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Report of the Infant Cremation Commission

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Section 9 - Regulation of Baby and Infant Cremation

General

9.1 The Commission have to consider the position of three distinct groups falling within the reference in their remit to "babies and infants". These are:

(a) A child born alive who dies before the age of two;

(b) a stillborn child defined in section 56 of the Registration of Births, Deaths and Marriages (Scotland) Act 1965 as "a child which has issued forth from its mother after the twenty‑fourth week of pregnancy and which did not at any time after being completely expelled from its mother breathe or show any other signs of life"; and

(c) A non‑viable baby as the result of miscarriage or termination, at less than 24 weeks' gestation.

Any baby born alive, regardless of age or length of gestation, falls into group (a).

9.2 Groups (a) and (b) are currently the subject of statutory regulation in which relevant formalities and forms are specified, albeit no separate application form is prescribed for stillborn babies. That deficiency should be rectified by prescribing an appropriate application form. There is currently no statutory provision at all relating to the cremation any pregnancy loss of less than 24 weeks' gestation delivered showing no signs of life, either individually or in a cremation shared with a number of non‑viable babies.

9.3 In 1988 the Cemeteries and Crematoria Manager of the City of Glasgow, who was also Cremation Authority Registrar, drew the attention of the Scottish Office to the difficulty that the existing statutory cremation forms could not be regarded as applying to the cremation of a non‑viable baby and that the only course open to hospital authorities was disposal at the hospital. He devised appropriate forms and sent copies with his letter. He referred to one family who had "suffered torment unduly because their chosen Crematorium refused cremation on the grounds that they could not (understandably) obtain a Certificate of Registration from the Registrar of Births". He suggested that the Scottish Office should permit Burial and Cremation Authorities to dispose of non‑viable babies using these forms with the proviso that the words "THIS IS NOT A STATUTORY DOCUMENT" were added. He also proposed a non‑statutory register for such cremations. A reply was not received until April 1989, 11 months after the original letter. Although the reply indicated that the legal office of the Scottish Home and Health Department would research the matter and keep the Registrar fully informed, sadly nothing further came of it.

9.4 In the view of the Commission it is appropriate that there should be formal regulation of the cremation of all pregnancy losses of less than 24 weeks' gestation delivered showing no signs of life. In making that recommendation the Commission recognise that it is impracticable to regulate the treatment of all miscarried babies because many miscarriages are not reported or recorded. On the other hand there is a clear public interest in recording the delivery of such a non-viable baby where practicable, as is done when it occurs in hospital, and also recording the final laying to rest of the baby, including by cremation. To do the latter properly requires an application and registration process in which the anonymity of the mother and baby is protected. The Commission does not consider the fact that many miscarriages may be unreported to be a reason for not properly dealing with and registering those which are managed in hospital, at home and at the crematorium.

9.5 The definition of "crematorium" in section 2 of the Cremation Act 1902 is "any building fitted with appliances for burning human remains, and shall include everything incidental or ancillary thereoto". The Commission appreciate that there is some debate around the interpretation of the expression "human remains" which is reflected in the cautious use of the expression "sensitive disposal in a crematorium" in the CMO and CNO Guidance of 2012, setting the minimum standard of shared cremation for non-viable babies. However, the Commission consider that pregnancy losses of less than 24 weeks' gestation delivered showing no signs of life fall within that definition. Should there be continuing concern that that may not be so, the doubt should be resolved by amending the definition of "crematorium" to add after "human remains" the words "which for this purpose are regarded as including any pregnancy loss of less than 24 weeks' gestation delivered showing no signs of life".

9.6 At present many Cremation Authorities adapt the statutory cremation application Form A as best they can and have non-statutory registers of non-viable baby cremations. That is unsatisfactory. The Commission recommend that there should be an application form for the cremation of babies of less than 24 weeks' gestation. The appropriate form will differ depending upon whether the cremation is individual or a shared cremation. The Commission also consider that there should be a statutory register of cremations of non-viable babies, i.e. of each baby cremated whether individually or along with others; that is addressed in Section 10.

