Review of the arrangements for investigating the deaths of patients being treated for mental disorder

Existing systems of review and related policies

26. The Scottish Government and NHS Scotland have a shared vision for an open and learning culture. We want to learn when there has been dissatisfaction or harm and encourage organisations to identify improvements. Health and social care organisations need to learn effectively from best practice, from past experiences and have effective processes to translate this learning into improvements in the delivery and management of care. When someone dies, either in hospital or in the community, there may be investigations or reviews of varying levels by a number of different organisations. In some cases there can be two or three investigations running in parallel often with very different aims and processes.

27. The following sections provide a summary of the work that has been identified as an element of the arrangements for investigating deaths of people being treated for mental disorder in Scotland.

Health boards — adverse event reviews

28. An adverse event can be defined as an event that could have caused, or did result in, harm to people or groups of people. All adverse events should result in a review, although the level of review will depend on the seriousness of the adverse event. The term used to describe these reviews and how they are carried out varies between health boards. Boards' adverse event policies and processes apply to all care provided, including that provided in mental health and learning disability settings.

29. Healthcare Improvement Scotland (HIS) published the latest edition of its adverse events framework in July 2018. The national framework is intended to support a consistent national approach to the identification, reporting and review of adverse events, and allow best practice to be actively promoted across Scotland.^[7]

30. For category I adverse event reviews (which includes those that have contributed to or resulted in death), the framework states: 'Full review team: commissioning manager to agree review lead and Terms of Reference (the review team should be sufficiently removed from the event, and have no conflict of interest, to be able to provide an objective view).' The framework goes on to say that: 'An event being subject to a significant [adverse event] review does not automatically indicate a causal link between care or service delivery and the outcome, or that the event was avoidable. It reflects the perceived need to review the event in detail to establish the facts of what happened to determine any links between the care delivery and the outcome or that there is potential for learning to inform system/service improvement.'

31. Health boards may choose to share the results of any adverse event review with others, including the Crown Office and Procurator Fiscal Service, and the Commission. The framework's focus is on sharing any learning that could inform service improvement and any learning that could inform organisations' adverse event management processes to improve the quality of care delivered. An 'Adverse Events Community of Practice' website has been set up to support care providers to share learning for improvement following adverse events reviews.^[8]

Crown Office and Procurator Fiscal Service (COPFS)

32. The Lord Advocate has the responsibility for investigating deaths that require further explanation. The Procurator Fiscal, acting on behalf of the Lord Advocate, receives reports of deaths in certain circumstances. Within COPFS, the Scottish Fatalities Investigation Unit (SFIU) is a specialist unit responsible for investigating sudden, suspicious, accidental and unexplained deaths.

33. The role of COPFS in relation to the deaths of detained patients is set out in a joint letter from the Scottish Government's Chief Medical Officer and the Crown Agent and Chief Executive of COPFS. The letter was issued to health boards in November 2015 requiring medical practitioners to report to the Procurator Fiscal, any death of a person subject to an order under either the 2003 Act or part VI of the 1995 Act (whether in hospital or in the community).^[9] The letter states that there may 'be a small number of cases where some further investigation is required into the circumstances of the death. This will enable discretionary Fatal Accident Inquiries (FAI) as appropriate, as in any reported death.' It goes on to say that 'The change has been introduced to ensure that these deaths are given the appropriate level of scrutiny in accordance with Article 2 of the European Convention on Human Rights.'

34. In carrying out its investigations, COPFS will usually review evidence, such as post-mortem and other medical reports. Statements may also be taken from witnesses. COPFS will make decisions about how to proceed, including on whether or not to instigate criminal proceedings, or whether an FAI should be held. FAIs are judicial inquiries which are held in the public interest to establish the time, place and cause of a death and to identify reasonable precautions which may be taken to prevent deaths in similar circumstances.^[10]

35. The Lord Advocate's role in relation to investigating the deaths of those in mental health detention was explored during the parliamentary passage of the Bill for the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. In response to the proposal to have mandatory FAIs for people who die in mental health detention, the Scottish Government acknowledged that there may be a case for the various inquiries and investigations in these situations to be rationalised and formalised but did not believe that this Bill was the vehicle for this.^[11]

Health and Safety Executive (HSE)

36. The Health and Safety Executive is responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, and for research into occupational risks in Great Britain.

