Section 4 – Managing the deceased
Registration of deaths and still-births
Rationale for intervention
Presently deaths and still-births which take place in England and Wales have to be registered. The registration is made on information given by a ‘qualified informant’ unless a coroner has investigated the death. Such an informant is usually a relative. The registration must be made in person at the register office and the informant signs the register in the presence of the registrar. (See para 52 in explanatory notes.)
The provision aims to relax these requirements by allowing information for a death or still-birth to be given by other means where the local authority has decided it is not appropriate, or they are unable, to provide face to face registration. The purpose of the provision is to enable civil registration officials who cannot travel to their office, either because of transport difficulties or because of child care commitments, to register deaths from home. It is also intended that this will reduce the chance of cross infection by collecting information for death registration via other means rather than face to face interview.
Other policy options considered?
The different ways of working may not all be necessary or appropriate in all circumstances and local plans should be tailored to meet local requirements. They divide into three categories or phases – Phases 1 and 2 equate to maintaining business as usual for as long as possible, whereas phase 3 involves necessary legislative change to ensure the death management process when excess deaths cannot be managed using the provisions contained within phases 1 and 2.
To deal with resource pressures and limiting the spread of infection local authorities may be able to arrange for deaths to be registered other than by in person at the register office.
Key considerations
Although personal attendance at the register office can be helpful for relatives and is often seen as part of the grieving process, in a coronavirus outbreak situation, in order to limit the spread of infection, the local authority may decide that it wants to limit face to face contact.
There is a risk that changes to the ways that information may be provided, to registrars for the registration of death, may lead to registrations that are incomplete or that contain errors. However policy is in place to enable, following a coronavirus outbreak, consideration to be given to the correction or possible re-registration of death records on the application of relatives of the deceased.
As well as the benefits, for local authorities, as set out above, informants may be unwilling to attend at the register office, due to their concerns over the possible spread of infection and their own requirements regarding care for sick relatives etc.. Registering by other means (other than face to face) provides for the obligation to register to be met and the necessary documents for the disposal to be issued.
It will be important that medical practitioners, hospitals, coroners and funeral directors are kept informed of the services for death registration that are being provided by their local register office(s) in order to give that information to the bereaved relatives. Local authorities may decide to use their websites to make available the information about changes to local arrangements for registration.
Confirmatory medical certificate not required for cremations
Rationale for intervention
In the event of a severe coronavirus outbreak, the number of deaths and absence rates for the healthcare workforce would increase; this would have a significant impact, and increase the pressure, on registered medical practitioners dealing with a larger than normal number of applications for cremation.
Currently, applications for cremation of a person whose death is not being investigated by the coroner require the deceased’s attending medical practitioner to complete a medical certificate (Cremation Form 4), and a confirmatory medical certificate (Cremation Form 5) which must be completed by an independent registered medical practitioner. These provisions change the relevant legislation in the event of a severe coronavirus event to allow the crematorium medical referee (who authorises each cremation) to do so on the basis of Cremation Form 4 only. This would simplify the process, allowing cremations to take place without the need for secondary medical certification, while keeping a necessary level of safeguards in place.
Other policy options considered?
We considered removing the requirement to complete both medical certificates (Cremation Forms 4 and 5) and relying instead on the certificate for burial or cremation (known as the ‘Green Form’) issued by the registrar for births and deaths once the death is registered. However, this would remove all safeguards in terms of appropriate medical certification prior to registration of the death. In addition, in order for a safe cremation to take place it must be determined whether the deceased has any hazardous implants that require removal and the Green Form does not contain this information.
We also considered removing the role of the crematorium medical referee in authorising each cremation. However, we concluded this important safeguard was required particularly where there was no longer a requirement for the confirmatory medical certificate (Cremation form 5).
Key considerations
In the event of a severe coronavirus outbreak, there will be significant pressures on healthcare workers due to an increase in both the number of patient cases and the number of deaths, and in absence rates for the healthcare workforce. As Cremation Form 5 must be signed by a medical practitioner, there are likely to be delays to the processing of this form. Removing this requirement in the event of a severe coronavirus outbreak would reduce the burden on healthcare professionals, allowing them to be available to provide support with other medical duties. It will also reduce the likelihood of delays in allowing families to be able to make cremation arrangements for their loved ones.
Notification of deaths to coroners
Rationale for intervention
In the event of a severe coronavirus outbreak, the number of deaths would increase, as would absence rates for the healthcare workforce; this would have a significant impact, and increase the pressure, on registered medical practitioners, registration services and coroners dealing with a larger than normal number of deaths to be registered.
