Home Page Search Final Report Interim Report Evidence - Transcripts - Witness Statements - Submissions - CCNR Report and associated documents - Statistical Reports and associated documents - Background Papers - Expert Papers Inquiry Seminars About the Inquiry Help		Daily transcripts Hearing summary 22nd July 1999   Mr Michael Burgess, Honorary Secretary, Coroners Society of England and Wales, today gave evidence to the Inquiry. Mr Burgess began by explaining who coroners were and what qualifications they would generally have. He also described the role of coroners officers. New guidance from the Royal College of Pathologists on the retention of tissue was discussed and also the effect of tissue retention on relatives. Mr Burgess told the Inquiry of a change of emphasis relating to the permission required to retain tissue following postmortem. He also discussed the possibility of detection by coroners of trends in causes of death. Evidence from Mrs Diane Kennington, Patient Affairs Officer at the Bristol Royal Infirmary, followed Mr Burgess. Mrs Kennington began by describing her role at the hospital. She then discussed her involvement in coroners post mortems and hospital post mortems and the removal and retention of tissue/organs including the necessity of obtaining consent. Mrs Kennington was shown several types of consent forms used in directorates other than those for which she was responsible and discussed whose responsibility it was to broach the subject of postmortem with relatives.

FULL TRANSCRIPT

   1                      Day 43, 22nd July 1999
   2   (9.35 am)
   3   THE CHAIRMAN: Good morning, everyone. Good morning,
   4     Mr Maclean.
   5   MR MACLEAN: Good morning. This morning's witness is
   6     Mr Michael Burgess who is HM Coroner for Surrey.
   7        Mr Burgess, could I ask you to stand and take the
   8     oath, please?
   9            MR MICHAEL BURGESS (SWORN):
  10            Examined by MR MACLEAN:
  11   Q. You are Michael John Clement Burgess?
  12   A. That is right.
  13   Q. And you are HM Coroner for Surrey and the Honorary
  14     Secretary of the Coroners' Society for England and
  15     Wales?
  16   A. That is right.
  17   Q. Can I ask you to look at the screen on your right, and
  18     can we have on it WIT 39/1, please? If we see that, can
  19     we see the whole page? That is the cover sheet of the
  20     statement that was prepared by you and submitted to the
  21     Inquiry?
  22   A. That is correct.
  23   Q. If we go, please, to page 3, that is the last paragraph,
  24     paragraph 13, the statement which then has a number of
  25     other documents attached.

   1        If we go over to page 4, there is a signature,
   2     I think, at the bottom?
   3   A. That is right. It is mine.
   4   Q. You have submitted various appendices, and you have
   5     also more recently submitted to the Inquiry another
   6     document. Perhaps I could just show you that briefly.
   7     It is at WIT 39/19. That is dated 15th July 1999. That
   8     is a memorandum which we will come to in a little more
   9     detail shortly, prepared by you, which, if we look over
  10     the page, please, to page 20, the top of the page, it
  11     endeavours to set out briefly essentially the role of
  12     Coroners and the role of inquests in the process of
  13     establishing the cause of death after somebody has died?
  14   A. That is correct.
  15   Q. And you were the sole author of that document, were you?
  16   A. Yes, I am.
  17   Q. I think finally on the documentation, Mr Burgess, the
  18     Society has also, has it not, sent to the Inquiry
  19     a formal written response to the submissions by the
  20     Royal College of Pathologists. If we go to WIT 54/962,
  21     that is the cover sheet of that document, is it?
  22   A. That is correct.
  23   Q. That relatively short document, if we go to 966, that is
  24     your signature again?
  25   A. That is correct.

   1   Q. So those three documents, your statement, your
   2     memorandum and the response of the Society to the Royal
   3     College of Pathologists represents the written material
   4     that you have submitted, or the Society has submitted,
   5     to this Inquiry?
   6   A. That is correct.
   7   Q. Can we just go back to your original statement, then,
   8     at WIT 39/2? Paragraph 1 sets out your relevant
   9     qualifications. You are a solicitor?
  10   A. I am a solicitor.
  11   Q. What is the general qualification for Coroners? Do they
  12     tend to be medically or legally or both, in terms of
  13     qualifications?
  14   A. The requirement under the Act is that they should either
  15     be a solicitor or barrister of five years' standing or
  16     be a medically or legally qualified medical practitioner
  17     of five years' standing. I think across the range of
  18     140 Coroners there are about 125 solicitors, probably
  19     8 or 9 barristers and the rest are doctors. There are
  20     a few who are doubly qualified.
  21   Q. If we go to the bottom of that page, just to deal with
  22     who it is who is responsible for paying Coroners and for
  23     providing them with facilities, you provide the answer
  24     there that it is the relevant council, which in England
  25     would be usually the county council, so in your instance

   1     Surrey County Council?
   2   A. That is correct.
   3   Q. But you make the point a Coroner is not an employee nor
   4     a local government officer, so the county council is not
   5     the Coroner's boss?
   6   A. Other than for PAYE and pay purposes, the local
   7     authority, the county council, will normally support but
   8     can do little else. They certainly cannot either
   9     discipline or dismiss them.
  10   Q. As I am sure the Panel will know, Coroners' verdicts
  11     can be susceptible to review by the higher courts. If
  12     that should happen, if somebody was, for example, taking
  13     through review proceedings in respect of one of your
  14     inquests, what would be the position vis-a-vis the
  15     council in terms of indemnifying the Coroner in respect
  16     of those proceedings?
  17   A. It is a very grey area at the moment. The matter is
  18     the subject of a new statutory provision which is
  19     incorporated in the Access to Justice bill, which will
  20     give Coroners the indemnity from their relevant council,
  21     but at the moment it is unclear in law as the statute is
  22     silent on it.
  23        Generally speaking, though, in practice, it has
  24     only ever been a problem in one or two districts. Every
  25     other Coroner has been supported by their relevant

   1     council.
   2   Q. So the legal mechanism to cement that general practice
   3     is on its way, is it?
   4   A. That is correct.
   5   Q. That is something that the Coroners' Society I assume
   6     welcomes?
   7   A. It has been campaigning silently for some time about it.
   8   Q. If the Coroner is employed for PAYE -- I am sorry,
   9     I should not use the word "employed". If the county
  10     council is responsible for the PAYE and so on of the
  11     Coroner but the Coroner is not an employee, to whom is
  12     the Coroner answerable?
  13   A. In effect the High Court, but the mechanism is normally
  14     judicial review by somebody who is distressed by
  15     a decision they have made. In the event of it being --
  16     if I could put it this way, a non-inquest complaint
  17     about the behaviour or demeanour of the Coroner, then
  18     the Lord Chancellor has disciplinary powers and can
  19     dismiss them.
  20   Q. Has that ever happened in your experience?
  21   A. The Coroner has normally retired or resigned before he
  22     was otherwise forced out of office.
  23   Q. So it is a similar --
  24   A. I think the last time was 1942, but I do not recall it.
  25   Q. It is relatively infrequent, then?

   1   A. It is relatively infrequent.
   2   Q. Who else assists the Coroner? Let us take, for example,
   3     your own County of Surrey. First of all, how many
   4     Coroners would a County like Surrey have?
   5   A. My County has only one Coroner. There are quite a few
   6     counties of the same size with a population of
   7     1.1 million which have more than one Coroner, but in the
   8     case of Surrey, a decision was taken some years ago,
   9     which was accepted by the Home Office, that the County
  10     should be considered a unity for the Coroner's service
  11     and there was an amalgamation of the different districts
  12     as vacancies arose, and this is the same in three or
  13     four shire counties around the country, but there are
  14     some of similar size and population which have more than
  15     one, two or even three Coroners.
  16   Q. It would not follow that the single Coroner for Surrey
  17     conducted all the inquests into deaths in Surrey. There
  18     would presumably be a number of Deputy Coroners as well?
  19   A. Unless I am on leave, I will be dealing with all the
  20     deaths that occur during my -- while I am not on leave,
  21     so to speak. There is a deputy covering me for today
  22     because I am out of County, but in the normal course
  23     I will be dealing with maybe 11 or 12 deaths a day.
  24   Q. The Coroner is supported by a Coroner's officer?
  25   A. That is correct.

   1   Q. What is the nature of the Coroner's officer's duty?
   2   A. It varies very much from district to district. In my
   3     district, they are very often the first point of
   4     contact, the first referral point, and there are, in my
   5     County, a number of different places where they are
   6     situated; they do not all work out of one central
   7     office.
   8   Q. Their contact first would be with whom: relatives of the
   9     deceased, clinicians --
  10   A. It would depend very much on the way in which the report
  11     is made to the Coroner, but it is very often a clinician
  12     who will report a death and in that event, their first
  13     port of call is normally to the Coroner's officer, most
  14     of whom are situated at or near hospitals. So they are
  15     well known in the local community, their local medical
  16     community, their hospital community, as being, if you
  17     like, the point of contact for the Coroner's service.
  18     Then, through them, they are referred back to me and
  19     I will then pass back instructions. In certain
  20     circumstances the instructions are sufficiently
  21     well-recognised for preliminary arrangements to be made,
  22     even without first referral to me.
  23   Q. If we take the example of a death after an operation in
  24     a hospital, after, let us say, an open-heart operation
  25     on a child, what would you expect the clinician to do

   1     vis-a-vis the Coroner's officer after the death of
   2     a patient? What type of information would they convey
   3     to the Coroner's officer in order to allow you to
   4     determine what steps should be taken subsequently?
   5   A. I think in that instance I would in the first point
   6     expect to be contacted very quickly, personally, so that
   7     the officer would be doing no more than conveying my
   8     messages and passing back to me the answers that he
   9     might get, and probably very quickly they would be
  10     bypassed and I would be speaking direct to either the
  11     clinicians concerned or pathologists or other
  12     authorities who might at that point intervene.
  13        So the Coroner's officer would not necessarily
  14     be the sole and only contact in that particular case,
  15     but I would certainly expect them to obtain, quickly,
  16     the hospital notes as they then existed and make
  17     preliminary arrangements for an examination of the body
  18     of the child to take place, considering where was the
  19     appropriate place for that examination to be. That is
  20     a very difficult point, because in many counties, mine
  21     included, we are entirely relying upon hospitals to
  22     provide mortuaries at which examinations are made.
  23   Q. When you refer to "examination", you mean a postmortem
  24     examination?
  25   A. A postmortem examination.

   1   Q. So when the clinician is conveyed to you through the
   2     officer with the news that the death has occurred in
   3     a child after an operation, it would be the normal
   4     practice of the Coroner to arrange for the postmortem
   5     examination to be conducted?
   6   A. Can I qualify that in two ways? We have very few
   7     cardiac deaths of children in my district, not least
   8     because we do not have a dedicated paediatric cardiac
   9     unit, so I am talking slightly abstract. Secondly,
  10     I can talk about my own practice; I cannot necessarily
  11     say it is the way every Coroner would act and I think we
  12     have to recognise that different Coroners are staffed in
  13     different ways with different talents or qualities,
  14     either in themselves or their own staff, and may act in
  15     different ways, but the reality is that in my district
  16     in that sort of situation I would expect to be involved
  17     very early on and not leave it to officers to make
  18     decisions.
  19        The sort of information that certainly I would
  20     expect to obtain very quickly would include as much
  21     background information as to the need for the surgery,
  22     obviously the clinicians involved, and, it goes without
  23     saying, establishing some sort of contact with the
  24     family and finding out from them their perception of
  25     what happened and how things went right or wrong.

