institutional and legal assessment of the medicolegal

1

Institutional and Legal Assessment of the Medicolegal Death Investigation

System in the Philippines

ImagineLaw, Inc. San Luis, S.V.,

Dagdag, M.J., Marcelo N.D. (October 2020)

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Table of Contents Table of Figures .............................................................................................................................. 2 List of Abbreviations........................................................................................................................ 3 Executive Summary ........................................................................................................................ 4 I. Introduction .............................................................................................................................. 6 II. The Philippine MLDI System ................................................................................................... 7

A. Organization ......................................................................................................................... 7 B. Accessibility of MLDI Services ............................................................................................. 9 C. Key Actors .......................................................................................................................... 10 D. Funding .............................................................................................................................. 15

III. MLDI Process ........................................................................................................................ 15 A. Referral of Reportable Deaths to MLDI Authorities ........................................................... 18 B. Determination of Jurisdiction ............................................................................................. 20 C. Examinations to Determine Cause and Manner of Death ................................................ 21 D. Powers of MLOs/MEs ........................................................................................................ 22 E. Reports ............................................................................................................................... 23 F. Mass Fatalities ................................................................................................................... 24 G. Medical Cause of Death Certification ................................................................................ 24 H. Timeframe to Complete CRVS .......................................................................................... 25 I. Connection to CRVS .......................................................................................................... 26

IV. Recommendations ................................................................................................................. 27 A. Organizational Structure ................................................................................................... 27 B. Key Actors .......................................................................................................................... 31 C. MLDI Process..................................................................................................................... 34 D. Records and Evidence Management ................................................................................ 37 E. Funding .............................................................................................................................. 38

Table of Figures

Figure 1. Philippine MLDI structure ................................................................................................ 7

Figure 2. Philippine MLDI process................................................................................................ 17

Figure 3. Proposed structure under Option 1 ............................................................................... 29



Figure 6. Proposed MLDI process ................................................................................................ 36

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List of Abbreviations

CME Chief medical examiner

CML Chief medicolegal officer

CRVS Civil registration and vital statistics

DILG Department of the Interior and Local Government

DOH Department of Health

DOJ Department of Justice

FR First responders

IOC Investigator on case

LCR Local civil registrar

LGUs Local government units

LHOs Local health officers

LMEO Local Medical Examiner's Office

MCCD Medical certification of cause of death

MLDI Medicolegal death investigation

MLOs Medicolegal officers

NAP National Archives of the Philippines

NAPOLCOM National Police Commission

NBI National Bureau of Investigation

NME National Medical Examiner

PMEO Philippine Medical Examiner's Office

PNP Philippine National Police

PSA Philippine Statistics Authority

SIU Special Investigations Unit

SOCO Scene of the crime operations

SOPs Standard operating procedures

WHO World Health Organization

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Executive Summary Background Medicolegal death investigations (MLDIs), or investigations into unnatural or medically unsupervised deaths, are essential for public health policy and planning.1 Cause and manner of death information derived from MLDI may be used by authorities to (1) address public health, criminal justice, and public safety concerns,2 (2) help develop prevention strategies and programs for the future, and (3) advance medical and scientific research.3 To ensure that all unnatural deaths and medically unsupervised deaths are medically certified, and to produce high quality cause and manner of death information, an MLDI system must be founded on a strong legal framework.4 A strong MLDI legal framework (1) defines the jurisdiction and responsibilities of MLDI offices and actors, (2) authorizes the establishment of practices and procedures for MLDI and penalties for violations of these procedures, and (3) provides adequate resources for involved offices.5 Objectives and Scope ImagineLaw, Inc. (ImagineLaw) prepared this study for the Department of Health (DOH), with the support of the Department of Science and Technology, to assess the country’s legal framework for MLDI. This study seeks to identify regulatory gaps in MLDI laws and issuances as of October 16, 2020, and to recommend intervention to enable key actors to effectively conduct MLDIs. Key Findings The assessment revealed that although the Philippines conducts MLDI, the Philippine MLDI system is not founded on a strong legal framework. Instead, the MLDI system that exists today evolved out of interpretations of various issuances that mention medicolegal officers and autopsy. This resulted in multiple inadequately funded agencies, that exercise overlapping jurisdictions over MLDI without mechanisms to enable coordination between involved agencies and actors, and ensure impartial investigation. Currently, MLDI authority resides in the Philippine National Police (PNP) and National Bureau of Investigation (NBI). These agencies have different requirements, processes, and practices for MLDI, that also tend to vary from one locality to another, making the MLDI process unpredictable. Being primarily centrally located in PNP and NBI, MLDI services are inaccessible in the country as the PNP offers MLDI services only at the regional and provincial levels, while the NBI has assigned MLOs in each region, supported by an MLDI team from the national office. Local health officers (LHOs) who are mandated to certify cause of death in the absence of medicolegal officers from PNP or NBI, are neither trained nor equipped to conduct MLDI, and rarely have access to forensic experts or services.

1 Sferrazza, L. & Joos, O. (September 2020). Medicolegal Death Investigation Module of the Civil Registration (MLDI Toolkit), Vital Statistics and Identity Management (CRVSID) Legal and Regulatory Review Toolkit. Retrieved from https://advocacyincubator.org/wp-content/uploads/2020/09/MLDI-module-Final.pdf (last accessed October 22, 2020), introduction, p. 4. 2 Ibid. 3 Hanzlick, Randy (2007). Death Investigation Systems and Procedures, p. 3. 4 MLDI Toolkit, introduction, p. 4. 5 Ibid.

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Recommendations To address the identified gaps, enacting a new law that establishes a strong MLDI legal framework is necessary. The law should create a system, whether (1) a new centralized medical examiner system that may be an independent agency or one that is attached to the Department of Health or the Department of Justice, (2) a decentralized medical examiner system, or (3) formalize the current police-led MLDI system. This new MLDI law should, among others:

- Establish a clear governance structure led by either: (1) a chief medical examiner (CME) for a centralized system; or (2) a national medical examiner (NME) for a decentralized system; or (3) chief medicolegal officer (CML) for a police-led system.

- Clearly define jurisdiction and roles of all key stakeholders including the health and enforcement sectors;

- Clearly define the jurisdiction, powers, and minimum qualifications of all key actors, including the core team of specialists of the MLDI authority;

- Establish oversight mechanisms, such as the creation of a board composed of representatives from key stakeholder agencies that will set policy for the new MLDI authority;

- Establish a coordination committee or working group to facilitate coordination between agencies and actors involved in MLDI;

- Mandate referral of all MLDI cases to MLDI authorities; - Establish mechanisms to ensure the impartiality of the MLDI for deaths in custody,

whether by establishing a special investigations unit or introducing review mechanisms; - Authorize medical examiners (MEs) or medicolegal officers (MLOs) to:

o determine whether a case is proper for MLDI; o determine the extent of examination and forensic investigation needed determine

cause and manner of death; o enter into a crime scene and take custody of the body and personal effects of the

deceased; o retain tissue samples, biologic and other fluids, and other evidence for forensic

analysis; and o subpoena documents and witnesses and take oaths;

- Provide remedies to interested parties in case of objections to decisions of MEs / MLOs; - Provide deadlines for completing investigations, and submitting the medical certification

of the cause of death to the Local Health Officer (LHO); - Allow administrative amendments to the medical certification of the cause of death

(MCCD) for deaths registered while investigations are pending, and to update entries based on new evidence;

- Authorize the CME / NME / CML to issue guidelines to standardize MLDI processes, requirements, forms, and case files;

- Provide mechanisms to allow the CME / NME / CML to supervise and monitor unresolved cases;

- Ensure accessibility of MLDI services by: o establishing accessible subnational offices, and fully equipped state-owned

morgues and cadaver storage units; o authorizing the CME / NME / CML to refer to government hospitals, government

agencies with forensic services, and private forensic service providers; and o authorizing the CME / NME / CML to accredit and/or regulate transportation

services for transporting the body and evidence to a designated location; and - Ensure sufficient financial resources through appropriation of funds and by authorizing the

CME / NME / CML to collect fees for services.

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I. Introduction ImagineLaw prepared this memorandum as part of its legal and regulatory review of the MLDI system of the Philippines. The review aims to:

(1) provide an understanding of key components making up a strong MLDI legal framework as discussed in the Data4Health Legal Civil Registration and Vital Statistics Toolkit;6

(2) identify effective strategies for low-resource settings, gathered through the Symposium on Medicolegal Death Investigation Systems;7

(3) map out the legal and regulatory framework of the country’s MLDI system and the organization of its key agencies and actors; and

(4) identify policy gaps and recommend policies to address such gaps. The report compares major laws involving the structure and organization of the existing MLDI system in the Philippines and related laws on death registration and MCCD, against international best practices on MLDI. The following major laws and regulations were included in the review:

- Presidential Decree No. 856 (Sanitation Code of the Philippines); - Republic Act No. 10867 (National Bureau of Investigation Reorganization and

Modernization Act); - Republic Act No. 6975 (Department of the Interior and Local Government Act); - Republic Act No. 7160 (Local Government Code); - Department of Health Administrative Order No. 0008-2020 (Rules on Medical Certification

of Cause of Death); and - National Statistics Office Administrative Order No. 1-93 (Implementing Rules and

Regulations of Act No. 3753 and Other Laws on Civil Registration). This assessment likewise includes input from government agency representatives during the following activities:

- a stakeholder consultation meeting held on June 24, 2020; - Symposium on MLDI Systems conducted on September 15-18, 2020; - interviews conducted between August to October 2020; and - a Workshop to Develop the Legal Framework for the Philippine Medicolegal Death

Investigation System held on October 15-16, 2020.

6 MLDI Toolkit, introduction, p. 4. 7 The Symposium on Medicolegal Death Investigation Systems was conducted on Zoom, a web-based conferencing platform, from September 15-18, 2020.

