Certification of Death and Medical Examiners
Until 9 September 2024, a medical certificate of cause of death (MCCD) could be issued on the word of the attending doctor alone. That is perhaps surprising when you consider the findings of the Third Shipman Report in 2003. Dame Janet Smith noted then:
“the present system depends almost entirely on the good faith and judgement of the doctor who signs the MCCD or decides that the case should be reported to the coroner. It also depends on the courage and independence of doctors, for the system places upon them some responsibility to police their colleagues, for example by refusing to certify a death which may have been contributed to by some misconduct, lack of care or medical error on the part of a professional colleague. It may not be easy for a junior member of the clinical team responsible for the care of the deceased to withstand the expectation that s/he will certify the cause of death, rather than report the case to the coroner for investigation.”
It has, it would seem, taken until 2024 for Parliament to address this weakness. The Medical Certificate of Cause of Death Regulations 2024, The Medical Examiners (England) Regulations 2024, The Medical Examiners (Wales) Regulations 2024 finally came into force 9 September 2024, putting in place a new statutory Medical Examiner system.
Since 2019 it is right to say that NHS England and NHS Wales Shared Services has operated a Medical Examiner system on non-statutory basis. As of June 2024, this had looked into around 900,000 deaths. However, the new death certification reforms not only put this regime on a statutory basis but – most importantly – impose a new requirement that all deaths are now reviewed independently either by a Medical Examiner or by a coroner.
A Medical Examiner is a medical practitioner who undertakes to provide independent scrutiny of causes of death. The regulations do not specify as much, but the National Medical Examiner envisages such practitioners should be consultant grade. They are trained in the legal and clinical elements of death certification processes.
Whilst Medical Examiners are employed by NHS bodies in England and Wales, they must act independently. Medical Examiners must not have treated the deceased, or have a close connection with those who did, or have any connection the family. The NHS bodies employing them should not prescribe budgets, ways of working or other matters that may adversely affect their ability to exercise their functions independently.
Medical Examiners are required to address 3 key questions:
- what did the person die from? Ensuring accuracy of the Medical Certificate of Cause of Death
- does the death need to be reported to a coroner? Ensuring timely and accurate notification in line with statutory requirements and guidance
- are there any clinical governance concerns? Ensuring the relevant referral is made where appropriate
[NHS England » National Medical Examiner’s guidance for England and Wales]
Medical Examiners will not investigate matters in depth. Rather, when they identify concerns, their role is to refer them to the appropriate quality lead or other relevant organisation. In exercising their functions, they should be in a position to assist families with any questions they have, and listen to their concerns.
How does this system of oversight work in practice?
A doctor will qualify as an “attending practitioner” and may complete the MCCD if they attended the deceased in their lifetime. There is no longer a need to have seen the deceased within the last 28 days etc. This attending practitioner will review the records, the results of any examination of the deceased, and any other information considered relevant. They will then propose a cause of death. If this is not possible the case will be referred to a coroner. However, if they are able to do so, this cause of death will then be considered independently by a Medical Examiner.
If the Medical Examiner believes the attending practitioner’s proposed causes of death needs to be revised, they should explain why to the attending practitioner. The MCCD requires both the attending practitioner and a Medical Examiner declare that the causes of death are correct to the best of their knowledge and belief. Usually a discussion will make this possible. In the case where a difference of opinion cannot be resolved, the case must be referred to the coroner.
The MCCD form has also been amended. There are still different forms depending if death was within 28 days of birth, or not. The new standard MCCD form includes the following new information:
- details of the Medical Examiner who scrutinised the cause of death
- ethnicity, as self-declared by the patient on the medical record. This builds on learning from the COVID-19 pandemic. If the patient medical record does not include this information, then the attending practitioner can complete it as ‘unknown’ on the MCCD and should not in any circumstance ask for this information from the representative of the deceased
- maternal deaths: there are 2 new questions regarding the pregnancy status of the deceased:
- was the deceased person pregnant within the year prior to their death?
- if the deceased person was pregnant within the year prior to their death, did the pregnancy contribute to their death?
- a new line, 1d, for the cause of death – bringing the MCCD in line with international standards
- medical devices and implants will be recorded on the MCCD by the attending practitioner, and this will be transferred to the certificate for burial or cremation (contained in the green form) completed by the registrar in order to inform relevant authorities of the presence of any devices or implants
[An overview of the death certification reforms – GOV.UK (www.gov.uk)]
Other than a more detailed form, the reforms do not fundamentally alter the role of the attending practitioner. The major change is the statutory role of the Medical Examiner. This Medical Examiner system itself is substantially similar to a proposal ventilated (but ultimately rejected) by Dame Janet Smith in 2003. It remains to be seen if an independent medical review will be sufficiently robust to allay the concerns and criticisms of the MCCD regime arising out of the Shipman, Morecombe Bay, and Mid-Staffordshire Inquiries.
Finally, for anyone thinking the current arrangement is complicated – the government’s simple flow chart may be of some use (!) here.
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