This provision relaxes existing regulations around the notification of death by doctors to allow a registered medical practitioner who may not have seen the deceased to certify the cause of death, without a requirement to refer the death to a coroner, as they would usually.
The impact will be to reduce the administrative burden on medical practitioners, and the number of deaths reported to the coroner, at a time when both medical and coroner services will be stretched. It will also reduce delays in the system, enabling bereaved families to conclude the cremation or burial process more quickly.
What other policy options were considered?
The only other policy option for achieving the same objective would be to remove the requirement for any medical practitioner to have attended the deceased in order for the death to be registered. However, this would remove all safeguards in terms of appropriate medical attendance and scrutiny prior to registration of the death, and is therefore disproportionate.
Key considerations
We have considered the possibility that the amended requirements could facilitate the concealment of unlawful killing as the death could be certified without referral to the coroner even when the certified medical practitioner has not seen the deceased. However, the revised requirements will apply only during the emergency period, and a registered medical practitioner will still be required to certify the death. In addition, if anyone, including the medical practitioner or registrar, has any concerns surrounding a death, they will still be able to refer the death to the coroner as in usual circumstances.
Certificates of cause of death
Rationale for intervention
Currently Medical Certificate Cause of Death (MCCD) can only be completed by doctors who have been in ‘medical attendance’ of the deceased during their last illness. Decreasing the safeguards within the present system for death certification is a serious step requiring justification. A balance needs to be struck between the provision of these safeguards and ensuring the effective management of excess deaths during a coronavirus outbreak.
When required, provision needs to be put in place to provide for a medical practitioner to certify death irrespective of whether he/she was in medical attendance during the deceased’s last illness. This thus enables flexibility and capacity within the death certification process and the wider health care systems to ultimately ensure that excess deaths are managed effectively.
By changing the relevant legislation further flexibility will exist within the death certification system. This would free up resources within the health authority as well as ensuring that excess deaths are managed effectively.
Other policy options considered?
The different ways of working may not all be necessary or appropriate in all circumstances and local plans should be tailored to meet local requirements. They divide into three categories or phases – Phases 1 and 2 equate to maintaining business as usual for as long as possible, whereas phase 3 involves necessary legislative change to ensure the death management process when excess deaths cannot be managed using the provisions contained within phases 1 and 2.
During phase 2 there will be an ability for the registrar and other experienced officers to undertake a first stage scrutiny of all MCCD to ensure that the form has been completed correctly and that all queries are resolved or referred to the coroner if appropriate. Although this should enable certain numbers of excess deaths to be effectively dealt with, further action may be required to manage high numbers of additional deaths and the introduction of the provision will be necessary to manage this.
Key considerations
Allowing a medical practitioner to certify an influenza death without the need for him/her to be either in medical attendance or have seen the deceased after death helps to increase health service capacity and to reduce potential additional reporting of natural cause deaths to coroners.
The arrangements for the certification of deaths relating to patients who die in hospitals or in the presence of a medical practitioner (e.g. a patient who dies in a care home while a medical practitioner is on site) should proceed broadly as normal. However in those circumstances in which there is no medical practitioner who can be deemed to have been in ‘attendance on the deceased…’ provision will exist for any registered medical practitioner to certify those deaths (to the best of their knowledge and belief, based on the information provided to them) without the need to have seen the patient before or after death.
There will need to be training in death certification provided to avoid delays that may occur because the registrar needs to make enquiries with the certifying doctor or the coroner before he/she can register a death and issue the authority for disposal, as well as the additional pressures placed on these services.
Extension to list of qualified informants
Rationale for intervention
Deaths and still-births which take place in England and Wales have to be registered. The registration is made on information given by a ‘qualified informant’ unless a coroner has investigated the death. Such an informant is usually a relative. The full list of such qualified informants is prescribed in the Births and Deaths Registration Act 1953 and this list does not presently include funeral directors (undertakers).
The provision seeks to extend the list of those who can act as a qualified informant to include a funeral director when authorised by the deceased’s family to act on their behalf. This will enable a funeral director to provide the information for the registration and to have the certificate of burial or cremation issued by the registrar. This will further enable a record to be compiled, so that national information about deaths is available as soon as possible.
Other policy options considered?
The different ways of working may not all be necessary or appropriate in all circumstances and local plans should be tailored to meet local requirements. They divide into three categories or phases – Phases 1 and 2 equate to maintaining business as usual for as long as possible, whereas phase 3 involves necessary legislative change to ensure the death management process when excess deaths cannot be managed using the provisions contained within phases 1 and 2.
