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Burial and Cremation (Scotland) Act 2016

Pregnancy loss on or before 24 weeks

Section 77 – Duty of health body where pregnancy loss likely to occur

201.This section applies where a woman is in the care of a relevant health body and the health body informs her that it considers it likely that the woman’s pregnancy will end before or on completion of its 24th week. By virtue of subsection (2), where a health body considers that it would be in the woman’s best interests to do so, it must give the woman the opportunity to decide whether she wishes to make arrangements for the burial or cremation of the remains, or whether she wishes to authorise the health body to make the arrangements in a way specified by the woman or in a way specified by the health body.

202.Where the woman authorises the health body to make the arrangements, she must indicate whether she wishes the arrangements to be made as soon as is practicable after the loss occurs or whether the health body should wait 7 days after the loss occurs before making arrangements. Where the woman authorises the health body to make the arrangements in a way she specifies, subsection (3) requires the health body to inform her if the way she has specified is not reasonably practicable. Subsection (4) requires the health body to record information prescribed by the Scottish Ministers by regulations. Subsection (5) provides definitions for the purposes of this section.

Section 78Section 77: health body authorised to make arrangements

203.This section provides various powers for health bodies where they have been authorised to make arrangements by virtue of section 77.

204.By virtue of subsection (1), the section applies where certain conditions are met: a pregnancy ends before or on completion of the 24th week; the fetus did not breathe or show any other signs of life after being parted from the woman; at the time of the loss the woman was in the care of a relevant health body; and the relevant health body is authorised to make arrangements for the remains of the fetus to be buried or cremated.

205.Subsection (2) enables the health body to make the arrangements. If the woman has chosen a specific manner for disposal, the health body must use that method. Subsection (3) requires the health body to wait 7 days before making arrangements, if the woman has requested this. Otherwise, the health body must make arrangements for the disposal as soon as possible after the loss occurs.

Section 79 – Arrangements on pregnancy loss on or before 24 weeks

206.Subsection (1) provides that section 79 applies where certain conditions are met: a pregnancy loss occurs before or on completion of its 24th week; the fetus does not breathe or show any other signs of life; the woman is in the care of an “appropriate health authority” at the time when the pregnancy ends; and it appears to the health authority that no arrangements for the burial or cremation of the remains are being or have been made. Subsection (9) defines an “appropriate health authority” to mean an independent health service or Health Board caring for the woman at the time when her pregnancy ended.

207.Subsection (2) requires the health authority to attempt to ascertain the woman’s wishes before the expiry of the “initial period”, which is defined at subsection (9) as being within 7 days of the pregnancy loss occurring. Following the loss of a pregnancy, some women may choose not to engage with the health authority, or may be physically unable to do so. As such, the health authority is expected to try to find out the woman’s wishes, but is not under an obligation to establish her wishes. This should ensure no woman is pressured into making a decision.

208.Subsection (3) provides that, where the woman authorises the appropriate health authority to make the arrangements for the burial or cremation of the remains of the fetus, the authority must inform the woman if it would not be reasonably practicable for it to arrange for the remains to be disposed of in a particular way. If the woman decides the health authority should make the arrangements, the woman may still choose the method of disposal. Where the woman chooses the method of disposal, subsection (3) requires the health authority to inform the woman if it is not possible to dispose of the remains in that way.

209.Subsections (4) and (5) set out the procedure to be followed when a woman indicates her wishes before the expiry of the initial period (i.e. within 7 days of the end of the pregnancy). The health authority must record the decision and take reasonable steps to obtain the signature of the woman making the decision.

210.Subsection (6) provides that subsection (7) applies where a woman does not inform the health authority of her decision before the initial period has expired. Subsection (7) requires the health authority to record the woman’s decision or the fact that she did not inform the health authority of a decision. The health authority must record this information as soon as is practicable after the expiry of the initial period. The health authority must take reasonable steps to have the woman acknowledge her choice (including not making a decision) by signing the record, but is not under a duty to have her sign. Again, the woman may not be able to sign or may choose not to do so.

Section 80 – Change in arrangements

211.Subsection (1) sets out that section 80 applies where an appropriate health authority has given a woman the opportunity to make a decision under section 79(2), the remains have not been buried or cremated and the relevant period has not expired. The “relevant period” for the purposes of this section is defined by subsection (5) as meaning the period of 5 weeks after the expiry of the 7 day initial period set out in section 79(9).

212.As with the process set out in section 79, subsection (3) provides that, where the woman authorises the appropriate health authority to make the arrangements for the burial or cremation of the remains of the fetus, the authority must inform the woman if it would not be reasonably practicable for it to arrange for the remains to be disposed of in a particular way. Similarly, under subsection (4), the health authority must record the decision and take reasonable steps to secure the woman’s signature. Subsection (5) provides that “appropriate health authority” has the same definition as in section 79(9).

Section 81 – Individual authorised to make arrangements

213.Subsection (1) of section 81 sets out that the section applies where an individual has been authorised to make arrangements for the disposal of remains under section 79(2)(b). Subsection (2) allows the individual to decline to make arrangements and authorise the appropriate health authority to do so in a way specified by the individual or the health authority. The individual may not authorise any other person to make arrangements.

