Death cases – A thematic report on liaison in death cases with particular reference to organ retention

This is the fourth thematic report of the Inspectorate of Prosecution in Scotland. The Inspectorate of Prosecution in Scotland was created in 2003 with the task of inspecting the Crown Office and Procurator Fiscal Service. It carries out this function by a series of office inspections and thematic reports usually in conjunction with criminal justice service partners and others with an interest in the topic of report. All reports are published on our website to be found at www.scotland.gov.uk/topics/justice/ipis/intro.

The aim of the Inspectorate of Prosecution in Scotland is to make recommendations that will result in clear and measurable improvements in the Crown Office and Procurator Fiscal Service thus making the Crown Office and Procurator Fiscal Service more accountable and enhancing public confidence. There are 11 separate "Fiscal" areas in Scotland presided over by an Area Procurator Fiscal. These areas are sub-divided into districts presided over by a District Procurator Fiscal. The Crown Office is the Departmental Headquarters and the Civil Service Head of the Department is the Crown Agent and Chief Executive. The Ministerial Head is the Lord Advocate assisted by the Solicitor General known collectively as the Law Officers. The Law Officers are assisted by Crown Counsel who among other things consider reports submitted by Procurators Fiscal.

The Inspectorate of Prosecution in Scotland takes a risk-based approach to its work and follows the 10 principles of inspection promulgated by Central Government in 2003. In particular the purpose of improvement is followed, the aim being to improve service delivery and there is a focus on outcomes and user perspective whereby the experience of those using the service is a priority rather than "peer review". An evidence-based approach is taken to ensure any conclusions/ recommendations are well founded.

To assist in the preparation of this report a Reference Group was created consisting of persons and organisations with expertise in the field. The Reference Group met between March and December 2006 and the membership is contained in Annex 1.

I would like to record my gratitude to the members of the Reference Group for the support and advice they gave to the Inspectorate team and without whose assistance this report would not have been possible. The conclusions, recommendations etc remain, however, those of the Inspectorate.

This particular thematic report was prompted by the work of the Independent Review Group on Retention of Organs at Post Mortem chaired by Professor Sheila McLean. This Group was established in September 2000 to review matters arising from the retention of organs at post mortem and led to the passing of the Human Tissue (Scotland) Act 2006. The Act came into force in September 2006 and replaced for Scotland the provisions of the Human Tissue Act 1961 which dealt with transplantation and post mortem examinations. The new legislation introduces the concept of "authorisation" and embodies the principle that people can expect their wishes expressed in life about what should happen to their bodies after death to be fulfilled.

The Review Group's Phase 3 Report (published in November 2003) included a chapter (3) on issues relating to post mortem examinations instructed by the Procurator Fiscal. Paragraph 108 of that report spoke of the need for communication with those closest to the deceased to be every bit as sensitive in Fiscal cases as in hospital (post mortem) cases and went on to recommend that the Crown Office and Procurator Fiscal Service should arrange for an audit of the effectiveness of the arrangements it had put in place. The Report stressed that the views of families as users of the service must be canvassed. We consider this in greater detail in Chapter 4.

In the event the remit for this report was wider and was agreed as "a review of the current arrangements for liaison with next of kin in death cases with particular reference to organ retention".

A number of issues were identified including:

• The provision of information, advice and support to next of kin
• Diversity issues
• Organ retention - in particular an examination of policy and working practice regarding organ retention.

Methodology

The review was carried out using a number of techniques (and with a view to the 10 principles of inspection) including:

• Preparation and planning
• Research
• On site visits (namely Procurator Fiscal Offices)
• Interviews
• Questionnaires
• Review of case papers (deaths)
• Analysis of information
• Report writing

This included:

• Review of relevant Departmental policies
• Review of relevant Departmental internal protocols
• Review of relevant Departmental protocols with criminal justice partners
• Interviews with representatives of criminal justice partners
• Review of Departmental guidance
• Interviews with next of kin
• Interviews with Crown Office and Procurator Fiscal Service staff
• On site visits to Procurator Fiscal Offices
• Contact with specialist agencies
• Comparisons with procedure in England

A considerable volume of material and input from a wide range of individuals and organisations was obtained. The report concentrates on:

• General background information
• Views of service providers
• Views of service users
• Conclusions and recommendations

A number of particular issues stood out and receive separate treatment in particular Road Traffic Deaths and those cases where post mortems had taken place whether or not any organs had been retained. Additionally diversity issues are covered in a discrete chapter (8).

Papers relating to over 400 cases were examined in Procurator Fiscal Offices across all parts of Scotland. As our thematic reports run in tandem with office inspections the opportunity was taken while doing the latter to gather information on this topic and meetings with staff dealing with deaths took place on about 21 occasions.

Additionally a request for information from staff was placed on the Crown Office and Procurator Fiscal Service Intranet to capture as much staff input as possible. Some feedback was obtained from this.

Questionnaires were used extensively. All District Fiscals received a detailed questionnaire covering a wide range of issues. The results of these have been analysed and are presented in Chapter 3.

In relation to the sample of over 400 cases it was decided to send questionnaires to the person or persons who had had contact with the Procurator Fiscal's Office. This was always going to be a delicate operation and advice was sought from Victim Support Scotland. In the event 200 or so such questionnaires were sent out inviting comment on an important range of issues and seeking first hand "user" feedback. Surprisingly, response rates were very high for a survey of this nature running at about 36% (or 72 replies). These are also analysed and contained in Chapter 4.

An advertisement seeking feedback was placed in a national newspaper and a limited number of replies received from this. Some of these involved a follow up by way of face to face interviews.

Additionally SCID (Scotland's Campaign against Irresponsible Drivers) provided details of a number of next of kin involved in road traffic deaths and contact was made with all of these leading to face-to-face interviews in the majority of cases. Given the continuing level of public concern over the issue of road traffic deaths these are covered separately in Chapter 7.

Part of the work of the Review Group on Retention of Organs chaired by Professor McLean included an audit of retained organs. It was decided it would be useful to carry out a similar exercise with emphasis on the number of post mortems carried out and the number of retained organs. Accordingly with the consent of the Chief Executive of the NHS in Scotland all Chief Executives of the NHS Trusts were asked to supply an update on this information. This was obtained and the updated figures can be found in Chapter 6. This gave some interesting comparative material with implications for training and research.

A significant number of pathologists (both NHS and those based at University Forensic Medicine Departments) and other medical personnel were contacted and either interviews took place or information was obtained on their perspective of how the system operated.

Additionally a large number of organisations including Churches, Faith Groups and interest groups were contacted and information obtained either in the form of face-to-face interviews or in writing. A list of these is provided at Annex 2.

We would like to record our thanks to the considerable number of organisations and individuals who gave of their time to supply us with information, thus giving as wide a perspective as possible. We have selected a range of quotes from various contributors as a background to the text.

Joseph T O'Donnell
Chief Inspector
February 2007