Responsibility for Negligence

Abstract

Criminal prosecution in Scotland is carried out by a state prosecution service. This is headed by the government’s chief law officer, the Lord Advocate. He operates for these purposes through a department in Edinburgh, the Crown Office. At a provincial level he carries out the business of prosecution through a staff of prosecutors, known as Procurators Fiscal. This service, while devolved, is in fact fairly tightly controlled from the centre. The prosecutor has an effectively absolute right to decide whether to prosecute or not. This, it seems, is a most important feature in the application of the criminal law as it relates to medical responsibility. There have been no prosecutions of doctors for assault or homicide in modern times. There was in the early 1970s a trial of a nurse accused of murdering a number of patients, which was defended as “mercy-killing”, but the number of victims involved suggested that this was merely a defence tactic. The prosecution is involved in initiating Fatal Accident Inquiries relating to deaths that occur in the course of medical procedures and accordingly have files on medical matters. These inquiries are discussed above.