Chamber and committees

Scottish Government submission of 5 January 2021

PE1911/D - Review of Human Tissue (Scotland) Act 2006 as it relates to post-mortems

1. Thank you for your correspondence of 8 December 2021 to Craig McGill, the Committee liaison officer, seeking views on the submission by the Scottish Council of Jewish Communities (SCoJeC) in relation to Petition PE1911. I am responding as Interim Deputy Director for the Health Protection Division, with responsibility for the legislation and overarching policy governing the Human Tissue (Scotland) Act 2006.  

2. In its submission, SCoJeC supports: a review of the Human Tissue (Scotland) Act 2006, and in particular, an amendment to bring disposal of tissue samples taken in the course of a procurator fiscal post-mortem in line with the disposal of organs similarly removed, i.e. to require authorisation for the retention of all body parts, organs and tissue. Furthermore, in order to evidence compliance, there should be a requirement to document disposal in the medical record, including, if any organs or tissue are retained, a copy of the written authorisation.

3. As the position set out by SCoJeC relates specifically to procurator fiscal post-mortems, we sought views from The Crown Office and Procurator Fiscal Service (COPFS) on this matter and the response is provided below.

COPFS is responsible for the investigation of all sudden, suspicious, accidental, unexpected and unexplained deaths in Scotland. Where tissue blocks and slides taken as part of a post mortem examination are requested to be returned by the nearest relative, any reasonable request will be treated sympathetically by the Procurator Fiscal. However, in certain cases, for example where suspicious circumstances cannot be excluded, it will be appropriate to retain tissue blocks and slides for possible further investigation. Similarly, in cases of Sudden Unexpected Death in Infancy (SUDI) or Sudden Infant Death Syndrome (SIDS), there is no determinate cause of death and advances in medical knowledge may eventually provide a definite answer. Slides or blocks would therefore be retained in such cases to facilitate any further investigation. Accordingly, any change whereby samples are automatically returned to the nearest relative or where authorisation must be sought to retain them may, in relation to some deaths, impair our ability to fully investigate the circumstances surrounding the death or establish a definitive cause of death.

COPFS has well-established procedures in place for communicating with nearest relatives in relation to deaths where organs have been retained and, in relation to any changes to the legislation regarding tissue samples, would ensure similar clear guidance was published and highlighted to relevant members of staff.

4. In cases of a sudden, unexplained or suspicious death, post-mortem examinations instructed by the Procurator Fiscal have a vital role in establishing the medical cause of death and play an important role in understanding if criminality was involved in a death. It essential that COPFS are able to undertake independent investigations into a cause of death, without which, the death cannot be registered. As such, the Procurator Fiscal cannot seek authorisation from the family before doing so. It is for this reason the Scottish Government does not intend to alter the Human Tissue Act 2006 in order for families to give consent to Procurator Fiscal post mortems.