Continued Petitions

Thank you very much.

As Lord Advocate, I am responsible for both the system of criminal prosecution and the system of investigation of deaths in Scotland. By virtue of the Scotland Act 1998, any decision in those capacities shall be taken independently of any other person, including decisions that are taken on my behalf by procurators fiscal.

Critical to the constitutional role that I fulfil is the ability on my part and those who act on my behalf to take any decision independent of any other person. One of the main reasons for procurators fiscal investigating sudden and unexpected deaths is that, depending on the circumstances, such an investigation might disclose a proper basis for criminal proceedings. However, the investigation is also important to ensure that the medical cause of any death is accurately identified and recorded; that the bereaved family can be informed about what led to the unexpected death of their loved one; and that any lessons can be identified and learned to avoid similar deaths in the future.

Yes, the role involves investigating deaths, but it also involves taking steps to save other lives, and I take my responsibility with regard to the constitutional function very seriously. I hope to fulfil it in a humane and compassionate way.

Although we appreciate that the instruction of a post mortem is a distressing matter for the next of kin—and we will, of course, take account of their views, particularly any religious or cultural sensitivities—the views of the next of kin cannot be determinative with regard to the decision-making process around such matters. Unfortunately, as we know, close relatives can sometimes be responsible for the fatality.

In practice, post mortems are instructed only where they are considered essential. A post mortem might be required to determine the cause of death, to ensure that the circumstances surrounding the death are fully investigated and to exclude criminality. The final decision is for the independent prosecutor as part of their role in investigating the person’s death, and, as I have said, that independence is expressed in the 1998 act. However, it is the case that post mortems are instructed only where they are essential.

A post mortem is considered essential if it is to establish the cause of death.

It is impossible to give all the permutations of the circumstances in which post mortems are instructed. Essentially, a post mortem is carried out to establish the cause of death in order to inform whether there needs to be a criminal investigation or to assist in a criminal investigation; to understand whether there are systematic deficiencies in healthcare or in how workplace operations are undertaken; and to inform the bereaved relatives as to why an individual has died. There is a whole series of reasons.

On how that is effected operationally by the procurator fiscal, the head of the Scottish fatalities investigation unit, Mr Shanks, can explain a little further as to how that happens in practice.

As I said, it is the case that post mortems are carried out only when that is essential. At all times, the procurator fiscal, along with the expert advice that is received from the pathologists, takes on board the views of the next of kin and speaks to them—

They discuss the issues and the processes with them, and they take on board their views.

Perhaps, on an operational level, you could hear directly from Mr Shanks.

Good morning. During that process—throughout the course of a death investigation—contact is made with bereaved relatives. If a post-mortem examination is being contemplated, their views are sought and are definitely taken into account, particularly when, as the Lord Advocate said, there are cultural or religious sensibilities.

The primary purpose of the instruction of a post mortem is for the identification of a—

Yes.

Yes. Indeed, there may well have been prior contact with the police, if it was a police-reported death, and the relatives’ views may have been made clear at that stage. Therefore, even on—

I am not sure by whom, convener. The records would be held for operational purposes by the Crown Office and Procurator Fiscal Service.

I am not sure that that would be publicly available. However, we would certainly aim to respond to any inquiry that was made by a member of the public.

It is not a decision that is taken lightly, convener.

When a decision is made that a post-mortem examination must be carried out, that instruction will be provided to the pathologist. Thereafter, generally speaking, it is a matter for his or her clinical judgment as to the nature and the extent of the examination that is necessary.

I think that, having heard previous evidence, the committee is also aware that there are certain circumstances in which a non-invasive external post-mortem examination is possible. That is very much driven by the individual circumstances—perhaps there is a detailed medical history that points towards a likely cause of death and, in consultation with the pathologist, the decision can be made that an external examination may be appropriate.

