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Report of the Infant Cremation Commission

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Section 2 - Recommendation

2.1 In legislating, devising policy, drafting information and guidance documents, and making arrangements for and conducting baby cremations, the baby and the interests of the family should be the central focus of attention. Parents and families should be given time and space to reach the correct decision for them. Arrangements should be in place at each hospital for ongoing contact with parents, particularly mothers, where that contact is necessary. (11.34)

2.2 The FBCA in the course of their "critical friend" visits to crematoria and the ICCM in their self-assessment questionnaire should address specifically the conduct of baby cremations and recovery of ashes. (5.6)

2.3 The "ashes" which the Cremation Authority is obliged to give into the charge of the person who applied for the cremation if he so desires should be defined in legislation as "all that is left in the cremator at the end of the cremation process and following the removal of any metal". That should not preclude the applicant from consenting in advance to the removal of metals, such as coffin nails and artificial joints, and their separate disposal, including as part of a metal recycling scheme. (7.21)

2.4 Cremation Authorities should review their practices immediately to ensure that, in dealing with the "ashes" following cremation, they proceed on the basis that the "ashes" are as defined in the foregoing recommendation. (7.21)

2.5 The Scottish Government should inform their counterparts in England and Wales and Northern Ireland about the changes in legislation in Scotland to enable them to consider clarification of the definition of "ashes" in identical terms. (7.23)

2.6 All Cremation Authorities at whose crematoria ashes are not always recovered should liaise with a crematorium or crematoria where ashes are recovered more regularly to share their experiences and information about their respective practices in order to identify changes in practice that should be introduced immediately with a view to increasing the prospects of recovering ashes. (8.13)

2.7 The Cremation Authorities which have rejected the use of trays for baby cremations on health and safety grounds should urgently consider, in light of the experience of others, the introduction of a local protocol to allow trays to be used in a way that will expose no one to undue risk. (8.14)

2.8 As an urgent interim measure, the ICCM and the Federation of Burial and Cremation Authorities (FBCA) should form a joint working group, which should also include two lay persons nominated by the Scottish Government and a representative of Facultatieve Industries Ltd, to consider the various practices and techniques currently employed in baby and infant cremation in full-scale cremators with a view to identifying those practices which best promote the prospect of recovery of ashes inclusive of baby remains and compiling Guidance for cremator operators. The working group should identify aspects of the cremation process which could conceivably be changed or improved and into which research ought to be commissioned by the Scottish Government. The working group's endeavours may be assisted by the fact that the majority of cremators in use in Scotland are produced by the same manufacturer, Facultatieve Technologies Ltd. (8.36)

2.9 Following completion of its work in 8 above, that working group should also consider the operating systems and other features of the cremators in use in Scotland and the practices currently employed with a view to identifying those aspects of the cremation process which could conceivably be changed or improved and into which research ought to be commissioned by the Scottish Government. That should include the practice of cremating babies at the end of the working day and overnight with the cremator operating and monitoring equipment switched off in a way that will cause no material environmental damage and satisfies SEPA that it should be permitted, with a view to increasing the prospects of recovering ashes. (8.36 and 8.39)

2.10 That working group should consider and advise whether, in light of experience in England and Ireland, and having regard to their efficiency in recovering ashes and the costs of installation and operation, the Scottish Government should commission research into the design and development of small-scale cremators. (8.40)

2.11 Each Cremation Authority should publish a policy statement, which should include a commitment to the sensitive treatment of the baby throughout and to respecting the wishes and needs of parents and families, and also set out the Authority's policy on ashes. To ensure clarity and consistency the ICCM and the FBCA should form a joint working group to develop a model policy statement reflecting best practice and allowing for local variation as appropriate. (8.44)

2.12 Funeral Directors and healthcare staff should include appropriate extracts from the Cremation Authority policy in information and guidance material given to families. (8.45)

2.13 The cremation of non-viable babies should be the subject of legislative regulation. (9.4)

2.14 Appropriate forms of application for cremation should be prescribed for each of three categories of cremation of babies and infants: (a) stillborn baby; (b) shared cremation of non-viable babies; and (c) individual cremation of a non-viable baby. (9.7, 9.23, 9.40, 9.42 and 9.44)

