Death certification – competing public interests

Dr Huw Evans, academic lawyer, Cardiff Metropolitan University

There has been adverse publicity about delay in the issue of death certificates following changes introduced in September 2024.

This article discusses those changes. Separate public interests are identified and a need to ensure that a balance is struck between them.

The changes

Coroners must investigate a death where that death is violent or unnatural, its cause is unknown, or it occurs in custody or other state detention. The Coroners and Justice Act 2009 sets this out.

Before 9 September 2024, unless referral to a coroner was appropriate, a doctor who attended someone before their death (the attending doctor), could confirm death and its cause – thereby enabling the issue of a death certificate.

But from 9 September 2024, where the coroner’s involvement is not needed, a death requires confirmation from the attending doctor and an independent medical practitioner, known as a medical examiner, before the death certificate can be issued.

Thus, there must be an independent person involved in the scrutiny of all deaths, either a coroner or a medical examiner.

This is a big change. It has required additional resourcing; it is not a rearrangement of the deckchairs.

Separate medical examiner services have been established for Wales and England under the overall guidance of a national medical examiner. Specific costs have not been identified, but this must have involved significant increased resourcing.

For medical examiners in Wales, the Welsh Government must ensure that enough medical examiners are appointed, and that there is sufficient resourcing. There is a similar duty on the UK Government for medical examiners in England.

Establishing the medical examiner services has been accompanied by the new law requiring medical examiner involvement in the death certification process. This is set out in the Medical Certificate of Cause of Death Regulations 2024.

Rationale for changes

The obvious starting point is Dr Harold Shipman. The Shipman Inquiry concluded that he killed at least 215 of his patients. As an attending doctor he was able to falsely record cause of death in the absence of independent scrutiny. In 2003 the Inquiry recommended ‘radical change’ to the death certification process.

But the Inquiry concluded this change was not just about detecting medical homicide. It was also about ‘satisfy[ing] the public interest in the discovery of the true causes of death in the population’ and ‘contributing to…the improvement of public health and safety.’

There are other examples of scandal highlighting the need for change. In the 2013 Mid Staffordshire NHS Foundation Trust Public Inquiry Report it was found that as a result of appalling conditions there were 500 more deaths in the Trust than would have been expected between 2005-6 and 2007-8.

There was also serious concern about the accuracy of records about causes of death, with pressure put on staff to disguise the truth.

The 2018 Gosford Independent Panel Report, covering a period from 1989 to 2001, found that over 450 Gosport Hospital patients’ lives had been ‘shortened’ by ‘prescribing and administering “dangerous doses” of a hazardous combination of medication not clinically indicated or justified’.

Competing public interests

The overhaul of death certification in England and Wales is to be welcomed in principle.

Independent scrutiny for all deaths can help in several respects. These include preventing Shipman behaviour, preventing ‘corporate’ cover-up, identifying bad practise contributing to death, and obtaining more accurate data and trends which can then inform policy formulation and resource allocation.

There is a clear public interest in pursuing all these things.

But there is also a parallel public interest in making the process as smooth and as timely as possible for those affected, which is where the focus lies in current news reporting: e.g. delays in the release of bodies from hospital mortuaries.

Self-evidently, extending death certification to independent scrutiny in all cases has the potential to cause delay. This might inevitably happen where a medical examiner has legitimate questions. But this should not necessarily or ordinarily be the case, surely?

Most deaths, it would be hoped, can be explained and the attending doctor and medical examiner speedily agree on the cause to enable the early issue of a death certificate.

Current news reporting, however, suggests that this ideal has not been reached.

Why changes in 2024, and not in 2009?

The Coroners and Justice Act 2009 provided for the appointment of medical examiners and of the national medical examiner.

Why then did it take 15 years for the new system to be implemented? This is not immediately obvious, although legal reasons could be partly to blame. The 2009 Act was strengthened in 2022 regarding medical examiners, suggesting that a legal deficiency needed to be cured. But this could have been done years before.

Another possible explanation is about resourcing. The 2009 Act was shortly followed by the austerity programme after the election of the Conservative and Liberal Democrat coalition government in 2010 and, as mentioned, the new arrangements have required substantial resourcing.

Yet there was evidence of the need for overhaul in 2009 following the Shipman Inquiry report.

The concern is that due to the delay in making the change, deaths have been missed where independent scrutiny would have raised issues.

Overview

There are two separate public interests that need to be balanced; first, that cause of death is accurately identified and explained, and sometimes this will take time; second, that the process of death certification is completed expeditiously, efficiently and humanely, free for bureaucratic impasse.

Current reporting suggests that balance is not being struck.

The new arrangements are at a relatively early stage, and it is, perhaps, difficult to make judgement about their adequacy when practitioners are still getting used to them

That said, the fear is that under-resourcing is also in play.

An early evaluation is needed, say in Autumn 2025, to assess if that balance is being struck and, if not, what can be done to ensure that all public interests are being served in the way that should be expected.