The Health and Care Bill 2021-22 (the Bill) was introduced in the House of Commons on 6 July 2021 as Bill 140 of 2021-22. It had its Second Reading on 14 July 2021 and has been considered by a Public Bill Committee. The Bill, as amended in Public Bill Committee, has been republished as Bill 183 of 2021-22. This briefing paper deals with Clause 124 (now Clause 128 in the Bill, as amended), “Medical examiners”, which was not amended at Public Bill Committee stage. Separate Library briefing papers deal with other parts of the Bill and can be accessed from the Commons Library webpage, Health and Care Bill 2021-22.
This paper deals mainly with the position in England and Wales except where otherwise stated. Section 5 sets out information about the system in Scotland.
Death certification
The present system of death certification in England and Wales requires certification of the cause of death by a registered medical practitioner, to the best of their knowledge and belief. Alternatively, the death must have been reported to the coroner and the appropriate certificate provided by them.
Temporary changes introduced by the Coronavirus Act 2020 are currently in place, including the suspension of the requirement for a confirmatory certificate from a second registered medical practitioner before a body may be cremated.
Medical examiners
A new medical examiner system is being rolled out across England and Wales to provide greater scrutiny of deaths.
The Coroners and Justice Act 2009 provides for a system of death certification under which all deaths in England and Wales that do not require investigation by a coroner will be subject to scrutiny by independent medical examiners. The statutory scheme (as amended) provides for local authorities in England and Local Health Boards in Wales to appoint the medical examiners. The legislative provisions are not yet fully implemented.
The Government now intends that the system will be within the NHS. In 2018, the Government announced that it would amend the Coroners and Justice Act 2009, when an opportunity arose, and that, meanwhile, a non-statutory medical examiner system would be introduced. The stated purpose of the medical examiner system is to:
- provide greater safeguards for the public by ensuring proper scrutiny of all non-coronial deaths
- ensure the appropriate direction of deaths to the coroner
- provide a better service for the bereaved and an opportunity for them to raise any concerns to a doctor not involved in the care of the deceased
- improve the quality of death certification
- improve the quality of mortality data.
The introduction of a system of medical examiners follows a long period of policy development, including pilot schemes, which originated, at least in part, as a response to Harold Shipman’s murder of his patients. For many years, Shipman managed to escape detection by certifying patients he murdered as having died from natural causes, avoiding scrutiny by a coroner. In 2003, the Shipman Inquiry, chaired by Dame Janet Smith, proposed that there should be an effective cross-check of the account of events given by the doctor who treated the deceased and who claimed to be able to identify the cause of death, regardless of whether the death was followed by burial or cremation. Similar recommendations have also been made by others.
The Health and Care Bill 2021-22
Clause 124 (now Clause 128) of the Bill would amend the Coroners and Justice Act 2009 to introduce a statutory medical examiner system within the NHS rather than local authorities in England, for the purpose of scrutinising all deaths which do not involve a coroner. It would require the Secretary of State to ensure that enough medical examiners are appointed in the healthcare system in England, that enough funds and resources are made available to medical examiners to enable them to carry out their functions of scrutiny, and to ensure that their performance is monitored.
The Explanatory Notes to the Bill state:
“Medical examiners will introduce an additional level of scrutiny to those deaths not reviewed by a coroner, improve engagement with the bereaved in the process of death certification and offer them an opportunity to raise any concerns as well as improving the quality and accuracy of Medical Certificates of Cause of Death. Independent scrutiny of deaths will reduce the potential for malpractice by doctors to go unchecked. The level of scrutiny will be proportionate so as not to impose undue delays on the bereaved or undue burdens on medical practitioners and others involved in the process”.
The Secretary of State would have power to issue directions to an NHS body concerning medical examiners.
Scotland
Different arrangements for death certification and registration apply in Scotland. The Death Certification Review Service, which is run by Healthcare Improvement Scotland, checks on the accuracy of a sample of medical certificates of cause of death (MCCDs) with the aim of improving:
- the quality and accuracy of MCCDs
- public health information about causes of death in Scotland, and
- clinical governance issues identified during the death certification review process.