Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.

Donate to our crowdfunder

Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill: Stage 1

Part of the debate – in the Scottish Parliament on 24th September 2015.

Alert me about debates like this

Photo of Johann Lamont Johann Lamont Labour

We all recognise the importance of the debate. I congratulate Patricia Ferguson in particular on all that she has done to drive the agenda. I do not think that the bill would be in front of us if that work and the work that she has done on behalf of families who have suffered as a consequence of an inadequate system of FAI and inadequate redress for families had not been done.

I want to contribute to the debate from the point of view of the dreadful, tragic experiences of some of my constituents. I do not intend to tell their stories, although they are powerful in themselves; I want to make comments that are drawn from their experiences. All those families lost loved ones in a health setting or while accessing health services, so I am sure that members can understand concerns that the view is held that the national health service should take its own approach to unexplained deaths.

The Scottish Parliament information centre briefing says that the purpose of adverse event reviews is

“to discover if any lessons for future practice can be learned.”

That is little comfort to those who seek justice for their loved ones. We must surely be concerned that, because NHS boards set their own policies in relation to adverse event reviews, practice varies from area to area. I urge the minister and the Scottish Government to look again at that matter. If there is a mandatory FAI for someone who died in prison, why is there no rigour or consistency for unexplained deaths in hospitals? We need clarification on whether and when a procurator fiscal would be involved in an NHS case. What would be the nature of any investigation? What is the expectation of the standard of the investigation by the prosecution services in such cases? There is deep dissatisfaction. As I have said, if there is a mandatory FAI for a child who died in care, what is to be done if there is alleged neglect by public services as a result of which a child who was not in care died? We can see that contradiction.

We need reassurance that “public interest” is not narrowly defined. The test should stretch to include NHS processes not being followed, pressures on staff, untrained staff and perhaps the impact of the use of bank or agency staff on the quality of the care that is received.

In one case involving a constituent of mine, procedures to check the patient were not followed. The reason was not investigated; it was simply established that procedures were not followed. There was a reassurance that procedures would change, but no explanation of how it would be ensured that they would be followed. I am sure that the minister can understand how unsatisfactory that must be for the family concerned.

It is critical that families are at the centre of the process. When people are struck by grief and they have lots of questions, we cannot overstate the importance of making real a commitment to involve families. We cannot simply say, “Yes, we involve families,” when their experience is different. I have had very varied reports on the effectiveness of family liaison.

We need to have honesty and compassion at the heart of the process. If there is not going to be an FAI, we need to know and understand that. The reasons must be explained and they must emerge from the evidence that has been investigated rather than there simply being a presumption about whether a particular case fits into a particular box. I know of a family who waited more than a year to be told that they were not getting an FAI but who felt very strongly that that decision had been made on day 1. If that is the case, we should at least be honest with people about it.

In the context of very significant cuts to prosecution services, we need reassurances that the role is real and that it will be properly resourced. It is not good enough for people to be told that they are at the centre of the process if, all the time, they feel that they are excluded from it and it may simply be that people have too much of a case load to do their jobs properly. We should not have an institutional presumption against fatal accident inquiries. Where a fatal accident inquiry is granted, it is important to ensure that families have real engagement, and legal aid is a particularly important issue if families are to be respected.

Although we can improve the FAI system and I accept that the bill goes some way towards doing that, we need to reflect on why families want a fatal accident inquiry in the first place. They want the death of their loved one to be taken seriously. They want their day in court, and for those who made decisions to be held to account. That is entirely reasonable. It may not be for the current bill, but we need to look at how we address that hunger for justice. People are currently left despairing and with a feeling that their loved one was unvalued. They are told, “That is not what an FAI is for.” If that is the case, what is? How do we address the need? What needs to change in the system to leave people feeling that they are being attended to?

It is a particular cruelty that families who yearn for justice—for a proper investigation—in order to respect the memory of those whom they have lost are driven down the civil route and seek compensation as a way of challenging injustice. That is cruel. First, it creates the impression that they are driven by financial interest and not by grief, and very often institutions then shut up shop and refuse to engage with families. People struggle to secure legal aid, and even where they secure it, if an out-of-court settlement is reached and a financial offer is made, even where someone does not accept responsibility, the person may have no choice but to accept, because if they do not, legal aid will be withdrawn. In that situation, they still do not have their day in court.

Loss and grief do not make people irrational or unreasonable, but sometimes the system appears to dismiss rather than understand. In my experience, doggedness, determination and a drive for justice have forced public agencies to move and to understand that there is something that needs to be investigated, but the test of justice should not be the determination of individual families. We should have a system that understands the importance of response.

It is easy to say why we cannot do something, but I believe that it is important to look at these questions differently. In the face of loss, people are entitled to ask, “Why?” and to be heard and answered, yet the current system does not allow that.

We support the bill, but it is not enough. I recognise the steps that have been taken, and—like many members, I am sure—I will be happy to work with the Government and any agency beyond this Parliament to address the brutal truth for too many families, which is that, in the face of the loss of their loved one, there appears to be nothing that the system can do.

We must strengthen the FAI system, but let us also consider how we address such questions of injustice, so that we do not simply tell people, “Things will be better in future,” but say, “The one you loved and lost deserved better,” and we understand why we ended up in the situation in the first place. I support the bill, but I hope that the minister will reassure members that he will take those very difficult issues far beyond the bill itself.