I think that almost 800 external view and grant post mortems were carried out last year. However, even in those circumstances, the pathologist is still at liberty to decide, having applied his or her professional judgment, that the external examination has not been sufficient in fully identifying the cause of death and that a more invasive procedure is therefore required.

09:45

I do not think that the brain is removed as a matter of course or routine. The instructed pathologist will make a clinical judgment on the nature and extent of the examination that is required. That will depend on a range of circumstances relating to the presentation of the individual and their medical records.

I am not in a position to answer that question. Such matters are based primarily on the instructed pathologist’s clinical and professional judgment. The COPFS does not specifically direct pathologists in that regard.

I will respond to what you have said. Although the decision on whether to instruct a post-mortem examination is for the COPFS, decisions on the nature and extent of the examination that is required are for the pathologist. In all this work, we are guided by the medical experts who perform post mortems. Our understanding, through our engagement, is that pathologists retain whole organs only on rare occasions when it is absolutely necessary in order to establish the cause of death. In such cases, there are well-established procedures for ensuring that families are advised immediately when organ retention is a possibility, and options for the return of organs are discussed with them.

In our investigation, the Crown will use any tools that are available to us to establish a cause of death and provide the next of kin with the answers that they seek, where possible. Any decision on the appropriate course of action should be taken in consultation with, and following discussion with, the relevant pathologist and in accordance with the Royal College of Pathologists guidelines. If there are differences between Scotland and England in relation to processes, practices and the understanding of what is required to allow an expert to advise the COPFS on the cause of death, those matters should be explored with the pathologists. Unfortunately, we cannot advance such matters any further with the committee today. What pathologists do in order to inform us of the cause of death is a matter for them.

Pathologists are medically qualified professionals who answer to their own professional body. The Crown Office and Procurator Fiscal Service investigates deaths and seeks to identify the cause of death in order to inform whether a criminal investigation is required or whether we need to make further investigations in order to proceed with a fatal accident inquiry. Critical to all that decision making is what caused the death. When we require that answer, we instruct an expert pathologist, who has responsibilities in relation to their own professional body, to carry out a post mortem. If there have been medical advances that could better inform pathologists operating in Scotland, it is for pathologists to advise on those medical advances.

I understand that the pathologists who are instructed to carry out these examinations in Scotland are individuals from a professional body that we hold in the highest regard. We, as the Crown, are informed by those experts as to what is required in order to establish a cause of death. If there are different practices across the pathology profession, I would assume that the professional body would train, advise and give directions to the professionals in that body. If it is the case that there are less invasive processes that could be applied at the post-mortem stage, those are the ones that should be chosen by the pathologist.

I can see that there are issues of enormous concern to the committee, but it is important to distinguish between the responsibility that I have as the Lord Advocate and the responsibility that lies with the professional body of pathologists who carry out the examinations.

I hear what you are saying; I understand that there is a different practice in England and Wales and that you have taken evidence on that. As the Lord Advocate, who is responsible for the investigation of criminal matters and sudden and unexpected deaths, I have a different role to play from the one that the committee is in the process of examining. It is not for me to advise on what the law should be; I implement the law and I have to do what the law provides for in Scotland. Currently, the Human Tissue (Scotland) Act 2006 applies to the issues that you have raised this morning.

If there is to be a change in practice and if the practice is to be, as you described, more humane, that is not a matter for me to comment on. I cannot advance that matter any further. All that I can do is explain what the law is currently in Scotland and what the procurator fiscal and the Crown Office do in relation to the implementation of our investigations and what happens when the 2006 act comes into play.

I can say that, at the conclusion of our investigation, by virtue of the Human Tissue (Scotland) Act 2006, any blocks and slides prepared for the purposes of histopathology—examination of the tissue under a microscope to detect any signs of disease, damage or other abnormalities—are considered to be part of the medical records of the deceased person. That is the statutory provision. If there is to be a change to the law, that is a matter for parliamentarians; it is not a matter for the Lord Advocate of the day.

