The Scottish system of inquiring into deaths in the workplace or in custody and certain other deaths, the Fatal Accident Inquiry (FAI),is dated, unfit for purpose and belongs to a different epoch.
The legislation dates from 1976 and is criticised by all who engage with it, especially those sheriffs charged with the unenviable task of applying its rules.
So, what do we do about it? Have a very high-level review of how to improve the existing legislation? Done. Lord Cullen, former head of the Scottish judiciary, reported back to the Scottish Parliament in 2009 with a list of not-especially taxing amendments to the system. One of those recommendations was implemented. We have a centralised investigation of deaths unit served by the Procurator Fiscal's office. That is a start but it should not represent the end. It appears, however, for the time being that this is all we can expect.
A valiant attempt to return FAIs to the agenda is under way at the instance of Labour MSP Patricia Ferguson. She has published a draft bill and seeks responses before November 22. The Bill means wel. It suggests that not only should sheriffs make recommendations following the investigation into a death, they should also be empowered to somehow enforce those recommendations; a brave sentiment doomed to failure.
The Bill also admirably suggests that the ambit of the legislation be extended to include deaths resulting not simply from accidents at the workplace but also from chronic employment-related diseases. There is much to be said for the ambition of Ms Ferguson's Bill. But surely its main objective must be more ambitious: to finally provoke the Scottish Government into doing something.
The system for the conduct of FAIs is slow, under-funded, and generally prone to missing the point. There is an obvious reason for this. Scottish courts and lawyers are immersed in an adversarial approach to life. Foreign systems often favour an inquisitorial approach. The legislation once represented an attempt to move away from an adversarial approach to a more continental attempt to do the obvious and the necessary: find out what actually happened. The Scottish system is almost hard-wired to avoid that specific outcome. There are almost always too many vested interests at play.
Take a death resulting from a negligent hospital procedure. Who is represented? Certainly the hospital; any individual associated with that procedure (doctor, anaesthetist, nurses perhaps). Probably the manufacturer of any piece of machinery that may feature in the inquiry. All will have legal representation and all will have an agenda to present their involvement in the best possible light; or at least they will once they have been spoken to by their lawyer or insurer.
But there is another party that should not be forgotten: the family. Ms Ferguson rightly says that the family should be at the heart of the inquiry process. It is ironic, then, that the family might be the one party to struggle to fund an engagement with the inquiry process. The legal aid system in Scotland (which was once demand-led rather than budget-led) is responsible for funding the majority of families seeking solace through the FAI system. With the Scottish Government determined to slash the budget of the Scottish Legal Aid Board, those families can expect to struggle to receive the funding they require to go to battle with other interested parties at the table.
It could be different. It should be different. The Scottish Government should not be obsessive about next year's independence referendum. It should commit itself to positive and worthy legislative change. It should also make a commitment to funding change. Justice is not cheap.
A grown-up government will recognize that. Our government should introduce legislation designed to generate fast-acting, fact-finding tribunals governed by sheriffs with proper investigative powers. But please; do not forget the families.
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