Consultation on a Proposed Bill Relating to Burial and Cremation and Other Related Matters in Scotland - Web Only

Pregnancy loss

141 The Infant Cremation Commission made a number of recommendations relating to the cremation of a pregnancy loss of less than 24 weeks gestation. While many of the considerations are the same as for other categories - for example, clear statements about what should happen to ashes - the complexities of this particular situation require a different approach. The only pregnancy losses considered in this section are those which occur before 24 weeks gestation.

142 The Commission noted the lack of regulation for the cremation of pregnancy losses of less than 24 weeks gestation and reflected on the difficulty and distress this could cause people dealing with this situation. The Commission recommended that the cremation of such pregnancy losses should be the subject of legislative regulation, and the proposed new legislative framework will ensure that there are equivalent procedures and forms for the cremation of pregnancy losses of less than 24 weeks gestation as for infant cremations and the cremation of stillborn babies.

143 The Commission considered the current practices relating to the cremation of pregnancy losses of less than 24 weeks gestation. In particular, it debated the shared cremation of such pregnancy losses and agreed that this practice should continue to be offered as an option. The Commission made various recommendations designed to improve processes generally. The recommendations are a mixture of improvements to practice and guidance, as well as suggested legislative changes.

144 The key guidance to Health Boards on the disposal of pregnancy losses up to and including 23 weeks and 6 days gestation was published by the Scottish Government in April 2012 through CMO guidance.^[28] This substantially modernised and improved previous guidance, and was in part a response to concerns about inconsistent practices. The guidance will be updated again in response to recommendations made by the Infant Cremation Commission, and this will be done under the remit of the National Cremation Commission. As well as providing advice on the sensitive disposal of the remains of pregnancy loss of this gestation, the guidance includes various non-statutory forms to be used in the process of authorising and applying for the cremation of a pregnancy loss.

145 In line with the Infant Cremation Commission's recommendations, this section focuses on the cremation of pregnancy losses of less than 24 weeks gestation. Burial of such a pregnancy loss is an option, but was beyond the scope of the Commission's remit. Nonetheless, the Scottish Government is interested in views on whether a comparable process for burial is required.

Q64 - Is a comparable process for the burial of a pregnancy loss of less than 24 weeks gestation required?

Cremation of pregnancy loss of less than 24 weeks gestation by hospital

146 The Commission made several recommendations to improve the process involved in authorising the cremation of a pregnancy loss which occurred before 24 weeks gestation, particularly the forms used, and many of those recommendations are within the scope of this consultation. In many cases, the cremation or burial of such a pregnancy loss will be organised by a Health Board (for example, where the pregnancy loss occurred in a hospital) with the agreement of the mother, although the mother may wish to make her own arrangements.

147 The Commission noted that some pregnancy losses of less than 24 weeks gestation do not occur within a hospital or other healthcare setting, and recognised that this might cause difficulties if applying for cremation, particularly given the recommendation that cremation of such a pregnancy loss cannot proceed without a medical certificate that states that the pregnancy loss occurred before 24 weeks and showed no signs of life. The Scottish Government is therefore seeking views on whether an alternative process is required in this situation - for example, agreement from the Procurator Fiscal that the cremation can proceed.

Q65 - Is an alternative process required before the cremation of a pregnancy loss where there is no medical certificate?

148 Where a Health Board organises the cremation of a pregnancy loss of less than 24 weeks gestation, the legal application for cremation is made by a person authorised to do so by the Medical Director of a Health Board (or other healthcare provider if that is the case). Where the hospital is applying for the cremation this is true for both individual cremations and shared cremations. The Commission did not recommend any changes to this procedure, but suggested improvements to the process by which the mother agrees to the Health Board making arrangements for the disposal of a pregnancy loss.

Mother's agreement to cremation

149 Before the Health Board can organise the cremation of a pregnancy loss of less than 24 weeks gestation, it must discuss the options with the mother and secure her consent to proceed. The form used currently to record the mother's wishes and consent is set out at Annex C of the CMO guidance. This allows the mother to declare that the cremation options have been explained to her and states that the pregnancy loss will be disposed of by the hospital in accordance with the procedures outlined. The Commission recommended that the options for disposal should be set out clearly on the form, which is not the case currently. The options should include shared cremation and individual cremation, as well as shared burial and individual burial, with an explanation of what each involves.

