Section 10 - Registration of Cremations
10.1 It is acknowledged that not every person who suffers the loss of a baby pre‑24 weeks wants to acknowledge that loss as a baby. This does not mean that later on the parent may not regret having missed taking part in the arrangements for laying that baby to rest. The arrangements made should be sensitive and respectful as well as being traceable in case the parents do later wish to know the details of what happened. Where parents have chosen not to get involved in laying their baby to rest, that choice must be respected. However, it is important that the resting place of the remains or ashes is recorded.
10.2 Regulation 18 of the 1935 Regulations provides as follows:
"Every Cremation Authority shall appoint a Registrar who shall keep a register of all cremations carried out by the Cremation Authority in Form G or Form GG as the case may be in the schedule hereto. He shall make the entries relating to each cremation immediately after the cremation has taken place, except, in the case of Form G, the entry in the last column, which he shall make as soon as the ashes of the deceased have been handed to the relatives or otherwise disposed of."
Form G prescribes the lay out of the register in which the cremation of all deceased infants and adults is recorded. The last column is headed "How Cremated Remains were disposed of". Form GG relates to the cremation of body parts.
10.3 The current practice is for the details of the cremation of stillborn babies to be recorded in that register. That practice may have developed because of the reference in Regulation 18 above to the keeping of "a register of all cremations carried out by the Cremation Authority". The later reference in the Regulation to the ashes of the "deceased" may be seen as inconsistent with that. However, as noted earlier in Section 7, counsel have expressed the view that, for the purposes of Regulation 18 at least, a stillborn child falls to be characterised as a "deceased". Counsel have also concluded that the obligation in Regulation 17 to give the ashes to the applicant for cremation applies also in the case of a stillborn child, even in the face of doubt about whether a formal application for the cremation of the stillborn child by a specified applicant is currently required. These are further examples of the problems caused by the drafting inelegancy of Regulation 16 and the apparent failure of the draftsman to address the need for consequential revisals or provisions.
10.4 In keeping with the Commission's recommendations in the preceding Section that an application form for the cremation of stillborn babies should be prescribed and that Regulation 17 should be amended to make it clear that the obligation to hand over the ashes to the applicant applies in the case of stillbirths also, the Commission now recommend the amendment of Regulation 18 to make clear the requirement to keep a record in the cremation register of all cremations of stillborn babies.
10.5 Although Regulation 18 requires the keeping of a register of "all cremations carried out by the "Cremation Authority", that provision has never been regarded as applying to the cremation of non‑viable babies. However, it is the practice of all crematoria to keep what they generally describe as a "non‑statutory register" of non‑viable baby cremations. In keeping with the view expressed at paragraph 10.4 above, the Commission consider that there should be a specific requirement imposed on Cremation Authorities to keep a register of cremations of all non‑viable baby cremations, that is of each individual cremated, whether cremated individually or along with others, in a form of register to be prescribed by Regulation.
10.6 It is the practice of Cremation Authorities to treat cremation registers as private and to permit only the applicant for cremation to inspect the relevant entry or receive an extract. That has resulted in the mother of the baby being refused access to the register where her husband or partner, as acknowledged father of the baby, made the application. In these circumstances the mother might see the entry in the company of the father, but strains in the relationship between mother and father may create circumstances where that cannot be arranged. It is the opinion of the Commission that it is not appropriate that a Cremation Authority should be entitled to refuse access to the mother in these circumstances. Indeed, it is not immediately obvious to the Commission why the cremation register should not be a public document, subject to redaction of relevant material to ensure compliance with data protection legislation. The 2008 Regulations applicable in England and Wales provide in Regulation 35 that the Cremation Authority "may issue to any person a copy of, or an extract from, the register or a document". The Commission recommend that the Scottish Government make an equivalent provision for cremation registers in Scotland, subject to any qualification necessary in the interests of the protection of privacy and to reflect data protection requirements.
10.7 The Commission recognise that, particularly in the case of shared cremations following termination of pregnancy, considerations of confidentiality and the protection of privacy will require the anonymisation of the identity of the mother as already provided for in the CMO and CNO Guidance of 19 July 2012. The Commission are satisfied that the appropriate place for retention of the record of the identity of the mother is the Health Board or the hospital where the termination or miscarriage occurred. Other healthcare providers should, of course, make equivalent arrangements. That applies in general to the recommendations of the Commission which relate to the work of Health Boards.
10.8 Health Boards and other healthcare providers should accordingly record information about applications for cremation in a way that ensures traceability of the identity of the baby by a person with a legitimate interest. To that end, each Health Board and healthcare provider should be required to maintain a register of authorisations in which the crematorium at which the baby was cremated is recorded.
10.9 It is the understanding of the Commission that procedures for recording the details of an application for cremation are not identical throughout NHS Scotland. Exactly how the application is recorded is a matter for each Health Board to determine. The mother may have been attended in either a maternity ward or a gynaecology ward. The most prevalent practice may be for the hospital mortuary to take responsibility for record‑keeping. If the Commission recommendation that non-viable baby cremations should be registered is accepted, then it would be appropriate for a working party, comprising hospital board representatives and a representative from the private healthcare sector, chaired by a Scottish Government official, to be appointed to review hospital record‑keeping practices, including those of private healthcare providers, in relation to baby and infant cremations with a view to identifying best practice to be applied throughout hospitals and other facilities in Scotland.
