Seòmar agus comataidhean

Good morning and welcome to the 10^th meeting of the Citizen Participation and Public Petitions Committee in 2023. We have a particularly busy meeting this morning.

Agenda item 1 is consideration of continued petitions, the first of which is PE1911, on a review of the Human Tissue (Scotland) Act 2006 as it relates to post mortems. This continues our discussion on a petition that was lodged by Ann Stark to call on the Scottish Parliament to urge the Scottish Government to review the Human Tissue (Scotland) Act 2006 and relevant guidance to ensure that all post mortems can be carried out only with permission of the next of kin, do not routinely remove brains and offer tissues and samples to the next of kin as a matter of course.

We have convened this morning’s session on the back of evidence that we have heard to date. It is not just a matter of routine or fancy—members of the committee have been drawn to the evidence that we have heard already and believe that there are issues of substance that we wish to pursue. That included taking evidence from witnesses based in England when we heard about the ways in which their approach to post mortems and tissue sample retention differs from ours. They shared their experience of setting up a scanning service for post mortems and—accepting that cases where the procurator fiscal will be involved because there are suspicious circumstances would require a different route—outlined the ways in which that reduces the requirement for full invasive post mortems.

We also heard that the next of kin are offered a range of options for how tissue samples are handled. Despite our having received written evidence that those issues might be insurmountable, they seem to have been dealt with in passing in England—without us even questioning the witnesses about it, they volunteered the alternative solutions as a matter of course.

We would quite like to pursue those issues this morning. We are delighted that the petitioner is in the gallery today. It is worth reminding everyone that the petition was lodged by Ann Stark, whose son Richard died suddenly at the age of 25. Unlike many other Scottish Parliament committees, there is no party-political agenda driving our inquiry—our inquiry is happening because a petitioner decided to participate in the public process open to them to bring a petition to the Parliament. In essence, all of us sitting on the committee are representatives of that petitioner in the way in which we seek to take forward the substance of the issue that she raised.

I am delighted to welcome the Lord Advocate, Dorothy Bain KC, to our proceedings this morning, as well as the head of the Scottish fatalities investigation unit, Andy Shanks. Thank you both for giving us your time. I understand that you would like to make an opening statement, Lord Advocate.

To whom are they accountable?

I understand that distinction. I am grateful to you for that.

You touched on the issue of retention. The Royal College of Pathologists explained that

“small tissue samples taken for microscopy and diagnostic purposes are retained as part of the medical clinical record”.

It said that such samples

“could theoretically be returned to relatives, but the gain would be marginal and would need traded off against further complexities in the authorisation and consent processes, which are already difficult.”

We took evidence from Dr Adeley, a senior coroner in England, who said:

“What happens with any sample that contains even a single cell is that the family are asked what they want to be done with the sample when it is finished with. The family are given a number of choices. The coroner’s officer will ask whether the sample could be retained by the hospital for medical research and teaching, or it can be returned to the family and their undertaker.”

Indeed, Dr Adeley outlined a process whereby there can be a second funeral proceeding for the additional tissue. All that happens regularly and as a matter of course in England. Dr Adeley continued:

“Alternatively, they can elect for the sample to be disposed of by the hospital in a lawful and sensitive manner. Those are the three choices.”—[Official Report, Citizen Participation and Public Petitions Committee, 17 May 2023; c 18.]

It seems that there is an operational practice elsewhere in the United Kingdom that is executed with no complications and without any professional obstacles being put in place, yet such obstacles seem to be routinely put in place by the processes that apply in Scotland. Is that any longer appropriate? Could Scotland seek to operate in a much more transparent and humane manner, consistent with practice elsewhere in the UK?

Thank you—

To which minister in the Government does the responsibility fall?

I do think that that ought to be a matter of public concern. Both Mr Choudhury and Mr Ewing want to come in. Is it to develop this point or to touch on a different point?

We will go to Mr Choudhury and then to Mr Ewing.

Are brains always removed during a post mortem?

In each case, it would be possible to demonstrate the engagement that took place with the relatives in relation to the request that they had made regarding the desirability of a post mortem.

Thank you very much, Lord Advocate. That final remark was very helpful. If we have seemed a bit testy, it is not just because we are seeking to benefit from such an assurance; the committee is just a bit confused as to where best to pursue these points and colleagues will probably consider who else we might need to see to try to bring that position around. We look forward to receiving the additional written information that you have mentioned.

I invite Monica Lennon to say a few words, as someone who has actively engaged with the committee on the petition.