The Procurator Fiscal and Fatal Accident Inquiries

MEDICAL PROTECTION SOCIETY PROFESSIONAL SUPPORT AND EXPERT ADVICE The Procurator Fiscal and Fatal Accident Inquiries

Advice correct as of September 2015 SCOTLAND FACTSHEET

If a death occurs in a violent or unnatural manner, in custody, or suddenly but without certain cause, the Procurator Fiscal has a duty to inquire into the death. This factsheet sets out the role of the Procurator Fiscal, the reporting process and what will happen once you have reported a death to the Procurator Fiscal

The role of the Procurator Fiscal This list is not exhaustive. More details of the categories of death that must be reported can be found here. Inquiries into sudden or unusual deaths are carried out by the Procurator Fiscal in whose area the event that If you are unsure about whether or not to report a death, caused the death took place. There are 11 procurator contact the Procurator Fiscal, who will be able to advise fiscals, each covering a specific geographical location you whether a formal report is appropriate. within Scotland. They investigate around 14,000 sudden deaths each year. Fatal Accident Inquiries

Deaths are usually reported to the Procurator Fiscal by A FAI must be held when a death was caused during the police, a doctor or the Registrar of Births, Deaths employment, or while in legal custody, ie, while being and Marriages. Many deaths are reported because held at a police station or prison. no-one has been able to issue a death certificate, and the Procurator Fiscal has to ascertain whether a In other circumstances, a FAI may be held where there postmortem is necessary. A postmortem may also be are issues of public safety or matters of general public conducted if criminality cannot be excluded. concern arising from a death, and there is a need to highlight hazardous or dangerous circumstances or In the majority of cases reported to the Procurator Fiscal, systems that have caused or contributed to it. early inquiries rule out suspicious circumstances and establish that the death was due to natural causes. Many more cases are investigated than result in FAIs and they take place with nothing like the frequency of The purpose of the Procurator Fiscal’s investigation is to Coroners’ Inquests in other jurisdictions. There is no decide whether there is a need for a criminal prosecution, doubt that the views of the deceased’s relatives are or if a Fatal Accident Inquiry should be held, under the taken into account as part of the decision making Fatal Accident and Sudden Deaths Inquiry (Scotland) Act process in discretionary FAIs. 1976. Around 50 – 60 FAIs are held each year. The Procurator Fiscal applies to the Sheriff whose Reporting deaths to the Procurator Sheriffdom appears to be most clearly connected with Fiscal the circumstances of the death. Deaths should be referred to the Procurator Fiscal if Individuals whom the Procurator Fiscal believes may be there is reason to suspect that the deceased has: able to provide relevant information will be asked to give evidence. ■■ Died a violent or unnatural death (including accident or suicide) Increasingly, there is use of expert evidence and where ■■ Died a sudden death, of which the cause is unknown there is a potential divergence in interest between the ■■ Died in prison or in police custody employer and individual doctor or the member is a GP, ■■ Died as a result of a medical or dental mishap or if doctors should telephone the Medical Protection the death is the subject of a complaint telephone advice line to discuss the case with a Medicolegal Adviser and to ascertain if separate legal ■■ Died as a result of an industrial disease or infectious representation may be beneficial. disease that poses a serious public health risk.

