After a death

Several of the legal requirements and procedures following a death will be changing over the next few years, as a result of new provisions in the Coroners and Justice Act 2009.¹

When a person dies, the senior doctor caring for them must fill out a Medical Certificate of Cause of Death (MCCD). The death cannot be registered until this step is completed. This requirement will remain but in addition, an independent Medical Examiner will have to approve the certificate. The Medical Examiner will contact relatives to confirm the cause of death and ask for additional information.  

The attending doctor is obliged to name the direct cause of death, and any underlying conditions that contributed to the death, on the certificate.² This includes HIV. Moreover, this requirement also features in doctors’ ethical guidelines.³ Statistics from death certificates are used to improve public health and care in the NHS. This system is also seen as an important public safety measure, to rule out negligence or suspicious deaths.

Under the new legislation, the cause of death will still be recorded. However, an additional, shortened version of the death certificate is to be introduced, to give families more privacy. It will not include the cause of death. This certificate will be suitable for administrative procedures where the cause of death does not need to be revealed, for example in settling accounts with utility companies. 

In England, a death must be registered within five days.^4,5 Burial or cremation cannot take place until the death is registered.

Ideally, this should be done at the registry office nearest to where the person died, to avoid a delay in holding the funeral. The local registry office can be found in the telephone book or online at the Directgov website. It may be necessary to make an appointment. 

The preference is for a relative to register the death. It may also be registered by a person who was present at the death, an occupant of the house (if the person died there), a hospital official (if the person died in hospital) or the person making the funeral arrangements. 

A signed medical certificate of cause of death (MCCD) is required to register a death.  It is also preferable to have the deceased person’s birth certificate, marriage or civil partnership certificate and NHS card. 

The registrar will give the person registering the death a certificate for cremation or burial, and a certificate of registration of death. A certificate of death is required for probate (the right to deal with the assets and property of the dead person). There is a charge for this document.

Over the next few years, these procedures will change under the Coroners and Justice Act 2009.¹ An independent Medical Examiner will authorise burials and cremations. In certain circumstances, the burial or cremation of the deceased may be allowed before the death is registered.

In certain circumstances, an autopsy may be required before the body can be released for cremation or burial.  Relatives may also request an autopsy if they think it will shed light on the reason for death.

The doctor certifying the medical cause of death may refer the case to the coroner, for example if death occurred during a surgical operation; as a result of illegal drugs, alcohol or violence; or if the cause of death cannot be determined.^{6, 7}

If the doctor did not see the deceased person in the 14 days prior to death, it must be reported to the coroner.  Anyone can report a death to the coroner, including relatives, but this is usually done by a doctor or the police.

The new Justice and Coroners Act 2009¹ will lead to significant changes in the way that deaths are reported and investigated. This legislation will place a statutory duty on doctors, requiring them to refer deaths to the coroner in clearly defined circumstances. Currently, doctors may either follow national guidance or local protocols. The aim of the new system is to introduce consistency across the country. These changes will be phased in over time.^7,8 Ultimately, every death in England and Wales will be subject to scrutiny by either a coroner or an independent Medical Examiner (see section above).

The coroner does not require family consent to order an autopsy. However, they must notify the spouse, civil partner or next of kin. Families have the right to appoint someone to represent them during an autopsy.⁷

If there is a possibility that an autopsy may be needed, the nursing staff will have to leave tubes, drips and needles in place on the body. 

If a person with HIV or AIDS needs an autopsy, the doctors may want to have this performed at a different hospital where the staff have more specialist knowledge. This is because autopsies involving HIV can be clinically complex, sometimes involving co-infections and drug-related problems. 

Hospital and mortuary professionals may refer to guidelines on infection control after death,^9,10,11 which require measures such as keeping the deceased person in a body bag if they had HIV. Some of these guidelines have been in place for several years now. Practice has moved on, changing in some (but probably not all) hospitals. Health & Safety Executive guidelines for the funeral industry¹² are in the process of being updated.