9.7 It follows that it is the view of the Commission that there should be separate forms of application for cremation for each of four situations: (i) any deceased person (including babies and infants), (ii) stillborn children, (iii) non-viable babies cremated along with others and (iv) non-viable babies individually cremated. Each of these situations is dealt with in turn.

Cremation of a Child Born Alive Who Dies Early in Life

9.8 In the case of a child born alive who dies early in life, the statutory formalities relating to registration of the death, application for cremation and authorisation of cremation are those which apply in the case of the cremation of any deceased person of whatever age[59]. Regulation 7 of the 1935 Regulations provides that application for cremation is to be made on Form A set out in the schedule. The general practice has developed of supplementing Form A by submitting additional details, either on a related form set out on the back of Form A, or on a separate form designed to be completed by the funeral director. The supplementary form contains details of the proposed funeral service and, importantly, what course of action is proposed in relation to the ashes.

9.9 This situation in which there are in effect two forms to be completed by different people has resulted in confusion as to who is responsible for the completion of Form A[60]. Clarity is also not assisted by the fact that each Cremation Authority is responsible for the final design of its Form A and the supplementary form and that they vary in appearance from Authority to Authority. The routine acceptance by crematorium staff of Form A completed by a funeral director rather than the nearest relative was a significant feature of inappropriate practice at Mortonhall.

9.10 Material presented to the Commission indicates that not infrequently the supplementary form relating to disposal of the ashes was not completed, or was inadequately or only partially completed, so that the wishes of the applicant for cremation were not made clear. The Commission consider that Form A should be revised to include a mandatory section dealing with the course of action proposed in relation to the ashes. That new section should require the applicant to state, by completing the appropriate box / boxes, which course they wish to follow, namely:

a) to be scattered or interred at/by the crematorium with family in attendance and noting the appointed date and time;

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

c) to be collected by the applicant / the applicant's duly authorised representative;

d) to be held at crematorium for up to 8 weeks to await collection or any instructions from the applicant / the applicant's duly authorised representative

If the applicant selects a) or b) above, the particular course to be followed, ie scattering or interment, should be specified. If either c) or d) is completed then a further acknowledgement would require to be given in the following terms:

e) I understand that, if after 8 weeks the ashes have not been collected or any instruction given as to their disposal or further retention, the ashes will automatically be scattered or interred at/by the crematorium.

There should be a clear statement on the cremation application form that in the case of very young children there may be no ashes and provision for an acknowledgement that that has been read by the applicant completing an initialling box.

9.11 Regulation 17 should be amended to enable the applicant's representative to deal with the ashes. Where the applicant authorises a representative to deal with the ashes, he should do so in writing either in the application form or on a separate form designed for that purpose.

9.12 There should be a legislative provision that authority should not be granted for the cremation to proceed if the section on ashes is not completed satisfactorily.

9.13 There should also be a provision that, where ashes are left in the care of the crematorium on the basis that they will be collected or to await further instructions within a defined period, the Cremation Authority may not scatter or inter them unless 14 days' notice of their intention to do so has been given to the applicant.

9.14 The Commission also considers that improving the layout of Form A would help ensure that all parts are completed accurately. The 2008 Regulations prescribe the equivalent form for England and Wales, Form 1, which is in a clearer and more user‑friendly format that is worthy of consideration as a style to follow in designing a new Scottish Form A.

9.15 However, if the questions in Form A remain as at present, with the addition of questions about ashes, the form will become very long and appear to be complex. Many people find the prospect of completing any official form daunting. The distress of bereavement will inevitably be increased by the sight of a multi-page form, with a large number of questions requiring answers containing details that in a number of cases have to be obtained from other sources or checked for accuracy. Some will already have been addressed in the process leading to the registration of the death. The registrar will have issued to the applicant the Form 14 certificate of registration of death. The submission of that form to the crematorium along with Form A is a prerequisite for a cremation to proceed. On the other hand, the cremation application form is routinely completed ahead of the issue of Form 14, and it is important that the final decision to apply for cremation is made after careful consideration. Since those questions are prescribed by the 1935 Regulations, any change will require legislation.

