Response by Peacock Johnston, Solicitors, to Consultation on proposals to reform FAI Legislation

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1 Response by Peacock Johnston, Solicitors, to Consultation on proposals to reform FAI Legislation INTRODUCTION Peacock Johnston is a firm of solicitors in Glasgow specialising in Clinical Negligence and Medical Law. Peacock Johnston has the largest specialist Medical Negligence Department in the West Coast of Scotland and, in Andrew S Pollock and Laura V.M Ceresa, the firm has two of Scotland s six Law Society of Scotland accredited specialists in Medical Negligence Law. The firm is well placed to comment on Fatal Accident Inquiries from the perspective of Medical Negligence practitioners. The firm is also well placed to comment on Fatal Accident Inquiries as, unusually, the solicitors of the firm have had an equal amount of experience both in acting for families of the deceased but also representing doctors facing potential criticism. RESPONSES TO THE FAI CONSULTATION PAPER GENERAL COMMENT Owing to the particular specialisation of the firm in medical Fatal Accident Inquiries, we propose simply to restrict our comments to issues which apply in cases where we have substantial experience. For that reason, there will be a number of questions raised in the consultation paper to which we will not respond. RESPONSES TO QUESTIONS Questions 1-8 We do not wish to make any comment. Question 9 - Commencement of an FAI within a certain period of the date of the death of the deceased We agree with Lord Cullen s view that it is neither practical nor realistic to make it mandatory that an FAI must open within a certain period of the date of death of the deceased. Medical Negligence cases are notorious for delays however the reasons for the delays can be multifactorial. The reasons can include the following:- (a) A failure by the hospital or the health professionals concerned to report a death to the P.F; (b) Delay in family members raising concerns with P.F regarding circumstances justifying an investigation by the P.F; (c) Difficulty in tracking down medical witnesses. This is a particular problem in medical cases where the treating health professionals might no longer be working in the same hospital, or indeed the same country, where the medical treatment took place; (d) Complexity of medical issues raised; (e) Difficulty in identifying suitable independent experts to provide expert reports; (f) Delays in experts preparing reports; and (g) The possibility of other prior proceedings such as criminal proceedings. For all these reasons, it is not realistic to have a specific time limit.

2 That having been said, there are frequently unacceptable delays which lead to medical FAIs taking place many years after the death of the deceased. The common factor which we have found over the years is that a Fatal Accident Inquiry leads to family members having to relive the death of the deceased and clients have described to us, over the years how they felt having to go through the FAI as being like having to relive the death all over again. For many of the families there is a feeling that they cannot start the grieving process until the Fatal Accident Inquiry and any potential Court proceedings are out of the way. Question 10 Should preliminary hearings be held to help speed up the process of FAI s? In our experience, it is unusual for an FAI in a medical place to take place without a preliminary hearing. However, the extent to which the Sheriffs will be pro-active at such hearings varies. In reality, the degree of judicial pro-activity is nowhere near the level of judicial pro-activity encountered, for example, in a commercial litigation Case Management Conference or a Personal Injury Case Management Conference. In our experience, preliminary hearings more often than not deal with straightforward issues such as estimates of the length of time but not more complex or controversial issues such as pinning down what evidence can be agreed, or what are the true issues in dispute. Steps which are considered routine in Commercial and Personal Injury cases, such as agreement of uncontentious factual evidence, are rarely encountered in Fatal Accident Inquiry preliminary hearings or indeed in the course of Fatal Accident Inquiries themselves. Question 11 Will pre-hearing meetings of experts speed up FAIs? There is no doubt that pre-hearing meetings of experts will help to focus the issues which are considered to be relevant. However, it is important to bear in mind that representatives of parties, and indeed parties themselves, will frequently go into an FAI blind i.e. without knowing what assertions are going to be put forward by other parties in the FAI. We suggest that consideration should be given to the holding of business meetings, at the instance of the P.F, which would involve representatives of the family and representatives of the health professionals, so that non-contentious issues can be identified and agreed, and the contentious issues can be identified and considered in advance or Preliminary Hearings. In other words, we think that the suggestion that there should be pre-hearing meetings of experts does not go far enough. We think that it would be far more sensible to have prehearing meetings of the parties and representatives. We also consider that such meetings may well have the advantage of leading, in effect, to a form of mediation where alternatives to FAIs may be considered. For example, if a family can be satisfied that steps have been taken to prevent a recurrence of events leading to the death, then that may avoid the need for an FAI. In our extensive experience over the years, we find that where there is pro-active engagement by, for example, the Health Board with the P.F, families, are more likely to be satisfied that proper steps have been taken to prevent a recurrence and an FAI becomes unnecessary. Similarly, we have had experience of FAIs over the years which may well have been avoided if there had been more pro-active engagement at an earlier stage involving the parties, before positions were allowed to become entrenched. Question 12 Will hearing some business in Sheriffs Chambers help speed up FAIs? The answer is definitely yes. There is a completely different dynamic where there is a discussion amongst agents in Sheriffs Chambers, rather than a discussion in open Court. In our experience, the feelings of parties, particularly families, can run high and this is

