Coroners and Justice Bill

My Lords, I, too, thank the noble Baroness, Lady Finlay of Llandaff, for again raising this area of concern. The noble Lords, Lord Hunt and Lord Alderdice, have said that this is a difficult, complex and subtle area. Because the level of subtlety is such that we need to write in response to this debate, I will end by inviting the noble Baroness to withdraw her amendment and inviting noble Lords not to press their amendments. In those circumstances, I understand that it would be appropriate for amendments to be brought back at Third Reading if we were unable to satisfy the general direction that we have talked about. I will, of course, add that caveat about the spirit. We have once again returned to the emotive issue of post-mortems and tissue retention and, as in Committee, we have heard a number of highly informed opinions. I am confident that most if not all of the issues raised in Amendment 32 can be more than adequately dealt with in other ways. These include guidance issued by the Chief Coroner, the provisions of the Charter for Bereaved Families and provision in regulations to be made under Clause 38(3)(g) governing the preservation, retention, release or disposal of bodies, including body parts. I would wholeheartedly agree that, as a matter of best practice, it may well be appropriate for the coroner to attempt to explain and discuss the extent and purpose of any post-mortem examination before the examination is commissioned and carried out. Among other things the coroner would explain what would happen to any tissues taken as samples after the coroner’s jurisdiction over them has finished. However, such prior contact with the next of kin may not always be appropriate or practical, particularly in situations where the next of kin cannot be immediately contacted, where the death is especially complicated or distressing, or in situations where the next of kin may be implicated in the death. It may also be the case that the coroner is not best placed to ascertain the wishes of the family. It is often the case that either a medical professional or a police officer is liaising with the family in the immediate aftermath of a death and they would be best placed to raise this issue. The draft Charter for Bereaved Families, published alongside the Bill, already contains relevant passages at paragraphs 15 to 20, 36 and 37, and we will consult further on this as part of the implementation process. In addition, I should say that the concept of "appropriate consent" is predicated on who gives the consent rather than on to whom the consent is given, so any such consent given to a coroner or to a coroner’s officer, police officer or medical practitioner is already regarded as appropriate consent under the Human Tissue Act 2004. The 1984 coroners’ rules, which were updated in 2005 following the passage of the Human Tissue Act, contain provisions on material retained after a post-mortem examination. The coroner is required to inform the deceased’s relatives of the period that material will be retained and the options regarding the material at the end of that period. One of those options is that the relatives may consent to the material being retained and used for medical research. Similar provisions could be made in regulations under Clause 38(3)(g) and we consider that this would be preferable to ascertaining wishes before the post-mortem when the family may be distressed and treating those wishes as consent. As regards Amendment 33, I must reiterate the Government’s position that the regime set up by the Human Tissue Act 2004 is a consent-based regime and that the consent of the next of kin should be obtained in all circumstances before human tissue samples are kept for the purpose of scientific research, including those samples taken during a coroner’s post-mortem. The Government cannot give their backing to any proposal that seeks to undermine the fundamental principle of next of kin consent established by Parliament in passing the Human Tissue Act. Therefore, once the coroner has finished his or her investigation and their jurisdiction is at an end, and if there is no requirement for tissue to be kept for evidential purposes, the state has no right to retain tissue without appropriate consent from the next of kin. I appreciate that it is a long-standing contention of bodies such as the Royal College of Pathologists that it is desirable that tissue be retained when it is for the good of the family; for example, when there is a genetic element to a cause of death. But the Government take the view that it is ultimately for the family to decide what is in their interests, and not for the state to dictate that their relative’s tissue should be retained "for their own good". The current legislation allows such tissue to be retained for these purposes with appropriate consent, and we wish that to retain that position. I can offer the noble Baroness some comfort with regard to paragraph (b) of Amendment 33 in that, under PACE, powers already exist for tissue to be seized as evidence and retained for criminal justice purposes. The provision at paragraph (c) regarding, ""any other matters as the Secretary of State may instruct"," would provide the Secretary of State with wide-ranging powers to take away decisions about the retention of tissue from families, without even the safeguard of the requirement for parliamentary approval for such a change in the law. This would again contravene the spirit of the Human Tissue Act which has at its heart the concept that it is for individuals and their families to have the right to decide what happens to their bodies after they are dead. I am sure that organisations such as those representing the families affected by Alder Hey, Bristol and other organ retention scandals in the past would be very concerned at any attempt to weaken this principle. Also deeply concerned would be those who belong to many faith groups, who believe strongly that a funeral should take place with the body of the deceased person untampered with as far as possible. I hope that I have been able at least to satisfy the noble Baroness that her first amendment is unnecessary. I know that she will not be satisfied with my response to her second amendment, but I hope that she will agree that it raises an important point of principle which goes to the heart of the Human Tissue Act and, as such, this is not the occasion to take the matter further. I repeat that we will look at her speech with great care, consider its general thrust and write to her as soon as is reasonably practical. We will copy that letter to other noble Lords who have taken part in the debate. Finally, on Amendment 34, I reiterate that we anticipate that guidance about post-mortems issued by the Chief Coroner, in conjunction with and on the advice of the medical adviser to the Chief Coroner, would address the circumstances in which a non-invasive post-mortem might be appropriate and those cases which might warrant a kind of post-mortem plus. This might be, for example, when family members have concerns about a possible congenital defect, which a routine post-mortem may not reveal, if one or more family members die at an unexpectedly young age. Provided that the family consent, there is no reason why such a post-mortem cannot be held—they could even be contacted by phone while the post-mortem is taking place. It is expected that the new medical examiners, whose primary responsibility is to confirm the cause of death entered by doctors on medical certificates, will indeed make important contributions to that decision-making process in the following situations. The first is where a coroner may be unsure as to whether a post-mortem, or related scientific examination, is required in a particular case. In that circumstance, the coroner will be able to consult the local medical examiner for advice, in the same way that he or she may consult the medical examiner about other issues which relate to the deceased person’s medical cause of death. Alternatively, a medical examiner may refer one of their own cases to a coroner because, after consulting the treating doctor, he or she is unable to confirm the cause of death given on the death certificate. In making the referral, the medical examiner may make a suggestion about a particular kind of scientific examination which may assist, or may be consulted by the coroner about the sort of examination that the medical examiner would recommend. On the coroner’s involvement in research projects, to which the noble Baroness referred, this is a matter that will be dealt with by the Chief Coroner in the future. We envisage that his approach will be more constructive than some individual coroners in the current system. I agree with the noble Lord, Lord Alderdice, that there needs to be a close working partnership between coroners and medical examiners. The difficulty I have with his amendment is that it would place in primary legislation a statutory requirement for the coroner to consult a medical examiner in all situations where a partial post-mortem examination or a particular kind of examination was being requested. I believe that such an approach would be unnecessarily rigid and could lead to delays in arranging post-mortem examinations, which could in turn lead to delays for families in making funeral arrangements. I hope we can agree that such delays would be undesirable and that, accordingly, it would be better to leave such matters to the discretion of the coroner. I thank the noble Baroness, Lady Finlay, for the time that she has spent with us both today and beforehand. We shall of course be available for further consultation after we have written to her. On that basis, I invite her to withdraw the amendment.