The decision on returning samples is for the health board to make. A requirement to offer tissues and samples to the nearest relatives as a matter of course before the end of a criminal investigation might impact on the investigation of death. It might impair the procurator fiscal’s ability to fully investigate the circumstances surrounding the death or establish a definitive cause of death.

I am not here to advance any inhumane practice. I am here to say how I operate within the existing law. I can only do that.

The responsibility for what?

If the law requires to be changed, it is for the democratically elected representatives of the people to bring forward the arguments for such a change in the law. As we know, when the law is to be changed, we have a process of open consultation and parliamentary committees consider the proposals for change—

I am not entirely sure. I do not know why you are speaking to me in the way that you are. I am here to try to assist—

I think that I have answered the question to the best of my ability. I am not here to be difficult. I am here to explain the job that I do as the independent head of the prosecution system that is responsible for the investigation of deaths in Scotland. I operate within the law, and if there is to be a change in the law, it is for parliamentarians such as yourself to advance the reasons for that change. I fully understand that the committee is dealing with sensitive issues about human dignity and the need for bereaved relatives to be supported through what is the most traumatic period of their lives when they lose a loved one in unexpected circumstances.

That is an operational matter that Mr Shanks can fully explain.

In our operational experience, the level of service that we receive from various pathology providers across the country varies. As you might expect, there is always a degree of variation through the seasons of the year. When I talk about a level of service, I am really talking about the period of time between the instruction of a post-mortem examination and the completion of that examination.

The Crown Office and Procurator Fiscal Service is essentially a service recipient; we are not the service provider and we are not in charge of the pathologists. We rely on service providers from across the country, including the NHS, local authorities and universities that provide the service. We have a number of contracts and service level agreements in place with those organisations, so they are responsible for the level of service across the country.

At the same time, we recognise the need for an improved service more generally. We are therefore in the process of reviewing the nature and the number of the contracts and agreements that are in place to see whether there is a way of making them more efficient and resilient across the board. It is not for me to characterise the service in the way that Mr Torrance has suggested, but it is certainly variable at the moment and there are a number of different service providers.

Again, I am not sure that I can answer that question directly. All that I can say is that we recognise the number of different service providers and the way that the contracts are at the moment—there is room for improvement and the contracts are under review with a view to making them more resilient and effective across the board. The matters under discussion are essentially matters for the service providers.

The Crown Office and Procurator Fiscal Service is the client and the recipient of the service, to allow the Lord Advocate and the procurators fiscal to discharge their death investigation duties. To that end, we have a series of contracts and service level agreements with universities, local authorities and the NHS for pathology, mortuary and toxicology services across Scotland.

10:00

We do not have a role in the recruitment or training of pathologists—that is a matter for the professional body. All of what the committee is looking at today in terms of the way in which pathology is undertaken sits with the pathology providers. There is a distinction between what the Crown does in this matter and what the experts who carry out the post mortems do. We are the client of the service.

That cuts across some of the issues that the Lord Advocate raised in an earlier response about the exercise of professional judgment by individual pathologists and the overarching role of the Royal College of Pathologists. As the Lord Advocate said, we can be supportive of tools and innovations that assist pathologists in the exercise of their professional duties, but that is different from being overly prescriptive about the techniques that they deploy in particular circumstances.

I am not personally involved in that but, if the committee requires more information on it, something could be provided in writing, if there are particular points on which you require clarification.

I do not have that information before me at the moment but, again, I can provide that in writing if it would be of assistance to the committee.

Again, I would like to follow that up in writing, if that would be convenient.

As I said, there are variations in service. In particular parts of the country and at particular times of the year, there will be an impact on the period of time between the instruction of the examination and the completion of the examination. I am not sure that it is for me to characterise that as particular pressures, but the service is certainly variable in that regard.

I understand the evidence that the committee has heard about imaging and the benefits of that process that have been described.

