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

5 Explanatory Notes and Terms

The Mortonhall Investigation Report describes in great detail the legal framework and statutory and non-statutory forms and records, the process of cremation, the way a cremator works and key partner organisations and mandatory training for staff conducting cremations. It is not proposed to repeat that information here but it will be useful to read a summary of these generic terms and practices before reading the reports on each of the individual crematoria.

The Burial and Cremation (Scotland) Act received Royal Assent on 28 April 2016. It is important to note that the position in law referred to throughout this Report predates the commencement of the provisions of the new Act.

5.1 The Legal Framework

The legal framework governing cremation in Scotland is clearly critical to the lawfulness and acceptability of cremation practices and record keeping at crematoria across the country. The key legislation in place during the timeframe of this Investigation was described and detailed in Section 2.5 of the Mortonhall Investigation Report. ^[9] The most relevant Regulations are the Cremation (Scotland) Regulations 1935, The Environmental Protection Act 1990 and its subsequent Regulations and the Health and Safety at Work Act 1974.

5.2 Key Organisations

In addition to the legislation, guidance produced by key organisations played a huge part in influencing cremation practice in Scotland. Around 90 percent of cremation authorities across the UK are members of the Federation of Burial & Cremation Authorities ( FBCA) which was established in 1924. The Federation provides advice, guidance and training to its member organisations. Technical Officers periodically visit and inspect crematoria with a view to upholding standards in the industry. The FBCA Code of Practice was referred to by every crematorium in the Investigation as the key document they followed.

The Institute of Cemetery and Crematorium Management ( ICCM) is open to individual membership of those employed in crematoria as well as the cremation authorities as corporate bodies. It aims to raise standards for the bereaved by providing accredited training. The ICCM produced a Charter for the Bereaved quality award.

Many cremation authorities interviewed were members of both the FBCA and the ICCM. Cremator Operators had undertaken FBCA certification which is described in the Training section below. Since the publication of the Mortonhall Investigation Report both organisations have updated their guidance and training to include baby and infant funerals and cremation.

The National Association of Funeral Directors ( NAFD) is an independent trade organisation with the largest membership in the funeral sector in the UK. Membership is subject to a Code of Practice and use of its logo indicates adherence to this code of practice. The logo is therefore a quality standard mark.

Some Funeral Directors interviewed during the course of this Investigation were members of SAIF (The Society of Allied and Independent Funeral Directors). This organisation produces a charter which their members sign up to as a condition of membership.

5.3 Training

This Investigation Report uses the term 'Cremator Operator' to describe those staff who physically carry out the cremation. Across the country they have various different job titles and for the sake of consistency in describing a group of staff carrying out this function we have used this generic term. Similarly, the Investigation found a variety of job titles in use for those people directly managing the Cremator Operators. These managers are variously called Superintendents, Supervisors and Crematorium Managers. Some have additional duties as Registrars. None of these managers described to the Investigation having had specific training to take on that role.

All the Cremator Operators interviewed as part of the Investigation held the required certification. The vast majority had been trained 'in house' by other Operators who already held the FBCA Certificate and were experienced. After a period of training and carrying out 50 supervised cremations, Cremator Operators were assessed by an external examiner appointed by the FBCA. Prior to the Mortonhall Investigation Report, examination did not include cremations of infants or foetuses.

The FBCA Training and Examination Scheme for Crematorium Technicians, 2003 (abbreviated to TEST) discusses infant and foetal cremation briefly. It notes that many cremation authorities use a stainless steel tray (referred to in this Report as a 'baby tray') when cremating infants in order to contain the remains after the cremation is completed. The Scheme goes on to state:

"It is usually advisable to perform this type of cremation at the end of the working day as the coffin and tray can be charged into the hot cremator and allowed to cremate using minimal top combustion air. Under these circumstances, top combustion air and the residual temperature may be sufficient to ignite and maintain the cremation. If insufficient, the ignition burner should be used as necessary.

On completion of the cremation, the tray containing the remains should be removed through the charging door and not raked through the ash door. Therefore, the cremator must be switched off and the primary chamber be allowed to cool to a safe temperature to allow the safe withdrawal of the tray the following morning."

However, this Investigation found that many crematoria chose not to use a tray (citing health and safety reasons) and this part of the training was simply ignored.

