Death cases – A thematic report on liaison in death cases with particular reference to organ retention

The role of the Procurator Fiscal in the investigation of certain deaths is an important one and not widely understood by the public. Much of the work is "behind the scenes" as opposed to the much more public face of Crown Office and the Procurator Fiscal Service in the prosecution of crime.

Despite this we found no evidence that this aspect of the work was treated in a second class or secondary way. Indeed it tended to be senior staff who dealt with the work. Traditionally District Procurators Fiscal handled the work personally or the work was carried out by discrete death units.

Having said that training did emerge as an issue both in how to deal with the bereaved where two-thirds of staff indicated there was no training available and also in actually doing the work in accordance with the instructions to staff contained in the new Chapter 12 of the Crown Office Book of Regulations.

It was intended that training would follow the production of the new chapter and pilots were held. Unfortunately the roll out of the training was stalled during the preparation of our report and we were unable to assess it at first hand. We are conscious of heavy demands on training for staff across a wide range of issues including High Court Reform, Summary Justice Reform, Vulnerable Witness Reform and Disclosure all of which have arrived in a short period of time. However we do recommend that as soon as possible:

Training on the investigation of deaths (including training on how to deal with the recently bereaved) should be rolled out as soon as possible.

It was interesting to note that Procurators Fiscal contributed to outside training on deaths and on the role of the Procurator Fiscal but there was little external input into Fiscal training. This is something which could be addressed in the current training programme. We understand the new programme will include input from CRUSE Bereavement Care and other external input.

The guidance available to staff on investigation of deaths (accessible through the Departmental Intranet) is, in our opinion, comprehensive and strikes the correct balance between giving too much and too little information. There was some criticism, however, of the absence of an adequate search facility.

In the actual investigation of deaths we found evidence of good practice (outlined in Chapter 3) and sensitivity in dealing with nearest relatives although we mention some areas which we felt could be strengthened.

The feedback we obtained from contact with users of the system was generally positive. There was some indication of underuse of Departmental leaflets but on the arguably crucial question of whether users had received all the information they required 84% said they had done so. Also almost all who replied to our questionnaires said they were treated with courtesy and respect.

We did receive some comments on the operation of Victim Information and Advice, some positive, some less so. Only 4 of the respondents to our survey mentioned Victim Information and Advice specifically. However, the categories of death which Victim Information and Advice deal with are limited and we were sampling all categories of death so that result is not entirely unexpected. There was support for the whole concept of Victim Information and Advice from some sources. The management structure of Victim Information and Advice was changed during the preparation of our report and is now assimilated into the "mainstream". This should avoid possible confusion in the minds of some bereaved persons on receiving letters from the Procurator Fiscal and separate letters from Victim Information and Advice.

We were fortunate in getting very extensive input from pathologists and other medical personnel. All 4 university based Forensic Pathology Departments (Aberdeen, Dundee, Edinburgh and Glasgow) contributed their views as did a host of others. This revealed some areas of good practice such as the project based at the Western General Hospital, Edinburgh where there is a high success rate in obtaining authorisation for brains to be used for research purposes.

One statistic which stands out in our report is the considerable reduction in the number of hospital post mortems not instructed by the Procurator Fiscal which have taken place since the Alder Hey scandal in England (down approximately 40% in 5 years). This was accompanied by a similar drop in the number of organs retained.

In contrast the number of post mortems instructed by Procurators Fiscal was relatively steady. This tends to show that the proper investigation of death has not been influenced by recent events. Organ retention, however, at Procurator Fiscal post mortems is now a rare event.

We note the work of the Scottish Executive Review Group on Retention of Organs at Post Mortem chaired by Professor Sheila McLean which led to the Human Tissue (Scotland) Act 2006.

Some concern was expressed to us by various medical contacts that the reduction in the number of hospital post mortems was causing problems for research and training. This was attributed to a number of factors and may well now have "bottomed out". This is outwith our remit but may be of interest elsewhere. What did emerge, however, was that the results of Fiscal post mortems were not always fed back to the appropriate medical authorities or at least not quickly enough. Accordingly we recommend that:

In Fiscal post mortems consideration should be given to the early release of the results (and copies of the report where appropriate) to the appropriate medical authorities.

