Health and Social Care Bill

Baroness Jolly Excerpts

Monday 5th December 2011 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, I in no way want to detract from the debate that has already taken place, and I am grateful to the Committee for allowing me to speak now on my opposition to Clause 51. I appreciate it, although I realise that it is in many ways unrelated to the very important debate that we have just had. Clause 51 relates to medical examiners, to the changes in the coronial system introduced through the Coroners and Justice Act, and to the change of placement for these medical examiners, given that PCTs will no longer exist.

Medical coroners are being phased out, in part due to concerns about their difficulty in handling complex cases in court. However, legal coroners have difficulty in making crucial, and sometimes far more common and more far-reaching, decisions on whether to open an inquest and whether to question medical reports. The recent BBC Radio 4 “File on 4” programme on the variation in the adequacy of inquiries in NHS inquests criticised several coroners, none of whom was a medical coroner.

Every jurisdiction needs medical input to support a legal coroner, but the introduction of medical examiners per se is not without its problems and is not straightforward. Local authorities have made it clear that they do not want to take over this role. They are concerned that it will be more expensive at a time when they have no capacity to increase investment. They are also concerned about how this burden will be funded and that the need to raise the money directly will be viewed as a death tax by their local population, which will be politically unacceptable. The cremation certificate fee of £147, which is paid directly to the clinician signing the form but is currently taken from relatives as part of the undertaker’s fee, raises about £40 million per annum across the country. That is only for cremations, which make up 70 per cent of all funerals.

There is a need for transparency over the fees, and that is to be welcomed. However, there are real concerns about how local authorities will decide to raise this money and what they will do about debt recovery if people are unable to pay, and about the various models of medical examiner that will be put forward and how the fees to support them overall should be collected. There is also uncertainty about whether there will be a national medical examiner. There is a need for a national medical examiner to ensure the quality and competence of examiners, who are likely to be retired GPs who have to be trained in coronial law and in the importance of judging decisions according to the requirement to ascertain causation and not to breach a duty of care. There will also be a need to ensure that an examiner is available within 24 to 36 hours so that families can proceed with rapid burial arrangements and not delay them. The current coronial officer capacity is already very stretched, and there is concern that examiners would have a conflict of interest if they were recruited from local general practices or trusts.

There is also real concern over the pilots of the new death certificate processes, which are showing delays in the role of the new medical examiners of up to four or five days, with mortuaries being stretched, undertakers being concerned that funerals are not happening as quickly as they should be, and a general backlog.

I hope that in response to my questioning of Clause 51, the Government will recognise that there is a need for the Department of Health to get together with the Ministry of Justice as the new chief coroner is appointed to make sure that a group looks at this issue in detail before proceeding further with the rollout. The system should be examined in the light of the chief coroner, in the light of what the local authorities find acceptable, in the light of how the costings are worked out, and in the light of the pilots, which are raising, rather than allaying, concerns. As I said, I am grateful to the Committee for allowing me to speak, as a matter of convenience, on Clause 51 at this point.

[Baroness Jolly]

My Lords, I wish to add something on Clause 51 stand part. I am sorry that it is not where we expected it, but that is absolutely fine. We are in a place of unintended consequences, because without a PCT there is no home for this particular service. Also, post-Shipman, there is a need for sharpening up clinical governance on death certificates. Therefore, there is no disagreement with any of that, but the unintended consequence is that local authorities have a serious problem in that, as I understand it, funeral directors no longer wish to be a part of the mix, so local authorities are being tasked with implementing a system in which something will have to be collected—somewhere in the order of £150 per certificate to cover the costs. The call for the system to be set up came in 2009; the previous Labour Government asked us to look at regularising the system of certification of deaths not only for cremations but for burials. It was to be revenue-neutral, which poses another problem for the local authorities.

The timing of this for somebody who is bereaved is really difficult. If you lose somebody, you can neither bury them nor have them cremated without the death certificate. Being charged something in the region of £150 could be really awkward, difficult or maybe even impossible. If they paid into an insurance plan, it will not have paid out; after a few days, probate is just not in the right place at all. I would like the Minister to consider two things. First, the cost is anticipated to be somewhere between £40 million and £60 million. I cannot think of anything else on which the taxpayer actually pays for the collection of government data. I would like the Government to consider whether it is appropriate to pass on these fees when certificates for births, marriages and deaths are currently less than £20. Secondly, failing that, would my noble friend commit to working with the Department for Communities and Local Government and the Ministry of Justice to devise a sensitive system that does not call for a sizable payment up front on collection of the death certificate? They should pay attention to the pilot data alluded to by the noble Baroness, Lady Finlay; the pilots are not running absolutely smoothly.

[Baroness Thornton]

My Lords, what links the two parts of this debate are the unintended consequences and the need for second and third thoughts about things. My noble friend Lord Patel, the noble Lord, Lord Adebowale, and the noble Baroness, Lady Hollins, expressed concern about this clause. That is frankly good enough for me. It has been suggested elsewhere in the way of things that some enthusiastic civil servants, in the process of tidying up this Bill, have actually brought about what could be serious unintended consequences. The noble Baronesses, Lady Murphy and Lady Barker, also have some important points to make about the amendment in the name of the noble Baroness, Lady Barker. This House spent many hours constructing the architecture through the Mental Capacity Act and the Mental Health Acts, not all of it right. I do, however, remember the duty of co-operation being an important part of those Acts; those rights, protections and duties are very important and we need to check that we have not damaged them through the construct of this Bill.

On Clause 51 stand part, we on these Benches are pleased to support the important amendment put down by the noble Baroness, Lady Finlay, about the problems that might occur when the responsibilities of primary care trusts for the certification of deaths are transferred to local authorities. I do not intend to read out the whole of this note because the noble Baroness, Lady Jolly, has referred to most of it, but we are very concerned that these proposals will mean delay and an increase in cost when people are at their most vulnerable and least able to withstand that. I do not think that anybody in this House would want that to happen. I suspect that the Government would not want to place in jeopardy the trust and confidence in the system as it is, and I think there is a danger that Clause 51 does that. We on these Benches support the amendments in this group.