9.16 Conscious that any recommendations made about Form A would extend to the cremation of adults which is beyond the Commission's remit, the Commission nevertheless consider it appropriate to recommend review of the questions prescribed by the 1935 Regulations. Among the questions that the Commission have in mind are those relating to the time, date and place of death, those relating to the nature of the death and any other reason why a further examination of the deceased may be desirable, and details of the doctors who have attended the deceased. Those responsible for new forms should ask themselves whether the particular question is necessary. The bereaved whose loss is a baby may experience intense distress that should be alleviated in any way possible. The Commission have noted at Section 7.22 above, the metal recycling schemes which they commend, and suggest the incorporation into the Form, of a consent by the applicant to the extraction and recycling of all metals after the cremation, in accordance with the ICCM scheme. For those who do not wish to participate in the recycling scheme, the form should provide for extraction and burial at the crematorium.

9.17 The Commission note that the Scottish Government is already working with a number of organisations to implement a new death certification system in Scotland by bringing the Certification of Death (Scotland) Act 2011 fully into force by April 2015. That process will inevitably lead to the revision of certain forms currently in use, including the certificate of registration of death (Form 14) which is issued by the registrar and is a necessary prerequisite for a funeral to proceed. As part of that work, the existing Forms B and C and the statutory role of the crematorium medical referee will be abolished. Since the Commission are not in a position to assess fully the impact that these changes might have on the content of Form A, it is recommended that the Scottish Government take account of the foregoing comments and in the context of their work on death certification consider amending the format and content of Form A.

9.18 A replacement for Form A should be designed by the Scottish Government with simplicity and clarity in mind. All Cremation Authorities should be required to use the prescribed form without amendment other than to include the name of the issuing Cremation Authority. The form or a related form should provide for the applicant to authorise a representative, who could be the funeral director, to uplift the ashes from the crematorium.

9.19 The terms of Form A prescribed by the 1935 Regulations envisage that the applicant should be the nearest relative or the executor of the deceased. Applications by executors are not common since their appointment and involvement in the affairs of the deceased usually post-date the funeral. And, of course, the role of an executor is irrelevant to virtually all of the babies the Commission considered. A number of the questions relate to the possibility that others with an interest in the funeral arrangements, such as near relatives or an executor, may not have been advised of the application or may have objected to the proposed cremation. If the Scottish Government accept the recommendation of the Burial and Cremation Review Group that the person with the right to arrange the funeral of a deceased person should be the nearest relative as defined in existing legislation with appropriate amendments[61], they should legislate to that effect and Form A should make it clear that the applicant for cremation must be the nearest relative or, if not, must satisfy the Cremation Authority that application by that person is appropriate. In general, in cases of infant death, the nearest relative will be a parent.

9.20 It is clear from the MIR that there was little scrutiny of cremation application forms to check the propriety or entitlement of the applicant, and that a large number were completed by the funeral director. On the other hand, the examples of Form A seen by the Commission were generally completed by a close relative while the supplementary form was generally completed by the funeral director. The Commission recommend that crematorium staff considering applications for cremation should scrutinise particulars in the form relating to the applicant to ensure that application by that particular applicant is appropriate, and a senior member of the Cremation Authority staff should be responsible for that scrutiny. Otherwise that cremation should not be authorised to proceed. There should be a legislative provision to that effect. The funeral director should neither sign the form nor witness the signature. In assisting the applicant to complete the form the funeral director has the important task of ensuring that the applicant gives careful consideration to each individual question, including the questions relating to disposal of ashes, and reminding the applicant of the option of burial.

9.21 Since it has been suggested to the Commission that in some cases the signature on Form A was not that of the applicant, and in light of similar findings in the MIR, the Commission consider that the signature of the applicant should, as at present, be witnessed. However, that witness should not be a person involved in the funeral arrangements, such as the funeral director, and should be someone independent of the family.

Cremation of Stillborn Babies

9.22 The legislative provision relating to the cremation of stillborn babies, Regulation 16 of the 1935 Regulations, is in somewhat unsatisfactory terms, largely because it appears to have been included as an afterthought and then later amended without attention being given to appropriate revisal of other provisions. However, in the Registration of Birth, Deaths and Marriages (Scotland) Act 1965 section 21(1) provides as follows:

"Except so far as otherwise provided by this section or as may be prescribed, the provisions of this Part of this Act shall, so far as applicable, apply to stillbirths in like manner as they apply to births of children born alive."