All that I can say is that, when the Crown Office and Procurator Fiscal Service investigates a cause of death, we instruct experts to undertake the examination and are informed by the expert as to whether an invasive post mortem is required. If there is an imaging process that means that there is no need for an invasive post mortem, I would expect that the pathologist of the day would advise that that process was available for use, rather than having an invasive post mortem.

It is really for the professional body to consider the quality, efficacy and benefits of the imaging and to determine whether imaging should be utilised in the process being undertaken. If the Royal College of Pathologists has identified a means by which post mortems can be less invasive when undertaken using imaging, then I—as the Lord Advocate who is instructing the investigation of a death in order to understand the cause of death—would reasonably expect that the pathologist advising the Crown on that issue would explain that the process was available and should be used.

I am not aware whether there is provision for imaging in Scotland to the same extent as there is in England. That is a matter for the pathologists’ professional body to advise on. I have not heard all the evidence that you have heard about how pathologists in England and Wales carry out examinations, but one would expect a consistent approach in relation to decisions about whether to conduct invasive or non-invasive examinations.

Could you explain to me what you mean by a barrier? What barrier has been identified in Scotland?

It is difficult for me to answer the question that you pose when you have not actually identified a single barrier.

What I would say is this: your questions, and your anxiety and your obvious concerns about the issue, should be directed to the professional body that delivers the service to the Crown: the Royal College of Pathologists, which operates in Scotland and carries out those post-mortem examinations at our request.

It is simply the case that the Crown would only ever instruct a post mortem if necessary, and the post mortem that would be instructed would be informed by what the pathologists were telling us needed to be done in order to identify the cause of death.

If there is a less invasive process that is available in England and Wales, I would expect that pathologists in Scotland should know about that and should have access to the same facilities and the same provision. If they do not, and if they are not able to do their job in the way that they should be, they should raise that with their professional body. They should let those within their professional body know, and they should take steps to ensure that the equipment that is required in order for them to carry out their job is available.

There is only so much that the Lord Advocate can do. I cannot instruct the Royal College of Pathologists to take the steps that you have identified might be needed in order to resolve the issues that you are so concerned about.

I understand what you have said. It is the case that the law is changed by people bringing forward problems and injustices and identifying inhumane, improper practices, and bringing those to the attention of their parliamentarians.

It is for the parliamentarians to change the law; I cannot do that. If there is to be a change in service and better service, I would support that, but I cannot do it. I have a particular role to perform here in terms of my constitutional responsibility. If I were to come forward and suggest changes in policy, practice and the law, it would be quite inconsistent with the job that I have, which is to uphold the law as it is. If there is to be a change, it is for people such as yourself, committed to issues like these, to make the change. I do not dispute any of what you have said here today.

10:15

Perhaps I could return to that point. If there is to be a different process applied by the expert pathologist, that is for the expert to apply. If pathologists in Scotland do not have access to imaging of that type, that is not for me to change and it does not require a change in law. It is a change in professional practice, and the availability of the essential tools for that is not my responsibility.

I cannot comment on that.

As the Lord Advocate said, I cannot speak to the particular practices and procedures that are taking place elsewhere in the UK, but in Scotland, the conduct of the post-mortem examinations is a matter for the professional clinical judgment of the pathologist on the instruction from the procurator fiscal that a post mortem has to take place. I think that I would be repeating my earlier points if I was to go any further there.

I wonder what you are suggesting should be done. You know very well the role of the Lord Advocate—what are you suggesting?

If the committee were to recommend a series of actions to alleviate an injustice that had been suffered and if those actions were to come within the responsibility of the Lord Advocate of the day, I would, of course, act. I would not say anything other than that. I am therefore very interested in seeing the committee’s recommendations.

I am interested only in providing a humane and progressive justice system that meets everybody’s needs. I do often deal with difficult issues, but it would be quite unfair if there were an underlying suggestion that I would ignore the committee’s decisions or recommendations or that I would not act to make better things that have gone badly. I am here today to give evidence and answer questions. Of course, if recommendations are made that I can do something about, I will do that.