Recommendation R(99)3 on the harmonisation of medico-legal autopsy rules - memorantum

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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

EXPLANATORY MEMORANDUM
to Recommendation Rec(1999)3 on the harmonisation of medico-legal autopsy rules

(Adopted by the Committee of Ministers on 2 February 1999, at the 658th meeting of the Ministers’ Deputies)

Introduction

Investigations into cases of suspicious death are currently conducted under established national or local laws and practices. The need to develop international standards to ensure that investigations into cases of suspicious death are conducted under the best possible conditions is now becoming more and more important. Much groundwork has already been carried out on this subject by various international bodies. For example the "Sevilla Working Party on the Harmonisation and Standardisation of Forensic Medicine" and the European Council of Legal Medicine have already carried out detailed work on the subject of the harmonisation of autopsy rules and a code of good autopsy practice has been produced. Interpol’s "Disaster Victim Identification Guide" has now been submitted to 176 countries as guidance for the handling of disasters. The work of the Minnesota Lawyers’ International Human Rights Committee led to the adoption of "Principles on the effective prevention and investigation of extra-legal, arbitrary and summary executions" by the United Nations Committee on Crime Prevention and Control in 1991. The combined evidence of this research underlines the merit in harmonised procedures for carrying out autopsies and the reporting thereof at a European level. These standards should include rules on autopsies for all cases falling outside those carried out for clinical purposes. In addition, it should be noted that in a number of cases, such as accidents, where the death is due to non-criminal causes, autopsy reports are still necessary and need to be transferred without any undue delay (if the death occurred abroad).

An autopsy is a detailed examination of a corpse carried out by one or more medico-legal experts in order to ascertain the principal cause and manner of death and any other ancillary or contributory abnormalities and, in certain cases, to establish the identity of the deceased.

It consists of a number of operations carried out on the corpse in order to examine the various organs and tissues of which it is composed and thereby ascertain the cause and manner of death.

However, in many cases, it is difficult to understand autopsy reports drawn up abroad due to the different approaches used in various countries.

Furthermore, due to the difficulties of identifying victims of mass disasters and victims of illegal executions and of murders committed by authoritarian regimes, there is a growing need to establish, beyond any doubt, the cause of death in all suspicious cases.

All Council of Europe member states carry out autopsies, but not all have specific and appropriate legislation regulating this issue. In certain states, the most relevant aspects of an autopsy are covered by criminal law, while in other states rules relating to autopsy procedures are contained in specific medico-legal legislation.

The Parliamentary Assembly

The Parliamentary Assembly of the Council of Europe has been involved in questions relating to autopsies. In 1990, it adopted a report on the harmonisation of autopsy rules, [1] which contains very comprehensive and detailed information on the practices of autopsies in Europe and beyond. This report may be considered the basis for the Council of Europe action in this field.

Following this report, the Parliamentary Assembly adopted Recommendation 1159 (1991) on the harmonisation of autopsy rules [2]. In this recommendation, the Assembly "considers it is a necessary practice for autopsies to be carried out in all Council of Europe member states to establish the cause of death for medico-legal or other reasons or to establish the identity of the deceased". The Assembly also notes that "as the mobility of the population increases throughout Europe and throughout the world, the adoption of uniform guidelines on the way autopsy reports are to be established becomes imperative". This is particularly true in cases of mass disasters, whether natural or not, involving persons of different nationalities, for example air accidents, illegal executions or murders perpetrated by authoritarian regimes, accidental death abroad or murder cases where the victim and the perpetuator are of different nationalities.

