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Chamber and committees

Meeting of the Parliament (Hybrid)

Meeting date: Wednesday, May 13, 2020


Covid-19 (Update)

The Deputy Presiding Officer (Linda Fabiani)

Good afternoon, everyone. Before we begin, I remind members that social distancing measures are in place in the chamber and across the Holyrood campus. I ask that members take care to observe those measures, including when entering and exiting the chamber.

The first item of business is a statement by the Lord Advocate, James Wolffe QC, on Covid-19 update. The Lord Advocate will take questions at the end of his statement, so there should be no interventions or interruptions.

The Lord Advocate (Rt Hon James Wolffe QC)

As Lord Advocate, I am constitutionally responsible for the investigation of sudden, unexpected and unexplained deaths in Scotland. Although I exercise that function independently of any other person, I want to take this opportunity to advise Parliament of the approach that I am taking to that responsibility, in relation to deaths attributable to Covid-19.

At the outset of the pandemic, I issued a direction that Covid-19 or presumed Covid-19 deaths do not require to be reported to the Crown unless there is some other substantive reason for reporting the death. That direction was consistent with the approach that has been taken in relation to other significant outbreaks of infectious disease. That approach helps to reduce the demands on the medical profession while maintaining the overall integrity of the system for reporting and investigating deaths.

In that system, a death falls to be reported to the Crown if the circumstances are such as to give rise to public anxiety. My officials have been keeping the situation under review, and I have concluded that two categories of Covid-19 or presumed Covid-19 deaths meet that criterion, and should accordingly be reported to the Crown.

The first of those categories is all Covid-19 or presumed Covid-19 deaths where the deceased might have contracted the virus in the course of their employment or occupation. Although not exhaustive, that might include the deaths of care home workers, front-line national health service staff, public transport employees and emergency services personnel. The second category is all Covid-19 or presumed Covid-19 deaths where the deceased was resident in a care home when the virus was contracted.

My officials have been working closely with the office of the chief medical officer, and others, on the practical arrangements to implement those principles. Once that work is concluded, a letter will be issued from the office of the CMO and the Crown Office and Procurator Fiscal Service to medical practitioners, to advise them that from the date of that letter they should report any death that falls in either of those two categories to the Crown.

My decision also applies to deaths in those two categories that have already occurred. However, arrangements are being made so that the Crown can obtain the information that it requires to identify and register those deaths without imposing any burden of retrospective reporting on medical practitioners.

Those steps will ensure that all deaths within the two categories that I have described will be registered within the Crown system of death investigation, and that each of those deaths can be investigated. The nature and extent of the investigation that is required in relation to any particular death or group of deaths will depend on the particular circumstances. In some cases, the investigation required might be quite limited, and in others it might be more extensive. That will depend on the particular circumstances.

In that regard, it would be premature for me to speculate at this stage on whether a fatal accident inquiry into any particular death or category of death from Covid-19 would or would not be appropriate. Those are decisions that will fall to be made on the basis of the circumstances of each particular case, once it has been investigated.

In discharging my responsibilities for the investigation of deaths, I am acutely conscious of the interests of bereaved relatives who face sudden loss. The Crown will be sensitive to the needs of bereaved relatives, and will keep them informed about any investigation in accordance with the family liaison charter, which I laid before Parliament in 2016.

The Crown will take a multi-agency approach, working with other agencies that have relevant responsibilities: the Health and Safety Executive, local authorities, the Care Inspectorate, the police, and others. That will ensure first that the right investigations are undertaken by the right agency or agencies in each case. Secondly, it will ensure that the Crown, in fulfilment of its independent responsibilities, can make the right decisions about whether further investigation, or any further process of inquiry, is required in each particular case. The approach to the reporting of deaths that I have outlined is the first stage in enabling those steps to taken.

I am confident that the process will help to make sure that, in due course, we as a society will better understand the circumstances of those deaths. It will also ensure that, where we can, society will learn lessons for the future. We do that knowing that every one of those deaths is an individual tragedy that calls for profound sorrow, compassion and respect from each of us.

The Deputy Presiding Officer

The Lord Advocate will now take questions on the issues raised in his statement. I can allow only 10 minutes for questions, so it would be helpful if those members who wish to ask a question would press their request-to-speak buttons. I am pleased to say that two members will ask questions remotely. To avoid any potential hold-ups, I note that John Finnie will be called after the two front-bench speakers.

Liam Kerr (North East Scotland) (Con)

I thank the Lord Advocate for advance sight of his statement. On behalf of the Scottish Conservatives, I welcome the investigation of deaths in care homes and of those of key workers. Those people are on the front line and we must ensure that their families get the answers that they deserve.

I have three questions. What steps will be taken on quality assurance, to ensure that every death in those categories is reported to the Crown? Who in the health service will take overall responsibility for accurate reporting? Finally—as we know that unacceptable delays are not unheard of at the Crown Office—how long can families expect to wait for an investigation to conclude after the death of a loved one?

The Lord Advocate

I am grateful to Liam Kerr for his endorsement of the principles that I have outlined.

There are well-established processes for the reporting of sudden, unexpected and unexplained deaths. Those are well understood across the medical profession. The letter that I mentioned in my statement will issue guidance to medical practitioners about the principles that are to be applied. The Crown Office is establishing a dedicated unit to undertake the work, with a view to making the process as smooth as possible.

In relation to deaths that have occurred already, my officials have been working closely with the other agencies that have an interest and to which deaths in these contexts are reported: the Health and Safety Executive, the Care Inspectorate, local authorities and others. I am confident that the Crown will be able to obtain the information that it requires without imposing a burden on the medical profession.

