Report of the National Cremation Investigation by Dame Elish Angiolini DBE QC

3 Overview

A number of the significant aspects of the evidence in this Investigation reflect the context, legal framework and findings of my earlier report on Mortonhall Crematorium ^[4] , published in April 2014. While an explanatory note and glossary of terms is provided in this report, both the Mortonhall Investigation Report and the Report of the Infant Cremation Commission ^[5] provide a foundation for this Investigation and are useful references for those consulting this Report.

This Investigation took place during the passage of the Burial and Cremation (Scotland) Bill through the Scottish Parliament. That Bill was passed on 22 March 2016 and will come into force incrementally. The Act addresses many of the shortcomings identified in this and the previous reports and, together with the Code of Practice issued by the National Committee on Infant Cremation, provides a clear and comprehensive framework to regulate and guide future practice on the cremation of babies. This Investigation has however identified additional issues and recommendations, some of which require further legislative action and the introduction of criminal sanction.

In the Mortonhall Investigation Report, I made several observations about the role of the professional organisations, the FBCA and the ICCM ^[6] as it affected these issues. Since the recommendations of the Mortonhall and ICC Reports have been published, the FBCA and ICCM have developed joint guidance on infant cremation for Cremator Operators which is to be commended ^[7] . Further, the FBCA has also developed a training module for infant cremation and asked South Lanarkshire and Inverclyde to be training centres for this purpose. Initially this training was offered to new Operators going through their FBCA Certificate which now also includes an infant cremation component. This module has now been opened up to more experienced staff and, in particular, to those mentoring trainees. The ICCM has also now incorporated infant cremation in its training module. It is incumbent upon all senior management of crematoria to ensure such training is taken up by their employees as part of the need to change attitudes and embed a significant change of culture.

3.1 Organisational Culture at Crematoria

A great deal of discussion is included in this report about the various techniques, equipment and practices used by crematoria in Scotland and by individual Cremator Operators. While it is clear that the deployment of particular practices and equipment can enhance considerably the prospects of recovering ashes for parents, the overwhelming influence in obtaining ashes arose from the effectiveness of the leadership of those organisations and from the resulting culture of the crematoria. The stark difference between the atmosphere and culture of those crematoria that have historically and consistently provided ashes from babies and those that have not was evident.

The manifestation of cynicism or scepticism from some Managers and Operators whose working practices prevented or were, at the very least, indifferent to the consistent recovery of baby ashes was generally accompanied by an inward looking approach and disinterest in the working practices of other crematoria. While commercial sensitivity was often given as an excuse for such isolation, these crematoria demonstrated little evidence of a progressive or caring culture for the circumstances of the loss of a baby. In such cases many parents are patently vulnerable. In contrast, in other crematoria the determination and success in returning ashes was part of a wider culture of greater sensitivity and customer care.

The most eloquent demonstration of the effect of culture and determination was expressed in the striking observations of a Cremator Operator of 26 years' experience from Glasgow Crematorium at Maryhill,

"We have baby urns in the columbarium there. We have a big tower there. It's got 3,000 sets of ashes in it and we've got wee baby and stone urns and there's ashes in them from a hundred years ago. So they must have had baby trays or something similar to the trays we have even back then because as I say there are ashes in there that are a hundred years old and they're baby ashes. So they were able to collect them all that time ago without any modern equipment or anything….

…. Every one of them is very, very difficult. We tend to take a bit more care. We always have here, I must admit, taken more care … We've always used a tray here. I've heard that some crematoria don't and I don't understand why they would say that and I've heard that it's a year or two years [the cut off for ashes] ... I can't understand that. Personally I've had a small non-viable foetus (as they regard it) and there's still bone there. You're talking the size of fish bones but I know a bone when I see one. I've been doing it that long and for somebody to say that they can't get anything back…. and even if we don't see anything, everything that's in that tray, it doesn't matter if it's still a bit of a box that's in that tray, goes back to the family… The ashes from a one year old won't fit into a baby urn. This is why I can't understand folk saying there is nothing. It really is unbelievable."

The degree of care required was also emphasised by Dr Clive Chamberlain, expert Combustion Engineer, in his report to the Mortonhall Investigation ^[8] ,

"The usual conditions for the cremation of adults are not suitable for infant cremations and it is a matter of establishing whether there can be suitable conditions created having regard to all the factors which affect the outcome. The essential characteristic of infant cremation must be a gentle process."

What also marks out those crematoria that were consistently successful at recovering ashes for the parents of babies was their willingness to modify the adult processes to mitigate the ferocity of the environment inside the primary chamber of the cremator. This could be achieved by the use of a 'baby tray' to allow the ashes to be protected and contained against the volatile atmosphere in the chamber. Additionally, manual intervention with the controls of the cremator, reduction of the air forced into the chamber, reduction of the temperature of the primary chamber and the length of time of the cremation were actions which, if used, allowed the recovery of baby ashes.

