The New Statutory Medical Examiner Role And Changes To Death Certification

Co-authored by Elizabeth Tremayne, Lex Novus.

The death certification system has remained largely unchanged for the past 50 years. Changes have now been introduced (coming into force in September 2024¹), following calls for reform in a number of public inquiries and investigations since 2007². In this article, we analyse and distil the key changes and their relevance to our clients in NHS Trusts and a range of health and care settings.

Independent Review

The major change introduced by the reforms is the requirement for an independent review of the cause of death which has been certified by the attending practitioner³. This review should be carried out for all deaths in England and Wales and will be undertaken by a medical examiner or by a coroner. Though the NHS began introducing medical examiner roles in 2019, the requirement to have them in place has now been put on a statutory footing.

MCCD

Also introduced as part of the changes is a new medical certificate of cause of death ('MCCD'). The new MCCD will include new information such as details of the medical examiner, the deceased's ethnicity and any medical devices or implants. Further, from September 2024 medical practitioners will be able to complete an MCCD if they attended the deceased in their lifetime. This represents a welcome simplification of the previous rules, which required referral of the case to a coroner for review if the medical practitioner had not seen the patient within the 28 days prior to death or had not seen the patient after death.

Medical examiners are senior medical doctors who will be contracted for a number of sessions each week to provide independent scrutiny of the causes of death, outside their clinical duties. They are trained in the legal and clinical elements of the death certification process and will carry out a proportionate review of the relevant medical records as well as liaising with the deceased's family. Medical examiners are now scrutinising almost all deaths in acute trusts and a growing proportion of deaths in other healthcare settings (including the community). It is also expected that they will act as a medical advice resource for coroners. Further, in exceptional circumstances, the medical examiner will be able to certify a death where there is no medical practitioner who is qualified to do so, and the coroner's jurisdiction is not engaged.

The government anticipates that the new system will provide greater scrutiny of deaths and better quality mortality data as well as reduce the number of deaths erroneously referred to the coroner and provide a better channel for families to raise concerns about the death. The bereaved should have the opportunity to discuss those concerns with the medical examiner before the cause of death is finalised.

The Notification of Deaths Regulations 2019 will remain in force⁴, so attending practitioners should continue to notify the coroner of deaths that meet the criteria therein. The coroner will then determine what further action is appropriate. The circumstances in which the duty to notify the coroner arises (under regulation 3) will still include where:

1. the registered medical practitioner suspects that that the person's death was due to:
2. poisoning, including by an otherwise benign substance;
3. exposure to or contact with a toxic substance;
4. the use of a medicinal product, controlled drug or psychoactive substance;
5. violence;
6. trauma or injury;
7. self-harm;
8. neglect, including self-neglect;
9. the person undergoing a treatment or procedure of a medical or similar nature; or
10. an injury or disease attributable to any employment held by the person during the person's lifetime;
11. the registered medical practitioner suspects that the person's death was unnatural but does not fall within any of the circumstances listed above;
12. despite taking reasonable steps to determine the cause of death, the registered medical practitioner considers that the cause of death is unknown;
13. the registered medical practitioner suspects that the person died while in custody or otherwise in state detention.

The new legislation changes the responsibilities of the registrar as there will be no requirement for registrars to refer deaths to the coroner. Instead, the attending practitioner or the medical examiner will determine when a coroner referral should be made.

Healthcare providers in England and Wales should ensure well-tested arrangements are now in place to inform a medical examiner and provide medical records promptly, as well as establishing a robust process for receiving feedback from the Medical Examiner's Office.

Care homes in England and Wales should be ready to share medical records with examiners in a timely manner and should consider providing staff with suitable training so that they are confident when liaising with the medical examiner's office. In particular, staff should feel empowered to make sure the medical examiner has all relevant records - even if this is wider in scope than those requested.

Care providers should also start considering how to establish processes to receive feedback from the medical examiner's office in order to help them learn from deaths. From a CQC perspective, this will also demonstrate good governance.

The government is still working through its implementation plan - and anticipates that, for example, an online MCCD and updated guidance for healthcare practitioners completing an MCCD will be available in late 2024. We will keep clients abreast of those changes as they develop.

Footnotes

1. Announced by the government on 15 April 2024, and to come into force on 9 September 2024

2. Such as the Shipman Inquiry Third Report, the Mid Staffordshire NHS Foundation Trust Public Inquiry and the Morecambe Bay Investigation Report

3. See, for example, the changes in the Health and Care Act 2022 and ss19-20 of the Coroners and Justice Act 2009

4. Subject to minor amendments flowing from the introduction of the statutory medical examiner system

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