The Medical and Dental Defence Union of Scotland Protecting you since Essential guide to the fatal accident inquiry

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1 The Medical and Dental Defence Union of Scotland Protecting you since 1902 Essential guide to the fatal accident inquiry

2 The MDDUS The MDDUS is a mutual indemnity organisation which has provided advice and guidance on medico- and dento-legal matters to members for over 100 years. Benefits of membership include: Access to indemnity against claims of medical and dental negligence Guaranteed access to our professionally trained advisers who are available to speak with you 24 hours a day Legal representation from solicitors who are some of the UK s leading experts in the medico- and dento-legal field Representation and legal support at GMC and GDC proceedings Assistance in dealing with complaints at all levels Assistance with professional disciplinary matters Legal representation and support at fatal accident inquiries or coroner s inquests, which can be lengthy, stressful and expensive processes Lifelong assistance for medico- and dento-legal problems arising from incidents that occur while you are a member, even if you move overseas or have ceased all clinical work when the problem arises Indemnity for medico- and dento-legal work Quality and continuity of service regardless of where you work in the UK Worldwide indemnity for Good Samaritan acts A quality, personalised service at a reasonable cost For further information on becoming a member of the MDDUS contact our Membership Services Department on

3 Foreword MDDUS exists to advise and assist its members in medico-legal matters. Increasingly, doctors and dentists find themselves more involved in such matters, and MDDUS is aware that any contact with the law and legal profession can raise concerns and worries. In Scotland, the system of inquiring into deaths, a fatal accident inquiry, is frequently used to investigate deaths under medical care or when there has been a medical mishap. Such inquiries can place medical and dental professionals under the public spotlight, and MDDUS is fully aware of the effects this can have on its members. While an FAI does not determine guilt or apportion blame, being involved in this process can feel alien and stressful. The aim of this booklet is to de-mystify the process and to inform those who may face such an inquiry about what happens in court. However, members can also contact MDDUS and consult directly with our advisers if in need of professional medical and legal assistance in connection with a fatal accident inquiry. Dr Jim Rodger, Head of Professional Services, MDDUS April, 2014 Fatal accident inquiry 1

4 2014 The Medical and Dental Defence Union of Scotland. All rights reserved Note: The information in this booklet is correct as at April 2014 but is subject to change at any time. It is of general application only and members are encouraged to seek the advice of the Union s medical and dental advisers if in any doubt. 2 Fatal accident inquiry

5 Contents Introduction 04 Reporting of death 05 FAI procedures 07 Types of inquiry 07 Precognitions 07 Intimations 08 Witness citations 08 Legal representation 09 Conduct of the FAI 10 Entitlement to attend 10 Evidence 10 Appearance in court 12 Sheriff s determination 12 FAI do s and don ts 14 Tangential matters 15 Criminal 15 Disciplinary 15 GMC/GDC 15 Civil actions 15 Publicity 16 Summary 16 Further reading 17 Index 18 Fatal accident inquiry 3

6 Introduction In the UK there is a statutory duty to register a death. The relevant legislation in Scotland is the Registration of Births, Deaths and Marriages (Scotland) Act One obvious crucial detail of registration is the cause of death. In normal circumstances this duty falls to the registered medical practitioner in attendance to the deceased at the final illness. Should a doctor feel unable for any reason to issue a death certificate as to the cause then it must be reported to the procurator fiscal who has a duty to inquire into all uncertified deaths. These include all sudden, suspicious, accidental, unexpected and unexplained deaths, whether or not the circumstances include any element of criminality. One of the concerns of the procurator fiscal is to eliminate the risk of undetected homicide or breaches of statutory duties of care. The Office of Procurator Fiscal has been in existence in Scotland for over 500 years. Fiscals are the public prosecutors in Scotland and their posts are full-time appointments. Most are enrolled solicitors and a few are advocates. They are independent of the police, the courts and local authorities. The lord advocate through the Crown Office in Edinburgh controls their activities and there is a regional procurator fiscal in each of the sheriffdoms in Scotland. If the circumstances of a death indicate that further inquiry is necessary, an application to hold a fatal accident inquiry (FAI) will be made by the procurator fiscal in the sheriff court for the relevant area. An FAI is a public inquiry held in front of a sheriff, and the constitution and proceedings of FAIs are governed by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act Fatal accident inquiry