II. The Philippine MLDI System

Figure 1. Philippine MLDI structure8

A. Organization There are four (4) general types of MLDI systems:

(1) a coroner system where a coroner conducts a fact-finding judicial inquiry in open court to determine cause and manner of death;

(2) a medical examiner system where a medical examiner conducts a medical and scientific examination in private;

(3) a coroner/medical examiner hybrid system where a coroner generally refers cases to medical examiners for forensic examinations; and

(4) a police-led system where the police lead both MLDI and the criminal investigation.9 MLDI systems may be centralized (led by a national government agency) or decentralized (led by a political subdivision). In terms of situs, MLDI systems may be situated within existing government agencies or established as an autonomous agency.10 There is no best practice as to the structure and organizational situs of MLDI systems. What is important is that the system is able to produce high quality, independent, accurate, timely, and

8 This chart covers only the divisions within the PNP and NBI that are relevant to MLDI. 9 MLDI Toolkit, sec. 2, pp. 10-13. 10 Ibid.

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complete information on cause and manner of death for medicolegal cases.11 To achieve this, the legal framework must ensure the independence of MLDI officials from influence by law enforcement or political agenda, ensure accessibility of services, and provide adequate funding and resources.12 The Philippine MLDI system was not established formally through law. Rather, it arose and can be gleaned from various laws referring to medicolegal officers and autopsy. Hence, its structure and the relationships between key agencies, are not clearly defined. MLDI in the country is police-led,13 as it is initiated and led by law enforcement agencies, i.e. the PNP and NBI, as part of criminal investigations. It is also a centralized system that is led by central, as opposed to local, government agencies. MLDI authority is situated in (1) the PNP Medico-Legal Division14 which is supervised by the DILG National Police Commission (NAPOLCOM),15 and (2) the NBI Medico-Legal Division and Death Investigation Division16 under the DOJ.17 In places without PNP or NBI medicolegal officers (MLOs), local health officers (LHOs), which fall under local government units (LGUs), may conduct MLDI.18 In practice, however, LHOs are unable to conduct MLDI due to the volume of their work.19 Because there is no law formally establishing the Philippine MLDI system, the system is very fragmented. MLDI authority is shared by various agencies—the PNP and NBI—without any law clarifying their respective jurisdictions, roles, and responsibilities. There is no single agency supervising MLDI in the country and providing guidance on how to conduct MLDI, which results in varying MLDI practices across agencies and jurisdictions. For instance, in recent years, PNP MLOs have adopted the practice of filling out the medical certification of cause of death (MCCD) portion (secs. 17 and 18) of the Certificate of Death (Municipal Form 103), instead of just the Post Mortem Certificate of Death. Meanwhile, the NBI maintains the position that it is only required to fill out the Post Mortem Certificate of Death, while the MCCD must be filled-out by the LHOs or doctors in healthcare facilities.20 There is also no policy to facilitate strong cooperation and coordination among all stakeholder agencies,21 and no formal mechanisms to ensure independence of MLDI from influence of law enforcement or political agenda.

11 Ibid. 12 MLDI Toolkit, sec. 3, p. 16. 13 Id., sec. 2, p.12. 14 PNP Crime Laboratory Organizational Structure, retrieved from https://cl.pnp.gov.ph/elementor-373/about-us/organizational-structure/, accessed on May 15, 2020.

15 Republic Act No. 6975, sec. 14(a). 16 NBI Divisions, retrieved from https://nbi.gov.ph/transparency-seal/nbi-divisions/, accessed on May 15, 2020.

17 Executive Order No. 292, Book IV, Title III, Chapter 1, sec. 4(3). 18 DOH Administrative Order No. 0008-2020, Annex D, Part F, 2nd subpar. 3. 19 Interview with Muntinlupa City Health Officer Dr. Leonor Tubon conducted on October 5, 2020. Interview with Baliwag Municipal Health Officer Dr. Joanna Dinglasan conducted on October 12, 2020. 20 Interview with NBI officers (names withheld upon request) conducted on October 20, 2020. 21 See MLDI Toolkit, sec. 4 on mechanisms for stakeholder cooperation, including the formation of a coordination committee with representation of all stakeholders or establishment by the MLDI authority of memoranda of understanding with various stakeholders.

https://cl.pnp.gov.ph/elementor-373/about-us/organizational-structure/


https://nbi.gov.ph/transparency-seal/nbi-divisions/

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The MLDI authorities in the Philippines are also not sufficiently resourced, as there is no law providing guaranteed funding for MLDI services. In effect, both the PNP Medico-Legal Division and NBI Medico-Legal Division and Death Investigation Division must compete with other offices within their respective agencies, as well as other departments and programs of the government, for funding.

B. Accessibility of MLDI Services To ensure that an MLDI system is able to provide high quality, accurate, and timely information, it is important that MLDI services are accessible throughout the country.22 Accessibility of MLDI services depends on the availability of trained core staff and specialized equipment in each MLDI office.23 Thus, the legal framework should ensure that the person conducting the MLDI, which in the case of the Philippines is the MLO, has access to a core team of specialists which include medicolegal death investigators, forensic pathologists, forensic anthropologists, forensic odontologists, toxicologists, histologists, radiologists, and forensic technicians/autopsy technicians.24 In areas where complete forensic services are not available, arrangements must made to transport the body to a location where these services are accessible.25 Transportation services must be provided through a formally-designated service, whether in-house or contractual, that is trained and required to follow protocols on chain of custody, prevention of tampering, and maintenance of the body and other evidence.26 In the Philippines, MLDI services of both the PNP and NBI are not completely accessible, and their services and equipment in their offices are incomplete. The PNP Medico-Legal Division has crime laboratories at the district, regional, provincial, and city levels.27 However, not all provinces and cities have a crime laboratory, as the PNP only has 101 provincial and city offices28 in a total of 227 provinces and cities.29 Moreover, not all PNP Crime Laboratories offer complete services and, in practice, the PNP subnational offices refer some cases to the national office for different examinations.30 Other services available at the PNP Crime Laboratory include autopsies, histopathological examination involving cadavers, genital examination involving cadavers, post-mortem odontological examination, and serological examination of post-mortem specimens.31 The PNP also offer toxicology services. However, according to PNP Medico-Legal Division Chief Dr. Joseph Palmero, their MLOs do not have

22 MLDI Toolkit, sec. 8, p. 26. 23 Id. p. 23. 24 Id., sec. 7, pp. 24-27. 25 Id., sec. 8, p. 27. 26 Id. 27 PNP Crime Laboratory Organizational Structure. Retrieved from https://cl.pnp.gov.ph/elementor-373/about-us/organizational-structure/. Accessed on May 14, 2020. 28 Id. 29 DILG Regional Summary Number of Province, Cities, Municipalities, and Barangays as of December 31, 2019. Retrieved from https://www.dilg.gov.ph/PDF_File/factsfigures/dilg-facts-figures-2020127_343f8ae2b8.pdf, accessed on June 18, 2020. 30 Confirmed by PNP Medico-Legal Division Chief Dr. Joseph Palmero at the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting conducted via Zoom. 31 PNP Medico Legal Examiner’s Manual, p. 4.



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access to these services as the service is used mainly for identifying seized drugs, and not for examining biological samples.32 The NBI, on the other hand, only has regional presence. It has MLOs that are able to conduct autopsies in each region but these MLOs generally rely on MLDI services in the national office for cases requiring other forensic services.33 Services available at the NBI national office include autopsies,34 exhumation necropsies,35 and dental examination on cadavers.36 The DOH has sought to remedy the inaccessibility of MLDI services, particularly, autopsies, by requiring LHOs or MLOs of government health facilities to conduct MLDI in areas where there is no PNP or NBI MLO available.37 However, not all LHOs are trained to conduct MLDI, or have access to equipment needed for MLDI.38 In some cases, LHOs do not even have the manpower to view bodies before accomplishing and submitting the death certificate to the LCR.39 Philippine law also does not provide minimum guidelines on handling and transporting dead bodies, tissue samples, and other evidence from the death scene to the site of post-mortem examination or forensic analysis. In the case of the PNP, the body is typically transported by a funeral parlor to a PNP-accredited morgue where the PNP conducts its autopsy.40 Specimen samples collected from dead bodies are hand-carried by MLOs for examination in the PNP Crime Laboratory in the National Capital Region.41 The NBI follows the same practice in transporting evidence to their laboratory in Metro Manila.42

C. Key Actors

1. Head of the MLDI authority

32 Confirmed by PNP Medico-Legal Division Chief Dr. Joseph Palmero during the Workshop to Develop the Legal Framework for the Philippine Medicolegal Death Investigation Framework conducted on October 15-16, 2020. 33 NBI Request for Autopsy – Outside Metro Manila, retrieved from https://nbi.gov.ph/citizens-charter/request-for-autopsy-outside-metro-manila/, accessed on June 2, 2020.

34 NBI Request for Autopsy, retrieved from https://nbi.gov.ph/citizens-charter/request-for-exhumation/, accessed on June 2, 2020; NBI Request for Autopsy – Outside Metro Manila, retrieved from https://nbi.gov.ph/citizens-charter/request-for-autopsy-outside-metro-manila/, accessed on June 2, 2020.

35 NBI Request for Exhumation Necropsy, retrieved from http://nbi.gov.ph/citizens-charter/request-for-necropsy/, accessed on June 2, 2020.

36 NBI Request for Dental Examination, retrieved from https://nbi.gov.ph/citizens-charter/request-for-dental-examination/, accessed on June 2, 2020; GMA News (2007). NBI: Dental exam shows suitcase girl ‘more like Dindin than Jessielyn’, retrieved from https://www.gmanetwork.com/news/news/nation/62475/nbi-dental-exam-shows-suitcase-girl-more-like-dindin-than-jessielyn/story/, accessed on June 2, 2020.