   1   Q. The postmortem examination is ordered by the Coroner, is
   2     it not, pursuant to section 19 of the Coroners' Act?
   3   A. The Coroner has three sections that he can use to
   4     initiate a postmortem examination. Although we tend to
   5     refer to "ordering", none of the sections actually
   6     refers to "order" at all but "direct" a medical
   7     practitioner to make an examination.
   8        The direction itself suggests, and indeed it is
   9     implicit in the rules, that the pathologist or doctor so
  10     directed can refuse the direction, so it does not quite
  11     have the weight of an order, and the pathologist on
  12     occasions may say to me, "I think I am too close", "I do
  13     not have the necessary expertise", or "I am going on
  14     leave, please ask somebody else": a whole range of
  15     different excuses might be put up to divert the
  16     direction from them.
  17   Q. But in those examples, the direction would still be
  18     carried out, albeit by somebody else?
  19   A. Yes, so there is an expectation, I think, so far as the
  20     choice of pathologist is concerned, that they have the
  21     ability to side-step it, and indeed, the rules do
  22     provide, and I suggest expect, a pathologist to decline
  23     a direction if there is, in his view, some conflict in
  24     him performing that examination.
  25        There is in addition the venue for the examination

   1     itself, and this again, as I have hinted, does cause
   2     a degree of difficulty, for example in my County, where
   3     we are reliant upon National Health Service hospitals to
   4     provide the mortuary facilities for the examinations
   5     themselves. If the examination takes place at the
   6     hospital where the death occurred, then it might be
   7     perceived as being tainted, even if the examination is
   8     made by a person who is quite independent.
   9   Q. Can we just look at one of your statements, just to make
  10     this point good? It is WIT 39/14. This is part of
  11     Appendix A of your statement. Is it paragraph 2? Is
  12     that the relevant passage?
  13   A. Yes.
  14   Q. "Rule 5 of the Coroners' Rules empowers a Coroner to
  15     authorise any medical practitioner to make such an
  16     examination."
  17        You go on to explain that the Coroner should
  18     recognise that under the provisions of rule 6 the
  19     pathologist may wish to excuse himself from such
  20     examination.
  21        "The responsibility lies initially with the
  22     pathologist to recognise any conflict of interest,
  23     although if there seems to the Coroner that there is or
  24     may be such a conflict, then he can either instruct an
  25     alternative pathologist or seek confirmation from the

   1     pathologist as to whether there is any conflict in his
   2     making the examination."
   3   A. That is correct.
   4   Q. That is the passage, is it?
   5   A. Yes.
   6   Q. You also mentioned in passing a moment ago the
   7     involvement of the family of the deceased. Again, on
   8     the same page, if we look at paragraph 4, perhaps you
   9     can just explain what the mechanism would be once the
  10     clinician has informed the Coroner of the death and it
  11     has been determined or directed that a postmortem
  12     examination is going to take place. At what stage would
  13     you expect the Coroner to contact the family of the
  14     deceased? And what would you expect the information to
  15     be that would be imparted to the family at that stage?
  16   A. The information that is given to a family depends very
  17     much on their ability or perceived ability to receive
  18     it. There is no point in information overload, so I am
  19     sure most of us, and our officers, will inform the
  20     family of the examination taking place; that it will be
  21     made by a pathologist, a doctor who is qualified in
  22     a particular field or expertise; very often the timing
  23     of the examination; sometimes the venue, if it is not
  24     obvious from the way in which the exchanges have at that
  25     point taken place; and the expectation as to a result,

   1     in other words, that we are hoping that this examination
   2     may establish for us what it is that happened that gave
   3     rise to the death that has happened.
   4   Q. Can I just interrupt you there? The family will
   5     typically be concerned, presumably, amongst other
   6     things, with funeral arrangements for the deceased?
   7   A. That is correct.
   8   Q. To what extent does the postmortem examination
   9     typically impinge upon those? What are the relevant
  10     considerations there?
  11   A. The delay that there is in any event in most funeral
  12     arrangements in England and Wales probably means that
  13     any coronial involvement will not delay funeral
  14     arrangements at all. There is a natural cycle of any
  15     funeral in this country, probably more than a week, and
  16     the sort of delay that there would normally be by having
  17     a postmortem examination might occur very early on in
  18     the whole process so that the funeral will still
  19     probably take place early into the second week without
  20     any effective delay.
  21   Q. When might that situation be more difficult?
  22   A. The situation certainly would be more difficult if, in
  23     the course of the examination, the pathologist
  24     identifies the need to retain an organ, particularly the
  25     heart or the brain, and certainly the counsel the

   1     Society now gives to its members is that in the event of
   2     one of those organs needing to be examined by experts,
   3     such that there is a need for it to be taken away from
   4     the body and possibly retained for a period, then they
   5     should explore that and the implications of that with
   6     the family.
   7   Q. Can we take an example? For example, the brain. With
   8     the recent development in recent years of concern about
   9     CJD, for example, would that be the type of situation in
  10     which, somebody having died, the brain of the deceased
  11     might have to be the subject of more detailed
  12     examination?
  13   A. Yes, but CJD is a relatively rare condition. There have
  14     been 41 deaths, I think, in the last four or five
  15     years. But a more common one might be somebody who dies
  16     from a brain tumour or some event associated with
  17     hypoxia, a reduction of oxygen to the brain, possibly
  18     through anaesthesia that has gone wrong or something
  19     similar. In that event, pathologists tell me it can
  20     only be identified with any degree of certainty if the
  21     brain is examined in conditions which do not normally
  22     obtain in the postmortem room: the brain would need to
  23     be prepared and that preparation itself takes some time,
  24     normally 5 or 6 weeks.
  25   Q. The same would apply to the heart, would it not,

   1     typically? If the whole heart had to be examined, then
   2     it is not uncommon for it to have to be prepared for
   3     a matter of weeks as well?
   4   A. I cannot comment on the time. Most of the examinations
   5     on hearts that I have had to initiate or participate in
   6     the decision-making about have normally resulted in the
   7     heart being available for return to the body within
   8     a week to 10 days. The heart is, I am reliably
   9     informed, a more robust organ that itself is amenable to
  10     examination with less preparation.
  11   Q. So if we just pause there and see where we are, the
  12     retention or the examination of organs that we have been
  13     discussing is in the context, if we look down on the
  14     page that is on the screen to paragraph 6, of the
  15     Coroner's obligation to establish the cause of death and
  16     how that cause of death arose.
  17        So when you spoke a moment ago of the heart being
  18     examined and then being available to be returned to the
  19     body within 10 days, that is because that would be
  20     a typical time-scale for the rule 9 based examination of
  21     the heart to have been completed.
  22   A. Yes. The Coroner can only ever authorise those acting
  23     through him to make examinations to further his own
  24     enquiry. There is nothing, to my mind at least, that
  25     suggests that they themselves can authorise removal or

   1     retention of organs, or any other material, other than
   2     for the limited purpose of the Coroner's enquiry.
   3   Q. Because the Coroner is a creature of statute?
   4   A. Absolutely.
   5   Q. With no original jurisdiction?
   6   A. No.
   7   Q. And must operate pursuant to the Coroners' Rules?
   8   A. Certainly the Act and the rules are made pursuant to the
   9     rules, that is correct.
  10   Q. The rules are a statutory instrument made by the
  11     Lord Chancellor and laid before Parliament?
  12   A. That is right.
  13   Q. That is the point that is made in paragraph 6?
  14   A. Yes.
  15   Q. I am going to come back, obviously, to the question of
  16     what happens once tissue or organs which have been the
  17     subject of a rule 9 examination, when the Coroner's
  18     deliberations are concluded, what happens to that tissue
  19     or organ subsequently.
  20        Before I do, can we just go to your memorandum,
  21     page 19? I just want to deal a little bit with what
  22     happens subsequently in the Coroner's deliberations
  23     after the postmortem examination has been carried out.
  24        First of all, not all postmortem examinations will
  25     lead to inquests by the Coroner?

   1   A. The vast majority do not.
   2   Q. What would be the factors which would lead a Coroner
   3     to decide that an inquest was appropriate?
   4   A. The Coroner is required to hold an inquest into those
   5     deaths which are unnatural or violent, or have occurred
   6     in prison, so that if an examination that is made showed
   7     that there is an explanation which suggests that the
   8     death did not fall into one of those three categories,
   9     then an inquest can be dispensed with.
  10   Q. What is it that determines when the inquest will be
  11     carried out, if the Coroner has a power but not an
  12     obligation to hold an inquest? What would be the
  13     factors which would lead you to hold the inquest rather
  14     than not to hold one?
  15   A. It is, I suggest, quoted as a fine distinction between
  16     a death being considered as unnatural or the consequence
  17     of some naturally occurring event, maybe with some human
  18     intervention.
  19        If I personally am addressing this question in my
  20     own district, then I would try and weigh up whether the
  21     death was one which was inevitable regardless of any
  22     human intervention, or whether it was the result of
  23     a naturally occurring condition that may have taken
  24     a turn, an unexpected, maybe an unidentified turn for
  25     the worse, which precipitated the death prematurely.

   1        In that latter event, I probably would not have
   2     an inquest. Most of the decision-making is, certainly
   3     in my district, very often a matter of dialogue. I do
   4     not sit with a cold towel over my head and say, "This is
   5     an inquest, this one is not", although I have to say
   6     there are some instances when it is so patently obvious
   7     that it requires an inquest that one does not need
   8     a cold towel to reach that decision.
   9   Q. Who would the dialogue be with in that instance?
  10   A. It will be in the first instance with the pathologist.
  11     Very often I will bring in the members of the family and
  12     say "This is where we are at, this is what an inquest
  13     might disclose, but we may not, because of the limited
  14     nature of an inquest, find out much more than we know".
  15   Q. In some cases, perhaps suicides, there is nothing wrong
  16     with the person, they are not physically ill before the
  17     death. In the case of somebody who has surgery,
  18     particularly very unusual surgery, those patients
  19     obviously are ill before the death, otherwise they
  20     typically would not be having the surgery.
  21        In the case of somebody who has a congenital
  22     defect, if it is a difficult and life-threatening
  23     defect, would the Coroner rely, therefore, on the
  24     pathologist essentially for advice as to whether or not
  25     it was the congenital defect that proved too much for

   1     the patient or whether there is some failure or error in
   2     the surgical correction?
   3   A. I think in these particular cases, he has to take a view
   4     not just on what he sees or hears from his pathologist,
   5     but also on his understanding as to the degree of
   6     congenital defect that itself may have given rise to the
   7     death.
   8        What he is trying to do is maybe simplify what is
   9     probably quite a complex and difficult situation: was
  10     death hastened by or brought about by the surgery, or
  11     was it that the death arose regardless of the surgery?
  12     I think that is often a debate that can quite properly
  13     result in well-held beliefs which are totally opposite.
  14   Q. That is obviously sometimes of concern if there was to
  15     be, for example, civil litigation subsequently, then one
  16     of the main focuses of the civil litigation would be
  17     whether or not it was the original problem and the
  18     reason why the patient was in hospital that killed them,
  19     or whether there was some other intervention, some
  20     surgical error or whatever it might be.
  21        So it is a very important decision, therefore, for
  22     the Coroner as to whether or not to carry out an inquest
  23     in those cases?
  24   A. That is quite true. Having said that, I think it should
  25     be said that in several judicial reviews the courts have

   1     made it clear to us that we should not be the places at
   2     which negligence is examined. What Coroners are there
   3     to do is to try and tease out of the evidence, such as
   4     it is, a factual history as to how the death resulted.
   5   Q. That reminder has been given to Coroners and to the rest
   6     of us most recently by Lord Bingham in the Jamieson
   7     case. If we go to 39/28, this was when Lord Bingham was
   8     Master of the Rolls. He is now Lord Chief Justice.
   9     This is an extract from his judgment in Jamieson 1994.
  10     Paragraph 1 identifies the four questions Lord Bingham
  11     said were the four questions for Coroners at inquests.
  12     Those are the identity of the deceased, the place of his
  13     death, the time of the death, and then the fourth
  14     question, which is usually the one that is the focus of
  15     attention, how the deceased came by his death?
  16   A. That is correct.
  17   Q. I have certainly been to Coroners' inquests and
  18     I appreciate that the focus there is not to apportion
  19     blame, to establish whether anyone was negligent or
  20     guilty of any criminal offence. Are you able to comment
  21     as to whether or not, over the period that the Inquiry
  22     is concerned with, there has been a greater pressure,
  23     perhaps improper pressure, but greater pressure on
  24     Coroners at inquests, a greater interest in civil
  25     litigation?