A number of successful crematoria combined all of these modifications to great effect. The outcome could be further improved following the introduction in 2013 of a software programme for cremator equipment known as 'infant mode'. This programme automatically mitigated the impact of the cremation process for foetuses and babies.

Other crematoria had intermittent success over different time periods during which they used a baby tray. The Investigation heard evidence that trays were withdrawn from use in some crematoria because of buckling of the trays. However, there was no evidence of any concerted effort to find more robust trays that would withstand the effects of the cremator for a longer period, or to involve senior management in resolving the issue. The manufacturer of the gas cremators in use at many of the crematoria in Scotland confirmed that instructions on safe use of the trays have been included in the manufacturer's user manual for decades and confirmed that baby trays have been available since the 1960's.

Following publication of the Mortonhall Investigation Report and the ICC report in 2014, crematoria in Scotland have been using a baby tray for cremation of infants. The Inspector of Crematoria has confirmed that no incidents of injury or failure to obtain ashes have been reported to him by any crematorium.

3.2 Working Practices at Crematoria

The outcome of the Investigation has demonstrated failings similar to those discovered at Mortonhall in a significant number of crematoria in Scotland. It also found examples of good practice now in place at Mortonhall with a transformation of working practice and culture there. Likewise, Seafield, Warriston, Glasgow Maryhill, Woodside Paisley, Falkirk and Cardross have all had in place working practices permitting the consistent return of ashes to parents for many years. The Investigation was also invited to consider practices at South Lanarkshire and Parkgrove in Friockheim, neither of which are the subject of complaint and both of which have been successfully returning ashes to the parents of foetuses, stillborn and infant babies.

i Aberdeen

While issues of concern were found in a number of the crematoria in Scotland and in the practices of local Funeral Directors and NHS staff, the most serious issues in this Investigation have arisen at Hazlehead Crematorium in Aberdeen. During the course of the Investigation into Mortonhall Crematorium in 2013 spokespersons for Aberdeen Crematorium issued statements confirming that Aberdeen did not produce ashes from the cremation of foetuses and babies up to the age of eighteen months to two years. Referring to the broadcast of the BBC documentary, 'Scotland's Lost Babies' in April 2013, one of the Managers at Aberdeen City Council explained,

"it wasn't until I watched the BBC documentary…that I started to question it…I was a bit surprised and a bit horrified because we had always stuck by our statement of no remains.

We stuck with the line that Aberdeen Crematorium did not recover ashes. I was looking for comfort and confirmation from Derek [Snow, Crematorium Manager] , because to me Derek was my expert and I had no reason to not believe him."

There was of course considerable information emerging at that time to suggest that he and senior managers should have had reason to test and probe robustly the explanations presented to them by Derek Snow, the Crematorium Manager. The truth was that ashes would have been recoverable if any care or interest had been shown in recovering the ashes. Instead, the reality was one of years of malpractice unnoticed by senior management.

There was, quite simply, no interest in recovering ashes from foetuses and babies and no effort put into attempting to do so, although ashes had been recovered at Aberdeen many years before. The reality is described in detail in this Report and is deeply disturbing. The evidence discloses unethical practices over many years of the cremation of foetuses and babies along with unrelated and unknown adults. A further practice of raking adult ashes forward at the completion of a cremation and inserting into the same chamber an infant to be cremated while the adult ashes were still present was also described. The entire contents of the chamber were then raked into the cooling pan. For obvious reasons this process was not recorded.

These practices are deeply shocking, will offend the sensibilities of the wider community and cause great distress to those whose babies were cremated there. It will also cause profound concern to the next of kin of any unrelated adults who were cremated in Aberdeen. These next of kin may have scattered, interred or collected and continue to retain ashes of loved ones cremated at Aberdeen which also include the ashes of an unknown baby or of one or several foetuses.

The position of an alleged understanding at Aberdeen Crematorium that there were no ashes to be obtained from babies up to two years of age was not explained and is inexplicable. The nature of the processes and the expedient and unethical way this was done, without any recording to this effect, means that it is not generally possible to identify those adults and babies who were cremated with each other. Exceptionally, in the cases of two infant babies referred to the Investigation where the evidence demonstrates that they were cremated on their own, no ashes were recovered. It can therefore be inferred from the records and from the evidence of the Cremator Operators that these ashes remained in the cremator and would have been mixed with the ashes of the subsequent adult cremation.