37 DOH Administrative Order No. 0008-2020, Annex D, Part F, 2nd subpar. 3. 38 Interview with Cebu City Health Officer Dr. Alicemarie Aycardo conducted on August 18, 2020. Interview with Zamboanga City Health Officer Dr. Dulce Miravite conducted on August 25, 2020. 39 Interview with Taguig City Health Office Dr. Regina Boyles conducted on October 1, 2020. Interview with Oton Municipal Health Officer Dr. Sally Ticao conducted on October 7, 2020. 40 Confirmed by PNP Medico-Legal Division Chief Dr. Joseph Palmero at the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting conducted via Zoom. 41 Interview with PNP Region VII Chief Medicolegal Officer Dr. Benjamin Lara conducted on August 28, 2020. 42 Interview with NBI Medical Technologist Ms. Maria Crisida Pagulayan-Roble conducted on October 8, 2020

https://nbi.gov.ph/citizens-charter/request-for-autopsy-outside-metro-manila/


https://nbi.gov.ph/citizens-charter/request-for-exhumation/


http://nbi.gov.ph/citizens-charter/request-for-necropsy/

http://nbi.gov.ph/citizens-charter/request-for-necropsy/

https://nbi.gov.ph/citizens-charter/request-for-dental-examination/

https://nbi.gov.ph/citizens-charter/request-for-dental-examination/

https://www.gmanetwork.com/news/news/nation/62475/nbi-dental-exam-shows-suitcase-girl-more-like-dindin-than-jessielyn/story/

https://www.gmanetwork.com/news/news/nation/62475/nbi-dental-exam-shows-suitcase-girl-more-like-dindin-than-jessielyn/story/

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A police-led system is headed by a chief medicolegal officer (CML) who supervises MLDI conducted by local police departments throughout the country,43 and fulfills the same duties as a chief medical examiner (CME) in a medical examiner system.44 As a superior officer with supervision or control, the CML/CME should be authorized to approve, reverse, or modify the decisions and findings of MLOs/MEs and issue guidelines on the conduct of MLDI. 45 It is important that the CML/CME has the necessary qualifications, considering the significant powers and responsibilities the position carries. The CML/CME should ideally be a forensic pathologist, or at the minimum, a physician certified in pathology, and should have a specified number of years of experience.46 However, in low resource settings where there are not enough certified pathologists, the CML/CME should at the minimum be a physician with a specified number of years of experience in MLDI. Finally, to ensure impartiality, the CML/CME should be a civil servant who is selected or appointed based on qualifications and not a political appointee or elected official.47 Philippine law is silent as to whether the PNP or NBI Medico-Legal Division Chiefs—who act as CMLs in their respective agencies—can approve, reverse, or modify MLOs’ acts. There is also no written authority for these division chiefs to issue guidelines on how their MLOs conduct MLDI, although the PNP Crime Laboratory has issued SOPs in the form of a manual.48 The law also does not specify the minimum qualifications of PNP and NBI Medico-Legal Division Chiefs. However, the PNP and NBI are both covered by the rules of the Civil Service Commission on tenure and appointments.49

2. Core professional staff The CML/CME must have the authority to prescribe minimum professional qualifications for his/her staff or core team of specialists who perform forensic services. The qualifications of the staff or core team of specialists must also be provided in the MLDI legal framework. To continue holding their positions, specialists should be mandated to undergo continuing education courses in forensic pathology and other areas of forensics and training in MCCD.50 These positions may be filled by in-house or contractual service providers.51 The functions of the core professional staff that must be filled are described below:

43 MLDI Toolkit, sec. 5.C, p. 21. 44 Id., sec. 5.A, p. 18. 45 Executive Order No. 292, Book IV, Chapter VII, sec. 38(1) defines the administrative relationship of supervision and control to include “authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs”. 46 MLDI Toolkit, sec. 5.A on p. 18 and sec. 5.C on p. 21. 47 Ibid. 48 PNP Medico Legal Examiner’s Manual. 49 Administrative Code of the Philippines, Title I, Book V, Chapter 2, sec. 6. 50 MLDI Toolkit, sec. 19, p. 48. 51 Id., sec. 7, pp. 23-24.

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Specialist Medicolegal services performed

Medicolegal death investigator

- Scene investigations and evidence collection to determine need for further investigation, if any52

- Law enforcement and first responders’ interviews53 - Scene report development54

Forensic pathologist (MLO/ME)55

- Determination and certification of cause and manner of death56 - Case coordination, for the medical and forensic scientific assessment of

a death

Forensic anthropologist

- Human remains identification, through assessment of age, sex, stature, ancestry, and unique features of a skeleton57

Forensic odontologist

- Human remains identification, based on comparison of the body’s teeth and dental structures, and dental records, tooth morphology, and restorations such as fillings58

Forensic toxicologists

- Determination of poisoning or drug overdose, or concentration of prescription drugs through testing of body fluids, tissues, organs, and other substances found at the death scene or on the body59

Histologists - Preparation and staining of collected tissue sections for microscopic examination60

Radiologists - Identification of fractures and other injuries and location of bullets,61 through medical imaging (radiology) procedures such as X-rays, computed tomography, and magnetic resonance imaging62

- Human remains identification, through medical imaging procedures63

Forensic or autopsy technician

- Assistance to the forensic pathologist during autopsy, by taking photographs, collecting data such as height and weight, taking fingerprints, and eviscerating the organs for the pathologist to examine64

- Morgue maintenance, coordination of body pick-up and release, and records maintenance65

Quality assurance manager

- Assurance that standards are in place and being met by MLDI team members66

- Provision of support for the review and development of SOPs67

52 Id., p. 24. 53 Joos, Olga. (2020, September). Best practices in building and MLDI office: specialists & equipment. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom. 54 Id. 55 This may be fulfilled by the designated ME in an ME system or MLO in a police-led system. 56 MLDI Toolkit, sec. 7, p. 24. 57 Id., p. 25. 58 Hanzlick, Randy (2007). Death Investigation Systems and Procedures, p. 51. 59 Id., p. 49. 60 MLDI Toolkit, sec. 7, p. 25. 61 Hanzlick, Randy (2007). Death Investigation: Systems and Procedures, p. 52. 62 MLDI Toolkit, sec. 7, p. 25. 63 Hanzlick, Randy (2007). Death Investigation: Systems and Procedures, p. 52. 64 Lunn, Matthew (2017). Essentials of Medicolegal Death Investigation, p. 8. 65 MLDI Toolkit, sec. 7, p. 25. 66 Joos, Olga. (2020, September). Best practices in building and MLDI office: specialists & equipment. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom. 67 Ibid.

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Specialist Medicolegal services performed

- Update of best practices in quality assurance in other MLDI offices and jurisdictions68

At the minimum, an MLDI system should have a forensic pathologist or a medical doctor trained in forensic pathology or MLDI, and access to toxicology, histology, and radiology.69 Not all the listed positions must be filled by unique individuals as multiple roles may be assigned to a team member.70 For instance, the forensic pathologist may fulfil the roles of the medicolegal death investigator, forensic or autopsy technician, forensic photographer, and quality assurance manager.71 The PNP and NBI do not have all the specialists needed to offer complete MLDI services as only the following specialists are present in the PNP and NBI:

PNP NBI

- MLOs - Forensic odontologists72

- MLOs - Laboratory technicians73 - Technical criminal experts74 - Forensic chemist and a chemist-

toxicologist75

The listed staff are not available in all subnational offices of the PNP and NBI. Philippine law also does not provide minimum qualifications for core professional staff and does not explicitly grant the Division Chiefs of both agencies the authority to prescribe qualifications.

a. Medicolegal officers/medical examiners Ideally, MLOs/MEs are certified forensic pathologists, or licensed pathologists.76 However, because there is a shortage of forensic pathologists around the world, the MLO/ME may, at the minimum, be a licensed physician with some background or training in pathology.77 The MLO/ME must be specially trained to perform autopsies to determine the presence or absence of disease, injury, or poisoning and have a working knowledge of toxicology, firearms examination (wound ballistics), trace evidence, forensic serology, and DNA technology.78

68 Ibid. 69 Ibid. 70 Ibid. 71 Ibid. 72 PNP Medical Legal Examiner’s Manual Revised (2015), p. 2. 73 Executive Order No. 94, series of 1947, summary - (G)(I)(9). 74 Ibid. 75 Ibid. 76 MLDI Toolkit, sec. 5.A on p. 18 and sec. 5.C on p. 21. 77 Pyrek, Kelly (2007). Forensic Science under Siege: The Challenges of Forensic Laboratories and the Medico-Legal Investigation System, p. 152; Hanzlick, Randy (2007). Death Investigation: Systems and Procedures, p. 42. 78 MLDI Toolkit, sec. 7, pp. 24-25.

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In the Philippines, the PNP and NBI MLOs are only required to be licensed physicians.79 MLOs undergo training in their respective agencies. For the PNP, MLOs are trained on conducting autopsy in criminal and medicolegal cases.80 For the NBI, MLOs must undergo in-house trainings for six (6) months with practice court in the NBI.81

b. Medicolegal death investigators MLOs work together with medicolegal death investigators (MDIs), and in some cases also act as the MDI. MDIs investigate and manage death scenes, and collect evidence to determine whether further investigation is necessary.82 For this purpose, the MDI should have a combination of education and skills encompassing areas of medicine and law. 83 In the PNP, the first responders (FRs), investigators-on-case (IOC), and SOCO specialists act as MDIs insofar as they conduct crime scene investigation.84 In the NBI, a team of specialists which may be composed of the MLO, forensic photographer, dactyloscopist, forensic chemist, ballistics specialist, and document examiner, act as MDIs.85

c. Other specialists The other specialists must possess the relevant certifications in their specialized fields. Ideally, forensic toxicologists must be certified in both toxicology and forensic toxicology.86 Radiologists must be medical doctors who specialize in using medical imaging procedures to diagnose and treat injuries and diseases.87 Forensic anthropologists must be certified anthropologists and trained in archeological procedures.88 Forensic odontologists must have a doctorate in dental science and specialized forensic training.89 It is only the forensic or autopsy technician who is not required to be a licensed clinician; instead, he/she builds capacity to fulfil his/her duties through on-the-job training and educational programs.90

79 Executive Order No. 801, series of 1982, par. 2; Executive Order No. 94, series of 1947, summary - (G)(I)(9). 80 Confirmed by PNP Medicolegal Officer Dr. Gay Gaspar during the Workshop to Develop the Legal Framework for the Philippine Medicolegal Death Investigation Framework conducted on October 15-16, 2020. 81 Interview with NBI Medical Technologist Ms. Maria Crisida Pagulayan-Roble conducted on October 8, 2020. 82 MLDI Toolkit, sec. 7, p. 24. 83 Ibid. 84 PNP SOP No. ODIDM-2011-008, Part V(1), (2), and (3). 85 Interview with NBI Medical Technologist Ms. Maria Crisida Pagulayan-Roble conducted on October 8, 2020. 86 MLDI Toolkit, sec. 7, p. 25. 87 Ibid. 88 Pyrek, Kelly (2007). Forensic Science under Siege: The Challenges of Forensic Laboratories and the Medico-Legal Investigation System, p. 192. 89 MLDI Toolkit, sec. 7, p. 25. 90 Ibid.