   1   A. Undoubtedly. I think we have all noticed that there
   2     has been a shift towards a more adversarial approach,
   3     a more blaming approach, to some of those matters that
   4     we have to investigate.
   5   Q. How does that pressure manifest itself in the Coroner?
   6     Does it change the approach?
   7   A. Very much the change of approach, and the questioning
   8     which is made by those who have a proper interest, the
   9     interested persons, families, very often, or their
  10     personal representatives, but conversely, also, the
  11     defensive attitude that is taken by others as well: the
  12     defensive attitude which may be taken by doctors,
  13     clinicians, possibly by hospitals intervening and
  14     putting up what one might describe as a defence in the
  15     situation that does not normally warrant a defence.
  16   Q. The Coroner can compel people to attend the inquest?
  17   A. If they are within his district.
  18   Q. I think I know the answer, but can you just explain to
  19     me the rules about the Coroner's ability to force
  20     witnesses to answer questions at inquests?
  21   A. If the question is relevant, and "relevance" means that
  22     it must go towards addressing one of those four limited
  23     factual questions to which Lord Bingham refers and which
  24     are set out in statute, then the witness is required to
  25     answer, unless, under rule 22 of the Coroners' Rules,

   1     the answer is one which may tend to incriminate him.
   2   Q. Criminal proceedings?
   3   A. Well, it is a bald statement of incrimination, and
   4     therefore -- I take as an example a motorist who has
   5     been minding his own business but travelling at 31 miles
   6     an hour in a 30 miles per hour speed limit: he should
   7     not be asked a question which would require him to say
   8     he was travelling at 31 miles an hour, because although
   9     it is unlikely he will ever be prosecuted, the rule is
  10     quite emphatic that the witness should be protected
  11     against answering any question which may tend to
  12     incriminate him.
  13   Q. The protection is in answering the question. It is one
  14     thing for somebody to ask it, but the --
  15   A. The Coroner has to warn the witness.
  16   Q. He has to remind the witness he does not have to answer?
  17   A. Exactly. If the witness does answer, then he must be
  18     truthful.
  19   Q. We can see that in the road traffic context. What about
  20     applying that to a medical or clinical context?
  21   A. It becomes much more difficult because there is,
  22     I think, confusion in the minds of many, including some
  23     Coroners, but certainly some people who are not
  24     necessarily versed in the law, that there is very little
  25     distinction between criminal blame, to which

   1     incrimination and rule 22 applies, and civil
   2     responsibility which, although a Coroner should not be
   3     making any decision or judgment about, nevertheless may
   4     be implicit in what questions are asked and required to
   5     be answered.
   6        So that in itself does cause a problem and there
   7     are many doctors, I think, who on occasions are asked
   8     questions which they feel wary of answering because of
   9     the civil negligence or quasi negligence issues that may
  10     be implicit in the question and answer.
  11        It causes difficulty, though, for many of us in
  12     Coroners' law and I suspect many outside as well, when
  13     gross negligence manslaughter issues are considered,
  14     where the action or failure of somebody who had care has
  15     led directly to a death and the duty of care was so
  16     grossly negligent within the recognised constraints of
  17     Ademako that there is sufficient for the gross
  18     negligence manslaughter charge to be preferred.
  19        In that event, it is very often a lot of small
  20     questions which together demonstrate that gross
  21     negligence is existing, as against a single
  22     incriminatory question. That is where, I think, many
  23     Coroners, many of those practising in the Coroner's
  24     courts have difficulty. Where does one draw the line?
  25   Q. So it is precisely what emerge as being the grossest

   1     cases that one eventually runs into the incrimination
   2     rule, and finds oneself as a Coroner with a witness who
   3     becomes entitled to the protection of the rules?
   4   A. Yes, and at what point should that protection be
   5     offered? One finds that probably those acting for the
   6     doctors or those who might be at fault are suggesting it
   7     comes very early on, whereas those, including very often
   8     the Coroner, are suggesting that, if it happens at all,
   9     it is much further down the path.
  10   Q. So again, to come back to where we started this little
  11     discussion, is this something, this defensive attitude
  12     and perhaps a more aggressive attitude on the one hand
  13     and a more defensive attitude on the other, among the
  14     parties, something that has been developing over recent
  15     years?
  16   A. Yes, but it is very insidious. I certainly would never
  17     say it arises or springs from a particular event or
  18     a particular date; it is something which has just been
  19     growing more and more and occurs increasingly often.
  20   Q. Is it something that the rules would be capable of
  21     dealing with, if they were differently drafted, or is it
  22     just one of those things we have to put up with?
  23   A. I suspect, knowing the way these things happen, if the
  24     rules were redrafted, then a different set of
  25     difficulties would arise. I am not sure necessarily

   1     redrafting the rules is the solution.
   2   Q. Very briefly, just to skate through what happens at
   3     the inquest, if we look in the memo you have produced,
   4     page 31, you set out one by one the various verdicts
   5     that might be recorded at a Coroner's inquest: natural
   6     causes; page 15 deals with accident/misadventure. There
   7     is a possibility to supplement that by a finding of
   8     "aggravated by neglect or self neglect".
   9        Just on accident and misadventure, this sometimes
  10     causes difficulties, does it not, because to conclude
  11     that something is an accident sounds innocent, if you
  12     like. To conclude that there has been a death by
  13     misadventure sounds much more suspicious.
  14        What is the relationship between those two?
  15   A. The Divisional Court, way back in 1988, suggested that
  16     we should be consigning "misadventure" to the scrap
  17     heap. You have articulated one view, that misadventure
  18     is redolent with so much suspicion and uncertainty.
  19     Listening to a debate between Coroners three or four
  20     weeks ago, they suggested exactly the opposite: that
  21     "accident" was redolent with suspicion and uncertainty
  22     and "misadventure" was much more acceptable.
  23   Q. What is your perception of the public, how do they
  24     perceive these two verdicts? Is the view I have put
  25     more the view of the man in the street, do you think?

   1   A. Having listened to and debated them quite often with
   2     families at different points, I personally generally
   3     never return misadventure, but describe how the accident
   4     seems to have come about, or the event seems to have
   5     come about, and so describe it. I remain concerned that
   6     Coroners and their audience, which may be families, it
   7     may be the wider population, it may be the press, get
   8     very hung up on conclusions, whereas my personal view is
   9     that rather more important is the other information upon
  10     which the conclusion is built, the sequence of events
  11     that gave rise to a death which leads ultimately to
  12     a conclusion, rather than the conclusion itself.
  13        I know that for many the conclusion -- the
  14     receiving of the conclusion or the avoidance of
  15     a conclusion, is something which they have as a target;
  16     they do not want a conclusion of suicide, they do not
  17     want a conclusion of something because there may be
  18     implications, social or otherwise, in that conclusion
  19     being reached, but for me, I am much more anxious to get
  20     as full and as accurate a factual conclusion in the
  21     broadest terms rather than necessarily hung up on a word
  22     or two.
  23   Q. To the extent that the courts have suggested that
  24     misadventure should be consigned, if not to the scrap
  25     heap, at least then to the legal history books, because

   1     accident would do, as it were, as a verdict, presumably
   2     it must follow that the vast majority, perhaps all cases
   3     which are returned with a misadventure verdict could be
   4     returned with an accidental death?
   5   A. That is correct, and indeed, on the annual report that
   6     Coroners have to make to the Home Office of the inquests
   7     which they have concluded in the course of any calendar
   8     year, misadventures come under the same heading as
   9     accidents.
  10   Q. If we just scan down on this page, again, this is part
  11     of your memo that you have submitted to the Inquiry.
  12     I think, also, that a similar memorandum has recently
  13     been submitted to a parliamentary committee, has it not?
  14   A. That is right.
  15   Q. That committee is the Department of Health --
  16   A. The House of Commons Health Select Committee.
  17   Q. What are they up to at the moment?
  18   A. They wrote to me at three days' notice asking me to
  19     submit something on the way Coroners investigated deaths
  20     arising from medical mishaps.
  21   Q. Do you know where that is leading?
  22   A. No, although I do believe they may have reported in the
  23     last day or two.
  24   Q. Mr Langstaff, an avid watcher of the news, tells me it
  25     was reported in the news yesterday.

   1        Can we just look at what you have said about
   2     misadventure, because the reason I have put to you the
   3     view that misadventure might be thought to be more
   4     suspicious, if you like, is that you say in the second
   5     sentence after the line across the page:
   6        "As a term, 'misadventure' is not always
   7     understood and its use may lead to misunderstanding."
   8        That is misunderstanding by the public, is it?
   9   A. And Coroners, too. I do not think there is any secret
  10     in me saying that this text and the one for natural
  11     causes, the three appendices that are there, were
  12     prepared for advice to be given to Coroners when
  13     addressing juries, and what appears above the line might
  14     well form the basis of a direction that they could use
  15     for juries. What appeared below the line was the basis
  16     upon which the direction itself is based.
  17        Quite clearly from the debate that was going on
  18     between Coroners, they had different perceptions as to
  19     what misadventure was and indeed how it was received,
  20     and it is as much based upon that as anything else.
  21     I have included the words, "it is not always
  22     understood".
  23   Q. If the same factual scenario gave rise to one of two
  24     verdicts of which one is misunderstood, would it not be
  25     simpler to have one verdict under one label?

   1   A. I quite agree.
   2   Q. What would that label be?
   3   A. We have a problem that the ex parte Anderson case to
   4     which I made reference there suggested that misadventure
   5     should no longer be used. The following week the same
   6     court suggested in a case where a child died from
   7     solvent abuse a conclusion of misadventure would appear
   8     to have been the appropriate one in this particular
   9     case. So the court itself, I suggest -- I would not be
  10     so bold as to suggest they misdirected themselves, but
  11     I do think they did not necessarily recall what they
  12     were saying the previous week.
  13   Q. If one were to leave aside for the moment the judicial
  14     decision, and starting with a blank piece of paper, what
  15     does the Coroners' Society think would be the rational
  16     way of eliminating the misunderstanding which is
  17     presumably unwelcome?
  18   A. There are some in the Society who believe that we should
  19     be going down the route that is adopted in Northern
  20     Ireland where they do not have conclusions at all. The
  21     findings stop before the conclusions. I do not
  22     necessarily entirely agree with that. Statistically,
  23     I think most of us, even in our wildest moments, do
  24     compartmentalise particular things or events, and like
  25     to pigeonhole them. In that event, having a conclusion,

   1     despite the drawbacks, is as good a way as any. I would
   2     have thought that an accident, if it is accompanied by
   3     an explanation that it does not deprive any person of
   4     the civil remedy that they otherwise have but is simply
   5     a conclusion that it is not a naturally occurring
   6     disease that has resulted in the death, should satisfy
   7     most people -- should I say, "would satisfy" most
   8     people.
   9   Q. Can I then turn to something else? Perhaps we can
  10     start exploring the new guidance for a few minutes, and
  11     then have a break.
  12        What I want to show you now, Mr Burgess, is the
  13     new guidance produced by the Royal Colleges. Can we go
  14     to RCP 1/72, please? I assume that you have at the very
  15     least had a chance to read this paper. Perhaps you
  16     could explain any involvement that you or the Coroners'
  17     Society have had in drawing this up?
  18   A. Over the years the Society has had discussions at
  19     different levels with the Royal College on many
  20     different things, and some months, some years ago, I had
  21     some discussions with officers and officials at the
  22     College for guidelines that we ourselves were producing
  23     and which were annexed to my original submission to the
  24     Inquiry. That included in part discussions on, as you
  25     have quite properly pointed out, the retention of