On the question of organ retention we found that systems were generally in place to advise the Procurator Fiscal when an organ had to be retained for diagnostic purposes. There were some unfortunate examples of how the system had broken down where the Procurator Fiscal had not been advised of retention and given the small overall number of such cases there might have been cause for concern. However, the systems in the locations in question have been strengthened and we would not expect a repetition.

Liaison between the various Forensic Pathology providers and local Procurators Fiscal seemed generally good. Some concern was expressed about the role of the Procurator Fiscal at the scene of a suspicious death and at the subsequent post mortem. Clearly this can have an impact on subsequent liaison with nearest relatives etc. The Procurator Fiscal is legally in charge of the investigation and selects the appropriate experts, etc. Presence at the scene and at the post mortem can be beneficial, subject to appropriate safeguards. There are protocols for this but we recommend that:

The existing protocols be highlighted for on-call staff to ensure the minimum number of people actually attend at the scene of a crime and actually in the mortuary during the course of a dissection.

The overwhelming weight of evidence we received from the pathologists was that retention of organs was now very rare and there had been a considerable change in practice in recent years. However, it was stressed that retention would take place if this was necessary for the proper investigation of the death especially in suspicious cases.

The number of Forensic Pathologists in Scotland is very small and we received some evidence that feedback to Forensic Pathologists on their reports and the effectiveness of their evidence in court was negligible. Accordingly we recommend that:

The Department gives consideration as to how feedback can be given to Forensic Pathologists on the contents of post mortem reports and on the use of their evidence in court.

We also received a suggestion that there should be a national forum for Forensic Pathologists where issues of mutual interest could be discussed. As the Crown Office negotiates contracts with all these suppliers and is the common link it seems appropriate that Crown Office facilitate the creation of such a forum and accordingly we recommend that:

The Crown Office host a forum for Forensic Pathologists where issues of mutual interest could be discussed.

This forum could discuss issues such as the feedback referred to and could also consider some issues which were raised in the course of our enquiries. For example we received mixed input on the question of maternal deaths and whether these should routinely be referred to the Procurator Fiscal. We do not feel qualified to take a view on this but feel it would merit further discussion and accordingly we recommend that:

The Crown Office and the relevant medical authorities take forward discussion on the reporting of maternal deaths to the Procurator Fiscal.

Organ retention was a theme which ran through several chapters of our report. We looked at the guidance to Procurators Fiscal and carried out an audit of Fiscal Offices between January and November 2006. We found that organs had been retained on 22 occasions. These included short term retention where in the majority of cases the organ was returned to the body prior to its release, this was done to give an indication of what organs did require to be retained even for short periods, normally the brain. The results are in Chapter 6 but the overall picture is of high compliance by Procurators Fiscal with their instructions on this highly sensitive issue. The few problems we did encounter had been mistakes in Pathology Departments about informing the Procurator Fiscal about retention. These seem unlikely now.

We did, however, have difficulty in tracking down relevant cases because of the absence of recording of such on the Crown Office IT system. Given its importance, not to mention risk factor, we would recommend that:

Consideration be given to recording retention (and ultimate method of disposal) of organs on the IT system.

We also looked at organ donation and were advised that the opportunity for such in Fiscal deaths was relatively small. Nevertheless, we received evidence from various sources that, in appropriate cases, Procurators Fiscal facilitated the donation of organs including, as a recent example, large scale donation in a homicide case. While evidence has to be preserved for possible criminal proceedings consideration was being given to release where appropriate. We came across three specific examples of donation and were advised of one other.

We try to take a "risk-based" approach to our work and it became obvious that road traffic deaths stood out as an area which caused public concern.