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As mentioned, both the PNP and NBI have their own core specialists and staff, albeit incomplete. The PNP has forensic odontologists,91 while the NBI has laboratory technicians,92 technical criminal experts,93 and forensic chemist and a chemist-toxicologist.94

D. Funding A well-functioning MLDI system requires adequate and sustainable funding through national or subnational budgets95 and revenue generated from MLDI services, to fund the system.96 In the Philippines, the budget allocated for MLDI depends largely on the budget priorities of the PNP and NBI. The PNP and NBI depend on annual general appropriations to fund their MLDI activities. The General Appropriations Act of 202097 did not provide a line-item budget for medicolegal services under the PNP but provided a PhP162 million for Scientific Criminal Investigation Services for the NBI's Crime Detection and Investigation Program. It is unclear how much of their respective budgets go to MLDI. There is also no law that allows MLDI authorities to retain fees paid for their services. Republic Act No. 10867 authorizes the NBI to retain 30% of its collected clearance fees to augment operational expenses, but not to retain fees collected for the forensic services it offers to the public in relation to MLDI, such as requests for copies of autopsies and reports, and privately-requested autopsies.98 At the local level, LHOs depend on the budget proposed by the local chief executive (LCE), i.e. municipal or city mayors or provincial governors,99 and approved by the local legislative council.100 The LHO, as head of the local health office, submits a budget proposal which is subject to the approval of the LCE.101 Hence, although the LHO may propose funding for MLDI services, the decision to fund MLDI still rests with the LCE and the local legislative council. III. MLDI Process

The MLDI process begins with notification of a death to the head of the MLDI authority,102 who must personally—or through an assigned MLO/ME—determine whether the MLDI system has jurisdiction over the case.103 Once jurisdiction is accepted, the body is transported from the health facility or death scene to the MLDI facility for proper examination.104 The assigned MLO/ME then

91 PNP Medical Legal Examiner’s Manual Revised (2015), p. 2. 92 Executive Order No. 94, series of 1947, summary - (G)(I)(9). 93 Ibid. 94 Ibid. 95 MLDI Toolkit, sec. 18, p. 47. 96 Ibid. 97 Republic Act No. 11465, Volume 1-A, Part XVI(I) and XVII(E). 98 Republic Act No. 10867, sec. 12. 99 Republic Act No. 7160, Book II, Title V, Chapter III, art. I, sec. 318. 100 Id., sec. 319. 101 Republic Act No. 7160, Book II, Title V, Chapter III, art. I, sec. 317(a). 102 MLDI Toolkit, sec. 9, p. 28. 103 Hanzlick, Randy (2007). Death Investigation: Systems and Procedures, p. 73. 104 Mitchell, Roger Jr. (2020, September). Regulation Transportation of Dead Bodies and Evidence. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom.

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determines whether post-mortem examination and, additionally, autopsy is needed.105 He/she may also conduct or require death scene investigation through MDIs106 and determine whether other forensic examinations must be performed to determine the cause and manner of death.107 Throughout the process, the MLO/ME must document his/her findings108 and prepare a case file.109 The MLO/ME must ensure that the case file includes all relevant reports from the different forensic examinations conducted.110 The MLO/ME must certify the cause and manner of death based on the information from various reports and submit the MCCD to the appropriate authorities, including the Registrar for registration.111 The Philippine MLDI process is illustrated below, starting from referral of a case to the PNP or NBI MLOs until transmittal of the death certificate to the LHO. Note, however, that the process illustrated here is based on laws and manuals available as of writing and does not reflect actual processes which tend to vary from one locality to another, and from one agency to another.

105 MLDI Toolkit, sec. 10, pp. 31-32. Solis, Pedro (1987). Legal Medicine, p. 163. ‘Post-mortem examination’ refers to an external examination of a dead body without an incision being made, although blood and other body fluids may be collected for examination, while ‘autopsy’ indicates that, in addition to an external examination, the dead body is opened and an internal examination is conducted. 106 Solis, Pedro (1987). Legal Medicine, p. 159. 107 Hanzlick, Randy (2007). Death Investigation: Systems and Procedures, p. 76. 108 Id., p. 77. 109 MLDI Toolkit, sec. 11, p. 34. 110 Ibid. 111 Id., sec. 14, p. 41.

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Figure 2. Philippine MLDI process

A. Referral of Reportable Deaths to MLDI Authorities

A strong legal framework for MLDI should require any person that is aware of a death that must be reported to the MLDI system, to report the incident to MLDI authorities.112 Necessarily, the law should clearly state what types of cases must be referred to the MLDI authorities, i.e. reportable deaths.113 In the case of the Philippines where there are two MLDI authorities, the law should also clarify to whom a specific medicolegal case must be referred. For dead on arrival or brought in dead cases, the attending physician or head of the health facility must determine whether the death is due to unnatural, suspicious, or unexplained causes, and refer only these deaths to MLDI authorities.114 For deaths in custody in police-led systems where MLDI cannot be referred to another entity, the MLO/ME must be insulated from external influence or pressure from the police to ensure an impartial evaluation of the cause and manner of death.115 This may be achieved by issuing guidelines restricting the access of the police to the death scene, body, and evidence. In all cases, only formal service providers must transport the body to the nearest office of the MLDI authority.116 In no case should the family of the deceased be responsible for transporting the body, as this can result in loss of evidence.117 In the Philippines, there is no law requiring a person who has knowledge of a death, to report the same to the PNP or NBI for MLDI. DOH Administrative Order No. 0008-2020 attempts to remedy this by requiring the last attending physician, hospital or clinic administrator, or LHO to refer reportable deaths to the PNP or NBI.118 However, this is only an administrative issuance, and it does not provide penalties for noncompliance. In practice, not all LHOs refer cases to the PNP or NBI as some LHOs do not have established working relationships with these agencies.119 DOH Administrative Order No. 0008-2020 also provides a list of types of deaths that are considered reportable deaths, based on the DOH Manual of Standards and Guidelines on the Management of the Hospital Emergency Department.120 Under DOH Administrative Order No. 0008-2020 the following are considered medicolegal cases:

- Due to injuries where circumstances suggest commission of an offense by somebody;121 - From suspected or evident criminal abortion, poisoning, or intoxication; - Referred from PNP/NBI or patients under police custody;

112 MLDI Toolkit, sec. 9, p. 30. The person who is required to report medicolegal deaths may be heads of institutions, such as community residential facilities, prisons and jails, as well as funeral directors and embalmers. 113 Id., p. 28. 114 Id., sec. 9, p. 29. 115 Id., sec. p. 30. 116 Id., sec. 8, p. 27. 117 Id. 118 DOH Administrative Order No. 0008-2020, Annex F, 2nd subpar. 1. 119 Interview with Lupon Municipal Health Officer Dr. Belen Larrobis conducted on September 30, 2020. 120 DOH Manual of Standards and Guidelines on the Management of the Hospital Emergency Department, pp. 113-4 lists medicolegal deaths that the medical officer is duty-bound to report to the police. 121 Including but not limited to vehicular accidents, unnatural accidents or disasters due to force majeure, industrial accidents, mauling; firearm or gunshot injuries, burns, assault and battery, including domestic violence, child abuse, and sexual assault/offenses, and suspected self-inflicted injuries or suicide.

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- Involving undiagnosed coma/unconsciousness; - Due to decapitation; - Where the deceased is in an advanced state of decomposition; - Brought dead with improbable or inconsistent medical history creating suspicion of an

offense;122 - When verbal autopsy123 results are inconclusive and suggest a suspicious cause of death;

and

- Not falling under the above categories but has legal implications.124 The list provided does not include:125

(1) deaths at the hands of the state, including deaths in police custody and deaths due to a failure of the state to protect individual/s from foreseeable external threats or violence by non-state actors;

(2) deaths in state institutions other than prisons, such as government-owned psychiatric hospitals and facilities for the elderly and minors;

(3) deaths due to therapeutic misadventure or peri-procedural deaths; (4) deaths that may constitute a threat to public health; and (5) mass casualties.

It is also not clear from the law when a death should be referred to the PNP, and when it should be referred to the NBI. Under Republic Act No. 10867, the NBI has primary jurisdiction over (1) extrajudicial or extra-legal killings committed by the state’s security forces against media practitioners and activists, (2) the killings of justices and judges, and (3) cases referred by the Secretary of Justice.126 However, it is unclear who bears the responsibility of notifying the NBI of these cases. In practice, reportable deaths are generally referred to the PNP, particularly to the police station or precinct where the death occurred or where the body was found.127 But where the next of kin requests an autopsy or investigation128 or when the DOJ directs an investigation,129 the case may be referred to the NBI, either initially or for a second autopsy. If the body is first brought into a funeral home, the funeral director exercises discretion as to which agency a case may be referred, whether to the PNP, NBI, or LHO.130 Philippine law also does not provide guidance on transportation of bodies and does not have formal transportation services for MLDI. Thus, in practice, the funeral home selected by the next

122 Examples include but are not limited to death due to external causes, including fetal death, due to animal bite, unreasonable death in ER/OR, within 24 hours of hospitalization without diagnosis, and unidentified bodies. 123 DOH Administrative Order No. 00808-2020, Annex C, Part A(1) provides that verbal autopsy may be used to identify the cause of death in medically attended out-of-facility deaths where the last attending physician is unavailable or could not be located, medically unattended deaths, dead-on-arrival cases, and delayed registration of medically unattended deaths. 124 Id., Annex D, Part F, pars. 1 to 9. 125 MLDI Toolkit, sec. 9, pp. 28-30. 126 Republic Act No. 10867, sec. 5(b), (c), and 2nd par. 127 DOH Administrative Order No. 0008-2020, Annex D, Part F, 2nd subpar. 1. 128 Ibid. 129 Republic Act No. 10867, sec. 5(2). 130 Comments by PNP Medico-Legal Division Chief Dr. Joseph Palmero on the preliminary assessment circulated during the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting.

