Cremation certification: some Anglo-Scottish issues

Last month we posted an item on the Scottish Government’s consultation on burial and cremation law, which Scottish ministers feel is long overdue for reform and updating. The consulation closed on 24 April.

The law surrounding death in Scotland has always been different from the law in England and Wales. Scotland does not have coroners; instead, the Lord Advocate is responsible for investigating any death that requires further explanation and there is a Scottish Fatalities Investigation Unit within Crown Office responsible for investigating all sudden, suspicious, accidental and unexplained deaths. Once a death has been reported to the Procurator Fiscal, the Fiscal has legal responsibility for the deceased’s body, usually until a Medical Certificate of Cause of Death (MCCD) is written by a doctor and given to the nearest relative.

Most sudden and unexplained deaths are reported to the Fiscal because a doctor is unable to confirm the cause of the death and is therefore unable to issue the necessary MCCD. If it is thought by the Lord Advocate to be in the public interest the Sheriff may hold a Fatal Accident Inquiry; and it is obligatory to do so in the case of a death in custody or as a result of a work-related accident: see s 1 Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.

The purpose of the Certification of Death (Scotland) Act 2011 was:

  • to introduce a single system of independent, effective scrutiny applicable to deaths that do not require the Fiscal’s investigation;
  • to improve the quality and accuracy of MCCDs; and
  • to provide improved public health information and strengthened clinical governance in relation to deaths

Since April 2014, all deaths in Scotland, whether for burial or cremation, have been dealt with by completion of a single MCCD (a revised version of which was introduced on 6 August 2014). Under the new rules:

  • cremation forms are no longer required: the revised MCCD form contains all the relevant information to allow cremation to proceed;
  • details of pacemakers / hazardous implants and public health alerts are entered on the MCCD form; and
  • crematoria no longer have Medical Referees.

A Medical Reviewer employed by Healthcare Improvement Scotland reviews the accuracy of completed MCCDs:

  • a random selection of MCCDs (25% of total) is reviewed at a basic level; and
  • a further 1-2% are being reviewed in depth, including a review of the deceased’s medical records.

The guidance on deaths to be reported to the Fiscal is mainly unchanged.

The Scottish death certification reforms were on track for full implementation in April 2015 and, ahead of that, the Scottish Government asked all Health Boards to set up local death certification implementation groups. 13 of the 88 questions in the recently-concluded consultation related specifically to cremation forms and procedures.

All this has caused a certain degree of difficulty where someone has died in Scotland and is to be cremated elsewhere in the UK, because the rules have diverged considerably. The Ministry of Justice estimates that around 500-600 deaths every year in Scotland result in a cremation in England and Wales. The problem, in a nutshell, is how someone who has died an “unexamined” death in Scotland and is taken over the border for cremation in England or Wales should be treated now that Scotland has implemented its new death certification regime.

In March 2015 the Coroners, Burials, Cremation and Inquiries Policy Team at the Ministry of Justice wrote to all crematorium medical referees and cremation authorities in England and Wales stating that the documentary requirements for the cremation in England and Wales of someone who had died in Scotland would be met if either of the following groups of documents were provided:

  • an application for cremation as provided for use in Scotland;
  • a certificate of No Liability to Register the death in England and Wales;
  • Scottish Form 11 (the new Scottish MCCD); and
  • Scottish Form 14 (the certificate of registration of death given to the family/informant by the Registrar);

Or:

  • an application for cremation as provided for use in Scotland;
  • a certificate of No Liability to Register the death in England and Wales; and
  • a coroner’s certificate under Regulation 18 of the Cremation (Scotland) Regulations 1935, as amended, in a case where a coroner has directed a post-mortem examination and is satisfied that further investigation is unnecessary, or has opened an investigation into the death.

At the end of April the advice about documentation was updated, as follows:

“In a non-coroner’s case:

  • an application for cremation as provided for use in Scotland or in England and Wales;
  • a certificate of No Liability to Register the death in England and Wales;
  • a full extract of the death from the register of deaths (a copy of which the family or funeral director will need to request from the registrar in Scotland and for which there will be a fee of £10 if requested at the time of registration or £15 if requested later) or a form E1 for deaths investigated by the Procurator Fiscal in Scotland; and
  • Scottish Form 14 (the certificate of registration of death given to the family/informant by the Registrar);

In a coroner’s case:

  • an application for cremation as provided for use in Scotland or in England and Wales;
  • a coroner’s certificate under Regulation 18 of the Cremation (Scotland) Regulations 1935, as amended, in a case where a coroner has directed a post mortem examination and is satisfied that further investigation is unnecessary, or has opened an investigation into the death.”

However, neither the original letter nor the updated advice seems to have resolved the matter, at least to the satisfaction of the National Association of Funeral Directors. In short, the matter seems still to be in doubt; and because it is a devolved issue, it is almost inevitable that the decisions taken in Scotland will not necessarily fit very well with the practices in the other jurisdictions – which is why the system of cross-border certification and transfer of bodies seems to have what might be termed ‘rough edges’. But that is an inevitable consequence of devolution and what the answer is, I do not know.

 Updated 30 April: An earlier version of this note formed part of a presentation at the recent conference of the Ecclesiastical Law Society.

Cite this article as: Frank Cranmer, "Cremation certification: some Anglo-Scottish issues" in Law & Religion UK, 27 April 2015, https://lawandreligionuk.com/2015/04/27/cremation-certification-some-anglo-scottish-issues/

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