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Inspectorate of Prosecution in Scotland - Death Cases: A Thematic Report on Liaison in Death Cases with Particular Reference to Organ Retention

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Chapter 6 Post Mortems, Organ Retention and Donation

The Procurator Fiscal has a responsibility to inquire into all sudden, suspicious, accidental, unexpected and unexplained deaths. If a cause of death cannot be ascertained or certified then the Procurator Fiscal will decide to instruct a post mortem examination. There are a number of types of post mortem examination available:

  • A non-invasive examination of the deceased with certification being based on an external examination and a review of the facts surrounding the death and the medical records of the deceased. This is referred to as "a view and grant".
  • In cases where HIV or Hepatitis are likely an initial blood screen will be required and an external examination with toxicological and other supplementary evidence may be sufficient. If criminal proceedings are likely then an autopsy will have to take place.
  • A limited post mortem examination that may be restricted to an external examination and a more detailed examination of certain parts of the body.
  • A full post mortem examination conducted by a single pathologist, which examines all parts of the body including internal areas.
  • A full post mortem examination conducted by two pathologists, which is commonly referred to as a double doctor post mortem and carried out in cases where a criminal prosecution is likely and the cause of death required to be established by corroborated evidence.

Procurator Fiscal Post Mortems, by type, in Scotland, 2004/05 to 2005/06 5

Type of Post Mortem

2004/05

2005/06

One doctor ( NHS)

1,881

2,458

One doctor (University)

3,088

2,314

One NHS doctor and one university doctor

20

5

Two doctor ( NHS)

98

130

Two doctor (university)

557

516

View and grant ( NHS)

78

190

View and grant (university)

760

727

View and grant (police surgeon)

210

3

Other (blank)

1

-

Total

6,693

6,343

It can be seen from the foregoing table and the number of deaths reported to Procurators Fiscal that post mortems are instructed in about 50% of cases. This is very similar to the rate in England instructed by Coroners. The Procurator Fiscal is responsible for deciding which pathologist(s) to instruct in any particular death.

"There is still confusion out there between hospital and Fiscal post mortems."

Specialist pathologists will be instructed in appropriate cases, for example, paediatric pathologists in child deaths and neuropathologists in head injury cases.

"There is a UK wide shortage of pathologists."

If there is a requirement to retain an organ for further enquiry the nearest relative should be informed and arrangements made to deal with the organ after all the necessary tests have been done in accordance with the wishes of the nearest relative.

In deaths where there is the possibility of criminal prosecution there is likely to be a second (or even more) post mortem examination instructed by the defence. The problem of delays caused by defence post mortems was highlighted to us.

In criminal cases the body of the deceased will not be released to relatives for cremation or burial until the defence post mortem examination or examinations have been concluded and that information received in writing. Needless to say this can be a source of great distress for grieving relatives. Defence post mortems are a relatively new phenomenon.

The Crown Office guidance instructs that where a post mortem is instructed arrangements should be made to ensure that the nearest relatives are notified. Again the guidance manual provides a leaflet for giving to families where a post mortem is to be held. This leaflet is designed for situations where an invasive post mortem will take place or has taken place and discusses organ and tissue retention. It also instructs the Procurator Fiscal to obtain information about the religious or cultural requirements applicable to the deceased and that every effort should be made to facilitate the observance of such requirements. The Crown Office Diversity Team has prepared a series of information packages dealing with various religious groups etc and their attitude to what should happen after death.

The leaflet giving information on post mortems also includes information on organ retention and gives advice where an organ has to be retained by the pathologist in order to ascertain the cause of death and instructs the Procurator Fiscal to contact the next of kin as soon as possible to inform them that the organ has been removed and advise them of the options available to them.

So far as organ donation and transplantation is concerned it is recognised by Crown Office that successful organ transplants can be life saving and for many people both organ and tissue transplants are the most effective form of treatment. It is also recognised that many people are not benefiting from transplant because of a shortage of donated organs and tissues.

Accordingly a protocol has been agreed between Crown Office and the Procurator Fiscal Service and the Scottish Transplant Group for dealing with cases where organ and/or tissue transplantation might be contemplated. The important point here is that no donation can take place without the consent of the Procurator Fiscal and this is preserved in the Human Tissue (Scotland) Act 2006 which provides at Section 5 that where there is reason to believe that the Procurator Fiscal may require an examination of a body no part of that body may be removed without the consent of the Procurator Fiscal.