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of kin transports the dead body to its morgue,131 where the post-mortem examination is typically conducted.

B. Determination of Jurisdiction Upon referral of a death to MLDI authorities, the CME/CML (or, where he/she assigns a subordinate), the ME/MLO should have the power to conduct a preliminary investigation to determine whether the death is a reportable case or not, i.e. due to natural causes.132 He/she should make this determination based on information provided through the notification and preliminary investigation process.133 This may be done through phone investigations,134 scene investigations,135 and in some jurisdictions even through televiewing or video-conferencing.136 The ME/MLO must release the case if it is not a reportable case under the law or where, although reportable, the death is due to natural causes.137 Where the death is reportable and the manner of death is not natural, the ME/MLO must examine the dead body to determine the appropriate method to use to determine cause and manner of death.138 The PNP or NBI MLOs are not given this power under Philippine laws although DOH Administrative Order No. 0008-2020 provides this process to clarify the role of LHOs and health

131 Comments by PNP Medico-Legal Division Chief Dr. Joseph Palmero on the preliminary assessment circulated during the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting. 132 MLDI Toolkit, sec. 9, p. 30. 133 Ibid. See also Mitchell, Roger Jr. (2020, September). Preliminary Investigations: Is a Death Medicolegal? Is Autopsy Needed?. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom, where Dr. Mitchell presented the following questions that must be asked to establish jurisdiction:

- What type of death does this appear to be? - Do you know the cause of death? - Is there evidence of recent travel? Any signs or symptoms of communicable infectious disease? - Is there visible or historical evidence of trauma? Are there signs of abuse or neglect? Were there

recent or remote falls, or was the deceased found collapsed? - What is the deceased’s name, age, gender, race, and next-of-kin information? - What is the deceased’s history of medications, recent illnesses, hospital visits, or surgeries? - What is the contact information of the deceased’s primary physician? - What is the deceased’s social history of mental health, suicide, substance abuse, ethyl alcohol? - Who pronounced the deceased?

134 Mitchell, Roger Jr. (2020, September). Preliminary Investigations: Is a Death Medicolegal? Is Autopsy Needed?. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom. 135 Ibid. 136 Chui, Paul (2020, September). Consent and Objections to Autopsy in Singapore. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom. 137 Mitchell, Roger Jr. (2020, September). Preliminary Investigations: Is a Death Medicolegal? Is Autopsy Needed?. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom. 138 Ibid.

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facilities in non-medically attended deaths and reportable deaths.139 In practice, the PNP and NBI MLOs conduct autopsies on all cases referred to them.140

C. Examinations to Determine Cause and Manner of Death Countries with good MLDI frameworks authorize the ME/MLO to select the appropriate method to determine cause and manner of death. The ME/MLO may opt to conduct a full autopsy or other less invasive method (e.g. external or post-mortem examination, radiographic imaging, minimally invasive autopsy, or virtual autopsy).141 While laws or SOPs may provide guidance on the types of cases where autopsy is recommended, the discretion to conduct autopsy should ultimately lie with the MLO/ME.142 In general, consent of next of kin should not be required in cases where the MLO/ME has determined that autopsy is necessary.143 However, in jurisdictions that allow next of kin to request an exemption from autopsy on religious grounds,144 the head of the MLDI authority should have authority to deny the request if he/she (1) suspects that the death is a homicide or (2) believes that autopsy should be conducted for public health reasons.145 While laws may allow the solicitor general, police, or next of kin to appeal the decision to conduct or not conduct autopsy, the decision should lie with the head of the MLDI authority,146 subject to an appeal in court.147 The US National Association of Medical Examiners recommends conducting an autopsy in the following cases where the death:

- is known or suspected to have been caused by apparent criminal violence; - is unexpected and unexplained in an infant or child; - is associated with police action; - is apparently non-natural and in custody of a local, state, or federal institution; - is due to acute workplace injury; - is caused by apparent electrocution;

- is by apparent intoxication by alcohol, drugs, or poison, unless a significant interval has passed, and the medical findings and absence of trauma are well documented;

- is caused by unwitnessed or suspected drowning; - involves a body that is unidentified and autopsy may aid in identification; - involves a body that is skeletonized or charred; - where the forensic pathologist deems a forensic autopsy is necessary to determine cause

or manner of death, or document injuries/disease, or collect evidence; and

139 DOH Administrative Order No. 0008-2020, Annex B, Part B.2 provides that in case of medically-unattended deaths that are first reported to the PNP or NBI, the PNP or NBI shall determine whether the death requires medicolegal investigation. If not, they shall refer the death to the LHO who shall certify the cause of death through verbal autopsy. 140 Confirmed by PNP Medico-Legal Division Chief Dr. Joseph Palmero at the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting conducted via Zoom. 141 MLDI Toolkit, sec. 10, pp. 32-33. 142 Ibid. 143 Ibid. 144 Ibid. 145 Ibid. 146 Id., sec. 10, p. 33. 147 Ibid.

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- where the deceased is involved in a motor vehicle incident and an autopsy is necessary to document injuries and/or determine the cause of death.148

This guidance is typically not provided in law but are laid-out in guidelines issued by the CME. In contrast, the Sanitation Code of the Philippines provides that an autopsy shall be performed in the following cases:

- whenever required by special laws; - upon orders of a competent court, a mayor and a provincial or city fiscal; - upon written request of police authorities; - whenever the Solicitor General, provincial or city fiscal as authorized by existing laws,

shall deem it necessary to disinter and take possession of remains for examination to determine the cause of death; and

- whenever the nearest kin shall request in writing the authorities concerned to ascertain the cause of death.149

As the Sanitation Code is request-oriented, i.e. placing the onus on the next of kin to request autopsy, MLOs in the Philippines cannot proceed to conduct autopsies that they determine is needed without request from the next of kin.150 This is especially problematic in cases where the next of kin is suspected to be responsible for the death.151 The Sanitation Code of the Philippines also provides that autopsies may be performed on patients who die in accredited hospitals provided there is permission from next of kin or the local health authority.152 This has, in some cases, been interpreted to mean that consent of next of kin is required even in criminal cases. The PNP Medico Legal Examiner’s Manual also echoes this by requiring consent of the next of kin before proceeding with autopsy in non-criminal cases,153 without clarifying if consent is needed in criminal cases. Philippine law also does not specify if objections to autopsy are allowed in medicolegal cases, and how objections to the decisions of MLOs may be resolved. It appears that objections are only allowed in cases of patients who die in accredited hospitals,154 as the consent of next of kin is required in these instances.

D. Powers of MLOs/MEs To enable MLOs/MEs to conduct a comprehensive MLDI, they should have powers that extend beyond examining the body, such as the power to:

- enter a crime scene to collect evidence and take photos of the crime scene;

148 U.S. National Association of Medical Examiners (2005). Forensic Autopsy Performance Standards, p. 9. Retrieved from http://www.ialm.info/UserFiles/files/pdf/Forensic%20Autopsy%20Performance%20Standards(1).pdf, accessed on June 19, 2020. 149 Sanitation Code of the Philippines, sec. 95(b). 150 Comments by PNP Medico-Legal Division Chief Dr. Joseph Palmero on the preliminary assessment circulated during the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting. 151 Ibid. 152 Sanitation Code of the Philippines, sec. 95(c). 153 PNP Medico Legal Examiner’s Manual Revised (2015), Chapter 4, Section 4-1, par. C. 154 Sanitation Code of the Philippines, sec. 95(c)(2).

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- take custody of a body, protect it from outside influence or tampering, order its release, and to retain tissue samples or body fluids after the body is released with notification, but without consent of next of kin; and

- subpoena powers for examination of witnesses and documentary evidence.155 In police-led systems, these powers are exercised for the purpose of MLDI and not the criminal investigation which the police handles.156 The MLDI legal framework should also ensure that law enforcement cooperates with MLOs/MEs.157 In the Philippines, MLOs do not have all the powers needed to carry out their task. Under PNP SOPs, only FRs and IOCs have the power to enter a crime scene,158 although in practice, even MLOs are allowed to do so.159 MLOs do not have the power to take direct control and custody of the body. Privately-owned funeral parlors with their own morgues typically take custody of the body, and MLOs are only able to take custody of the body once it is delivered to the morgue by the next-of-kin.160 PNP MLOs are also able to collect tissue samples during autopsy, but are not explicitly given the power to retain tissue samples, and are not authorized to issue subpoenas, take oaths, or collect other evidence in conducting MLDI.161

E. Reports To strengthen death investigations, the law should require the MLO/ME to document each step, including scene investigation and/or autopsy as may be necessary, in a case file.162 The case file should include the investigation report, autopsy report, and other reports, such as toxicology, criminalist, gunshot residue, and other specialist reports.163 At the conclusion of a case, the head of the MLDI authority should ensure that a report on the case is completed.164 This report must have the following components:

- external examination; - evidence of injury; - evidence of medical therapy or treatment; - internal examination, if one was conducted; - toxicology; - summary of findings; and - cause and manner of death.165

155 MLDI Toolkit, sec. 12, pp. 36-38. 156 Sferrazza, Lynn. (2020, September). Medicolegal Death Investigation Systems. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom. 157 MLDI Toolkit, sec. 12, p. 37. 158 PNP SOP No. ODIDM-2011-008, Part V(1), (2), and (3). 159 Comments by PNP Medico-Legal Division Chief Dr. Joseph Palmero on the preliminary assessment circulated during the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting. 160 Confirmed by PNP Medico-Legal Division Chief Dr. Joseph Palmero at the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting conducted via Zoom.

161 Republic Act No. 10867, sec. 4(b) reserves subpoena power to the ranks of Regional Director to Director within the NBI. These ranks do not include MLOs.

