‘Cab rank rule’ for burials to be reviewed

The Law Society Gazette reports that, in a judgment handed down on 2 February, the High Court granted an application by the Adath Yisroel Burial Society to seek a judicial review of the policy of the Senior Coroner for Inner North London, Mary Hassell, in applying the “cab rank” rule to burials and refusing to prioritise Jewish and Muslim burials.

Adath Yisroel had criticised “unnecessary bureaucratic delays” in releasing bodies for burial because, under Jewish (and Islamic) law, the deceased must be buried on the day of death or as soon as possible afterwards. Ms Hassell’s response had been that no death would be prioritised over any other because of the religion of the deceased or the family and that a “cab rank” rule was the fairest way in which to proceed.

According to the report, in granting the application Holman J said: “This claim clearly raises issues of considerable importance to the Jewish and Muslim communities” and added that any final decision of the judicial review must apply to the whole of England and Wales. [With thanks to Fr Jeff Leach for the lead.]

Cite this article as: Frank Cranmer, "‘Cab rank rule’ for burials to be reviewed" in Law & Religion UK, 3 February 2018, http://www.lawandreligionuk.com/2018/02/03/cab-rank-rule-for-burials-to-be-reviewed/

See also: Religion, law and the constitution: Coroners, Inquests and Religious Requirements-Where angels fear to tread.

 

One thought on “‘Cab rank rule’ for burials to be reviewed

  1. I assume that the vast majority of bodies are held on behalf of coroners by NHS hospital mortuaries.

    The NHS has legal duties to, (a) protect and promote physical and mental health and (b) provide accurate, balanced, trustworthy and well-researched information to all service users, in ways which meet varied intellectual and sensory needs. There is every reason why those explicit legal duties should be extended to coroners.

    The legal duty regarding information applies to any and every type of service provided by the NHS. Consequently, it must cover physical and mental health needs following bereavements but has any hospital dealt with that legal duty, e.g. in a way which addresses the issues raised by the Adath Yisroel Burial Society?

    A company providing websites for 4,500 GP surgeries with many thousands of NHS staff and 20,000,000 readers a month was providing false information on what the law requires when someone dies. The implicit psychology was potentially harmful, by usurping lawful rights and controls over bodies, rather than advancing the principle of empowerment in emotional and social crises. An important issue is why no-one in the NHS realised the information was false and the danger of potential harm.

    A major explanation must be a failure of universities, including university teaching hospitals, to educate and train about how to respond and not respond to emotional and social emergencies.

    In terms of the collection of bodies, that failure has continued since the children’s organs scandal, which first surfaced in 1998. About that, former Health Secretary the Rt. Hon. Stephen Dorrell MP said that Prof. Sir Ian Kennedy reported that, “The real scandal wasn’t that no-one knew. The real scandal was that everyone knew and no-one did anything about it”.

    Following deaths, some NHS hospitals have long given priority to the practices of religious minorities. Coroners need to catch up, judging by the experiences of the Adath Yisroel Burial Society.

    What cannot be justified is when hospitals and coroners ignore the urgent physical and mental health needs of all those facing devastating bereavements, whatever their beliefs, cultural practices or none. That is resulting in avoidable and profound torment. In some instances, what has been imposed has been a clear breach of long-established criminal law. For that, there is no maximum penalty and no time bar.

    Law and psychology around urgent needs were not addressed in a Department of Health’s public consultation, between the 12th January and 6th April 2015, on the collection of bodies from NHS hospitals. Teresa Evans (see other posts) and I, called in vain for that to be withdrawn on the basis that, (1) the wording encourages the use of criminal obstacles to prevent the collection of bodies, (2) the working party behind the consultation had not been provided with any details on relevant psychology or law and (3) some who were named as members of that working party, were not aware of their membership, which was bizarre to say the least.

    In view of the broader health and criminal issues around the collection of bodies, it would be essential in any related judicial review, for a relevant party to intervene, to ensure the NHS has to meet its legal protection duties, to all service users, regardless of religion, faith or none.

