avoid delays to funerals and that all reviews can be suspended during epidemics but, outwith such circumstances, doctors in primary and secondary care settings constantly work to very tight timescales and juggle patients in planned and emergency situations. A doctor will be required to decide whether to let a patient suffer or cause a delay to a funeral if, for example, an unrealistic timescale is set, an emergency arises or there are pressures due to staff absence. The result of choosing a patient over the review is a fine or imprisonment.
There is particular concern about part-time or shift-working doctors and how they will take part in reviews. Either a part-time doctor would be expected to be, in effect, on call when they are not working to respond to a review, or they could cause a delay to a review and, ultimately, to a funeral. We look forward to hearing further details on how the system would work with part-time doctors, given the large and ever-increasing number of such doctors in the profession.
I support the bill but, as members have heard, that support is qualified.
16:04
I am one of four members of the Health and Sport Committee whose direction of travel in the past six or seven months has gone from membership of the End of Life Assistance (Scotland) Bill Committee to consideration of the Palliative Care (Scotland) Bill to consideration of the Certification of Death (Scotland) Bill. There was a synergy between those three bills to a large extent, which made it an interesting time for those of us who went through the issues.
People often say that two things in life are certain—taxes and death. What becomes of us after our death? Who knows? The only certainty is that our passing away will have to be certified. The bill will improve on the existing legislation, which goes back to the 19th century.
I had considered the bill before it arrived at the Health and Sport Committee, but I do not think that many other members had given it much consideration before then. The bill was introduced after a considerable number of years in which representations had been made to the Government on the need to reform the law. One person who has advocated reform for some time is Graeme Easton, a funeral director in Bonnybridge in my constituency, who is the president of the British Institute of Funeral Directors. He has highlighted to me for a time the need to reform the death certification process. I welcome the bill as a step in the right direction, despite some concerns that have been expressed, to which I will return.
I welcome in particular the removal of the historical difference between the costs of a burial and the costs of a cremation. It is important to recognise that step. It is not entirely clear to me why such a marked distinction was made. I can presume only that it was based on issues with medical science when cremations began to take place and on the fact that a buried body can at least be exhumed, which cannot happen after a cremation, as Ian McKee said. However, things have moved on and we need legislation that reflects that. The bill seeks to achieve that.
The cost to a family for a cremation is significant. It is almost a straight £150, whereas a burial incurs no charge. Moving to a universal charge of about £30 for cremations and burials is reasonable, although it means that burials, for which people previously did not pay, will incur a £30 charge.
As Richard Simpson said, part of the genesis for the bill was the investigation into the Harold Shipman case. As the committee fully accepts and as even the witnesses who gave evidence to the committee accepted, there can be no fail-safe system. No piece of legislation could be brought before the Parliament to ensure that such a case never happened again. The aim is to put in place a reasonable and proportionate system to deal with the issue.
I will not rehearse many of the concerns that members have already raised, particularly on training and education for certifying doctors, which are extremely important. A legitimate concern is whether the new system will be as robust as the existing system is. We will have to keep an active eye on that.
I repeat that we are trying to find a reasonable and appropriate system. Comparisons have been drawn with the new system that has been introduced in England and Wales. The cost to families of that new system is significantly higher than that of either the system in Scotland now and the one that the bill proposes.
We must be mindful that, if we wanted to ramp up the potential checks in any new system, that could increase the costs of certification that families must deal with. Before we jump into saying, “Let’s just do a bit more,” we must recognise that we are shifting the financial burden on to families, because—as the committee agreed with the Government—the process should be largely self-financing.
I listened closely to Ian McKee’s contribution. He is a good friend and always someone who is prepared to challenge the vested interests in the medical world, his former profession. I very much respect him for that.
