The Act Commentary on Sections Part 1 - Coroners etc Section 20: Medical certificate of cause of death
161.This section enables the Secretary of State for Health to make regulations about the preparation, scrutiny and confirmation of MCCDs and about the way the confirmed MCCD is notified and given to a registrar or about how the death is referred to a senior coroner. The section also enables regulations to be made about the payment of a fee for the service provided by a medical examiner.
162.The independent scrutiny and confirmation of MCCDs is part of a wider process that starts with the preparation of the certificate by a registered medical practitioner who attended the deceased and ends with the certificate being returned to the medical examiner after it has been used by the registrar to register the death. The new unified process is intended to be simpler and more transparent than the previous one and requires specification of activities, responsibilities and alternative scenarios that are more suited to regulations than to provisions on the face of the Act. Subsection (1) provides the power to make the necessary regulations.
163.The new process has been designed with the active engagement of a wide range of stakeholders and is illustrated in an overview booklet published by the Department of Health (http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_090533).
164.Regulations made under subsection (1)(a) will require a registered medical practitioner who attended the deceased prior to death (the “attending practitioner”) to prepare an MCCD (the “attending practitioner’s certificate”) stating the cause of death to the best of the practitioner’s knowledge and belief. This duty has been transferred and adapted from section 22 of the Births and Deaths Registration Act 1953 (the 1953 Act) (see subsections (1)(m) and (3) for the associated transfer of responsibility for prescribing forms, including the MCCD, and for making them available to medical practitioners).
165.The attending practitioner’s certificate will be prepared using first-hand knowledge of the deceased’s condition prior to death together with information from medical notes and patient records. PCTs (in England), LHBs (in Wales) and healthcare providers (both in the NHS and the private sector) will also be encouraged to adopt local protocols relating to the verification of the fact of death that are able to provide the attending practitioner with information on circumstances leading to the death. Knowledge of these circumstances may assist the attending practitioner in establishing the cause of death or in deciding that the death needs to be referred to a senior coroner.
166.Where the attending practitioner needs advice on how to complete an MCCD or wants to discuss the probable cause of death before preparing the certificate, he or she will be able to speak with a medical examiner. This is expected to reduce the number of deaths that are unnecessarily reported to a senior coroner.
167.If the attending practitioner is unable to establish the cause of death, or is unable to do so in a period of time prescribed by regulations made under subsection (2)(a), then the death must be referred to a senior coroner.
168.If the attending practitioner is not contactable within a period of time after death prescribed by regulations that may be made under subsection (2)(a), then the death must be referred to a senior coroner. This is relevant, in particular, to deaths in the community, which, even though they are apparently due to natural causes, occur at a time when the deceased’s usual doctor is not contactable.
169.If there is no attending practitioner, for example, where the deceased person was not receiving treatment for the condition that caused the death then the provisions under subsection (1)(a) do not apply and the death must be notified to a senior coroner as prescribed by regulations that may be made under section 18.
170.It is intended that regulations made under subsection (1)(a) will specify that an attending practitioner’s certificate will not be required where the death has been notified to a senior coroner in accordance with regulations made under section 18 and is investigated by the senior coroner as specified in section 1. This is a key change from the previous process and addresses a long-standing issue in which a strict interpretation of the 1953 Act requires an attending practitioner to prepare a certificate even if he or she cannot establish the cause of death, and requires the registrar to refer this certificate to a coroner.
171.Section 18 together with regulations under subsection (1)(a)(ii) change the practice of medical practitioners to refer deaths to a senior coroner into a statutory duty.
