Coroners and Justice Bill

This group of amendments concerns the way that post-mortems are conducted, who conducts them and who authorises what can be done during a post-mortem, and attempts to rectify an anomaly relating to retained tissues that has arisen from the Human Tissue Act. First, I thank the Minister for pointing out an error in my drafting of Amendment 42. The amendment refers to page 10, line 3. After the words, "at the end insert" only the second proposed new paragraph should be inserted because the phrase, ""is an appropriately trained pathologist"," is already in the Bill and should not appear twice. I apologise to the Committee for not having had that corrected before the Marshalled List went into print. I shall address how a coroner may decide who will undertake a post-mortem. Clause 16(2) states: ""A request under subsection (1) may specify the kind of examination to be made"." I have a concern, which I have discussed with pathologists from the Royal College of Pathologists, because the coroner is not medically trained. Hence, the requirement to insert the words "after consultation". The reason is that there has been a change in the way that post-mortems are conducted. The post-mortem in which the body is, essentially, cut up, the organs looked at microscopically and then tissues taken and examined under the microscope is now being supplemented by other investigations using scanning such as CT and MRI. However, I emphasise that these are supplementary examinations, not substitute examinations. The information that you get from them is different and complementary to that from a conventional post-mortem. There have been problems, too, for families, who have the expectation that a scan will somehow be quicker and less invasive than an ordinary, what you might term, old-fashioned post-mortem. These scanning examinations are conducted by a radiologist. However, there are complexities over the governance of the system because if these examinations are part of an investigation of death, the clinical governance for them should fall under a pathologist, although, of course, because of radioactivity, the examination and the control of the machinery falls to a radiologist, as does the interpretation of the images. That is why it is important that there should be a discussion over the investigation of each case. In an ideal world, the pathologist would supervise everything, but we do not have an infinite number of staff. What matters is that it is not left to a legally qualified coroner and a radiologist on their own but that it involves a pathologist who, ultimately, has the experience and expertise in the governance of the investigation of deaths. In forensic work you can get important additional information from, particularly, CT scanning. However, there are two aspects to a coroner’s work: first, to ascertain whether the death was unnatural and whether there was foul play of any kind and a case to be pursued; and, secondly, to establish the cause of death where it is a natural death. There needs to be a balanced assessment, on a case-by-case basis, of how each case is best investigated, not only for the most cost-effective way but the most appropriate way to obtain the information needed. The problem is that imaging and microscopic investigation can delay the process. On Amendment 43, there is currently a grey area in training and post-mortems are essential for the training of the next generation of pathologists. However, it is not currently clear how a coroner can authorise a coroner’s post-mortem to be used for training purposes—certainly not when it goes beyond the training of pathologists and into the training of nurses, mortuary technicians and other people who may be involved, or when it involves the presence of medical students to observe what is happening. Very few post-mortems now occur apart from coroners’ post-mortems and therefore the emphasis on training in these post-mortems has become greater, not less, since the passage of the Human Tissue Act. Of course, using a coroner’s post-mortem for training goes beyond its current statutory remit. Ideally, you should have full consent from the relatives for everyone who is present at the post-mortem, but the consent process takes time and personnel. It can be very burdensome and there is no real benefit when people are in training and coming along to observe the post-mortem. The process of obtaining consent can be a burden on the relatives and certainly the coroners’ officers are not happy to do this. There is a need for consistency across the country. At the moment, under different coroners’ jurisdictions, different practices occur and training is happening much more in some than in others. It would seem very sensible that the Chief Coroner should be able to authorise what happens but my amendment makes an assumption that the post-mortem examination is authorised for training purposes unless it is specifically prohibited by the coroner. It would make it much easier and practical to have an assumption that, just as in any teaching hospital, teaching goes on and there are students around, similarly at a post-mortem there would be the ability to train unless of course there was a problem over national security, public health or if somehow the conduct of an inquiry would be jeopardised. It would then seem that the Chief Coroner could produce guidance as to how those who would be in attendance at a post-mortem should be vetted. They might even be required to sign a form to verify that they had no connection whatever with the deceased or with the case involved, but there may be times of course when a clinician who has been involved in looking after a patient should, quite rightly, be present at the post-mortem, because the post-mortem can be the most revealing and important time for them to learn. Amendment 45 has been tabled because of a number of concerns about the present regulation of the retention of tissue samples from those who have died. The existing legislative framework for the retention of tissue samples fails to serve the interests of families with inherited conditions, especially those who suffer the trauma of a sudden adult death. That is because two legislative systems apply to the retention of post-mortem samples—the Human Tissue Act and the Coroners