Contents

Chapter 6
Statutory duties in determining the cause of death

The duty to determine cause of death

Extend the power to determine the cause of death to nurses

6.2Currently, unless a death is referred to the coroner, only a registered medical doctor may determine the cause of death—either the attending doctor or an alternative doctor. We have considered whether nurses should also be authorised to determine the cause of death in certain circumstances. The main driver for this option is that it would enable the MCCD to be completed sooner, for example, where the attending doctor is unavailable but a nurse familiar with the patient’s medical history is available. This would reduce delay for the family in beginning the funeral preparations. There is particular demand for this option when older people die in rest homes or hospice care, in which case, a palliative care nurse may be the most familiar with the medical situation and best able to complete the MCCD. In such circumstances, the interests of efficiency indicate that we should examine whether authorisation to determine the cause of death should extend beyond doctors.

6.3In Issues Paper 23, we asked whether the cause of death information in the MCCD should be able to be completed by nurse practitioners in circumstances where they have been the deceased’s lead carer. To be registered as a nurse practitioner, a registered nurse must have a minimum of four years’ experience in a specific area of practice and have successfully completed a clinically focused master’s degree programme approved by the Nurses Council.47 Some nurse practitioners operate independently, while others operate in collaboration with other healthcare professionals. Their skills include diagnosing and prescribing. The role of nurse practitioner was introduced in New Zealand in 2001, and there are now approximately 150 nurse practitioners practising in a variety of roles including emergency departments of rural hospitals, palliative care, aged care facilities, rural medical practices and as first responders under the PRIME programme.48

6.4Two-thirds of submitters supported that proposal in Issues Paper 23. The reasons given included that nurse practitioners would be equally competent at diagnosing the cause of death, if not more competent than junior doctors who are often given the task of determining the cause of death in hospitals; and it would decrease delays in obtaining the MCCD (particularly in rural areas and aged care facilities) and so would decrease delays in releasing the body to the family. Many of those in favour of this proposal cautioned that nurse practitioners would require training and supervision for this role.

6.5Some doctors rejected the proposal on the basis that, unlike doctors, nurses are not trained to diagnose and so would not be competent to take a scientific approach to the diagnosis of death. While they conceded the efficiency aspects of this proposal, they feared that it would be counter-productive to efforts to increase the accuracy of cause of death determinations.

6.6We consider that the task of certifying death should be extended to some nurses if there are sufficient controls around competency, support and experience.49 More specifically, the limits under which nurses can certify death should be carefully prescribed to achieve a balance of:

Recommendation

R9The statute should enable some nurses to certify death in some circumstances.

Examination of the bodyTop

6.7Currently, it is not uncommon for a doctor to certify the cause of death without viewing or examining the body after death. The law only requires the doctor to view or examine the body in the following two circumstances:

6.8Consequently, if a body is to be buried, the doctor who attended the deceased during the preceding illness may complete the death certification documentation without viewing or examining the body. The doctor must be satisfied that the death was a natural consequence of illness, so he or she is only likely to complete the documentation without viewing the body when the death was an expected event due to the natural progression of an illness.

6.9There is obviously a difference between examining the body and seeing and identifying the body. Neither the Act nor the Regulations define either concept. As a minimum, an examination would require the removal of all clothing and a thorough visual examination of the body. However, several doctors told us in submissions that a visual examination would rarely detect useful information without an autopsy and toxicology report. While merely viewing the body would rarely provide information as to the cause of death, it would enable the doctor to verify the fact of death and (if the doctor knew the patient before death) the identity of the body.

6.10We are told that, despite the current requirement to examine the body in particular circumstances, it is common for general practitioners to merely view the deceased person’s face and not to remove clothing. The reasons why general practitioners do not conduct a proper examination may be because they are already satisfied as to the cause of death, they do not consider it likely that an examination will reveal useful information or they consider that a request to examine the body may distress the bereaved family.