150 The Commission also recommended that the same form should state that it may not be possible to recover ashes, but should set out options for what should happen to any ashes which are recovered. In the case of shared cremations, the form should state that any ashes which are recovered will be interred or scattered at the crematorium and should state which action will occur. For individual cremation, the form should provide the following options for any ashes which are recovered:

(a) scattered or interred at/by the crematorium with the family in attendance, noting the date and time;

(b) scattered or interred at/by the crematorium without the family in attendance, noting the appointed date, up to 7 days after the cremation;

(c) collection by the applicant or the applicant's appointed representative;

(d) retention at the crematorium for up to 8 weeks, awaiting collection or further instruction by the applicant or the applicant's representative.

151 If either of options (c) or (d) is selected, the applicant must sign an additional declaration:

(e) I understand that if after 8 weeks the ashes have not been collected or no instruction given as to their disposal or further retention, the ashes will be scattered or interred at/by the crematorium.

152 These are the same options which are proposed for other cremation forms.

Q66 - Do you agree with these proposals for the form used to seek the mother's agreement to the hospital organising the cremation of a pregnancy loss of less than 24 weeks' notice?

Mother declines to discuss options

153 Where the mother declines to discuss disposal, the current form allows her to declare that she has declined to discuss the matter and that she understands that the hospital will proceed according to their standard procedure, without setting out the details of that procedure. The Commission has recommended that the form should state clearly what procedure will be followed in these circumstances.

Right to instruct the disposal of a pregnancy loss of less than 24 weeks gestation

154 In the case of the individual cremation of a pregnancy loss of less than 24 weeks gestation, the Commission recommended the use of Section 50 of the 2006 Act for the right to instruct the disposal of the remains. As discussed at paragraphs 35-47, this is not wholly suitable and an alternative definition is required which reflects the spirit of the recommendation and is modelled closely on Section 50.

155 In keeping with the language of the Scottish Government guidance on the disposal of such pregnancy losses, it is proposed that the right should be vested in 'the woman who has experienced the pregnancy loss'. A list of other people who may instruct the disposal of the body if for any reason the woman is unable to make such an instruction should be provided. This list would be based on the list proposed at paragraph 38.

Q67 - Do you agree with the proposal for who should have the right to instruct the disposal of the remains in the event of a pregnancy loss of less than 24 weeks gestation? If not, in whom should this right be vested?

Q68 - Do you agree with the proposal to provide a list of people who have the right to instruct the disposal of the remains in the event that the woman is unable to do so? If so, who should be included in this list?

Hospital's application for cremation

156 Once a decision has been made and the mother's consent obtained, the Health Board is required to complete an application for cremation. The applicant is a person authorised by the Medical Director of the Health Board to make an application for cremation. The form for this purpose is currently provided at Annex F of the CMO guidance, and is not statutory. The Commission recommended that an application for the cremation of such a pregnancy loss must be accompanied by a medical certificate that states that the pregnancy loss occurred before 24 weeks gestation and showed no signs of life. The form enables the person authorised by the Medical Director to declare that relevant medical certificates pertaining to the pregnancy loss (or in the case of shared cremation to each pregnancy loss) are held by the Health Board. The current form is structured for shared cremations (although theoretically could be used for individual cremations), and there is no specific form for individual cremations.

157 The Commission recommended that the form should expressly state that the mother (or in the case of shared cremations, each mother) has agreed to the hospital applying for the particular kind of cremation. For individual cremations, the form should require the applicant to declare that the mother has agreed what should happen to any ashes which are recovered, and that this is recorded in the appropriate authorisation form.

158 The CMO guidance sets out some timescales for carrying out cremations. Where the mother has authorised the hospital to carry out the cremation, the hospital is required to do so 'as soon as practicable' after authorisation is received. No specific timescale is given. The CMO guidance advises that if the mother has not authorised the hospital to carry out the cremation or has not notified the hospital that she wishes to make her own arrangements within six weeks of the date of the pregnancy loss occurring, the hospital should make arrangements for disposal. The Scottish Government is seeking views on whether there should be a maximum length of time for which a pregnancy loss can be stored by a hospital before it is cremated as part of a shared cremation. The form to be used to apply for a shared cremation could be used to record the date on which the shared cremation will take place.

