Report of the Infant Cremation Commission

Sections 3 - Introduction

Origins of the Commission

3.1 In the latter part of 2012 considerable public concern was expressed over the accuracy of information given to bereaved parents about the existence or non-existence and final resting place of the ashes of their babies who had been cremated. The circumstances which led to this are described in Dame Elish Angiolini's Mortonhall Investigation Report (MIR)^[1] into historical practices at the local authority-run Mortonhall Crematorium in Edinburgh. The subsequent media coverage led to over 250 families registering enquiries with that Investigation seeking to establish whether ashes had been recovered from the cremation of their babies. The publicity also led to similar, though less numerous, enquiries being made of other Cremation Authorities, including Glasgow City Council, Aberdeen City Council, Fife Council and Falkirk Council. The core concern was that in a number of cases in which parents had been told that, following the cremation of their babies, there had been or would be no ashes, there were in fact instances in which ashes had been buried or scattered at a part of the crematorium that might or might not be readily identifiable.

3.2 Edinburgh City Council acted swiftly in response to the public concern. On 4 December 2012, Councillor Lesley Hinds, Environment Convener for Edinburgh City Council, issued an apology to families affected by historical practices at Mortonhall Crematorium. On 7 December 2012 Edinburgh City Council announced that a fact‑finding investigation into historical practice at Mortonhall Crematorium would be undertaken. The initial report of the investigation was published on 15 January, with its first and key recommendation being to continue investigations via the appointment of a suitable independent person. On 22 January 2013 Edinburgh City Council announced that Dame Elish Angiolini, former Lord Advocate for Scotland, had been commissioned to undertake an independent investigation into the historical practices at Mortonhall Crematorium^[2].

3.3 A number of local and national media stories followed and BBC Scotland issued Freedom of Information requests to all Cremation Authorities in Scotland, asking how many babies had been cremated since 2008 and in how many cases ashes had been returned or scattered with parental consent. As a result of the responses received, BBC Scotland raised concerns about historical practice at Hazlehead Crematorium in Aberdeen (where no ashes had been returned for any of the 24 cremations of babies since 2008) and in Fife (where ashes had been returned or scattered in 45 of the 87 cremations).

3.4 On 3 April 2013 BBC Scotland broadcast a documentary which identified apparent inconsistencies in practice in crematoria across Scotland^[3]. On 4 April, immediately following broadcast of the BBC Scotland Programme, Aberdeen City Council released a statement^[4] indicating that the Council had already ordered a 'precautionary audit' on practice at Hazlehead in January, following concerns about practice at Mortonhall. A report on that audit, conducted by PricewaterhouseCoopers, was published on 15 July 2013^[5]. The Council viewed the report as confirming that procedures at Hazlehead Crematorium were sound.

3.5 Glasgow City Council did not respond to the request from BBC Scotland because the information sought had not been collated in time. However, following the broadcast of the documentary, some parents from the Glasgow area spoke to the council and the media with their concerns.^[6] Shortly thereafter Glasgow City Council issued a statement explaining that an initial internal review had already been carried out and announcing that a second phase of review would be undertaken.^[7] On 16 May 2013 the Council published the results of its review of all relevant cremations in the previous 15 years, and issued an apology after finding that there had been a small number of cases where ashes had been dispersed without the knowledge, or against the wishes, of parents^[8].

3.6 The Commission are not aware of any other Cremation Authority carrying out any review but are aware of perhaps 50 to 75 cases in Scotland, and expect that there are more where concerns have been raised, in addition to those at Mortonhall. In some instances these concerns relate to the accuracy or otherwise of information provided by healthcare staff or Funeral Directors.

Establishing the Commission

3.7 The state of distressing uncertainty in which many people were left as a result of these developments led to calls upon Scottish Ministers to set up a public inquiry. Following debate in Parliament and within the Government, Scottish Ministers established this Commission on 16 April 2013. Once its general membership of experts with experience in matters relevant to the work of the Commission had been identified by Ministers, Lord Bonomy was asked to chair the Commission. His appointment was announced on 2 May 2013.^[9]

3.8 At the first meeting of the Commission on 21 May 2013 the proposed remit formulated by the Minister for Public Health, Michael Matheson, was tabled and, following discussion which resulted in minor revisal thereof, was agreed. The revisals made were accepted and endorsed by Scottish Ministers. The agreed remit was as follows:

• • To review the current policies, guidance and practice in Scotland in relation to the handling of all recoverable remains (ashes) of babies and infants, and to make recommendations for improvement to ensure that: parents and other bereaved relatives receive clear and consistent advice and information about the disposal of such remains and have their wishes adhered to; and that any such remains are treated sensitively and compassionately.
• • To consider existing legislation, with particular reference to the Cremation Act 1902 and the Cremation (Scotland) Regulations 1935, in order to identify gaps, inconsistencies and weaknesses and to make recommendations on what issues should be addressed in future legislation.
• • To consider existing practice and guidance in related fields such as the NHS and funeral services in order to identify gaps, inconsistences and weaknesses that should be addressed; and to make recommendations on the format and content of future guidance.

and:

• • To give guidance on the conduct of any investigations of historical practice undertaken by Local Authority or independent crematoria operators.