   1     material that attended postmortem.
   2        We were approached towards the end of last year
   3     about fresh guidelines for the College to issue and to
   4     make available to its members, and they sent me a draft
   5     which was then a matter of discussion and debate and
   6     amendment, to which we made a contribution, and indeed,
   7     I saw the drafts at various stages immediately prior to
   8     this consultation paper and at each time the Society,
   9     not only me but others too, have made observations
  10     available to the College, many of which have been
  11     incorporated in the document that is now before you.
  12   Q. Before we look at it in more detail, how would you
  13     characterise the general attitude of the Coroners'
  14     Society to this new paper from the Royal College?
  15   A. We recognise that the College has to counsel and advise
  16     its members. It almost seeks to do too much, because it
  17     seeks to encompass both the medico-legal examinations
  18     that are made either for Coroners or Procurators Fiscal
  19     on the one hand, as well as hospital consent
  20     examinations that are made. The reality is that most
  21     examinations are now made for Coroners rather than
  22     consent examinations, so that I think whilst they
  23     concentrate on the consent side in one sense, the more
  24     numerous examinations do not necessarily get as much
  25     wordage as the other, not that that is necessarily a bad

   1     thing, because I suspect that most of the issues so far
   2     as Coroners are concerned can be resolved by looking at
   3     the Coroner's own legislation and rules.
   4   Q. As you know, this paper starts off with an introduction
   5     and then deals with the consent postmortem examination,
   6     and then subsequently deals with the Coroner's ordered
   7     or directed postmortem examination.
   8        Can we just look at page 74(RCP 1/74), first of all? This
   9     is in the general introduction. Can I just ask you to
  10     have a look at paragraphs 1.4 through to 1.8 and -- we
  11     will have to scroll -- let us know when you need to
  12     scroll down the last couple of lines. Can I just ask
  13     you to provide any comment on behalf of the Coroners'
  14     Society on any of those paragraphs, any qualifications
  15     or additions? (Pause).
  16   A. I think this is, as you quite properly say, an
  17     introduction, and it is almost a mission statement to
  18     try and put matters into context.
  19        The extent to which individuals, inside or outside
  20     families, want to know exactly what takes place at the
  21     postmortem, differs from family to family. I am not
  22     sure that their knowledge, any person's knowledge, is
  23     necessarily improved by some of the reporting that takes
  24     place, or indeed, some of the television drama that
  25     takes place in which the positions of pathologists and

   1     others are glamourised. There is no doubt, in my mind,
   2     that inevitably organ retention is necessary in a number
   3     but probably limited cases. That is I think the view of
   4     most Coroners. The extent to which the results of
   5     Coroners' examinations and the material that has been
   6     obtained in the course of that is usable for other
   7     purposes, is one that I know has concerned this Inquiry
   8     over some time, and the Society's view remains that any
   9     material that is retrieved at or in the course of
  10     a postmortem examination cannot be used beyond the
  11     limited purpose of a Coroner's inquest.
  12   Q. In other words, it can only be used for rule 9
  13     purposes?
  14   A. It can only be used for rule 9 purposes, or for the
  15     inquest in broad terms.
  16        It is quite true, though, that getting better and
  17     more detailed information from postmortems may lead to
  18     better general health for the public, so there is an
  19     undercurrent suggesting that if the postmortem
  20     information can be improved, then there will be
  21     a corresponding improvement for general health purposes,
  22     but it is quite difficult, I think, to make a direct
  23     correlation one to the other.
  24   Q. So the difficulty arises, does it not, with the material
  25     that is originally taken from the body for rule 9

   1     purposes within the Coroner's jurisdiction, in order to
   2     help to establish what the cause of death is. The cause
   3     of death is established. The Coroner has the inquest,
   4     or does not have the inquest, but the Coroner's duties
   5     are completely discharged in relation to that death.
   6     What ought to happen to the tissue or other materials,
   7     to use the words of rule 9, that has been taken from the
   8     body once the Coroner is satisfied that he knows what
   9     the cause of death was?
  10   A. Can I step back a bit and say that the amount of
  11     material which is normally retained is very, very small
  12     indeed. We are talking in terms of the amount that
  13     would fit on one or two microscope slides, if at all, so
  14     we are talking in parts of a gram, may be a gram or two
  15     of material.
  16   Q. Professor Green said yesterday, I think, that a small
  17     piece of tissue should be taken from every major organ.
  18     That would be microscopically small?
  19   A. That is right. And something that can be put on
  20     a microscope slide and retained. It may be that a cc or
  21     two of blood or body fluids from some place or other
  22     might also be taken. It is by no means certain that in
  23     every case those are taken. So the amounts of material
  24     that are actually retained under rule 9 in most cases is
  25     very, very limited.

   1        In those cases where there is no inquest at all,
   2     the probability is that the material, if it is kept,
   3     would be kept on a slide and probably retained for
   4     a limited period -- I say "a limited period"; I am
   5     talking a matter of maybe a few weeks, maybe a few
   6     months.
   7   Q. By the pathologist?
   8   A. By the pathologist. If there is an inquest, then the
   9     material will normally be retained until the inquest is
  10     concluded, but there are some cases where it is
  11     generally recognised that the retention of the material
  12     for a long period is advisable. The two obvious ones
  13     are where there is clearly a criminal act that has given
  14     rise to the death and where there are serious charges
  15     resulting, so, for example, if a person has been
  16     murdered, then material might well be retained for
  17     a very long time. Although the Society met with the CPS
  18     and senior police officers years ago to try and agree
  19     periods over which material might be retained, the
  20     discussions were inconclusive on the basis that
  21     increasingly the Court of Appeal is looking at matters
  22     that everybody had thought had been concluded years or
  23     decades earlier and there is really no safe period over
  24     which material might be said to be no longer required.
  25        So that is one albeit very limited area of

   1     continued concern, and the other is where there may well
   2     be litigation, particularly litigation regarding
   3     employment, so cases, for example, of asbestosis or
   4     mesotheliomas are very often retained for an extended
   5     period, but the sort of material that is retained would
   6     tend to be small amounts. We are talking in terms of
   7     blocks made from tissue of the lung or something
   8     similar.
   9   Q. So we have four categories, then: no inquest; ordinary
  10     inquest, if you can put it like that; and then we have
  11     extraordinary cases, either of serious criminal charges
  12     or industrial disease or other civil litigation?
  13   A. That is correct.
  14   Q. Where there has been no inquest, the material, you say,
  15     would normally be retained by the pathologist for
  16     a limited period of time. It would presumably then be
  17     disposed of. At whose behest would it be disposed of?
  18     Would there be any referral back to the Coroner before
  19     the decision was taken to dispose of it?
  20   A. There could be, but there normally is not. The Coroner
  21     will expect the pathologist to clear out his laboratory
  22     periodically, but on occasions it has come to my
  23     knowledge at least that that has not happened, probably
  24     to the advantage of those who subsequently made the
  25     enquiry. I recall about four or five years ago there

   1     was a television programme that suggested that some of
   2     the sudden infant deaths that were occurring arose
   3     because of the materials that had been used in the
   4     manufacture of cot mattresses, and that there was some
   5     scientist who believed that examination of particular
   6     material could demonstrate this if it was treated in
   7     a certain way. In my own district we had enquiries from
   8     quite a few mothers who had lost children up to 10 or 12
   9     years earlier to ask if it was possible if this
  10     examination could be made, and it was possible from the
  11     material that had been retained and was still in the
  12     databank. In each case, it was possible to give the
  13     family concerned some assurance that in fact the theory
  14     that was propounded on television did not necessarily
  15     accord with the specimens that were retained.
  16        So there was a "silver lining", if that is the
  17     right expression, in that particular case.
  18        But generally speaking, the material is not
  19     routinely, certainly to my knowledge, destroyed with
  20     notification being given to the Coroner on the one hand,
  21     or the Coroner alternatively saying "Now you must get
  22     rid of all specimens which are dated 1997 or 1998".
  23   Q. So it tends to be left to the pathologist?
  24   A. It tends to be left to the pathologist.
  25   Q. Is it any different in the case of an ordinary inquest?

   1     Obviously material will be retained until the conclusion
   2     of the inquest, but thereafter, is it again up to the
   3     pathologist, essentially, to decide when to dispose of
   4     the material?
   5   A. Probably, yes, it is, generally speaking.
   6   Q. And then, just before we have a break, I think, just to
   7     deal with your other two categories, the serious
   8     criminal charge or the litigation example, what interest
   9     would the Coroner take with the pathologist? Say you
  10     have a fatal stabbing through the heart and it may be
  11     important to retain the heart. Would the Coroner
  12     typically give a direction to the pathologist and say,
  13     "You must retain this pending the conclusion of the
  14     criminal proceedings", or perhaps pending an appeal, or
  15     perhaps even longer?
  16   A. Although the Coroner is judicially involved immediately
  17     a fatal stabbing has occurred, he is very often a pawn
  18     in the whole complex scenario, because there are
  19     different interests which come into play quite soon with
  20     defendants and defence solicitors and barristers and
  21     defence interests on the one hand, as well as
  22     prosecution authorities and the police on the other. So
  23     there are these different interests. The Coroner is
  24     very often the person who is doing a reasonably fine
  25     balancing act, trying to keep justice on the one hand

   1     satisfied, but also seeking to satisfy the demands,
   2     whether it is the family who want the body returned for
   3     burial or defendants and defence who want examinations
   4     to be made. So one solution, often, is to retain those
   5     parts, and it may be not necessarily a whole organ, but
   6     it may be tissue, which will demonstrate a particular
   7     view.
   8   Q. So it is the Coroner's responsibility to hold that
   9     reins?
  10   A. That is correct.
  11   Q. With the pathologist essentially acting as the Coroner's
  12     agent, it is the Coroner who decides whether the whole
  13     organ or part of the organ should be retained because it
  14     may be evidence in future proceedings?
  15   A. The ultimate responsibility lies with the Coroner.
  16   Q. Presumably the same will apply to the other example of
  17     civil litigation you gave?
  18   A. It is not as clear-cut, not least because the prospect
  19     of litigation is not always so obvious so soon.
  20     Clearly, in those cases which arise from a recognised
  21     industrial condition, often diagnosed before death but
  22     which is confirmed by a postmortem after death, it
  23     becomes quite clear, certainly to the mind of many
  24     Coroners, that this could well form the basis of a claim
  25     and therefore evidence may be needed by the dependents

   1     of the person who died.
   2   Q. So the key distinction -- tell me if this is wrong --
   3     between the stabbing case on the one hand and the
   4     industrial case on the other, is that in the stabbing
   5     case, the relatives of the deceased might have very
   6     little interest in the retention of the organ because
   7     they want the organ back into the body for burial, but
   8     in the other case, it is perhaps often in the interests
   9     of the relatives of the deceased that material should be
  10     retained. So is there perhaps less controversy about
  11     the second of those than the first?
  12   A. I am not sure I would choose to use the term
  13     "controversy". I think families are very often in
  14     a very difficult position in criminal cases. They
  15     clearly want to have the body of their relative back for
  16     burial, and they want it back as soon as possible, so
  17     that the whole process of coming to terms with their
  18     loss can go forward. They are also tormented by the
  19     fact that if they receive it back too soon, somebody may
  20     get off the charge. Therefore, there is, I perceive,
  21     a dilemma for many of them, a tension that is not always
  22     easy for them to reconcile in their own minds, and
  23     indeed, flowing from that, it may well be that there is
  24     not necessarily a great difficulty or reluctance on
  25     their part, receiving the body back minus an organ or

   1     two, if it is the critical piece of evidence that will
   2     ensure that a conviction takes place.
   3   MR MACLEAN: Thank you very much so far, Mr Burgess. Is
   4     that a convenient moment for a short break?
   5   THE CHAIRMAN: Yes. Shall we break for 15 minutes until
   6     around 5 past 11?
   7   (10.50 am)
   8               (A short break)
   9   (11.10 am)
  10   MR MACLEAN: Mr Burgess, just before the break we were
  11     beginning to get into the question of retention of
  12     tissue or organs after the inquest that the Coroner may
  13     have held, or after the decision not to hold an inquest
  14     was taken by the Coroner.
  15        Can I just take you in this Royal College of
  16     Pathologists' document, to page 80(RCP 1/80), please? At the top
  17     of the page, first, paragraph 4.3, you do not have the
  18     beginning of the page, but I do not think that matters.
  19        Can I ask you to read that first paragraph, "In
  20     every case ..." Just read it to yourself. (Pause).
  21   A. All right.
  22   Q. That paragraph suggests that the onus is on the Coroner
  23     at the beginning of the process to have a discussion and
  24     to form some view, perhaps a preliminary view, but some
  25     view as to what is going to be retained and how long it