The Assembly further states that "internationally recognised and applied autopsy rules would therefore contribute to the fight to protect human rights, especially such human rights as the prohibition of torture and of ill-treatment, and the right to life". Reference should be made in this context to both the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as "the European Convention on Human Rights") and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Finally, the Assembly recommends that the Committee of Ministers :

"i. promote the adoption of harmonised and internationally recognised rules on the way autopsies are to be carried out and the adoption of a standardised model protocol for autopsies ;

ii. support the proposal that states worldwide formally accept and implement the obligation to carry out autopsies in all cases of suspicious death ;

iii. invite member states to apply the Interpol guidelines on disaster victim identification ;

iv. invite those Council of Europe member states which have not yet done so to ratify the Council of Europe Agreement on the Transfer of Corpses ;v. invite the five [3] Council of Europe member states which have not yet done so to ratify the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ;

vi. draw up international rules to facilitate the formalities in subparagraphs 6.i, ii, iii, iv and v from the administrative (transport, crossing of borders, police, etc.) or legal points of view".

The Committee of Ministers

Following this recommendation of the Parliamentary Assembly, the Committee of Ministers set up the ad hoc committee of experts to study the harmonisation of autopsy rules (CAHRA) which, in co-operation with other relevant Committees of the Council of Europe, such as the Steering Committee on Bioethics (CDBI), the European Committee on Crime Problems (CDPC), the European Health Committee (CDSP) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), was entrusted with the task of "studying the harmonisation of autopsy rules in cases of suspicious death from the legal, ethical and medical points of view and making a list of the aspects which may form the subject of such harmonisation, with a view to drawing up minimum rules at international level for the performance of an autopsy in cases falling outside the autopsy carried out for medical purposes".

In 1996, the CAHRA held its first meeting and adopted an opinion for the attention of the Committee of Ministers, in which, taking into account the above-mentioned Parliamentary Assembly recommendation, it outlined the importance and utility of creating harmonised standard rules at European level for the carrying out of an autopsy. The CAHRA also noted that such harmonised standards might be of interest not only for the persons performing the autopsy itself, but also for government authorities, police, family of the deceased, judges and so on.

Therefore, the CAHRA concluded that it was advisable to draw up international rules to harmonise autopsy procedures and proposes to the Committee of Ministers to be entrusted with the task of preparing an international legal instrument containing guidelines on the harmonisation of medico-legal autopsies and reviewing periodically these standards (especially those subject to scientific progress).

In 1997, the Committee of Ministers revised the terms of reference of the CAHRA and decided to place this Committee under the supervision of the CDBI, thereby calling it "Working Party on the Harmonisation of Autopsy Rules" (CDBI-AR).

In particular, the Committee of Ministers decided that the CDBI-AR, taking into account Recommendation 1159 (1991) of the Parliamentary Assembly and other relevant international texts, including those of Interpol and of the United Nations, should prepare a legal instrument containing harmonised technical rules for medico-legal autopsies, taking into account the legal, ethical and medical aspects. This work would be carried out in co-operation with the CDPC, the CDSP and the CPT.

The relevance of the Convention for the Protection of Human Rights and Fundamental Freedoms

The European Convention on Human Rights applies to everyone with-in the jurisdiction of the states parties to it. On several occasions [4] the European Commission of Human Rights (hereinafter referred to as "the Commission") and the European Court of Human Rights (hereinafter referred to as "the Court") have examined in their work autopsy reports, in particular in cases concerning the violation of Articles 2 (right to life), 3 (prohibition of torture or inhuman or degrading treatment or punishment), 6 (right to a fair trial) and 14 (principle of non-discrimination).

In many cases and with reference to the above provisions, violation of human rights as contained in the European Convention on Human Rights have been identified by the Strasbourg organs. In doing so, both the Court and the Commission have made great use of autopsy reports, as often the only reliable evidence ("the only clear and undisputed facts" [5]) on which it is possible to base a decision. Therefore, it is of the utmost importance that autopsy rules and procedures be harmonised at European level.