The provision will enable a funeral director, when acting on behalf of the family, to give the information for the registration. However a relative will still, if desirable, be able to provide the information for the registration.
Key considerations
There is a risk that changes to the ways that information may be provided to registrars for the registration of deaths during a coronavirus outbreak may lead to registrations that are incomplete or that contain errors however policy is in place to enable, following a coronavirus outbreak, consideration to be given to the correction or possible re-registration of death records on the application of relatives of the deceased.
Seeking to increase the pool of informants may serve to pre-empt delays – for example should the next of kin/ other qualified informant be ill, their appointed funeral director may act on their behalf. A further benefit may be that if a funeral director is representing several families – registering all deaths could take place at the same time.
To enable a funeral director to give all the relevant information to the registrar; processes/instructions need to be in place for the funeral director to be aware of the relevant information needed to register a death. A pro-forma sheet has been prepared to be given to funeral directors to collect the information from the family.
Delivery of documents by alternative methods
Rationale for intervention
Currently a certificate of the registrar (or alternately an order of the coroner) authorising the disposal (a disposal certificate) has to be issued prior to the disposal of a body. Additionally, a person effecting to the disposal of a body has to to deliver a notification of disposal to the registrar within 96 hours of the disposal. Legislation provides that any document required under the Act may be sent by post, however, it is silent as to what other modes of delivery are permitted.
The provision clarifies that during a coronavirus outbreak period any document or certificate relating to the disposal of a body may be delivered by alternative methods specified in guidance issued by the Registrar General.
In the event of a severe coronavirus outbreak, there may be disruption to the postal service. Additionally, this enables documents to be delivered without the need for members of the public or the postal workforce to travel unnecessarily.
Other policy options considered?
The different ways of working may not all be necessary or appropriate in all circumstances and local plans should be tailored to meet local requirements. They divide into three categories or phases – Phases 1 and 2 equate to maintaining business as usual for as long as possible, whereas phases 3 involves necessary legislative change to ensure the death management process when excess deaths cannot be managed using the provisions contained within phases 1 and 2.
Key considerations
Following a death registration, the registrar is required to issue a certificate of registration to the informant to enable the funeral to take place. This certificate is normally handed to the undertaker, who in turn delivers the certificate to the relevant person at the crematorium or burial ground. The funeral cannot take place until the relevant person has the certificate in their possession.
Delivering any documents (required under the legislation), including the certificate of registration, either in person or by post may not be practical or desirable during a coronavirus outbreak.
Excess deaths: increasing timeframe for doctors to have seen deceased prior to death
Rationale for intervention
Currently registrars have a legal obligation to refer deaths to the coroner under certain circumstances. The Registration of Births and Deaths Regulations 1987 prescribes, among other circumstances, that if the doctor who has completed the medical certificate has not seen the deceased after death or within 14 days before their death the registrar must report the death to the coroner.
During a coronavirus outbreak there will be considerable burdens placed on doctors, in particular GPs, in respect of their time and it is unlikely that they will be able to see all their patients within the statutory timescale and likewise, given the circumstances of a coronavirus outbreak including infection control, it will be unlikely that the doctor will see the deceased after death.
Other policy options considered?
The different ways of working may not all be necessary or appropriate in all circumstances and local plans should be tailored to meet local requirements. They divide into three categories or phases – Phases 1 and 2 equate to maintaining business as usual for as long as possible, whereas phases 3 involves necessary legislative change to ensure the death management process when excess deaths cannot be managed using the provisions contained within phases 1 and 2.
Key considerations
Currently if a doctor has not seen the deceased after death or within 14 days before their death the registrar must report the death to the coroner for investigation irrespective of the fact that the death may have been due to natural causes (including coronavirus). This will add considerable burdens on the coronial service within England and Wales
Extending the period from 14 to 28 days allows for more flexibility within the system to cope with excess deaths due to a coronavirus outbreak. It will also maintain business as usual for as long as possible allowing the doctor who has been in medical attendance on the deceased to sign a medical certificate without the need for it to go to the coroner or alternatively other provisions being brought in to alleviate the pressures brought by a coronavirus outbreak.
Powers in relation to bodies
Rationale for intervention
The UK typically deals with roughly 600,000 deaths per year. In a severe coronavirus outbreak, the death management industry may be rapidly overwhelmed.
The numbers of additional deaths are unprecedented. Whilst the death management industry has some flexibility to deal with fluctuations in death rates, these are of a different order of magnitude. The average weekly death rate is roughly 11,800 deaths which fluctuates between 14,800 deaths during winter flu season and drops to 8,500 in milder months. Under current planning assumptions roughly 50% of total deaths from coronavirus could fall across a three week peak. A death rate of this scale would far exceed existing capacity in the death management industry.