214.Subsection (3) requires the person who has been authorised to make the arrangements on behalf of the woman to dispose of the remains in the manner specified by the woman.

215.Subsection (4) requires the health authority to inform the individual if it is not practicable to arrange the disposal in a way chosen by the individual.

216.Where the individual authorises the health authority to make arrangements, subsection (5) requires the health authority to record that information in the prescribed form and to take reasonable steps to secure the individual’s signature.

217.Subsection (6) provides that subsection (7) applies if the health authority has recorded a decision to authorise an individual made under section 79(2)(b) and the individual does not inform the health authority that he or she has made arrangements for the disposal of the remains and does not authorise the health authority to make the arrangements. Subsection (6) requires the health authority to record those facts in a prescribed form and take reasonable steps to secure the individual’s signature. Subsection (8) provides that “appropriate health authority” has the same definition as in section 79(9).

Section 82 – Duty to transfer remains

218.This section provides that where a woman chooses to make her own arrangements for the burial or cremation of the remains of a pregnancy loss, the health authority must give the remains to the woman. Where the woman authorises another person to make arrangements and that person wishes to make his or her own arrangements, the health authority must give the remains to that person. Subsection (5) provides that “appropriate health authority” has the same definition as in section 79(9).

Section 83 – Appropriate health authority authorised to make arrangements

219.Section 83 applies when a health authority has been authorised by the woman who experienced the pregnancy loss or her nominated representative to make the arrangements for the burial or cremation of the remains of the fetus. It requires the health authority to make arrangements for burial or cremation of the remains after the expiry of the period of 7 days beginning with the day on which the woman or her nominated representative informed the health authority to make arrangements to dispose of the remains.

220.The health authority is required to carry out the disposal in accordance with the manner agreed by virtue of sections 79(2)(c)(i), 80(2) or 81(2)(a)(i). These sections cover the range of situations where the health authority is making arrangements, whether because they have been authorised to do so by the woman or her nominated representative, or because no decision has otherwise been made.

221.Subsection (3) enables the person who authorises the health authority to specify that they do not wish the health authority to wait 7 days before making arrangements for the disposal of the remains. If this is not done, the health authority will be required to wait for 7 days from being authorised to make the disposal arrangements. The delay allows the person who authorises the health authority to change his or her decision before arrangements are made for the burial or cremation of the remains.

Section 84 – Duty of appropriate health authority

222.This section applies where a pregnancy loss has occurred in the circumstances set out at section 79(1) and more than 6 weeks has elapsed since the loss and it appears to the health authority that no arrangements are being or have been made under section 79, 80 or 81 for the burial or cremation of the remains of the fetus.

223.In this case, the health board or independent health service (the “health authority”) caring for the woman when her pregnancy ended must decide if it would be in the best interests of the woman to contact her again to try and ascertain her views and if so, whether she would wish to decide who should make arrangements for the disposal of the remains of the fetus. If the health authority is of the view that it would not be in her best interests to contact the woman, it must make arrangements for the disposal of the remains. This prevents a health authority contacting a woman at this stage where she has earlier indicated that she does not wish to be involved in arrangements for burial or cremation. This discretion allows the health authority not to contact the woman where dong so is considered to be contrary to her wishes and best interests.

224.Subsection (2) sets out the procedure to be followed by a health authority once the relevant period, as defined in section 80(5), has expired and no arrangements have been made. As soon as possible after that, the health authority must consider whether it would be in the best interests of the woman to contact her to attempt to ascertain whether she wishes to decide who should make the arrangements and if she wishes to specify the manner of disposal to be used if she authorises the health authority to make the arrangements.

225.Subsection (3) set out the procedure to be followed where the health authority considers it would not be in the woman’s best interests to seek her views in terms of subsection (2). In these circumstances, the health authority may make the arrangements for disposal.

226.Subsection (4) details the steps to be taken by a health authority where it has decided that it would be in the woman’s best interest to consult her in terms of subsection (2). The health authority should take reasonable steps to to ascertain her wishes.

227.Subsections (5) and (6) set out the procedure to be followed where the health authority has been authorised by the woman to make the arrangements on her behalf and she has specified the manner in which the remains are to be disposed of. The health authority may proceed to make the arrangements and must do so in the manner specified by the woman, unless it would be impractical to make those arrangements.

228.Subsections (7) and (8) enable the health authority to make the arrangements where no arrangements are otherwise being made and it would not be in the woman’s best interest to attempt to ascertain her wishes.

229.Guidance will be provided to support this process. The intention is that this process will have been explained to the woman when the health authority discusses options with her as required by the Act, so that no woman should be unaware of the various possible outcomes.

230.This approach allows a health authority to base its decision on its relationship with the woman who has experienced the loss. In some instances, a health authority may know that a woman is still trying to make a decision, in which case the authority will be expected not to make arrangements for the disposal of the remains of the fetus under this section, pending the woman’s decision. In other cases, the woman may have had no contact with the health authority since the loss occurred. The health authority may conclude that the woman does not wish to have any involvement in making arrangements and decide that it should make arrangements for the disposal. This section provides sufficient flexibility to ensure that a health authority can always make a decision about how to proceed in the context of the woman’s best interests, including avoiding unnecessary involvement in this process where the woman does not wish to be involved.

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

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