Homicide report by Mental Welfare Commission for Scotland: review and consultation

Background

5. Homicide is a crime that has a devastating effect on the family and friends of the victim. Those who are bereaved have to contend with their grief at the loss of a loved one as well as dealing with their feelings about how the victim died.

6. Whilst coping with these feelings of grief, loss and confusion, family members may be involved in any police investigation and subsequent proceedings taken against those accused of committing the homicide. This can have a lasting impact.

7. In some cases, a person who is accused of homicide may have had recent contact with mental health or learning disability services. They may be identified as having a mental disorder, and may have had a mental disorder at the time of the offence.

8. When a person is incapable of participating effectively in the trial because of their mental disorder, there is no trial. The court may instead proceed with an 'examination of facts'. The purpose of this procedure is to determine if the accused committed the acts or made the omissions relevant to the homicide charge. If the accused person is able to stand trial but was affected by mental disorder at the time of the offence to the extent that the court considers that the person was not at that time criminally responsible for their actions, the court may acquit them of the offence on those grounds.

9. In cases where the charge is murder, a person's mental condition may be such that although they cannot be acquitted on account of lack of criminal responsibility, they may be found to be of diminished responsibility. A finding of diminished responsibility does not result in acquittal, but in conviction for the lesser offence of culpable homicide. Where a person's mental condition at the time of the offence was not such that they would be acquitted or found guilty of culpable homicide then, if guilty, they would be convicted of murder as charged.

10. Where an accused or convicted person requires treatment for their mental disorder, the court can decide to send the person to hospital for treatment instead of prison. An order for hospital detention can happen where the person is tried and then convicted or acquitted on grounds of lack of criminal responsibility; or where the person is found to have committed the acts or omissions constituting the offence at an examination of facts (whether or not acquitted on grounds of lack of criminal responsibility).

11. Court proceedings may not give families the answers they are looking for. The criminal courts do not consider whether anything done or not done by health and care organisations might have made a difference. Understandably, this can be a source of frustration for families and may make it more difficult for them to come to terms with what has happened.

12. Homicide reviews will serve a different purpose to the criminal justice process outlined above. Firstly, it is intended that these reviews will identify any connection between the care and treatment given to the perpetrator and the homicide, and any improvements that could be made to prevent similar violence in the future. Such a review would normally include recommendations for individual practitioners, organisations and multi-agency systems. Secondly, a review based in improvement and learning has the opportunity to include bereaved families and provide them with information about what may have happened, and what can be done to improve.

13. There are a number of investigative processes which are relevant to homicides by people with mental disorder, including serious adverse event reviews ( SAERs), Commission investigations, and fatal accident inquiries. The Commission's proposal aims to consolidate and streamline these existing processes.

14. Along with other devolved governments and health services in the UK, the Scottish Government participates in the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness. In other parts of the UK there are different approaches to investigations into homicide by people with mental disorder. In England, NHS England is responsible for commissioning an independent investigation of any mental healthcare-related homicide where the person was under the care of specialist mental health services in the 6 months before the homicide.

15. The Scottish Government is committed to ensuring that health boards are supported to learn and improve. Healthcare Improvement Scotland ( HIS) currently works with health boards to improve adverse events management across NHSScotland. An adverse event is any event that could have caused, or did result in, harm to people or groups of people. HIS has published a framework to support NHS boards to standardise processes ^[1] . It includes a national definition of an adverse event, guidance on reporting, accountability, responsibilities and learning, and principles for an open, just and positive safety culture.

16. The Commission's report sets out some statistics on the prevalence of this type of homicide in Scotland. In the past ten years there have been two Commission investigations into mental health-related homicides.

17. The proposal set out in the report consists of a six stage process. The process has been summarised in a flowchart (see here). The flowchart and questions which follow should be read together with the full paper provided at Annex A.