I have long been puzzled by why doctors are paid £73 for two certificates of cremation. The rate may be reasonable when compared to fees of around £200 an hour for a lawyer, but I do not think that doctors should have been paid that sort of money in the first place—never mind people making comparisons between them and lawyers. Some in the medical profession may not agree with that, but I suspect that the debate on the matter has more to do with the GP contract than anything else. At some point, I would like to see doctors not being paid for any of this type of thing. Unfortunately, GPs and others in the medical profession are paid for things that we should get as a matter of right from people who are in well-paid public sector jobs.
I was taken by the concerns that were expressed by people from the Muslim and Jewish communities, in particular Leah Granat, about the need to ensure that the bill recognises the religious observances of faith groups that wish to see the disposal of a body within a 24-hour period after death. I note that the bill provides for an expedited procedure, but there remain concerns that delays may be caused if a case is elevated to a level 2 review. From the minister’s comments so far, I recognise that she is prepared to improve the bill further. I hope that we can provide that assurance to those in faith groups who remain concerned.
Overall, like other members who have contributed to the debate, I am happy to support the bill at stage 1.
16:12
One of the unanimous committee conclusions is to be found at paragraph 121 of our report:
“The Committee also notes the need for expedited procedures where bodies were being donated for medical research and notes the Minister’s response that this would be dealt with in guidance.”
Now that Mr Stevenson has addressed us, we have to reconsider that unanimous conclusion. Apparently, there is no need for an expedited process for medical research, as Mr Stevenson is to be cremated a year after his death. I am sure that that has come as a great sadness to us all.
I do not have a lot to add to what I said in my opening speech. I simply leave the minister with my concern that, at the end of the day, it will be for the public to consider whether they have confidence in the system.
I turn to a confusion that arose at committee. In her opening remarks, the minister said that the review group had found the present system to be “perfunctory”. The difficulty for the committee was that that evidence was not sustained by anybody who gave evidence to us. That neither makes the committee right nor the review group wrong; it simply means that those who ventilated their views on these matters in public did not agree. People were more inclined to support the view that Ian McKee expressed in his excellent speech that the procedures for certification of cremation are a process in which funeral directors, medical professionals and families repose a degree of confidence. That may not be well based in evidence, but it is a matter of fact in terms of how people see things.
As I said in my opening remarks, before we get to stage 3, the Government needs to make clear the statistical basis on which checks will be made. Ministers need to respond in some detail on that. As Dr Simpson said, there is no prerequisite level of experience for any doctor who is to sign the medical certificate of cause of death. That has a bearing on confidence in the system. That is equally true of the fact that, as Richard Simpson made clear in his opening remarks, currently there appears to be no need for an examination of the body. I am not saying that such an examination is needed or that anyone who signs a certificate needs to have 10 years’ experience. However, if those conditions are not in place, that has a bearing on the level of confidence that is required and the level of checking that needs to be carried out. I accept wholly that a balance must be struck. However, at the moment it is not clear from ministers’ statements in support of the bill that that balance has been adequately achieved or that the explanations that have been given in support of the bill’s proposals meet the required test. In my opening speech, I said that such a balance can be achieved but that there is a lot of work to do before that happens.
I regret to say that the minister may be left with half an afternoon for her concluding remarks. All of us will look forward to them with considerable interest.
16:16
It has been interesting to hear the comments about and criticisms of the bill as introduced. I agree with most of them. I note that nearly all those who have spoken are members of the Health and Sport Committee, which puts me in a small minority alongside Stewart Stevenson, who entertained us with his personal experiences.
When one is not a member of the committee that is scrutinising a bill, it is difficult enough to assimilate the detail of what is proposed and the reaction of the witnesses called by the committee, without having to absorb the Government’s response during a stage 1 debate to issues that the committee raised in its detailed report. Like Mary Scanlon, I would have welcomed some prior knowledge of what the minister was going to say, because the debate has not been enhanced by what has happened today.
Like most members, I agree that there is a need for new legislation, given that much of Scotland’s burial and cremation legislation is more than a century old and does not reflect life in the 21st century. The Harold Shipman affair was a wake-up call that highlighted the need for a review of the processes governing death certification, burial and cremation, even though—as everyone has agreed—no new system could deal with a future Dr Shipman.