2.15 On each form of application for cremation there should be a clear warning, in terms appropriate to that form, that ashes may not be recovered, with provision for the applicant to acknowledge having read that warning. In the case of (b) shared cremations the warning should also state that any ashes recovered will either be scattered or interred, and specify which, at the crematorium. (9.10, 9.24, 9.40, 9.44)

2.16 In the context of their introduction of a new death certification process, the Scottish Government should review the currently prescribed content of cremation application Form A to ensure that only essential questions are incorporated into the new prescribed forms for (a) and (c). (9.16, 9.17, 9.24 and 9.44)

2.17 All forms of application prescribed should be designed by the Scottish Government with simplicity and clarity in mind, and all Cremation Authorities, Health Boards and other healthcare providers should be required to use the forms so prescribed and designed. (9.14 and 9.18)

2.18 The forms prescribed for (a) and (c) should contain a question requiring the applicant to specify how the ashes should be dealt with following the cremation. The options available should include retention for a defined period pending a final decision and also later extending the period of retention. (9.10, 9.24 and 9.44)

2.19 There should be provision in forms for (a) and (c), or on a separate form, for the applicant to authorise a representative, such as the Funeral Director, to collect the ashes. Where the Funeral Director is the person authorised, the form should also provide for the consent of the applicant to the Funeral Director returning the ashes to the crematorium in the event that the applicant does not collect them from the Funeral Director or give the Funeral Director instructions as to their disposal within a defined period. (9.11, 10.16)

2.20 There should be a specific legislative provision that the cremation should not be authorised to proceed if the application does not contain a clear direction as to how the ashes should be dealt with. (9.12)

2.21 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 has been given to the applicant. (9.13)

2.22 The forms prescribed for (a) and (c) should be completed and signed by the applicant personally, and the applicant's signature should be witnessed by a person who is not a member of the applicant's family and has no part in the arrangements for the cremation. (9.9, 9.10, 9.21 and 9.44)

2.23 It should be provided in legislation that those entitled to apply for cremation are: (i) in the case of (a) and (c) the nearest relative as defined by section 50 of the Human Tissue (Scotland) Act 2006; and (ii) in the case of (b) a person authorised by the Medical Director of a Health Board or other healthcare provider, and that an application presented by a different person should be accepted only on cause shown, which should be recorded in the register referred to below. (9.19, 9.20 and 9.42)

2.24 Senior Cremation Authority staff should be responsible for the scrutiny of all cremation application forms to satisfy themselves that the applicant is entitled to make the application as mother, nearest relative or on cause shown. There should be legislative provision that, if the Cremation Authority is not satisfied of the applicant's entitlement to apply, then authority for the cremation to proceed may be refused. (9.20)

2.25 Legislative provisions similar to those in Regulation 20 of the 2008 Regulations (England and Wales) should be introduced requiring appropriate certification of a stillbirth. (9.23)

2.26 The duty of Cremation Authorities as to the handling of ashes set out in Regulation 17 of the 1935 Regulations should be extended to apply to stillborn and non-viable babies. (9.25 and 9.44)

2.27 The provisions of Regulations 13 and 15A of the 1935 Regulations should be amended to apply to stillborn children. (9.26)

2.28 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. (9.32)

2.29 The Scottish Government should establish a working group comprising representatives of Health Boards, Funeral Directors, Cremation Authorities and miscarriage and child bereavement support organisations to consider evolving practices in the arrangement and conduct of shared cremations and to draw up a code of practice setting down minimum standards for shared cremations. (9.35)

2.30 The 2012 CMO and CNO Guidance on sensitive disposal should be reviewed and consideration should be given to revising it to take account of the comments made in Section 9. (9.36 to 9.39)

2.31 Annex C to the CMO and CNO Guidance should be revised to: (i) set out specifically the options for disposal explained to the mother above the space for her signature; (ii) state that ashes may not be recovered following cremation, and that any which are recovered will be scattered or buried at the crematorium; and (iii) state specifically that the standard procedure to be followed where the mother declines to discuss disposal is cremation along with others. (9.40 and 9.41)

2.32 The form of application for (b) should state that each mother has authorised the hospital to arrange a shared cremation, and that such authorisation is held in hospital records. (9.40, 10.7 to 10.10)

2.33 Each application for cremation of a non-viable baby should be accompanied by a medical certificate that the pregnancy loss occurred before 24 weeks and showed no signs of life. (9.42)