172.It is intended that regulations made under subsection (1)(b) will require that where an attending practitioner’s certificate has been prepared, the hospital bereavement office or GP surgery (or equivalent) must transmit a copy of it to a medical examiner’s office. The original certificate will be held by the hospital bereavement office or GP surgery (or equivalent) until it has been scrutinised and confirmed by a medical examiner. This is a key change to the previous process in which, if there is no local protocol to the contrary, the attending practitioner’s certificate is given to the family immediately after it is written. The Government expects that the additional time required to complete the scrutiny will in most cases be no longer than the time taken to complete the forms previously required by the Cremation (England and Wales) Regulations 2008. There is no requirement to complete these forms in the new process.
173.Regulations made under subsection (1)(c) will allow registrars to invite a medical examiner to request a fresh attending practitioner’s certificate. A fresh certificate may be required if, during registration, the informant provides new information about the death which invalidates the cause of death previously confirmed by the medical examiner. The provisions outlined here allow registrars to retain their duty to provide a last check that a death does not need to be notified to a senior coroner. However, many registrars find it difficult to perform this role – particularly where they have to refer a substantial number of certificates – because they have to rely on knowledge gained through experience and because the delays caused to bereaved families can cause considerable stress. The new process is designed to address this issue and to reduce significantly the number of MCCDs that registrars need to refer to senior coroners.
174.Regulations made under subsection (1)(d) will allow arrangements to be established in relation to deaths that senior coroners refer to medical examiners. These will be the deaths that were originally notified to a senior coroner under section 18 or referred to a senior coroner under subsection (1)(a)(ii) that the senior coroner has decided not to investigate. In these cases, the senior coroner will issue a form stating that he or she has no further interest in the death and will transmit this form to the medical examiner’s office together with any relevant information about the death that he or she has used in coming to his or her decision. In some cases, this information may include advice provided by a medical examiner in response to a request from the senior coroner or coroner’s officer.
175.Since the senior coroner can refer a death to a medical examiner only where the cause of death is known, the regulations made under subsection (1)(a)(i) will allow the attending practitioner to prepare an attending practitioner’s certificate. If there is no attending practitioner or if the attending practitioner is not available within a prescribed period after a senior coroner decides not to investigate, then a medical examiner will establish the cause of death and prepare a “medical examiner’s certificate” as specified in regulations made under subsection (1)(h)(i). These changes remove the current situation in which some deaths need to be registered as “uncertified”.
176.Regulations may be made under subsection (1)(e) requiring a medical examiner to make whatever enquiries appear to be necessary in order to confirm or establish the cause of death. Whilst medical examiners will have full access to medical notes and patient records as a result of the amendment to the Access to Health Records Act 1990 made by paragraph 29 of Schedule 21, they will not be able to require any individual or organisation to respond to their enquiries or provide information. If a medical examiner is not able to obtain information required to confirm or establish the cause of death, then the death will be referred to a senior coroner (as outlined below) and the senior coroner will be able to require the information to be provided.
177.When the copy of an attending practitioner’s certificate is received by a medical examiner’s office from a hospital bereavement office or GP’s surgery (or equivalent) it should be accompanied by relevant medical notes and/or patient records. Where these cannot be transmitted or provided easily, arrangements may be made for a medical examiner to view them in situ. A medical examiner’s officer will ensure that the attending practitioner’s certificate has been completed and that the associated notes and records have been provided or are available and then, if necessary, contact the deceased person’s next of kin, or other appropriate person or people, to obtain any further information required. The medical examiner’s officer will talk with the bereaved family, usually by telephone, in a way that does not intrude on their grief or raise concerns that would otherwise not exist. As a further safeguard against unnecessary intrusion, information collected by bereavement officers or, for reported deaths that a senior coroner has decided not to investigate, by coroners’ officers, will be made available to the medical examiner’s officer.
178.If the attending practitioner’s certificate has been completed properly, it will advise that the attending practitioner or another prescribed person has seen, identified and externally examined the deceased person’s body after death. The purpose of this examination is to confirm there are no injuries or other suspicious features that might indicate an unnatural death. If, in exceptional circumstances agreed with a medical examiner, the attending practitioner has not been able to see, identify and examine the body, then the medical examiner will need to arrange to do so during scrutiny. A medical examiner will also need to see, identify and examine the body for deaths that are referred to him or her by a senior coroner and which require a medical examiner’s certificate as set out in subsection (1)(d).