An improvement in the accuracy of death certification is needed in the interests of health care planning and, not least, to provide reassurance to the public. However, when I read the Government’s proposals, they seemed to me to be less robust than the current system. My initial reaction has been backed up by the expert witnesses who gave evidence to the committee and by the BMA in its briefing for the debate.
As we know, currently at least two doctors are required to examine a death certificate before cremation can be sanctioned. Consequently, in around two thirds of deaths, three doctors are involved, with the remaining one third of deaths, following which the deceased is buried, requiring just one medical signature to certify death. Although the Government has stated that the two-doctor check may be perfunctory, the second medical check has resulted in a 15 per cent improvement in the accuracy of certification, as Richard Simpson pointed out, and has picked up a significant number of unnatural deaths that would otherwise have gone undetected.
Clearly, the Government disagrees with that approach and considers that its proposals to introduce a systemic quality improvement system, via intelligence-led medical review, would be more effective than the current system. It also does not approve of the non-targeted system that is being introduced in England and Wales, which would be more expensive.
As I understand it, under the minister’s amended proposals, which were presented in evidence to the committee on 15 December, 25 per cent of deaths will be randomly selected for level 1 review, with around 4 per cent being subject to level 2 review. That will mean that 75 per cent of deceased people will be buried or cremated on certification by only one doctor. The intended increase to 4 per cent in the number of deaths that are selected for level 2 review will still fall well short of the 10 per cent that witnesses recommended as the minimum percentage sample that is required to give a realistic chance of picking up errors.
The concern about the lack of confirmatory checks under the proposed system was summed up by Gerard Boyle of the National Association of Funeral Directors, who said:
“We welcome any improvement to the medical certification for statistical analysis, but we feel that, for cremation, going from a two-doctor system plus a medical referee at the crematorium down to one doctor is ... a bit of a backward step ... the proposed system is definitely not as robust as the current one.”—[Official Report, Health and Sport Committee, 1 December 2010; c 3764.]
Professor Fleming acknowledged that, without post-mortem examination, we will not get anywhere near 100 per cent accuracy. Nevertheless, he thinks that we can improve the current accuracy rate, although he believes that the bill’s proposals will make that less likely.
The committee’s concerns about the changes to certification for cremation have not yet been fully addressed. Although I accept that the procedures for burial and cremation should be aligned, I agree with the committee’s conclusion that, given the finality of cremation, any alignment should have as its benchmark the rigor of the current cremation procedures. Ross Finnie emphasised that point well.
The proposed universal fee in relation to burial and cremation is welcome. It will ensure that a lower fee is payable by everyone rather than a higher one being payable by only a proportion of bereaved relatives.
There is also a concern that no level of experience is specified before a doctor can sign a medical certificate on cause of death. That means that a junior doctor could authorise cremation without any supervision. The BMA makes a good point that, if the second doctor—who must have five years’ post-registration experience before they can sign a cremation certificate—is to be removed from the process, all junior doctors must be supported by high-quality training programmes before they become eligible to sign such certificates. That is a huge training commitment, as Ian McKee pointed out.
Concerns have also been expressed about the adequacy of the proposed medical reviewer workforce, given its remit to advise, train and carry out the level 1 scrutiny of 25 per cent of deaths and given the likely resultant increase in the number of level 2 reviews. I was pleased to hear the minister say that the number of reviewers is not set in stone.
The short timescale for reviews will impact on doctors’ workloads, and there are worries about how part-time or shift-working doctors will take part in reviews. It is clearly important to avoid delays to funerals in the interests of the bereaved and of faith groups for whom early funerals are the norm.
Members have flagged up several other issues in the debate, most notably the lack of proposals for an electronic registration system.
It is obvious that a great deal of work remains to be done during the next stages of the bill’s passage through Parliament if the result is to be improved and more robust legislation.
We will support the general principles of the bill at this stage but we expect amendments at stages 2 and 3 in response to the concerns and criticisms that many people expressed during the stage 1 scrutiny.
