Bereaved families - coronavirus update

The death of a loved one is an upsetting and distressing time. The Crown Office and Procurator Fiscal Service (COPFS) is sensitive to the needs of bereaved relatives and we appreciate that they may have further questions in light of the current Covid-19 pandemic.

In accordance with the Family Liaison Charter it is our aim to keep relatives informed about any investigation that is undertaken by COPFS. We have a dedicated area of our website providing more general information about the role of COPFS in investigating deaths. Below is specific information on the effect of Covid-19 on the reporting of deaths to the COPFS.

Updated guidance from the Lord Advocate was issued by the Chief Medical Officer, COPFS, Police Scotland and the Registrar General to medical professionals in Scotland in May 2020.

This confirmed that considering significant public anxiety, two categories of Covid-19, or presumed Covid-19 deaths should be reported to the Procurator Fiscal. The two categories of Covid-19 deaths that must be reported to the Procurator Fiscal are:

Covid-19 deaths in employment

All Covid-19 (or presumed Covid-19) deaths where the deceased might have contracted the virus in the course of their employment or occupation, for example, care home workers, front-line national health service staff, public transport employees and emergency services personnel.

Covid-19 deaths of residents in care homes

All Covid-19 (or presumed Covid-19) deaths where the deceased was resident in a care home when the virus was contracted.

Deaths falling into either category will be reported to COPFS by the doctor certifying the death.

Deaths falling into either category but occurring before the updated guidance was issued will be reported to COPFS retrospectively. Information about these deaths will be collated and reported to COPFS without imposing additional reporting requirements on medical practitioners.

You do not need to do anything about this development separately.

Deaths that would otherwise have been reported to COPFS will continue to be reported. These include deaths where the deceased died from Covid-19 (or presumed Covid-19) while in prison or police custody and Covid-19 deaths where there are concerns that either (i) the medical treatment administered or (ii) fault or negligence on the part of medical staff may have contributed to the death.

The nature and extent of any investigation by COPFS in relation to a death that is reported will depend on the circumstances of each case. The purpose of the investigation is to understand the circumstances of the death, where possible to prevent future deaths in similar circumstances and where appropriate to take any necessary action.

In some cases, the investigation required might be quite limited and can be closed with no further action, and in others it might be more extensive. That will depend on the circumstances. For example, we may examine whether effective infection prevention and control measures were implemented by, as the case may be, any relevant hospital, care home, prison or employer. For individuals who contracted Covid-19 while resident in a care home we will, where relevant, examine any decision to return a resident from hospital to that care home. We are likely to review deaths of care home residents and staff together where it is appropriate to do so.

COPFS is working together with other agencies, for example Health and Safety Executive, local authorities, Care Inspectorate and police to ensure the right investigations are undertaken by the right agencies. This will also allow COPFS to make the right decisions about whether further investigation is required.

Please note that COPFS will be unable to publicly disclose details of an investigation until its conclusion and therefore while our investigations are ongoing, there is limited information that we will be able to share with you.

The involvement of the police does not necessarily mean that a crime is being investigated. COPFS instruct Police Scotland to make enquiries into the investigation of sudden, unexpected and unexplained deaths. The police are one of many agencies that are working together to provide COPFS with information about deaths that have occurred from Covid-19 to assess if any further action is required.

The information that is gathered from all relevant agencies, including Police Scotland, will help COPFS understand the deaths; with the aim of preventing future deaths in similar circumstances and where appropriate to take any action that is required.

COPFS has established a dedicated Covid-19 Death Investigation Team (CDIT) to make the process as smooth as possible for bereaved relatives. Every investigation will be different and will take a different amount of time before it can be concluded; therefore, COPFS cannot give a commitment about the length of time that any particular investigation will take. However, investigations of this nature may require the collation and consideration of a large amount of information and require to be robust and thorough, and accordingly, may take some time to complete.

Please also note that while our investigations are ongoing there is a limit to the amount of information that can be shared.  

If you would like further information about the death of your loved one whose death has been reported to COPFS in relation to the categories detailed above, you can contact us and we will arrange for the dedicated team to discuss this with you.

The Lord Advocate has instructed that all deaths from Covid-19 (or presumed Covid-19) of residents in care homes are to be reported to COPFS. This instruction was issued in the public interest and applies without exception. The purpose of the investigation is to understand the circumstances of the death and, where possible, prevent future deaths in similar circumstances.

This means that it is not possible for you to refuse to have the death of your loved one investigated. However, if you have strong views about this, or particular religious or cultural requirements you would like us to observe, please contact us and we will arrange for the dedicated team to discuss this with you.

COPFS remains sensitive to the needs of bereaved relatives at this distressing time and in accordance with the Family Liaison Charter it is our aim to keep relatives informed about any deaths that COPFS is investigating.

Post-mortem examinations are usually unnecessary if a doctor can certify the cause of a death. However, sometimes they must be carried out to help establish the cause of death. 

