Section 3: The decision that an FAI should be held
3.1 This section of the paper was concerned with the categorisation of deaths for which an FAI is or may be required; and the communication of decisions as to whether there should be an FAI.
A The mandatory category
3.2 Some contributors pre-consultation suggested that it would be desirable to change the definition of the mandatory category.
6. Should the deaths which fall within the mandatory category be changed?
3.3 Seventy-three responses were received to this question. Twenty responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; fourteen from other individuals and groups including academics, charities and unions; eight from the judiciary; five from relatives; four from investigators; three from procurators fiscal, including the COPFS; two from expert witnesses; and one from SLAB. There was no consensus on this question.
3.4 Many respondents were in favour of the mandatory category being changed. For example, Sheriff John A. Baird said:
"There must be certain mandatory categories. Leaving it all to discretion is not acceptable. All deaths in custody, or of those children in care, or of those compulsorily detained under the mental health provisions and all military deaths, should be categorised where an inquiry is held."
3.5 However, some respondents were against changing the mandatory category. For example, the Medical and Dental Defence Union of Scotland and the Royal Pharmaceutical Society said:
"[N]o change should be made to the mandatory category."
3.6 Thirty-one respondents, including Mr Henry Palin and Who Cares? Scotland, were in favour of deaths of children in care of some description being subject to mandatory FAIs. Twenty-seven respondents were in favour of the deaths of persons detained by a hospital order under mental health legislation to be subject mandatory FAIs and three were explicitly against or raised concerns about such a proposal, including the Mental Welfare Commission for Scotland. Twenty-two respondents were in favour of deaths in legal custody being subject mandatory FAIs and three were explicitly against, including the Scottish Prison Service. Ten respondents were in favour of deaths in residential care establishments (of some description) being subject to mandatory FAIs. Eight respondents were in favour of hospital deaths, including deaths during surgery, being subject to mandatory FAIs and West Dunbartonshire Council and the Royal College of Surgeons of Edinburgh were explicitly against. Seven respondents were in favour of road deaths of some description being subject to mandatory FAIs and two were explicitly against. Two respondents were in favour of unresolved murders being subject to mandatory FAIs. There were also calls for mandatory FAIs into drug-related deaths; deaths caused by fire; maternity deaths; unexpected deaths of young people and the deaths of infants. Plus, seven respondents were against deaths at work being a mandatory category.
3.7 Some contributors pre-consultation also suggested that there should not be a mandatory requirement for an FAI in some exceptional cases.
7. Should the requirement to hold an FAI into a death which falls within the mandatory category be subject to exception?
3.8 Sixty-nine responses were received to this question. Eighteen responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; thirteen from other individuals and groups including academics, charities and unions; eight from the judiciary; six from relatives; three from investigators; three from procurators fiscal, including the COPFS; two from expert witnesses; and one from SLAB. There was no consensus on this question.
3.9 A number of respondents were in favour of exception to the mandatory category. For example, the Aberdeen Sheriffs said:
"It should not be necessary to hold an Inquiry if it is clear that the person died from natural causes. There is little point in conducting an inquiry into the death of a 65-year old prisoner who had had cancer for the last 5 years. Frequently, no one other than the prison authorities turn up at such an FAI, and the cause of death is known and clear in advance. It would, however, be open to the relatives to request that an FAI be held, if they were of the view that although the death appeared to be from natural causes, there was some omission, e.g. a failure to treat a person timeously."
3.10 The COPFS wanted exceptions to the employment deaths category, commenting that "the death of persons who have died in the course of their employment should not automatically be the subject of a mandatory FAI and that there should be a discretion not to hold an FAI in the case of a death in the course of employment where no issue requiring public inquiry arises".
3.11 However, a number of respondents were against exceptions to the mandatory category. For example, the Scottish Trades Union Congress ( STUC) said:
"The STUC believes that in order to ensure that there is no opportunity to question the integrity of the process then there should not be an exception in any case falling within the mandatory category."
B Discretionary category
3.12 Some contributors pre-consultation suggested that the views of interested parties, other than relatives, should be considered, and that they should have the opportunity to make representations to the COPFS before a decision is made about whether or not an FAI should be held.
8. Should other interested parties be able to make representations to the Lord Advocate during the decision making process?
3.13 Fifty-seven responses were received to this question. Fifteen responses were received from lawyers and their representative bodies; thirteen from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; twelve from other individuals and groups including academics, charities and unions; six from the judiciary; five from relatives; three from procurators fiscal, including the COPFS; two from investigators; and one from an expert witnesses. There was no consensus on this question.
3.14 Many respondents were in favour of the interested parties being able to make representations to the Lord Advocate during the decision making process. For example, the Civil Justice Committee - The Law Society of Scotland said:
"It is in the public interest that parties should be able to make representations to the Lord Advocate. It is important for the Lord Advocate to have all competing views in order to make an informed decision on whether or not to hold an FAI."
3.15 However, some respondents were against interested parties being able to make representations to the Lord Advocate during the decision making process. For example, Thompsons Scotland said:
"To allow other interested parties to be able to make representations to the Lord Advocate would unduly complicate and indeed hinder the pursuit of these objectives. Our concern would be that the Lord Advocate would be inundated with such representations from those who thought they had an interest in the death. It may also include pressure groups with other agendas than the death in question. It would also be difficult for the Lord Advocate to distinguish between those who had a genuine interest and those who did not. There would also be agendas seeking to avoid embarrassment, adverse evidence or culpability. If the Lord Advocate was to accede to such a representation her objectivity and transparency would also be compromised. The Lord Advocate should be free from all such representations. The relatives' interests would also be in danger of being eclipsed."
3.16 Some contributors pre-consultation said that they should be given a more detailed explanation in the form of a reasoned decision, and that, if this were done, the decision would be less likely to be questioned.
9. Where the Lord Advocate decides not to hold an FAI, should a formal, reasoned decision be provided to relatives of the deceased?
3.17 Sixty-five responses were received to this question. Eighteen responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; eleven from other individuals and groups including academics, charities and unions; seven from relatives; six from the judiciary; three from procurators fiscal, including the COPFS; two from investigators; two from an expert witnesses; and one from SLAB. There was no consensus on this question.
3.18 Many respondents were in favour of a formal, reasoned decision being provided to relatives of the deceased. For example, Mrs Jean Thornton said:
"[A] decision not to hold a FAI should be fully explained to relatives especially when there has been clear evidence of neglect of that person's care prior to death. This does not always happen at present. Our family has repeatedly been told the matter has been investigated despite the fact that three complaints were upheld against the nursing home where our mother was a resident and which were all contributing causes of death. We were also refused a request to see the report the Procurator Fiscal sent to Crown Counsel."
3.19 However, some respondents were against a formal, reasoned decision being provided to relatives of the deceased. For example, the Medical Protection Society said:
" FAIs should be held when there are clearly matters of public interest. If a decision is taken not to hold an FAI and that decision is questioned, it may be appropriate for some informal advice to be provided to relatives of the deceased as the reason for that decision. We advise that giving a formal reasoned decision to relatives of the deceased would have little benefit but would come with significant resource implications."
3.20 Mr Bill Campbell suggested such formal, reasoned decisions should also be made public.