Role of Other Regulatory and Investigative Bodies
158. In addition to COPFS there is a wide range of other organisations and agencies that have a duty to investigate certain types of deaths. The creation of new regulatory and scrutiny bodies has further populated this landscape. NHS Boards,  Healthcare Improvement Scotland ( HIS),  the Mental Welfare Commission for Scotland,  the Care Inspectorate,  Local Authorities,  Child Protection Committees and the Scottish Prison Service, are some of the bodies that have duties to investigate certain types of deaths. In many cases, the death will also be reported to the procurator fiscal.
159. It is not uncommon for two or three agencies to have an interest in the circumstances of a death and to undertake parallel investigations. A death in a care setting could, for example, involve the Care Inspectorate, the Mental Welfare Commission, HSE and the Local Authority. The involvement of different agencies can be confusing and stressful for the nearest relatives and those involved with the investigation or inquiry. This is exacerbated if there is a lack of co-ordination and communication between the agencies involved.
160. During the passage of the Bill, a more streamlined system of investigation into deaths of persons detained under mental health legislation was advocated with the current system described as being "confusing and having gaps".  A commitment to undertake a review of the arrangements for investigating the deaths of such patients has been enacted in the Mental Health (Scotland) Act 2015, which provides that a review must be carried out within three years of the provision coming into force.  COPFS also issued amended guidance to General Practitioners, in February 2016, requiring deaths of persons subject to compulsory treatment under mental health legislation; detained under the Mental Health (Care and Treatment) (Scotland) Act 2003 or Part VI of the Criminal Procedure (Scotland) Act 1995; or subject to a community based compulsory treatment order or compulsion order to be reported to the procurator fiscal.
161. Whilst the nature and extent of such investigations vary, there is a common objective to ensure that any lessons learned are brought to the attention of those who are in a position to implement measures to prevent similar circumstances arising again. To that extent, it mirrors the over-riding purpose of an FAI. Given the expert and specialised knowledge of such organisations, any findings and recommendations following their investigation into a death is clearly of interest and relevance for any investigation conducted by COPFS. The outcome of such investigations may provide sufficient information to inform a decision on whether any further investigation or proceedings are required or, at the very least, assist in directing the investigation and reducing duplication of work.
162. We found that SFIU regularly receives and takes cognisance of the outcome of investigations conducted by Health Boards, the Care Inspectorate, the Mental Welfare Commission and reports commissioned by Child Protection Committees. In 28 of the 88 cases in our review, there were reports commissioned by other investigative bodies. These included five joint Scottish Prison Service ( SPS) and NHS reports (known as SIDCAARs),  five critical incident reports complied by NHS Boards and two reports from the Scottish Ambulance Service.
163. There is increasing awareness of the role and responsibilities of the various agencies and the need to co-ordinate inquiries and promulgate lessons learnt.
SFIU investigated the death of a person who had been under the care of psychiatric services on a voluntary and involuntary basis for more than 10 years. After being discharged from a psychiatric hospital, he was reported missing and subsequently found dead, believed to have fallen from a height. The investigation focussed on a number of issues, including his diagnoses, treatment and discharge.
The relevant Health Board conducted a Critical Incident Review and the Mental Welfare Commission and Healthcare Improvement Scotland considered whether they should also instruct an investigation. The investigator in SFIU commissioned a report from a consultant psychiatrist to review the medical records of the deceased and provide an opinion on the treatment received by the deceased.
The report was shared with the Health Board and other interested parties, including the Mental Welfare Commission. The outcome was an agreed set of actions to be implemented by the Health Board. The investigator facilitated contact between all parties, including the nearest relatives.
164. To further improve working relationships and raise awareness of the role of COPFS and the work of SFIU, the head of SFIU in conjunction with representatives from HIS, have delivered presentations to a number of NHS boards.
165. Recognising the need for effective communication and co-ordination between various bodies with investigatory powers, a multiple-body group, containing representatives from a number of bodies with statutory duties,  was established to raise awareness of the breadth of responsibilities of each organisation and improve co-ordination between the various organisations when dealing with investigations that cut across different sectors. Of particular focus was ensuring that there are effective information sharing protocols and liaison arrangements between the organisations.
To promote learning between COPFS and the NHS, SFIU and HIS agreed a protocol whereby SFIU will, through HIS, share the result of any investigation involving a medical death with the relevant health board and practitioners that were involved in treating the deceased. This may result in SFIU convening and facilitating a meeting with representatives from the NHS board, including those involved in the care of the deceased, and the nearest relatives to discuss their concerns.
In many cases, in response to the findings of an internal critical incident review by the NHS board and subsequent SFIU investigation, the board will have taken action to address specific concerns or systematic deficiencies. This may involve increased training, the introduction or revision of protocols or procedures or a transfer of resources.
