Official Report · Committee

Continued Petitions

Human Tissue (Scotland) Act 2006 (Post Mortems) (PE1911)

Wednesday 6 September 2023 Citizen Participation and Public Petitions Committee About 09:30–09:45 Petitions 14 contributions · 4 speakers

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The record

14 contributions

Jackson Carlaw Con The Convener · Eastwood

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That brings us to our second continued petition, and I gather that the petitioner is again with us in the public gallery. Good morning.

PE1911, lodged by Ann Stark, is on review of the Human Tissue (Scotland) Act 2006 as it relates to post mortems. The petition calls on the Scottish Parliament to urge the Scottish Government to review the 2006 act and relevant guidance to ensure that all post mortems can be carried out only with permission of the next of kin;?do not routinely remove brains; and?offer tissues and samples to next of kin as a matter of course.

In our consideration of this petition, we are joined by our colleague Monica Lennon MSP. Good morning to you, too, Monica.

Members will recall our evidence-taking session in June with the Lord Advocate and Andy Shanks, Head of the Scottish fatalities investigation unit at the Crown Office and Procurator Fiscal Service. Since that meeting, we have received further information from the COPFS; its written submission states that the COPFS is working with pathology providers on a service redesign, and its preference is to have a national pathology and mortuary service established under national health service leadership. On the issue of CT scanning, the submission notes that representations have been made by two pathology providers on the viability of using scanning in post-mortem examinations, which?I think is progress on what we have understood to be the position before.

The petitioner, Ann Stark, has provided two written submissions, the first of which notes the upcoming service redesign and states that there is an opportunity to introduce the use of scanners in murder and suspicious cases. Ann also emphasises the importance of taking grieving families’ perspectives into account if a national service is to be established.

In her second submission, Ann Stark reiterates the importance of families having a choice about what happens with their loved ones and highlights the use of scanners in London to check for prostate cancer, which I think was in a very recent news story—in fact, they were talking about using magnetic resonance imaging for that.

In addition to the two submissions that are included in the papers, we have all received numerous e-mail communications directly from the petitioner about issues relating to her petition. I say to the petitioner that, although I fully understand her desire to ensure that we are fully informed, it is most helpful if submissions go to the clerks, because it causes confusion among members if we get them, as we are not sure of the operational process for dealing with them. I assure the petitioner that, if they go to the clerk, we will get them on a concise form, and that would assist us.

Before I open up to wider comment, given that Monica Lennon was with us when we heard our evidence from the Lord Advocate and from Andy Shanks, I wonder whether she would like to say something.

Monica Lennon Lab Central Scotland

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It is lovely to be back and to have the opportunity to be with the committee again, and it is good that we have Ann and Gerry Stark in the public gallery today. The loss of their son, Richard, is what brought us all here and what has brought all the evidence and discussion into the Parliament and the public arena.

Ann is a prolific e-mail writer and sender. I do not want to make committee members feel that they are not special, but she has been writing to every MSP and has been getting a very warm response. More and more people are coming forward to say that the issues that we are looking at are very important.

I will not repeat everything that I said in my summary at the session in June. It was quite an intense session with the Lord Advocate and Mr Shanks and, at points, it was frustrating to try and find out who will take responsibility for the issue. Fergus Ewing and Alexander Stewart, in particular, teased out a lot of that. In the end, the Lord Advocate acknowledged that, if we all want a humane and progressive system, we need to be robust and thorough in investigating deaths where there is suspicion, but that it needs to be proportionate.

In prompting the inquiry, the petitioner has highlighted that in Scotland we are not keeping pace with modern practice elsewhere, and not only in England—we have heard about the experience in Lancashire—but in Japan and Australia, and there are other examples. We want to keep pace with that. The evidence that we heard from colleagues in Lancashire gave me some comfort that those innovations have been cost neutral to public authorities. It is important for us, as parliamentarians, to understand the cost implications.

We all want families to be treated with respect, dignity and compassion, but unfortunately that has not always been the case. We have heard about some of the workforce challenges. No one wants to minimise those, but the proposals that have come to the committee would help with workforce pressures and future workforce planning.

I am a Central Scotland MSP, and the family behind me are from Lanarkshire. Rightly, they are wondering why families in Lancashire can benefit from the service but no one has been looking at it in Scotland, until now.

It is welcome that the committee has had an update from the Crown Office on the service redesign during the summer but, to go back to the title of the petition and the ask of the Scottish Government, the Scottish Government has, in my view, been sitting on the sidelines while everyone else has been trying to figure out what to do. It is important that the Government is aware that the Parliament is taking the issue seriously and that ministers are fully engaged. Looking back at the notes from the previous session, I think that the Lord Advocate pretty much said that, if she gets a steer on what to do next, she will do it to the best of her ability, but that it is not really up to her. We need leadership on the issue.

The petition that Mrs Stark lodged is a huge credit to her, but it has been at huge personal cost to her. She spends every waking hour on this, and I can tell you that she does not get a lot of sleep. It is important that we do the right thing by her and other families.

I am interested to hear what Government and other partners will do next because, until now, no one has really picked up the ball on this; it has been left to families, which is unfair. I appreciate all the time and effort that the committee has put in. We started with a blank sheet of paper, and no one really knew what was going on but, now, thanks to the committee, we have a ton of evidence, not just from the United Kingdom but on what is happening internationally, which is really important. I say a big thank you to all the committee members.