Other policy options considered?
MoJ has no operational responsibility for crematoria or burial sites and therefore has no powers to intervene to increase throughput. Existing legislative provisions that give local authorities powers (e.g. Local Government Act) are insufficient to deal with the scale of the unprecedented problem. To ensure we can respond effectively to this demand on the death management sector, Local Authorities may have to direct a fragmented sector and current legislation does not allow this.
We considered using the Civil Contingencies Act (2004). However, part of the triple-lock on activation on this legislation is that you cannot see the emergency coming. Therefore, as there is doubt whether the ‘urgency’ can be evidenced, there is legal risk that CCA measures, as secondary legislation, could be struck down and leave the government without the powers it needs to prepare for and respond to a RWCS outbreak.
Key considerations
The industry is fragmented and is largely unregulated, with most funeral homes being privately owned. Government therefore has no power to direct this sector to maximise capacity that may be needed.
The wishes of the deceased and their next of kin is a very important consideration. These wishes will be respected as far as possible, and increasing the capacity of the death management system is critical for extending the length of time these wishes can be complied with.
Human Tissue Authority guidance recommends a body should be kept in refrigerated storage for a maximum of 30 days. After which it should be moved to frozen storage.
The current registered mortuary storage (refrigerated and frozen) capacity in the UK is 17,600. The Crown Commercial service have already identified commercial options that could rapidly add an additional capacity to store 25,000 bodies. There still remains a significant gap in body storage requirements to ensure we are prepared for the reasonable worst-case scenario.
The only way to ensure bodies are not stored for longer than appropriate is to increase body disposal capacity. This may require direction of crematorium and burial sites to increase their throughput by extending operating hours and curtail or ceasing services. This will bring additional risks to these businesses and likely will financially disadvantage them. Therefore, the individuals coordinating the death management system during this emergency require the power to direct them to increase their capacity.
Suspension of requirement to hold inquest with jury
Rationale for intervention
Coronavirus (COVID-19) has been designated as a notifiable disease. This engages a requirement in the Coroners and Justice Act 2009 that any inquest into a death caused by a notifiable disease must have a jury. In the event of a severe coronavirus outbreak, the number of deaths would increase; the requirement for all inquests involving such deaths to have a jury would therefore have a significant impact on coroners’ workload and local authority coroner services and other resources. In addition, given likely sickness rates among the general population, the need to identify and convene a jury in each such case would be unlikely to be sustainable and, in any event, could exacerbate the spread of the coronavirus outbreak.
The provision therefore amends the 2009 Act to disapply the requirement for a jury in relation to inquests into coronavirus deaths. The provision will only apply during the emergency period.
Other policy options considered?
The only other policy option for achieving the same objective would be to disapply the requirement for a jury in an inquest relating to any notifiable disease. However, this would remove safeguards in terms of additional scrutiny in all such cases and, as such, would be disproportionate (particularly as the number of inquests relating to other notifiable diseases is not expected to increase during a coronavirus outbreak).
Key considerations
The measure is needed to avoid potentially significant impact on coroners’ workload, local authority run coroner services and other resources, and will reduce delay. It will also enable bereaved families to avoid delay in the inquest process, and thereby achieve swifter closure.
Coroners will still retain the discretion to hold a jury inquest in coronavirus cases where they consider this appropriate. This mitigates the concern that, under these provisions, coronavirus deaths could not be afforded the additional scrutiny of a jury inquest.
Suspension of the referral of MCCDs under the Certification of Death (Scotland) Act 2011
Rationale for intervention
The Burial and Cremation (Scotland) Act 2011 (the 2011 Act) updates the certification of death process in Scotland with the aims of introducing a single system of independent, effective scrutiny applicable to deaths that do not require a Procurator Fiscal investigation, and improving the quality and accuracy of Medical Certificates of Cause of Death (MCCD).
The primary function of medical reviewers is to conduct reviews of MCCDs. They also have a role in providing education, guidance and support to doctors who certify the cause of death and they liaise with other persons and bodies with a view to improving the accuracy of these certificates.
The policy proposal is that during the outbreak period, Scottish Ministers should be able to determine that the referral for review of MCCDs under section 24A of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 (the 1965 Act) and under section 4 of the 2011 Act should be suspended until such time as they determine it is appropriate to re-instate the review system.
It is considered that suspending the referral for review of medical certificates of cause of death in an emergency may help to expedite the disposal of bodies and free up medical personnel.
Other policy options considered?