www.medicalprotection.org MPS1143: 1 of 3 SCOTLAND FACTSHEET FAI outcomes the death and the release of the body for either cremation or burial, adding to the distress of the At the end of a FAI, a Sheriff makes a determination. The bereaved. determination will set out: The Registrar of Births and Deaths currently has a ■■ Where and when the death occurred statutory duty to report certain types of deaths to the ■■ The cause of death. Procurator Fiscal – for example, where it appears that the death occurred during an operation, and deaths due The sheriff may also, if he or she thinks it appropriate, to industrial disease. comment on: Registration of a death ■■ Any precautions by which the death might have been avoided Before a death can be registered, there must be either A ■■ Any defects in systems that caused or contributed to MCCD issued by a registered medical practitioner (the the death. death certificate is issued by the Registrar of Births and Deaths) or a certificate from the Procurator Fiscal issued A FAI cannot make any findings of fault or blame against after appropriate investigations. individuals. A FAI may be held in addition to any criminal or civil proceedings. If you are the attending medical practitioner in a patient’s last illness, you are required by law to sign a certificate Registering a death stating the cause of death to the best of your knowledge and belief. This must be submitted to the Registrar of If, after discussing the case with the Procurator Fiscal, Births and Deaths. The certificate is a legal statement the Procurator Fiscal is satisfied the death occurred from and therefore false or inaccurate statements could result natural causes and does not require further investigation, in criminal charges. the doctor can issue a Medical Certificate of Cause of Death (MCCD). If no doctor can certify the cause of Obligation to notify the GMC if death it is for the Procurator Fiscal to decide if a criticised by an official inquiry postmortem is required and who should conduct it. In some cases it is possible for the cause of death to be The GMC publication Good Medical Practice has certified by a doctor who has viewed the body after recently been modified and updated (the latest version death without the need for a full postmortem came into effect on 22 April 2013) and there is now an examination. This is referred to as a “view and grant”. obligation (set out at paragraph 75[a]) for a doctor to inform the GMC (without delay) in circumstances when Duty to co-operate they have been criticised by an official inquiry (which would include a coroner’s inquest). The guidance issued by the General Medical Council states that to keep patients safe you must contribute to A link to the relevant guidance can be found here. confidential inquiries. It also states: “You must co- operate with formal inquiries and complaints procedures If a doctor is concerned that they may be (or have been) and must offer all relevant information while following the criticised in the context of a Fatal Accident Inquiry then guidance in Confidentiality.” they should contact Medical Protection at the earliest possible opportunity in order that they can be advised as Whether you are acting as a witness to fact or an expert to the appropriate steps to take. witness, you have a duty to the court, tribunal or other public inquiries, such as A Procurator Fiscal’s Fatal Other functions of the Procurator accident inquiry, and this overrides any obligation to the Fiscal person who is instructing or paying you. The Procurator Fiscal’s main function is to act as the This means you have a duty to act independently and to local public prosecutor; however, they have a number of be honest, trustworthy, objective and impartial. You must other duties and must also be notified in every case not allow your views about a person to affect the when a body is to be taken out of Scotland. evidence or advice you give. Procurator Fiscals also have responsibility for all the You should not delay notifying the Procurator Fiscal of a treasure troves in their district, so if you find any treasure death as this will lead to delays in the involvement of, for you must notify the Procurator Fiscal within 14 days! example, the police. It will also delay the registration of

For medicolegal advice please call us on: This factsheet provides only a general overview of the topic and should not be relied upon as definitive guidance. If you are an MPS member, and you are facing an ethical or legal dilemma, call and ask to speak to a medicolegal adviser, who will give you specific advice. 0800 561 9090 or email us at: MPS is not an insurance company. All the benefits of membership of MPS are discretionary as set out in the Memorandum and Articles of Association. The Medical Protection Society Limited. A company limited by [email protected] guarantee. Registered in England No. 36142 at 33 Cavendish Square, London, W1G 0PS. www.medicalprotection.org Image © Günay Mutlu / iStockphoto.com MPS1143: 2 of 3 SCOTLAND FACTSHEET Further information

■■ The Scottish Government: Law, Order and Public Safety – www.gov.scot/Topics/Justice

■■ The Crown Office and Procurator Fiscal Service – www.copfs.gov.uk/

■■ GMC, Good Medical Practice, pars 23, 73 (2013) – www.gmc-uk.org/guidance/good_medical_practice. asp

■■ GMC, Confidentiality (2009) – www.gmc-uk.org/ guidance/ethical_guidance/confidentiality.asp

■■ GMC, Acting as a Witness in Legal Proceedings, Explanatory Guidance, Good Medical Practice (2013)

■■ Death and the Procurator Fiscal: Information and Guidance for Medical Practitioners (2008) – www.gmc-uk.org/guidance/ethical_guidance/21188. asp

■■ Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 – www.legislation.gov.uk/ ukpga/1976/14