Commentary on the principles and rules contained in the recommendation

General

Harmonised standards contained in an internationally acceptable legal instrument would ensure the credibility of medico-legal autopsy reports and be of great use for many reasons at international as well as at national level. These may, inter alia, include the following :

i. they would ensure that full and comprehensive autopsies be carried out ;

ii. they would ensure that autopsy reports be transferable and be made rapidly available in order to assist the judicial authorities and medico-legal experts in reducing the necessity for second autopsies when corpses are returned to their country of origin. For this reason all autopsy documents should be rapidly communicated to the competent authorities ;

iii. they would facilitate a second autopsy, should such be necessary ;

iv. they would facilitate the identification of risk factors to human life (in particular environmental, work-related and nutritional) through epidemiological studies at an international level based on the results of the harmonised autopsies ;

v. the autopsy report would become more internationally acceptable and more useful, being comparable, permitting statistical studies and thus preventive measures ;

vi. they would facilitate international co-operation in the fight against crime, whether organised or not, with a view to its prevention ;

vii. they would facilitate the identification of persons, be it in isolated cases or in mass disasters ;

vii. they would facilitate international co-operation and contribute to the elucidation of the causes of death during mass disasters and therefore in certain cases lead to preventive measures ;

ix. they would facilitate the settlement of claims of a civil nature (for example civil liability, cases of succession or insurance contracts) ;

x. in cases of death in custody an autopsy carried out by independent experts on the basis of an internationally acceptable legal instrument would be more credible and objective ;

xi. in cases of political killings an internationally acceptable legal instrument on autopsies would support and protect medico-legal experts and avoid pressure from the authorities to perform an inadequate autopsy or to give unjustified conclusions ;

xii. they would help to elucidate, and thus deter, arbitrary killings in authoritarian states ;

xiii. they would improve the level of scientific medico-legal co-operation within a European framework.

Such internationally recognised and applied autopsy rules are therefore essential in order to protect fundamental human rights, as well as civil and social rights. These rules would improve the efficiency of, the prevention of and fight against crime and violent death, and improve the good administration of justice.

As regards the nature of the legal instruments to be adopted, owing to the differences in national laws and practices, it has been decided that the form of a recommendation would be the most suitable instrument to set out guidelines in order to harmonise progressively autopsy rules at European level.

Implementation of the recommendation

The increasing movement of persons throughout Europe, the internationalisation of criminal activities, the need to properly investigate death in custody, political killings, arbitrary killings in an authoritarian State, the investigation of mass disasters, the need for investigation, description, documentation and sampling during medico-legal autopsies to follow primarily medical and scientific progress, are some of the reasons which are in favour of ensuring a proper implementation of the recommendation by states.

Moreover, ensuring the progressive harmonisation of medico-legal autopsy procedures at European level in the light of the text of the recommendation, constitutes an important contribution to the prevention of cases of torture and the protection of human rights.

The recommendation recognises that any follow-up up process should be cost-effective. Indeed, properly performed medico-legal autopsies would lead to a reduction in the number of medico-legal autopsies performed (as so-called "second autopsies" might not be necessary).

Therefore, the recommendation underlines the need for states :

i. to adopt as their internal standards the principles and rules contained in the recommendation ;

ii. to take or reinforce, as the case may be, all appropriate measures with a view to the progressive implementation of the principles and rules contained in the recommendation.

Moreover, as regards the performance of medico-legal autopsies, states should set up an effective quality control mechanism (quality assurance programmes) at national level. These programmes should ensure the proper performance of medico-legal autopsies and should include, inter alia, both internal and external quality control to forensic laboratories. Therefore, a provision is included in the text of the recommendation in order to encourage those states which have not yet done so to set up such quality assurance programmes, with a view to ensuring the proper implementation of the principles and rules contained in the recommendation.

Finally, the recommendation points out that it would be important if states informed the Secretary General of the Council of Europe upon his or her request on the measures taken to follow up the principles and rules contained in the recommendation.

Scope of the recommendation

The aim of the recommendation is to provide a number of useful guidelines to harmonise medico-legal autopsy procedures at European level. The recommendation contains in particular a set of both general principles and detailed rules which the governments of the member states of the Council of Europe are invited to consider when dealing with the legislation relating to medico-legal autopsies in their countries.