We examine in Chapter 7 the number of road deaths in Scotland and compare this to the number of homicides (about 3 times as many road deaths). The existing law is examined and input was received from a number of relatives of those killed in road traffic collisions.

Although the number of prosecutions for the major offence of causing death by dangerous driving (Section 1 of the Road Traffic Act 1998) is relatively small the capacity of these for adverse comment if they go astray is considerable.

We did receive some complaints about acceptance of reduced pleas in such cases and a failure to explain or at least explain quickly to nearest relatives what had happened at the court hearing. Accordingly we recommend that as a general principle:

A reduced plea to a Section 1 charge under the Road Traffic Act 1988 should only ever be accepted where there has been a significant change in circumstances and not without the circumstances being first explained to the relatives or other contact person.

Some of the complaints levelled at Fiscals in this area had more to do with the state of the law itself. The wide gap between contraventions of Section 1 of the Road Traffic Act where the death is relevant and Section 3 where it is not is highlighted. We mention the new offence of causing death by careless driving and await with interest the implementation of this new offence.

Finally we look at diversity issues in Chapter 8. As we do office inspections in tandem with thematic reports we took the opportunity to examine deaths where racial or cultural issues were involved. This covered 34 offices over a 12-month period. We found many examples of good practice and sensitivity in dealing with such deaths. It was clear that Procurators Fiscal were striking the correct balance between proper investigation of a death on the one hand and complying with the wishes of the family of the deceased on the other. No complaints were received by us on this topic in our questionnaires.

We did, however, experience some difficulty (as with organ retention) in tracking such cases as they are not flagged on the Crown Office IT system. We appreciate this might be difficult to do but we would recommend that:

Crown Office give consideration to placing an IT flag on a death where it appears that the deceased's family may have specific cultural or religious needs.

This could possibly be best done in conjunction with the Police who are the main reporters of sudden deaths to the Procurator Fiscal and who should be obtaining this information in the first place.

One area we were unable to examine but which could have a big impact for nearest relatives and others is the pilot Victim Statement Scheme in Scotland. A pilot Victim Statement Scheme commenced in Scotland in November 2003 and concluded in November 2005 and operated in 3 sites - Ayr, Edinburgh and Kilmarnock - in relation to certain offences only.

It gave the victims of the prescribed offences an opportunity to make a statement about the effect of the crime on them personally. The statement in question was obtained by the prosecutor and then presented to the Sheriff or Judge.

At the time of completion of our report consideration was being given to whether or not this scheme should be rolled out in Scotland as a permanent feature. It has been used in other jurisdictions including England and has attracted considerable media interest particularly in relation to road traffic deaths and homicide deaths.

In general, subject to the various factors we mention throughout our report, we found that deaths were investigated properly and in a sensitive fashion. As ever the quality of the staff carrying out the work was crucial to good service delivery. The roll out of the training programme on deaths should help to raise awareness and facilitate the provision of a good service.

Recommendations

1. Training on the investigation of deaths (including training on how to deal with the recently bereaved) should be rolled out as soon as possible.

2. In Fiscal post mortems consideration be given to the early release of the results (and copies of the report where appropriate) to the appropriate medical authorities.

3. The existing protocols be highlighted for on-call staff to ensure the minimum number of people actually attend at the scene of a crime and actually in the mortuary during the course of a dissection.

4. The Department gives consideration as to how feedback can be given to Forensic Pathologists on the contents of post mortem reports and on the use of their evidence in court.

5. The Crown Office host a forum for Forensic Pathologists where issues of mutual interest could be discussed.

6. The Crown Office and the relevant medical authorities take forward discussion on the reporting of maternal deaths to the Procurator Fiscal.

7. Consideration be given to recording retention (and ultimate method of disposal) of organs on the IT system.

8. A reduced plea to a Section 1 charge under the Road Traffic Act 1988 should only ever be accepted where there has been a significant change in circumstances and not without the circumstances being first explained to the relatives or other contact person.

9. Crown Office give consideration to placing an IT flag on a death where it appears that the deceased's family may have specific cultural or religious needs.