3.9 The Commission met for the second time on 28 May 2013 when the enquiries that should be made and the general range and nature of the information, evidence and other material the Commission would seek to gather and collate were discussed and agreed. Recognising the possibility that Cremation Authorities with which parents had raised issues might wish to have these concerns enquired into, the Commission took this early opportunity to issue interim Guidance in accordance with the last sentence of the remit above, on the conduct of investigations of historical practice by Cremation Authorities. That Guidance, which remains available to any Cremation Authority, should be considered the definitive view of the Commission. It can be found at Annex C.

3.10 In 2005 the Government established the Burial and Cremation Review Group to look at 2 main subjects, namely (i) the death certification process and (ii) the law generally relating to burial, cremation and cemeteries, the former in response to the scandal of Harold Shipman in England and the latter because the time was right to review, in light of social change, legislation that had been in place a long time. The Review Group recommended that all the various pieces of legislation relating to burials, cemeteries and crematoria management should be swept away and replaced by one Act of Parliament into which the main provisions appropriate to the modern era should be consolidated in a way that would allow for them to be amended fairly easily as required by subordinate legislation.

3.11 The Review Group's report also made many detailed recommendations about burial and cemeteries, and a few about cremation. Some of their recommendations apply to both. Four have a direct bearing on the work of this Commission: recommendation 12 that the right to instruct the disposal of bodies after death should be vested in the nearest relative as defined in section 50 of the Human Tissue (Scotland) Act 2006; recommendation 13 that all records and forms relating to the disposal of bodies should wherever possible be maintained in electronic form; recommendation 23 that there should be legislation to make clear that home cremation is illegal; and recommendation 31 that sufficient guidance exists as to the disposal of fetal remains and the Scottish Government should issue an update of the 1992 NHS circular on the disposal of such remains. Others, such as the series relating to death certification and recommendation 28 and 29 relating to responsibility for authorising the cremation of people who die abroad, are relevant to how some changes that this Commission recommend should be implemented.

3.12 It can thus be seen that, although the trigger for the creation of this Commission was the concern that first emerged at Mortonhall Crematorium, the Commission should also be seen as presenting an opportunity to contribute further to the task, already initiated, of developing a scheme for burial and cremation and for baby cremation in particular that is appropriate for the twenty‑first century. That scheme should aim to ensure that throughout the arrangements and the conduct of cremation, the baby and the interests of the baby's family are the paramount consideration for the various professionals who are involved with that family.

The Work of the Commission

3.13 The Commission met on 8 occasions. The dates of these meetings, and the approved minutes produced from each one, are available at Annex S.

3.14 The Commission received a total of 57 submissions in response to its call following the first meeting. These are discussed later in this Report.

3.15 The majority of work, which informed the discussion at each formal meeting, was however conducted outwith these meetings. Written and oral requests for information and copies of current and historical documentation were issued to crematoria, cremator manufacturers and Health Boards. Expert opinions were obtained in conjunction with the Mortonhall Investigation. The Commission Secretariat were engaged throughout in communications to obtain further information and clarification of information already received on a variety of topics.

3.16 Each member of the Commission wishes to express gratitude to, and admiration of, the Commission Secretariat, comprising Alison Kerr and Sarah Dillon, for their dedicated support of the work of the Commission.

3.17 Although it was not within the scope of the Commission to investigate the detail of individual cases, particularly where there may be disputed factual matters to resolve, steps were nevertheless taken to obtain documentation in relation to those cases where parents had made submissions to the Commission in order to learn more about the causes of parents' concerns. The Commission understand that, as a result of this, in certain cases documentation not previously seen by parents was subsequently made available to them.

3.18 Lord Bonomy held meetings with several groups and individuals in order to discuss information that had been submitted in writing or which reflected issues brought to his attention during the course of other meetings. He held three meetings with parents: in July 2013, in December 2013 and in May 2014, this last being to gain their input on a draft of this Report. The Commission Secretariat also met separately with parents in July 2013, in response to early concerns about making submissions to the Commission. That last meeting resulted in an extension and re-advertising of the date by which submissions could be made.