   1     is going to be retained for?
   2   A. Yes. This particular paragraph has been one over which
   3     there has been quite a lot of debate and amendment. The
   4     latest form that it takes is one which it has only
   5     assumed following discussion with the Home Office and
   6     with the Society. We generally felt that it was quite
   7     important that the previous emphasis that had existed in
   8     earlier drafts suggesting that the Coroner "should be
   9     informed as to what tissue should be removed" should be
  10     changed to "The Coroner should have a proactive
  11     involvement in the retention of tissue".
  12   Q. So that change of emphasis is something that was
  13     certainly welcomed by, perhaps at the behest of, the
  14     Coroners?
  15   A. Yes. We have to emphasise, as I said before the
  16     adjournment, that this is a College document, not the
  17     Society's document, but they have reflected in this
  18     paragraph concerns that we had in previous drafts.
  19   Q. Would the Coroners' Society then want to firm up the
  20     sentence that says: "The Coroner may well enquire ..."
  21     into something a bit more definite?
  22   A. I suspect in the next few weeks I will receive quite
  23     a lot of representations from different Coroners and
  24     others on this and other aspects of it. I think we
  25     might well wish to firm it up a bit, and it might well

   1     be that we can persuade the College so to do, but I am
   2     not sure that I can be more emphatic at this point.
   3   Q. So there might be a Coroners' Society view that it needs
   4     firming up, but it is too early yet to say whether that
   5     view is crystallised?
   6   A. Yes.
   7   Q. If we go to the foot of the page(RCP 1/81), please, in
   8     paragraph 4.5, this is dealing with, again, materials
   9     which are taken during the postmortem examination. Tell
  10     me if there is anything before subparagraph (c) that you
  11     would wish to comment on, but I want to focus on
  12     subparagraph (c). (Pause).
  13   A. I would just comment on the second sentence of 4.5, that
  14     "most Coroners allow their pathologists considerable
  15     discretion". The legislation generally is silent as to
  16     what is meant by a postmortem examination. We rely upon
  17     pathologists to come with their own expertise and their
  18     own knowledge as to how an examination should be carried
  19     out, and at what point they have gone beyond what one
  20     might normally expect in the course of an examination,
  21     on the limitations of the examination to a certain
  22     extent, the way it is performed, the results that it is
  23     likely to produce, lie very much with pathologists.
  24        The only statutory suggestion of what an
  25     examination consists of is to be found in the schedule

   1     to the Coroners' Rules, setting out what form the report
   2     from the examination should take, so although there is
   3     a statement there that they allow their pathologists
   4     considerable discretion, we are not necessarily able to
   5     direct them as to how they should do their job.
   6   Q. So could that be summarised as being, there is
   7     a standard form as to outcome reporting, but substantial
   8     latitude as to process?
   9   A. We know what we want. We want the document that
  10     demonstrates an examination that seems to fit into this
  11     particular form of words. How you get there, we have to
  12     rely upon those with the expertise and knowledge, so
  13     I am not sure that the statement as it is written there
  14     necessarily reflects our statutory duty and the
  15     constraints that are placed upon us. I think if any of
  16     us said to our pathologist, "You will make your incision
  17     there and look there and not there", we would be very
  18     quickly found to be in excess of our powers, or
  19     responsibilities.
  20        That is the first point I would make, but you have
  21     a specific point later on?
  22   Q. Yes, subparagraph (c):
  23        "If retention of tissues or organs not within the
  24     remit of the Coroner's postmortem examination appears
  25     desirable": I assume that would be apparent to the

   1     pathologist, would it? That is what you were talking
   2     about?
   3   A. That is correct.
   4   Q. "Signed consent from relatives is essential": presumably
   5     that is something that the Coroners' Society accepts and
   6     supports?
   7   A. Absolutely.
   8   Q. "The Coroner's authorisation must also be sought; it is
   9     only where there are good grounds for refusal that the
  10     Coroner's authorisation may be withheld. Coroners may
  11     forbid such extra samples to be taken even when the
  12     relatives consent, but cannot authorise them without
  13     their consent."
  14        Can you just explain to me why it is that the
  15     Coroner's authorisation has to be sought in the first
  16     instance for the taking of extra tissue or extra organ
  17     material which does not fall within the rule 9 material?
  18   A. I think that this may have got confused with the
  19     responsibility that a Coroner has when a death is
  20     reported to him and he may also receive, from others,
  21     particularly families, suggestion that they want tissue
  22     used for treatment or therapy. For example, a heart
  23     might be wanted for transplant purposes and clearly, in
  24     that event, the family have to agree that the heart
  25     should be used for transplant and if it is a Coroner's

   1     case, the Coroner, too, has to so consent.
   2        There may well be instances when the Coroner will
   3     say, "I am sorry, I cannot agree to the heart being used
   4     because it may have some influence on the way in which
   5     my enquiries are pursued" and there are occasions,
   6     unfortunately, when we have to deny opportunities for
   7     transplant material being recovered, particularly when
   8     the death is due to violence. So if a death has
   9     occurred, a stabbing has occurred, to use the sample we
  10     have given before, then I have to say "I am sorry, if
  11     you take any major organ which might well save a life in
  12     other circumstances, we may well be preventing some
  13     criminal or -- particularly criminal investigation --
  14     being pursued successfully".
  15   Q. So that example you have given would not so much be
  16     concerned with retention of other tissues or organs, but
  17     the subsequent use of tissues or organs for I think it
  18     is called "therapeutic purposes" in consent forms?
  19   A. Yes.
  20   Q. Which is code or shorthand usually for transplantation?
  21   A. Yes. I believe that the only way in which Coroners may,
  22     to use the words of paragraph 4.5 (c), "forbid" such
  23     extra samples being taken is if, in so doing, it would
  24     prevent the Coroner completing his role, limited as it
  25     is.

   1   Q. Apart from that, it is nothing to do with the Coroner?
   2   A. Apart from that, it is nothing to do with the Coroner at
   3     all.
   4   Q. The Coroner has this important but really rather narrow
   5     jurisdiction to enquire into the four questions that
   6     Lord Bingham sets out?
   7   A. That is right.
   8   Q. To what extent, if at all, are you, or the Society, able
   9     to help the Inquiry with the way in which the attitude
  10     of clinicians or hospitals or Trusts may have developed
  11     or changed over the Inquiry's period in respect of
  12     retention of tissue or organs in Coroners' postmortem
  13     examination cases?
  14   A. Although we are dealing with different hospitals and
  15     different clinicians on a daily basis, it is actually
  16     quite difficult to gauge how things change and develop.
  17     In one's own district, you very quickly recognise
  18     particular clinicians who are quite forthcoming and
  19     quite prepared to discuss matters which may or may not
  20     be relevant for a Coroner, very early on, and there may
  21     be other clinicians from whom you hear very rarely.
  22        When there are changes in the makeup of different
  23     clinical teams, then you may have changes in attitude
  24     from those as well. So there are a number of underlying
  25     currents, if I can put it that way, which may well

   1     influence or give the impression to Coroners and others
   2     acting in the Coroners' departments suggesting that
   3     there is a particular way in which things are now being
   4     addressed.
   5        There has undoubtedly been a reduction in the last
   6     15 years of the number of clinical or consent
   7     examinations that are made, so that whilst probably when
   8     I was first appointed a deputy 20 years ago, there were
   9     a relatively large number of clinical examinations being
  10     made following deaths in hospital, clinical examinations
  11     made with the consent of relatives, it is very unusual
  12     these days for those examinations now to follow.
  13        This, I think, has been brought about by a whole
  14     range of different issues, one of which is that the ways
  15     in which different hospital Trusts provide mortuary
  16     services to Coroners and the cost of providing them,
  17     they will very often apportion costs of providing
  18     a mortuary to the number of Coroner postmortems as
  19     against the whole of the number of postmortems done in
  20     a particular hospital. So if the Coroner is doing
  21     98 per cent of examinations, or is responsible for
  22     98 per cent of examinations in a hospital, then he will
  23     be carrying 98 per cent of the costs of the mortuary,
  24     and that tends to suggest that if an examination is to
  25     be made, then it is certainly more economic from

   1     a hospital point of view for it to be ordered or
   2     directed by the Coroner than for it to be obtained
   3     through a consent procedure.
   4   Q. That last factor you have just mentioned there: to what
   5     extent do you perceive that to be an important reason
   6     why the relative proportions of hospital postmortems
   7     with consent as opposed to Coroners' postmortems on the
   8     other hand has changed in the way that it has?
   9   A. I think it is one; I do not think it is the only one.
  10     Another reason, and again, it is a personal perception
  11     rather than anything that I can say is provable by
  12     demonstrable evidence, is that people's ability to
  13     communicate the need for an examination, their skills in
  14     that direction are not as good, maybe, or as persuasive
  15     as they should be. Maybe they do not even try. I do
  16     not think that I have heard it from relatives that if
  17     they had been asked in a particular way then they would
  18     certainly have agreed, but if the request is not made in
  19     the first place, then they are not given the opportunity
  20     of agreeing.
  21        I think in the minds of some clinicians, too,
  22     there is -- they have been treating somebody in the
  23     confines and the disciplines of a hospital; the confines
  24     and disciplines all seem to be improving health with
  25     somebody leaving hospital fitter than when they went in,

   1     and when they die in hospital, that seems to be a denial
   2     of the whole purpose of the hospital itself. Therefore,
   3     difficulty is given to the clinician, the clinical team,
   4     those who have the job of confronting the relatives and
   5     saying, "Look, you have had your loved one in here for
   6     six weeks but he has died; I do not know why he has
   7     died". So I think there are a whole range of different
   8     issues all of which make it difficult and have resulted
   9     in a reduction in consent postmortems.
  10   Q. You told us at the very beginning of your evidence of
  11     the number of cases which you deal with, on I think it
  12     was a daily basis. Has this trend to a higher number of
  13     Coroners' postmortems impacted upon the workload of
  14     Coroners?
  15   A. I am not sure that there has been much difference in
  16     overall numbers that the Coroner system in my districts
  17     deals with. What we may have instead is that there are
  18     more deaths which are not referred to Coroners, which
  19     themselves might have had a consent postmortem
  20     examination made in the immediate postmortem period.
  21     They are now being signed up without any reference to
  22     the Coroner at all.
  23   Q. Move on to something else: the question of the
  24     differences in approach by Coroners, and the Inquiry has
  25     seen some evidence already in this area that the

   1     hospital, rightly or wrongly, noticed a change of
   2     approach when the Coroner changed.
   3        Let me start off at the general level. To what
   4     extent would one expect there to be differences in the
   5     approach of Coroners within the same area, to the same
   6     set of circumstances, given the umbrella of the
   7     Coroners' Act and the Coroners' Rules?
   8   A. Coroners are independent and individual judicial
   9     officers. We are not part of, despite what some people
  10     may think, a National Service, all working to a single
  11     master. We will tend to react on an individual
  12     case-by-case basis on our own individual understanding
  13     of both the circumstances that gave rise to the death as
  14     reported to us on the one hand, and our own knowledge
  15     and understanding of the law as it stands. So a number
  16     of different issues may influence individual Coroners.
  17        The second point is that Coroners are appointed to
  18     districts. There is only one Coroner in any district,
  19     so there is no collegiality, no-one else who is able to
  20     make decisions in my district when I am there other than
  21     me. Although I have deputies whom I may go to and say
  22     "What do you think?" ultimately the responsibility lies
  23     with me and not with them, so they can walk away without
  24     any difficulty.
  25        Having single Coroners in districts does mean that

