Section 6: Determinations
6.1 This section of the paper was concerned with the determinations of sheriffs.
A The content of determinations
6.2 Some contributors pre-consultation expressed dissatisfaction with determinations on the ground that there was sometimes a lack of consistency between them.
19. Should there be guidance as to matters to be covered by determinations?
6.3 Sixty-seven responses were received to this question. Sixteen responses were received 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 relatives; seven from the judiciary; three from procurators fiscal, including the COPFS; two from expert witnesses; and one from an investigator. There was no consensus on this question.
6.4 Many respondents were in favour of guidance as to matters to be covered by determinations. For example, BMK Wilson Solicitors said:
"Our experience of Determinations is very varied ranging from the relatively short to the very detailed… It is important that the on going training of Sheriffs is addressed re guidance of what should be covered in Determinations. Relatives also require guidance as early as possible as to what a Determination will cover and what attention will be paid to the findings/recommendations as more often than not a family's wish is that any similar death to that suffered by its relative should be avoided in the future."
6.5 However, some respondents were against guidance as to matters to be covered by determinations. For example, East Ayrshire Council said:
"[We] believe it should be left for the Sheriff to determine what should be covered in determinations, but believe it would be helpful for Sheriff to have access to database of prior determinations."
6.6 Four respondents suggested there should be better training for sheriffs or dedicated specialist sheriffs; three suggested that an explanation of the scope of the determination would benefit the parties, especially the relatives; and two wanted clarification on what is meant by the death "might have been avoided".
6.7 The COPFS wanted sheriffs to address the "issues raised by the Procurator Fiscal in the application for the FAI" and issues raised during the FAI by the Procurator Fiscal or other parties; Thompsons Scotland called for a duty to be placed on sheriffs requiring them to consider all the heads in section 6 of the Act; the Scottish Prison Service suggested that determinations should be provided within a "reasonable time" following the FAI; and the STUC wanted there to be a duty on sheriffs to publish determinations.
B Use of determinations
6.8 It was suggested pre-consultation that there should be an up to date public database.
20. Would it be helpful to create an up to date public database of determinations?
6.9 Sixty-eight responses were received to this question. Sixteen responses were received 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 relatives; eight from the judiciary; three from investigators; three from procurators fiscal, including the COPFS; and two from expert witnesses. There was no consensus on this question.
6.10 Many respondents took the view that it would be helpful to create an up to date public database of determinations. For example, NHS Greater Glasgow and Clyde said:
"The existence of a database would be helpful to Risk Management in the Health Service. It would make determinations more readily available and allow people to view these and Health Boards to learn nationally from incidents which have occurred in other Boards which may not have received publicity in the media, but may have lessons for the entire Health Service."
6.11 However, some respondents took the view that it would not be helpful to create a public database of determinations. For example, Sheriff John A. Baird said:
"[Determinations] are not admissible in subsequent proceedings, and have no determinative authority, not being binding on any other court or on those affected by the outcome due to the selectivity of the evidence led."
6.12 Mr I. H. Buist Carmichael was "in favour of a statutory duty being imposed to provide a suitable public database". The Faculty of Advocates and Mrs Jean Thornton explicitly agreed that such a duty should exist.
6.13 Sheriff J. P. Murphy suggested that the database should be controlled by the Scottish Court Service; Thompsons Scotland suggested the COPFS; and the Mental Health and Disability Sub-Committee of the Law Society of Scotland and Mrs Jean Thornton suggested the Scottish Government.
6.14 The COPFS noted that the "Scottish Court Service ( SCS) includes all determinations from FAIs as part of their judgements database". Another six respondents were under a similar misconception. The Scottish Court Service only publish determinations if they are provided by sheriffs, so not all determinations are available to the public.
C The following up of recommendations
6.15 It was suggested pre-consultation that recommendations should be monitored in Scotland by a central body, and that such reports should be published and presented to the Scottish Parliament for consideration.
21. Should responses to recommendations be monitored? If yes, should this be done centrally and by whom? If yes, to whom should any report be made?
6.16 Seventy-one responses were received to the first part of 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 relatives; eight from the judiciary; four from investigators; three from procurators fiscal, including the COPFS; and two from expert witnesses. There was no consensus on this question.
6.17 Forty-five responses were received to the second part of this question. Eleven responses were received from lawyers and their representative bodies; ten other individuals and groups including academics, charities and unions; nine from interested parties, such as Scottish Health Service bodies, local government and medical and health groups; seven from relatives; three from the judiciary; two from expert witnesses; two from procurators fiscal, including the COPFS; and one from an investigator. There was no consensus on this question.
6.18 Thirty-seven responses were received to the third part of this question. Nine responses were received from lawyers and their representative bodies; eight from interested parties, such as Scottish Health Service bodies, local government and medical and health groups; seven other individuals and groups including academics, charities and unions; seven from relatives; three from the judiciary; one from an expert witness; one from an ex-procurators fiscal; and one from an investigator. There was no consensus on this question.
6.19 Many respondents were in favour of recommendations being monitored. For example, the Royal Faculty of Procurators in Glasgow said:
"Given the resources utilised and the costs incurred in preparing for and concluding FAIs it would in our view be sensible and in the public interest for recommendations to be monitored, not necessarily on an individual basis, but on a wider general basis… It seems to us that recommendations should not only be monitored but analysed with a view to identifying trends and reaching conclusions for improving safety in the general public interest."
6.20 However, some were against recommendations being monitored. For example, North Lanarkshire Council said:
"[T]his could convert 'recommendations' to 'orders'."