In a small number of cases, the issues raised may have wider repercussions for the NHS or a particular speciality within the NHS. To cascade any lessons learnt from such cases, SFIU provides an anonymised summary of their findings and lessons learnt to HIS, which following input from medical clinicians, is circulated to a targeted audience. For example, if there is a specific issue arising from general practice, HIS will circulate learning points through their GP primary care network.
While acknowledging the challenge of disseminating information throughout a large organisation, the protocol is a positive development, encouraging collaborative discussion and a mechanism to enable lessons learnt in specific cases to reach a wider audience.
166. While internal investigations can be extremely informative and enable deficiencies identified to be remedied as early as possible, there are some cases where the public interest requires a thorough and public examination of the circumstances of the death. The FAI provides a platform for such an examination and for the sheriff to make recommendations that may prevent deaths occurring in similar circumstances. The recommendations carry judicial weight and under the new Act, there is a requirement for the person or organisation, to which the recommendation is directed, to provide a response within eight weeks after receipt of the determination or to provide reasons why no response will be provided.  In cases that have generated public concern, the FAI is an effective vehicle to ensure action is taken through the publicity it generates and to provide public reassurance that the actions recommended will be implemented to avoid a similar occurrence.
Primacy of Investigation
167. We heard from a number of organisations who conduct investigations into the circumstances of a death that they would welcome greater clarity on whether it is appropriate to carry out internal investigations where criminal proceedings and/or an FAI are in contemplation. We were advised that internal investigations were often put on hold until the conclusion of any criminal investigation and proceedings. This resulted in significant delays in instigating an internal investigation.
168. The need to ensure that evidence in criminal proceedings is not prejudiced is an important public interest consideration but it requires to be balanced against the need to address any deficiencies or inadequacies of practice as soon as possible to prevent any deaths arising in similar circumstances. Delaying internal investigations can also adversely impact the well-being of staff within organisations.
169. Contrary to the perception held by some investigative bodies, COPFS recognises that there can be competing interests and, where criminal proceedings are in contemplation or are being taken, it is essential, for the proper performance of their respective responsibilities that investigative bodies liaise with COPFS to discuss the scope and nature of any investigation or any other actions proposed.
170. Situations can arise that require agencies to take immediate remedial action. HSE will, for example, issue a safety alert where there is a specific safety issue that, without immediate action being taken, could result in a serious or fatal injury. This could arise through the identification of dangerous equipment, processes, procedures or substances. HSE will notify users and other stakeholders of the danger and any steps that need to be taken to rectify the fault or protect people against it. If criminal proceedings are in contemplation, HSE will liaise with COPFS and discuss the content of such notices to ensure there is no prejudice to future proceedings. This was the approach taken when following the death of a person with Legionnaires disease and a number of other suspected cases in Edinburgh in 2012, the HSE issued a Health and Safety Alert in relation to legionella risks from cooling towers and evaporative condensers.
171. Similarly, if there are public protection or safety issues, these should not be delayed regardless of whether there are criminal proceedings being contemplated.
172. One example of parallel investigations being undertaken by SFIU and Renfrewshire Child Protection Committee concerned the death of a young baby. The circumstances of the death resulted in a prosecution. During the criminal investigation, and after discussion with COPFS on the scope and nature of the proposed investigation, Renfrewshire Child Protection Committee carried out a serious case review into the circumstances of the death. The serious case review was concluded within a year of the death and made a number of recommendations which were implemented. Following the conclusion of the criminal trial, a decision was taken to hold an FAI to address wider concerns regarding the care of the child. The FAI was held four years after the death.
173. If the Child Protection Committee had to await the conclusion of the criminal proceedings and the FAI, as we heard occurs in some cases, it would have resulted in an unacceptable delay in the implementation of the recommendations that flowed from the serious case review. Many of the recommendations that were subsequently included in the sheriff's determination, issued four years after the death, had already been implemented as a result of recommendations made in the serious case review. There were some wider recommendations for organisations other than those representing social workers, including the provision of mandatory training of general practitioners on the guidance and protocols relating to child protection and the distribution of medical information to those working with children of substance misusing parents or carers.
174. To provide reassurance and clarity to other investigative agencies, there should be a streamlined, transparent and proportionate investigatory framework, with a clearly defined hierarchy of investigation. Ideally, at the outset, the various issues that require to be considered and the appropriate lead organisation should be identified and the respective roles of those with a duty to investigate clarified to ensure that a joined up approach is taken in the overall investigation of the incident or death.
175. To assist, SFIU should agree a Memorandum of Understanding, similar to the MoUs with reporting agencies such as HSE, with all of the investigative agencies that have responsibilities to investigate certain types of deaths. The memorandum should specify the roles and responsibility of each agency, the nature of investigations that may be undertaken, likely timescales, points of contact for those who have authority to instruct an internal investigation and arrangements for information sharing.
SFIU should agree a Memorandum of Understanding (MoU) with all investigative agencies that have responsibility to investigate the circumstances of certain types of deaths.