179.Regulations may be made under subsection (1)(f) requiring a medical examiner, after scrutinising the attending practitioner’s certificate and other information prepared by the medical examiner’s officer, either to confirm the cause of death or to refer the death to the senior coroner.
180.In order to ensure that the scrutiny carried out by the medical examiner is robust, proportionate and consistent, there will be a protocol that recognises different levels of risk depending on the setting, stated cause and circumstances. The protocol will establish the minimum level of scrutiny for specific situations but will allow a medical examiner to use professional judgement to determine the degree to which the scrutiny is pursued.
181.If, during scrutiny, a medical examiner is unable to confirm the cause of death or decides that it meets any of the criteria prescribed in regulations made under section 18, then the death will be referred to a senior coroner as specified in regulations made under subsection (1)(h)(ii) or section 18. The medical examiner will give reasons for the referral and, where appropriate, suggest what type of post-mortem may be necessary. If, in exceptional cases, the senior coroner decides not to investigate the death and cannot come to an agreement with the medical examiner about the cause of death then the case would need to be taken through the appeals process as set out in Chapter 6 of Part 1 of the Act. The medical examiner has been included as an “interested person” in section 47 in relation to this appeals process.
182.If, during scrutiny, a medical examiner forms the opinion that the cause of death stated on the attending practitioner’s certificate is either insufficient or incorrect, but the death is not reportable to a senior coroner, the medical examiner will discuss the death with the attending practitioner and invite him or her to prepare a fresh certificate. The Government intends that this will be specified in regulations made under subsection (1)(c). If, in exceptional cases, the attending practitioner and medical examiner are unable to agree on the cause of death, the medical examiner will refer the case to a senior coroner.
183.Once any issues raised by the next of kin (or other appropriate person or people) have been resolved, they will be advised that the MCCD can be collected from the hospital bereavement office or GP Surgery (or equivalent) or, for an MCCD prepared by a medical examiner, from the medical examiner’s office. At the same time, a medical examiner’s authorisation will be transmitted to the attending practitioner (if one exists) and the registrar to notify them that the cause of death has been confirmed and that the MCCD can be issued and used to register the death.
184.A copy of the medical examiner’s authorisation will be transmitted to funeral directors to allow them to finish preparing the body for burial or cremation where this involves changing the body in a way that might render it unsuitable for a post-mortem.
185.Regulations may be made under subsection (1)(g) about giving the MCCD to a registrar. In practice, the MCCD will be given to an informant or someone collecting it on behalf of the informant and the informant will give the MCCD to a registrar. The regulations may allow the MCCD to be given in other ways: for example, sent by secure post to the informant or sent directly to a registrar. These arrangements are intended to ensure that the new process is as fast and as convenient as possible.
186.The policy intention is that registrars must wait until they have received (or can access) a copy of the medical examiner’s authorisation before they can accept (or confirm acceptance of): a request to register a death; a request to defer registration; or a request to authorise disposal before registration.
187.Where a medical examiner has issued a certificate by virtue of regulations under subsection (1)(h) after referral of the case to him or her by a senior coroner (see subsection (1)(d)), further provisions, made by regulations under subsections (1)(i) and (j), will apply. These provisions will correspond to those made under subsection (1)(c) and (g) in relation to an attending practitioner’s certificate that has been confirmed by the medical examiner in accordance with regulations under subsection (1)(f).
188.Once scrutiny has been completed, a medical examiner or someone acting on behalf of a medical examiner (usually the medical examiner’s officer) will speak with the next of kin of the deceased person (or other appropriate person or people) to advise them of the outcome of the scrutiny. This conversation will be required by regulations made under subsection (1)(k).