I call Dr Richard Simpson. Dr Simpson, you have quite a long time.
Aw!
Oh!
16:22
My colleagues on the Health and Sport Committee are probably booing because they remember the rather long speech I made during one committee meeting.
This has been a thoughtful and useful debate. It reflects the Parliament’s scrutiny at its best. The expert group came up with a view on which the Government consulted. We have all been through a fairly lengthy process, but we start from an agreed point.
As Stewart Stevenson thoughtfully pointed out, the current procedures began to come into place in 1855 and certainly are no longer sufficiently robust. That is the starting point. They no longer have full public confidence, but the Shipman inquiry was only part of a process that indicated that they were no longer fit for purpose.
The accuracy of the data is important to us in epidemiological research, in holding the Government to account on progress on reducing premature deaths and in ensuring that there is equality of treatment in ethnic communities. Those are all dependent on the quality of the data that are obtained.
At the same time, we want to prevent the possibility of any criminal activity, although we have all agreed that it is not possible to guarantee that such activity will be prevented. Nonetheless, as all speakers have made clear, the central issue in the debate is that whatever system we come up with at the end of stage 3 must retain public confidence. The easiest way to do that is to have level 2 scrutiny in 100 per cent of cases. That is what has been done through the English legislation and how the English intend to proceed. However, as Michael Matheson and others pointed out, the cost of that per individual will be high—perhaps around £150 or £170—if the system is to be self-financing. The proportionate measure that is proposed in Scotland would cost around £30 or, if it were totally self-financing, perhaps £50.
The core issue of public confidence remains vital. Proportionality is all very well, but if we do not retain public confidence, the system will require revision.
Already as a result of the debate and the evidence that was received in committee, the Government has moved to increase the level 1 scrutiny to 25 per cent of certificates and the level 2 scrutiny to 4 per cent. The minister mentioned in her opening speech a figure of 50 per cent. I would be grateful if she could explain that a little further, because I do not see how we get to 50 per cent from the 25 per cent level 1 reviews and the 2,000 level 2s, particularly as the level 2s will mostly follow on from level 1s and might not be separate.
The 50 per cent includes referrals to the procurator fiscal.
I cannot believe that we move from 25 per cent to 50 per cent by including procurator fiscal referrals. There cannot possibly be 25 per cent procurator fiscal referrals. I see that the minister is nodding—I put that on the record. I would be very surprised if 25 per cent of cases are referred to the procurator fiscal, but the minister says that that is the case, so we should accept that.
Ross Finnie analysed the situation most clearly. He said that a figure of 4 per cent is better than the previous proposal, and the committee has said that that would be a step in the right direction. However, evidence to the committee suggested that 10 per cent might provide us with a proper statistical basis. If we get somewhere between 4 and 10 per cent, we might have something that we can work with. The minister has given an undertaking that the figure could be adjusted further as we go along and after the test sites have been looked at. That might be practical, but I ask her to produce a little more detail at stage 2 on how the 4 per cent figure was arrived at. What risk assessment was carried out in arriving at that figure rather than 10 per cent?
I return to the fundamental problem, which is that, in the current system, more than 62 per cent of certificates are scrutinised by three doctors. The new system will not distinguish between burial and cremation, but that distinction did not arise purely by chance; it arose because the public and Parliament felt that, when someone is cremated and the body is no longer there to be reviewed, a greater degree of scrutiny is required.
Many members have referred to the need for improvement in the accuracy and quality of the data. If that is achievable, we might not need to scrutinise 100 per cent of cases, as in England, or even the 10 per cent that it is suggested that we should have here. As Ian McKee and Helen Eadie said, to achieve that improvement, we need to ensure that there is an adequate training process. The training will not necessarily be provided by a medical reviewer—it might need to be devolved to the post-graduate deans, which the bill will need to allow for. As Helen Eadie said, the resources for training must be adequate and ring fenced in some way. I suggest that no one should be allowed to sign a form unless they have gone through a certificated training module to show that they understand what the process is about.
