Hansard

Fatal accident inquiries provide an important opportunity to find out what went wrong and, ultimately, to learn in order that we can prevent something similar from happening again in the future. Although they are primarily carried out in the public interest, they also give families the opportunity to gain closure when a loved one is lost.

The bill will repeal the 1976 act and enact new provisions to govern the FAI system in Scotland. It has been a long time coming. Lord Cullen was invited to review the system in 2008 and he reported in 2009. I echo Johann Lamont’s tribute to Patricia Ferguson. If it was not for her determined and principled campaigning, we might still be waiting for the Government to address the reform. I congratulate Patricia Ferguson on her effort.

Not all of Lord Cullen’s recommendations have been taken up, but of those that have, three are particularly worthy of further serious deliberation at stage 2. Mandatory FAIs will be extended to cover children who die while in residential care, and to those who are subject to compulsory detention by a public authority. The Scottish Government will be responsible for publishing responses to sheriffs’ recommendations. I will touch on those issues in a few moments. The bill provides an updated definition of “legal custody” to include any death in police detention. It also requires a mandatory FAI when a child dies in secure accommodation.

Scottish Liberal Democrats welcome the changes because the state is ultimately responsible for those whose liberty has been taken from them. Because of our European convention on human rights obligations under article 2 on the right to life, it is a responsible step for any Government to examine deaths in such situations.

Because of that responsibility, and because the current review system lacks independence, we believe that further consideration should also be given to extending the requirement for a mandatory FAI to include the death of any person who is subject to compulsory detention by a public authority at the time of death, and that that should include people who are detained under mental health legislation. It was one of the most contentious areas that the committee explored during stage 1 and we were presented with many conflicting views from witnesses. The committee's stage 1 report asked the Government to consider further whether the bill should be extended in this way, with the proviso that the Lord Advocate could have discretion not to hold an FAI in particular circumstances—effectively flipping the current arrangements.

The Government has indicated that it feels that that would be disproportionate. Nevertheless, it acknowledges that the Mental Welfare Commission for Scotland believes that the current system for investigation of deaths of detained mental health patients is confusing and has gaps. Furthermore, the Scottish Government accepts that improvements should be made to how deaths in detention are investigated in practice, in order to ensure that the process is effective and timely, that it supports learning and that reviews are of consistent quality.

I challenge the Government's view that the bill is not the vehicle for such change, and I am grateful for the work of Dr Richard Simpson during the passage of the Mental Health (Scotland) Act 2015. To rely on that alone and, indeed, by the Government’s own admission, to wait up to three years for a review of the arrangements for investigating deaths in hospital, risks missing learning points from events in the interim and does the families who are affected a serious disservice. I will, therefore, consider further whether there is scope to amend the bill at stage 2 to give effect to a more robust system.

Similarly, the Government responded to Lord Cullen’s recommendation about looked-after children by saying that a national child death review system is currently being developed. The Government went on to explain that it is anticipated that the steering group that is in charge of that review will recommend that the deaths of all live-born children and young people up to their 18th birthday, and of care leavers who have been in receipt of aftercare or continuing care up to their 26th birthday and who are resident in Scotland, should be reviewed.

I ask the minister to justify taking that two-tier approach rather than including those deaths in the mandatory FAI system. In its submission to the Justice Committee, the centre for excellence for looked-after children in Scotland did not support making such deaths subject to mandatory FAI and said that there is no certainty that that would lead to improvements in services for looked-after children and those leaving care. The whole point of FAIs is to learn from the deaths and to improve matters. The lack of confidence in the system that was evidenced in CELCIS’s statement surely suggests that Lord Cullen’s recommendation on sheriffs’ recommendations needs to be reconsidered. That links back to Patricia Ferguson’s work.

Although the committee report noted that there are difficulties in placing duties on certain bodies to monitor the implementation of sheriffs’ recommendations, it also asked the Government to look at ways of ensuring that those recommendations are respected. I do not feel that the minister has sufficiently addressed that point this afternoon. I urge the minister to work very closely with Patricia Ferguson to improve the provisions at stage 2.

The bill goes quite some way towards putting the needs of families at the heart of the new system. An area of concern had been the requirement on families to submit a written request for the reason for not proceeding to an FAI, and it was suggested that the Government should amend the bill to remove that requirement. On reflection, I am content with the Government's response to that.

Parliament today has an opportunity to reform and modernise the system of FAIs in Scotland, and the Scottish Liberal Democrats will support the principles of the bill.