7 Reporting of death Deaths which must be reported to the procurator fiscal are listed in the Crown Office s booklet Death and the Procurator Fiscal. These are: Any uncertified death Death due to vehicle accident Death at work Any work-related or industrial disease Death due to poisoning Suspected suicide Death under medical care/medical mishap Death from an accident Death which indicates fault on the part of another person Newborn child whose body is found Death where the deceased s residence is unknown Death from an abortion or attempted abortion Death in legal custody Death by drowning Death by sudden infant death syndrome Death by infant suffocation Death due to food poisoning or infectious disease Death by fire, explosion, burning or scalding Death of a foster child Any death due to violence or suspicious circumstances Any other sudden unexplained death Any death where there is a complaint about treatment. Doctors are encouraged to contact the local procurator fiscal if in any doubt as to whether a particular death should be reported. The initial contact will probably be made by telephone and an out-of-hours service is provided by a duty procurator fiscal. Fatal accident inquiry 5

8 When a patient dies in hospital, under medical care and where the death is reportable, a Form F89 Death Under Medical Care should be completed and submitted to the fiscal by a senior member of the medical team. But in practice this information is usually given verbally by the doctor or dentist to the fiscal via telephone. It should be emphasised that in most cases the procurator fiscal and Crown Office will be satisfied and an FAI will not take place. The next of kin should be told that the procurator fiscal has been informed about the death as this will sometimes result in a delay to any proposed funeral arrangements. Often this may increase the distress felt by bereaved relatives but until the cause of death has been established, a death certificate cannot be issued and a funeral cannot take place. In cases reported to the procurator fiscal the death certificate should not be issued until the doctor is asked to do so by the fiscal. The pathologist will usually complete the death certificate if there is a post-mortem and the fiscal will usually then release the body for disposal. If the death happened in hospital, the staff may ask permission to use organs for transplant purposes. Organs cannot be removed unless the relatives consent and the removal of organs will not delay any funeral arrangements. In cases where the cause of death is being investigated, the procurator fiscal has lawful possession of the body and can even override the person s own wishes, including any based on religious grounds. The fiscal will ask for the deceased patient s notes, which must not be altered, edited or destroyed. If an entry is made in the notes after a patient s death, the date and time of the entry should be recorded. Full legible photocopies of all the notes should be taken before the original records are sent off to the fiscal. Reports will be sought from the staff involved and having a good photocopy of the notes available for reference greatly enhances the quality of the reports. 6 Fatal accident inquiry

9 FAI procedures Types of inquiry There are two types of FAIs, commonly termed mandatory and discretionary. An FAI is mandatory in cases where it appears that the death in question occurred as a result of an accident in the course of employment or an occupation, or if the death occurred while the deceased was in legal custody. An FAI is held at the discretion of the lord advocate if judged to be expedient in the public interest on the grounds that a death was sudden, suspicious or unexplained, or has occurred in circumstances that give rise to serious public concern. A death falling into this category will be subject of a report by the procurator fiscal to the lord advocate or his staff who will make a decision as to whether an FAI should be held. Precognitions The fiscal will collect evidence both verbally and in writing and it is common to be asked to produce a written report or to provide a precognition. A precognition is a statement taken by talking to a witness to draw out the evidence. The fiscal has the power to require witnesses to attend their office in order to take a precognition and witnesses are advised to comply with such a request. Occasionally, the fiscal will ask the police to go on his behalf to the hospital or surgery to take precognitions from the staff involved. Being asked for a precognition is often the first indication that a fatal accident inquiry may be on the horizon. Any member who finds themselves in this situation is encouraged to telephone MDDUS at this stage. Occasionally, our members may be asked for precognitions by people other than the procurator fiscal. The approach may be made by lawyers or precognition agents acting on behalf of the deceased s relatives. If asked for a precognition under these circumstances members are advised to contact MDDUS for advice. Fatal accident inquiry 7