Ian McKee said that quality and accuracy are not the same thing. We might end up with what appears to be better quality but, at the end of the day, it might not be more accurate. That is a conundrum that I do not propose to unravel, despite the encouragement of the Presiding Officer to speak for a greater length of time.
The most important issue is that of electronic forms, because an electronic system could underpin the whole system. I remain surprised that consideration of electronic forms has not been undertaken—I was even more surprised after Ross Finnie pointed out to us that that suggestion was in the expert group’s report. That is a grave mistake. I would go further and suggest that we should not actually have test sites without having an electronic system. That might involve delay, but I would rather have a delay and get a system that is correct than go to test sites, amend the whole system and then have to come back and retest with electronic forms.
I remind the member that the committee agreed unanimously in our stage 1 report that we would not seek to have an electronic system brought in before the test sites commence.
I accepted the approach in the report, but on reflection and after hearing what members have said in the debate I think that we probably have to think again. I will be interested to hear what other members say.
We have not addressed some issues, such as the ordering of a post mortem by the family. The disposal of body parts and foetuses, which Stewart Stevenson mentioned, needs to be considered in more detail. The question of ensuring the certification of the absence of devices is important. It was pointed out that devices are sometimes not picked up until the second level of certification, which can be dangerous. If devices get as far as cremation we have—literally—an explosive situation on our hands.
The minister said that the certificates that are issued for the 250 deaths that occur overseas should be reviewed centrally. I welcome that. Helen Eadie mentioned the issue.
Rhoda Grant and other members talked about the needs of faith groups. I think that we have secured better consideration of the issue, but further issues to do with parallel or retrospective review need to be considered. There is also an important issue to do with deaths in remote and rural areas, as Mary Scanlon and Rhoda Grant, who both represent the Highlands and Islands, said. In the test sites, we must ensure that such issues are taken into account and followed through. Perhaps one of the sites should be in Glasgow, where there is a greater number of faith-based communities.
I will conclude—if that is acceptable to the Presiding Officer—by talking about finance. I was originally of the view that funeral directors should collect the fee, but as the arguments have been made I have begun to think that the registrars might well have to do that. Perhaps we can combine the proposed fee and the charge that is currently made for people who want a copy of the certificate, which registrars already administer—I think that they charge £9. However, as many members said, if the death is registered by someone other than a family member, such as a police officer or a minister, there could be a problem. That is an administrative matter, with which I am sure the minister will be able to help us, perhaps through guidance.
A fee of £30 sounds reasonable—particularly given that people have been paying more than £150—but it might not be enough to enable the system to be self-funding. In an age of austerity, we must ask whether the Government should be putting a further £1 million or £1.5 million into the system. The approach would be welcomed by individuals but might need to be looked at again.
The central issues of public confidence and the proportionate nature of the bill will need to be considered at stage 2 when amendments are lodged. We support the bill at stage 1.
16:33
I thank everyone who spoke in the debate, which has been—as the stage 1 report is—constructive and has brought to the fore important issues in relation to all the subjects that the bill covers.
Before I talk about those issues, I will take a moment to reinforce the importance of the measures that are set out in the bill, which are firmly embedded in the Scottish Government’s aim
“to deliver the highest quality healthcare services”,
as we set out in “The Healthcare Quality Strategy for NHSScotland”.
As I made clear in my opening speech, the bill will deliver a single system of independent scrutiny of all deaths that do not require a procurator fiscal investigation. There is no doubt that the current arrangements for death certification require reform, as many members said. The provisions in the bill will introduce a new and modern approach to scrutiny of death.
The current approach is based on double or triple-checking the certification for cremation, at a cost to families of £147 and with no link to quality improvement, and there is currently no scrutiny of deaths when burials are conducted.
The approach to which we propose to move is intelligence led, targeted and based on quality improvement. It does not discriminate between methods of disposal of the body. It is based on random checking of certificates, which is followed up in an audit cycle, and supported by improvements in training and education.