3.19 In recognition that further practical investigative support was required, Norman Dowie, a retired Deputy Principal Clerk of Justiciary in the High Court in Edinburgh, was appointed to assist in undertaking enquiries into the operation of crematoria. Visits were paid to South Lanarkshire, Livingston, Aberdeen, Mortonhall, Seafield and South West Middlesex Crematoria. Numerous tele-conferences were held with staff at many more. Meetings were held with the Chief Executives and other staff of both Glasgow City Council and Aberdeen City Council; with representatives of the National Association of Funeral Directors (NAFD) and with crematoria managers from across Scotland at a joint regional meeting of members of the Institute of Cemetery and Crematorium Management (ICCM) and the Federation of Burial and Cremation Authorities (FBCA). A meeting with health professionals was also held to discuss submissions received from this sector and health board responses to the request for their current policy and practice documentation. Numerous telephone interviews were conducted with staff of crematoria, Funeral Directors and hospitals. Following publication of the MIR, discussions were held with the Scottish Environment Protection Agency (SEPA) to consider aspects of MIR.

3.20 At the outset of the Commission's work Lord Bonomy met with each Commission member individually to discuss areas of the Commission's work on which they had knowledge and experience. These meetings, and other on-going communications between Lord Bonomy and members, led in turn to individual Commission members willingly undertaking additional tasks of great assistance to the Commission as a whole.

3.21 Lord Bonomy and the Commission Secretariat liaised with Dame Elish and the Mortonhall Investigation team regularly. The Commission wish to record their appreciation of the assistance they provided. As the work of the Commission progressed it became clear, as had initially been thought, that it would not be appropriate to report without knowing the findings of the Mortonhall Investigation. Since its work was not completed until 14 April 2014, the original target date for the Commission's Report of December 2013 could not be met. The Mortonhall Investigation Report (MIR) was made available to the Commission on its publication date of 30 April 2014. Once the initial draft of the Commission's Report, taking account of the terms of the MIR, was completed, the opportunity to read and then offer feedback on it at a face-to-face meeting was made available to all of the directly affected parents who had made submissions to, or engaged in discussion with, the Commission.

3.22 These discussions with parents on the draft Report took place over two days, Monday 26^th May and Wednesday 28^th May. At the meeting on 26th May, attended by 14 parents, a copy of the draft was given to each, some of its contents were outlined, and there was a short discussion of some suggestions made by those present. It was agreed by all that the draft should be treated with the utmost confidentiality, not only because it remained in draft form and was subject to change, but most importantly because of the distress that could be caused to parents in general if the contents of the draft were exposed to public debate before the report was finalised. The subsequent meeting, held on 28^th May, was attended by 11 parents, with email or written feedback received from a further 5, including 2 who had been unable to attend either meeting.

3.23 The topics discussed, which resulted in several revisions and amendments to the Report's narrative and recommendations, included regulation of crematoria and Funeral Directors; bereavement training for healthcare staff and Funeral Directors; greater transparency and access to information if a parent wanted this; an independent crematorium inspectorate; more time to decide on cremation, notification whether ashes were or were not recovered; how the application forms for cremation could be improved; the definition of ashes and what should be made available to bereaved parents; the extent to which 'overnight' cremation and shared cremation were ethically acceptable and also their views on local and national memorials.

3.24 There was general agreement on most of the topics during the meeting. However it was acknowledged that not everyone held identical viewpoints and that other parents affected, who had not made submissions to the Commission or who had not been able to attend, could hold different views. At their meeting later on 28th May the Commission took full account of the feedback before agreeing a final draft in which a number of the suggestions made in these two meetings are reflected. Ultimately it was the responsibility of the Commission to make the decision as to which of the many suggestions made at these meetings, and indeed the suggestions made by many others throughout the course of the Commission's work, to incorporate into this Report.

3.25 The above sets out the key activities of the Commission, which helped inform the content of this Report. The Commission recognise that affected parents had an enormous amount to contribute to its work and wishes to acknowledge and thank them for sharing their personal experiences and memories within their submissions, and the valuable views and insights they provided throughout the course of the Commission's work and at the meetings in May. All members of the Commission recognise and appreciate that, for many, that involved the distress of recalling unhappy times. The Commission would also like to thank all others who made submissions and all who assisted the work of the Commission in the many other ways outlined above.

3.26 This is an appropriate point to pay tribute to the work of Councillor George Ryan, of Glasgow City Council, in supporting affected parents in the area until his sudden and untimely death on 5 October 2013. The Commission also wish to recognise the value of the work undertaken by the many bereavement support organisations and their staff, including the hundreds of volunteers, who help, where they can, to ease the pain and grief of those who experience the loss of a baby, and who assist parents and families in finding a way though the difficult arrangements in the aftermath of such a loss.