109. The need to obtain expert evidence is often cited as a factor that can impact on the length of time taken to investigate and commence an FAI.
110. In 31 of the 88 cases examined, expert reports were commissioned by COPFS for the purpose of an FAI. In 18 of the 31 cases, expert reports were also commissioned by interested parties.  Experts were instructed by COPFS in 16 mandatory FAIs (23%) and in 15 discretionary FAIs. Medical professionals constituted, by far, the main body of experts instructed in both mandatory and discretionary FAIs (61%). Other experts came from a range of fields, including road traffic collision investigators and pharmacology.
111. Interested parties instructed experts in 26 cases, including eight cases where COPFS did not obtain independent expert reports.
Chart 8 - Type of Crown Expert
112. Cases with expert evidence are by their nature more complex and often more contentious, with evidence and conclusions being disputed, which in turn can lead to further experts being instructed.
113. FAIs involving experts took, on average, 769 days from the date of death to the preliminary hearing  compared to 530 days for FAIs with no expert evidence.
114. We found that the average time from the date of instruction of experts to receipt of their reports was 86 days  with the longest period being 287 days and the shortest 7 days.
115. Of the 31 cases where COPFS instructed an expert, we found five cases where the failure to submit reports timeously added unnecessary delay to the investigation and in some cases resulted in the FAI being adjourned. The following case study exemplifies delays that can arise with multiple experts being commissioned.
Following a death in hospital in October 2007, the nearest relatives expressed unhappiness with the treatment received by the deceased. Following a meeting with the family, COPFS instructed reports on the care of the deceased leading up to his death from two medical experts. The reports were commissioned in September 2009 but were not submitted within agreed timescales. On receipt of the reports, COPFS instructed a further expert in November 2011. That report was received in October 2012. The findings were discussed with the pathologist and resulted in yet another expert report being commissioned in October 2012. This report was received in May 2013.
At the preliminary hearing, the nearest relatives sought an adjournment as they had instructed a different pathologist, and they wished to consider the instruction of other experts. This built in further delay as other participants required time to examine these reports. The FAI was adjourned to May 2013 due to the unavailability of the sheriff and parties prior to that date. The FAI commenced in May and heard evidence for two weeks before being adjourned due to an expert for the nearest relatives being unavailable. Due to difficulties in obtaining dates when all parties were available, the FAI was adjourned to December 2013. The determination was issued in July 2014, some six years and nine months after the date of death.
116. Whilst the need to obtain expert reports has the potential to add delay to an investigation, as evidenced in the five cases from our review, in the majority of cases involving experts, we found reports were submitted timeously. Overall, cases with experts instructed by COPFS took longer to progress than those without. This was due to the time taken to identify experts, the complexity of the cases and the need to instruct additional experts.
Identification of Experts
117. Given the relatively small jurisdiction of Scotland, identifying and commissioning independent experts can be problematic, particularly in more specialised fields where there are a limited number of experts. In a case involving the safety of cots, SFIU experienced great difficulty identifying an independent expert to test a particular type of cot and provide a report due to the limited number of manufacturers in this field. To assist with identifying experts, SFIU has compiled and maintains a directory of professionals. The directory includes experts from a wide range of fields, including radiology, cardiothoracic surgery, oncology, neurosurgery and general practitioners.
118. Commissioning reports and subsequently requiring "experts" to attend at court to give evidence can, in some cases, substantially increase the cost of an FAI. Having access to a source of expertise to obtain early professional advice can greatly reduce the need to commission expert reports and provide answers for the nearest relatives at an early stage. In many cases, the pathologist instructed by COPFS is able to provide more information on the circumstances and cause of death and often meets with nearest relatives to assist their understanding of the cause of the death.
Death Certification Review
119. New arrangements for death certification and registration were introduced on 13 May 2015 with the establishment of the Death Certification Review Service ( DCRS) run by Healthcare Improvement Scotland ( HIS). The review service has been set up to provide independent checks on the quality and accuracy of Medical Certificates of Cause of Death ( MCCD) in order to:
- Improve the accuracy of MCCDs;
- Provide better quality information about causes of death so that health services can be better prepared for the future; and
- Ensure that the processes around death certification are robust and have appropriate safeguards in place.
120. The DCRS team consists of a number of reviewers who are all experienced medical practitioners based in Aberdeen, Glasgow and Edinburgh.
121. As part of the checking process, the review service alerts SFIU to any deaths that should have been reported to COPFS. There is, therefore, regular engagement between SFIU and DCRS. Given the independence and expertise of the DCRS, it may provide a potential source of medical expertise with which SFIU could discuss problematic cases and perhaps shortcut decisions as to whether a death certificate should be accepted or whether the circumstances of the death merit further investigation. Alternatively the DCRS may be able to signpost COPFS to an appropriate expert or have a degree of expertise within the team that SFIU can utilise. The possibility of DCRS providing a source of expertise should be explored by SFIU.
SFIU National should explore with the Death Certification Review Service ( DCRS), the possibility of the review service providing a consultative forum for SFIU to discuss medical cases.