    For example, some NHS hospitals criminally prevent the collection of bodies, in case a coroner may need to assume jurisdiction. Such actions are at best, (1) legally invalid or ultra vires and unlawful but also (2) criminal and therefore punishable.

    Hospitals should at least do no harm and they must be stopped from acting like high-security prisons, tasked with tormenting the newly bereaved.

    The Rt. Rev. James Jones KBE received a knighthood following his tenacious work in connection with the Hillsborough disaster and many other humanitarian commitments. He chaired the Hillsborough Independent Panel which, “is widely recognised as the most successful inquiry of its type in recent times”.

    Last November, the House of Commons published his report entitled, ‘The Patronising Disposition of Unaccountable Power’. That “led to the quashing of the original inquests, fresh criminal investigations and the largest ever investigation into the police. He developed a ground-breaking new forum for engaging bereaved families, making them part of the criminal investigations process while not prejudicing outcomes”.

    Not being able to trace the title of that report at the time, I wrote to ask if he had “recommended that all public services should have a legal duty, to protect and promote, the emotional and social wellbeing, of all those newly bereaved, in connection with all deaths, expected and unexpected, from the natural through to disasters?”

    That, he said, would be shared with his team; and most of what follows here is taken from my letter to him. Issues raised above and below are of profound importance for a judicial review, because the NHS has knowingly and persistently failed to put its house in order, despite the debacle of the children’s organs scandal.

    Coroners exist to protect the ‘public interest’ but that notion lacks precision.

    Because that ‘generalised’ duty doesn’t define identifiable individuals and groups, what they experience can be oppressive in the extreme and a threat to their wellbeing and even their very survival.

    An example of a related abuse of power is the formal decision of now-retired coroner and medical doctor, Paul Knapman, to amputate hands from some of the victims of the Marchioness disaster.

    The law needs to be very explicit and detailed, about when it can be acceptable, to follow procedures which would exacerbate the distress of those who are most vulnerable, to emotional, family and other relationship breakdowns and even suicide.

    One rule of thumb could be that public servants must record, exactly how the ‘public interest’ could be harmed, if those newly bereaved were to be supported in pursuing their own solutions, for dealing with the immediate and subsequent impacts.

    There would then be a permanent record, justifying what was or was not done, when, where and why. Only brief details would be required to meet such a duty, so it doesn’t develop into a bureaucratic burden. Indeed, there would no need for any records, when the meeting of needs is given priority.

    That requires very clear rules, as to what could or would jeopardise potential prosecutions or more rarely, pose a threat to national security.

    Very soon after the Grenfell Tower disaster, I pasted a statement on the website of Community Care. That I felt compelled to write, having been shocked by the lack of what I regard as a robust emergency response, to the acute emotional and social needs of survivors, including witnesses.

    Crisis cum survival psychology demanded an immediate and intensive assessment of emotional, social and practical needs.

    The delays were shocking, in the first hours and days.

    There is currently the public consultation on the automatic removal of organs for transplants. Whilst every sensitive effort must be made to save lives, there is the danger that without necessary safeguards in the legislation to come, staff in NHS mortuaries will act in more oppressive and authoritarian ways. In terms of openness, transparency and honesty, a modification of the Hippocratic Oath may be necessary, if doctors move to accepting that psychological harm to some, is acceptable in order to help others.

    The trauma of collecting bodies from NHS hospitals has spiralled out of control since 1992 and to borrow from Prof, Sir Ian Kennedy, the real scandal isn’t that no-one knows. The real scandal is that everyone knows and no-one is doing anything about it.

    The Parliamentary & Health Service Ombudsman (PHSO) investigated one case in which there was no involvement of a coroner. The person collecting the body was subjected to circumstances, in which there was a very high risk of being killed (sic). Evidence of widespread breaches of criminal law was avoided by the PHSO and no advice was issued on how the NHS can and must protect the health and lawful rights, of those newly bereaved. The PHSO proved that it is unfit for purpose, as had been stated by the Patients Association.

    Hopefully, the intended judicial review will, whether directly or indirectly, go a long way in addressing issues around the collection of bodies from NHS hospitals.

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