Thematic report on organ retention

3.1 To provide public reassurance that the nearest relatives are always made aware when an organ has been retained, that they are provided with the reasons for the retention and consulted on their wishes once retention is no longer required, it is essential to analyse why the system failed in the six cases identified in the COPFS audit where it is acknowledged that COPFS procedures were not followed. The cases identified spanned from 2007 to 2012 and all pre-dated SFIU assuming national responsibility for the investigation of deaths.

3.2 In addition to these cases, the audit conducted by COPFS identified 10 cases where the nearest relatives had been informed that an organ had been retained but their wishes on how the organ should be disposed of on completion of the examination had not been obtained. This raises a separate issue regarding the nature of the engagement with nearest relatives which is discussed in Part 6.

Analysis of Cases where Nearest Relatives were Not Notified

3.3 In three of the cases identified in the audit, the deceased's brain was retained to assist with the investigation into the cause of death. The investigation was carried out under the direction of the local Procurator Fiscal. From a review of COPFS files, the Fiscal had liaised with the nearest relatives to explain the reason for instructing a post-mortem. However, on receiving the cause of death and authorising the release of the deceased's body, the nearest relatives were not advised that the brain had been retained. In the absence of any instruction from the Procurator Fiscal on the disposal of the organ, it was retained by the pathology department.

3.4 The failure to follow COPFS guidance to notify the nearest relatives was as a result of an oversight by those dealing with the death in the local Procurator Fiscal office. While COPFS guidance and procedures were not followed, what is also evident is that there was no internal warning mechanism within the COPFS system or any reconciliation system between COPFS and the pathology service providers that would have alerted those dealing with the death that an organ was still being retained. The deficiencies in the system and proposed remedies are examined in detail in Part 4.

3.5 In the other three cases, the circumstances of the deaths resulted in criminal proceedings and ultimately a conviction for murder. In each case, as part of the investigation, the brain had been retained for a specialist neuropathology examination.

3.6 Each death was reported to the local Procurator Fiscal and when it became apparent that the circumstances of the deaths were suspicious, the criminal investigations were directed by a specialist homicide or high court team. This resulted in the retention of the brain being recorded in the files relating to the initial death report but not in the criminal files. The subsequent release of the bodies of the deceased and liaison with nearest relatives was handled by those dealing with the criminal cases who were unaware that the brain had been retained and as a result, the nearest relatives were not informed that the brain had been retained when each deceased's body was released.

3.7 The difficulty that arose was due to a lack of clarity between those dealing with the initial death reports and those directing the criminal investigations as to who was responsible for notifying the nearest relatives that an organ had been retained. Regrettably, those dealing with the initial death reports erroneously assumed that the homicide or high court teams would advise the nearest relatives that an organ had been retained.

3.8 The need for clear lines of accountability for notifying nearest relatives that an organ has been retained was one of the main issues identified in a report, following an audit in 2010 in England and Wales and Northern Ireland of organs found to be held by various police forces. The report concluded that there had been a lack of clarity between police investigators and the medical profession on who was responsible for liaising with nearest relatives regarding the disposal of organs at the completion of a criminal inquiry. The proposed solution was to agree national protocols outlining lines of responsibility and audit procedures^[34].

3.9 To assist in determining where the responsibility for notifying the nearest relatives of organ retention should sit within COPFS, it is helpful to examine the role of each team and the interaction between them.

Suspicious Deaths

3.10 The move to greater specialisation in the investigation of deaths has been mirrored in the investigation of serious crime. In each Federation there are specialist teams investigating any death where there is suspected criminality, including homicides, road traffic fatalities and deaths caused through the unlawful supply of illegal drugs. Fatalities arising from potential breaches of health and safety legislation are investigated by a national Health and Safety Division.

3.11 Given the difficulties that arose where there was suspected criminality, we reviewed the practices and any relevant protocols and guidance in each of the Federations on who was responsible for dealing with organ retention in such cases.