6.11We consider that the current distinction between burial and cremation in relation to the rules for examining the body after death are anomalous and should be removed. While it is true that cremation completely destroys the body (including the DNA), which makes it vital to accurately determine the identity of the body and the cause of death before cremation, the position in relation to disposal by burial is only slightly different. Once a body has been buried, disinterment is a significant step, and any evidence within the body of the cause of death is likely to be limited by embalming or decomposition. However, that leaves open the question of whether the requirement to examine the deceased body should be extended to all deaths or whether it should be removed for disposals by cremation and left to the discretion of the certifying doctor.

6.12In Issues Paper 23 we asked whether a doctor should be required to physically examine the body of every deceased person before completing the MCCD, irrespective of whether the deceased is to be buried or cremated. Submitters were divided on the question. Those who supported the proposal thought that it would be useful to verify the fact of death and to identify the deceased and any suspicious injuries. The New Zealand Police and coroners supported the proposal.

6.13Some submitters said that they supported the suggestion in principle but that, in practice, it would result in significant problems because it would cause further delays in obtaining the MCCD. We encountered very strong submissions from the funeral industry about significant frustration they commonly experience in obtaining MCCDs from doctors due to other time pressures on doctors and lack of cover after hours. This is a particular issue in, but is not confined to, rural areas. It means there are delays for the family in making funeral preparations, and this raises particular cultural problems when the deceased person is Māori. Funeral directors submitted in favour of a clear statutory timeframe within which the doctor is required to complete the MCCD.53

6.14Doctors and medical professional organisations were divided on the issue of a physical examination. Some thought that compulsory examination would be useful, particularly if the doctor had not recently attended the patient or the death was unexpected. Others pointed out the limitations of a physical examination. The Medical Council of New Zealand said that the only benefit was in identifying the body. It said that viewing the body may alert a doctor to suspicious injuries but that, in the majority of cases, it would not assist the doctor to determine the cause of death in the absence of an autopsy and full toxicology report, which is impractical and unwarranted in many cases. They pointed out that the benefits of examining the body are reduced where the certifying doctor is not the patient’s usual doctor so does not have a baseline from which to determine what is normal for that patient.

6.15We are mindful that any statutory obligation to examine or even to view the deceased body will incur costs and cause delay in many cases due to the need for the doctor to travel to the body. It may also cause the grieving family some distress. Therefore, imposing such a requirement must be shown to produce a significant benefit.

6.16The three potential purposes of viewing or examining the body after death are:

6.17In relation to the first purpose, we are told that this is not a problem in practice. Tens of thousands of people die every year, and cases of the misidentification of death are extremely rare, certainly not enough to justify viewing or examining the body in every case.

6.18In relation to identifying the body, if the certifying doctor attended the deceased person prior to death, viewing the body after death may enable identification to be confirmed. However, a statutory requirement on the certifying doctor to view the body may have limited benefit in relation to verifying identity for a number of reasons:

6.19In relation to determining the cause of death, while it may seem sensible to the layperson to examine every body after death to check for signs of wrongful death that require investigation by a coroner or the Police, the vast majority of deaths result from natural causes. In these cases, the cause of death is not usually informed by visually examining the body. Rather, doctors examine the medical history and the symptoms suffered by the person prior to death. If that does not present a conclusive cause, an autopsy and toxicology report may be required.

6.20The question for us is whether the cost, delay and distress likely caused by a mandatory examination of the deceased body in every case is justified by the potential risk that an apparently natural death may in fact have been wrongful. On balance, we do not think that it is. The law requires the certifying doctor to be satisfied as to the cause of death.54 Doctors are highly skilled practitioners, and it should therefore be left for them to determine whether they need to view or examine the body to determine the cause of death. Any questions as to the adequacy of these decisions by doctors should be dealt with through the education of doctors.55

6.21The same considerations arise in relation to the alternative (or non-attending) doctor certifying the cause of death. In theory, it could also be left to the alternative doctor to determine whether he or she can only be satisfied as to the identity of the person or the cause of death by viewing or examining the body. In most cases, the cause of death will be determined in the same way—by examining the medical history and the person’s symptoms before death. However, there are two important differences. First, the doctor is relying upon medical notes rather than his or her personal knowledge and memory. Second, the lack of connection between the doctor and the deceased person may increase the risk of misidentifying the body. A statutory requirement for the alternative doctor to at least view the body would help compensate for that lack of connection and provide some assurance around the process. For that reason, we consider that requirement should continue.