The Book of Regulations has a particular section on retention of organs and highlights the fact that it is a highly sensitive subject and the Procurator Fiscal must take the greatest care when dealing with it. It states that Victim Information and Advice Division ( VIA) can assist in communications with relatives and certain deaths must be referred to them. The deaths which must be reported for VIA's involvement are what are known as Category A deaths and these include murder, other homicides, definite or suspected contraventions of Section 1 or 3 of the Road Traffic Act, contraventions of Section 3 of the Road Traffic Act where there has been a death, road traffic collision deaths where no criminal proceedings are contemplated, accidents at the place of work or in the course of employment, child deaths and deaths identified as potential discretionary Fatal Accident Inquiries.

The Book of Regulations Chapter 12 states that although organ retention is comparatively uncommon in practice there are several possible situations where it may be necessary to retain organs or tissue for additional expert examinations. It is most common in the cases of unexplained death in infancy (Sudden Infant Death Syndrome ( SIDS)/Sudden Unexpected Death in Infancy ( SUDI)).

"I trusted the hospital with his body and I was let down."

It draws a distinction between retention of whole organs such as brains or hearts and the retention of tissue samples such as blood specimens.

In cases where retention of a whole organ such as a heart or brain is considered necessary the Procurator Fiscal is instructed to ensure that the nearest relative should be forewarned. If necessary this can be done through the Police Family Liaison Officer if there is one but the essential point made is that the nearest relative must be made aware of the possibility of organ retention at the earliest opportunity and this information should preferably be imparted by someone already known to them.

So far as tissues are concerned the guidance highlights the fact that these are invariably very small and that the Human Tissue (Scotland) Act 2006 now specifies that such samples will be considered to be part of the medical records of the deceased and can be destroyed with the medical records when appropriate. However authorisation is still needed from the nearest relatives to use these samples for training, education or research beyond what is needed to ascertain or review the cause of death. Further information is also given on paraffin blocks and slides for microscopy.

Regarding disposal the guidance instructs the Procurator Fiscal to have arrangements in place with local pathologist service providers to ensure that the Procurator Fiscal is notified promptly in all cases where an organ is retained in the course of a post mortem and where tissue blocks or slides are made.

Liaison arrangements are to be put in place between the Procurator Fiscal and pathologist service providers to ensure that the Procurator Fiscal is notified, in writing, as soon as the analysis of any retained material has been completed.

In the case of organs, disposal should be in accordance with the reasonable wishes of the nearest relative. Generally there should be no need to retain an organ beyond the period of time required for diagnostic purposes.

In respect of samples, tissue blocks and slides unless the nearest relative has sought return of this material these should be destroyed. Tissue blocks or slides should be retained with the post mortem records on the understanding that this material cannot be used for any purpose unconnected with the Procurator Fiscal's inquiry without the pathologist obtaining the necessary consent or authorisation.

So far as disposal options are concerned the need for sensitivity is stressed in the guidance and it is highlighted that the word "disposal" itself may be offensive to some and that other terminology such as "burial or cremation" should be used.

The options for disposal are:

1. -Sensitive disposal of the retained material by the pathologist.

2. -Separate burial or cremation of the retained material.

3. -Delaying the funeral so that material can be reunited with the body for burial/cremation.

4. -Authorisation of retention of the material for medical research, education or for other possible inquiries unconnected with the Procurator Fiscal's investigation.

At the time of writing so far as options 2 and 3 are concerned the Department had not taken a final view as to who should be responsible for the costs but in the interim the Department was willing to make a contribution up to a maximum of £250 in these cases.

It is not necessary here to rehearse all the instructions given in the Book of Regulations but these go on to include detailed instructions on suspicious deaths and reporting cases where a compulsory or discretionary Fatal Accident Inquiry will be appropriate.

As a result of the heightened public concerns over retention of organs at Alder Hey in Liverpool and Bristol Royal Infirmary (The Royal Liverpool Children's Inquiry and The Bristol Royal Infirmary Inquiry) it came to notice that, in Scotland, organs had been retained after post mortem, in some cases, without proper consent.

"Parents all over Scotland are suffering."