162 MLDI Toolkit, sec. 11, p. 34. 163 Ibid. 164 Ibid. 165 Ibid.

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In cases where an autopsy is conducted, the law should require the medical professional that conducted the autopsy to complete and sign the autopsy report.166 In the Philippines, MLOs are not mandated to prepare a case file for MLDI but are required to submit an autopsy or post-mortem report to the LHO, along with the death certificate for review.167 There is, however, no guidance regarding the form or contents of this report. Moreover, there is no penalty for failing to submit complete case files or forms. The PNP and NBI use their own forms and follow their own procedures in completing the death certificate. For instance, the PNP Medico Legal Examiner’s Manual prescribes a form for the autopsy report, which requires completing entries on paraffin, blood, photograph, fingerprint, tissue/s, smears, circumstances of death, post mortem findings, and weight of various body organs.168 This is more detailed as compared to copies of NBI autopsy reports that ImagineLaw was able to examine.169

F. Mass Fatalities Laws should include mass fatalities among reportable deaths, and make the MLO solely responsible for identification of the deceased and certification of cause and manner of death.170 The head of the MLDI authority must be authorized to (1) participate in the development of a mass fatality management response plan in close collaboration with the health system and local government authorities, and (2) enter into agreements with, or request additional assistance from, other entities.171 Philippine law gives the PNP primary jurisdiction to investigate and identify the dead in human-induced mass fatality incidents.172 On the other hand, the NBI has primary jurisdiction in mass fatality incidents caused by natural disasters.173 The LHO issues death certificates in case of natural disasters174 while the PNP and NBI issues death certificates in human-induced disasters and submits the same to LHO for review before registration.175

G. Medical Cause of Death Certification The MLO or other authorized physician conducting the forensic evaluation must certify both the cause and manner of a reportable death176 using the WHO International Medical Certificate of Cause of Death (WHO MCCD) form.177 The MLO or physician should also be able to change the

166 MLDI Toolkit, sec. 11, p. 35. 167 DOH Administrative Order No. 0008-20, Annex F, 2nd subpar. 5. 168 PNP Medico Legal Examiner’s Manual, Annex E. 169 See NBI Autopsy Report No. 2020-01 for Jeanelyn Villavende. Retrieved from https://web.facebook.com/PTVph/posts/read-nbis-autopsy-report-on-jeanelyn-villavendes-body-via-kenneth-paciente/3226776824049632/?_rdc=1&_rdr. Accessed on June 15, 2020. 170 MLDI Toolkit, sec. 16, p. 44. 171 Ibid. 172 NDRRMC Memorandum Circular No. 019-16, par. 5.4. 173 Ibid. 174 Id., par. 6.1.4. 175 Id., par. 6.1.5. 176 MLDI Toolkit, sec. 13, p. 38. 177 Id., p. 39.

https://web.facebook.com/PTVph/posts/read-nbis-autopsy-report-on-jeanelyn-villavendes-body-via-kenneth-paciente/3226776824049632/?_rdc=1&_rdr

https://web.facebook.com/PTVph/posts/read-nbis-autopsy-report-on-jeanelyn-villavendes-body-via-kenneth-paciente/3226776824049632/?_rdc=1&_rdr

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cause and manner of death based on new information that subsequently becomes available in the course of MLDI,178 but not based on findings in subsequent court/legal proceedings.179 In the Philippines, PNP MLOs certify cause and manner of death180 using Municipal Form No. 103 (January 2007 version), prescribed by the Philippine Statistics Authority (PSA). This form conforms with the WHO MCCD. On the other hand, NBI MLOs do not certify cause and manner of death. Instead, they only fill out the post-mortem certificate on Municipal Form No. 103, leaving it to the LHO to fill out the MCCD.181 No guidance is provided on how the differences between the LHO’s MCCD, and the NBI’s post-mortem certificate, should be resolved.

H. Timeframe to Complete CRVS

To ensure that cause and manner of death information are generated in a timely manner, the MLDI legal framework should set a reasonable timeframe within which MLOs/MEs should complete MLDI.182 In cases where the MLDI is not completed within the timeframe provided, the law should also provide mechanisms to enable the CML/CME to monitor open cases, and to enable MLOs/MEs to amend cause and manner of death once the investigation is completed, in cases where “pending investigation” is indicated in the portion on cause or manner of death.183 There may also be a need to update name and demographic information, such as in cases of previously unidentified persons.184 Philippine law does not provide time limits for MLOs to complete MLDI, but provides a time limit within which the MLO must transmit the death certificate to the LHO, i.e. within 48 hours from assignment of the case,185 and a time limit within which the LHO must submit a death certificate to the LCR, i.e., 30 days from occurrence.186 Because the 48-hour window to submit a death certificate to the LHO is insufficient to complete an investigation, the DOH, in its Administrative Order No. 0008-2020, enabled the LHO to monitor cases where investigation is pending. Under the AO, the MLO may submit the accomplished death certificate, indicating "pending investigation" on the MCCD portion where cause or manner of death is still unknown or pending investigation after the lapse of the 48-hour period.187 Within 30 days from the date of death or discovery, the MLO must submit the autopsy/post-mortem report and death certificate with the accomplished MCCD to the LHO.188 After reviewing the death certificate for completeness, the LHO will then submit the death certificate to the local civil registrar (LCR) within 30 days from death.189

178 Mitchell, Roger Jr. (2020, September). Preliminary Investigations: Is a Death Medicolegal? Is Autopsy Needed?. Lecture presented at the Symposium on Medicolegal Death Investigation Systems conducted on September 15-18, 2020 via Zoom. 179 MLDI Toolkit, sec. 13, p. 39. 180 DOH Administrative Order No. 0008-2020, Part VII, B.6; NSO Administrative Order No. 1-93, Rule 37(2). 181 Interview with NBI officers (names withheld upon request) conducted on October 20, 2020. 182 MLDI Toolkit, sec. 15, p. 43. 183 Id., sec. 14, p. 42. 184 Ibid. 185 DOH Administrative Order No. 0008-2020, Annex D, Part F, 2nd subpar. 4 and 5. 186 Presidential Decree No. 651, sec. 5. NSO Administrative Order No. 1-93, Rule 32(1). 187 DOH Administrative Order No. 0008-2020, Annex D, Part F, 2nd subpar. 5. 188 Ibid. 189 NSO Administrative Order No. 1, series of 1993, Rule 32(1).

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However, in cases where the investigation has not been completed within the 30-day reglementary period for submitting death certificates to the LCR, the MLO and LHOs are constrained to submit a death certificate with “pending investigation” as the cause of death or submit the death certificate after the 30-day reglementary period. There are no guidelines in cases where MLDI is not completed within the 30-day timeframe, and no mechanism allowing the MLO to administratively amend the cause of death after the 30-day timeframe to ensure that the entries in the death register are accurate. Introducing substantive amendments in a death certificate, such as amending the cause of death, requires a summary judicial proceeding under Rule 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, rather than an administrative process for amendment. Rule 108 allows the civil registrar and all persons who have any interest to correct substantial entries in the civil registry190 to file a petition for this purpose. Because the process is tedious, entries with “pending investigation” as cause of death are not amended, even after the investigation is completed.

I. Connection to CRVS Anonymized MCCD information must be shared with the civil registration authority so that cause of death can be recorded for legal purposes, and with the national statistics authority responsible for compiling death statistics,191 to be used for public health policy and planning.192 Depending on a country’s framework, the civil registration authority or MLDI authority may be tasked with submitting the MCCD information to the agency in charge of compiling national statistics.193 In the Philippines, the death certificate filled out by the MLO is first submitted to the LHO for review. After this, the LHO is responsible for transmitting the fully accomplished death certificate to the LCR. The LCR compiles all the registered vital events (including deaths) on a monthly basis and submits it to the PSA Provincial Statistics Office, which in turn transmits it to the PSA Civil Registration Service, within 60 days from the reference month.194

J. MLDI Records and Evidence Management A strong MLDI legal framework should provide guidelines on maintaining, preserving, archiving, and disposing records (including samples). Guidelines should specify the records or evidence that must be kept and for how long.195 In the District of Columbia, most records are maintained for 30 years; however, records and files related to an open investigation of a homicide are retained for 65 years from the date the CME initiates its investigation of the homicide.196

190 Rule 108, Rules of Court. 191 MLDI Toolkit, sec. 14, p. 41. 192 Ibid. 193 Ibid. 194 Philippine Statistics Authority, Civil Registration and Vital Statistics Handbook for Health Workers 2nd ed., Manila 2016, p. 10 to 11. 195 MLDI Toolkit, sec. 22, pp. 51-52. 196 Code of the District of Columbia, §5-1412.

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Guidelines should also be issued regarding what and how records may be released.197 The law should specify that the next of kin has the right to receive a copy of the autopsy report.198 Some countries classify external examination/autopsy reports and death information as records and information that are available to the public, while other countries consider these reports as confidential medical information, available only to those with a legitimate interest.199 Persons with legitimate interest must be defined in the legal framework or in guidance provided by head of MLDI authority, and may include next of kin, law enforcement authorities, public health authorities, death review teams, quality assurance and accreditation personnel, and courts and administrative bodies with a legitimate interest in the information.200 The National Archives of the Philippines (NAP) General Circular No. 1 establishes rules for records management within agencies, including maintenance, use, retention, and disposition.201 The circular mandates agencies to develop their own Records and Archives Management Program,202 providing guidelines on the creation, retention, and disposition of records. However, the circular does not provide guidance with respect to MLDI case files. The PNP retains autopsy records and other reports indefinitely,203 and only releases documents to a requesting party or duly authorized court.204 In case the requesting party is not present, an authorized representative may claim the result.205 The NBI on the other hand, does not have published guidelines on access to autopsy records and other reports. With respect to tissue samples and other evidence, the Philippine legal framework does not prescribe a timeframe. For the PNP, the Crime Laboratory Policy provides that retention period of tissue and other biological evidence, is one year.206 IV. Recommendations

Many gaps identified in this assessment arose from the absence of a legal foundation for the Philippine MLDI system. For instance, there is no clear delineation of jurisdiction among the different agencies involved in MLDI. The processes and accountabilities of each agency during the entire process from the point of death until registration is also not provided in law, resulting in varying practices from one agency to another and from one LGU to another. While some of the gaps may be addressed by administrative issuances (i.e. trainings on MCCD and forensic services, and qualifications for key actors), new legislation is necessary to establish a well-functioning MLDI system, and to comprehensively address systemic gaps. The features of the proposed new legislation are discussed in this section.

A. Organizational Structure

197 MLDI Toolkit, sec. 22, p. 51. 198 Id. p. 51. 199 Id., p. 52. 200 Ibid. 201 NAP General Circular No. 1, Rule 2. 202 Id., Rule 3, par. 3.1. 203 Confirmed by PNP Medico-Legal Division Chief Dr. Joseph Palmero at the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting conducted via Zoom.