37. HSE is responsible, under section 18 of the Health and Safety at Work etc. Act 1974 for making adequate arrangements for the enforcement of health and safety legislation with a view to securing the health, safety and welfare of workers and protecting others, principally the public. This does, in certain circumstances, include the deaths of NHS patients who have died by suicide. HSE would normally receive relevant reports on deaths by suicide from COPFS. Following an investigation HSE may report its findings to COPFS for consideration of prosecution where there is evidence of inadequate health and safety management as a significant causative factor in a death.

38. HSE has information sharing agreements in place with both HIS and the Commission.

The Mental Welfare Commission for Scotland

39. The Commission was established by the Mental Health (Scotland) Act 1960, with modifications made to its constitution and functions by the 2003 Act and the Public Services Reform (Scotland) Act 2010. It is accountable to Scottish Ministers but carries out its work and produces reports independently from Scottish Government. The Commission is a member of the UK National Preventative Mechanism (NPM), a body that brings together independent monitoring organisations that all have a role in protecting people in detention.

40. Through a programme of regular visits and published reports, the Commission helps NHS and independent mental health and learning disability services to improve the care and treatment they provide. Through its telephone and email enquiry service, the Commission provides advice to service users, carers and professionals on rights in relation to mental health and incapacity law and care and treatment.

41. The Commission, in carrying out its functions, is required by section 4(2A) of the 2003 Act to '…act in a manner which seeks to protect the welfare of persons who have a mental disorder'. It has extensive powers to carry out investigations and make recommendations into a patient's case. These powers apply to people detained in hospital and also to those who are in the community. The Commission can inquire into and make recommendations relating to any patient's case, including in circumstances where a patient may be, or may have been, subject or exposed to ill-treatment, neglect or some other deficiency in care or treatment. Investigations can be carried out while the person is alive and also following death.

42. Section 16 of the 2003 Act gives the Commission the power to require that any patient records, including medical records, are presented to it for inspection.

43. Under section 12 of the 2003 Act, the Commission can hold an inquiry for the purpose of carrying out an investigation. The chair of such an inquiry has the power to require people to attend to give evidence; administer oaths and examine witnesses under oath. Inquiry proceedings have the privilege of court proceedings and refusal to attend or give evidence at an inquiry is a criminal offence.

44. Since Q2 2018, 11 cases involving the death of a patient have been referred to the Commission's Investigations Group.

Police

45. Where there are suspicious circumstances in relation to a death, Police Scotland will be called upon to support investigation of that death. In the absence of any suspicious circumstances, a death will be classified as a medical death. The police may receive reports of concern from other organisations such as the Commission or the Care Inspectorate.

46. In February 2016 a new joint protocol, between NHS Scotland, COPFS and Police Scotland, was introduced. This provides guidance to colleagues in NHS Scotland and Police Scotland, clarifying the roles and responsibilities of individuals and organisations in the management of deaths in the community.^[12]

Organisational duty of candour

47. Where a death is a result of an unintended or unexpected incident during the provision of care and treatment and not related to course of the condition for which the person was being treated for, healthcare (and other) providers are required to follow the duty of candour procedure.

48. The organisational duty of candour, established by the Health (Tobacco, Nicotine etc. & Care) (Scotland) Act 2016 and the Duty of Candour Procedure (Scotland) Regulations 2018, came in to force on 1 April 2018.^[13]

49. The duty of candour procedure applies when unexpected or unintended harm occurs which results in one of a number of outcomes (including death). The responsible person (the organisation) will be required to contact the relevant person (where death is involved, this could be someone acting on behalf of the person who died) to provide a notification which includes:

• an account of the incident insofar as the responsible person is aware of the facts at the date the notification is provided;
• an apology on behalf of the responsible person, (unless the responsible person considers that such an apology has been provided at an earlier date);
• an explanation of the actions that the responsible person will take as part of the procedure.

50. Relevant persons must be invited to attend a meeting and be given the opportunity to ask questions in advance. At the meeting, they must receive an explanation of further steps being taken regarding the investigation and be given an opportunity to express their views about the incident. They will be provided with details of an individual member of staff who will become their point of contact.

51. In carrying out the review of an incident, the relevant person's views must be sought and organisations must take account of the views expressed. The responsible person must prepare a written report of the review which must be offered to the relevant person along with any other relevant documentation.

52. The relevant person must receive information about actions taken in accordance with the provisions in respect of improvement in quality of service.

53. The organisational duty of candour applies to health services, care services, and social work services.

54. The first annual reports following the introduction of the organisational duty of candour will be published during 2019.

Other reviews

55. If the person died in a registered care setting there may be an investigation by the Care Inspectorate. If the death involves someone who has been supported by the local authority, there may be a Significant Case Review under the local authority processes.