The Death Certification Review Service (DCRS) operates in Scotland only and policy options for streamlining the service without legislative intervention have been explored and are being progressed where appropriate.
Before taking a decision to suspend the referral of MCCDs to DCRS, Scottish Minsters in consultation the Senior Medical Reviewer at DCRS, would consider lowering the percentage of certificates to be reviewed by the service, making the workload more manageable. This arrangement would be implemented by agreement between DCRS and Scottish Ministers.
Key considerations
The effect of suspending the referral of review of MCCDs will be that from the date on which the Registrar General has been directed to suspend referrals, no new referrals to medical reviewers will be made under either section 24A of the 1965 Act or section 4 of the 2011 Act.
All referrals which have been made under section 24A of the 1965 Act prior to the date of the direction but not concluded by that date, except for those where a referral to the Procurator Fiscal is being considered under section 11 or 12 of the 2011 Act, should be stopped and the registrars can proceed to register the death and issue the relevant certificate under section 27 of the 1965 Act.
Where a referral to the Procurator Fiscal is being considered under sections 11 or 12 reference should be made to the Procurator Fiscal who will then determine whether to investigate further.
Suspension of cremation provisions under the Burial and Cremation (Scotland) Act 2016
Rationale for intervention
These clauses suspend various provisions of the Burial and Cremation (Scotland) Act 2016 (the 2016 Act) and the Cremation (Scotland) Regulations 2019 (the 2019 Regulations) in the event of an exceptionally high morbidity rate from coronavirus. These clauses relate to the legal requirements in respect to cremation in Scotland only.
Suspension of offence relating to signing of declaration
Scottish Ministers may determine that section 49 of the 2016 Act (offences relating to applications for cremation), in so far as it applies to the signing of the declaration in section 4 of form A1, should be disapplied.
A person is entitled, under the hierarchy set out in section 65 or 66 of the 2016 Act, to make arrangements for a person’s funeral.
The intention of this clause is to allow for the situation where it is known, or suspected, by the person making the arrangements that there is someone higher up in the hierarchy who may be able to make the arrangements, but that person is unwell or otherwise unable. For example, it may be that a friend of longstanding is available and content to make the arrangements, even where they are aware that the deceased does have a next of kin who cannot be immediately contacted. Individuals may be more willing to sign the declaration if the associated offence was removed. This will expedite the process of arranging a cremation.
Suspension of provisions relating to collection of ashes
Scottish Ministers will have a power to direct that sections 53 to 55 of the 2016 Act will be suspended until such time as Ministers direct otherwise. During this period, the administrative tasks associated with tracing relatives when ashes have not been collected, will be removed. Instead, all ashes, including where a local authority is making arrangements for the cremation under section 87, would be retained until such time as the suspension of sections 53 to 55 is lifted, unless a relative wishes the ashes returned to them or for the cremation authority to inter or scatter the ashes.
By removing the administrative burden during an outbreak period, funeral directors and crematorium staff will be able to use their resources more effectively, particularly if facing staff shortages. By ensuring that ashes are retained during this period, it gives families, who may have been struck by illness, an longer period in which to make their wishes known.
Once the suspension is lifted, the normal duties to follow the wishes of the applicant will resume for retained ashes.
Suspension of local authority duty to make enquiries as to surviving relatives
Where a local authority is making arrangements under section 87 of the 2016 Act, regulation 8(3)(e) of the 2019 Regulations provides that the local authority when arranging for the cremation must complete an application in on form A5 set out in schedule 5 to the 2019 regulations. Section 5 of that form contains provisions in relation to the disposal of the ashes. During the period in which sections 53 to 55 are suspended, the local authority is not under any duty to take steps to enable them to complete section 5 of Form A5 and that where they are unable to do so the cremation authority should retain the ashes until such time as the suspension of sections 53 to 55 has been lifted. Once the suspension of sections 53 to 55 has been lifted the local authority is once more under a duty to take reasonable steps to ascertain whether there is any surviving relative and if so whether they wish to have the ashes returned to them or for the ashes to be scattered or interred. If relatives cannot be found, following the lift of suspension, then ashes will be disposed of in accordance with the Cremation (Scotland) Regulations 2019.
Other policy options considered?
Yes, all other policy options were considered. The selected provisions were considered to be the most effective for utilising resource during staff absence and to expedite the death management process.
These clauses will only be activated by direction of the Scottish ministers, if required.
Key considerations
Key consideration included:
- more flexibility around who can arrange a person’s funeral and the recognition that removing the offence will make people more willing to step forward
- the potential to pause administrative workload to allow more effective use of resources for funeral directors and crematorium staff