A Review Group was announced in September 2000 against a background of these concerns and was chaired by Professor Sheila McLean, Professor of Law and Ethics in Medicine at Glasgow University and members were drawn from academia, health, a leading children's charity and Crown Office.

The remit of the Group was:

"…to review previous post mortem practice in Scotland, in particular in relation to organ retention, and current documentation on consent and guidance, taking account of developments across the UK; to develop a Code of Practice for Scotland with particular emphasis on issues of informed consent and the most effective mechanism for keeping that Code of Practice under review; and to clarify current legal issues with a view to making recommendations".

The Group's recommendations in respect of Procurator Fiscal instructed post mortems were referred to the then Lord Advocate, Colin Boyd, he replied that revised guidance would be issued to Procurators Fiscal to take the groups recommendations forward.

As a result of the Review Group's work, the Human Tissue (Scotland) Act 2006 was enacted and came into force in September 2006. It is based on the principle of 'authorisation 6' and deals with the lawful storage and use of body parts, organs and tissue from the living or the deceased. It has three main elements:

1. -Provisions relating to hospital post-mortem examinations

2. -Provisions relating to organ donation and transplantation

3. Modernisation of the Anatomy Act 1984

Procurators Fiscal were provided with guidance on the commencement of the Human Tissue (Scotland) Act 2006 in a Crown Office Circular, issued in October 2006. The circular provided guidance on its implementation and specified that:

"The Act does not affect the instruction or mechanics of Procurator Fiscal autopsies, but will govern what should be done with organs and tissue samples that have been removed in the course of that autopsy once the Procurator Fiscal's purposes have been served."

The Human Tissue (Scotland) Act 2006 provides a distinction between organs, tissue and tissue blocks and slides. It allows for donors (deceased or living) to express their wishes for transplantation and also for research, education, training and audit. With regard to deceased donors, where no wishes have been left, the nearest relative (for over 12's) or the person with parental rights/responsibilities (for under-12s) can be approached to consider donation. If examination of the body is required for the purpose of the Procurator Fiscal then the Procurator Fiscal must provide consent.

"Trying to give the opportunity for bereaved relatives to make tissue available for research gives the chance for something good to have come out of their situation."

In the past if a pathologist wished to retain for research or teaching purposes he or she should have obtained consent from the next of kin, advised the Procurator Fiscal and ensured there was no objection to this course of action. This has been updated by the Human Tissue (Scotland) Act 2006. Once the organ is no longer required for the purposes of the Procurator Fiscal the pathologist can do nothing further with the organ without proper "authorisation". Tissue blocks and slides, however, automatically become part of the medical records and can be used for certain purposes eg audit, training, research.

"I would like a complete shake up of Fiscal autopsies so they are geared up to do them as soon as possible after the death. It would be better for the diagnostic side of forensic work and open up a huge opportunity for transplant and research fields."

In recent years hospital post mortems have fallen drastically to the extent that we found concerns over deskilling of pathologists who simply do not get the opportunity to carry out such examinations, a lack of accuracy in causes of death and the loss of training, education and research opportunities.

"As hospital autopsies decline the opportunity of gathering comparative material declined and people are less keen to have brain retention in the hospital situation."

In the past we referred to "next of kin" the more modern term contained in the Human Tissue (Scotland) Act of 2006 is "nearest relative". Section 50 defines nearest relative as the person who immediately before the adult persons death was his or her:

  • Spouse or civil partner
  • Cohabite(e) for more than six months
  • Child
  • Parent
  • Brother or sister
  • Grandparent
  • Grandchild
  • Uncle or aunt
  • Cousin
  • Niece or nephew
  • Friend of longstanding

In practice we found that contact could be with more than one person.

When the Procurator Fiscal instructs an autopsy he or she will not contact the nearest relative if the Police have ascertained from the nearest relative that they have no objection to a post mortem examination. If there is an objection from a nearest relative and a post mortem examination is unavoidable the nearest relative will be contacted by the Procurator Fiscal and the situation explained. Every reasonable effort will be made to accommodate the cultural and religious needs of the deceased and nearest relative where these are known. This is a difficult area of work the sensitivity and difficulty of which should not be downplayed.

In order to establish current practice with regard to deaths where organs were retained or donated we reviewed files at Procurator Fiscal Offices throughout the country. In particular we looked at liaison with relatives, pathologists and Police; whether retention of organs was dealt with in accordance with guidelines; and looked to identify areas of good practice that could be used throughout the whole of the Crown Office and Procurator Fiscal Service.

