Fatal Accident Inquiries: review

Processes and Procedures

Who Investigates Deaths?

44. The procurator fiscal is responsible for investigating the circumstances of any death that requires further explanation and for presenting evidence at the FAI. Prior to 2010, investigations into the circumstances of a death were conducted in local procurator fiscal offices under the direction of the local procurator fiscal. Recognising a lack of consistency in the approach and quality of such investigations, there has been a progressive move towards greater specialisation in the investigation of deaths in COPFS.

Scottish Fatalities Investigation Unit ( SFIU)

45. In 2010 SFIU was established as the national specialist unit responsible for investigating all sudden, suspicious, accidental and unexplained deaths. When launched in its initial form, it assumed responsibility for policy at a national level with the investigation of deaths still managed at local level under the direction of SFIU.

46. In April 2012, as part of the re-structuring of COPFS, SFIU assumed national responsibility for investigating all non-suspicious deaths from the death being reported to COPFS to the point of closure. Their role is to investigate and prepare all death reports to the highest possible standard, to apply policy and practice consistently, to ensure that appropriate and timely decisions are taken in every case and progress deaths investigations expeditiously.

47. Within the new structure three SFIU divisions were located in three geographical COPFS Federations - SFIU North, SFIU East and SFIU West. SFIU National oversees the work of all divisions, including monitoring all potential FAIs and has input on policy matters relating to deaths. The heads of the three SFIU divisions report directly to the head of SFIU National who is responsible for the strategic oversight and efficient running of the Unit.

Health and Safety Division ( HSD)

48. Whilst the vast majority of death reports are investigated by SFIU, fatalities arising from potential breaches of health and safety legislation reported by the Health and Safety Executive ( HSE) are investigated and prosecuted by the national Health and Safety Division. The increased profile of health and safety crimes and the complexity of many health and safety cases led to the creation of the Health and Safety Division in 2009. HSD was established to work closely with law enforcement to bring a more strategic approach to the prosecution of health and safety cases and ultimately drive up safety standards in workplaces throughout Scotland through robust investigation and prosecution of those who failed to discharge their health and safety obligations.

Investigation of Deaths by SFIU

49. Deaths are most commonly reported to the procurator fiscal by hospital doctors, General Practitioners ( GP) ^[24] and the police, although reports may also be sent from other investigative bodies such as HSE. The reports are sent to the SFIU division that covers the geographical area where the person died. In many cases, after a brief discussion or minimal enquiry, a medical practitioner will issue a certificate specifying the cause of death. In other cases, additional information and investigation may be required prior to the death being certified. In carrying out its investigations, SFIU will review the evidence, including the post‑mortem and other medical reports. Statements may also be taken from witnesses and reports commissioned from specialists or experts in particular fields. As shown in Chart 3, in recent years, more extensive investigation has been necessary in more than 75% of deaths reported.

50. Once the evidence has been engathered, decisions will be made on how to proceed, including whether criminal charges should be pursued or an FAI should be held.

51. FAIs vary enormously in their nature and complexity. They can range from inquiries into the death of a person in custody by natural causes, where there are no issues of concern, to inquiries involving complex medical matters or technical inquiries into the cause of a helicopter accident.

Monitoring FAIs

52. With the creation of SFIU there is a centrally managed system of case monitoring and data collection. All mandatory and discretionary FAIs are entered by each division onto the COPFS computer-based case‑tracking system and management information system known as PROMIS. Data derived from PROMIS is used to populate the COPFS Management Information Book ( MI Book) which provides a range of management information in a readable format. The overview of all cases where an FAI may be held enables SFIU National to identify emerging trends or issues.

53. If a mandatory FAI is to be held, a report should be sent to SFIU National by the relevant geographical SFIU division dealing with the death investigation within six weeks of receipt of the death report. These reports are known as 'First Stage Reports'.