2.34 Cremation Authorities, Funeral Directors and Health Boards should review the contractual arrangements in place for shared cremations in light of ICCM Guidance contained in Section 6 to satisfy themselves that the respective responsibilities of the parties are so defined as to ensure that such cremations are carried out in a dignified and sensitive manner. (9.48)

2.35 Each Cremation Authority should be required by legislation to record the cremation of each deceased baby, stillborn baby and non-viable baby carried out by the Cremation Authority in a register or registers comprising prescribed columns, every one of which must be completed, including in particular, if the ashes were scattered or buried, the date and their location and, if collected, the date and by whom. (10.4 and 10.5)

2.36 The Cremation Register should be a public document and the Scottish Government should make legislative provision to that effect, subject to any restrictions necessary in the interest of privacy and to comply with data protection requirements. (10.6)

2.37 Each Health Board and other healthcare providers should maintain a register of authorisations in which the crematorium at which the baby was cremated is recorded in a way that will ensure traceability of the link between the baby and the ashes. (10.8)

2.38 Since responsibility for preserving important records relating to hospital-arranged cremations lies with the hospital or other healthcare provider, a working group comprising Health Board representatives and a representative from the private healthcare sector, chaired by a Scottish Government official, should be appointed by the Scottish Government to review hospital record-keeping practice in all hospitals and other healthcare providers in relation to documents relevant to baby and infant cremations with a view to identifying best practice to be applied across Scotland. (10.9)

2.39 The registers kept by Cremation Authorities, Health Boards and other healthcare providers should be preserved indefinitely. All forms of application, certificates and other official documents relating to a cremation should be preserved for a minimum of 50 years. (10.10 and 10.11)

2.40 The Scottish Government should 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 objects of the recommendations of this 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 systems. Having regard to the importance of keeping records secure, the working group should also consider and advise whether additional security measures are necessary and what back-up storage systems should be provided. (10.12)

2.41 In the case of deceased and stillborn babies, on completion of the entry by recording the ashes location or collection and the date thereof, the Cremation Authority Registrar should be required to send a notice to the applicant confirming which occurred and, if scattered or interred, where that was, along with an extract of the full register entry. In the case of the individual cremation of a non-viable baby the Registrar should issue such a notice and extract on request and the form of application should provide for such a request to be made. (10.13)

2.42 The ICCM and FBCA should review their respective technical training programmes in accordance with the requirements identified in Section 11. (11.12 to 11.16)

2.43 The FBCA should review all published Guidance documents to provide clear and fully informed guidance on the prospects of ashes being recovered based on knowledge of skeletal maturity rather than gestational age alone. (11.14)

2.44 The ICCM and FBCA should each introduce into their respective technical training programmes provision requiring the trainee technician and his mentor to attend and undertake, in the course of the training period and at a crematorium identified by the Institute or the Federation as excelling in the conduct of baby and infant cremations, a full day of training in the conduct of baby and infant cremation on two separate occasions. The trainee should be required to satisfy the examiner of his knowledge and understanding of the methods and techniques of the conduct of baby and infant cremations that enhance the prospects of recovering ashes. (11.16)

2.45 The ICCM should revise their management training scheme to include an element dealing with baby and infant cremation and to make that a compulsory part of study for the certificate in cremation management. (11.18)

2.46 The person with direct management responsibility for the operation of a crematorium should hold either a qualification in crematorium management or the FBCA certificate of competence to operate cremators or the ICCM intermediate certificate for crematorium technical operations. (11.19)

2.47 The FBCA should develop and introduce a training programme for continuing professional development. (11.20)

2.48 Mothers of non-viable babies and families of stillborn babies and very young deceased babies considering cremation should be advised where there is a possibility that ashes will not be recovered and reminded of the availability of the option of burial. (11.24 and 11.34)

2.49 All providers of training programmes for Funeral Directors should review them in the light of any legislative changes affecting the cremation of non-viable and stillborn babies and associated administrative procedures. (11.26)

2.50 All providers of training programmes for Funeral Directors should devise modules designed to give Funeral Directors an understanding of the cremation process, the effect it has and the prospects of recovering ashes in baby and infant cremations. (11.26)

2.51 Each Health Board, as part of continuously improving the quality of the service, should identify staff who will have responsibility for communicating with families about arrangements for disposal and liaising with Funeral Directors and crematoria and, as part of their continuous professional development, arrange for their further education and training in the necessary skills, including developing their communication skills, improving their understanding of the roles and responsibilities of colleagues, and providing an appreciation of the capabilities of modern cremation equipment and contemporary cremation practice and the effect of cremation on babies and infants. (11.35)