   1     it is a relatively lonely existence on occasions, and
   2     the decisions, in so far as they are not self-made --
   3     because many decisions are -- it is reasonably obvious
   4     the way you have to proceed, but in other cases, there
   5     is nobody with whom you can share your experience
   6     directly, because there is no-one else in your district
   7     who carries the same responsibility.
   8        In that sense, appointing somebody new may well
   9     bring with it a fresh and new approach as to how things
  10     should be done.
  11   Q. It would follow from that answer, would it not, that if
  12     you happened to be the Coroner for the district which
  13     has a large teaching hospital, then presumably the
  14     pattern of deaths that that Coroner would have to deal
  15     with would be significantly different from a Coroner in
  16     another district, perhaps next-door, which did not
  17     happen to have the teaching hospital?
  18   A. That is true. The Coroner who has a teaching hospital
  19     in their district, or a hospital with a particular
  20     specialty, may well find that there is, if I can put it
  21     this way, a different mix of categories of death than
  22     one might necessarily expect to find across the broad
  23     spectrum of population in his district.
  24   Q. Most people, if we assume for the moment that the
  25     majority of people who die following operations, whose

   1     deaths are reported to the Coroner, typically die in
   2     hospital rather than after discharge home, then that may
   3     be a false assumption, but if we work on that basis for
   4     a moment, then the Coroner for the particular district
   5     in which the hospital is located will see all of those
   6     cases?
   7   A. In so far as they are reported to him.
   8   Q. In so far as they were reported to him. In so far as
   9     the patients leave hospital following an operation, or
  10     perhaps transfer to another hospital -- which would
  11     suggest that the operation had been at least a qualified
  12     success, if they were able to be discharged or go to
  13     another hospital -- and subsequently died, would it be
  14     less likely that those deaths would be reported to the
  15     Coroner for that district where the death occurred?
  16   A. It is very difficult to say, because we do not know the
  17     proportion of those deaths that are not reported to the
  18     Coroner at all, where there is apparently a natural
  19     cause which satisfies an attending doctor sufficient to
  20     enable them to sign a medical certificate of death.
  21        In that event, it does not get reported at all,
  22     not through the Coroner system, but there is another
  23     organisation, another enquiry, which is supposed to try
  24     and pick up deaths following operations: the National
  25     Confidential Enquiry into Peri-operative Deaths. They

   1     have some 15,000 deaths a year reported. Those deaths
   2     are ones that have occurred within 30 days of surgery.
   3     Very often, if there is coronial involvement, then they
   4     may have access to any pathology or other matters that
   5     have come to the attention of the Coroner. But it is
   6     a confidential enquiry, and therefore, whilst they can
   7     examine trends, they will not necessarily be able to
   8     focus upon particular geographical areas or
   9     institutions, for example.
  10   Q. You are anticipating where we are going. If we forget
  11     for the moment about the Coroner for the district which
  12     includes a teaching hospital, what would your view be as
  13     to the ability or the likelihood, perhaps, of other
  14     Coroners from other districts being likely to detect
  15     a trend of, for example, poor surgical techniques
  16     leading to the death of patients who might otherwise not
  17     have died, in the teaching hospital in another Coroner's
  18     district?
  19   A. I would think, if it comes to their attention at all,
  20     then it would be presented to them as a one-off case, so
  21     trends do not come into it.
  22   Q. So the only Coroner who might be reasonably likely to
  23     have sufficient cases which might or might not allow
  24     them to detect a trend would be the particular single
  25     Coroner for the district which included the teaching

   1     hospital?
   2   A. In so far as any Coroner might see a trend, then I would
   3     have expected it to be at the centre where the
   4     institution is, rather than on the periphery outside
   5     that Coroner's district.
   6   Q. Then the next question, obviously is: given that that
   7     Coroner is the person who might detect such a trend,
   8     what would your view be as to the likelihood of the
   9     Coroner for a district in a teaching hospital area being
  10     able to detect such trends, if they existed?
  11   A. I think that is almost an impossible question to answer,
  12     because the trends themselves may be masked by a whole
  13     range of other things. It depends very much on the
  14     period and the numbers you are talking about, and
  15     whether in fact the systems that the Coroner may have,
  16     whether he is relying upon paper systems, his computer
  17     systems, his own recollections, are sufficiently attuned
  18     to appreciate that we have the same people, the same
  19     clinicians, the same institutions involved, in
  20     a sequence of cases that have all happened relatively
  21     close together.
  22        In any institution which is held out or
  23     represented as a centre of excellence, or centre of
  24     specialist expertise, I think one would probably expect
  25     to have a high incidence of mortality there than in

   1     other places. I take as an example King's College
   2     Hospital in Denmark Hill as a very successful liver
   3     unit. They have a higher incidence there of people who
   4     die from paracetamol poisoning because people go to
   5     their hospital exactly because they have taken too much
   6     paracetamol. So statistically, it may appear to be that
   7     they are not successful there. So I think it is very
   8     difficult to identify trends and say there has been or
   9     has not been a success or there has or has not been
  10     a trend that would suggest a particular unit, clinician,
  11     policy, is or is not working.
  12   Q. There are various factors, perhaps, to unpick from that,
  13     are there not? First of all, the Coroner's focus is on
  14     each individual death?
  15   A. Yes, and once he has completed an inquisition, once the
  16     inquest is at its end and it is ruled off, he cannot
  17     re-open it. Each inquest, each death, is a singular
  18     enquiry and his attention is focused on that Inquiry and
  19     not on other matters.
  20   Q. It is just like a judge who tries a series of different
  21     cases: there is no obligation on the judge at the end of
  22     the year to file a report saying "I have had 12 weeks of
  23     breach of contract cases, 7 personal injury cases and 15
  24     contested divorces, and the trends appear to be X, Y and
  25     Z"?

   1   A. That is correct.
   2   Q. When we are talking about the numbers of people who will
   3     have died in a teaching hospital, a centre of particular
   4     excellence, the Coroner would see how many deaths had
   5     occurred which had been reported to him, which perhaps
   6     in the case of complex paediatric surgery, most of the
   7     deaths would be initially reported to the Coroner at
   8     least -- would that be fair?
   9   A. I would imagine so.
  10   Q. But the Coroner would not know how many patients had
  11     successfully had surgery and gone home?
  12   A. That is right, so statistically he would have the
  13     numerator but not the denominator to make any fraction
  14     out of.
  15   Q. And he would not be receiving, because he is only the
  16     Coroner for one district, deaths from another teaching
  17     hospital somewhere else?
  18   A. No, nor those deaths from that same teaching hospital
  19     that had occurred outside his district.
  20   Q. So he is not particularly well equipped to take
  21     a percentage view of the hospital; he can tell 10
  22     patients have died in a year but does not know whether
  23     that is 10 per cent or 100 per cent of the total, and is
  24     not able to make a comparison with somewhere else?
  25   A. That is right.

   1   Q. Coming back to the different from approach between
   2     Coroners, I do not know whether you have had the chance
   3     to see the evidence given yesterday by Professor Green.
   4     I am afraid I cannot put it up on the screen for you.
   5     May I read to you a little bit of his evidence?
   6        He was asked about the differences, a variation in
   7     the attitudes taken by Coroners towards the scope of the
   8     investigation -- I have been asked to identify the page
   9     and transcript reference, which I will do but I cannot
  10     do just at the moment.
  11        He was asked whether there was a variation in the
  12     attitudes taken by Coroners towards the scope of the
  13     investigation by the pathologist that was necessary for
  14     the Coroner's purposes.
  15        He said this:
  16        "Yes, and again, Mr Burgess, I hope, will be able
  17     to deal with this."
  18        He did not leave it there. He said:
  19        "I can only speak from the experiences which
  20     I have in my own area. There was one Coroner, recently
  21     retired, who would under no circumstances permit the
  22     retention of any organ, no matter now strongly one
  23     argued that it might be wanted. The defence might want
  24     to view it and it might need to be fixed for three
  25     months before the examination. He, I hasten to add, was

   1     an exception, but increasingly I have advised my junior
   2     staff over the years, and it is a practice of my
   3     successors in my department, to inform the Coroner if
   4     a whole organ is being retained and the reasons for it."
   5        Then he was asked:
   6        "Can there be difficulties caused to the
   7     pathologist by different attitudes on the part of
   8     different Coroners as to the scope of their
   9     jurisdiction?" and he said, "I think there can be,
  10     certainly in the medico-legal field. I am particularly
  11     concerned -- again, I can only speak for my own personal
  12     interests here, but most of my research and most of my
  13     specialisation in the last ten years was in physical
  14     child abuse in the first 6 months of life and a lot of
  15     this involves some shaking or shaking plus impact on the
  16     child."
  17        He said:
  18        "One of the best ways of proving that shaking had
  19     taken place was to examine the inside of the baby's
  20     eyes".
  21        He said there was one Coroner for whom he used to
  22     work who under no circumstances would permit the removal
  23     of the eyes, no matter how strongly Professor Green
  24     should have implored him to do so.
  25        He said that whilst most of the time most

   1     pathologists and most Coroners will discuss and come to
   2     an appropriate modus operandi, the current vagueness of
   3     the Coroners' Rules and the fact that although they are
   4     rules, they are open to wide individual interpretation,
   5     can produce difficulties.
   6        Take it in stages. First of all, can I ask you to
   7     take up Professor Green's kind invitation for you to
   8     deal with the general point about the differences of
   9     approach and what view the Coroners' Society would take,
  10     for example, of a Coroner who under no circumstances
  11     would allow the retention of any organ, even when the
  12     pathologist felt that it might be important, for
  13     example, for the defence of criminal proceedings, to be
  14     able to see them?
  15   A. I think it depends, first of all, what organ, if it is
  16     a major organ that is being considered, and the
  17     expectation both as to the examination to which that
  18     organ is going to be subjected, the expected time it may
  19     be needed and the likelihood of that examination
  20     producing something that is not obtainable elsewhere.
  21     I mean, there are a number of these different issues
  22     which do not necessarily allow for a simple "Yes" or
  23     "No" answer. If somebody comes to me and says "There
  24     is just the possibility of something being demonstrated
  25     if we take this heart, keep it for six months and do

   1     something with it, but the chances are 80 or 90 per cent
   2     against that result coming out", I would say, "Well, it
   3     is not worthwhile going through that examination".
   4   Q. So it is obviously difficult to talk about individual
   5     examples and to generalise from them?
   6   A. Yes.
   7   Q. What Professor Green did is to give the examples of the
   8     Coroner who did not allow the retention of any organ,
   9     the shaking of the baby example and the desire of an
  10     pathologist to be able to examine the eyes, but he then
  11     in his conclusion would appear to have attributed some
  12     of these difficulties to vagueness in the Coroners'
  13     Rules.
  14        Is that a point of view the Coroners' Society
  15     would accept?
  16   A. Although the rules are said to be vague, they are quite
  17     emphatic in other areas as well and the vagueness itself
  18     has I think assisted over the years in allowing the
  19     flexible approach which allows us to make assessments,
  20     allows us to take a view as to whether or not
  21     a particular line of enquiry should be continued, or
  22     whether it should be discontinued.
  23        If the rules are more tightly drawn, there is
  24     a great difficulty and a great threat that people will
  25     go to the limit in cases where it would be unreasonable,

