Official Report 595KB pdf
The second item on our agenda is an oral evidence-taking session with two panels of witnesses as part of the committee’s stage 1 scrutiny of the Non-surgical Procedures and Functions of Medical Reviewers (Scotland) Bill. The first of this morning’s panels will focus on part 2 of the bill, which relates to the functions of medical reviewers and death certification and, in policy terms, is completely unrelated to part 1.
I welcome to the committee Dr George Fernie, senior medical reviewer and Caldicott guardian, Healthcare Improvement Scotland death certification review service; Annemarie MacAlpine, president of the Association of Registrars of Scotland; and Jim Murdoch, senior manager, wellbeing planning and performance, East Ayrshire Health and Social Care Partnership, who joins us online.
We will move straight to questions from Sandesh Gulhane.
I declare an interest as a practising national health service general practitioner.
Good morning. As the convener has said, part 2 of the bill has nothing to do with, and is completely separate from, part 1, but the bill is the vehicle for getting this policy into legislation. Why do we need it? Can you give me an example of when it would be necessary to use it?
A very small number of cases would be involved. An interested person review allows somebody with a connection to the deceased person to have a review of the medical certificate of cause of death. Up until now, you have been ineligible—that is, you have not been allowed to have one—if a review has already taken place.
Can you give me an example of how it would work?
If somebody is unhappy with the content of the MCCD—which you will be familiar with completing, Dr Gulhane—they will normally have an opportunity to ask questions about it and have my service conduct a review. Until now, if a review had already been conducted—and I should say that we are only talking about two or three such cases in 10 years—they have not been allowed to have that other review under the Certification of Death (Scotland) Act 2011.
In my annual report of 2018-19, we identified that we would welcome the possibility of people being able to have a review. As I have said, it relates to a very small number of cases, but it just seemed inherently unfair that they could not have a review because they had had a more basic one, when they had additional information that they wanted us to test for them.
You are right that I have had to fill out those certificates, and I have also gone through a level 1 investigation, which is quite thorough, to check what was happening. What is the difference between a level 1 investigation and what happens when somebody asks you for a review of the death certificate?
The interested person review is a more detailed level 2 review. I should say, though, that there was some slight blurring in the system during the pandemic. For both reviews, you have a conversation with the doctor—the sort of conversation that you, Dr Gulhane, have already experienced—and you also go through in a structured manner the content of the MCCD. The difference with a level 2 review is that there will be some corroboration of what the doctor is saying by looking at the clinical record, too.
Before the pandemic, we would check that we had the right patient with the right community health index—CHI—number, and we would check that we had the correct doctor by asking for their General Medical Council reference number and making sure that that was correct. We would also look at the emergency care summary, which would include information on medication and allergies.
However, when the pandemic came, we started to be allowed to look at the electronic key information summary too. That approach strengthened the information and was more focused, and we were able to ask more detailed questions of the certifying doctor. We are also now able to access the clinical portal in virtually all the territorial health boards. Doing that forms part of the level 2 review—we use it to confirm that what is being said is accurate. So, the level 2 review is better and more detailed.
The other thing about an interested person review is that we try to ascertain from the applicant their basis for seeking the review, so that we can try to address their concerns as thoroughly as possible. We are not obliged to do that, but we think that it is more helpful to them and gives greater transparency.
Jim Murdoch, we have heard from Dr Fernie that there are possibly two or three cases that have involved this kind of review. I assume that you have enough resource capacity to deal with that.
I am a resident in the health and social care partnership in East Ayrshire. We do not commonly see such cases—I would suggest that it is uncommon. Given the limited numbers, we would seek to support the process within our existing capacity.
Our role is to support the families of people who are at that stage of life. Our integration joint board has the strategic priority of dying well, which is about supporting people at that stage and their families post death. We broadly support the bill’s provisions to support accuracy in the death certification process, which will give families the confidence that, if they have any concerns, they will have a wider opportunity to raise them.
On that point about confidence, I would say that, in the 2000s, there was not a great deal of confidence in the process, and things has been improved robustly as time has gone on.
Is there going to be a time limit for such a review? What would count as new evidence for it?
The time limit would remain as it stands—that is, within three years of the certificate being issued. The material should be reasonably accessible within that period. We would be happy with that limit continuing as it has been, because it has not been an issue with the system.
In 10 years, there have been a total of 13 certificates that we were not able to review. Of those, 10 had already gone through the procurator fiscal system, and there is no proposal to change that. Indeed, I do not believe that it would be in the public interest for conflicting views, perhaps, to be expressed if that were the case.