Approximately 400 death files were reviewed at 21 offices during the period January to November 2006. We found that organs were retained on 22 occasions 7 and organs were donated on 3 occasions. We should make it clear that here we also include the short term retention when the organ is returned to the body prior to release. We include these to show the frequency and type of organ "retained".

The following tables detail the offices visited and provide information on the organs retained (and their ultimate disposal) or donated:

Offices Visited, January to November 2006

Office

Area

Month

No. of Cases Where Organs Retained

Paisley

Argyll & Clyde

Jan 06

0

Stirling

Central

Feb 06

1

Arbroath

Tayside

Mar 06

1

Forfar

Tayside

Mar 06

1

Edinburgh

Lothian & Borders

Mar & Aug 06

8

Stornoway

Highlands & Islands

Apr 06

0

Glasgow

Glasgow

Apr & June 06

2

Campbeltown

Argyll & Clyde

May 06

0

Dundee

Tayside

May 06

2

Selkirk

Lothian & Borders

Jun 06

2

Jedburgh

Lothian & Borders

Jun 06

0

Aberdeen

Grampian

Jun & Sep 06

(1 Donation)

Linlithgow

Lothian & Borders

Jul 06

0

Stranraer

Dumfries & Galloway

Aug 06

1

Greenock

Argyll & Clyde

Aug 06

0

Kilmarnock

Ayrshire

Aug 06

1

Peterhead

Grampian

Sep 06

0

Falkirk

Central

Sep 06

0

Cupar

Fife

Oct 06

0

Haddington

Lothian & Borders

Nov 06

(1 Donation)

Dumbarton

Argyll & Clyde

Nov 06

3 (plus 1 Donation)

Deaths Reviewed at Offices Where Organs Have Been Retained/Donated 8

Age

Organ Retained

Comments

Child

Brain

Brain returned to body and released together

6

Brain

Brain released after body

Adult

Brain

Brain released after body

2.5

Brain

Still ongoing at time of review. Family advised of retention.

25

Brain

Brain returned to body and released together

51

Brain

Approval from family for brain to be cremated by pathologist

46

Brain

Approval from family for pathologist to dispose of brain

62

Spleen and part rib

Organs released with body

2

Brain

Approval from family for brain to be retained and used for medical purposes

1

Brain and spinal chord

Still ongoing at time of review

25

Brain & Lung

Family being contacted with regard to disposal?

37

Brain

Permission given from family for brain to be disposed of by pathologist

93

Brain

Brain returned to body and released together

4 months

Brain

Permission from mother for Yorkhill to dispose of brain

49

Brain

Still ongoing at time of review. Further tests were required.

18 months

Brain

Still ongoing at time of review. Lots of communication with father.

29

Brain

Brain reunited with body and released together

68

Brain

Family advised of retention and they wished for brain to be returned to them for burial. Body already released.

78

Brain

Brain returned to body and released together

23

DONATION
Left Kidney and Corneas

Donation approved by PF

Adult

DONATION
Corneas

Donation approved by PF. NB: Pathologist advised that only corneas could be used. This was done.

9

Brain

Brain returned to body and released together

As above

DONATION
Heart Valves

PF informed of parents wishes

23 months

Brain

Brain returned to body and released together

2

Brain

Brain returned to body and released together

Our review of files showed that with regard to the 22 cases where organs were retained:

  • on 9 occasions the organ had been returned to the body prior to release;
  • on 3 occasions the organ was returned after the body was released;
  • on 3 occasions the family asked for the pathologist to dispose of the organ;
  • on 1 occasion the family asked for the hospital to dispose of the organ;
  • on 1 occasion the family gave permission for the organ to be retained and used for medical purposes;
  • on 4 occasions the investigations were still being completed at the time of the review; and
  • on 1 occasion disposal was under consideration

With respect to the 3 cases where organs were donated the Procurator Fiscal approved donation on all occasions.