Act—and they do not currently operate in a joined-up way. This Bill gives us the opportunity to rectify that. There have been tragic consequences for families where tissue from one family member who died unexpectedly could have been used to identify other family members who are themselves at risk of sudden death. I should declare here that I am grateful to the Foundation for Genomics and Population Health for its help in providing background to the amendment and indeed to the Royal College of Pathologists as well. Noble Lords will be aware that I raised this concern during the passage of the Human Tissue Act and nothing that has happened since that time has allayed the concerns I expressed then. I am most grateful to the Minister for meeting me recently to discuss this matter. The Human Tissue Act of course was prompted by concerns that health services were failing to respect the interests of families when they retained tissue from dead family members. The Act attempts to right the wrongs that had occurred towards families when tissues had been retained, and regulates retention storage and use of tissue held for DNA analysis for a number of prescribed purposes by introducing a statutory obligation for those wishing to use or store tissue to seek consent from qualifying family members. These purposes include determining the cause of death and obtaining scientific or medical information about a living or deceased person which may be relevant to other persons in the future. The difficulty is that once the coroner is satisfied with the cause of death that is attributed to the deceased, the coroner’s authority lapses, and the continued retention of any samples after that time will be lawful only if consent has been obtained from qualifying family members as prescribed by the Human Tissue Act. The codes of practice published with that by the Human Tissue Authority prescribe that, in the absence of the necessary consents, tissue should be destroyed up to 10 weeks after any deadline imposed by the coroner has expired. That is the nub of the problem. The coroners and their officers have a statutory responsibility for obtaining consent for continued retention of tissue for which they may be and often are inadequately trained and resourced. Although it is best practice for local protocols to be set up between genetics departments and coroners’ offices, these are rare in practice. So what happens? The coroner undertakes a post-mortem of an unknown cause of death. On taking the heart out and examining other tissues, he realises that this is a sudden cardiac death. Having taken the heart out, he then has to put it back again, because he cannot retain it. He then asks the relatives about permission to retain the heart and other tissues and then he has to take it out again. It is manifestly important and in the interests of the family that if a young person has had a sudden cardiac death, it is understood as there may be others in the family who are genetically related and are at risk, and whose death can be prevented by appropriate interventions. Another situation arose recently where, again, the retention of tissues was making progress in the common good difficult. The Department of Health had been supportive of a project trying to understand the incidence of new variant CJD, and it was thought that very small samples from the spleen taken at the coroner’s post-mortems would allow a broad epidemiological study to occur. The problem was that, even though tiny tissue samples were to be taken, consent had to be obtained, and consent was not viewed as a coroner’s task. The coroners’ officers did not want to be part of that process and there was no funding for a whole additional layer to go in to obtain consent, so the project has fallen through. It would have been for the benefit of society, not for the benefit of the individual families, which is why the amendment is worded as it is. I had also felt it important that the whole supervision of autopsies was done under a trained pathologist and not put out to technicians or others. The reason is that diagnosing the cause of death is incredibly complicated. It is easier to do so when there has been a crime such as a knife crime or a shooting, but unexpected deaths and deaths in hospital can be very complex to diagnose. Someone who has training in pathology but also has full diagnostic skills training is needed in order to integrate all the information that comes together. Recently there was an NCEPOD report about the variability in the standard of post-mortems. That has arisen because although the Royal College of Pathologists guidance is clear—that guidance sets a high standard for post-mortems—it has not been clear to those undertaking the post-mortem what the role of the coroner’s post-mortem is. Is it simply to establish non-natural causes and rule out foul play, or is it to establish as accurately as possible what the cause of death was, getting good data that are important for the health of the nation and that are certainly important if you are looking at governance systems in somewhere like a hospital, which is a large, complex organisation? I hope that I have been able to explain some of the background to these amendments and why this gives us an opportunity to rectify an anomaly that has arisen in relation to the Human Tissue Act. In Scotland the law is different. Blocks and slides of tissue—small blocks, about the size of small dice, and wafer-thin slices of tissue on microscope slides—are deemed to be part of the clinical record. They can therefore be retained without having to get explicit consent from the family for them to be retained if it is deemed to be either in the interests of the family or for the public good. I also think that while, in a theoretical world, it is ideal to obtain consent before you start the post-mortem, these families are often so pole-axed by the death and so overwhelmed by the shock of what has happened that they really cannot cope with being burdened with a lot of complexities, when you do not even know what tissue it might be wise to retain. I therefore hope that the Bill can be amended to allow a degree of discretion by those undertaking the post-mortem at the time to retain tissues if it is in the interests of the family or of society. I beg to move.