Policy responses and statements
- Name of organisation:
- Scottish Government
- Name of policy document:
- Consultation Paper on Death Certification,
Burial and Cremation
- Deadline for response:
- 21 April 2010
Background: The Burial and Cremation Review
Group was set up in 2005 by the former Minister for Health under the
previous administration. The Review Group, which was chaired by Sheriff
Robert Brodie, drew its membership from a wide range of interests including
representation from the medical profession, faith groups, professional
bodies from the funeral industry, local authorities and consumer groups
and others, with secretarial support provided by the Scottish Government.
In addition, other individuals and organisations offered expert advice
to the Review Group on particular issues when necessary, such as Historic
Scotland and the Information Services Division ( ISD), part of NHS
National Services. We would like to thank all those involved for their
time and efforts in contributing to this process.
The Review Group's Terms of Reference were: "To review the Cremation
Acts of 1902 and 1952 (and the Cremation (Scotland) Regulations 1935
as amended) and the Burial Grounds (Scotland) Act 1855 as amended,
and to make recommendations on how the legislation could be changed
in order to better serve the needs of the people of Scotland. This
would, where appropriate, recognise the established role of the Procurator
Fiscal Service, and take account of policy developments in England
(specifically the Shipman Inquiry's work on death certification) and
international good practice." This was not intended to make any
change to the Procurator Fiscal's responsibility to investigate sudden
and unexplained deaths in Scotland.
The Review Group therefore considered two main subject areas. The
first being death certification, focusing on issues designed to ensure
that when a death occurs there are adequate safeguards in place to
meet any concerns there may be around the death having particular regard
to the recommendations which flowed from the Shipman Inquiry. The Review
Group put forward two models on the future of death certification in
Scotland for consideration. These models not only aim to reflect the
recommendations of the Shipman Inquiry, but they also aim to update
procedures and facilitate electronic transfer, storage and use of data
for public health purposes and reflect the needs of Scotland's multi-cultural
and multi-faith society.
The second issue that the Review Group considered was to review the
burial and cremation and cemeteries legislation, much of which dates
back over 100 years. There is a need to revise the legislation so that
it better reflects the needs of 21st century society. As a consequence,
many of the Review Group's recommendations represent an upgrading and
regularisation of procedures while others attempt to deal with the
practical issues such as the growing scarcity of burial space and the
abandonment of graves and headstones. The Review Group also considered
ways of simplifying the process for disposal of the body, cutting down
on unnecessary red tape and removing some of the burden of costs that
are currently incurred by the nearest relative.
The Review Group presented its report, which contains 33 recommendations,
to the Scottish Government at the end of 2007. It was published on
the Scottish Government website in April 2008 and can be viewed
here. The Scottish
Government has considered the report and decided to consult on all
of the Review Group's recommendations in order to seek views from as
wide a range of interest parties as possible, not least members of
the general public.
Policy on death certification and burial and cremation are devolved,
however, and any new Scottish legislation, policies and procedures
should, where possible, dovetail into legislation or policies in the
rest of the UK so that no cross border difficulties are created. This
is especially important in view of the increasing mobility of the UK
population. Many people who are buried or cremated in Scotland will
have died in other parts of the UK and vice versa.
There were 55,699 deaths in Scotland in 2008. The majority of deaths
(57%) took place in hospitals. Around 24% of deaths occurred at home
or in the community and 19% in a residential nursing or care home.
For ease of reference the consultation paper has been split into four
sections, the first dealing with the practical procedures put in place
to deal with the situation when a death occurs and where the various
responsibilities for this lie.
The second section sets out the current process for death certification
and proposals for two models which it is anticipated would provide
a more robust and rigorous system for death certification in the future
along with their associated costs. The Scottish Government invites
views on both these proposals and specifically which option should
be adopted in the future in order to improve the death certification
process.
The third section covers issues around burial including the continued
sustainability and affordability of burial grounds.
The final section covers cremation and new and alternative means of
disposal of a body such as promession. It also includes the issue of
deaths that occur abroad. While the established role of the Crown Office
and Procurator Fiscal Service was outwith the Review Group's remit
and an independent review of fatal accident legislation has since been
undertaken by Lord Cullen, the Review Group was concerned that unlike
the Coroner process in England and Wales, in Scotland at present no
public body has the power to request a post mortem where a death has
occurred abroad and a cause of death has not been satisfactorily established.
The paper invites suggestions on measures which might be put in place
to establish the cause of death for Scots who die abroad where the
cause of death has not been satisfactorily established and whose families
wish them to be repatriated for burial, cremation or alternative way
of disposal in Scotland.
COMMENTS ON
SCOTTISH GOVERNMENT
CONSULTATION PAPER ON DEATH CERTIFICATION, BURIAL AND
CREMATION
The Royal College of Physicians of Edinburgh is pleased to respond to the
Scottish Government on this extensive consultation paper on Death Certification,
Burial and Cremation. There are a number of areas of our particular
interest, and several matters which we have left blank where there is no opinion
from the point of view of the practice of medicine.