6.21 In terms of who should undertake such monitoring, seven respondents, including Mr Joseph O'Donnell, NHS 24 and the Scottish Ambulance Service, suggested the Scottish Government; six suggested the HSE; six suggested a central body; four suggested the Lord Advocate or the COPFS; four, including West Lothian Council, suggested an independent body; three suggested public bodies or agencies; two, including the Howard League for Penal Reform in Scotland, suggested an ombudsman; two suggested the Scottish Parliament; and two suggested the court. Other suggestions included the public; inspectorates; the Human Rights Commission and NHSQIS, which was suggested by NHS Lothian.
6.22 In terms of who should be reported to, sixteen respondents, including Professor Sheila M. Bird, NHS Forth Valley and South Lanarkshire Council, suggested the Scottish Parliament; five suggested the Scottish Government; five, including Mrs Shirley Grierson and Mrs Margaret Jane Wood Milroy, suggested the public; four suggested the court; four suggested the Lord Advocate or the COPFS; three suggested Parliament; and two suggested the relatives. Other suggestions included the Health and Safety Commission; the UK Government; inspectorates; public bodies or agencies; charities and national secretariats.
6.23 The Scottish Court Service indicated that they are opposed to such monitoring on the basis that recommendations should not be mandatory, but suggested that there "might be scope to include in statute a requirement for the relevant organisation to have regard to the sheriff's recommendations". The Sheriffs Principal argued that the undertaking of a monitoring role "would be a wholly new one for the sheriff court and could have significant resource implications". Sheriff John A. Baird argued that it "would be quite wrong to enforce the making of such recommendations" and Sheriff J. P. Murphy agreed, commenting that implementation "should not be mandatory or monitored". These respondents were not the only ones to treat this question as if monitoring means mandatory implementation or the extending of the court's powers.
6.24 The COPFS endorsed the position in England and Wales "whereby the body or person to whom the recommendations apply is sent a copy of the determination and is under a duty to respond in writing outlining what action they intend to take or have taken to address these recommendations".
6.25 Six respondents suggested that the HSE should undertake the monitoring role. However, the HSE opposed the monitoring of responses to recommendations on the basis that "a monitoring system could be burdensome on bodies who may be asked to respond or to advise because of their remit or expertise". In addition, the HSE commented that it is possible that "recommendations may not be agreed with or by all interested parties" and there is also "the potential for recommendations to be made which relate to companies' duties under reserved health and safety law and HSE's responsibilities for enforcing compliance".
6.26 The Rail Accident Investigation Branch raised the possibility that "recommendations from an FAI could conflict with those from an Accident Investigation Branch investigation".
6.27 The Ministry of Justice (the UK Government) noted that sheriffs' recommendations may go wider than areas of devolved competence, so commented that "if sheriffs' recommendations and responses are to be published and presented to the Scottish Parliament… they should also be presented to the UK Parliament."
D Reviewing a determination
6.28 Some contributors pre-consultation suggested that the Lord Advocate should be given the power to apply for a further FAI, or the re-opening of a previous one, where this is appropriate.
22. Should the Lord Advocate be able to apply for a further FAI or the re-opening of an FAI? If so, should this only be in limited circumstances?
6.29 Sixty responses were received to the first part of this question. Fifteen responses were received from lawyers and their representative bodies; fourteen from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; nine from other individuals and groups including academics, charities and unions; eight from relatives; seven from the judiciary; three from investigators; three from procurators fiscal, including the COPFS; and one from an expert witness. There was no consensus on this question.
6.30 Forty-five responses were received the second part of this question. Ten responses were received from lawyers and their representative bodies; nine from interested parties, such as Scottish Health Service bodies, local government and medical and health groups; eight from other individuals and groups including academics, charities and unions; seven from the judiciary; five from relatives; three from investigators; two from procurators fiscal, including the COPFS; and one from an expert witness. There was no consensus on this question.
6.31 Many respondents took the view that the Lord Advocate should be able to apply for a further FAI or the re-opening of an FAI. For example, the Royal College of Nurses said:
"So far as possible, all stake holders should know that the determination brings closure to the FAI. However, if some key piece of new evidence emerges it ought to be possible for the FAI to be re-opened."
6.32 However, some respondents took the view that the Lord Advocate should not be able to apply for a further FAI or the re-opening of an FAI. For example, NHS Highland said:
"Assuming fair and consistent 'First FAI' this should not be necessary. If new evidence comes to light, a further FAI is not the correct procedure."
6.33 Of the respondents in favour of the Lord Advocate being able to apply for a further FAI or re-opening an FAI, many took the view that this should only be in limited circumstances. For example, PAMIS said:
"It would only be beneficial to reopen the FAI if new evidence was available that would make a significant difference to the determinations and any recommendations made."
6.34 However, some respondents took the view that the circumstances should not be limited. For example, Families Outside said:
"The Lord Advocate should have the discretion to apply for a further FAI or the re-opening of an FAI where he or she deems this to be appropriate. As long as reasoned decisions can be made to support this, the 'limited circumstances' should not (and perhaps cannot) be defined in advance."
6.35 The COPFS called for powers to be conferred on the Lord Advocate to allow for the re-opening of FAIs.
6.36 Mr Michael Peterson commented that "the re-opening of FAIs should be limited to cases… where the determination is unreliable in light of more recent medical research findings". The Royal College of Pathologists agreed that in the inquisitorial spirit of the FAI "it should be possible to re-open these in light of new evidence or new interpretation of complex medical and scientific evidence".
6.37 Aberdeen University School of Law commented that the Lord Advocate should have "the facility to apply for the re-opening of an FAI where there are grounds to believe that the Sheriff did not hear evidence which was not readily available to any of the interested parties and which could reasonably be thought to have been likely to have had a material bearing upon the Sheriff's determinations and/or recommendations".