Generally, Cremator Operators did not receive any further training once they had their Certificate unless there was a change in cremation machinery in which case manufacturers of the equipment provided updates.

5.4 Licences to operate

Crematoria are required to hold a permit issued by the Scottish Environmental Protection Agency ( SEPA). SEPA is empowered to serve an enforcement notice in the event of a contravention of the permit and to serve suspension notices in appropriate circumstances.

No licence is required currently to operate as a Funeral Director. The Burial and Cremation (Scotland) Act 2016 makes provision for Scottish Ministers to consider introducing such a scheme. For reasons of consistency and ease of understanding, this Report uses the term Funeral Director to mean any employee of a firm of Funeral Directors. The Investigation acknowledges that other terms are used in the industry such as Undertaker or Funeral Arranger.

5.5 Definitions of the term 'baby'

For the purpose of this Report the term 'baby' is used to mean all categories listed below unless it is vital to distinguish the legal status of babies delivered before the 24th week of gestation.

• Infant - baby who has lived but dies before the age of two.
• Neonatal - baby who has lived but dies in the first month.
• Stillborn - baby delivered from twenty-four weeks of pregnancy that dies before birth ( NB this is the definition since 1992, previously it was twenty-eight weeks).
• Non-viable foetus - a foetus that is delivered not capable of surviving or developing once outside the uterus and below the legal age to be considered stillborn. Other terms used to describe non-viable foetuses (usually at an earlier stage of gestation) include 'products of conception', 'pregnancy loss', 'miscarriage' and 'foetal remains'.

5.6 Definition of ashes

During the time period covered by the Investigation, there was no legal definition of 'ashes' or 'remains'. The various definitions used by Cremator Operators in each of the crematoria will be covered in the individual chapters. In general, however, a distinction was made between what they called 'cremated remains' - remains of the actual body and its bones - and what they variously called 'residue', 'fly ash', 'dust' or 'coffin ash' which was considered not to contain any bone remains but rather to be the remnants of the coffin, clothing, teddy bears and the like contained in the coffin with the body.

During the timeframe of the Investigation, there was apparent significant divergence of opinion between the ICCM and FBCA in respect of their understanding of the terms 'ashes' and 'cremated remains.' According to the Chief Executive of the ICCM Tim Morris:

"whilst both terms are in common use and users might have a preference, the Institute considers that they are one and the same thing. The definition which the ICCM ascribes to both terms 'ashes' and 'cremated remains' is 'anything that is left after the last flame has ceased' in the cremator."

This is at odds with the view then taken by the FBCA in its guidance. In the FBCA Guide to Cremation and Crematoria, published in 2006, the term 'cremated remains' was defined as 'the skeletal remains recovered following cremation.'

This definition in the FBCA guidance was perceived by some of its member organisations as implying that if 'ashes' made up of coffin ash or other products were left over following a cremation, there would be no requirement to dispose of this material in accordance with Regulation 17 of the Cremation (Scotland) Regulations 1935 if they considered the material did not contain skeletal remains. The individual chapters will discuss how this understanding of the definition influenced the practice in each crematorium.

5.7 Definitions concerning disposal of ashes

Different crematoria use different terms to describe how they dispose of ashes

• Dispersal of ashes - across the country some crematoria use this phrase to mean interment of ashes and others to mean scattering or strewing of ashes
• Interment of ashes - burying the ashes in the ground
• Scattering or strewing of ashes - scattering the ashes above the ground

5.8 Definition of shared cremation

Shared cremation, also called collective or communal cremation, means cremating a number of non-viable foetuses together in the cremator at the same time. This method is only permitted for non-viable foetuses. The number of foetuses cremated together varied across the country. Historically some parents knew this was the option being offered to them and others did not. As it is impossible to separate ashes of individuals cremated this way, they are never offered to parents.

5.9 Forms and records

A number of forms are completed at the time of arranging a funeral for an infant and these form key evidence for this Investigation. Some of these forms are statutory, set out in law and common to the whole of Scotland. Others have been developed according to local needs by local authorities, Health Boards or Funeral Directors.