Q69 - Should there be a maximum time for which a pregnancy loss can be stored by a hospital before it is cremated as part of a shared cremation? How long should this be?

159 These forms are not statutory. While the Commission suggested that the introduction of the CMO guidance has improved practice, prescribing these forms through legislation would ensure consistency in all cases, and would place the cremation of pregnancy losses of less than 24 weeks gestation on the same legislative footing as other kinds of cremations. It is proposed that the Burial and Cremation (Scotland) Bill will contain a power for Scottish Ministers to make regulations pertaining to the application for cremation of pregnancy losses of less than 24 weeks gestation. In the meantime, the forms provided in the CMO guidance - as revised by the National Cremation Commission where appropriate - should continue to be used.

Q70 - Should the forms for the cremation of a pregnancy loss of less than 24 weeks gestation be statutory? If not, why not?

Private cremation of a pregnancy loss of less than 24 weeks gestation

160 A mother may choose to organise a cremation herself, without the involvement of a Health Board. Where the pregnancy loss has occurred at a hospital, the Scottish Government guidance provides a form for the hospital to release the pregnancy loss to the mother so that she can make her own arrangements for cremation. This form is provided by the CMO guidance and is not statutory. The hospital should keep this form along with other forms relating to the pregnancy loss.

Q71 - Should the form used by the hospital to release a pregnancy loss to the mother be statutory?

161 Currently there is no form for application for the cremation of a pregnancy loss, but the Commission found that all crematoria in Scotland will carry out such a cremation. Nonetheless, it is appropriate that a statutory form is provided for this purpose. It is proposed that the Bill will contain a provision enabling Scottish Ministers to make regulation which prescribe the form to be used for the application for the cremation of a pregnancy loss.

Q72 - Should there be a prescribed form for the application for cremation of a pregnancy loss of less than 24 weeks gestation where the cremation is organised by the mother?

162 In such cases, the applicant should be the mother, and her signature must be witnessed by someone who is not a member of the applicant's family and who is not involved in the arrangements for the funeral. The purpose of this recommendation is to ensure that the applicant is fully aware of the implications of the cremation, including that it may not be possible to recover ashes. However, the Committee's recommendation about who should witness the application may prove to be impractical, and views are sought on who should be able to witness the application for cremation of pregnancy loss of less than 24 weeks gestation.

Q73 - Do you agree that the application should be countersigned by someone who is not a member of the applicant's family and who is not involved in the arrangements for the cremation? Will this prove impractical? Should the legislation specify categories of people who may countersign cremation application forms?

163 As with other cremation forms, the form should state that it may not be possible to recover ashes, but should set out the options for any ashes which are recovered. These should be:

(a) scattered or interred at/by the crematorium with the family in attendance, noting the date and time;

(b) scattered or interred at/by the crematorium without the family in attendance, noting the appointed date, up to 7 days after the cremation;

(c) collection by the applicant or the applicant's appointed representative;

(d) retention at the crematorium for up to 8 weeks, awaiting collection or further instruction by the applicant or the applicant's representative.

164 If either of options (c) or (d) is selected, the applicant must sign an additional declaration:

(e) I understand that if after 8 weeks the ashes have not been collected or no instruction given as to their disposal or further retention, the ashes will be scattered or interred at/by the crematorium.

165 These are the same options for other categories of cremation. It will not be possible for a cremation to proceed if the application does not state clearly how any ashes recovered are to be dealt with.

166 An application for the cremation of such a pregnancy loss must be accompanied by a medical certificate that states that the pregnancy loss occurred before 24 weeks and showed no signs of life. The potential difficulty of this recommendation where the pregnancy loss did not occur in a healthcare setting is noted at paragraph 147.

167 As with other cremation application forms, the form for authorising the individual cremation of a pregnancy loss of less than 24 weeks gestation should enable the applicant to authorise someone else to collect any ashes which are recovered, including the Funeral Director. If the Funeral Director is authorised to collect the ashes, the form should also enable the applicant to authorise the Funeral Director to return the ashes to the crematorium if the applicant does not collect them or instruct the Funeral Director as to their disposal within two years. When that two-year period has elapsed, the Funeral Director must provide the applicant with 14 days' notice that they intend to return the ashes to the crematorium. If no response to this notice is received, the Funeral Director may return the ashes to the crematorium. The crematorium will be required to record this information in the cremation register.