The procurator fiscal and fatal accident inquiries

A procurator fiscal investigates all sudden and suspicious deaths in Scotland, conducts fatal accident inquiries and handles criminal complaints against the police. There are 11 procurator fiscals, each covering a specific geographical location within Scotland, who between them 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 carried out 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 a Fatal Accident Inquiry (FAI), under the Inquiries into Fatal Accident and Sudden Deaths (Scotland) Act 2016.

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

This list is not exhaustive – 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

An FAI must be held when a death was caused during employment, or while in legal custody, regardless of location.

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. Unlike the rest of the UK, the 2016 Act introduces the possibility of an FAI into a death of a civilian abroad, even where the body is not repatriated.

FAI outcomes

At the end of an 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.

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

Registration of a death

Before a death can be registered, there must be either an MCCD issued by a registered medical practitioner (the death certificate is issued by the registrar of births, deaths and marriages) 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, deaths and marriages. 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’s ethical guidance outlines 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).

If you may be (or have been) criticised in the context of a Fatal Accident Inquiry, contact the experts at Medical Protection for advice on next steps.