When obliged to consider these issues following the commencement of the Mortonhall Investigation and during the separate opportunity to explain their position to Lord Bonomy and his team in 2013, the true picture at Aberdeen Crematorium was not disclosed. The Infant Cremation Commission was therefore misled about the practices taking place at Aberdeen.

ii Other Crematoria

With some notable exceptions, this Investigation found a number of issues similar to those examined in the Mortonhall Investigation Report in the working practices of a number of crematoria.

In Glasgow many parents were misinformed by NHS staff and Funeral Directors about the possibility of recovering ashes and were thus deprived of the opportunity of making such a request to Daldowie and Linn Crematoria and to other crematoria in the Glasgow area. The quality of communication and understanding between the NHS, Funeral Directors and the Crematoria was poor and erratic. While there was evidence of the return of ashes for some babies at Daldowie and Linn, this was intermittent, depending on the use of a baby tray that was, in turn, dependent on the approach of the individual Cremator Operator.

The absence of any written procedures or monitoring of the use of a baby tray made enquiry very difficult and there were conflicts in the evidence between the Managers and the Cremator Operators as to what practices were being used. This was compounded by the inaccuracy and unreliability of the Statutory Register of Cremations as it related to the cases referred to this Investigation. Like Mortonhall Crematorium before 2013, Daldowie and Linn Crematoria worked in almost complete isolation from the rest of the Council and other crematoria with no strategic direction or development of the services provided for the parents of foetuses and babies.

Similar issues were evident at Dunfermline and Kirkcaldy Crematoria both of which come under the joint management of Fife Council. They share a common Bereavement Services Manager. Despite this arrangement, working practices at each of the two varied from the other. Dunfermline returned ashes intermittently when the baby tray was available to them and Kirkcaldy did not return ashes at all. Indeed, the working practices at Kirkcaldy were wholly contrary to the manufacturer's guidance and guaranteed to eliminate any prospect of recovering ashes by placing the coffins or boxes containing the baby directly under the main burner. Following the publication of the Mortonhall Investigation Report baby trays were eventually reintroduced to both crematoria. They immediately began to recover ashes from foetuses as young as 13 weeks. The effect on the Cremator Operators was considerable with one observing,

"When we started using trays and realised you got something back to give to the parents we were all, I mean, I am, generally gobsmacked. From the tiniest NVF at 12 weeks because we are using this baby tray, I mean what it looks like to me is like if it's the ribcage it looks like a nail clipping and were just told that that wasn't possible. We didn't know that places like Seafield Crematorium in Edinburgh have been able to use the tray for years and years and years."

Another colleague commented,

"I did start to think about it when I was using a tray and I think the other boys will say that as well….it hits home to me now that I'm able to recover something using a tray where I couldn't before. It has affected me"

The failure to genuinely search for best practice, to take real care and demonstrate sensitivity to the needs of some very vulnerable parents was evident in a number of different respects in crematoria in Scotland but there were many common failings which resulted from a lack of interest by senior management and a failure to develop cultures of continuous improvement, not just in respect of crematoria but in the practices of NHS staff and Funeral Directors.

The new Code of Practice, the availability of external training and the establishment of a much better regulated sector through the new Burial and Cremation (Scotland) Act 2016 should diminish the opportunities for such failure in the future but it is for the Chief Executives of each of the relevant Councils and organisations to ensure those practices are sustained and the general culture transformed.

3.3 Record Keeping

There were no statutory obligations on crematoria to maintain records of the cremation of non-viable foetuses and many of the crematoria had no such records. Even when they did, the registers for non-viable foetuses did not contain information about the location of any ashes. The records about all other cremations had to be maintained for a period of 15 years. With the exception of two cases such records were maintained, although they were not always complete or accurate.

The practice of inserting the disposal outcome of the remains of the baby on the Register before the actual cremation had taken place was widespread. In short, what appears to be a record was a prediction and not a record at all. This rendered many records wholly unreliable and meaningless as a statutory record of the actual outcome of the cremation. There was significant evidence that in many cases across the country the outcome recorded was in fact only the instruction for the disposal of ashes and that this was not updated with the actual outcome. As at Mortonhall, prior to the computerised systems being introduced, most crematoria did not record in manual registers that there were 'no remains' even though they stated this to be the case. Most often the words 'dispersed in the Garden of Rest or Remembrance' would appear.

This casual and careless approach to a statutory obligation is of considerable concern. Steps now need to be taken to rectify these inaccuracies and to ensure this obligation is treated with the solemnity it deserves. The duty to do so conscientiously and truthfully is implicit in that obligation.