5.10 Statutory Forms

Form A - The Application for Cremation. Form A is a statutory form under the Cremation (Scotland) Regulations 1935. It is used to apply for the cremation of a deceased person. In accordance with Regulation 7 of the Cremation (Scotland) Regulations 1935, a cremation cannot take place unless a statutory declaration is made by way of completing the Form A. These regulations do not apply to non-viable foetuses. Some crematoria used the Form A for non-viable foetuses and others designed a different form.

In all the crematoria investigated, the Form A also had a non-statutory section added to it to record the Applicant's instruction for the disposal of ashes.

Forms B and C - These are statutory forms which must be completed by a medical attendant before cremation can take place. They confirm the cause of death and that there are no suspicious circumstances. Again these do not apply to non-viable foetuses but many hospitals use a similar form designed for those.

Form D - This is a Certificate of Post Mortem Examination.

Form E1 - this is a certificate that is used in cases of a sudden or unexplained death that has been referred to the Procurator Fiscal. It certifies that an investigation has been carried out and the Procurator Fiscal is satisfied there is no requirement to carry out further examination of the body and so permission is granted for cremation.

Form F - the Authority to Cremate form was in use throughout the time period covered by the Investigation but the system changed in May 2015. It was a statutory form completed by a Medical Referee giving the crematorium authority to cremate.

Form G - This is the Register of Cremations. It records the details of the deceased, the date and number of the cremation and the method of disposal of ashes following cremation. Most crematoria did not record cremations of non-viable foetuses in the Register. Some had no register for these foetuses. Others had a separate register and a distinct series of cremation numbers for non-viable foetuses. The Register of Cremations was historically a paper based document with entries being either handwritten or typed. In the 1990s most of the crematoria in the Investigation began to use a computer based system which included a funeral booking and invoicing system as well as generating the Register of Cremations. Systems used by the crematoria in this Investigation include Epilog, Epitaph and BACAS (Burial and Cremation Administration System).

5.11 Non-statutory Forms

The Investigation found a variety of forms used by NHS Boards to record discussions with parents following the loss of their baby and arrangements for the final act of care. Forms changed over the years and depending on the local authority area.

In respect of non-viable foetuses, the Investigation found a number of different forms used both by hospitals and by crematoria. As the non-viable foetus does not have a legal status in this context, at some places and in some time periods the statutory Form A (see above) was not used. Some hospital and local authority forms included a statement that there would be no 'identifiable remains' from cremations of non-viable foetuses.

Most crematoria did not record the cremation of non-viable foetuses in the Register of Cremations (Form G, see above), whether such cremations were individual or shared. Individual cremations of these babies tended to be recorded in a separate ' NVF Register' but the year when this began varied considerably across crematoria. Prior to the commencement of the new Burial and Cremation (Scotland) Act 2016, it is a voluntary exercise to keep such a register.

5.12 Cremation Equipment

There are two styles of cremator in use in the UK, supplied, installed and maintained by a number of different manufacturers. In its visits to crematoria, the Investigation saw cremators installed by Facultatieve Technologies and Furnace Construction Cremators. There are frequent references throughout this report to Evans Universal cremators. Evans Universal became part of the Facultatieve Group in 1998. Dowson & Mason and Tabo are also part of the Facultatieve Group.

The two styles of cremator are 'single-ended' and 'double-ended'. A double-ended cremator has a large door at the front, for the charging (loading) of coffins and a much smaller door or hatch at the rear through which the Operator can place the rake at the end of a cremation and rake ashes to the cooling tray at the rear. A single-ended cremator has only one door which is used both for charging and for raking ashes to the cooling tray, this time at the front.

In a single-ended cremator, a baby's coffin can be placed just inside the front door and the ashes raked a very short distance to the cooling tray. There is a spyglass at the front door which allows the Operator to watch the cremation and determine when it has ended.

In a double-ended cremator, if the coffin is placed just inside the front door, the ashes have to be raked the full length of the hearth (about 2m) to the cooling tray at the rear. There is often no spyglass at the front door, so Operators would look in from the spyglass at the rear door to check on progress of the cremation. Given the red hot heat, visibility is poor. The size of the rear door is such that it would not be possible to charge a baby's coffin at that end with dignity.

5.13 Baby Tray

In the past, cremators had perforated hearths and it was common to use a tray for infant cremations. The purpose of the tray was to contain ashes which would otherwise fall through the perforations in the hearth and be too small to recover.