The approach is to treat both in the same way, except so far as it is necessary to distinguish them. The Commission propose that that course should be followed in relation to application for and registration of the cremation of stillborn children.

9.23 So far as the application for, and authorisation of, cremation is concerned, the present position is that the Medical Referee[62] may authorise the cremation of the remains of a stillborn child where the stillbirth has been registered and certified[63].There is no specific reference to a form of application for cremation and the Cremation Authorities generally adapt Form A accordingly. The position has been different in England since 2008. The Commission consider that, in line with the position there, a form of application for cremation of a stillborn child should be prescribed by legislation. The differences in such a case from the circumstances of the death of a person born alive are reflected in the form in use in England and Wales. The applicant should be the nearest relative as in the case of a deceased baby. Provisions similar to those of Regulation 20 of the 2008 Regulations should be introduced requiring appropriate certification of a stillbirth[64].

9.24 The form of application should include the same questions and language in relation to ashes as proposed for Form A above. As in the case of the form proposed for application for cremation of a deceased baby or infant, we recommend that the Scottish Government should take account of the earlier comments about the content of Form A in the context of its work on death certification, and produces a form in appropriate terms.

9.25 One of the consequences of the unsatisfactory drafting of Regulation 16 is that it is not clear whether the provisions of Regulation 17 about the delivery of ashes to the applicant apply to stillborn babies, since Regulation 17 refers specifically to deceased persons. The relevant law is discussed in counsel's opinion at Annex D. While more than one view is possible, counsel prefer the construction that applies the provisions of Regulation 17 to the cremation of a stillborn child. In the 2008 Regulations applicable in England and Wales a clear distinction is made between a "deceased person" and a "stillborn child", and the provisions about ashes apply to all cremations, leaving no doubt that ashes of a stillborn baby are to be given to the applicant. Rather than leave the law in the state of uncertainty that counsel's discussion reflects, the Commission agree with the view of counsel that it is "highly desirable that the Regulations should be amended to clarify this eminently debatable point", and so recommends.

9.26 At page 40 of the MIR Dame Elish highlights another gap in current legislation relating to stillborn babies: the Cremation (Scotland) Amendment Regulations 2003 amended the 1935 Regulations to make provision for the cremation of body parts - see Regulation 15A. "Body parts" are defined as "any organs and tissue removed from a deceased person during the course of a post-mortem examination". Since there are occasions when post-mortems on stillborn babies take place, and these occasions would not be covered by that provision, the Commission recommend the amendment of the foregoing definition of "body parts" to include reference to a stillborn baby. In addition, the provisions that apply to the cremation of babies following death outwith Scotland should apply to stillbirths occurring outwith Scotland. The current provisions in Regulation 13 of the 1935 Regulations do not apply to stillborn babies.

Shared Cremation of Non-Viable Babies

9.27 On the introduction in England and Wales of the 2008 Regulations, guidance issued by the Ministry of Justice recognised that remains under 24 weeks' gestation are not subject to the provisions of legislation, but advised that most crematoria would be prepared to cremate such remains at their discretion. This was confirmation of a statement made by the Home Office in 2003[65]. Various crematoria have been cremating non-viable babies for some time before that. On 19 July 2012 the Chief Medical Officer (CMO) for Scotland and the Chief Nursing Officer (CNO) for Scotland issued Guidance to all Health Boards in Scotland (CMO and CNO Guidance) on the disposal of pregnancy losses up to and including 23 weeks and 6 days gestation (see Annex K) outlining the minimum standard expected for disposal by Health Boards of all pregnancy losses undertaken by the Board as shared cremation, referred to in the Guidance as "collective disposal in a crematorium". In circumstances where shared cremation is not available, disposal by collective burial is acceptable. In either situation "collective" is defined as a number of pregnancy losses, in individual sealed containers, collected together into a larger sealed container.