189.Where the cause of death has been confirmed, the medical examiner or person acting on his or her behalf will explain the cause of death and check that it does not raise any issues that have not yet been considered. If issues are raised and cannot be resolved during the conversation then the medical examiner may decide to re-open the scrutiny or refer the death to the senior coroner.
190.Regulations may be made under subsection (1)(l) requiring the person nominated as the informant for the purpose of registration, or another prescribed person, to confirm in writing that a medical examiner or someone acting on his or her behalf (usually the medical examiner’s officer) has explained the confirmed cause of death as set out in subsection (1)(k). At present, the Government anticipates that this written confirmation will be provided during registration; however, there are other possible options. The purpose of the written confirmation is to provide evidence that the cause of death has been explained to the informant or other prescribed person, thereby lending transparency to the new process in contrast to that provided by the previous process.
191.Regulations made under subsection (1)(m) will enable the Secretary of State for Health, after consultation as set out in subsection (3), to prescribe forms, including the “MCCD” form. The regulations will also require the forms to be made available to medical examiners, registered medical practitioners and others who need to use them.
192.Regulations made under subsection (1)(n) will require the Chief Medical Officer of the Department of Health to issue guidance as to how certificates and other forms are to be completed and to do so after consulting the person who holds the office with corresponding functions in relation to Wales, as well as the Registrar General and the Statistics Board.
193.Regulations made under subsection (1)(o) will enable all forms, including the MCCD form, to be signed or otherwise authenticated. Authentication in this context will enable the forms to be transmitted or made available electronically.
194.Subsection (2)(a) enables any regulation in subsection (1) that imposes a requirement to have a prescribed period within which the requirement is to be complied with.
195.Subsection (2)(b) enables any regulation in subsection (1) that imposes a requirement to have prescribed cases or circumstances in which the requirement does, or does not, apply. This provision may need to be used, in particular, during periods of emergency as defined in section 17(7).
196.Subsection (3) requires the Secretary of State for Health to consult with Welsh Ministers, the Registrar General and the Statistics Board before prescribing forms, including the MCCD form, as specified in subsection (1)(m). The Statistics Board will continue to ensure that the MCCD form complies with requirements set by the World Health Organisation.
197.Subsection (4) allows regulations under subsection (1) to provide that functions otherwise exercisable by attending practitioners to be carried out during a period of emergency by registered medical practitioners who did not attend the deceased prior to death. The primary activities to which this would relate are the preparation of an MCCD and discussion with a medical examiner about any changes that might be required in order for the cause of death to be confirmed (see also section 19(4)(f) on when functions normally carried out by medical examiners may be carried out by others during a period of emergency).
198.Subsection (5) enables regulations to be made by the Secretary of State for Health (for England) and Welsh Ministers (for Wales) to provide for a fee to be payable to a PCT or LHB in respect of a medical examiner’s scrutiny and confirmation of an attending practitioner’s certificate or the preparation and issue of a medical examiner’s certificate. The fee level will be set on the basis of full cost recovery, without any element of profit. The first such regulations, and any subsequent regulations that raise fees by more than the rate of inflation, will be subject to the affirmative resolution procedure: see subsection (4)(a) and (5)(a) of section 176.
199.Funeral arrangers currently pay a total of £160.50 to individual doctors for the preparation and issue of forms required under the Cremation (England and Wales) Regulations 2008. In the new system, the medical examiner will perform the function of all three of these doctors and will, the Government expects, be able to do so at a lower total cost. An analysis of costs and benefits is available in the Department of Health’s Impact Assessment (http://www.dh.gov.uk/en/Consultations /Closedconsultations/DH_076971).
200.Under subsection (6), the Secretary of State will not need to make regulations about cremation (under the Cremation Act 1902) if they are unnecessary because of other regulations made under Part 1 of this Act, or provision contained in or made under Part 2 of the the 1953 Act in relation to England and Wales.