10 Intimations When the procurator fiscal subsequently applies to the sheriff to hold an FAI they must include in the application as much of the circumstances of the death as known to them. Once the sheriff has fixed a date for the hearing, the procurator fiscal must intimate this to a number of people. The rules prescribe categories of people to whom intimation must be given, depending on the type of inquiry. In general, intimation is made to the deceased s next of kin and to any other person having an interest or who may hold some responsibility for the accident or death. Such persons might include the deceased s employers or the doctors and hospital authority involved where a patient has died. In such cases the intimation will include information to the effect that questions may be asked at the inquiry in an attempt to determine such responsibility. In addition to providing intimation to those that are known to have an interest, the procurator fiscal must also advertise the hearing in two newspapers: one a national daily and the other a local daily. Witness citations The procurator fiscal will then cite witnesses to the inquiry. He does this by means of a written citation served by recorded delivery or by a police officer. If a witness who is cited to give evidence at an FAI fails to attend, there is provision in the rules for the sheriff to grant a warrant to apprehend the witness and bring him before the court. Witnesses may receive official notification of the inquiry before the witness citations are served. The notification is usually in the form of a letter from the procurator fiscal advising the person that they have a right to appear, to call witnesses, to lead evidence and to be legally represented. Any member of MDDUS should inform us as soon as possible if such a letter is received. Witness citations will be served on the relatives, doctors, experts and other witnesses whom the fiscal wishes to call to give evidence at the inquiry. Witnesses are obliged to comply with the citation, which states the date, time and venue of the inquiry. 8 Fatal accident inquiry

11 The citation is sometimes served only a few days before the inquiry. If a witness has a pressing engagement elsewhere (e.g. an examination), the fiscal should be informed immediately and efforts made to negotiate. When a witness knows an inquiry is pending and tells the fiscal of any important commitments which may clash, it is possible the fiscal will co-operate over arrangements to hear the evidence. Witnesses should take their citations to court and report to the reception area on arrival. They will be directed to the appropriate waiting area where they should remain until the court official takes them into court to give evidence or until told they are free to go if the inquiry is adjourned. Legal representation It is often the case that an FAI into a death under medical care will require legal representation of an MDDUS member. A meeting will take place with one of our medical or dental advisers along with a solicitor experienced in such matters to discuss the member s involvement. The member will be advised on the purpose and procedure at FAIs and an MDDUS solicitor will attend the inquiry in legal support. An expert report may be instructed to assist in the representation of an MDDUS member at the inquiry. The trust or health board may also instruct a solicitor to represent their interests at an FAI. It should be noted that these might not coincide with the best interests of the individual doctor or dentist. Fatal accident inquiry 9

12 Conduct of the FAI Entitlement to attend The application to hold an FAI is made by the procurator fiscal and it is his duty in terms of the Act to bring forward all evidence regarding the circumstances of the death. To investigate, the fiscal may instruct an expert or experts to provide evidence in relation to: the cause of death reasonable precautions by which the death could have been avoided other factors relevant to the death. The deceased s next of kin is also entitled to appear and be represented and lead evidence, as well as any other person whom the sheriff is satisfied has an interest, whether or not that person has received formal intimation of the hearing from the procurator fiscal. In practice, those who do appear or arrange for representation tend to be the next of kin and anyone who may be at risk of criticism in relation to the circumstances of the death. Evidence There are five areas which the sheriff will need to determine at the conclusion of the FAI and members can expect their evidence to cover these areas: where and when the death took place causes of death reasonable precautions if any by which the death might have been avoided defects, if any, in any system of work that contributed to the death any other facts relevant to the circumstances of the death. The evidence is heard in public. The court official directs the witness to the witness box where they should remain standing. Evidence is given on oath or by affirmation and is recorded by a shorthand writer or on recording equipment. Transcripts of the evidence can be made available on payment of an appropriate charge, within certain time limits. 10 Fatal accident inquiry

13 Most of the evidence is led from the witnesses by the procurator fiscal who represents the public interest. Legal representatives of the relatives, the trust and other interested parties may cross-examine witnesses. The sheriff, who should be addressed as my Lord or my Lady, occasionally also asks questions. It is possible for the court to admit a written statement of evidence in the form of an affidavit instead of hearing oral evidence from that witness. This applies only if all parties agree to it, or the sheriff considers that by allowing the affidavit there will be no unfairness to any person appearing at the inquiry. Most doctors or dentists will be called as professional witnesses to supply factual evidence regarding treatment of the deceased patient. Doctors and dentists can also act in the capacity of expert witness to provide an independent opinion on the facts of a case based on specialist knowledge and experience but without personal involvement in the case.when the procurator fiscal has sought expert advice in a particular area, prior to the inquiry, the expert may be permitted with the sheriff s leave to sit through the evidence of other witnesses before they take their place in the witness box. Consultants, GPs and GDPs may find themselves falling between the two categories of witnesses, especially if the fiscal does not call an expert. It would not be appropriate for any practitioner to offer an expert opinion on a subject that falls outside their own area of expertise. As far as doctors in training are concerned, their evidence should usually be confined to the facts. After giving evidence, witnesses are free to leave or to sit in the public benches to hear the rest of the evidence. After all the witnesses have given evidence, the solicitors or advocates representing the parties may make legal submissions to the sheriff. These may sometimes contain criticisms of the medical care given to the deceased patient. Fatal accident inquiry 11