A post-mortem will only be required where necessary and COPFS will keep you informed if this is to happen. We know that it can be worrying when you hear that there is going to be a post-mortem examination. We will always aim to respect your wishes and any cultural or religious traditions as far as it is practicable to do so.

Pathologists who conduct the examinations are fully aware of the cultural and religious requirements of faiths who believe that the body should be buried as soon as possible after death. Where the deceased’s faith is known, all reasonable efforts are made to return the deceased to nearest relatives as soon as possible.

If you do have concerns you should speak with the doctor or police who informed you of your relative's death investigation. Alternatively, please contact us and we will arrange for the dedicated team to discuss this with you.

COPFS does not anticipate that investigations will delay the ability of families to make funeral arrangements. In cases in which there may be a delay, it will be kept to the absolute minimum. COPFS will ensure that the family is kept informed about the investigation, in accordance with the Family Liaison Charter.

What COPFS decide to do will depend on the circumstances of each case, but they may do one of the following:

• COPFS may decide that no further action is necessary.
• COPFS may decide to hold a Fatal Accident Enquiry (FAI). The system for investigating deaths in Scotland includes, but does not require, a fatal accident inquiry into every death that is reported to COPFS.  There is more information on the our role in investigating deaths page about fatal accident inquiries.
• If there is sufficient evidence of a crime and it is in the public interest to do so, COPFS may decide to prosecute. For more information on how COPFS make decisions around prosecution, please see our Prosecution Code.

COPFS will ensure that the family is kept informed about any decision taken, in accordance with the Family Liaison Charter.

The Covid-19 pandemic continues to impact upon the work of the medical and scientific professionals upon whom COPFS relies to identify the causes of unexpected deaths.

COPFS remains in close consultation with its service providers to review safe working practices. We hope to minimise any delays to completing the work that needs to be done.

Hospital-acquired Covid-19 deaths do not need to be reported to COPFS as a matter of course but must be reported in the following situations:

• Where the circumstances of the death are subject of concern to, or complaint by, the nearest relatives of the deceased about the medical treatment given to the deceased with a suggestion that the medical treatment may have contributed to the death of the patient
• Where the circumstances of the death might indicate fault or neglect on the part of medical staff or where medical staff have concerns regarding the circumstances of death
• Where the circumstances of the death indicate that the failure of a piece of equipment may have caused or contributed to the death
• Where the circumstances of the death are likely to be subject to an Adverse Event Review (as defined by Healthcare Improvement Scotland)
• Where, at any time, a death certificate has been issued and a complaint is later received by a doctor or by the Health Board, which suggests that an act or omission by medical staff caused or contributed to the death
• Where the death was caused by the withdrawal of life sustaining treatment or other medical treatment to a patient in a permanent vegetative state (whether with or without the authority of the Court of Session)
• Where the death occurs in circumstances raising issues of public safety.

Where such deaths are reported, COPFS will contact the reporting medical professional to discuss the circumstances and establish whether further investigation is necessary.

If Covid-19 contributed to the death of your loved one and:

1. they may have acquired Covid-19 in the course of their employment
2. they were resident in a care home when they acquired Covid-19
3. they died of Covid-19 (or presumed Covid-19) while in prison or police custody or
4. they died of Covid-19 (or presumed Covid-19) and you have concerns that the medical (or dental) treatment they received may have contributed to the death or you have concerns that fault or negligence on the part of medical staff contributed to the death

you can email any concerns you may have to covid.deaths@copfs.gov.uk.

Please note, we will only be able to consider your concerns where they fall within the scope of our remit.  

The Scottish Government have announced a public inquiry into the handling of the Covid-19 pandemic in Scotland. Separately, the UK Government have set up a public inquiry to examine the UK’s preparedness and response to the Covid-19 pandemic, and to learn lessons for the future.

COPFS’ investigations into Covid-related deaths do not form part of the public inquiries and any decisions taken following the conclusion of COPFS’ investigations will be taken independently.

View more information on the Scottish Government’s public inquiry into the Covid-19 pandemic.

View more information on the UK Government’s public inquiry into the Covid-19 pandemic.

COPFS is not able to provide legal advice to you in respect of civil proceedings. However we can advise you that the fact our investigations are ongoing does not prohibit you from making a civil claim if that is something that you wish to do. If this is something you are considering you should seek independent legal advice in this regard. 

In R v Secretary of State for Health and Social Care, NHS England and Social Care England [2022] EWHC 967, the High Court of Justice (Queen’s Bench Division Administrative Court) considered, among other things, the legality of a policy to discharge hospital patients to care homes during the first wave of the pandemic. View a summary of the court’s decision and view the full judgement.

Where relevant, COPFS will examine any decision to return residents from hospital to care homes. It is unclear the extent to which the English judicial review decision will impact our investigations however, ultimately, it will be for the Scottish courts to determine the legality of any decisions taken by Scottish public authorities in relation to Covid-19.