The Procurator Fiscal and Fatal Accident Inquiries - Scotland

Summary

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

Inquiries into sudden or unusual deaths are carried out by the Procurator Fiscal in whose area the event that caused the death took place. There are 11 procurator fiscals, each covering a specific geographical location within Scotland. They investigate around 14,000 sudden deaths each year.

Deaths are usually reported to the Procurator Fiscal by the police, a doctor or the Registrar of Births, Deaths and Marriages. Many deaths are reported because no-one has been able to issue a death certificate, and the Procurator Fiscal has to ascertain whether a postmortem is necessary. A postmortem may also be conducted if criminality cannot be excluded.

In the majority of cases reported to the Procurator Fiscal, early inquiries rule out suspicious circumstances and establish that the death was due to natural causes.

The purpose of the Procurator Fiscal’s investigation is to decide whether there is a need for a criminal prosecution, or if a Fatal Accident Inquiry should be held, under the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976. Around 50 – 60 FAIs are held each year.

Reporting deaths to the Procurator Fiscal

Deaths should be referred to the Procurator Fiscal if there is reason to suspect that the deceased has:

• Died a violent or unnatural death (including accident or suicide)
• Died a sudden death, of which the cause is unknown
• Died in prison or in police custody
• Died as a result of a medical or dental mishap or if the death is the subject of a complaint
• Died as a result of an industrial disease or infectious disease that poses a serious public health risk.

This list is not exhaustive. More details of the categories of death that must be reported can be found here.

If you are unsure about whether or not to report a death, contact the Procurator Fiscal, who will be able to advise you whether a formal report is appropriate.

Fatal Accident Inquiries

A FAI must be held when a death was caused during employment, or while in legal custody, ie, while being held at a police station or prison.

In other circumstances, an FAI may be held where there are issues of public safety or matters of general public concern arising from a death, and there is a need to highlight hazardous or dangerous circumstances or systems that have caused or contributed to it.

Many more cases are investigated than result in FAIs and they take place with nothing like the frequency of Coroners’ Inquests in other jurisdictions. There is no doubt that the views of the deceased’s relatives are taken into account as part of the decision making process in discretionary FAIs.

The Procurator Fiscal applies to the Sheriff whose Sheriffdom appears to be most clearly connected with the circumstances of the death.

Individuals whom the Procurator Fiscal believes may be able to provide relevant information will be asked to give evidence.

Increasingly, there is use of expert evidence and where there is a potential divergence in interest between the employer and individual doctor or the member is a GP, doctors should telephone the Medical Protection telephone advice line to discuss the case with a Medicolegal Adviser and to ascertain if separate legal representation may be beneficial.

FAI outcomes

At the end of a FAI, a Sheriff makes a determination. The determination will set out:

• Where and when the death occurred
• The cause of death.

The sheriff may also, if he or she thinks it appropriate, comment on:

• Any precautions by which the death might have been avoided
• Any defects in systems that caused or contributed to the death.

A FAI cannot make any findings of fault or blame against individuals. A FAI may be held in addition to any criminal or civil proceedings.

Registering a death

If, after discussing the case with the Procurator Fiscal, the Procurator Fiscal is satisfied the death occurred from natural causes and does not require further investigation, the doctor can issue a Medical Certificate of Cause of Death (MCCD). If no doctor can certify the cause of death it is for the Procurator Fiscal to decide if a postmortem is required and who should conduct it. In some cases it is possible for the cause of death to be certified by a doctor who has viewed the body after death without the need for a full postmortem examination. This is referred to as a “view and grant”.

Duty to co-operate

The guidance issued by the General Medical Council states that to keep patients safe you must contribute to confidential inquiries. It also states: “You must co-operate with formal inquiries and complaints procedures and must offer all relevant information while following the guidance in Confidentiality.”

Whether you are acting as a witness to fact or an expert witness, you have a duty to the court, tribunal or other public inquiries, such as A Procurator Fiscal's Fatal accident inquiry, and this overrides any obligation to the person who is instructing or paying you.

This means you have a duty to act independently and to be honest, trustworthy, objective and impartial. You must not allow your views about a person to affect the evidence or advice you give.

You should not delay notifying the Procurator Fiscal of a death as this will lead to delays in the involvement of, for example, the police. It will also delay the registration of the death and the release of the body for either cremation or burial, adding to the distress of the bereaved.

The Registrar of Births and Deaths currently has a statutory duty to report certain types of deaths to the Procurator Fiscal – for example, where it appears that the death occurred during an operation, and deaths due to industrial disease.

Registration of a death

Before a death can be registered, there must be either A MCCD issued by a registered medical practitioner (the death certificate is issued by the Registrar of Births and Deaths) or a certificate from the Procurator Fiscal issued after appropriate investigations.

If you are the attending medical practitioner in a patient’s last illness, you are required by law to sign a certificate stating the cause of death to the best of your knowledge and belief. This must be submitted to the Registrar of Births and Deaths. The certificate is a legal statement and therefore false or inaccurate statements could result in criminal charges.

Obligation to notify the GMC if criticised by an official inquiry

The GMC publication Good Medical Practice has recently been modified and updated (the latest version came into effect on 22 April 2013) and there is now an obligation (set out at paragraph 75[a]) for a doctor to inform the GMC (without delay) in circumstances when they have been criticised by an official inquiry (which would include a coroner’s inquest).

A link to the relevant guidance can be found here.

If a GP is concerned that they may be (or have been) criticised in the context of a Fatal Accident Inquiry then they should contact Medical Protection at the earliest possible opportunity in order that they can be advised as to the appropriate steps to take.

Other functions of the Procurator Fiscal

The Procurator Fiscal’s main function is to act as the local public prosecutor; however, they have a number of other duties and must also be notified in every case when a body is to be taken out of Scotland.

Procurator Fiscals also have responsibility for all the treasure troves in their district, so if you find any treasure you must notify the Procurator Fiscal within 14 days!

Further information

• The Scottish Government: Law, Order and Public Safety
• The Crown Office and Procurator Fiscal Service
• GMC, Good Medical Practice, pars 23, 73 (2013)
• GMC, Confidentiality (2009)
• GMC, Acting as a Witness in Legal Proceedings, explanatory guidance, Good Medical Practice (2013)
• The Coroners Act 1988
• Death and the Procurator Fiscal: Information and Guidance for Medical Practitioners 2008.