Introducing a statutory medical examiner system has been on the cards for a very long time (since the recommendations following the Shipman Inquiry in 2003), but we are now a step closer with the Department of Health and Social Care's (DHSC) recent publication of draft regulations setting out the detail of the proposed revamped deaths certification system and how medical examiners will fit into that. Subject to Parliament giving the green light, we could see these changes coming into effect from April 2024.
In this briefing, we look at the headline changes and what they might mean in practice, including for inquests.
Recap on the current system
Under the current system for non-acute deaths:
- Where the cause of death is natural and expected, the attending doctor completes a Medical Certificate of Cause of Death ('MCCD') by recording their opinion as to the likely cause of death.
- The MCCD is submitted to the Registrar, to enable the death to be registered. The Registrar ensures that the MCCD complies with requirements (in terms of setting out the medical cause of death). If the cause does not seem to be natural, the Registrar will decline to register the death and the death is usually then referred to the coroner.
- If the deceased was not attended by a doctor in their final illness, or if they were attended by a doctor but not within the 28 days before death (or seen after the death), the MCCD cannot be completed and the death must be referred to the coroner.
- In addition, if the cause of death is unknown or if there is reason to suspect that the death was unnatural, violent or occurred in state detention then the death will be referred to the coroner.
Alongside this, from 2019 a medical examiner system has been implemented on a non-statutory basis, beginning initially with deaths in acute care (where medical examiner offices have been set up). This means that, for any deaths that don't require referral to the coroner, they are instead referred to the medical examiner for scrutiny. That scrutiny involves communication with the family of the deceased, and usually consideration of the medical records. If the medical examiner has concerns that the death is not natural (or a culpable human failing may have contributed), then the medical examiner refers that death to the coroner.
This, however, did not address the original 2003 concerns about unnatural deaths in the community. At the moment, a small proportion of deaths in other settings, including in the community, are being referred to medical examiners too. However, medical examiner involvement is not mandated in statute currently. This will change once the new, statutory system comes into effect.
What is changing?
Draft regulations recently published by DHSC (including "The Medical Certificate of Cause of Death Regulations 2024" and "The Medical Examiners (England) Regulations 2024") will introduce changes to the way deaths are certified, including giving medical examiners a key statutory role in this process.
Under the new system, independent scrutiny by a medical examiner will become a statutory requirement in England and Wales before registering any death (if the death has not already been referred to the coroner). In practice, this will mean the MCCD will be signed by both the attending practitioner and a medical examiner. A new MCCD will replace the existing certificate to reflect this change.
The medical examiner's role in the new statutory system
In practice, the new, statutory version of the medical examiner system will look much as it does now, except that it is expanded to non-acute deaths too.
How will the new death certification process work?
As is the case now, a doctor must refer a death directly to the coroner in specific circumstances. In exceptional circumstances, the new system will also allow for a coroner to request that a medical examiner certifies a death (as opposed to certification by an 'attending practitioner') where all steps to identify such a doctor have been exhausted.
In non-coronial cases:
- The first step will be for the 'attending practitioner' to propose a cause of death to appear on the MCCD. Importantly, the new regulations widen the pool of doctors who can do this to include any doctor who has attended the deceased at any point in their lifetime (as opposed to just in their final illness, as now). This should reduce the number of deaths being referred to the coroner simply because a doctor who attended during the final illness cannot be contacted.
- The attending practitioner must then send the MCCD to the medical examiner, who will scrutinise the MCCD. If, after making enquiries, the medical examiner decides that the death should be referred to the coroner, they must do so. However, if the medical examiner is satisfied with the MCCD (including that the death is due to a natural cause), they will add their signature and submit it to the Registrar.
- If the Registrar has any queries, they must contact the medical examiner.
The draft regulations which will bring this new death certification and statutory medical examiner system into effect will now be laid before Parliament, with a view to them coming into effect in April 2024. The exact date of implementation is therefore not set in stone.
In readiness for the new law, all non-acute organisations with medical practitioners who complete MCCDs should ensure that they have systems set up to enable speedy referrals to medical examiners. This is likely to involve completing an electronic referral form, and access to the electronic records system for medical examiners.
Impact in practice
When medical examiner scrutiny began for deaths in acute settings, there was a concern that many more deaths would be referred to coroners. However, the overall deaths investigated by coroners does not support this. What seems to be the case, is that the medical examiner is able to offer independent reassurance in relation to natural deaths (answering medical questions from the bereaved) so that those deaths are not referred to the coroner. However, medical examiners are also able to identify more of those deaths where there is a concern about the medical care which should be investigated by the coroner.
This new system should help ensure that the same happens for deaths in non-acute settings. This may mean an increase in death referrals from the community where there are concerns about the medical care provided, but perhaps a small reduction in the number of deaths that require coroner involvement overall.
The changes in the law should reduce the administrative burden on coroners and their officers as they will no longer need to deal with those death referrals in relation to the 28 day rule about who can complete the MCCD. It could also reduce the number of unnecessary post mortem examinations. Currently, where an attending practitioner feels unable to issue an MCCD, the coroner will usually proceed to post mortem to ascertain the medical cause of death. The statutory medical examiner process will potentially offer a MCCD without the need for a post mortem examination.
If there is a reduction in the administrative burden, this is to be welcomed if it will free up time for coroners and their officers to work on the cases which do need to proceed to inquest, potentially enabling those to be heard more quickly.
How we can help
Our large national team of inquest lawyers have a wealth of experience supporting providers and individuals across the health and social care sector throughout the inquest process, from relatively straightforward medical deaths to the highest profile, complex Article 2 inquest cases involving a jury and multiple interested persons. We can advise healthcare providers, including GP practices, about the arrangements they are recommended to have in place for medical examiner scrutiny before the new regulations come into force.