   1     in broad circumstances, so to do, and yet get no result
   2     at the end. The limitation may be drawn at a point
   3     where some useful examination has not been possible
   4     because of that very limitation.
   5        So a flexible approach applied proactively.
   6   Q. I just want to be clear about the terminology because it
   7     may be important. Professor Green referred to the
   8     vagueness of the current rules. You accepted at the
   9     beginning of that answer that the rules were vague, but
  10     went on to refer to flexibility. A rule might be vague
  11     in the sense of being unclear; it might be clear but
  12     permit flexibility, which is, I suggest, a different
  13     thing. If you accept that distinction, is it your
  14     Society's view that the Coroners' Rules are vague in the
  15     sense of being unclear as to what is permitted, or
  16     flexible in the sense that it is clear that there is
  17     a degree of latitude permitted?
  18   A. No, it is the degree of latitude. I mean, the sorts of
  19     vagueness to which I was agreeing was for example, in
  20     rule 9 to which we have referred several times, the use
  21     of the word "material". "Material" can cover anything
  22     from a pinhead piece of material on which there is DNA
  23     or body fluids, to the whole body. Anything in between
  24     those will be covered by that. We are not talking about
  25     exclusively whole organs or enough to cover a microscope

   1     slide or enough to fill the test tube of a certain
   2     capacity; we are talking about material in broad terms.
   3        It is that latitude, that flexibility, which
   4     I think Professor Green certainly in discussions with me
   5     has suggested was vague, which I say may afford us the
   6     opportunity to approach matters on an individual basis,
   7     hoping to carry out a meaningful examination, but not
   8     necessarily engage in examinations which are more likely
   9     to be fruitless than otherwise.
  10   Q. So the degree of flexibility so far as the Coroners'
  11     Society is concerned is appropriate?
  12   A. Yes.
  13   Q. Are there any areas in the rules where the Coroners'
  14     Society considers an increased degree of inflexibility
  15     would be appropriate? If so, where?
  16   A. I am sure if you put it to any group of Coroners, they
  17     will immediately identify something with which they find
  18     fault. I do not think as a Society we have necessarily
  19     identified particular areas, certainly covering this
  20     sort of thing, where we are finding it extremely
  21     difficult.
  22   Q. I just have a couple more points, Mr Burgess. I should
  23     put to you another point Professor Green mentioned --
  24   THE CHAIRMAN: Mr Maclean, can I butt in for a moment
  25     there? As I understood Professor Green yesterday, he

   1     was talking about retaining the eye for the purposes of
   2     research. Would Mr Burgess think he has any discretion
   3     or flexibility in that context?
   4   MR MACLEAN: Just before Mr Burgess answers that, I think
   5     I did not read the next sentence. I am told it is
   6     pages 76 and 77 of the transcript yesterday, where
   7     Professor Green gave the example of the shaking of the
   8     baby. He said:
   9        "There is one Coroner for whom I used to work who
  10     under no circumstances would permit the removal of the
  11     eyes, no matter how strong the arguments which I put
  12     forward. This certainly in one case I can think of
  13     resulted in an acquittal."
  14        I took it from that, although I was not here
  15     yesterday, he was referring to it in the same context as
  16     the previous one of the criminal case, but of course,
  17     that is not to say that the question which you have now
  18     posed to Mr Burgess is not appropriate.
  19   THE CHAIRMAN: I think my interjection is ill-informed.
  20     I think what Professor Green seems to have been talking
  21     about was to determine the cause of death.
  22   MR MACLEAN: Would it be helpful, sir, simply to ask
  23     Mr Burgess the question which you put?
  24   THE CHAIRMAN: Yes, please.
  25   MR MACLEAN: Whatever the provenance of Professor Green

   1     yesterday -- and if either of us have misrepresented
   2     what he intended to say I am sure he will be able to put
   3     whichever of us it is right.
   4        The question you asked of Mr Burgess was: would
   5     Mr Burgess think that he has any discretion or
   6     flexibility in the context of research?
   7        That takes us back to the question of retention
   8     of, in Professor Green's example, the eyes for the
   9     purposes of research.
  10   A. I do not believe Coroners do have the discretion that
  11     Professor Green may have conveyed. I think we can only
  12     ever authorise examinations and retentions relative to
  13     causes of death. To go beyond that is, in my view,
  14     beyond our powers given to us in statute.
  15        I think one of the difficulties, though, that is
  16     implicit in this whole area, is one that Professor Green
  17     does touch upon, and certainly has been the subject of
  18     learned articles in the BMJ and other periodicals,
  19     concerning the frequency with which certain injuries
  20     seem to be found; in other words, they are building up
  21     a statistical database suggesting that a particular
  22     lesion or condition may apply, and therefore,
  23     retrospectively on the basis of statistical evidence,
  24     drawing a conclusion from that.
  25        I think that is a much more problematical area and

   1     it is not one that I think I can easily address. I can
   2     only look at individual cases.
   3   THE CHAIRMAN: Mr Maclean, if I may again come in, simply
   4     to clarify for myself: the fact that the Coroner cannot
   5     authorise that does not, of course, mean that the
   6     retention may not be authorised by some other legal
   7     provision, whether it be common-law or statute?
   8   A. That is right. I think we also have a situation where,
   9     if in the course of an examination a particular
  10     clinician is noted and subsequently, in other
  11     examinations and from other material, it becomes clear
  12     that seems to be a reasonably common condition that is
  13     found in some instances and not in others, it may be
  14     noted and become part of a diagnostic tool in the
  15     future. But, I mean, this is the way in which medical
  16     knowledge seems to be built up, not just confining it to
  17     sort of shaking syndromes in children.
  18   MR MACLEAN: So the difficulty is, when one looks at each
  19     individual case, it is perhaps not so very difficult to
  20     determine whether further material should be retained
  21     and whether or not it is a matter for the Coroner, but
  22     patterns can emerge which can have very helpful
  23     conclusions or outcomes, or consequences, but when one
  24     looks at each individual case, it is difficult to see
  25     the justification under the Coroners' Act or Rules for

   1     the retention of anything that does not in that
   2     particular case seem to fall within rule 9?
   3   A. That is right.
   4   Q. So how can that difficulty be ameliorated?
   5   A. I think it is quite difficult, necessarily, to reconcile
   6     the different issues in these, I think we have to say,
   7     exceptional cases that may arise: the collection, the
   8     justification for doing certain procedures or
   9     examinations, if they go beyond finding a cause of
  10     death, may be helpful to medical knowledge or
  11     understanding of a particular syndrome or condition, but
  12     may not necessarily accord with the limited parameters
  13     within which Coroners and those working through them may
  14     work.
  15        If, as is implicit in some of the Coroners' Rules,
  16     it is permitted for Coroners to either direct certain
  17     examinations to be made, focused on the cause of death,
  18     or for a postmortem report to come out which comments
  19     according to the headings in schedule 2, I think it is,
  20     of the rules, that the report should contain certain
  21     things, then that seems in itself to justify those
  22     things being done, but if you go beyond that, I think
  23     that is where the difficulties start.
  24   Q. As we have already discussed, it is a bit haphazard as
  25     to whether any particular Coroner is liable to see any

   1     particular trend emerging. The Coroner never knows what
   2     the next case is going to show, obviously, so it is
   3     always going to be difficult, is it not, for the Coroner
   4     to sanction any such retention on that basis, even
   5     leaving aside rule 9, because he is not going to know
   6     what is going to come along next week?
   7   A. That is very true. Most of the new conditions that have
   8     given rise to death in the last few years have only been
   9     identified when more than a single case has arisen, and
  10     that means that the first case very often goes
  11     unidentified and it is only when you get to the second
  12     and third case -- and I think of new variant CJD, for
  13     example -- and the laboratory say "This is similar to
  14     something we looked at last week", that the causal
  15     connection or a causal similarity seems to be present,
  16     such that they can then start putting things into
  17     context.
  18        So although individual Coroners can only ever look
  19     at the limited case in front of them and seek to draw
  20     conclusions from that, there is undoubtedly use made of
  21     information that is collected in individual cases in
  22     order to get a bigger picture.
  23   MR MACLEAN: Sir, would you just give me one moment,
  24     please? (Counsel confer)
  25        Mr Burgess, the final question for me, at least,

   1     I hope, is this: does the Coroners' Society have a view
   2     as to whether or not it would be helpful if there was
   3     some mechanism, some body, which would be charged with
   4     collating the results of Coroners' inquests and
   5     endeavouring to establish, on a country or region or
   6     county-wide basis, whether or not there were points
   7     which could be picked up but that, because of the
   8     individual Coroner system, patterns which are there to
   9     be seen nobody at present is charged with looking for?
  10   A. The Society as such has not addressed it quite in those
  11     terms. Individuals have looked at it and recognised
  12     that essentially they are running a system based on
  13     19th century quill-pen technology. I personally have
  14     got some minimal knowledge of systems in other countries
  15     and see that in New South Wales, I think it is, or
  16     Victoria in Australia, they have quite a sophisticated
  17     system which is linking registration and Coroner systems
  18     to make a more effective database able to identify
  19     trends and localities and particular occupations and
  20     other particular groupings.
  21        It may well be that in time this country would
  22     develop such a system, but it would need to be on the
  23     basis, why do that in an individual Coroner district?
  24     The trends in my own district on such things as drug
  25     deaths, for example, which are sufficiently numerous

   1     each year to suggest that there might be trends, there
   2     are relatively few compared with the country as a whole,
   3     so it would be quite wrong to draw conclusions and
   4     suggest trends exist based on an individual Coroner by
   5     Coroner basis.
   6        What it would need is a much more sophisticated
   7     system, I am not sure as sophisticated as this room or
   8     this Inquiry system, but certainly something which would
   9     enable particular features that may be present in
  10     a number of cases to be picked out and then, through
  11     that, some basis of analysis to be followed through.
  12   MR MACLEAN: I do not have any more questions for you at
  13     this stage, Mr Burgess. The Panel may have in
  14     a moment. Can I thank you very much for coming, taking
  15     time from your duties in Surrey as Coroner to give us
  16     your evidence. Could I invite you to bear in mind that
  17     there is an opportunity for you, now, to say anything
  18     else that you want to say at this stage, and an
  19     opportunity later to submit further material -- I am
  20     thinking particularly of if and when the Coroners'
  21     Society does form a collective view, if that view
  22     crystallises I think is how I put it, in response to the
  23     Royal College's paper, then obviously it would be
  24     helpful to the Inquiry to know what that view is as soon
  25     as it has been formed, and it will form part of the

   1     panel's subsequent deliberations.
   2        At this stage, is there anything you want to add?
   3   MR BURGESS: I do not think so, at this specific stage,
   4     other than the fact that I do recognise in the College's
   5     evidence they suggest that the Coroner system has served
   6     the country well, and I believe that generally it has.
   7     I do recognise, though, that it is a human institution
   8     and consequently, like any human institution, it is
   9     capable of failing and I think the failings may have
  10     applied both on a corporate basis as well as in
  11     individual cases. I am not suggesting for one moment it
  12     is perfect; on the contrary. I think we do try to work
  13     wonders with 19th century technology; we have many
  14     outdated practices that, try as we may, we cannot seem
  15     to influence those who might be able to change the
  16     system, to do so. I was reminded just last week that
  17     the accounting system which by statute we are supposed
  18     to operate is the basis upon which much local government
  19     worked until the county councils were instituted in
  20     1888. We are supposed to lay accounts on a quarterly
  21     basis before county councils and then to be reimbursed
  22     when we have justified spending it. Fortunately most of
  23     us have sufficiently sympathetic county councils that
  24     either pay our bills direct or reimburse us on a more
  25     regular basis. But that is the sort of anachronism with

   1     which we are living and we are struggling to make the
   2     system work in that sort of way.
   3        The other point I just would make is that there
   4     is, I think, a general public perception that with
   5     increased sophistication and technology, we are more
   6     able to define precisely how it is somebody came by
   7     their death. Very often toxicology and histology and
   8     all the other 'ologies that may be invented may delay
   9     decision-making but will produce very little of
  10     substance that enables us to say more definitively how
  11     it is that a cause of death has come about. It may
  12     assist us in saying something has not happened or does
  13     not appear to have happened or has not left any trace of
  14     it happening, but it does not necessarily demonstrate
  15     that it has happened. I think that is one of the great
  16     quandaries we have to deal with. These tests very often
  17     take weeks or months to complete.
  18        Looking back at the records in my own district, 60
  19     or 70 years ago inquests would be held and concluded in
  20     four or five days, sometimes in quite complicated
  21     cases. These days we are looking at four to six months
  22     sometimes if the case is complicated. So I am not sure
  23     that the march of technology has necessarily improved
  24     the cutting edge of the Coroner system.
  25   MR MACLEAN: Does the Panel have any questions for