9.28 The Guidance was designed to bring to an end the practice of disposal of early pregnancy loss by way of incineration or clinical waste. A mother has six weeks to decide whether to proceed in this way or opt for an alternative arrangement. This is one of the four matters on which recommendations having a bearing on the work of this Commission were made by the Burial and Cremation Review Group, referred to earlier at 3.10 and 3.11. The Group recommended that the Scottish Government should revise and issue an update of the Guidance circular following consultation with interested bodies such as the Royal College of Nurses (RCN), the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists (RCOG) and the Institute of Cemetery and Crematorium Management (ICCM). The July 2012 Guidance marked a very major improvement in practice and illustrates just how quickly developments can occur in this particularly sensitive field.

9.29 Whilst this was a change in procedure that was already well underway in Scotland before the Guidance was developed or issued, driven largely by changing cultural and societal expectations, it was by no means complete in all areas or institutions. Full implementation of the Guidance introduces a consistent and improved default service of greater respect and dignity, that might be of some comfort to those distressed at the time, or perhaps later in life. At a minimum, a respectful shared cremation or burial option is instead available to all who experience such a loss, unless they wish to make their own private arrangements.

9.30 The practice of shared cremation of non-viable babies has been followed for a number of decades. In spite of initial reluctance on the part of the general membership of both of the main professional organisations, the FBCA and the ICCM, to embrace the practice, over recent years Cremation Authorities have carried out shared cremations of non‑viable babies with increasing frequency. This is usually in terms of an arrangement between a hospital or Health Board and a Cremation Authority. At crematoria where no such arrangement is in place, it is likely that all non‑viable babies are cremated individually. An important factor in the minds of those initially resistant to shared cremation is the requirement in the FBCA Code of Cremation Practice that each coffin given into the care of the Cremation Authority shall be cremated separately, which in practice means that every stillborn baby or deceased baby cremated is cremated individually.

9.31 The ICCM Guidance is that shared cremation is an appropriate course to follow in respect of non-viable babies, but that parents should always have the choice of individual cremation. The FBCA recommend that individual cremation should be available but accept that shared cremation is an appropriate course for Cremation Authorities to follow where the numbers of non-viable babies are so high as to make individual cremation unattainable in every instance and the parents choose shared cremation.

9.32 The Commission consider it important that the choice of individual cremation should always be available, as is in fact the case in practice, since all crematoria in Scotland carry out individual cremation of non-viable babies. However that choice is illusory where the Health Board arranges a shared cremation but not an individual one. All Health Boards provide initial advice about arranging a private cremation regardless of the gestational age of the baby. All Health Boards with access to a crematorium also currently arrange, at no expense to parents, a private individual cremation for non-viable babies and still-born babies. This is commendable. However, the minimum gestational age at which this is available can differ, and practice about offering the service, or leaving the mother to ask, varies. These differences in provision are difficult to explain in a universal service. NHS Scotland should review the provision of the facility of hospital arranged cremation throughout Scotland with a view to making consistent provision in all Health Boards.

9.33 Since there is a choice for all and no‑one is compelled to accept a shared cremation, since that course is willingly followed by many, and since in our discussions with health professionals and those involved in the process of cremation no‑one expressed any objection to the practice, the Commission consider shared cremation to be an acceptable way to lay non‑viable babies to rest.

9.34 Statistical information gathered by the FBCA records a significant rise in the number of non-viable babies cremated, individually or along with others, between 2012 and 2013, the first full year in which the CMO and CNO Guidance has applied, although the exact increase is not clear as explained at paragraph 5.10. The latter figure[66] is as good an indication as any of the minimum number likely in future. Quite apart from there being a doubt about whether the existing resources could cope if all non-viable babies had to be cremated individually, the cost benefits of shared cremations are obvious. For all who wish individual cremation, that facility is available at all crematoria. It may be that individual cremation for all non-viable babies should be seen as the long-term aim and indeed may already be achievable at crematoria dealing with only a few cases per annum. However, at crematoria where hundreds, and even thousands, are dealt with each year, that may not be possible.