There were only three cases that we identified that we would have liked to have been able to review, to help the relatives who had suffered a loss and who had made the request. As far as the service is concerned, we do not see this as a great burden. It will benefit a small number of people, but it is still incredibly important to them that the certificate be as accurate as possible.
The three primary drivers of the death certification review service remain the same: to improve the quality and accuracy of the MCCD; to derive better public health data, something that became particularly important during the pandemic; and to strengthen clinical governance. Those are the same principles that we would want to continue with.
My final question is for Annemarie MacAlpine. What is the opinion of the Association of Registrars of Scotland?
The Association of Registrars of Scotland supports the proposals. We do not see them having a great direct impact on our own day-to-day work, but we support them if they will bring about an improvement that will help our colleagues at the DCRS and Healthcare Improvement Scotland.
I have a few questions about those situations in which a reviewer rejects an application. How might that happen? What reasons might there be for such a rejection, and how might they be communicated to people who have applied?
As I have explained, the main reason for a case being rejected now is that it has already been reported to the Procurator Fiscal Service. We think that it should deal with such cases and that they should go through the process that it has in place. We would communicate that as sensitively and as quickly as possible to the applicant and give them a clear rationale for that.
A provision in the current legislation allows us to reject a case if it is “vexatious”, but we have never had to invoke it. When, at the service’s inception, we discussed what would be considered vexatious, our thinking was “Hopefully, we will find out.” We never have—no one has made an application for some spurious reason. They might have got hold of the wrong end of things, and they might be more concerned about the care that was delivered to the deceased person prior to their death—you can understand why they would have that concern. We have always attempted to be bereaved focused with regard to such applications and to be as sensitive and as accommodating as possible.
In that case, do you feel that, if the legislation were to be changed, those cases would not increase in number and that you could manage them as you manage them at the moment?
I believe that we could manage them in a similar way. The only reason for rejecting such cases would be if there were duplicate requests, but I do not believe that that is likely. The whole purpose of change is to be more open and to try to help relatives come to an understanding of what has happened—typically to their loved one—so that they can follow what is within the MCCD.
To what extent is there consistency across Scotland, and could the bill help with that? Do we need to consider anything in that respect, or does consistency come about quite naturally?
I believe that there is consistency. In the 10 years that the service has been in existence, we have taken a more structured approach to our annual reviews with the territorial health boards. We try to focus the reviews on what has been taking place and on the educational resources that we have available to support the boards.
One thing that we would have liked to see is mandatory training, especially for younger doctors coming into the service, but there are so many competing demands on their time that that has not been possible up until now. We have worked in conjunction with NHS Education Scotland on educational materials for its support around death—or SAD—website, which is an excellent resource, especially for doctors who are in training.
That was helpful. Are there any other safeguards that you feel that we should put in place to ensure that reviewers are consistent?
No, not in this bill. We peer review medical reviewers within the service, and we also review an annual sample of 12 per cent of MCCDs relating to non-procurator-fiscal-related deaths. That appears to be having the desired effect, because the not-in-order rate, which is the metric that we use, has fallen from just over half in the first quarter following the service’s launch—that rate was due to some fairly minor administrative errors and some more significant errors—to around 18 per cent at the moment. We think that there will be another step improvement with the roll-out of electronically completed MCCDs, which we anticipate happening in secondary care in 2026. I believe that we are on track to deliver what has been asked of us.
Additionally, there are no undue delays. In our neighbouring jurisdiction, there has been some criticism of delays in the medical examiner service, whereas we have been able to deliver in real time, with a very small breach rate of the aim to complete a level 1 review in one working day and a level 2 review in three working days. I am not aware of any significant delays in funeral arrangements as a consequence.
Thank you.
09:30
Picking up from where Carol Mochan left off, can you tell us how the reasons for rejecting a review should be communicated to interested parties?
They should be communicated clearly, transparently and as soon as possible. It is unlikely that we would reject a request for a review. The only sort of situation in which I envisage that happening is one in which part of a family was unaware that an interested person review had already been completed. However, it would depend on the individual case, because other family members might have different reasons for seeking a review. That is why we suggest that some flexibility would be appropriate, because there might be situations in which further detail has been communicated that would make a difference to the review that we had completed.
Would you support a formal process of appeal if a request for a review were rejected? If so, how would that work?
As somebody who is qualified in both law and medicine, I would always support an appeals process. It seems unfair not to have it. I do not quite know how it would work but, in principle, I would always support having it.