09:45

Jackson Carlaw Con The Convener · Eastwood

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Thank you very much, Monica. You described the evidence session that we had as tense, which is a fair description. Having read the Official Report of the meeting, I think that you characterise it correctly in many respects. Although it was a slightly tense atmosphere, the Lord Advocate clearly stuck to her view of where her responsibilities lay. The committee got slightly frustrated that it was not clear thereafter where she thought the committee should go to get the correct answers. That is what we have been reflecting on.

Given the evidence that we heard from the pathologists in Lancashire and the other evidence that we have heard, I believe that members of the committee are minded to seek to do everything that we can to advance the aims of the petition. In the light of those remarks, do colleagues have any contributions?

Fergus Ewing SNP Inverness and Nairn

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Yes, I agree with that. It was very helpful to have Monica Lennon’s exposition at the beginning, so I thank her for that. I will refer to a couple of bits of the evidence and then make a couple of recommendations.

The Lord Advocate was very clear that it is not her role to deal with matters relating to pathology. She started off by saying:

“We do not have a role in the recruitment or training of pathologists”.

She went on to say:

“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 ... would reasonably expect that the pathologist advising the Crown on that issue would explain that the process was available and should be used.”—Official Report, Citizen Participation and Public Petitions Committee, 14 June 2023; c 10, 14.

In a sense, the Lord Advocate is saying that it is not her job but, if she is advised by the experts in the pathology world that that is something that should happen, as it does apparently in England—and, we hear today, in Japan and elsewhere—she would pay heed to that in her role. That seems to be no more than common sense, and entirely logical and correct.

Therefore, with one caveat, we should take up the suggestion of writing to the Royal College of Pathologists to highlight the evidence session, point out the evidence from the practitioners in England, stress that scanning and other processes appear to be available in England but not here, ask for an explanation of why that is and get its views on these matters—perhaps orally, if necessary, but in the first instance in writing. As the petitioner very clearly argues, there is a gap in the Scottish system, which results in the petitioner’s conclusion that nobody appears to care, which struck me in her remarks.

The one caveat is that, as the petitioner pointed out, the fiscal service’s contract that the Lord Advocate referred to a couple of times expires in seven months. If that is the case, the committee may feel that the new service-level contract should refer to specific duties to enable the provision of scanning and so on to be available where appropriate. Working backwards from that, for that to happen, we might want to flag up to the minister that that approach is in our minds, subject to getting professional expert advice from the pathologists.

Finally, the clerks have flagged up that the pathologists say that some of the medical and clinical decisions may involve radiologists as well as, or instead of, pathologists. Perhaps the clerks could consider from whom we require to obtain the most relevant evidence, and whether it is one or the other, or both—I suspect that it is both.

I am sorry that I spoke for so long, convener.

Jackson Carlaw Con The Convener · Eastwood

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No—that was incredibly helpful.

In the letter that Fergus Ewing has suggested, it might be helpful to refer to the fact that the COPFS has said that it has received representations from two pathology providers. It might be interesting to ask for a bit more detail on that, because that does not tell us anything other than that it has received submissions. It would be useful to pull that together, as Fergus Ewing has suggested.

Do colleagues have any other suggestions over and above that?

Fergus Ewing SNP Inverness and Nairn

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The clerks could consider following up the reference to Japan and other countries, too, if need be, because we would not want to leave any stone unturned.

Jackson Carlaw Con The Convener · Eastwood

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I think that we have covered the ground at this stage, mainly. Will we get that evidence first? I am just trying to think where we want to be sequentially—

Fergus Ewing SNP Inverness and Nairn

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What we might want to do, because seven months is not a long time and it might well be that the meat of the negotiation is being conducted right now—my point is that we might miss a chance—

Jackson Carlaw Con The Convener · Eastwood

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We want the most comprehensive letter at this stage—

Fergus Ewing SNP Inverness and Nairn

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Yes, we want to flag it up to the minister now, specifically saying—

Jackson Carlaw Con The Convener · Eastwood

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Yes, it might be risky to be sequential here; let us get it all in there now.

Foysol Choudhury Lab Lothian

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Can we ask the Crown Office whether it has any alternatives and whether it has done anything at all to find any solutions since it met us last? We were concerned then, and we saw the reaction of the Lord Advocate. I do not know whether the Crown Office has done anything, so can we ask it?

Jackson Carlaw Con The Convener · Eastwood

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Yes, we can do so. The only thing that it has said is that it has had those two submissions, which is not really action but just a reflection of that fact. Thank you for that. Are we content to proceed on that basis?

Members indicated agreement.

Jackson Carlaw Con The Convener · Eastwood

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The petition remains open. I am hopeful that Parliament will be able to influence its outcome and advance its aim as we proceed; let us hope that we do. I thank Monica Lennon for her on-going interest and the petitioner for all the interest that she shows. I appreciated having an opportunity to read the response that the petitioner received from the Lord Advocate, which was economical in respect of the issue. The opportunity to advance the aims of the petition exists, so thank you, everybody.

In this meeting

Everything on 6 Sep 2023 →

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09:30 Decision on Taking Business in Private Procedure · 1
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