Chamber and committees

Petitioner submission of 6 October 2021

PE1894/B: Provide clear direction and investment for autism support

Dame Janet Smith, in the Shipman Inquiry third report 2003 (available from https://www.gov.uk/government/publications/the-shipman-inquiry-third-report-death-certification-and-the-investigation-of-deaths-by-coroners), said:

The fact that the system of death certification of the cause of death depends on a single doctor does not give rise only to the risk of concealment of crime or other wrongdoing by that doctor. There may be occasions when a doctor knows that a death may have been caused or contributed to by some misconduct, lack of care or medical error on the part of a professional colleague.

The Death Certification Review Service (DCRS) introduced a level of independent scrutiny of the cause of death notified by the certifying doctor to improve the quality and accuracy of the medical certificate of cause of death (MCCD) and thereby help to deter criminal activity and poor medical practice. The Crown Office and Procurator Fiscal Service (COPFS) is unable to provide that level of independent scrutiny because the Procurator Fiscal is not medically qualified and it is self-evident that determination of the cause of death is essentially a medical matter. The Procurator Fiscal is therefore entirely dependent upon the pathologist, or a Medical Reviewer from the DCRS, for independent medical advice. At present, deaths that are reported to the Procurator Fiscal are not reviewed by DCRS as is confirmed in A Guide to Death Certification Review in Scotland (available from https://www.sad.scot.nhs.uk/media/16242/a-guide-to-death-certification-review-v20.pdf). Yet, only 10% of deaths which are reported to the Procurator Fiscal are investigated according to the Report and Recommendations of the Burial and Cremation Review Group. Section 17 of the report explains:

The COPFS currently investigates around 10% of deaths reported to it because they fall into a variety of defined criteria e.g. unexpected or suspicious deaths, deaths in the workplace.

If this figure is to be relied upon then 90% of deaths which are reported, that is to say referred, to the Procurator Fiscal are not investigated and, subsequently, there is no independent medical scrutiny of the cause of death. In these cases, it must be presumed that the Procurator Fiscal permits the medical practitioner to certify the cause of death to the best of their knowledge and belief after asking a few questions. It should be noted that Dr Shipman always held that the deaths of his murdered patients were expected to him.

In 2012/13, the latest year for which figures are available (https://www.crownoffice.gov.uk/foi/responses-we-have-made-to-foi-requests/40-responses2014/685-post-mortems), 11,021 death reports were received by the Procurator Fiscal and 5,177 deaths resulted in a Procurator Fiscal instructed post-mortem examination which equates to approximately 47% of reported deaths being autopsied. Consequently, it is clear that there are thousands of deaths every year in Scotland which are referred to the Procurator Fiscal but not investigated and none of these are eligible for medical review by the DCRS.

This unsatisfactory situation has arisen because of an Explanatory Note (available from https://www.legislation.gov.uk/asp/2011s/11/notes/content), which has never been approved by the Scottish Parliament but is attached to the Certification of Death (Scotland) Act 2011. Explanatory Note 19 states:

Certain certificates are excluded from this type of review. These are cases where [...] the death has been referred to the procurator fiscal.

This is a reference to section 4(6)(e) of the 2011 Act which states:

For the purposes of subsection (1), an eligible medical certificate of cause of death is a medical certificate of cause of death other than […] a certificate where the cause of death of the deceased person has been (or is being) investigated by a procurator fiscal.

There is an obvious inconsistency here because the 2011 Act only prevents deaths which have been or are being investigated by the Procurator Fiscal from being reviewed by the DCRS whereas the Explanatory Note, which does not form part of the Act, prevents the DCRS from reviewing deaths which are merely referred, that is to say reported, to the Procurator Fiscal. In Scotland, anyone can report a death to the Procurator Fiscal and the DCRS is then prevented from checking that the relative MCCD is in order.

In order to provide reassurance to the public, I consider it necessary that every death certificate should potentially be available for scrutiny by a second doctor independent of the certifying doctor. At present, many thousands of cases which are referred to the Procurator Fiscal are exempted from any medical scrutiny because they are not subject to a full and proper investigation. The 2018 Briefing note on investigation of deaths and FAI (available from https://www.crownoffice.gov.uk/media-site-news-from-copfs/1819-briefing-note-on-investigation-of-deaths-and-fai) states:

In all cases investigated by the Crown, a medical certificate of cause of death is issued by a medical professional, normally by a pathologist, following a post-mortem examination instructed by the Procurator Fiscal.

In my view, this should clearly be the standard required for an investigation under the 2011 Act and all other deaths should be available for review by the DCRS.