3 frequently not conducive to a collaborative approach. It is also hoped that this would lead to judicial pro-activity such as has developed over the years, through the use of Case Management Conferences in Personal Injury and Commercial cases. Question 13 Do you agree the proposal of permitting the submission of statements to the Sheriff in advance of the FAI? We agree it is sensible for parties to be able to submit statements to the Sheriff in advance of the FAI. However, the practical difficulty is that at the time of submitting statements, the parties may be having to submit statements blind i.e. without knowing what the contentious issues are in the case, or without knowing what allegations are being made by other parties. Therefore, the proposal of permitting the submission of statements should, at best, be permissive and not mandatory. No party should be required to submit a statement. That having been said, if there were to be greater and more effective use of business meetings involving parties, then this would lead to the greater use of statements being submitted in advance of the FAI so that the Sheriff would not be going into the inquiry blind. Question 16 - Fatal accident Inquiry accommodation/ad hoc accommodations for FAIS We have no difficulty with the use of ad hoc locations, particularly given that lengthy FAIs can tie up Court accommodation which is in short supply. However, we do not think that other centres would necessarily lead to a more relaxed atmosphere. FAIs are not relaxed and the atmosphere is frequently tense, bordering on confrontational. It is our view that unless there is more effective and pro-active management both prior to the matter proceeding to Court, and once the matter is in Court (such as through preliminary hearings) then the difficulties with a confrontational atmosphere will continue. Question 17 Should FAIs be held in 3 bespoke, dedicated centres? We completely disagree with this proposal. It is vital that FAIs are accessible for families and those who wish to support the families. Fatal Accident Inquiries can frequently take a number of days and it is completely unfair for families in remote areas to be faced with the further upheaval of having to face an FAI in a location which is remote from family and other support networks. Question 18 What impact do you think that the use of FAI centre, or taking FAIs out of Sheriff Courts, would have on those attending FAIs? We have significant concerns regarding the use of FAI centres. There are sufficiently few FAIs in Scotland that very few centres would be required to service the volume of FAIs in Scotland. However, as indicated above, the paucity of such centres would result in a major geographical impediment to access to local justice. Question 19 Should it be mandatory for all FAI Determinations, subject to redaction, to appear on the SCS website and be fully searchable? FAIs take place in a public forum. It is inconsistent with the principle of openness and transparency for FAI Determinations not to appear on the SCS website and to be fully searchable. Clearly, it is in the interests of open and transparent justice that all Determinations appear on the SCS website. Question 20 Should Sheriffs instruct the dissemination of their recommendations? A major weakness in the current system is that once a Sheriff s Determination is issued, in legal terms, any practical consequences of the Determination will frequently disappear into

4 the ether. Whilst it is accepted that it would be inappropriate for Sheriff s recommendations to become legally binding, because frequently submissions and recommendations will not have been fully and robustly tested, nor will they necessarily be subject to proper and informed expert scrutiny, the fact is that, with the exception of GMC proceedings which may follow on from a Sheriff s Determination, families of the bereaved rarely see any follow up after a Determination. Of course, it does have to be accepted that in medical cases, in reality the appropriate regulatory bodies, usually the GMC, do monitor Determinations as and when they are issued. However, this may, in a sense, be considered to be rather haphazard in that it will depend on the Determination being put into the public domain through publication on the SCS website (which doesn t always happen) and it will also depend on the appropriate regulatory body such as the GMC actually picking up on the Determination. We see no reason why there should not be a proper and structured framework for follow up, and of course, it is only fair that as part of the follow up, parties to whom the Sheriff s recommendations are addressed have the opportunity to respond to the Sheriff. Question 21 Should the parties to whom the Sheriff s recommendations are addressed be obliged to respond to the Sheriff to indicate what action had been taken? We agree strongly that this should happen. This strikes the correct balance between the party not being obliged to follow the Sheriff s recommendation. For example the party may be able to explain why it is not realistic or practical to follow the recommendation, or why there is no particular benefit, given that the party may not have been present or represented at the FAI. However, compiling a response would at least result in a degree of follow up from the Determination which is currently absent. Given that the ethos of the Fatal Accident legislation is to safeguard the public interest in relation to the prevention of accidents, that public interest of safety would best be served by provision for follow-up as outlined. Question 23 Should the existing arrangements for legal aid for bereaved relatives remain? We can only comment on our experience in cases involving allegations of medical negligence. We have had experience of numerous FAIs where Legal Aid has been refused to family members. In reality this causes what can at times be a catastrophic lack of access to justice. We have been involved in FAIs where numerous doctors have had separate legal representation, the Health Board has had legal representation, the Crown has been represented of course by the P.F, but yet the family have been unrepresented. This only adds to the trauma of the bereaved family. This can also place an unfair burden on the Crown who have to make it clear to the family that they are representing the public interest and not the family. This can lead to FAIs being a distressing and alienating experience for unrepresented families. On balance, we take the view that there too many families that are unrepresented. We also take the view that given the low number of FAIs in Scotland each year, (only around FAIs per year), extending the availability of Legal Aid would not in reality, result in a disproportionate increase in expense to the Legal Aid Fund. Any additional expense would be more than offset by the fact that families will have fair representation at one of the most difficult times of their lives. Question 23a In what ways would we change the arrangements for Legal Aid for bereaved relatives? If the view is taken that automatic Legal Aid should not be given, then the criteria for granting Legal Aid should be changed. In particular, the SLAB guidance in explaining the current approach when assessing reasonableness should be modified so that it would be

5 considered reasonable to grant Legal Aid where there are complex issues of evidence. In cases where there are complex issues of evidence, then it is not realistic or fair to expect the P.F to have to shoulder the responsibility of having to explain that evidence to the family, nor indeed is it realistic to expect the family to be able to participate properly in an FAI involving complex evidence, where the family does not have legal representation. Question 24 What impact would the proposal have on the community? The proposal to extend Legal Aid would not, it is submitted, have a disproportionate impact. Any increase in cost would be modest. There would however be a very significant public interest in a family being able to feel that they had had effective participation in an FAI, rather than the current system which can operate to exclude family participation.

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