I confirm for Richard Simpson that 25 per cent of deaths are currently reported to the procurator fiscal: that covers unexpected or sudden deaths and deaths that occur under suspicious circumstances. That will not change; indeed, our proposals will result in around 50 per cent of all deaths being subjected to detailed scrutiny. I hope that that will provide some reassurance to the public—I will come to Ross Finnie’s point in a moment, because it is important—and act as a deterrent against malpractice.
I have listened with great interest to the many and varied points that members have made about the proposals, and I will now address as many of those as I can cover—which, given the time, will probably be all of them.
Christine Grahame and a number of others talked about an electronic system. I accept that that was mentioned in the review group’s report, but it did not go into any detail. There was a passing reference, but there was no detailed evidence or scrutiny in terms of a cost benefit analysis. As I have said, we should consider what can be done in that regard, but I caution against Richard Simpson’s suggestion that we wait for an electronic system before we use the test sites, because that would lead to huge delays and to an immediate increase in cost to develop that technology.
We should work on the technological requirements to get something up and running before roll-out, but people talk about electronic systems as if they can be taken off the shelf and plugged in. We all know that introducing electronic systems in the NHS and in public services generally is difficult and expensive, and takes time. We need to be aware of that before we put down preconditions, but I have made a commitment to look at the matter, certainly while the test sites are on-going.
I accept that we need to have a clear understanding of what that would involve, and that we should not delay the whole process unnecessarily with an electronic system. However, I understand that at present ISD, in linking to the registrars, already has an electronic system in place. The 2,000 cases that Dr Fischbacher told us had to be looked at again were brought up because of the electronic system. We may already be part of the way there.
That was a very helpful intervention. Of course, we would expect the starting point to involve looking at what is already there rather than at developing something from scratch, but we will take the process forward as planned.
Richard Simpson also talked about training. Junior doctors already receive training in death certification, and their competencies are tested and they are supervised in completing certificates in their first year. However, I have listened carefully to what has been said about training and education and I will reflect on that.
One of the papers that the committee received raised the issue of training for retired doctors in the event that there is a major outbreak in Scotland. How do you propose to address that? Their services might be called upon, as I think Richard Simpson or Ian McKee mentioned in committee.
I would prefer to go away and reflect on Helen Eadie’s point rather than try to give a response just now, but I will certainly look into that matter in more detail.
Richard Simpson also raised the matter of viewing the body, which has been an issue throughout the debate. It comes down to a decision about proportionality. A trained professional will always examine the body to verify that life is extinct, and I think that everyone accepts that that is the case. As I said earlier, 25 per cent of deaths are referred to the procurator fiscal if they are unexpected, sudden or suspicious. The doctors who took part in the review process advised us that viewing a body is generally of no greater assistance than the medical records, and I and my officials have said that during the committee process. There is a judgment to be made about how important viewing the body is in the process.
Mary Scanlon and Rhoda Grant both raised issues concerning remote and island communities, and it will be important to pick up those issues during the test site period. As I think I said at committee, one of the test sites will cover a remote and rural area. In the meantime, officials are contacting the relevant funeral industry and local authority representatives to discuss the issues in preparation for the next phase. We are very much sighted on some of the concerns that have been raised by Mary Scanlon and Rhoda Grant.
I do not think that there should be concerns about implants, which Mary Scanlon also spoke about. In the future, details will be captured on amended MCCD forms across the UK by certifying doctors who have access to medical records. The current practice will continue: funeral directors will check whether implants such as pacemakers have been removed, and they will make any arrangements for any internal devices to be removed before disposal takes place. Funeral directors’ technicians are trained to remove such devices. Alternatively, they will get a medical practitioner to remove them.
I turn now to a point that Ross Finnie made, because it was one of the critical points of the debate. He talked about the 10 per cent rate of sampling, and about whether or not the proposed compromise on the increase in the proportion of sampling is adequate. There is, of course, a debate to be had on the matter. At stage 1, the committee heard from the statisticians with whom we have been working. To give some reassurance on the issue, we are happy to write to the committee with more detail regarding the consideration that has been made, in order to help the committee to understand how the statisticians came to some of their judgments. I think that was one of the main points that Ross Finnie was driving at.