2.52 Health Boards should support staff in initiating the formation of local multi-disciplinary working groups comprising all with a role in dealing with the fate of the baby from hospital to crematorium to exchange information, knowledge, understanding, practice and experience, as well as promoting joint training programmes, with the aim of ensuring that all involved are familiar with the facilities available and practices followed locally. (11.36)

2.53 Health Boards, organisations providing advice, support and guidance to grieving families such as SANDS UK and the Miscarriage Association, Funeral Directors, the ICCM and FBCA, and any other body providing advice, support and guidance to grieving parents and families should review all publications dealing with cremation that are likely to be distributed to, or seen by, the public to ensure that they include accurate information that is expressed clearly and consistently, including in particular information about the prospects of recovering ashes, and that they contain a reminder of the availability of the option of burial. (11.37)

2.54 The Scottish Government should establish a working group comprising a representative from each Health Board and chaired by a Scottish Government official to review all Guidance documents and information leaflets in use over all Health Boards and private healthcare providers, including those compiled by, or in conjunction with, bodies such as SANDS and the Miscarriage Association, relating to management of pregnancy loss and infant bereavement and arranging disposal, with a view to ensuring consistency in that Guidance and information, and endeavouring to reduce the proliferation of different documents in use. (11.38)

2.55 Where invited to do so by affected parents, local councils / authorities should facilitate discussion for plans for local memorials. (12.7)

2.56 The Scottish Government should form a working group, to include representatives of affected parents and bereavement support groups to consider whether there should be a national memorial dedicated to the babies whose ashes were mishandled or mismanaged and, if so, the form that it should take. (12.8)

2.57 The Scottish Government should establish a National Committee with responsibility for baby and infant cremations. (13.4)

2.58 The National Committee should be chaired by a senior Scottish Government official. Its membership should be drawn from authorities, organisations, professions and other bodies with a role in baby and infant cremation, and should include representation from groups or organisations representing affected parents and providing bereavement support. (13.5)

2.59 The National Committee should have power to establish working groups of its membership, with co-opted members where appropriate, to consider specific recommendations from this report. Each of the working groups recommended above would be sub-groups of the National Committee. It would be open to the National Committee to assign to one working groups the tasks assigned in more than one recommendation, for example recommendations relating to technical matters and cremation technology could be dealt with by a professional sub-group reporting back to the full Committee. The National Committee should also have the power to establish working groups to consider other issues identified by the National Committee and to report back to the National Committee. (13.6)

2.60 The National Committee should report to Scottish Ministers annually on progress against the recommendations made by this Commission. That annual report should be published on the Scottish Government website. (13.7)

2.61 The National Committee should, as a priority, develop a national Code of Practice for baby and infant cremation. Such a Code, which should be informed by the recommendations of this Commission, should set down the minimum requirements for organisations to adhere to when supporting bereaved parents and families through the baby and infant cremation process, and seek to identify best practice to be followed by all bodies involved in baby and infant cremation. The Code of Practice should include general principles and guidance as well as specific technical and operational guidance for Cremation Authorities, Health Boards and Funeral Directors, with a view to achieving consistently high standards of practice among all with a role in baby and infant cremation. (13.8)

2.62 The Code of Practice should be a live document that is not only responsive to developments, but also instrumental in promoting improvements, in practice, technology, policy and legislation. The National Committee should therefore continue to monitor developments in all aspects of activity related to baby and infant cremation and review the Code annually to ensure that it reflects contemporary standards and best practice. (13.9)

2.63 Scottish Ministers should appoint an independent Inspector to monitor working practices and standards at crematoria, provide feedback to Cremation Authorities on how they are performing and to report to the Scottish Ministers as required. The independent Inspector should have authority to investigate complaints from the public about working practices and standards at crematoria, to adjudicate upon these complaints and report findings to the Scottish Ministers. The role of the Inspector should be extended to the funeral industry in respect of which there is no current provision for inspection. (13.10 and 13.11)

2.64 The Scottish Ministers should keep the cremation and funeral industries under review and should consider, in light of the reports of the National Committee and the independent Inspector, whether further regulation of either is required. (13.13)