   1     Mr Burgess?
   2            Examined by THE PANEL:
   3   THE CHAIRMAN: I was left in some doubt, Mr Burgess, as to
   4     whether you were complaining of the advent of technology
   5     and harking back to the Victorian time, and at the same
   6     time hoping technology would save you?
   7   A. All three, I think.
   8   MRS HOWARD: You said earlier this morning that despite
   9     perhaps public perception, you are not part of
  10     a national service or working for a single master,
  11     I think you phrased it.
  12        That suggests that perhaps the Society had
  13     considered a national service and if they have, are
  14     there any advantages to that?
  15   A. The Society is no more than a grouping that formed in
  16     1846 in order to try and standardise practices or
  17     improve the standard of practices across Coroners across
  18     the country. There have been, over the years, a number
  19     of debates in different fora suggesting that there
  20     should be a more cohesive regular service and I think
  21     there are many of us who can see the attraction of that,
  22     not least the collegiality, but there would be a better
  23     overall consistency in the way we operate.
  24        But the funding is one of the difficulties.
  25     Funding is very much provided locally, albeit a lot of

   1     it going back into the National Health Service, I think
   2     31 per cent of the total costs of running the service
   3     goes back into the National Health Service every year to
   4     support mortuaries. Another 28 per cent goes into it to
   5     pay for pathologists, so getting on for 60 plus per cent
   6     goes directly into doctors or the Health Service in that
   7     way.
   8        If central government were to take it over, or the
   9     funding of it, then probably there would be
  10     a consistency which central government, in its best
  11     moments, can produce. But also I think we have all
  12     recognised there have been instances when central
  13     government institutions have not necessarily worked
  14     quite as they were expected to, and that is, I think,
  15     one of the great difficulties, that we do not want to
  16     see a service that is not well-funded -- or not properly
  17     funded, I should say -- which is less effective than the
  18     present one. I think that is the dilemma that many of
  19     us see.
  20   MRS HOWARD: Thank you very much.
  21   THE CHAIRMAN: Professor Jarman?
  22   PROFESSOR JARMAN: Mr Burgess, I have a couple of questions
  23     based very much as someone who is a non-expert and the
  24     impressions I have gained over the last two days about
  25     the Coroners' system. Would it be fair to say that in

   1     effect Coroners are a "law unto themselves"?
   2   A. Within the constraints of judicial review, I suppose we
   3     each are permitted a degree of flexibility as to how we
   4     carry out our duties, but to say we are "a law unto
   5     ourselves", I am not sure I would necessarily agree with
   6     that. I would be reluctant to say that we are.
   7   Q. It is just an impression!
   8   A. Coroners are individuals, there is no doubt about that,
   9     and that is part of the way we work, and the people who
  10     are Coroners, particularly the 25 who are full-time
  11     Coroners who are not permitted to do any other work, do
  12     not necessarily have the recourse to general practice,
  13     general medical or legal practice, or the exchanges and
  14     the companionship that can be generated by that. We do
  15     become very idiosyncratic, I am sure.
  16   Q. The second question is, would it be fair to say that at
  17     times there is something of a power struggle between the
  18     Coroners and the pathologists in the Trusts in their
  19     local districts?
  20   A. I am not sure "power struggle" is quite the word.
  21     Certainly there are tensions, and there are not
  22     infrequently tensions, and the tensions are often
  23     generated by the desire of Coroners to move the system
  24     on and to get results, and not to be paying through the
  25     nose for things which in the mind of the Coroner should

   1     be something which should be part of the overall package
   2     that they are paying for. The pathologists, on the
   3     other hand, take a view that if you want histology, then
   4     the only way you are going to get some histology is by
   5     paying extra for it. So those tensions are certainly
   6     very much there. It is one which, talking with
   7     Coroners, we have noticed a trend for pathologists to be
   8     less willing to take a on a microscopic examination that
   9     the death is natural, instead of saying "Look, on what
  10     I have seen I am not prepared to make an assertion, to
  11     give you an opinion at this time, you will have to open
  12     an inquest", and I will therefore carry out some
  13     histology or toxicology which will pay extra, and then
  14     we may be able to get a more definite conclusion, and we
  15     end up with the natural cause of death conclusion which
  16     probably was available, if the pathologists had been
  17     reasonable about it, before the inquest was opened.
  18        So there are those tensions.
  19   Q. The other thing is, I have a feeling that at times there
  20     are contradictions and confusions in the way the system
  21     worked. You described the system as based on
  22     "nineteenth century quill-pen technology". I would
  23     have thought it was based on an earlier technology, but
  24     still. Could the reason for that be something to do
  25     with the answer to my question, or is that not

   1     possible?
   2   A. The system is parasitic, there is no doubt about that:
   3     we rely upon others to inform us; we rely upon
   4     pathologists to give us information; we rely upon
   5     witnesses to come forward to give evidence; we rely upon
   6     the police to provide our Coroner's officers, very
   7     often, or to provide police officers to come and give
   8     evidence. We are a parasitic organisation in every
   9     sense of the word.
  10        No Coroner even has his own mortuary. Those
  11     provided in London are provided under the Public Health
  12     Act because there is a statutory obligations on
  13     authorities to provide public mortuaries. So we are
  14     parasitic individuals, if I can put it that way, and
  15     there is no doubt about it that some Coroners do take
  16     a very keen interest and are well supported by their
  17     local councils, to the point that they are regarded as
  18     a Principal Officer with a substantial budget and
  19     benefits that flow from that, whilst others work very
  20     much under much more limited capabilities and are not so
  21     generously appreciated, nor indeed so generously given
  22     the opportunities to carry out their function.
  23        I think all these things provide for differences
  24     in the way that we operate, because we are all affected
  25     by the experiences that they have on us, and I suppose

   1     to that extent, these differences will continue to
   2     arise.
   3        I am not sure in my own mind that the technology
   4     that existed 800 years ago was that much different than
   5     in the 19th century. It may be that velum has given way
   6     to paper, but not much more.
   7   Q. That is what I was trying to suggest, but I just
   8     wondered whether these problems we have been discussing
   9     could ever give rise to problems and difficulties with
  10     patients at a very difficult time in their lives?
  11   A. One would like to think that any influence that the
  12     Coroner has is subsequent to the death itself and
  13     therefore that what he says or does should not influence
  14     the way in which the postmortem effects of that death
  15     occur. I suppose it is possible from what you say and
  16     the way you put the question that the attitude that
  17     a Coroner may have had in previous cases will influence
  18     clinicians to say, "We are not going to report this
  19     case", or we are more willing to report it. Certainly,
  20     when talking with Coroners, we try and encourage them to
  21     get to know clinicians and to talk things through and to
  22     offer an open door, on the basis that to be
  23     approachable, to be ever ready to discuss matters, even
  24     if it is to say, "Look, I do not see a problem with
  25     this, but if you feel uncertain about it, then we can

   1     follow a certain route", is much more likely to be, in
   2     my view, effective and to foster better relations and
   3     therefore ultimately, I hope, better patient care than
   4     to be stand offish and aloof and not co-operative.
   5   PROFESSOR JARMAN: Thank you very much indeed.
   6   THE CHAIRMAN: I have a couple of questions, if I may. The
   7     first reverts to what we were talking about a while
   8     back, namely, the retention of tissue.
   9        I wondered, listening to what you said, whether it
  10     was the view of the Coroners' Society that the retention
  11     of tissue in the context of a coronial investigation,
  12     other than with the permission of the Coroner exercising
  13     the Coroner's power under rule 9 is unlawful, not least
  14     because the pathologist is acting, in retaining that
  15     tissue, as your "agent", broadly described.
  16   A. I suppose it is only really in the last year or two that
  17     the retention of tissue has become a matter that has
  18     concentrated our minds. If I can just answer obliquely
  19     for one moment, over the years the Society has
  20     increasingly been asked, on behalf of Coroners, to
  21     assist in research and we have been approached by
  22     a number of teaching or other institutions asking if
  23     access can be given to Coroner's records for the
  24     purposes of research.
  25        It does not normally present a problem if the

   1     death has long since occurred and they are effectively
   2     saying, "Please can we have a look at your records
   3     because we think we may be able to see a common link
   4     between..." certain kinds of cases, and provided that
   5     the information is (a) accessible; and (b) that they are
   6     going to anonymise it so it is going to be used purely
   7     as a statistical tool, then we do not see a problem.
   8        The difficulty is when we get asked for certain
   9     tests or examinations to be made in deaths that have not
  10     yet occurred but which might be the subject of
  11     a reference: "If you get somebody who falls down the
  12     steps of a bus, could you please in future measure the
  13     height of the step of the bus?" In so far as we would
  14     not normally measure the height of the step of a bus,
  15     then that might be, in the view of the Society, an
  16     excess of power. I take that flippantly; I am not
  17     necessarily suggesting that.
  18        The numbers of research projects referred to the
  19     Society reached an all-time high in 1997 when we had
  20     something like 95 different national research projects
  21     referred to us in the first three months of that year,
  22     and we tended to adopt a relative broadbrush approach,
  23     saying "By all means approach individual Coroners, but
  24     do not necessarily expect to co-operate with every
  25     single case, because the numbers might not make it

   1     possible". When it comes to deaths that have already
   2     occurred, we are much more involved, saying "You cannot
   3     expect Coroners, and Coroners are not allowed, to go
   4     beyond finding a cause of death. We cannot look
   5     specifically at or for a particular condition because it
   6     will help you in your project". What we can do is, if
   7     it is found in the normal course, then we can say, "Yes,
   8     it has been found", but we cannot necessarily look
   9     specifically for that.
  10        In the course of 1995, there was one particular
  11     project, looking at sudden adult death, and it was
  12     a project being run by St George's Hospital together
  13     with the Brompton Hospital, and in the course of a lot
  14     of discussions we had with them, they offered to examine
  15     the whole heart on the basis that the examination might
  16     demonstrate, in particular rare kinds of cases,
  17     a particular regional condition to apply. Normally such
  18     an examination will be so expensive that it would be
  19     beyond the availability of most Coroners' budgets, but
  20     they offered to do it for us free. We were, as
  21     a Society, able to say to individual Coroners on that
  22     case, "If one of these deaths, albeit rare, has
  23     occurred, then it might be possible for you to avail
  24     yourself of this service, provided that it is focused
  25     upon you getting a result there. As far as the removal

   1     of the heart is concerned, if that does take place, you
   2     should ascertain before you permit it to go, how long it
   3     is going to be, and then consult with the family and
   4     discuss it with them".
   5        The result was relatively successful. Not only
   6     did it enable us to fix more clearly some cause of death
   7     that otherwise would have gone undiagnosed, but it also
   8     enabled families on occasions to appreciate some of the
   9     underlying conditions that existed, and produced and
  10     identified genetic difficulties that were relevant to
  11     other members of the family.
  12        So we recognise that in that particular study,
  13     which took quite a lot of preparation, there was the
  14     bonus that went beyond our normal limited remit. And we
  15     believed, too, in that particular case, the way it was
  16     structured, it would not contravene the cases upon which
  17     we were carrying out our authority. But we also
  18     perceived that it did not take very much more for it to
  19     have gone that extra bit, which would have meant then
  20     that what we were doing or what we appeared to be
  21     authorising was illegal.
  22   THE CHAIRMAN: It is that tension between what your powers
  23     may be and the beneficial consequences that might arise
  24     from the retention of tissue in some circumstances --
  25     one leaves outside questions of consent and so on --

   1     which perhaps you might wish to, in your Society,
   2     reflect upon. If you would wish to submit further
   3     observations on that, I am sure we would be very
   4     grateful.
   5        May I ask another question?
   6