Good morning. A death can lead to a very troubling time for a family. Some of the responses that we received to our call for views expressed concern about the possibility that the new procedure might cause delays. Can you reassure us that the new process would cause minimal delays—or no real delays—in the system?
That depends on the stage at which an interested person review is requested. The majority of requests are post-registration, and we would have 14 days in which to undertake such a review. I do not think that that will cause a problem.
If the request is made pre-registration—there is no reason for people not to do that—the funeral arrangements obviously cannot go ahead. Managing the process within three days—gathering the information and speaking to the relevant professionals that are involved—is very tight. However, that issue is the same just now, and I do not believe that the new arrangement is more likely to cause a problem.
The advance registration procedure was introduced recently. Do you foresee that it would still be available in those circumstances, or is there anything to prevent that?
The advance registration procedure is not new. It has existed since the start of the service, mainly to accommodate minority faith groups—the Muslim and Jewish communities. We have around 60,000 in the Muslim community and about 6,500 in the Jewish community. They have very similar requirements, which involve burial as soon as possible—before sunset or within 24 hours. We really try our best to allow that to proceed.
The only situation in which we cannot grant advance registration is when, clearly, the case should have gone to the procurator fiscal. Again, that is not going to change. That is the main possible impediment. If the certificate is substantially in order—a phrase that I coined, I think—even if we know that an amendment may be required, that does not stop the advance registration from going ahead. The same would apply in the new arrangements. I do not see it as a problem.
That is very helpful.
Do witnesses agree that clear guidance and processes should be developed, to inform those who request an additional review? How could that work in practice? Obviously, it is a change, and a lot of people do not know that the arrangements exist anyway. How should we communicate that to individuals?
Annemarie MacAlpine might answer that better than me.
It is important to educate people and make them aware that the process is available when they find themselves in that circumstance. Bereaved family members need to be given guidance and to be signposted to DCRS for the more detailed assistance that they need.
Would that take place when a registrar is dealing with a bereaved family and things that are said in the meeting lead the registrar to believe that there might be an avenue for that type of review to be requested?
I have not had that experience, but I can see that registrars might find themselves in that situation.
Jim Murdoch, you spoke about East Ayrshire health and social care partnership’s dying well strategy. How do you foresee those who are working within the partnership being able to communicate the new review process effectively to people and to support them in it?
It is always helpful to have clear guidance and to communicate it well across our communities and our workforce. We must do everything that we can to raise awareness of the process, so that families who have concerns know what their options are now and what the wider options will be as a result of the bill. We can do communications work and can raise awareness in our workforce by providing information and guidance. We could probably do more to raise awareness about those rights in our communities. We do that in the course of our work and our on-going support for families at that stage of life and more broadly as part of our on-going workforce learning and development.
Does East Ayrshire health and social care partnership currently have policy guidance about how to inform families of their right to ask for a review?
There will be broad information, but I will have to get back to you with the detail on that. When our workforce is supporting families at that stage, information and guidance will be provided to support the relationship between our staff and the person or family.
As I said, I think that we can work more broadly to raise awareness, and there is an opportunity to do that through the bill process.
Yes, there will be an opportunity to expand on that work, should the bill pass. However, I am trying to establish whether there are policies and procedures for informing families about the current law regarding their right to ask for a review.
I am not sure if there is an actual policy on that—I will have to check. However, doing that would be part of the support that we give to families in the course of our work.
So, currently, they would be given the relevant information.
Yes.
This would not be something new for East Ayrshire HSCP, then.
It would not.
Okay; grand.
David Torrance has some questions.
Can the witnesses set out the rationale behind the 2011 act exempting the MCCD from being subject to a request for an interested person’s review if the death has been investigated by the procurator fiscal? How many cases would such a scenario apply to?
The rationale was that we could come to a contrary view to that of the Scottish fatalities investigation unit with regard to the MCCD, which we did not believe would be in the public interest. We believed that there would be a loss of public confidence if we had contradictory views.
The procurator fiscal carries out a different sort of investigation. We tend to look at normal deaths, as it were—deaths that are expected—whereas the procurator fiscal looks at deaths where there is a possibility of criminality or a concern about the level of care that was provided that would potentially merit a fatal accident inquiry. In the case of a small number of deaths that come to our service—about 3 per cent, at the moment—we advise that the doctor should have reported them to the procurator fiscal, in keeping with the Crown Office and Procurator Fiscal Service’s guidance. I think that it is important that we keep those separate.