However, the principles and rules contained in the recommendation do not prevent states from providing more favourable provisions than those contained therein.

In all cases of obvious or suspected unnatural death, even where there is a delay between the causative event and the death, the recommendation requires medico-legal autopsies to be undertaken. In addition, the recommendation contains a list of specific cases in which medico-legal autopsies should be carried out, including suicide or suspected suicide.

In addition, as far as the term "death in custody" is concerned, it is meant to include all death of persons in a situation of deprivation of liberty, such as death in psychiatric hospitals, in prison or in a police station. Reference is also made in this context to death associated with military or police actions referring to cases when death occurs, inter alia, during political demonstrations or military conflicts.

Moreover, "other form of ill-treatment" refers to those ill-treatments which are significant in relation to the cause of death.

The text explains that in cases where death may be due to unnatural causes, the competent authority, accompanied by one or more medico-legal experts, should investigate the scene, examine the body and order an autopsy to be carried out.

The recommendation further underlines the need for medico-legal experts to be independent and impartial in the exercise of their functions.

It should also be noted that the recommendation does not deal with questions of embalming, as this procedure is not always linked to autopsy procedures. However, it should be underlined that, should such a procedure take place, it should be carried out after a medico-legal autopsy.

Principle I – Scene investigation

This Principle is divided in two sections, that is, "General principles" and "Examination of the body" and, the latter, is then divided in two sub-sections, that is, "Role of the police" and "Role of the medico-legal experts".

General principles

As a general principle, during the investigation of the scene in case of obvious or suspected unnatural death, the physician who first attended the dead body should report to the competent authorities, the latter deciding on an examination to be carried out by a medico-legal expert.

However, it should be noted that in cases of suspected criminal death (especially homicides or suspicious deaths), medico-legal experts should be informed without delay and, where appropriate, go to the place where the body is found. Medico-legal experts should decide whether or not to go there, taking into account the importance of their intervention and the eventual movement of the dead body to another place.

Indeed, it should be underlined that the presence of medico-legal experts in the place where the body was found is not always necessary, but should be evaluated according to the specific circumstances of the case.

Definition of a medico-legal expert

A medico-legal expert is a medical doctor who :

1. has fully completed a postgraduate training in legal medicine, preferably at university level and, where appropriate, is accredited as a medico-legal expert by the supervising authority in his or her country, and

2. who habitually practices that speciality.

Examination of the body

I. Role of the police

It is a responsibility of all police services throughout the world to investigate sudden and suspicious death. This applies in cases of single fatalities as well as to disaster situations when there is large scale loss of life, irrespective of whether death was due to environmental, technological or deliberate causes.

One aspect common to all those circumstances is the inevitable need for many police, technical, medical and other investigations to be involved with different but complementary functions, as all may contribute to determining criminal and civil liability.

Therefore, during the scene investigation, the recommendation requires the police to carry out important tasks, some of them under the control of the medico-legal expert, such as to protect the deceased’s hands and head with paper bag (see Principles I.b.1.a, b, c, d and e in the recommendation) and to follow their internal laws and regulations, as well as relevant international rules as regards their judicial police functions.

II. Role of the medico-legal expert

The recommendation underlines that in case of violent or suspected unnatural death, the physician who has certified the death should report without delay to the competent authorities, the latter deciding whether or not an additional examination should be carried out by a medico-legal expert (see definition of medico-legal expert above).

The medical examination of the body at the scene of death should be performed in accordance with Principles I.b.2.a, b, c, d, e, f and g in the recommendation. Owing to the very detailed indications contained in the text of the recommendation, no further explanations are needed.

Furthermore, care should be taken so that no evidence found on the scene is moved, destroyed or lost and the integrity of the scene is preserved, and all artifacts that could have caused the death should be seized for further examination.

However, it should be the task of all governments to promote co-operation between all parties involved during autopsy procedures.

Principle II – Autopsy physicians

Medico-legal autopsies should be performed, whenever possible, by two physicians, of whom at least one should be qualified in forensic pathology (see the definition of medico-legal expert above).