Regarding the length of investigations, as I said in my statement, I am acutely conscious of the impact of a sudden death and of the process of its investigation on bereaved relatives. The Crown Office is establishing a dedicated unit to undertake the work.

Every investigation will be different and will take a different amount of time before it can be concluded; therefore, I cannot give a commitment about the precise time that any investigation will take. I can say that, in non-pandemic cases, the great majority of death investigations are concluded in a very short time, the case is closed and answers are provided to the family. I do not expect that situation to be different in the context of pandemic deaths. Some deaths will require a more extensive investigation, but it is anticipated that most death investigations will be concluded relatively quickly.

James Kelly (Glasgow) (Lab)

No one should lose their life as a result of going into the workplace, and it is particularly tragic that workers in the NHS, the care sector and other public services have lost their lives to Covid-19 in trying to protect others. Does the Lord Advocate accept that, as a matter of public interest, those who have lost their lives in the NHS, care homes and other public service roles should be considered for a fatal accident inquiry as a matter of priority? What avenues will be open to the relatives and workplace trade union representatives to make their views known and to make representations for a fatal accident inquiry?

The Lord Advocate

James Kelly is right to express the tragedy of each one of those deaths. As he knows, the system for investigating deaths in Scotland includes, but does not require, a fatal accident inquiry into every death that is reported to the Crown. In most cases, the Crown’s investigation establishes the cause and circumstances of the death.

It would not be appropriate for me at this stage, before investigations have been carried out, to speculate about what those investigations might lead to or about the circumstances in which a fatal accident inquiry will be held. However, where the law requires a fatal accident inquiry, one will be held. Where the Crown concludes, following investigation, that a fatal accident inquiry should, in the public interest, be held, one will be instructed.

On James Kelly’s question about the opportunity for relatives and others to make known their views, the family liaison charter that I laid before Parliament in 2016 committed the Crown to listening to and taking account of the views of relatives on the question whether an FAI should be held. If a decision in any individual case is made not to hold an FAI, the Crown should be prepared to review the decision, should the next of kin wish such a review to be undertaken.

We come to the open questions.

John Finnie (Highlands and Islands) (Green)

I thank the Lord Advocate for early sight of his statement and its content. The Lord Advocate will be aware that, with regard to the multi-agency approach, the Inspectorate of Prosecution in Scotland recommended in its report that there should be a memorandum of understanding with all investigative agencies. Can the Lord Advocate update us on that? Has he had discussions with the other agencies, particularly with the Health and Safety Executive? Can he provide an assurance of their full co-operation with the change of approach?

The Lord Advocate

I will focus in particular on the issues that I addressed in my statement. My officials have been engaging closely with the Health and Safety Executive, the Care Inspectorate, the police, and other agencies, including, as I mentioned, the office of the chief medical officer and the death certification review service.

A number of bodies have an interest and responsibilities in this area. The Crown’s approach in this context is very much to view the exercise as a multi-agency one, in which it plays a key role, given its independent responsibility for the investigation of each death. I am confident that, from the information that I have been given, there will be good co-operation and strong working and partnership with the key agencies.

Rona Mackay (Strathkelvin and Bearsden) (SNP)

This is clearly a distressing time for families who have sadly lost loved ones. Will the Lord Advocate provide additional details on the impact that the changes will have on bereaved families? Does he anticipate, for example, that there will be a delay for relatives in arranging a funeral as a result?

The Lord Advocate

I and the professional and experienced staff in the Scottish fatalities investigation unit, which undertakes this work on my behalf, are acutely conscious of the impact on bereaved families of a sudden death and a subsequent investigation.

I set out the Crown’s commitment to bereaved families in the family liaison charter that I have already mentioned. I will make two additional points. As I have already observed, in the great majority of cases, the Crown does not anticipate that the steps that I have announced will delay the ability of families to make funeral arrangements. In the small number of cases in which there is a delay, it will be kept to the absolute minimum.

My second point is that, while every investigation is different, most investigations in a non-pandemic context are capable, as I observed to Liam Kerr, of being closed within a relatively short period, and I do not anticipate that the position will be materially different in the present context.

If a more substantial, lengthy investigation is required, the Crown will keep the family informed and will take its views into account in accordance with the family liaison charter.

Liam McArthur (Orkney Islands) (LD)

I thank the Lord Advocate for early sight of his statement and welcome much of its substance.

The process that the Lord Advocate has outlined will be alien to the vast majority of people. Will he set out in a little more detail what families should expect by way of updates? Will there be a straightforward process for seeking information if they have questions? Is he confident that the Crown Office has the capacity to deal with the additional enquiries that will inevitably result from the process?

The Lord Advocate

The charter that I have mentioned gives clear commitments to early engagement with families, to keeping families informed on a regular basis, and to taking their views into account; those processes will be followed.

As I mentioned, the Crown Office is establishing a dedicated unit to undertake the work. I and the service are mindful of its importance in the current context, and of the need to keep the interests of bereaved families at the forefront of our minds. The resourcing of the unit will be kept under review as events unfold. The service is already making arrangements to ensure that it is staffed to deal with the cases that are anticipated.

That concludes questions on the Lord Advocate’s statement.

Neil Findlay (Lothian) (Lab)

On a point of order, Presiding Officer—with apologies for making it.

The Lord Advocate is here to discuss hugely important issues. I know that the parliamentary timetable is not for you to determine, but I must place on record that I feel that it is completely unacceptable for members to have only 10 minutes on such a hugely important issue.

The Deputy Presiding Officer

Neil Findlay has quite rightly pointed out that it is not for me to decide on parliamentary business; it is a matter for the Parliamentary Bureau. All that I can suggest is that Mr Findlay raises it with his group’s representative.

I apologise to the members whom I was not able to call for questions: Fulton MacGregor, Shona Robison and Mr Findlay himself.