Committee
Justice Committee 03 November 2015
03 Nov 2015 · S4 · Justice Committee
Item of business
Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill: Stage 2
This group of amendments in the name of Alison McInnes seeks to require mandatory FAIs into the deaths of children who were looked after by a local authority. Given that the provision would affect all natural-cause and expected deaths of looked-after children, many of which happen as a result of life-limiting conditions, it is difficult to see how the public interest, including that of the families, would be served by holding an FAI in such circumstances. The amendments also fail to recognise that a judicially led inquiry is not the only means of investigating the deaths of children in the care of the state. As Glasgow City Council confirmed during stage 1, the deaths of looked-after children are already provided for in the reporting requirements of the Looked After Children (Scotland) Regulations 2009, which require local authorities to notify Scottish ministers and the Care Inspectorate of a death within one working day. That reporting responsibility has been further extended by the Children and Young People (Scotland) Act 2014 to include the reporting of deaths of any care leaver up to the age of 26 and any young person in a continuing care placement. Deaths of children in residential establishments, half of which happen as a result of life-limiting conditions and other health issues, are investigated and reviewed by the Care Inspectorate, which identifies any lessons to be learned and makes recommendations on the review of legislation, policy or guidance. Such deaths are already the subject of investigation by the procurator fiscal, and the Lord Advocate has discretionary power to hold an FAI into such deaths when that is considered to be in the public interest. The Crown Office liaises with the Care Inspectorate and refers to its reports in order to inform decisions on whether to hold a discretionary FAI. The committee will also be aware of the child death review. Ministers agreed that Scotland should set up a national child death review system to review the deaths of all children and young people, not just those in care. Between January and June, a steering group met to develop a model for the system, and its report and recommendations will be submitted to ministers very shortly. I do not believe that it would be appropriate or sensible to legislate to extend the mandatory category to include deaths of looked-after children in advance of the review’s work. The Care Inspectorate reported that, in the three-year period from 2009 to 2011, there were 30 deaths of looked-after children in Scotland, which means that, as a result of this provision, there could be an additional 10 FAIs per year. Of course, the resource impact is not the only consideration. At stage 1, both Glasgow City Council and CELCIS did not support extending the mandatory category in this way. Glasgow City Council considers the current arrangements that I have just described for the reporting and review of deaths of looked-after children to be suitable and sufficient, and CELCIS did not recommend making this a mandatory category, because it felt that there was no certainty that it would lead to improvements in services for looked-after children and those leaving care. In its letter of 19 October to the committee, it reiterated its view that it was not necessary to extend the provision for mandatory FAIs to all accidental or sudden deaths of looked-after children in residential care. On that basis, the Government does not support these amendments, and it agrees that the combination of the provisions in the 2009 regulations and the Children and Young People (Scotland) Act 2014 and the proposal to have discretionary FAIs in such cases strikes the right balance. We believe that the proposals in these amendments would not be welcomed by bereaved families of looked-after children. Some looked-after children continue to live in the family home following involvement with the children’s hearings system, and 11 of the deaths from 2009 to 2011 were of children who were living at home or with relatives. Others live away from their family home—for example, with a foster carer or in residential accommodation—and 12 of the deaths reported were in residential care, while four were in foster care. Children usually become looked after to promote their care—for example, respite care for children with complex difficulties or disabilities—and to protect them from neglect and abuse. Families and those known to the child might not wish to have the death become the focus of a public inquiry. I also remind the committee that, under the bill as it stands, the death of a child in secure accommodation would trigger a mandatory FAI. For all those reasons, I ask the member to withdraw her amendments.
In the same item of business
The Convener
SNP
Item 2 is stage 2 proceedings on the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. I remind members that our aim is to complete stage...
The Convener
SNP
Amendment 1, in the name of Margaret Mitchell, is grouped with amendments 56, 2, 2A, 57, 3 to 5, 5A, 6, 58 and 7.
Margaret Mitchell (Central Scotland) (Con)
Con
During stage 1 consideration, the committee came to the conclusion that there was no need for mandatory fatal accident inquiries into the deaths of those who...