14 Appearance in court A witness cited to appear in court should allow time for travel and parking and be prepared to have a long wait before being called in front of the inquiry. The sheriff court is a court of law and witnesses will be expected to dress professionally and attend punctually. Witnesses giving evidence at an inquiry should prepare in advance by ensuring they are familiar with the record of treatment provided. They should have analysed their part in the proceedings under investigation and be able to give honest and objective answers to the questions posed. If they are unsure of a question, clarification should be asked for. They should also never stray outside the bounds of their level of competence and make it clear when a particular question falls outside their area of expertise. Witnesses should listen to the question being put to them and consider their answers before speaking clearly and distinctly. The case notes are almost invariably available in the court and if a doctor or dentist needs to look at the notes in order to answer a question they should do so, taking time to find the appropriate entry. Once a witness has answered the question they should stop talking and listen for the next question. A witness can say: I don t know or I cannot remember. Sheriff s determination At the conclusion of the evidence the sheriff will issue a judgement known as a determination setting out the circumstances of the death so far as these have been established to his satisfaction. He must also make a finding as to the time and place of death and of any accident that caused it, as well as the cause of death. This may be done immediately after the evidence is heard and is usually known as a formal determination. Very often a sheriff s determination is limited to findings on these formal matters. However, it is also open to the sheriff to make a determination where warranted as to reasonable precautions whereby the death or any accident resulting in death might have been avoided, the defects in any system of working which contributed to the death and any other facts which are relevant to the circumstances of the death. In accordance with the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, it is not necessary for the evidence upon which the sheriff based any of his findings to be corroborated. 12 Fatal accident inquiry

15 The findings of the sheriff at the conclusion of an FAI have the same status in law as findings of fact in any other civil proceedings. The sheriff does not determine legal liability for the death, either in the criminal or civil sense, and the determination cannot be founded upon any other judicial proceedings. Often a great deal of complicated evidence is submitted to an FAI into a death under medical care. The sheriff is likely to take time to consider this evidence and may ask for the shorthand notes to be transcribed to assist him in his deliberations. It may take several weeks or months for a written determination to appear. It is a public document, so any criticism of the patient s treatment may come to light in the press. The MDDUS will receive advance notice of this and will liaise with members over the content. Although the sheriff s determination cannot be used as a basis of a claim it may be used to initiate a complaint of impaired fitness to practise before the GMC or GDC. Fatal accident inquiry 13

16 FAI do s and don ts Below are some helpful do s and don ts to keep in mind when providing evidence for an FAI. Do make a detailed note of your recollection of what happened as soon as possible after the event. The FAI may take place many months or years later when the passage of time erodes even the best memories. It is wise to contact a medical defence organisation as soon as possible if you suspect that an FAI may be pending. Do contact the MDDUS before providing a report or precognition. Do prepare fully in advance and be alert to all the issues in the case. Do check with the procurator fiscal s office about precisely which day and at approximately what time you are required to attend court. When you appear at court let the officers know of your arrival and hand your citation form to them. It is wise to bring a book or something else to read, since you may be in the waiting room for a considerable period. Do remember the old adage that medical witnesses should: dress up stand up speak up and shut up. Do dress appropriately. It is important that medical witnesses look like doctors and a sober suit and tie for men and the equivalent dress for women is the order of the day. Do speak clearly and slowly in order that everyone in the room can hear and understand what you are saying. To use a good Scots word, witnesses should avoid blethering. Answer questions put to you as straightforwardly and concisely as possible. Remember that you will be on oath and your answers must be the truth, the whole truth and nothing but the truth. If you can answer a question fully by use of the words yes or no, then do so. Do address the questions put to you and do not try to guess the direction you think the questioner may be heading in. If you don t know the answer to the question or cannot remember, say so. If the question does not make sense, ask for it to be clarified. Do be open to seeing the opposing argument but remain strong about the evidence you want to give. Do ask for sight of the medical records, rather than trying to remember what you have written down. Don t fill the silence if the lawyer asking questions pauses for thought. Don t give your evidence in a patronising or aggressive manner, or be argumentative with those asking questions. Don t speak to or smile at the press or photographers. 14 Fatal accident inquiry