54. If a discretionary FAI is being considered, an initial report should be sent to SFIU National providing details of the perceived issues and seeking confirmation of the proposed direction of the investigation. Again, such reports should be submitted within six weeks of receipt of the death report. SFIU National then provides guidance and advice on lines of further investigation that may be required. A further report, known as a 'Second Stage Report,' is sent to SFIU National at the conclusion of such inquiries. Thereafter, SFIU National sends a report to Crown Counsel ^[25] outlining the issues and providing a recommendation on whether or not a discretionary FAI is in the public interest. Crown Counsel will issue instructions to SFIU as to whether an FAI is to be held, what additional work may be required and whether any additional expert evidence or opinion should be sought to be presented at an FAI.

55. The purpose of reporting FAIs to SFIU National is essentially two-fold. It provides:

• An independent check on the progress of the case; and
• An overview of the circumstances of all FAIs.

Annex A provides a flowchart outlining the role of COPFS in the investigation of sudden, suspicious, and unexplained deaths and the various stages of an FAI.

Performance Targets

56. SFIU is subject to the following targets:

• The published COPFS performance target is to investigate cases which require further investigation and inform the nearest relatives of the outcome within 12 weeks of the receipt of the report in at least 80% of cases. For 2015/16 this target was met in 92% of cases and, so far, in 2016/17, ^[26] it has been met in 88%. ^[27]
• COPFS introduced an internal target in 2014 that, following receipt of Crown Counsel's instruction ( CCI) to hold an FAI, all applications ^[28] should be submitted to the relevant court within eight weeks of the instruction. Since its introduction, the eight week target has been successfully implemented in 75% of all cases. ^[29]

57. In the three divisions of SFIU, there are differing approaches to monitoring and reporting cases. We found that the SFIU divisions did not routinely inform SFIU National of mandatory FAIs or cases where a discretionary FAI was being considered until a report requesting CCI was submitted. Further, the six week target is routinely not met by any of the SFIU divisions.

58. Part of the reason for the disparity in approach is a lack of clarity by SFIU staff on when first stage reports and mandatory FAIs should be reported and the target for submitting such reports.

59. Guidance on the investigation and reporting of deaths largely pre-dates SFIU and in many respects is out of date. More recent guidance and instruction, including the introduction of the new internal target to seek the authority of the court to hold an FAI within eight weeks of CCI, is often circulated by email which is of little assistance to new members of staff or where there has been a change in personnel.

60. In many cases, the six week target is unrealistic as the information required to report the case in a meaningful way is not available. For example, in 54% of cases we examined, the post-mortem report ^[30] was not available within six weeks of the death being reported. In cases where a discretionary FAI is being considered, the views of the nearest relatives and some extended investigation, often including the opinion of an expert, is usually necessary to form an overview of relevant issues.

61. While both SFIU National and the SFIU divisions monitor the progress of deaths investigations and FAIs, there is no formal reconciliation between the SFIU divisions and SFIU National. To compensate for deficiencies in the reporting process, SFIU National relies on data recorded in the MI Book to ensure it has an accurate overview of all active cases and FAIs.

62. The Act expressly provides for a single inquiry to be held into the deaths of more than one person, whether or not they occurred in the same sheriff court jurisdiction, if it appears to the Lord Advocate that the deaths occurred as a result of the same accident, or otherwise in the same or similar circumstances. ^[31] To maximise the use of this provision, SFIU National requires a system to ensure that it receives early notification of the circumstances of all deaths where a mandatory or discretionary FAI may be appropriate.

63. A simplified, streamlined system of notification providing essential details and highlighting any areas of concern, with the ability to seek advice in problematic cases, rather than requiring a detailed report in every case would provide SFIU National with early notification of the nature of the case and the likelihood of an FAI. The introduction of a formal reconciliation process of all active cases between the SFIU divisions and SFIU National would provide reassurance that both SFIU National and the SFIU divisions were fully sighted on the progress of cases, the number of mandatory FAIs to be held and the number of cases where a discretionary FAI was being considered.

Recommendations 1, 2 and 3

1. SFIU should implement monthly reconciliations of all active deaths investigations between SFIU National and the SFIU Divisions.

2. SFIU National should introduce a streamlined reporting/notification process for FAIs.

3. SFIU National should review, update and centralise all guidance and policies on the investigation of deaths.