204 PNP Medico Legal Examiner’s Manual Section 3-1(i)(2). 205 Ibid. 206 Comments by PNP Medico-Legal Division Chief Dr. Joseph Palmero on the preliminary assessment circulated during the June 24, 2020 Philippine Medicolegal Death Investigation Consultative Meeting.

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The current structure of the Philippine MLDI system suffers from being fragmented, with several agencies having overlapping jurisdictions but with little to no formal coordination. MLDI is also inaccessible, as services are only accessible at the central office or through a few regional and provincial offices. Lastly, MLDI authority being situated in law enforcement agencies lends to the negative public perception that the system lacks independence and impartiality. To address this, an entirely new framework may be created, or the existing framework may be reorganized so that jurisdiction, roles, and responsibilities are clearly delineated. The Philippines may consider any of the three (3) options below, depending on technical capacity, local context, and availability of resources.

Option 1: Central medical examiner’s office A new central MDLI authority may be created as a (1) new agency that is attached to the DOH or DOJ, or (2) an independent office. This new MLDI authority, referred to in this paper as the Philippine Medical Examiners Office (PMEO) for ease of reference, shall be headed by a CME who must not be a political appointee nor an elected official to ensure independence,207 and must, at the minimum, be a licensed physician with (1) a specified number of years of experience in MLDI,208 and (2) some background or training in pathology.209 Establishing an entirely new office presents some disadvantages. Significant resources are needed to create a new agency to procure a new office, equipment, and hire new staff. To address this, the enabling law must provide an initial appropriation, a sustainable source of funding which includes fees from its services, and fines and penalties collected for violations of the law. In creating a central office, it is also important for the law establishing the office to have mechanisms to ensure accessibility of services. The CME will be mandated to establish at least one (1) office per region and shall be authorized to create additional offices if needed to ensure accessibility of MLDI services throughout the country. The PMEO shall have in-house MEs who must also be physicians trained in MLDI, at the minimum, as well as a core team of specialists that offer other forensic services. The PMEO must be authorized to enter into agreements with accredited private entities providing needed forensic services (including transportation services) in each locality. The PMEO, being an independent office, may be overseen by a governing board, which can help detect and correct problems and failures of the office, maintain accountability, and provide the public with information.210 The board may also be made responsible for issuing policies that govern the entire MLDI system, including other affected stakeholders. The law may vest the board with quasi-judicial powers to rule on appeals lodged against decisions of medical examiners by next of kin or other interested parties, e.g. the Solicitor General or head of law enforcement agency in case the ME decides not to conduct autopsy. Lastly, even with MLDI authority vested in a single agency, strong cooperation is needed among all stakeholders that play a role in the system, such as the PNP and NBI that undertakes criminal

207 MLDI Toolkit, sec. 5.A, p. 18. 208 Id. While practices vary, 5 years is the minimum required experience in most jurisdictions. 209 Pyrek, Kelly (2007). Forensic Science under Siege: The Challenges of Forensic Laboratories and the Medico-Legal Investigation System, p. 152; Hanzlick, Randy (2007). Death Investigation: Systems and Procedures, p. 42. 210 MLDI Toolkit, sec. 3, p. 15.

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investigation and manages mass casualty events, the healthcare facilities that refer reportable deaths to the MLDI authority for determination of jurisdiction, the LHOs and LCRs that register deaths, and the PSA that compiles MLDI statistics.211 The new law may establish a coordination committee with representation of these stakeholder entities, or authorize the CME to enter into agreements regarding cooperation and responsibilities at a crime scene.212

Figure 3. Proposed structure under Option 1213

Option 2: Devolved medical examiner’s office

Another option is to establish a central MLDI authority, i.e. the PMEO, which shall be headed by a National Medical Examiner (NME) who shall supervise local MEs (LMEs) in local offices (LMEOs) to be established in all LGUs. This option is consistent with the mandate of devolution of services under the Philippine Constitution.214 Devolving services at the local level has the advantage of being highly accessible but may lead to varying practices and level of quality of services among LGUs. Hence, care should be taken to ensure that (1) LGUs have the financial and technical capacity to establish the office and provide the services; (2) the practices of each LGU are consistent throughout the country; and (3) there is strong central oversight. These may be achieved by: (1) mandating the PMEO to issue detailed guidance on establishing the local ME’s offices (e.g. minimum staffing and qualifications, equipment, and SOPs); (2) providing fines and penalties for failure to comply with these guidelines, which shall be enforced by the PMEO; and (3) required to build the capacity of LGUs to conduct MLDI, such as through periodic trainings and operating manuals; and (4) augmenting the services and facilities of LGUs when needed.215

211 MLDI Toolkit, sec. 4, pp. 16-17. 212 Ibid. 213 The creation of agencies in boxes with broken lines, such as the Forensic Services Accreditation Division and coordination committee, is optional. 214 1987 Philippine Constitution, Art. X, sec. 3. 215 Section 17(g) of RA No. 7160 or the Local Government Code of the Philippines mandates the national government to augment the basic services of LGUs when such services or facilities are not made available or, if made available, are inadequate to meet the requirements of its inhabitants.

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To ensure coordination among stakeholders, the law may likewise authorize the creation of a coordination committee with representatives from the PMEO, LMEOs, and other agencies that play a role in MLDI. This coordination committee should be established at the lowest level (city / municipality).


Option 3: PNP and NBI as MLDI authority

Another option is for the PNP to retain authority over conducting all MLDI, with the NBI being responsible only for deaths in PNP custody and the cases over which it presently has jurisdiction (i.e. extrajudicial / extra-legal killings committed by the state’s security forces against media practitioners and activists, killings of justices and judges, and other cases as directed by the Secretary of Justice).217 The law should clarify the scope of each agency’s jurisdiction and mandate both agencies to refer cases falling to the other agency’s jurisdiction. The law may also require courts to settle disputes over jurisdiction and establish an oversight board composed of relevant government agencies such as the DOH, DILG, and DOJ, that can exercise oversight over MLDI conducted by the PNP or NBI. The existing structure within the PNP or NBI may be retained, with the respective Medico-Legal Division Chiefs acting as and vested with the powers of a CML. However, the law should authorize the Division Chiefs to exercise oversight over the findings and decisions of the MLOs. To ensure access, the PNP and NBI shall be required to have regional offices, and to assign at least one (1) MLO in each province, at the minimum. The CML in each office shall also be authorized to appoint additional MLOs if needed. The law may also authorize the PNP and NBI to enter into agreements with accredited forensic service providers to augment the services provided by their offices. Like the first two (2) options, a governing board may oversee MLDI activities conducted by the PNP and NBI. The law may likewise authorize the creation of a coordination committee with representatives from other agencies that play a role in MLDI, including the other divisions within the PNP and NBI outside of the Medico-Legal Divisions.

216 The creation of agencies in boxes with broken lines, such as the Forensic Services Accreditation Division and coordination committee, is optional. 217 Republic Act No. 10867, sec. 5(b) and (c).

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B. Key Actors

1. Head of the MLDI System

The law should clearly identify the head of the MLDI system: (1) the CME in the case of a central MLDI system, (2) a NME in the case of a decentralized MLDI system, or (3) the CML in the case the current police-led system is retained. In all cases, the head of the MLDI authority must, at the minimum, be a physician with training and experience in pathology with at least ten (10) years’ experience in MLDI.219 The head of the MLDI authority must have the power to:

218 The creation of agencies in boxes with broken lines, such as the Forensic Services Accreditation Division and coordination committee, is optional. 219 MLDI Toolkit, sec. 5.A, p. 18. Country practices require five (5) years of experience.

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(1) supervise and oversee220 death investigations221 and approve, reverse, or modify the decisions and findings of MEs, LMEs, or MLOs;222

(2) issue guidelines and SOPs to MEs, LMEs, or MLOs and other forensic specialists in conducting MLDI and forensic service providers;223

(3) prescribe trainings on relevant topics to MLDI (e.g. conduct of autopsies, forensic evidence collection, handling, and storage, and filling out examination reports and the MCCD) for (a) MEs, LMEs, or MLOs as a requirement prior to joining the MLDI system or for continuing to hold positions therein, or (b) initial or renewal of licensing or accreditation in the case of external forensic service providers;

(4) determine whether jurisdiction exists over a referred death;224 (5) rule on objections to or deny requests for exemptions to autopsy on valid grounds, or

requests for autopsy;225 (6) participate in mass fatality planning;226 and (7) ensure quality of MLDI services, through establishing peer review of autopsy findings227

and regular updating of SOPs.

2. Medical Examiners, Local Medical Examiners, or Medicolegal Officers The PMEO, LMEOs, or PNP and NBI must have in-house MEs, LMEs, or MLOs who must also be physicians trained in MLDI, at the minimum. The offices must have a core team of specialists or, the head of the MLDI system must be authorized to accredit private entities and laboratories and enter into agreements with these accredited service providers. The law must prescribe minimum qualifications for MEs, LMEs, and MLOs, i.e. licensed physicians who are trained to perform post-mortem examinations.228 MEs, LMEs, and MLOs must be authorized and tasked to:

- determine whether a death is a reportable death, and if so, whether to accept or release jurisdiction;

- decide the examinations necessary, if any, to ascertain cause and manner of death, including whether to refer to other physicians for autopsy in case of unavailability, or to other forensic service providers for further examinations; and

- accomplish the MCCD and transmit the death certificate (including MCCD) to the LHOs for review and the LCR for registration.

220 Hanzlick, Randy (2007), Death Investigation: Systems and Procedures, at 94. In the states of Mississippi and Montana, for instance, the chief medical examiners oversee death investigation activities. 221 MLDI Toolkit, sec. 2, p. 13. 222 Executive Order No. 292, Book IV, Chapter VII, sec. 38(1) defines the administrative relationship of supervision and control to include “authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs”. 223 Including transportation and mortuary facility service providers. 224 MLDI Toolkit, sec. 9, p. 30. 225 Id., sec. 10, p. 32. 226 Id., sec. 16, p. 44. 227 Id, sec. 11, p. 35. Examples of informal peer review mechanisms include a daily meeting of pathologists prior to finalizing a report and formal auditing of a sample set of cases. 228 Hanzlick, Randy. (2007), Death Investigation: Systems and Procedures, at 41.