10.10 Many of the cases which have been the subject of the Mortonhall Investigation, and most of the submissions made by affected parents to this Commission, relate to events which occurred many years ago - in some instances over 30 years ago. Regulation 19 of the 1935 Regulations requires that all applications, certificates and other documents relating to any cremation, shall be carefully preserved by the Cremation Authority but also permits the Authority to destroy those documents (except the register of cremations or any part of such register) after the expiration of 15 years from the date of the cremation to which they relate, and after only 2 years if a photocopy is made and retained until the expiration of the said period of 15 years. The CMO and CNO Guidance of 19 July 2012 requires each Health Board to retain a record of the disposal (whether by cremation or burial) for a minimum of 30 years, with suggested good practice being retention for 50 years. Having regard to the vintage of the cases which have arisen, the Commission consider that all applications and other documents relating to the cremation of any baby should be preserved for a minimum of 50 years. The cremation register should of course be retained indefinitely, as should the Health Board register proposed in paragraph 10.8.
10.11 Requiring the retention of all documents in hard copy would impose unreasonable demands on Cremation Authorities and Health Boards. The modern equivalent of the photocopy permitted by Regulation 19 is computerised electronic recording of the document. The Commission see no reason in principle why it would not be sufficient for all documents, including the two registers mentioned above, to be kept and preserved in electronic format from the outset, subject to the outcome of the further work referred to in the next paragraph.
10.12 Cremation Authorities in general already use computer software record‑keeping systems. There are proprietary brand systems available for purchase. They can be customised to meet the requirements of the particular Authority. Those most commonly used by Cremation Authorities in Scotland are Epilog Sequel and Epilog Classic from Gower Software and BACAS by Clearsky Software. Others available include CAS (Crematorium / cemetery Administration System) by LAM Consulting Service and Epitaph (Edge IT Systems Ltd). At least one Cremation Authority has designed its own bespoke system. Applications and other forms continue to be handled in hard copy. Cremation Authorities appear to be generally satisfied with the record-keeping systems they have in place. Some comments have been made to the Commission expressing disappointment that the proprietary brand systems available have not been developed in a way that keeps pace with the modern requirements of Cremation Authorities for better management information. Before any change is made to the current requirement for hard copy or photocopy documents to be retained for at least 15 years, the Commission consider that it would be appropriate for the Scottish Government to form a working group drawn from Cremation Authorities and providers of software to crematoria to review the available facilities for electronic processing and storage of cremation documents and records, to consider and recommend appropriate improvements to achieve the objectives of the recommendations of the Commission, and to consider what additional features and facilities the software manufacturers should be invited to develop, all with a view to ensuring that the systems in use by Cremation Authorities are as efficient and secure as possible. The working group should also consider and advise on the appropriate requirements for back‑up storage systems.
10.13 As noted at paragraph 10.2 above, the existing cremation registers have a final column to record how ashes were disposed of. The Commission consider that that section should be in more specific terms and should be expanded to require a record to be made of whether they were collected, when and by whom, and if not, where they were scattered or interred and when. It is already common for the date of collection to be recorded, but the date of dispersal or interment at or by the crematorium is noted less frequently. Following collection, dispersal or interment, notice should be sent to the applicant by the Cremation Authority registrar confirming which occurred and, if dispersal or interment, where that was, along with an extract of the complete register entry. These requirements relating to notice and an extract should not apply to shared cremations. In the case of individual cremations of non-viable babies the cremation application form should provide for the applicant to request the notice and extract which would not otherwise be issued.
10.14 Some crematoria hold unclaimed and undisposed ashes years after the cremation. Others follow a policy of notifying the undecided applicant of the expiry of the period for which the ashes must be retained and the intention to scatter them if not claimed within a certain time, and as a result hold no historic ashes. This is dealt with at Section 9.13. Ashes should not be scattered or interred without appropriate notice of the intention to do so being given. The Commission consider it desirable that ashes should not be retained at the crematorium beyond 8 weeks unless the applicant so requests and the crematorium agrees. Where the applicant takes no action on receiving the notice, the Commission consider that the Cremation Authority should proceed to scatter or inter the ashes in accordance with the published policy intimated to the applicant in the cremation application form, which is a much more dignified and sensitive course than storage on a crematorium shelf.
10.15 A related problem is the accumulation in Funeral Directors' premises of unclaimed ashes that Funeral Directors have, at the request of the applicant client, uplifted from the crematorium. Some Funeral Directors hold unclaimed ashes going back many years, which tends to indicate a failure in the past to take clear instructions from their clients or to follow up instructions from previously indecisive clients. Of course there will be cases where the applicant has moved away without giving final instructions. This is not a problem that particularly relates to baby and infant cremations, but applies across the board. There is currently no provision whereby the Funeral Director can return the unclaimed ashes to the crematorium to be scattered or interred.
10.16 In order to give effect to the Commission's recommendation that the applicant for cremation should be able to authorise another such as the Funeral Director to collect the ashes, it will be necessary to either include such authorisation in the application form or devise a separate form. In either case, where the authorised representative is the Funeral Director, that form should include authorisation to the representative to return the ashes to the crematorium to be scattered or interred after an appropriate period, say two years, rather than store them indefinitely on a shelf as at present. The Funeral Director should give notice of the intention to return the ashes to the crematorium to be scattered or interred if no instructions are received within 14 days. In the absence of any response to the notice, the ashes would be returned to the original crematorium and an appropriate record entered in the register.
10.17 The idea that ashes should be scattered or buried after a certain period was broadly supported by responses to the Scottish Government Consultation in 2010 on the Burial and Review Group Report of 2007. That Consultation proposed a period of five years. This Commission consider that two years should be sufficient for appropriate action to be decided upon by the applicant. The Commission would expect the Cremation Authority to charge an appropriate fee.