An FAI is a legal process that seeks to explain the circumstances and facts leading up to a person’s death. Once an FAI has been decided and intimated on the Board by the Crown Office and Procurator Fiscal Service (COPFS), the Legal Claims Manager will instruct NHS Central Legal Office (CLO) to protect the interest of the Board and staff at the inquiry. Inquiries are normally held before Sheriffs and generally take place in Sheriff Court buildings.
Staff involved in the case will be called as witnesses to give their evidence on knowledge of fact or as an expert witness. If you have previously given a statement to the police/PF during the initial Investigation, it is most likely you will be called to give evidence at the FAI.
Leading up to the FAI, staff may be contacted to provide a further statement (precognition) along with any other information that may be relevant in the preparation of the FAI. This contact could be from either the CLO Solicitor who is acting on behalf of the Board or the Procurator Fiscal during the preparation of the FAI.
The FAI needs to determine five main points:-
- Where and when the death took place
- The cause or causes of death
- The reasonable precautions, if any, that might have avoided the death
- The defects, if any, in any system of work that contributed to the death
- Any other facts relevant to the circumstances of the death
Preparation for FAI
Preparation for Court is essential. The gap between the initial PF investigation and the decision being made to hold an FAI can be months or even years. Take this time to prepare and familiarise yourself about FAIs ensuring you have all the support you need professionally and emotionally to assist and guide you through what can be a stressful and worrying time for staff. Staff should try and keep in mind that FAIs are not held to find fault or apportion blame with an individual, but to identify and rectify any systematic defects.
You should familiarise yourself with records and reports in relation to the matter and consider what decisions were taken, when and why. It may also be helpful to think about any factors which may have had a bearing on the death and how you will respond to questions about these. You will be expected to give evidence on the five main points listed above.
Questioning
Generally, you will be questioned on who you are, your qualifications, age and experience and place of work before going in to the circumstances surrounding the death. Try to:-
- Be calm, courteous and honest – remain objective
- Speak clearly and concisely
- Focus on the question at hand
- Take time to consider your response
- Be ready to confirm/back up your evidence from medical notes, reports, etc
- Refer to your notes if required
- If you can’t remember or don’t know the answer to a question – say so – and do not guess
- If unsure of the question, ask for it to be repeated or clarified
- Do not give an opinion on a matter which you are not qualified to do so
- Do not discuss your evidence with other witnesses
- Do not attribute fault to others unless you are an expert witness
- Try not to use any abbreviations or slang
Questioning is led by the Procurator Fiscal who is representing the public’s interest which then follows on to:-
- Solicitor representing the deceased’s family (if they have chosen to appoint legal representation)
- Solicitor representing the NHS (CLO)
- Legal representation of any individuals who have chosen to be represented in their own right
All relevant medical records, reports are lodged in Court in advance of the trial and can be placed in front of you when in the witness stand to allow you to refer to when giving your evidence, these are known as productions.
The following support and guidance is available to staff during the PF/FAI:-
- Practical support and guidance in relation to FAI process
- Information on court procedures and what to expect as a witness
- Court familiarisation visit in advance of FAI
- Support in court on day(s) of giving your evidence
- One to one support to address any specific concerns or questions
- Signposting on to other support agencies
- FAI resource booklet
Support for NHSGGC staff
The following video outlines the support available to NHSGGC staff around Fatal Accident Inquiries.