6.22Currently, one of the purposes of examination prior to cremation is to identify whether the body contains a pacemaker or other biomechanical aid that may pose a danger during the cremation process. We proposed in Chapter 5 that a question to that effect becomes a compulsory part of the online process for determining the cause of death, regardless of whether the body is examined. Accordingly, we do not consider it necessary for the statute to impose an additional requirement to view or examine a body before cremation.

Recommendation

R10The statute should not require the attending doctor to view the body prior to determining the cause of death. It should be up to the doctor to determine whether an examination or viewing of the body is required. However, the statute should require that an alternative doctor who is certifying the cause of death views the body prior to making that determination.

Clarify the degree of certainty requiredTop

6.23Currently doctors are often very unclear as to the degree of certainty required by them when determining the cause of death. This is a tricky issue because absolute certainty is often impossible. In many cases, signs of the actual cause of death are only discoverable after a full toxicology report and autopsy. Those procedures are expensive, take time and cannot be justified in the majority of deaths. This is particularly true where the deceased person was elderly and had a variety of medical problems.

6.24When death is an expected event, the attending doctor will be familiar with the range of health issues the patient was suffering from. The doctor will use that information, together with descriptions of the circumstances immediately before death, to form an opinion as to the cause of death. While the doctor will be able to accurately describe the antecedent and underlying causes of death, the complication that actually caused the death will often be a “best guess”.

6.25When a person dies after an illness but death was not an expected event at that time, the doctor will need to determine from the circumstances whether the cause of death is sufficiently clear or whether it should be referred to the coroner for further investigation. There is obviously much scope for discretion in this situation. Many factors will influence the doctor’s decision, including matters such as time pressures, which may lead to error.

6.26We have considered two possible reforms to give greater guidance to doctors when determining the cause of death. First, we considered whether the legislation should specify the degree of certainty required, such as the balance of probabilities. Second, we considered whether the statute should permit an “unknown” cause of death in some circumstances. For example, in some cases, a determination of “death natural but cause unknown” could be entered. As we describe below, we have reached the view that neither of these options present a good solution.

6.27Currently the Act does not provide any guidance as to the level of certainty required when determining the cause of death. The MCCD asks the doctor to certify that the cause of death given is true “to the best of my knowledge and belief and that no relevant detail has been omitted”. However, the Cremation Regulations 1973 place a duty on medical referees to not permit cremation unless the referee is satisfied that the cause of death has been definitely ascertained. When a doctor is unsure whether to complete the MCCD or refer the death to the coroner, the doctor is encouraged to discuss the death with the on-call coroner at the National Initial Investigations Office.56 While this system undoubtedly provides doctors with support, some doctors are frustrated that different coroners provide different advice as to the level of certainty required about the cause of death.

6.28In Issues Paper 23, we asked whether the requirement to definitely ascertain the cause of death should be amended to reflect the actual level of certainty attainable without an autopsy. All 17 submissions that answered this question agreed that the requirement must be amended. It was variously described as “ludicrous” and “risible”. However, communication from the insurance industry told us that they did not support a proposal to remove the exact cause of death from the certification process. Life insurers rely on the cause of death information in the MCCD to determine whether the insured person had disclosed all material information when applying for the policy.

6.29It appears that much of the current confusion arises from the requirement in the Regulations requiring the cause of death to be definitively determined. We agree with submitters that provision should be removed because it is impossible to comply with.

