Scottish Government

Main Findings

• The majority of those who commented envisaged circumstances under which there may be sufficient "public interest" to warrant a hospital post-mortem without authorisation.
• The most commonly cited context for such practice was in the event of a possible public health risk where a quick diagnosis may be deemed necessary.
• In the case of authorisation of a hospital post-mortem for a child under 16 years, no clear consensus of views emerged in relation to the question of circumstances in which the views on authorisation of one parent should be allowed to prevail, indicating perhaps, the difficult ethical and social issues involved.
• Respondents provided general support for the proposals relating to authorisation of post-mortems by adults.
• Respondents were almost evenly split between those who considered it best not to prescribe standard authorisation forms in new legislation and those who recommended formal, legal prescription of the forms.
• The majority of those who commented advocated making the status of organs, tissue blocks and slides beyond doubt in legislation.
• The overwhelming majority of commentators were in favour of a separate authorisation in respect of research.
• The majority view was that the penalties proposed for infringement were too harsh.
• There were mixed views on whether the Anatomy Act 1984 and the Human Tissue Act 1961 should be united and replaced by a unified Act, or whether the link between them should be broken or overlaps rationalised.

Context

The consultation arose from the recommendations made by the Review Group on the Retention of Organs at Post-Mortem. Further context is provided by the review of relevant legislation elsewhere in the UK and the desire to maintain a general consistency in approach across jurisdictions. The current legislation governing hospital post-mortem examinations is the Human Tissue Act 1961. The need has been identified for updating the law to meet modern requirements and expectations. The Review Group undertook the ground work for a revised legislative framework and the consultation sought views on the Executive's proposals which resulted.

The Consultation

The consultation on the Legislation Relating to Hospital Post-Mortem took place between 24 November 2003 and 27 February 2004. Over 100 copies of the consultation paper were distributed to a wide range of people and organisations in the public, private and voluntary sectors. The consultation coincided with the launch of another related consultation in Scotland on the retention of organs at post-mortem examination which is the subject of a separate analysis report.

A press release helped publicise the consultation paper which was made available on the respective websites of the Scottish Executive and the Review Group.

The consultation paper was structured around 3 main topics:

• Who should authorise hospital post-mortem examinations?
• What safeguards require to be in place?
• What penalties should be imposed if any person performs a hospital post-mortem without proper authorisation?

Twenty-nine responses were received from a range of professional organisations and individuals.

Aims and Objectives

The aim of the research was to analyse the comments contained in written responses to the consultation on the Legislation Relating to Hospital Post-Mortem Examination, to present the findings of the analysis and to identify any gaps in respondent sector.

Methodology

Responses to the consultation were sent to the Scottish Executive consultation team either in hard copy or via e-mail. The consultation team sent copies of each response to The Research Shop for analysis. The consultation attracted a relatively small volume of responses but represented a wide range of respondent categories with NHS bodies and trusts comprising the largest group of respondents. One gap in respondent organisations emerged as that of representative minority ethnic groups.

An electronic Excel database was used to store and assist analysis of the responses. Most of the analysis was qualitative in nature although where scope for quantitative analysis existed, this was exploited.

Nature of Responses

The general mood of responses was one of concern over ensuring that legislative changes maintained an appropriate balance between preserving the rights of the deceased and their families, whilst permitting a reasonable and useful level of hospital post-mortem examination to continue. A recurring view was that there appeared to be some current uncertainty amongst professionals concerning hospital post-mortems which had, of late, had a negative impact on the level of post-mortems being carried out.

The consultation document appeared to be comprehensive with few additional themes emerging in the consultation process. Responses tended to follow closely the ordering of the topics outlined in the document which facilitated the systematic analysis of their content.

Who should authorise hospital post-mortem examinations: public interest

Most of those who commented envisaged circumstances under which there may be sufficient "public interest" to warrant a hospital post-mortem without authorisation. Such circumstances were envisaged as in the event of a possible public health risk where a quick diagnosis may be deemed necessary.

Most commentators made suggestions for additions and amendments to the list of purposes for which a hospital post-mortem examination can be undertaken. A recurring request was for "research" to be added to the list.

There were mixed views on whether "genetic testing" required to be added, with a few respondents considering that this may already be covered by the existing elements.

Who should authorise hospital post-mortem examinations: children under-16

No clear agreement emerged on the circumstances in which one parent's views on authorisation should be allowed to prevail. The most commonly cited reason for proceeding with a post-mortem on the authorisation of only one parent was in situations where the results of the post-mortem may have implications for surviving family members.

Where the hospital has been dealing with only one parent and is aware that the other parent is still alive, respondents tended to support the view that the hospital should make efforts to trace the absent parent.

Where parents are separated or otherwise in dispute, a common view was that the parent who provided the child with the majority of care should be the first to be approached by the hospital.

Who should authorise hospital post-mortem examinations: mature children

Few comments were received relating to the issue of views expressed by mature children. The most common response was that the safeguards proposed for mature children were appropriate.

Who should authorise hospital post-mortem examinations: adults

The proposals relating to authorisation of post-mortems by adults attracted general support.

Most respondents appeared to be in favour of permitting orally expressed wishes of the deceased to prevail. Many respondents considered that where verbal authorisation was given, there should be witnesses to the decision and formal written recording of the deliberations.

There were differences in opinion over whether surviving relatives should be able to over-turn a previously expressed wish of the deceased. Where a hospital holds a written note of the deceased's wishes but the relatives say that the deceased subsequently changed their mind, consultees were split on which of these wishes should prevail with no clear recommendation emerging.

Overall, respondents liked the general structure of the proposed next of kin hierarchy although various amendments were suggested. A substantial body of respondents requested that "friend of long standing" be added to the list.

Obtaining authorisation

There was almost an even balance in views of those who considered it best not to prescribe the authorisation forms in new legislation and those who recommended formal, legal prescription of the forms.

Reasons given by those opposing formal prescription focused on the need to retain flexibility for changes to evolve. Reasons for legislative prescription of the forms included the need to establish consistency and remove ambiguity.

Consequences of authorising a post-mortem examination

Most of those who commented advocated making the status of organs, tissue blocks and slides beyond doubt in legislation. The vast majority was in favour of a separate authorisation in respect of research.

On balance, respondents were in agreement with the approach set out in the consultation paper regarding honouring a deceased's wishes against disclosure of post-mortem results. However, one recurring view was that disclosure of details should be permitted in cases where the results of the post-mortem have implications for living relatives.

Miscellaneous Issues

Of the minority of respondents who commented, all reported the triggers of the penalties for infringement to be sufficiently clear.

The majority view was that the penalties proposed for infringement were too harsh. A recurring comment was that the system of penalties should recognise the difference between deliberately flouting the rules and simple error.

The issue of the relationship between the Anatomy Act 1984 and the Human Tissue Act 1961 received very little comment. There were mixed views on whether the two Acts should be united and replaced by a unified Act, or whether the link between them should be broken or overlaps rationalised.