9.35 Although the Commission consider shared cremation is appropriate for non-viable babies, the recent substantial increase in numbers presented for shared cremation has highlighted in the minds of members of the Commission the need to be vigilant that standards are not compromised. Large numbers of non-viable babies, up to 150 in separate, small, sealed containers, may be presented in one large sealed container or coffin. Some may have been held at the hospital mortuary for a period of months. These features of shared cremation may be seen by some as sacrificing a degree of respect, dignity and sensitivity for the sake of expediency. The Commission recommend that a working group should be established, comprising representatives of Health Boards, Funeral Directors, Cremation Authorities, and child bereavement support organisations, to consider the developing practices in the arrangement and conduct of shared cremations and to draw up a code of practice setting minimum standards for shared cremations.

Suggested Revisals to CMO and CNO Guidance Letter

9.36 The 2012 CMO and CNO Guidance letter contains a suggested form of application for shared cremation of non‑viable babies. The Commission have reviewed the terms of the form and has had access to the returns made by Health Boards in responding to an audit questionnaire issued by the Scottish Government in August 2013, a year after the Guidance was issued (available as Annex L). Inevitably, reviewing the Guidance and its implementation against the background of the particular issues that gave rise to the formation of this Commission has led to the identification of a number of minor improvements that could be made to the Guidance.

9.37 The expression "collective" cremation featured in the Guidance is not universally approved. A more generally accepted description already widely used is "shared" cremation.

9.38 The Scottish Government has already acknowledged that one aspect of the Guidance will require to be revised in the light of the queries and investigations that Dame Elish and the Commission have conducted. This aspect is contained within Annex B, page 4, of the Guidance, in a section providing advice to Health Boards on patient leaflet questions and answers. In response to the patient query ' Will there be any ashes?', the current suggested response is that 'There are no cremated remains (ashes) from this process'. The 'Note' accompanying this reads 'It is important to state that ashes will not be available. [This is because of the absence of formed bone].' This suggested response and note are now both acknowledged to be incorrect in the light of more recent findings, and require to be updated. A more accurate response could be 'There will be no individual ashes available for collection from this process.' and the 'Note' could instead read 'Where any shared / collective ashes remain after the cremation, they will be respectfully scattered or buried within the crematorium's designated area / Garden of Remembrance'.

9.39 Slight confusion has been caused by a clinical footnote to the Annex A flow chart, page 3 of the Guidance. This footnote currently reads 'All tissue from a pregnancy loss including miscarriage, termination of pregnancy and ectopic pregnancy. Placentae where the fetus is separately identified and greater than 12 weeks gestation are not included.' It has been suggested that it would be of benefit to the medical profession if this note was more clearly worded. An alternative could be 'All tissue from a pregnancy loss including miscarriage, termination of pregnancy and ectopic pregnancy. Where the fetus is separately identifiable from the placenta, the placenta is not included.'

Shared Cremation Application Form

9.40 There are also certain aspects of the forms of application for shared cremation, suggested in the Guidance, that merit further consideration. Although the form that a mother signs to authorise the hospital to arrange for sensitive disposal "in accordance with the procedures outlined" contains reference to other choices open to the patient, these options are set out after the point in the form where the mother has given or declined authorisation to the hospital. In addition the "procedures outlined" are not specified. These could be a shared cremation or burial or individual cremation or burial. The form should be revised to set out the procedures and options before the space for the mother's signature. That form should also state clearly that there may be no ashes following cremation and that any recovered will be scattered or buried at the crematorium.

9.41 For mothers who decline to discuss disposal at all, there is provision for them to state that that is their position and to state further that they "recognise that the hospital will proceed according to their standard procedure". Again that "standard procedure" is not specified. Bearing in mind the stresses and strains faced by mothers experiencing pregnancy loss, and the potential for confusion in their minds at the time when they are being asked to make these decisions, which is reflected in the uncertainty about what happened at the time now displayed by a number who have made submissions to the Commission, the procedure that will be followed should be specified in writing for the avoidance of doubt and with a view to ensuring that a fully informed decision is made.

9.42 The application is made by the duly authorised member of the hospital staff and includes a declaration that the applicant, ie the hospital staff member, holds certification in respect of each that the pregnancy loss occurred before 24 weeks and showed no signs of life. However, there is no reference to the mother having authorised the hospital to follow this procedure. The Commission consider that there should be a clear statement to that effect in the form of application for cremation to assure the Cremation Authority that that is so.