6.30However, we do not think that the statute should permit the cause of death to be determined on the balance of probabilities nor for it to be determined as “unknown”. In both cases, there is a risk that these allowances would become the default position or would send a message to doctors that determining the actual cause of death is not important. This would not be helpful to efforts to increase the accuracy of causes of death. Instead, the statutory requirement should be “to the best of the doctor’s knowledge or belief”, which reflects the current wording in the MCCD.

6.31We consider that doctors should receive more training in determining the cause of death, particularly around factors that should be taken into account when determining whether the doctor is sufficiently satisfied as to the cause. We consider that our proposal in Chapter 8 to have an education function for cause of death reviewers will serve this purpose.

Recommendation

R11The statute should require the doctor certifying the cause of death to determine that cause to the best of the doctor’s knowledge and belief.

Clarify the timeframe within which the cause of death must be determinedTop

6.32Currently the Act requires that the attending doctor must give the doctor’s certificate (which determines the cause of death) immediately after learning of the death if the doctor is satisfied that the death was a natural consequence of illness. Funeral directors have asked us to consider clarifying the timeframe within which the doctor must determine the cause of death. This request arises from their significant frustration at times, outlined above, in getting doctors to determine the cause of death so that the body can be moved and funeral preparations can begin. Funeral directors consider that doctors would give this task greater priority if the statute stated that they must do it within, say, 24 hours of learning of the death.

6.33We consider that the term “immediately” does not provide a practical timeframe. The Oxford Dictionary defines it as “at once, instantly”. That envisages that a doctor will stop whatever they are doing and determine the cause of death straight away. A doctor may learn of a death when woken from sleep, while attending to another patient, while on holiday or while attending a significant family event. We do not think that it is reasonable to expect a doctor to determine the cause of death immediately. This is particularly so, given that there is currently no formal method of payment for the MCCD and most doctors do it without payment.

6.34Also, we do not consider it practical to impose a set number of hours within which the cause of death must be determined. Any number of hours would be arbitrary and would not take into account the particular circumstances of the death or the certifying doctor. In addition, a set number of hours would mean that the deaths of any people for whom the cause of death has not been determined within that period would be referred to the coroner. This is likely to unnecessarily increase the number of deaths referred to the coroner.

6.35Consequently, an element of vagueness to accommodate differing circumstances is unavoidable. We consider that the timeframe should be “within 24 hours of learning of the death or as soon after that as is reasonably practicable”. This phrase both establishes the expectation that the cause of death should be certified within 24 hours but also allows some elasticity to accommodate the particular circumstances of the certifying doctor. What is “reasonably practicable” will depend upon the particular circumstances in question, in particular, the extent to which the doctor could reasonably have given the task greater priority.

6.36We note that we are also making a number of proposals that should result in the quicker release of bodies to a funeral director, including:

Recommendation

R12The statute should state that the timeframe within which the attending doctor must determine the cause of death is “within 24 hours of learning of the death or as soon after that as is reasonably practicable”.

Clarify the circumstances when alternative doctor may certify the cause of deathTop

6.37Currently, a doctor who did not attend the deceased person during their illness (an alternative doctor) may certify the cause of death only if:

6.38We note that “unavailable” in the first condition means “dead, unknown, missing, of unsound mind, or unable to act by virtue of a medical condition”.58 It does not cover circumstances where the attending doctor is not working, on holiday or temporarily working in another location. In those circumstances, an alternative doctor may only certify the cause of death within 24 hours of death if the attending doctor is unlikely to be able to do it within that timeframe.

6.39We have received submissions that this provision is confusing and causes unnecessary delay. In hospitals, an alternative doctor could certify the cause of death immediately, but if the attending doctor will return within 24 hours, it is thought that they should wait for him or her.

6.40We consider that this provision should be amended to make it clearer and more practical. We agree that it should generally be the attending doctor who certifies the cause of death because that doctor is likely to be most familiar with the deceased person’s medical conditions and therefore in the best position to determine the cause of death. However, that policy must be balanced against the strong interest in not delaying funeral preparations.