Federation Protocols and Practices

3.12 In the East Federation there were written protocols for dealing with deaths where there was potential criminality. The protocols provided that, other than cases where homicide was suspected, SFIU East would assume responsibility for dealing with the initial instruction to the pathologist, releasing the body and all issues arising from any retention of organs. This included all deaths arising from road traffic fatalities or deaths caused by the unlawful supply of drugs, regardless of whether there was likely to be criminal proceedings.

3.13 There were no written protocols dealing with deaths where there was potential criminality in the North and West Federations but in practice they followed the approach taken by the East Federation and, other than cases where homicide was suspected, SFIU West and North assumed responsibility for dealing with all aspects of the death.

3.14 The reasoning for SFIU assuming primacy in such cases is that there are usually some preliminary police inquiries required to establish if the death resulted from criminal actions. A preliminary report including the outcome of these inquiries is sent from SFIU to Crown Counsel^[35] seeking an instruction. If it is decided that there is sufficient evidence to merit criminal proceedings, the case will pass to the homicide or high court team. Until that decision, the case is retained by SFIU who will continue to deal with any issues relating to the death including any discussion regarding the retention of organs.

Homicides

3.15 In the East Federation, if there was a suspected homicide, the protocol specified that the homicide team should instruct the pathologist and discuss any issues arising from organ retention. The homicide team also communicated with nearest relatives if an organ was retained. Both SFIU East and the homicide team had clear audit trails to record cases where organs were retained.

3.16 In accordance with revised guidance issued by COPFS^[36], notification of any organs retained was submitted by SFIU East to SFIU National who now maintain a national organ retention database^[37].

3.17 In the West Federation, SFIU West and the homicide team took the lead in different areas. A legal member of the homicide team or an on-call depute always attended the post-mortem and would be involved in any discussion regarding the retention of organs. A record of any organ retained was sent by the pathologist to SFIU West and they notified SFIU National.

3.18 The homicide team on receipt of instructions from Crown Counsel would notify SFIU West that the body could be released and SFIU West dealt with the administrative requirements. In general, if there was an organ retained, communication with the nearest relatives was often undertaken by a police liaison officer appointed to the family.

3.19 The geographical area covered in the North introduces additional complications. The area is covered by three different mortuaries and there are SFIU staff based in Inverness, Aberdeen and Dundee. In the North Federation, homicides are dealt with by high court teams based in Aberdeen and Dundee. There are local variations on the interaction of the high court teams and SFIU North. In one area, the high court team takes the lead in dealing with all aspects of the death including organ retention whereas in another area, a depute from the high court team would discuss retention of organs with the pathologist at the post-mortem but SFIU North would organise the release of the body and arrange for nearest relatives to be notified of the retention. In one Northern jurisdiction, if an organ is retained, the pathologist preferred to speak with the family directly.

3.20 Thus the only type of death where there was potential for SFIU and operational teams in the Federations to both be involved was where there was a suspected homicide.

Revised Guidance

3.21 Following their audit, COPFS implemented an urgent review of its processes, introduced a number of new measures and issued revised guidance.

3.22 In February 2014, guidance was issued by COPFS advising that for homicide cases, it is the responsibility of the team dealing with the homicide to authorise the retention of an organ, communicate to nearest relatives that an organ has been retained and to seek their wishes for return/disposal of the organ. The guidance states:

"Each time an organ is retained members of the homicide team are to pass information in relation to the retained organ to SFIU National who will maintain a record of retention and reconcile that with information held by mortuaries/pathologists on a regular basis."

3.23 The rationale given by COPFS for placing responsibility on homicide or high court teams is that members of the homicide team will have met with the nearest relatives of the deceased and have a relationship with them.

3.24 We agree that clear lines of responsibility are essential to avoid the difficulties that have occurred but, for a number of reasons, we are of the view that SFIU is best placed to deal with all issues flowing from the death including organ retention.

Role of SFIU and Homicide or High Court Teams

3.25 The pathology service providers were extremely supportive of the establishment of SFIU and the Federation Fatalities Units. Their assessment was that SFIU had introduced greater clarity and certainty on whom to contact to discuss cases. Many expressed a preference for having a single point of contact for all cases rather than introduce a different procedure solely for homicides, particularly given the low number of such cases.