9.43 The CMO, CNO and Health Boards are invited to have regard to these observations when drafting any further guidance on this subject.

Individual Cremation of Non-Viable Babies

9.44 For an individual cremation of a non-viable baby a different form is required, not least because ashes may be recovered and given to the applicant. The applicant should be the mother. The applicant should select, as in cremations of deceased and stillborn, the course of action to be followed in respect of the ashes and as in the case of stillborn babies, dealt with at 9.25, the legislative provision relating to the delivery of ashes should be applied specifically to non-viable babies. This is an essential safeguard of the integrity of the scheme for regulation. However, it has to be recognised that, in cases where the pregnancy loss ultimately occurs outwith a hospital or other healthcare facility, certification may present problems, particularly where the pregnancy has not been the subject of prior medical record.

Crematoria Arrangements with Health Boards

9.45 Of the 27 crematoria in Scotland, 14 were, by the time of the August 2013 audit, already working with Health Boards to provide either NHS or privately arranged individual cremations. Of these at least 9 provide, or have agreed to provide when asked, the new shared cremation service. These are Masonhill (Ayrshire), Mortonhall (Edinburgh), Kirkcaldy, Falkirk, Hazlehead (Aberdeen) , Craigton (Glasgow), Perth, South Lanarkshire and Roucan Loch (Dumfries).

9.46 To date the arrangements made between crematoria and hospitals governing the provision of cremation services have been largely oral and fairly loose. The one written agreement seen by the Commission is simply a quotation which provides that, for the period of one year, with the option to extend for 2 × one year periods, a total of 3 years, up to two sealed boxes (700 mm × 400 mm) will be uplifted from the Mortuary Department of the hospital for transfer to the crematorium for collective cremation, that the boxes will contain approximately 40 pregnancy losses / non-viable babies individually sealed in non‑chlorinated plastic containers, that a second uplift may on occasions be required and that there will be no charge made. Beyond that, some matters which might be covered in a document of terms and conditions were addressed in an exchange of emails which consisted largely of assurances that matters arising would be discussed and agreed, that the parties would act reasonably and timeously in certain circumstances and that the parties would not interfere with each other's business.

9.47 In their published document "The Sensitive Disposal of Fetal Remains", which contains policy and guidance for burial and Cremation Authorities and Companies, the ICCM state that it is important that the burial and/or Cremation Authority or company agree a workable arrangement with the hospital and that both parties acknowledge and abide by their responsibilities. That seems to happen at present but without the detailed terms and conditions of the arrangement being incorporated into a formal agreement. The ICCM provide a sample agreement which contains even less detail than the one referred to above but does include at the end the statement - "terms and conditions can be included on the reverse of the agreement". The Guidance then proceeds to give examples of such terms and conditions, the most important of which relate to the information hospitals should give to bereaved parents about cremation and whether ashes will be recovered, how the fact that that information has been conveyed will be recorded, the obligation of the hospital to confirm that it has obtained consent to cremation, the maintenance of a register, the retention of documentation and the form in which application for cremation will be made. It is also suggested that the hospital should provide certification by the doctor, nurse or midwife who delivered the baby that it was of a gestation less than 24 weeks and showed no signs of life. Other conditions would relate to the wrappings used for each non-viable baby and the container in which they were presented to the crematorium. The agreement can of course be drawn to include arrangements for individual cremation and for burial.

9.49 It was noted that Funeral Directors are regularly involved in conveying babies from a hospital to a crematorium, and that their arrangements with Health Boards are also fairly loose.

9.50 Now is an opportune time for Cremation Authorities, Funeral Directors and Health Boards to review the contractual arrangements in place for shared cremations in light of the ICCM Guidance above, to satisfy themselves that the respective responsibilities of the parties to the contract are so defined as to ensure that such cremations are carried out in a dignified and sensitive manner. They should also further review the contractual arrangements in light of any Code of Practice drafted in accordance with recommendation at paragraph 9.35 above.