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Medical examiners should also be given powers to investigate beyond conducting an examination of the body, such as to:

- conduct death scene investigation and evidence collection alongside law enforcement agencies,229 which must be mandated to cooperate and coordinate with medical examiners;230

- immediately take custody of the body and prevent tampering with the same;231 - determine how and where the body will be transported for examination; - retain forensic samples even after release of the body;232 and - subpoena witnesses and documents and take oaths.233

3. Mechanisms to Insulate MLDI for Deaths in Custody

The CME in a centralized ME system or NME in a decentralized ME system must be authorized by law to establish mechanisms to ensure independence of MLDI for deaths in custody. These mechanisms may include (1) establishing a special investigations unit (SIU) that shall be tasked to take exclusive jurisdiction of deaths in custody that are referred to the MLDI authority, or (2) introducing reviews to ensure impartiality by MEs or LMEs assigned to a case. In a police-led system, the law must vest the NBI with exclusive jurisdiction over deaths in police custody. In any case, no former officer or member of the PNP may be appointed as the ME, LME, or MLO to investigate a death in custody,234 whether as part of an established SIU or otherwise. The law must also authorize the CME, NME, or NBI CML to coordinate closely with the chief of the local police unit that is involved in the death in custody to secure the death scene235 and ensure segregation of the police officer/s (i.e. the police officer/s whose conduct appears to have caused the death under investigation)236 that are subject of the investigation from the witness officer/s (i.e. police officer/s who is/are involved in the incident under investigation but is/are not a subject officer).237 The law may also require the head of the MLDI authority to notify the Commission on Human Rights (CHR) about deaths in custody referred to MLDI and authorize the CHR to conduct an external audit if it determines that there have been violations of human rights provisions enshrined in the Constitution.

4. Forensic Service Providers In all cases, MEs / LMEs / MLOs may refer cases, for the conduct of examinations other than autopsy (e.g. toxicology, ballistics, odontology, histopathology, etc.), to in-house or contractual or referral forensic service providers, including transportation service providers.

229 MLDI Toolkit, sec. 12, p. 37. 230 Ibid. 231 Id. p. 38. 232 Id., sec. 22, p. 51. The legal framework should define the records, including samples, to be kept and for what period. 233 Id. sec. 12, p. 37. 234 R.S.O. 1990, c. P.15, s. 113 (3). 235 O. Reg. 267/10, s. 4. 236 Martino, Joseph (2020, August). The Special Investigation Unit of Ontario: A Model for the Investigation of Police-involved Fatalities. Lecture at Deaths in Custody 2: International Case Studies conducted on August 2, 2020. 237 Id. O. Reg. 267/10, s. 6 (1).

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The CME / NME / CML may also be authorized to delegate the power to accredit forensic service providers, or to enter into agreements with local forensic service providers, when resources or specialists are not sufficient to establish complete forensic services in all localities.

5. Medicolegal Death Investigators The new MLDI law must ensure that law enforcement agencies conducting death investigations, such as the PNP FR, IOCs, and SOCOs, coordinate with the ME / LME / MLO by providing them timely notice and information. All entities involved in MLDI should share relevant evidence.238 The new law must clarify that ME / LME / MLO shall have authority to enter all death scenes, including crime scenes secured by law enforcement for purposes of MLDI.239

6. Regulation of Forensic Services The Philippines may consider regulating all forensic service providers, whether retained or engaged by the MLDI authority or those offering services to the public. Regulation may be through licensing or accreditation through a new body (e.g. Forensic Services Accreditation Division) or the Philippine Regulatory Commission. The law may, in addition to requiring a license for all persons providing forensic services, mandate licensees to undergo continuing professional education on MCCD, MLDI, and other forensic services as a condition for license renewal.

C. MLDI Process

238 MLDI Toolkit, sec. 12, p. 37. 239 Ibid.

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Figure 6. Proposed MLDI process 1. Reportable Deaths

The new MLDI law must specify the types of reportable deaths that must be referred to the ME / LME / MLO. The existing list in DOH Administrative Order No. 0008-2020 and other reportable deaths in Republic Act No. 10867,240 may be adopted and consolidated. The Philippines may consider expanding the coverage of reportable deaths to include those (1) at the hands of the state, (2) in state institutions other than prisons; (3) due to therapeutic misadventure, or (4) constituting a threat to public health. The law must clarify that the current jurisdiction of the PNP and NBI to investigate mass casualty deaths under prevailing laws, rules, and regulations shall be retained. In case the police-led system is maintained, the new MLDI law must clarify to which agency a case must be reported. As mentioned earlier, the new MLDI law may prescribe that all deaths in the custody of the police or any other law enforcement agency shall be reportable exclusively to the NBI.

2. Referral of Reportable Deaths to the MLDI Authority The law must also require any person who has knowledge of a reportable death to refer the death to the MLDI authority or the police, who must, in turn refer the case to the MLDI authority. The new MLDI law may clarify that this duty must be fulfilled not only by next of kin, but also by heads of institutions, such as community residential facilities, prisons and jails, as well as funeral directors, embalmers and other persons who may be aware of such as death.241 The law must mandate the attending physician or head of a healthcare facility to determine whether a dead on arrival or brought in dead case is due to unnatural, suspicious, or unexplained causes, and if so, to refer the case to the MLDI.242 Otherwise, attending physician or head of a healthcare facility must be mandated to certify the death due to natural cases. For deaths in custody, the law must mandate the chief of the local police unit, the supervising officer/s, and other members of the police force with knowledge of the death in custody to refer the same to the MLDI authority only. Lastly, the law must penalize the failure to refer a reportable death to the MLDI authority and may consider providing additional administrative penalties for the failure to refer a death in custody.

3. Determination of Jurisdiction over a Referred Death The new MLDI law should empower the MEs, LMEs, or MLOs to determine whether a death is a reportable death. If the death is reportable, the ME / LME / MLO must be authorized to decide whether to release jurisdiction in case he/she ascertains the death is due to natural causes, or to accept jurisdiction in all other cases. In the case of a non-reportable death, the ME / LME / MLO must be mandated to refer the case back to the LHO for verbal autopsy and determination of cause and manner of death.

240 i.e., extrajudicial, or extra-legal killings committed by the state’s security forces against media practitioners and activists, killings of justices and judges, and other cases as directed by the Secretary of Justice. 241 MLDI Toolkit, sec. 9, p. 30. 242 Id., p. 29.

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4. Determination of Examinations to Determine Cause and Manner of Death

The new MLDI law should repeal existing provisions in the Sanitation Code enumerating cases when autopsy is required. Instead, the CME/NME/CML should have the power to issue guidelines on when autopsies are recommended, while leaving the ME / LME / MLO the discretion to decide the most appropriate method/s to determine cause and manner of death, which may include autopsy or other less invasive forensic examinations, based on his/her own determination, or based on guidance from the head of the MLDI system regarding cases where autopsy or post-mortem examination is recommended. The law should allow the Solicitor General or head of the police, and next-of-kin to appeal the decision of a ME / MLO to conduct, or not to conduct an autopsy, to the CME/NME/CML, and then to a court.243

5. Time Limit for Completing MLDI The current requirement of submitting the death certificate to the LHO within 48 hours from the time of death or knowledge of death results in many registered reportable deaths having “pending investigation” or “unknown” as cause and/or manner of death. To address this, the Philippines may consider a longer period (e.g., 30 days) within which the ME / MLO must submit the death certificate and MCCD to the LHO from the time the case is assigned. In cases where the MLDI is not completed, the law may require the ME / MLO to submit a report to the CME / LME / CML for monitoring. The law must also provide an administrative process to amend MCCD in case the cause of death registered is “pending investigation” or “unknown.” With this, the ME / MLO will not have to go through a lengthy judicial process under Rule 108 of the Rules of Court and may instead update the records of the decedent to reflect the findings from MLDI.

D. Records and Evidence Management

1. Case File and Reports The new MLDI law should specifically task the ME / MLO to prepare a case file for each referred case, and prescribe the minimum information required in MLDI reports (e.g., autopsy report, ballistics analysis report, etc.). In particular, the case file should include the following information: external examination, evidence of injury, evidence of medical therapy or treatment, internal examination (if autopsy conducted), toxicology, summary of findings, and cause and manner of death.

2. MLDI Records and Evidence Management Guidelines should clearly identify the MLDI records that must be retained and for how long, and who may access these records. The Philippines may also consider allowing the ME / MLO to withhold access to records containing information that may prejudice the prevention, detection, investigation, prosecution, and punishment of criminal offenses relating to the death concerned or its circumstances. This decision should be appealable to the CME / NME / CML. Guidelines for

243 MLDI Toolkit, sec. 10, p. 33.

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the collection, handling, storage, disposal, or destruction of evidence and forensic samples should be issued. The law should clearly state that the next of kin shall have access to the autopsy report and other examination reports.

E. Funding The new MLDI law must provide initial appropriation to fund the MLDI authority’s activities and programs and establish a source of recurrent funding. The law may consider authorizing the head of the MLDI authority to retain all fees and charges payable for MLDI services to fund future activities.

F. Transitory Mechanisms In a centralized ME system, MEs may be composed of MLOs from the PNP and NBI Medico-Legal Divisions as well as of new recruits. To facilitate the seamless transition of PNP and NBI MLOs to the PMEO or LMEOs, the law must (1) provide for the absorption of the personnel in the existing PNP and NBI Medico-Legal Divisions, (2) ensure equivalence of rank and salary grade, and (3) non-diminution or preservation of seniority, emoluments, and other benefits to which they were entitled in their former office. In case of a decentralized ME system, the NME may be required to assign LMEs to cities and municipalities for a specific transition period, from the time of creation of the PMEO and LMEOs, until such time that LCEs have established LMEOs. Thereafter, the LCEs may appoint the LMEs. In both cases, the law must provide for a hold-over period, where the current systems and processes will be followed, until such time that the CME/NME/CML has declared that the new law will be implemented, or until the termination of a pre-determined hold-over period.

institutional and legal assessment of the medicolegal

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