Faculty has doubts over proposed legislation to reform FAIs

The Faculty of Advocates has published details of its response to the consultation over the Inquiries into Deaths (Scotland) Bill, which has been proposed by MSP Patricia Ferguson to make reforms to the current system of fatal accident inquiries (FAIs).

In its response, the Faculty acknowledged that there was room for improvement in the current system, but warned that the proposed legislation could have a number of “unintended and unwelcome” consequences.

The Faculty said it did not support the proposal to extend the requirement for an FAI for a work-related death to include deaths caused by industrial disease. In its response it said:

"In the case of industrial diseases, it is very often the case, due to long latency periods applying to the disease process, that the death will occur long after lessons have already been learned about the dangers posed by the causative agent and the precautions required to avoid exposure.”

In response to the proposal that statutory recognition should be given to the principle that discovering the lessons to be learned from a death was at least as important as discovering the cause of the death, the Faculty states that it doesn’t believe legislative change is necessary to address this point.

It said: "We think that the current legislation does already recognise the importance of discovering lessons to be learned from a death and that, in practice, the current system does operate to ensure that where lessons can be learned from a death, they are."

The response concluded: "We think certain aspects of the proposed Bill have the potential to encourage FAIs to become adversarial in nature as opposed to inquisitorial. Other unintended and unwelcome consequences are the increase in the length, complexity and additional expense of FAIs, and potential for injustice arising from the provisions relating to the enforcing of recommendations."

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