3.4 Communication

i NHS Maternity Staff

It was clear during the Investigation that many midwives and hospital employees in maternity hospitals across the country had not been well informed about the basis of the advice they gave to parents and that much of the advice was simply gleaned from predecessors or colleagues. Very often that advice was that there would not be any ashes. Such advice resulted in parents not applying for ashes. Even NHS written guidance was inaccurate and misleading in a number of respects. Advice from the Chief Medical Officer in 2012 also assumed there would be no ashes from the cremation of non-viable foetuses. Despite the changes following the Mortonhall Investigation Report which mean that ashes are always returned following cremation, this Investigation was told by Glasgow City Council administrative staff in 2015 of a form still in circulation from the main Glasgow hospitals that included a declaration signed by parents stating,

"I understand there will be no identifiable remains."

That form has now been withdrawn following intervention by this Investigation. Many NHS staff often had to provide advice to parents under great pressure from other duties and some midwifery staff did not appreciate that there was written guidance to the staff to the effect that parents should be given ample time to consider the options. A significant number of mothers told the Investigation that they were in a state of acute distress at the loss of their child and felt they had little time to make decisions about the final act of care for their baby before leaving the hospital. Many were also heavily sedated or in physical pain. A specialist midwife on pregnancy loss acknowledged,

"It could be quite quickly after delivery when these options are discussed. Very definitely on discharge from the ward… it could be two or three hours, six hours, could be overnight between delivery and discharge, it just depends.''

Many parents relied wholly on the advice given by NHS staff and accepted in good faith the advice that there would be no ashes to be recovered from the cremation of their baby. This misleading information deprived many parents in Scotland of the opportunity to recover the ashes of their babies. Such advice and guidance to parents needs to be accurate and set out in different formats to take into account the impact of grief on the ability of the parents to absorb information given on one occasion. Most importantly, parents must also be given the time and space to make their decision.

These matters are now being addressed by the NHS but steps must be taken to review the effectiveness of training and guidance to ensure parents are not misinformed about such an important decision, nor propelled into making decisions prematurely.

ii Funeral Directors

Similar considerations emerged from the evidence of many parents about Funeral Directors across the country. This report discloses a significant body of evidence that parents were often advised by Funeral Directors that there would be no ashes from the cremation of their baby or very little prospect of ashes. Funeral Directors indicated that such information came from the crematorium staff or from their senior colleagues or peers. Understanding of what the prospects of recovery of ashes were in each crematorium varied among Funeral Directors working to the same crematorium. Many were aware that ashes could be obtained in some crematoria but not others. A number of Funeral Directors indicated that they would not raise the issue of ashes at all unless the parents did so.

While many parents signed the Application for Cremation, they had allowed the Funeral Director to complete the form and simply signed the form as indicated by the Funeral Director. The instruction for the disposal of ashes was also often completed and signed by the Funeral Director. During the Investigation, parents were shocked to see that the space for the instruction had been scored through or marked 'N/A'. Of even more concern to parents was to learn that an instruction for 'dispersal of the ashes' had been entered onto the Application for Cremation by the same Funeral Directors, the representative of whom had informed the parents that there would be no ashes.

What is apparent from the Investigation is how much trust is placed in the professionalism of Funeral Directors and how Funeral Directors should be uniquely well placed to know what the situation is in various crematoria around the country. Yet apart from one challenge in writing by a now deceased Funeral Director in Aberdeen, Funeral Directors appeared to acquiesce in the information from the crematorium. This situation persisted despite the recovery of ashes in other nearby crematoria and inconsistent accounts from different personnel working in the same crematoria.

It was clear that the quality of communication between crematoria staff and Funeral Directors also varied considerably across the country and was subject to confusion and disagreement between the organisations. While the Investigation was told that some crematoria would warn Funeral Directors that ashes could not be guaranteed, this had been understood by Funeral Directors that no ashes were available for foetuses or babies and parents had been advised as much. As with the findings in the Mortonhall Investigation Report, the whole process of communication with bereaved parents about cremation was generally unsatisfactory and muddled, with a small number of notable exceptions.

Despite the existence of Bereavement Liaison Groups in some areas, many of these had not discussed baby cremation and there was little evidence of any meaningful joint training on this issue anywhere until very recently. Evidence was also discovered of Funeral Directors and crematoria holding on to baby ashes for many years on their premises without advising parents until the intervention of this Investigation. The great vulnerability of parents in such circumstances calls for the very best in customer care and that was clearly not evident in so many of the instances examined. That level of care, knowledge and sensitivity is also needed from NHS and crematoria staff.

It is incumbent on all senior management in each of these three sectors to lead and secure adequate training, appropriate working practices and a culture of care and sensitivity. Given what is disclosed by this Report, systems must be in place to ensure those services are delivered consistently and are subject to regulation and inspection. This should include the Funeral Directing profession.