In answer to your question about the numbers, as I said, we did a search in our electronic case management system. There were 10 cases for which we were unable to do an interested person review because they had already gone to the Procurator Fiscal Service.
With regard to the interested person review, you have to bear in mind that it can have different outcomes. One of them is that we would recommend that there be no change to the MCCD, because we believe that it is in order. Another is that we would recommend a change to the MCCD, and there is a process for doing that through the National Records of Scotland. The third alternative is that we would advise the doctor concerned that they should report the matter to the procurator fiscal. That advice might come several weeks or months or—exceptionally—a year or two after the death. Doctors have always been willing to do that when that has been our recommendation as a consequence of an interested person review.
What risks could arise if certificates from procurator fiscal cases are not subject to any further scrutiny?
That question relates more to the care that was administered to a deceased person prior to their death, and the investigation that took place in that regard. Our function is primarily to ensure that the MCCD content is as accurate as possible. Our service and the Procurator Fiscal Service have different functions in that respect.
We work in conjunction with the Scottish fatalities investigation unit, and if, after it has conducted an investigation, it has concerns that the content of the MCCD might not be correct, it will direct the doctor back to us for advice about a possible change to the MCCD. We do not work in complete isolation from the Procurator Fiscal Service, but we are very much aware of our respective purposes.
Finally, should the Scottish Government consider revisiting the exemption in future reforms, and are witnesses sympathetic to the argument that removing the exemption would strengthen the confidence in the process of a death certification?
Sorry—I do not understand that question.
Should the Scottish Government consider revisiting the exemption in future reforms of the 2011 act?
Do you mean the exemption as regards the Procurator Fiscal Service?
Yes.
If the Scottish Government was minded to do that, it could be done. It would have resource implications. Again, we do not have a coronial jurisdiction, as our neighbours in the other parts of the United Kingdom do, so it would be a radically different approach to that issue. We certainly could work more closely in co-operation with the Crown Office and Procurator Fiscal Service, but that would be a different arrangement to the one that we currently have. I can see advantages and disadvantages with that. I am a visiting professor at the centre for contemporary coronial law at the University of Greater Manchester, so I have an understanding of the alternative approaches.
The arrangement that we have in Scotland has served us pretty well over the years, so you would be talking about a wider policy decision.
I have no further questions.
One real concern with this reform is the level of public awareness. What further action is needed to make sure that the public fully understand the cremation process and feel reassured that all necessary checks have been completed, particularly when a death has been certified in another part of the UK?
It has always been an accepted principle that we should respect the arrangements in other parts of the UK, and I do not think that that has changed. That is the policy that was promoted within the statutory guidance associated with the legislation. We do not want undue delays.
Typically, a coroner’s inquest is convened and is then adjourned to allow the burial or cremation arrangements to go ahead satisfactorily. It is a matter of being focused on the bereaved.
09:45
Do you foresee any risks in relying on certification from other parts of the UK?
There are limited risks. If anything, the processes are more akin to what existed before the medical examiner system came into being there. As I think that I said earlier, half of the deaths there go to the medical examiner and half go to the coroner. I would hope that there are adequate arrangements in England, Wales and Northern Ireland for that not to be a significant problem.
Do you think that there need to be any specific data-sharing arrangements in place? Is there anything that you would recommend?
That might be a question that local authorities could answer better than I can. The arrangements appear to have worked well thus far, and we now have 10 years’ experience. You will be aware that, prior to the current service coming into existence, we had crematorium referees and two doctors as signatories. The new system, with the revised medical certificate of cause of death, seems to have worked pretty well in conjunction with the crematorium managers in different local authorities. I am unaware of there having been any issues with that.
Would Mr Murdoch or Ms MacAlpine like to add any comments in relation to that?
I have no further comment.
Perhaps from a local authority perspective, Mr Murdoch. Do you have any thoughts on specific guidance or data-sharing processes that you think might be helpful?
We would be broadly supportive of the proposed measure, as it reduces additional requirements in relation to cremation. Good communication and data sharing would be important to ensure that any concerns or risks were mitigated. We would support the measure, building on cross-border authorisation wherever possible. The provision takes us to a further stage, with an additional review under the process. That will hopefully make things more straightforward and will reassure families.
Just to be clear, there are no specific recommendations from anyone on further guidance or processes that may be required at this stage.
I see that our witnesses agree that that is the case. That is helpful.
I thank the witnesses for their attendance this morning. You are now free to go, but the committee will continue working.