17 Tangential matters Criminal Any doctor concerned that they may face criminal charges following the death of a patient should contact the MDDUS immediately. A doctor giving evidence at an FAI which may be incriminating will be administered a criminal caution by the sheriff. If this is likely to happen the fiscal will usually indicate his intention beforehand to the legal representative of the doctor. Disciplinary An FAI does not prevent a trust or health board from instituting disciplinary proceedings or service committee proceedings against a doctor or dentist involved in a patient s care. If a member s professional competence is to be called into question in this way the MDDUS should be contacted as soon as possible. GMC/GDC It is becoming more common to report the outcome of an FAI to the General Medical Council or General Dental Council. This may be done by the procurator fiscal involved in the case or the sheriff and in that event, copies of the sheriff s determination and transcripts of the evidence will be sent to the GMC/GDC. Although the sheriff s determination may not be used in judicial proceedings in Scotland, both the GMC and GDC are governed by English law, wherever they may sit, and this provision in a Scottish statute does not therefore apply. If a member receives any communication from the GMC or GDC in connection with a FAI, the MDDUS should be contacted immediately. Civil actions An FAI is not a bar to a civil action. Negligence claims may run concurrently with or subsequent to an FAI. The sheriff s determination cannot be used to found a claim. However, the evidence within the transcript can be used by the pursuer s legal advisers as evidence relevant to their particular action. Fatal accident inquiry 15

18 Publicity As the inquiry is held in public, representatives of the press may be present, especially in highprofile FAIs. Television news crews or newspaper reporters and cameramen may wait outside the sheriff court to pursue their stories and occasionally the witnesses. MDDUS advice is to behave like the professional person you are and allow pictures of you to be taken walking at a normal pace away from the building. Although you may be relieved that your appearance in court is over, you should bear in mind the solemnity of the occasion and avoid giving way to expressions of triumph or humour. If you are asked to comment on the case, it is usually best to politely inform reporters that you have given your evidence to the court and have nothing to add. Any delay in the appearance of the sheriff s determination may trigger a later upsurge in publicity surrounding the case and additional advice from us may be necessary. Summary FAIs can have far-reaching consequences. Contact the MDDUS for immediate advice if you are asked to provide a report or give a precognition to the fiscal in connection with a death under medical care. Although most witnesses give evidence without incident others may find themselves adversely criticised in the witness box and this could lead to questions in regard to professional competence. 16 Fatal accident inquiry

19 Further reading Death and the Procurator Fiscal. Crown Office, Edinburgh (2008) Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act The Fatal Accident and Sudden Deaths Inquiry Procedure (Scotland) Amendment Rules Registration of Births, Deaths and Marriages (Scotland) Act Sudden Deaths and Fatal Accident Inquiries, 3rd edition. Ian H B Carmichael. W Green & Son Ltd; 2005 Fatal accident inquiry 17

20 Index Acts, Fatal Accidents and Sudden Deaths Inquiry (Scotland) 1976, 4,12,17 Registration of Births, Deaths and Marriages (Scotland) 1965, 4,17 Affidavit, see Evidence, Civil actions, 15 Crown Office, The, 4,6 Death, Certificate, 6 Reporting of, 5 and the procurator fiscal, 5,6,17 Evidence, Written, 11 Affidavit, 11 Fatal accident inquiry, The, Conduct of, 10 Discretionary, 7 Entitlement to attend, 10 Generic reason for, 7 Mandatory, 7 Procedures, 7 Intimations, 8 18 Fatal accident inquiry

21 Index Legal representation, 9 Lord Advocate 4, 7 Organs, transplants, 7 Pathologist, 6 Patient s notes, 6,12 Post-mortem, 6 Precognitions, 7 Proceedings, Criminal, 12,15 Disciplinary, 15 Procurator fiscal, 5,6,17 Publicity, 14,16 Sheriff, 4 Court, 12 Determination, 12 Witnesses, Appearance in court, 12 Citations, 8 Expert, 11 Professional, 11 Fatal accident inquiry 19

22 20 Fatal accident inquiry

23 Fatal accident inquiry 21

24 The Medical and Dental Defence Union of Scotland Mackintosh House 120 Blythswood Street Glasgow G2 4EA London office 1 Pemberton Row London EC4A 3BG T: Membership Services Department: F: E: The Medical and Dental Defence Union of Scotland, Registered in Scotland No 5093 at Mackintosh House, 120 Blythswood Street, Glasgow, G2 4EA. The MDDUS is not an insurance company. All the benefits of membership of MDDUS are discretionary as set out in the Memorandum and Articles of Association.

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