Agreement of Expert Evidence
122. Complex cases involving a number of specialities can result in a plethora of experts being instructed. The presence of witnesses with differing and opposing views can result in the proceedings becoming more adversarial.
123. We heard from expert witnesses that they found FAI proceedings to be increasingly adversarial and combative and whether, intended or not, it was seen as apportioning blame. Some experts have declined to become involved in cases that may result in an FAI due to their negative experience. One witness, who has given expert evidence in criminal proceedings and at FAIs, described giving evidence at an FAI as "like giving evidence at a criminal trial without the safety net".
124. To mitigate this trend, we commend practices designed to encourage experts to identify and agree all non-contentious facts and clarify at the outset the issues where there is a divergence of opinion that require to be aired in court. This approach adopts aspects of the concept of concurrent evidence which is practiced in Australia and to a lesser extent in England and Wales. Concurrent evidence involves experts exchanging reports, identifying areas of disagreement and, after all experts are sworn in, giving evidence on the same topic sequentially in effectively a panel session. It is colloquially known as "hot tubbing".
125. A variation of this approach is illustrated by the following case study.
The circumstances of the death of a commercial diver who died in the course of his employment were investigated by HSE. Following an extensive investigation, including instructing a number of reports from diving specialists, HSE submitted a report to HSD, concluding that there was no basis for a criminal prosecution. As the death occurred in the course of employment, a mandatory FAI was held. The investigation of the circumstances of the death and preparation for the FAI meant that the FAI was not held until 32 months after the death, understandably causing distress and frustration for the nearest relatives.
There were three interested parties represented at the FAI, including a member of the family representing the nearest relatives. Prior to the FAI the depute dealing with the case met with the nearest relatives and assisted by explaining the nature of the productions that the Crown intended to lead as evidence during the FAI.
Following a meeting with the interested parties, a 13 page joint minute was agreed and submitted to the court, resulting in 15 witnesses not having to attend to give evidence.
At the preliminary hearing the sheriff was advised that there were five expert reports commissioned by interested parties. The sheriff continued the preliminary hearing to seek further information on their qualifications and proactively encouraged the experts to meet to discuss and share their views on the cause of the death and agree any uncontroversial facts.
While there was a degree of concordance among the experts as to the possible causes of the death, each expert had a favoured view. Having had an opportunity to consider reports of all of the experts, and discuss their views, the pathologist gave evidence, setting out the contending theories which had been advanced by each of the experts commissioned by the interested parties. Their position was advanced and clarified through questioning the pathologist. The sheriff ultimately concluded that all of the causes of death advanced by the expert evidence were based to a greater or lesser extent on speculation with none adequately explaining the factual evidence and the post-mortem findings and as a result she was unable to conclude anything other than the deceased had died while saturation diving.
The proactive encouragement to agree facts and to focus on the differences of opinion as to the cause of death undoubtedly shortened the inquiry.
126. We received positive feedback from sheriffs on the benefits of an approach designed to encourage experts to identify facts where there is agreement and the issues where there is a divergence of opinion. It enables issues to be explored at the inquiry, to be identified in advance, allowing judicial management of the evidence relevant to establishing the circumstances of the death. Such direction at an early stage in the proceedings provides the nearest relatives with a more informed understanding of the purpose of the inquiry and can avoid frustration and disappointment with the outcome of the FAI.
127. One sheriff advised that if the parties have not discussed and crystallised the issues that are disputed and relevant prior to the preliminary hearing, she adjourns the hearing for a short period for the parties to reach agreement on facts that are non‑contentious and to clarify the scope and nature of any contested issues. The outcome is then recorded as part of the court minutes.
128. Logistical difficulties of getting experts together to reach a consensus on areas of agreement and contention were highlighted as a recurring impediment to the efficiency of FAIs.
129. The introduction of mandatory preliminary hearings  provides an opportunity to formalise such discussions as part of the preparation of an FAI. If face-to-face meetings are logistically difficult, the use of modern technology, including video conferencing facilities and email provide alternative options.
130. In cases involving multiple experts from the same discipline, consideration should be given to seeking the attendance of all "experts" at the preliminary hearing to facilitate discussion and clarify areas of contention. The potential benefit of narrowing the focus of the inquiry and consequentially shortening the length of the proceedings should more than compensate for the inconvenience of attending at the preliminary hearing. An ancillary benefit of experts attending the preliminary hearing is the opportunity to resolve timetabling issues.
131. This approach is consistent with the fact finding "inquisitorial" purpose of an FAI. Enabling "experts" to engage openly with each other, prior to the inquiry, to explain the basis of their opinion and why they discount others, should enhance the clarity and quality of their evidence. It may also assist in re-emphasising the "inquisitorial" purpose of the FAI.
COPFS should explore with the Scottish Civil Justice Council, the possibility of introducing rules to facilitate the attendance of "expert" witnesses at preliminary hearings to reach consensus on areas of agreement and identify areas of contention.
Email: Carolyn Sharp, email@example.com