3.26 Further, as they deal with SFIU on a daily basis and are familiar with their administrative arrangements, their preference was to retain SFIU as the single point of contact to send documentation, such as death certificates, in all cases.

3.27 During the review, a number of staff in homicide teams indicated that they were not familiar with the relevant administrative processes relating to deaths and expressed a preference for SFIU to manage the procedures and requirements that flow from the death as opposed to the criminal investigation. Even in the East, where the homicide team assumed responsibility for dealing with all issues arising from the death, SFIU East assists by obtaining the death certificate and dealing with administrative requirements. In practice, while the homicide team has overall responsibility for liaising with the nearest relatives, SFIU East is fully appraised by the homicide team and they work in partnership.

3.28 The main type of organ retained in homicides is the brain. Given the reduction in time to conduct a neuropathology examination and allowing that a defence post-mortem will normally be required, in most cases the organ will be reunited with the deceased's body prior to being released. It will only be the exceptional case where an organ is retained after the deceased's body is released which means that homicide teams will deal with such matters very infrequently, unlike SFIU.

3.29 We agree that it is best practice for those dealing with the criminal investigation to meet with the nearest relatives of the deceased. It provides the nearest relatives with a point of contact throughout the criminal proceedings and a forum to obtain information on the legal process and to discuss any particular issues causing concern. However, while having a single point of contact for the nearest relatives is attractive, there are practical difficulties with homicide teams being the sole contact point.

3.30 To comprehend the difficulty that arose in the cases identified in the audit, police reporting procedures are of significance. For all deaths reported to the Procurator Fiscal, the police submit a sudden death report to the relevant Fatalities Unit. This report provides the circumstances of the death, known medical history and any other relevant information to allow SFIU to determine the type of investigation required.

3.31 If the death is suspicious, the police will submit another report - a standard prosecution report (SPR). A SPR will be submitted once an accused person has been identified and there is evidence that their actions are responsible for the death of the deceased person.

3.32 The timing of the submission of both reports is relevant. The sudden death report will be submitted, in most cases, the first working day following the death whereas the timing for the submission of the SPR is dependent on the stage of the criminal investigation. While the identification of an accused person may be straightforward, enabling a report to be submitted within a short timescale following the death, there are some cases where it may take some time to identify an accused person or to determine if the death was the result of criminality, and a report may not be submitted until a few days or weeks following the death. In such cases, there is unlikely to be early contact by the homicide team with nearest relatives.

3.33 Further, post-mortems in suspicious deaths are given priority so it is likely that any decision to retain an organ will be taken before the homicide team receives a report from the police. This inevitably results in SFIU, in liaison with the homicide team, instructing the post-mortem and contacting nearest relatives to advise that there is to be a post-mortem. It, therefore, makes sense for the notification of organ retention to be transmitted to SFIU and retained as part of the SFIU file.

3.34 The current guidance does not address who is to take responsibility for authorising the release of the body or dealing with organ retention in such cases and there remains the possibility of uncertainty and confusion on who is accountable in such circumstances.

3.35 For the reasons outlined, our preference is for SFIU to assume responsibility for all cases where organs are retained including suspected homicides. Such an approach will remove any uncertainty that may arise if there is a delay in the submission of a SPR or any dubiety as to whether the circumstances of the death are suspicious.

3.36 For completeness, SFIU being held accountable for ensuring that all procedures are followed and collating and administering the forms to provide the necessary audit trails, should not prevent homicide teams being involved or liaising with the nearest relatives regarding the post-mortem and organ retention if that is deemed preferable or appropriate.

Recommendation 4

In all cases involving suspected criminality, where an organ is retained following the release of the deceased's body, SFIU should assume responsibility for ensuring that the guidance and procedures relating to the retention of the organ are applied. In particular, SFIU should ensure that the nearest relatives are notified timeously of the retention, informed of likely timescales for the completion of the examination of the organ and their options for its disposal. The views of the nearest relatives on the disposal of the organ should also be obtained.

• A protocol should be drawn up specifying the procedure to be followed including reference to the specific form(s) to be used and the mechanism of recording the information.
• Following the release of the deceased's body and the completion of the examination of an organ, all records retained in the SFIU death file should be copied into any associated criminal file.