The Investigation found use of a tray also with the newer generation of cremators with solid hearths and this is described in the individual chapters.

Some crematoria had trays purpose made by local blacksmiths. Difficulties with early trays included their weight and buckling in the heat. Now, different types of tray are manufactured. Some crematoria use a ridged bottom tray. This allows air to circulate under the coffin as well as on the top and sides and this facilitates an even cremation. The ridges also assist in containing ashes that might rise up to the flue otherwise.

Trays have handles so that they can be pushed in/pulled out of the cremator using the rake, avoiding the need for manual handling at very high temperatures. There is a need for careful risk assessment particularly when the tray has just been removed from the cremator. In older cremators where there is a 'lip' down from the door to the hearth, removing the tray can be quite difficult.

5.14 Cremation Process

The cremation process begins when the coffin is charged (loaded) into the cremator which will already have been brought to the appropriate temperature to comply with environmental legislation. Coffins are entered into the cremator chamber using a trolley. At certain times and in certain crematoria, infant coffins were placed in a tray and the tray was charged into the cremator from the trolley or placed manually by Operators. This is described in each individual chapter.

The conditions inside the cremator are largely controlled by computer software with some pre-set programmes available depending on the size of the coffin to be cremated, for example 'light' or 'heavy' mode. Operators can manually override these if they feel necessary as they observe the cremation taking place. This would include adjusting how much air comes into the cremator through air jets and which burners are used. The force of the air jets can be controlled by the Cremator Operator. In this Report this is referred to as 'manual intervention'.

Throughout the process, potentially harmful gases are taken through a secondary chamber to be cleansed before release into the environment.

Cremation is complete when the Operator observes that there is no longer any flicker of flame. Air is turned off and the remains are raked with a metal rake into a cooling chamber. In a double ended cremator this will be at the back of the cremator, and in a single ended one at the front. Cold air is passed through the remains and then they are removed from the cremator.

Any metals are removed with a magnet. After removal of ashes from the tray or the cremator these are reduced to finer particles. For adults this process is done in a machine called a 'cremulator' described below. The Investigation found that for infants this is sometimes done by hand with a pestle and mortar or just using the Operator's hands. Some Operators considered they would lose too much of the fine remains of an infant if they placed it in the cremulator.

A cremulator is a machine used to reduce remains to finer particles, after they have been removed from the cremator hearth and cooled, and before placing them in a box or an urn. Ashes are then placed inside a casket or urn if they are to be collected by the Funeral Director or Applicant, or placed into a suitable container if they are to be scattered or interred by staff.

An identification card follows the coffin throughout this process.

5.15 Cremation Process for Infants and Babies

Facultatieve Technologies provided the Investigation with information from their guidance manual in relation to cremating infants,

"For the cremation of infants, a heat resisting infant tray is available. The only rule for its use is: - will it hold the coffin without any overhanging? The coffin is first put on the tray and the two together carefully pushed into the cremator. Such a tray is necessary because the bones of small infants are very tiny and would be easily lost if the usual raking techniques were used. At the end of the cremation, the whole tray complete with cremated remains must be removed through the front charging door.

Usually infants are most conveniently cremated towards the end of the working day when the tray and coffin can be put into a hot cremator and left, with perhaps top air jets only on, to slowly and gently cremate.

Depending on the cause of death, some infants can be difficult to cremate, and if this is the case, then of course the burner may be used as necessary. Before withdrawal of the tray the cremator should be allowed to cool sufficiently to prevent the possibility of injury to the Operator, and it may be best to leave the cremated remains in the cremator until the following morning.

This advice has not fundamentally changed since the first cremators were built by Evans Universal from 1987 when they acquired the cremator manufacturers Dowson and Mason. Earlier records show that infant trays have been manufactured by Dowson and Mason since before 1963."

'Infant mode' was installed in 2013 to Facultatieve Technologies equipment in the crematoria investigated. Infant mode was thereafter automatically selected if details of the deceased entered into the computer showed that it was a child under five. Infant mode is a gentler programme in terms of levels of air. However, it was installed after the date of cremation of all the cases referred to this Investigation. Prior to the installation of infant mode, Cremator Operators could choose to vary the levels of turbulence within the cremator manually as described above.