If a bereaved person is anxious or distressed about any of these issues, encourage them to talk to the deceased person’s doctor. They can also ask to talk to the mortuary staff, the pathologist (this person will be a doctor) or staff from the coroner’s office. The charity Inquest has an information pack on coroners and inquests, which is useful for advice workers and bereaved people (see the end of the chapter for contact details).

Once the above legal requirements have been met, there are still further steps to take if the body is to be moved to a jurisdiction outside England and Wales.

Permission from the coroner is required before the body can be repatriated, and getting this can take around four days. This applies if a body is being moved abroad, and also if it is being moved from England or Wales to another part of the UK.⁵

In a few cases, the authorities in the receiving country may refuse to accept the body of a person with HIV. 

It can be a complex process so it’s advisable to engage a funeral director, who can help with the arrangements and required paperwork.

If an autopsy or inquest is required, this may delay the release of the body and the date on which the funeral can take place.⁵

The funeral is usually arranged by the spouse, civil partner or nearest relative. If there are no relatives, someone else close to the person may organise the funeral.  In the absence of friends or family, the local authority or NHS can make the arrangements.¹³

The person arranging the funeral must pay for its cost. People receiving means-tested benefits may be eligible for a funeral payment to help with these costs. This benefit is payable to the deceased person’s spouse, civil partner, partner living with the deceased person, parent or other close relative who could reasonably be expected to arrange a funeral.¹⁴  See the Citizen's Advice or Directgov websites for more details.

Funeral directors should routinely agree to care for a deceased person who had HIV, although this may not always be the case. Standard good practice should address any safety concerns about staff exposure to HIV. Viewing of the body can be allowed. Some safety guidance does say that the body should not be embalmed where HIV is present.¹⁵ However, these guidelines are several years old now and they are being updated. In practice, HIV infection need not prevent embalming. If the deceased person had an additional infection, such as hepatitis, this factor may preclude embalming and place other restrictions on handling the body.

The hospital may have a bereavement service to offer practical and emotional help. Where relevant, the bereaved person’s faith leader can also advise on funeral arrangements. The National Association of Funeral Directors provides basic information about arranging a funeral and has a directory of members for people seeking to appoint a funeral director. The National Society of Allied and Independent Funeral Directors also has an online directory. Cruse Bereavement Care can provide support and information.

The person sorting out the affairs of the deceased needs to have the right to deal with their assets and property, often referred to as ‘probate’. If the deceased person had a will, the named executor must apply for a Grant of Probate. If there is no will, a close relative can apply for a Grant of Administration.¹⁶ They should apply through their local Probate Registry Office, which can be located through the website for HM Court Service.

These documents are usually required before anyone can access the deceased person’s bank accounts and certain insurance payments. Anyone holding a joint bank account with the deceased owns the money and it is not included in the estate.  If the estate is small, a Grant of Probate or Administration may not be needed. This could apply if the deceased person left:¹⁷

• less than £5000

• no land or property

• no stocks or shares.

Debts, bills and taxes must be paid before any remaining assets are distributed. The property should be distributed within one year of the death.¹⁶

Some people are entitled to additional state benefits when a partner or relative dies. They should apply immediately so they do not lose benefit:^18,19 

• People on means-tested benefits may be eligible for a Funeral Payment from the Social Fund (see Making funeral arrangements above).

• Bereavement Payment is based on the deceased person’s National Insurance (NI) contributions. It is a one-off lump sum paid to the spouse or civil partner. This used to be called the Widow’s Payment.

• Bereavement Allowance is paid for one year to the spouse or civil partner. It is based on NI contributions.

• Widowed Parent’s Allowance may be paid if there are dependant children or young people for whom Child Benefit is received. This used to be called the Widowed Mother’s Allowance.

Partners who live together but are not married or in a civil partnership do not qualify for these benefits. Some bereaved people can get extra help meeting urgent expenses or the costs of attending a funeral, by applying for a Crisis Loan or a Community Care Grant.^20,21

It is not mandatory to appoint a solicitor for probate or administration of an estate, but it may be a good idea if the estate is complex. An accountant can also help with inheritance tax. Solicitors can be found through the Law Society’s website. Citizen’s Advice can advise on benefits and other financial matters. There is also information on their website.