Laura Donald, partner at BTO solicitors, says that changes to the rules concerning FAIs in Scotland are welcome and explains their significance to clinicians.
Some 40 years after the original regime governing fatal accident inquiries (FAIs) in Scotland we have a bold new dawn. The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 is no more. As a result of an independent review, commissioned in 2008, we have new legislation - the Inquiries into Fatal Accidents and Sudden Deaths (Scotland) Act 2016, the main changes of which came into being on 15 June 2017. Deaths before that date remain subject to the 1976 Act although otherwise it is largely repealed.
The review was ordered as a result of a number of concerns, principally the issue of delay in concluding matters and the perceived 'toothless' nature of a sheriff's recommendations. The time between a death and the end of the FAI could often run to years, some cases taking as long as three years to get to court with a further wait for the sheriff's determination. This had an inevitable impact on the families of the deceased as well as on other parties involved.
The new rules provide for the FAI to be more flexible, efficient and effective with witness evidence presented by way of written statement or video where possible. The main goal appears to be an improvement in efficiency and consistency, with modernised rules to reflect other changes in the Scottish justice system.
Such efficiency is sought by an increase in the sheriff's power, with the inquiry becoming more inquisitorial and the sheriff less dependent on simply hearing evidence presented by the crown and other parties. A sheriff has the ability to direct proceedings and can order that expert evidence be presented by a single expert.
The Act itself does not have any provisions that have an impact on a clinician's day to day practice. However, the outcome of an FAI might include recommendations to which a clinician (or the organisation they work for) might be required to respond.
Beyond handing more power to the sheriff the main changes include:
- more flexibility over the location of an inquiry
- linked events may cause a single inquiry to be held in one central location
- inquiries held into the death of people who normally live in Scotland but die abroad
- new mandatory Inquiries into the deaths of children in secure accommodation and deaths in 'police locations'
- a written response to any recommendations set out by the sheriff at the end of the FAI, setting out what has and has not occurred.
Any death is investigated by the procurator fiscal who has always had the power to require health professionals to provide them with clinical records and a statement (known as a precognition) before the start of the FAI.
The new rule to allow evidence to be led by witness statement or video recording is a welcome advance - it may avoid clinicians being required to appear in court to give oral evidence. The statement will take time to agree and it is advisable to seek early experienced advice from the MDU to ensure you avoid loopholes or areas where criticism may arise.
One practical difficulty in the new system is the need to front load investigations. Previously, as party to an inquiry, a clinician's legal representative has had a relatively free hand. We could obtain our own expert evidence if the crown expert was critical. There was no need to declare it and if it was less than helpful, then it would not be used and we could simply seek to better our client's position through careful cross examination.
Now, early permission will be required to lead our own expert - possibly before we have any report - and in light of the sheriff's power to order a joint expert there is no guarantee of such permission.
The real change in emphasis for any clinician will come after the determination is issued. A sheriff's recommendations will now have to be taken even more seriously, and there is provision to order parties to respond (in writing) within eight weeks of recommendations being made.
Recommendations may be addressed to parties to the FAI or to others who the sheriff deems may have an interest in similar circumstances as were examined in the FAI. It is likely this will mean that where relevant, bodies such as the GMC, GDC, NMC and the Health and Safety Executive will be provided with the recommendations and may be asked to respond.
Each party subject to a recommendation must set out what has been done, is in process of being done and what is not being done in light of those recommendations. Responses are likely to be publicly available on the Scottish Court website for scrutiny by all.
It is this last feature which will require the greatest change for clinicians. Providing no changes have been made as a result of a death in advance of the FAI, then reflection will be required quickly and parties prepared to explain action taken, or not taken.
As always, regulators like the GMC maintain a watching brief on all determinations, with that scrutiny given added bite by the potential for criticism of those who have not followed a sheriff's recommendation without good cause.
The new system for FAIs provides for important changes which may well affect health professionals where there is a sudden and unexplained death under clinical care. As always, a written record of the facts and circumstances of the death is sensible and early advice from the MDU on what is required of you if approached by the procurator fiscal is strongly recommended.
The new provision of written statements makes it imperative that care and attention to detail is taken in advance of the FAI. Meanwhile, the response to the recommendations at the end of the process means that your regulator may be assured, from a distance, that there is no likelihood that an investigation by them will result in a finding of impairment.