SECTION 1: WHEN A DEATH OCCURS
Question 1: Would it be appropriate to enable trained clinical
staff such as nurses and paramedics to verify life extinct?
Yes, subject to protocols and clearly defined circumstances when it is appropriate
for medical involvement.
Question 2: Should the right to instruct the disposal of
bodies on death be vested in the nearest relative?
Yes, we believe so.
Question 3: Should the definition of nearest relative follow
the definition used in the Human Tissue (Scotland) Act 2006?
Yes - for the sake of clarity and consistency.
Question 4: In the case of a dispute about disposal of a
body, should this be resolved by way of summary application to a Sheriff?
Yes. A Sheriff should have the last word in these matters.
SECTION 2: DEATH CERTIFICATION
Paragraph 24: The Review Group recommended a new process
for the certification of death which is intended to improve the quality
of death certification and deter any abuses of the certification system
in both hospital and community settings. It would also introduce
a new uniform process of certification regardless of the method of disposal
of the body ie the same process would in future apply regardless of
whether an individual was buried or cremated or an alternative form of
disposal was used.
This is welcome. Also, the fees for completing these forms should at
least be reviewed.
Paragraph 30: After the death is registered by the Registrar
for Births, Deaths and Marriages, a form (Form 14) is issued confirming
the registration of the death. In normal practice, it is only after
a Form 14 has been issued that a burial may proceed, but it is possible
to do so on the basis of the MCCD (Form 11) alone. A cremation
may not proceed without the registration of the death.
This area needs to be clarified and a uniform system of processes introduced
for all methods of disposal.
Question 5: In cases where the cause of death is undetermined,
even after a post-mortem has been carried out, what measures should be
put in place to allow the disposal of the body?
Measures should follow lawful practice.
In cases where there is a significant degree of suspicion surrounding the
death, there should be the requirement to take a comprehensive set of tissue
and fluid samples and store them for subsequent analysis as required. It
would need to be agreed how long this minimum storage period should be, where,
and at whose expense.
In cases where the body poses a potential risk to public health, there should
be proper procedures for containment and appropriate disposal depending on
the nature of the risk.
Question 6: Should disposal of the body where cause of death
is undetermined be restricted to burial or are there circumstances where
cremation or other methods should be permitted?
If the relevant authorities are satisfied that foul play is unlikely AND it
is in the interests of public health protection AND relevant samples have been
taken, then it should be possible to allow cremation. Otherwise, the
disposal should be restricted to burial.
Medical Investigator or Medical Examiner?
The preliminary view of the Scottish Government is that the Medical Investigator
model is to be preferred. Our reasons for this are set out first below.
Question 7: Is the Medical Investigator model your preferred
model?
First, there should be clarity about the role and relationships between such
a medical investigative model and the Procurator Fiscal-commissioned "for
cause" work. There is the potential for confusion between these
2 processes. The Procurator Fiscal system relies on a degree of
suspicion, or need for further investigation, whereas the Medical Investigator
model appears to be a random sample approach. We therefore have reservations
about the efficiency of one service in relationship to the other. If
it is clear that roles and relationships are distinct, separate and mutually
respected, there would be value in the appointment of a Death Investigator
to highlight local anomalies and then direct the scrutiny of death as appropriate.
Question 8: If yes, why?
Yes, there is skilled statistical input. The method is more discriminant
and, where necessary, more searching and separate from a judicial line of enquiry. It
is in line with modern governance and it is a proportionate response to the
problem it is designed to address. The costs are reasonable and there
is added value in the system.
Question 9: What do you view as its potential strengths over
the existing system?
No response.
Question 10: What do you view as its potential weaknesses?
There is delay, but the stated delays seem acceptable. There could
be a lack of attention to surveillance rather than case findings in this model. It
would be necessary to specify epidemiological skills for the Medical Investigator
to complement the statistical skills of a Deaths Investigator.
Currently, 24% of deaths are investigated by the Procurator Fiscal and
10% require post-mortems. An additional 2% sample may not be
popular with the public who will require persuasion of its value.
Question 11: Do you think it offers best value for money?
It appears to offer better value for money than the Medical Examiner model.
Question 12: Is the Medical Examiner model your preferred
model?
No.
Question 13: If yes, why?
No response.
Question 14: What do you view as its potential strengths
over the existing system?
Routine surveillance and quality assurance of certifications has its attractions.
Question 15: What do you view as its potential weaknesses?
The system would not be sufficiently discriminating. It would become
a routine process and lose purpose. It appears to be a disproportionate
response to the problem for which it was designed.
Question 16: Do you think it offers best value for money?
No.
Question 17: Should bereaved families or the deceased's estate
pay a moderate fee to cover the cost of introducing increased scrutiny
by a Medical Investigator or Medical Examiner?
Reluctantly, given the lack of other sources of income and accepting the need
to run both a judicial and medical route of investigation jointly, we must
agree to a fee being charged.
Question 18: Can you suggest any other ways of funding increased
governance, bearing in mind the current constraints on public spending?
No.
Question 19: If a fee were to be levied, should it be set
at the same level irrespective of the method of disposal of the body?
Yes, with the introduction of the uniform system of certification.