Principle III – Identification

In order to ensure that a proper identification of the body is achieved, reference should be made to the revised version of the Disaster Victim Identification Guide, adopted by Interpol in 1996. The purpose of this guide is to promulgate good practices from the time an accident involving death is reported, until final release of a body, and has proved to be helpful to both police and medico-legal experts. Whilst the document is based on a combination of acknowledged good practice and practical experience gained from previous incidents, it is recognised that the procedure may need to be adapted by states according to their internal law and practice.

Moreover, to enable the transmission of ante and post mortem data between and within countries, a series of forms have been devised by Interpol, which have been used successfully for many years. These forms have been used frequently following disasters in various parts of the world by police, medico-legal experts, dentists and jewellery experts, and have proven to be helpful when data is recorded, but far more valuable when the comparison and matching of data is undertaken. The fact that information arrives from various parts of the world in the same format and to the level of detail necessary is one of the widely accepted attributes of the system.

In addition, the following criteria could be considered in order to assist the identification of victims : visual recognition, personal effects, physical characteristics, dental examination, genetic identification, finger print and anthropological examination.

The recommendation contains an indication of the ways in which the above methods of recognition should be carried out in order to be useful for the purpose of the autopsy procedure (see Principles III.1, 2, 3, 4, 5, 6 and 7).

Principle IV – General considerations

In the part relating to the general consideration before starting a medico-legal autopsy, the recommendation underlines the importance of preserving the dignity of the deceased, of safeguarding the interests of his or her relatives and of having regard to the proportionality principle.

Therefore, the recommendation stresses that medico-legal autopsies and all related measures should be carried out in a manner consistent with medical ethics and preserving the dignity of the deceased. Where appropriate, the closest relatives should be given an opportunity to see the corpse.

The notion of dignified conditions should be considered in the light of the specific circumstances of the case. Indeed, if for instance the person has died as a consequence of an air crash, it is likely that the dead body will be in very bad condition and it will not always be possible for medico-legal experts to realise a perfect cosmetic reconstruction of the dead body.

As regards the minimum actions to be undertaken before beginning an autopsy, the importance of undressing the body and of examining and preserving carefully clothing and any personal object found on the body is underlined in the recommendation.

Medico-legal experts should then follow the procedure described in the recommendation before beginning the autopsy.

Moreover, it is considered particularly important to perform X-rays, in particular in cases of suspected child abuse or for identifying and localising foreign objects. However, there is no need to specify in the text of the recommendation the type of X-ray that should be performed, owing to the fact that this should be decided on a case by case situation.

Before beginning the autopsy, the medico-legal expert should ensure that all body orifices have been appropriately swabbed and, if necessary, look for gunshot residues in case of shooting fatalities and record fingerprints.

Finally, if the decedent was hospitalised prior to death, admission blood specimens and any X-rays as well as hospital records, which will have to be reviewed and summarised, should be obtained, where appropriate with the intervention of a court.

Principle V – Autopsy procedures

The recommendation deals in great detail with the question of autopsy procedures and it indicates that they should normally be divided into two stages, that is external and internal examination.

Moreover, the investigation, description, documentation and sampling during a medico-legal autopsy should primarily follow medical and scientific principles and simultaneously consider the judicial requirements and procedures.

External examination

The recommendation indicates all the elements that should be included in the description of the body following an external examination (see Principle V.I).

The recommendation stresses that during the external examination, all injuries should be described by shape, exact measurement, direction, edges, angles and location relative to anatomical landmarks. In addition, signs of vital reaction around wounds, foreign particles inside wounds and in their surroundings and secondary reactions, such as discolouration, healing and infections should also be described.

Moreover, where appropriate, specimens from wounds must be removed for further investigations, such as histology and histochemistry.

The recommendation points out that all signs of recent or old medical and surgical intervention and resuscitation must be described and that medical devices (such as endotracheal tubes, pacemakers, and so on) must not be removed from the body before the intervention of the medico-legal expert.