Alison McInnes (North East Scotland) (LD)
LD
I welcome the chance to speak on the amendments to section 2. Section 2 sets out the circumstances under which mandatory public inquiries into certain death...
Roderick Campbell (North East Fife) (SNP)
SNP
I have listened carefully to what both members have said. Margaret Mitchell referred to Lord Cullen’s report, but I think that it is fair to point out that ...
John Finnie (Highlands and Islands) (Ind)
Ind
For me, the issue is about the relationship between the state and the individual. It is also about perception, and I think that any member of the public who ...
Christian Allard (North East Scotland) (SNP)
SNP
Mr Campbell is absolutely right: the Lord Advocate has the discretion to have an inquiry. More to the point, I do not think that the Lord Advocate would make...
Elaine Murray (Dumfriesshire) (Lab)
Lab
I, too, have a lot of sympathy for the amendments in the names of Margaret Mitchell and Alison McInnes. On what Roddy Campbell said, having the discretion to...
The Convener
SNP
I am sympathetic to the arguments but I take a fairly plain view of things: something is either mandatory or not mandatory. As has been explained, there is d...
The Minister for Community Safety and Legal Affairs (Paul Wheelhouse)
SNP
The group includes amendments in the name of Margaret Mitchell that would require mandatory FAIs into the deaths in hospitals of patients receiving compulsor...
The Convener
SNP
It is really for Margaret Mitchell to wind up, but Alison McInnes is writing something, so I wonder whether she wants to respond to any of that, first.
Alison McInnes
LD
I am grateful for the opportunity to do that. I am also grateful to the minister for the assurances that he has put on the record today, particularly in rela...
The Convener
SNP
You do not need to say anything about that at the moment.
Alison McInnes
LD
Okay.
The Convener
SNP
Hold us in suspense on that. Margaret Mitchell will now wind up and press or seek to withdraw amendment 1.
Margaret Mitchell
Con
I will address the stigma that the minister suggested will somehow occur if there were mandatory FAIs for detained mental health patients. I refer the minist...
The Convener
SNP
The question is, that amendment 1 be agreed to. Are we agreed? Members: No.
The Convener
SNP
There will be a division. For Finnie, John (Highlands and Islands) (Ind) McDougall, Margaret (Central Scotland) (Lab) McInnes, Alison (North East Scotlan...
The Convener
SNP
The result of the division is: For 5, Against 4, Abstentions 0. Amendment 1 agreed to.
The Convener
SNP
Amendment 52, in the name of Alison McInnes, is grouped with amendments 53 and 54.
Alison McInnes
LD
This group of amendments also refers to section 2. The main amendment is amendment 53, which introduces the requirement to hold a mandatory FAI as a result o...
Roderick Campbell
SNP
I have listened to what Alison McInnes has said, but we need to bear in mind that we already have the Looked After Children (Scotland) Regulations 2009, whic...
Paul Wheelhouse
SNP
This group of amendments in the name of Alison McInnes seeks to require mandatory FAIs into the deaths of children who were looked after by a local authority...
Alison McInnes
LD
I caution the minister against making a case on the basis of the resource impact, because I think that that is the weakest argument that can be made. If a nu...
The Convener
SNP
I agree with you. I do not like to hear resources being brought in—the argument should be based on the principle.
Alison McInnes
LD
That aside, the minister has set out a detailed reason for not supporting amendments 52, 53 and 54. I considered them to be probing amendments to test the Go...
The Convener
SNP
The question is, that amendment 2A be agreed to. Are we agreed? Members: No.
The Convener
SNP
There will be a division. For Finnie, John (Highlands and Islands) (Ind) McDougall, Margaret (Central Scotland) (Lab) McInnes, Alison (North East Scotlan...
The Convener
SNP
The result of the division is: For 5, Against 4, Abstentions 0. Amendment 2A agreed to.
The Convener
SNP
The question is, that amendment 2, as amended, be agreed to. Are we agreed? Members: No.