6.41An alternative doctor should be able to certify the cause of death if the attending doctor is unavailable. We do not consider that the law should require doctors to interrupt their time outside work to certify death if there is another doctor available who could do it with sufficient certainty. Consequently, “unavailable” should have its usual meaning of “not free to do something; otherwise occupied”59 rather than the restricted meaning currently in section 2 of the Act.

Recommendation

R13The statute should provide that a doctor who did not attend the deceased person during their illness may certify the cause of death if the attending doctor is unavailable. “Unavailable” should be given its usual meaning, which is broader than that currently in the Act.

Payment for doctors to determine the cause of deathTop

6.42In Chapter 3 we mentioned that there is currently no formal method of payment to doctors for completing the MCCD, although occasionally, general practitioners charge the family of the deceased person for completing it and usually charge them for completing the Cremation Certificate. We concluded that the lack of a consistent and coherent payment system may inhibit high standards of practice in relation to death certification.

6.43While the amount or priority of funding for death certification, as a policy proposal, is beyond our terms of reference, in this section we discuss possible sources of funding because the source of funding can affect the quality and efficiency of policy outcomes. It may also have an effect on independence, engagement, accountability and transparency.60 However, we merely describe potential funding sources and provide some analysis. We do not make any recommendation on this matter.

6.44As with all statutory duties, certifying the cause of death has a cost for the person carrying out that task. Those costs involve the time taken to certify death, travel costs and the opportunity cost in forgoing other earning work. The current lack of a system for payments to doctors means that the doctors themselves bear this cost unless they choose to pass it on. We have examined four options for funding death certification to determine whether reform is needed.

Status quo—the costs fall on doctors

6.45The current system has a number of advantages. It is simple and it involves no administrative costs. It requires no direct expenditure of public funds (although some doctors will be indirectly funded by public money in other ways). Also, it fits within the “care” ethos of the doctor/patient relationship.

6.46It also has some disadvantages. First, it is inequitable. The costs are falling upon people (doctors) who are receiving no benefit from the service. Also, where a doctor does charge a family to complete the MCCD, those families are disadvantaged against the families of patients of doctors that do not. This is not something a patient will usually contemplate when choosing a doctor.

6.47Second, a lack of payment may affect the standards of accuracy achieved in determining the cause of death. The lack of payment sends a confusing message about whether the service is provided for the benefit of the patient’s family or for the benefit of the public. These two potential purposes may provide the doctor with a conflict, for example, about whether to include a cause of death that may be embarrassing to the family. Also, it provides little motivation on the doctor to upskill by undertaking training.

A publicly funded service

6.48Funding or part funding by the government (that is, from the general tax base) may be appropriate given this activity has significant benefits to the public as a whole.61 As we describe in Chapter 3, while there are some private purposes of death certification, the main purposes (establishing the fact of death, informing the development of health policy and programmes and identifying deaths that require further investigation) are directed at the public generally.

6.49Public funding would send a message both that certifying death is a public service, rather than a service to the deceased or the family; and that if you are being paid for it, you should achieve high standards of accuracy. This would motivate accountability and engagement in training.

6.50The disadvantage of public funding is that it places an additional financial burden on the Crown. It is interesting to note that, in 2009, the Act was amended to make it clear that the Crown is not liable for the costs of death certification.62 We have not been able to find any evidence of the policy that motivated this amendment.

6.51If death certification was to be funded by the Crown, that funding could be delivered either via the population-based funding to Public Health Organisations (a small top-up to the funding received for each enrolled patient), or doctors who are not otherwise funded for death certification could invoice the Ministry of Health for each death certificate completed.

A levy on the funeral industry

6.52It may be possible to levy the funeral industry for the costs of determining the cause of death. In Chapter 18, we recommend that that all people who provide funeral services for a fee must be registered. In theory, a levy could be added to the registration fee.