Reference has been made to Dr Jeremy Thomas’s evidence, which was quoted by the committee in its stage 1 report with regard to the 10 per cent sample size, which Dr Thomas said was necessary to have “a realistic chance” of identifying errors. Dr Thomas has confirmed that that refers to review procedures for diagnostic histopathology. For members who, like me, do not know what histopathology is, it is
“the microscopic examination of tissue in order to study the manifestations of disease.”
The issue is whether or not the 10 per cent sample that has been referred to in that context is really comparable with the sample sizes for death certification. I am not saying that the point is wrong, or that it is like comparing apples with pears, but we need to be cautious about the 10 per cent figure and about what was meant by it.
I thank the minister for that, but I reiterate what I said—and the minister might care to refer back to the Official Report. I was clear in making the point that 10 per cent was the figure that was put to the committee. I was not seeking a 10 per cent result. I am absolutely clear about the matter, but if the minister’s statisticians or directorates can come back to me—I cannot speak for everyone on the Health and Sport Committee—and lay out the statistical basis on which they believe the current sample meets certain tests, that will be satisfactory. I accept that the 10 per cent sample is on a particular basis, but we need some greater underpinning for the figure that the minister has now arrived at.
I am happy to give that reassurance and to come back to the member on that important point.
Ian McKee raised the issue of delegating the functions of medical reviewers for training and education. I confirm that that does not mean that third parties cannot exercise that role. The purpose of the bill’s provisions on that is to ensure that functions are carried out only by a dedicated group of persons. The reviewer’s role is one of leadership; it is not to take over functions that are already carried out by others, for example the royal colleges.
Rhoda Grant made an important point about whether people might be put off from registering deaths because of fees. It is currently a statutory duty to register a death, and that will not change. Equally, although the intention is to collect the new statutory fee at the point of registration, it will proceed regardless of whether payment is made at that point. Under the current system, most people who register a death pay a fee to obtain a full extract of the entry in the register of deaths. Collection and reimbursement of the new statutory fee will follow the same approach. For those reasons, we do not consider that the requirement to pay a fee will deter people from registering a death. However, we will monitor the situation.
The issue was about when the police or a neighbour or someone who might not want a copy of the death certificate registers the death to help the bereaved family, or because the family is not around, for example. The registrars felt that those people might not be so willing to go along because they would be faced with having to pay a fee when it is not their role to do so; it is more appropriate for the family or estate to make that payment.
Part of the solution to that will be communication about the new procedures. We will have to look at how we can send out a reassuring message. The important point is that registration will proceed regardless of whether payment is made at that point. Perhaps we need to pick up on the issue of communication to the public about the process so that we can give reassurance.
I take great comfort from the fact that there is a desire across the chamber to look at the issues and to come to some conclusions. We have made a lot of progress along that road already. There might be a few issues to be resolved, but I am sure that we can resolve them.
I believe that the proposals that are before the Parliament will provide robust deterrence and reassurance to the public, although I accept that we need to come back to the committee on some points. It will also harness the benefits of a targeted quality improvement approach that is proportionate and keeps the financial burden on the Government, as well as on bereaved families, at a reasonable level. Michael Matheson reminded us all that, for every increase, whether it be in the level of scrutiny or an immediate roll-out of an information technology system, there will be a cost. In these difficult financial times, there is a limit on what the Government can contribute to that, although I have already put in some additional resources. If further increases are to be cost-neutral, there will be a direct cost to families, and I would like to avoid that—as would everyone else in the chamber, I am sure.
We have to get a system that can reassure and comfort the public while costs are kept proportionate. I think that we can get there. There are still some issues to be resolved, but I am heartened by the tone of today’s debate. I look forward to working with the committee as we continue to progress with the bill.