There was evidence on all the files, with the exception of one where our enquiries prompted consideration of disposal, that the Procurator Fiscal had dealt with deaths adequately:

  • Nearest relatives were informed of organ retention issues where appropriate (copies of letters were on file).
  • Notes of meetings and discussions with nearest relatives, pathologists and Police were on file.
  • One case showed that given the distressed state of the mother the Procurator Fiscal decided not to issue the standard letter but instead asked the Police Family Liaison Officer to personally explain the role of the Procurator Fiscal and the issues surrounding the need for a post mortem. In this same case the Procurator Fiscal had many conversations with the Police on how best to communicate with the mother.
  • In another case the post mortem was done on 21 January 2005 and further investigations were required. An aunt contacted the Procurator Fiscal by letter on 21 March 2005 asking when the body could be released. The Procurator Fiscal followed this up and instructions to reunite the brain with the body were issued 31 March 2006.
  • In one case the father became very involved with regard to his daughter's cause of death and it was noted that the Procurator Fiscal had taken every step to pursue every avenue.
  • In another there was good communication between the family, Procurator Fiscal and pathologist regarding a cardiac abnormality that may affect other family members.
  • Another death file showed that there had been a miscommunication issue within the mortuary and this resulted in the brain not being returned to the body although a form had been sent to the Procurator Fiscal indicating that this had actually been done. The Procurator Fiscal released the body (supposedly with the brain as indicated on the mortuary form). When the mortuary discovered the mistake they immediately contacted the Procurator Fiscal. The family were immediately contacted and their instructions sought. The Procurator Fiscal has advised us that the mortuary have since tightened up their procedures.

There were also some examples of good practice:

  • Some offices used "Post Mortem Examination" forms that are instructions to the pathologist on requirements.
  • Some offices receive "Organ Retention Forms" from pathologists that provide information on the organ retained and for what reason.
  • Some offices use a style form that records post mortem details, cause of death, instructions on release, etc.
  • In one case the Procurator Fiscal had written to the next of kin within three days. The target is three weeks.

As part of the work of the Review Group on the Retention of Organs at Post Mortem, NHS Trusts in Scotland were asked to provide information about the number of organs retained at post mortem. These figures were published in the first report of the group during January 2001. 9 In response to a request from the Minister during 2001, Audit Scotland was instructed by the Auditor General to undertake an exercise to validate the information provided by the Trusts.

The Audit Scotland review aimed to establish:

  • The number of organs retained after post mortem in Scotland
  • The robustness of hospital information systems

The results of the review were published by Audit Scotland in March 2002.

In light of this work, we issued a request to NHS Boards across Scotland, asking for the following information:

  • Number of post mortems conducted, on an annual calendar year basis, from 2000 to date, specifying whether Procurator Fiscal or hospital post mortem.
  • Number of organs retained from post mortems, on an annual calendar year basis, from 2000 to date, specifying whether Procurator Fiscal or hospital post mortem.

We must stress this information, so far as it relates to Fiscal post mortems, and associated organ retention, consists of those primarily carried out at NHS facilities and does not include those carried out at some non- NHS facilities such as the City Mortuary, Glasgow. Figures for 2006 do not reflect a full years worth of data.

The information supplied to us is detailed below in Table 1.

TABLE 1 - Post-Mortems (Fiscal/Hospital) and Organs Retained (Fiscal/Hospital) in Scotland, 2000 to 2006

POST MORTEMS

ORGANS RETAINED

Fiscal

Hospital

Total

Fiscal

Hospital

Total

2000

3,779

2,524

6,303

69

319

388

2001

3,677

1,951

5,628

45

348

393

2002

3,581

1,655

5,236

59

397

456

2003

3,460

1,616

5,076

51

249

300

2004

3,394

1,561

4,955

61

255

316

2005

3,243

1,457

4,700

54

233

287

2006

2,339

1,180

3,519

53

188

241

Chart 1 Number of Fiscal and Hospital Post Mortems in Scotland, 2000 to 2006

Chart 1 Number of Fiscal and Hospital Post Mortems in Scotland, 2000 to 2006

Chart 2 Number of Organs Retained from Fiscal and Hospital Post Mortems, 2000 to 2006

Chart 2 Number of Organs Retained from Fiscal and Hospital Post Mortems, 2000 to 2006

The figures as supplied to us show a considerable reduction in the number of hospital post mortems and organs retained over the period. The number of Fiscal post mortems has remained relatively constant as has the number of organs retained at such.

This information is in line with that supplied to us by others as contained in Chapter 5, in particular the information from the Forensic Pathologists that retention is now a rare event.