6.53This mechanism would have the advantage of reducing reliance on general public funds. However, it could be logistically difficult. In order to collect a funeral industry levy, the funeral business would need to be registered and declare the number of funerals it conducts. In Chapter 18, we recommended instead that people who conduct funeral services for a fee must be registered so as to control the type of people entering the industry. It would be administratively difficult to allocate funerals to particular funeral directors when it is common for more than one to be involved.

A fee paid by the family of the deceased person

6.54A further option is to collect a fee to fund the death certification process directly from the family of the deceased person. This could occur when death is notified to the Registrar-General. Currently, when a body is to be cremated, the family pay a fee to the doctor for completing the Cremation Certificate, though this is not a statutory requirement. That fee is collected by the funeral director and paid to the doctor directly.

6.55A significant disadvantage of collecting a fee from the family at the time of notification of death is that it may provide a disincentive to notify the death. Any funding method that discourages the notification of a death is to be avoided. In theory, that disincentive could be mitigated to some extent if notification of a death (and collection of the fee) was required before disposal of the body is permitted. This is the system in Scotland. However, notification prior to disposal would impose unacceptable delays upon funeral preparations. Also, we consider there would still be a risk of avoiding notification and disposing of the body in breach of any legislative requirement.

Discussion

6.56In Issues Paper 23 we suggested that the question of how certification is funded should be addressed if new expectations of accuracy and timeliness are being imposed. We also pointed out the anomaly that doctors are paid for Cremation Certificates but not for asked who should bear the cost of death certification.

6.57Two-thirds of the 19 submitters who addressed this question thought that the government should bear the cost of death certification. This included all but one of the eight submissions from medical professionals or organisations. The reasons they gave included that the primary beneficiary of death certification is society; that it would be a financial burden on many families; and that some families may attempt to hide the death and not register it if the costs fell on them.

6.58The main advantage of funding death certification through either an industry levy or a “user-pays” fee is that it reduces reliance on taxation as a source of funding. However, such user-pays systems are usually implemented where there is scope for making efficiency gains, for example, by regulating demand for a service and decreasing the cost of supplying that service by ensuring that it is only provided when it is really needed. There appears to be no scope for such efficiency gains in this area because the policy objective is that all deaths are certified.

6.59Another justification for user-pays systems of funding is that it can provide a motivation to keep costs under control because the people paying the fee will be motivated to monitor the performance of the regulator. This justification does not apply where the fee payers are the public in general rather than an industry body because, as a group, they are less able to monitor the performance of the regulator.

47Nursing Council of New Zealand “Nurse practitioner” <www.nursingcouncil.org.nz/Education/Nurse-practitioner>.
48The PRIME (Primary Response In Medical Emergencies) programme is administered by St John. It uses the skills of specially trained rural GPs and/or rural nurses to support the St John ambulance service in areas where response times may be longer than usual or where more specialised medical skills would assist the patient’s condition. <www.stjohn.org.nz/What-we-do/Community-programmes/Partnered-programmes/PRIME>.
49We note that the government has undertaken substantial work in this area during the course of this review and that the Health Practitioners (Replacement of Statutory Reference to Medical Practitioners) Bill was introduced to Parliament on 25 June 2015. Amongst other things, clause 9 of that Bill extends the power to determine the cause of deaths to nurse practitioners.
50Burial and Cremation Act, s 46B(8)(c).
51Cremation Regulations, sch 1, form AB.
52Schedule 1, form B.
53We further discuss the timing issues of MCCDs below.
54In the next section, we discuss the degree of certainty required in determining the cause of death.
55In Chapter 8, we discuss the need for better education of doctors in determining the cause of death.
56We described the National Initial Investigations Office further in Chapter 2.
57Burial and Cremation Act, s 46B(3).
58Burial and Cremation Act, s 2(1).
59Oxford English Dictionary “Definition of ‘unavailable’ in English” Oxford Dictionaries <www.oxforddictionaries.com/definition/english>.
60Regulatory institutions and practices (New Zealand Productivity Commission, 2014) at 323.
61Regulatory institutions and practices (New Zealand Productivity Commission, 2014) at 332.
62Burial and Cremation Act, s 46D.