Finally, a decision has to be taken at the end of the external examination as to the strategies of investigation and the necessity of documentation by X-ray and other imaging procedures.

Internal examination

The recommendation requires that all three body cavities, that is, the head, thorax and abdomen, be opened and examined, and it also specifies that all organs be examined and sliced following established guidelines of pathological anatomy.

Moreover, the recommendation contains an appendix relating to specific procedures to be applied in the following cases : strangulation, drowning or water death, sexually-motivated murder, death from child abuse and neglect, infanticide or still-birth, sudden death, shooting fatalities, death caused by explosive devices, sharp force injuries, fire death, suspicion of intoxication and when the body is decomposed.

Once the medico-legal autopsy procedure has terminated, the recommendation underlines the need for the body to be released in a dignified condition. As indicated above, the notion of "dignified condition" is closely connected to the specific circumstances of the case.

Medico-legal experts should therefore endeavour to release the dead body at the end of the medico-legal autopsy procedure in a dignified condition, having regard in particular to the state of the dead body before starting the medico-legal autopsy procedure.

Principle VI – Autopsy report

The recommendation underlines that the autopsy report is of fundamental importance in medico-legal autopsies and agreed that it is as important as the autopsy itself, as the latter is of little value if the findings and opinions of the medico-legal expert are not communicated in a clear, accurate and permanent document. Therefore, the autopsy report should be an integral part of the autopsy procedure and receive as much attention as the physical procedures in the autopsy room. The report is a permanent record of the findings and is a vital legal document which may be referred to in legal proceedings many years later, when all recollections of the details of the case have been driven from the memory of the medico-legal expert by numerous subsequent autopsies.

The report must therefore be :

1. full, detailed and comprehensive ;

2. clear and lucid, being comprehensible not only to other doctors, but also to non-medical readers ;

3. written in a logical sequence, well-planned and easy to refer to in various sections, following a conventional pattern ;

4. in a legible, permanent form with hard paper copy if it is retained in electronic storage. The word "permanent" aims at underlining the need for autopsy reports to be kept forever.

As regards the format of the report and whether it should be made by filling in a printed form or written in the style of an essay, the recommendation notes that it should be written in a discursive "essay" style (and not stereotypical).

Moreover, the content of the autopsy report should be drafted in an objective manner.

The recommendation contains a detailed description of the content of the autopsy report (see Principle VI in the recommendation).

One of the most important parts of the autopsy report is the evaluation of the significance of the accumulated results by the medico-legal expert. After termination of the autopsy, evaluation is usually provisional because later findings and later knowledge of other circumstantial facts can necessitate alteration and modification. The recommendation notes that this is usually the most important part of any autopsy report and that it must be in a language easily understandable to non-medical readers. Medico-legal experts must interpret the overall findings so that the maximum information and opinion can be offered and that also questions that have not been specified by the authority must be addressed if this can be of significance. To neglect this duty and only give a bare factual report of physical findings is an evasion of responsibility by the expert.

Where several alternative possibilities for cause of death exist and the facts do not allow a clear differentiation between them, then the medico-legal expert should describe the alternatives and, if possible, rank them in order of probability.

Based on the final interpretation, the cause of death should be given in the International Classification of Disease (ICD) format. If this is not possible, then the cause should be certified as "Unascertained", rather than make some speculative and unsubstantiated proposals.

Where ancillary investigations, such as toxicology, DNA, virology, and so on, take a considerable time to be made available, it may advisable to issue an interim provisional report. However, the medico-legal expert must make it clear that no final opinion can be given until all information is available and that the provisional report may be modified, sometimes greatly, by the final report.

Furthermore, the delay in producing at least a provisional version of the autopsy report should be as short as possible. This is of the upmost importance even if the first version of the report is radically changed in the light of new information or discoveries.

Finally, the report should be carefully checked, then signed and dated by the medico-legal expert(s).