Question 20: A fee could potentially be levied at the point
of disposal (ie included as part of the fee currently collected by
local authority, burial or cremation authorities) or by private burial
and cremation companies when charging for provision of their services. Are
there any practical issues which need to be taken into account in considering
these options?
No response.
SECTION 3: BURIAL
Question 21: Do you agree that new legislation should be
introduced to regulate all local authority and private cemeteries?
Yes, we agree. This seems sensible.
Question 22: Do you agree with the recommendations set out
above, about the erection of headstones and regulations on matters relating
to memorial masons and memorials?
Yes, we agree.
Question 23: Are there any other factors in connection with
headstones or memorials which should be taken into consideration when taking
forward legislation?
There should be sensitivity with respect to matters of faith and belief, and
future safety from unattended head stones.
Question 24: Should there be re-use of graves with appropriate
safeguards?
The law relating to this matter should be consistent with Scottish law on
land ownership.
Question 25: What should be the optimum time before a grave
is allowed to be re-used?
No response.
Question 26: Is the 'lift and deepen' method an acceptable
use of burial space?
No response.
Question 27: Views are invited on any advantages or disadvantages
of this method
No response.
Question 28: What acceptable alternative approaches are available?
No response.
Question 29: It would be helpful to know whether particular
methods of re-using graves should be prescribed, or whether burial ground
operators should be free to adopt whatever method appeared appropriate
to local circumstances, taking account of local consultation and the views
of family or descendants
No response.
Question 30: Is 25 years a sufficient length of time
to allow exclusive tenure to a burial plot with the ability to extend that
tenure for each subsequent 10 year period thereafter? (This
relates to unused lairs and is unconnected to the recommendation that a
period of at least 75 years should elapse before a layer can be re-used.)
No response.
Question 31: If not, what length of exclusive tenure do you
think would be reasonable from purchase to use of a plot (with the ability
to extend the tenure)? Please explain why.
No response.
Question 32: If a system of time limited tenure was to be
introduced, would it be reasonable to introduce this retrospectively?
No response.
Question 33: Should compensation be paid when a burial authority
resumes ownership of a plot?
Yes, this should follow the system already in place for compulsory purchase
of land.
Question 34: If yes, what would be a fair way of calculating
the compensation due?
Using the fair market value.
Question 35: Do you think the practice of selling blocks
of layers or multiple lairs should be prohibited unless it is for imminent
use?
No response.
Question 36: Do you agree that if re-use of graves occurs
using the 'lift and deepen' (or 'dig and deepen') method, electronic records
should be kept and made readily available to the public?
Yes.
Question 37: Should green burials be covered by new general
legislation on burials, for instance, setting out the minimum depth between
the surface and top of the coffin?
Yes.
Question 38: What, if any, additional provisions should apply
to green burial sites?
Adjusting this provision should comply with environmental, and health and
safety law, particularly if the site has recreational use also.
Question 39: Are there any exemptions from regulations that
should apply to green burial sites?
No.
Question 40: Should legislation be enacted to govern home
burials?
Yes, particularly with regard to environmental and public health risks.
Question 41: Should local authorities be responsible for
authorisation and recording of home burials?
Yes.
Question 42: If you think the task of authorising and recording
home burials should not be the responsibility of local authorities, which
organisation do you think should take on this role? Please set out
your reasons why.
No.
Question 43: Would it be appropriate and practical to introduce
a new system where the nearest relative or local authority can apply to
the Scottish Government for consent to exhume a body?
No.
Question 44: Can you suggest any other options which would
introduce practical benefits and avoid unnecessary delays for exhumation?
No.
Question 45: Are there any benefits in maintaining the current
system where applications are made to the Sheriff for exhumation?
No.
SECTION 4: CREMATION AND ALTERNATIVE METHODS OF DISPOSAL
Question 46: Should the requirements specifying minimum distances
(converted into metric) between new crematorium buildings and houses or
roads be maintained when granting planning permission?
No response.
Question 47: Should the Scottish Government introduce legislation
covering the exhumation of cremated remains?
Yes.
Question 48: Is a time limit of 5 years a reasonable
length of time to enable the next of kin to collect the ashes of the deceased?
Yes, 5 years is more than reasonable.
Question 49: Is it reasonable and practical for the ashes
to be returned to the cremation authority for disposal if they are not
collected after 5 years?
No response.
Question 50: Is it reasonable to enable the disposal of existing
unclaimed ashes that have currently been stored on the premises of funeral
directors for over 5 years and where no instructions have been received,
to be dispersed at a suitable location at the discretion of the funeral
director?
Yes.
Question 51: When a death of a person who is normally resident
in Scotland occurs abroad, should a Government body be able to arrange
a post-mortem to establish the cause of death if this is unknown?
Yes.
Question 52: Are there any other measures that could be taken
to simplify this process?
No response.
Copies of this response are available from:
Lesley Lockhart,
Royal College of Physicians of Edinburgh,
9 Queen Street,
Edinburgh,
EH2 1JQ.
Tel: 0131 225 7324 ext 608
Fax: 0131 220 3939
[12 April 2010]
|
