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

Annex A

Mental Welfare Commission review of the process for investigation of homicides by individuals with recent contact with mental health services and proposal for revised process.

1. Introduction

The Mental Welfare Commission (the Commission) is proposing a clearer, improved process for the investigation of all homicides committed by individuals with recent contact with mental health services. Our review has shown that not all such incidents are currently being investigated. The proposed new system would ensure that all cases were appropriately investigated by Health Boards and independently reviewed, result in lessons being learned and shared across the system, and provide for the involvement of service users, and victims' families in the process.

The Commission is proposing to make use of existing processes to create a cost efficient mechanism for investigating such incidents. The approach we are proposing will cost over £400,000 less than adopting an English style system.

We have consulted with Healthcare Improvement Scotland, Crown Office and '100 Families' in producing this proposal.

2. Background

During the review of the Mental Health Act, Jamie Hepburn, Minister for Sport, Health Improvement and Mental Health, asked the Commission to review how homicides involving people who are users of mental health or learning disability services are investigated. The Commission has undertaken this work to establish a more robust cross-agency system for these investigations.

The number of homicides in Scotland is decreasing. Over the ten year period from 2005-06 to 2014-15, the annual number of homicide cases in Scotland fell by 36 (or 38%) from 95 to 59. However, the number of homicides by people who use mental health services in that time has remained roughly stable, with on average of 13 per year.

The Commission aims to establish a system in Scotland for the investigation of such incidents, which ensures that lessons are learned and shared across the system, and which provides reassurance to families in these cases.

The current system of investigation is fragmented and confusing, and it needs reform. However, we can build on existing systems for investigating adverse events.

The Commission has engaged with Healthcare Improvement Scotland ( HIS) to put together a proposal which builds on our existing powers, and ensures that all cases are reviewed appropriately. In doing this, we have looked at the approach taken to such cases by the NHS in England to learn lessons from that process.

3. Review of existing process

Local adverse event review

The HIS framework on 'Learning from adverse events through reporting and review' (the framework) defines an 'adverse event' as an event that could have caused or did result in harm to people or groups of people.

The framework defines 'people' as:

• service users
• patients
• members of staff
• carers
• family members, and
• visitors.

Harm is defined as 'an outcome with a negative effect' . The framework states that harm to a person or groups of people may result from unexpected worsening of a medical condition, the inherent risk of an investigation or treatment, violence and aggression, system failure, provider performance issues, service disruption, financial loss or adverse publicity.

The framework is intended to cover all adverse events but does not provide a core list of events that must be reported. As such, the framework doesn't specifically include homicides committed by patients; particularly it does not cover events where the victim is an unknown person or someone outwith the groups listed in the definition of 'people' given above.

We consider that the framework is not explicit enough to prompt a formal investigation in every instance where a mental health service user has caused the death of another person.

The framework does say that a homicide by an individual who is receiving care from mental health or learning disability services must be reported to the Commission. This does imply an expectation that such events will be reported and reviewed in line with the framework and the local adverse event review policies and processes.

Adverse event review processes aim to examine the processes of care delivery to identify if any system failures occurred which contributed to the adverse event and outcome, and if improvements can be made for future care provision. The scope is restricted to people in contact with the health and social care system, and therefore is not intended to cover harm to people outwith this system. Therefore, an adverse event review would not cover the harm caused to a victim of homicide and their relatives. It would, however, cover the care provided to the individual who had committed the homicide and if there were any learning points from the case.

The framework says that the response to each adverse event should be proportionate to its scale, scope, complexity and opportunity for learning. All events are subject to review, and the basic process of adverse event review and analysis should be essentially the same. However, some events, due to the complexity or the potential for learning, require a more formal, extensive review making full use of associated techniques to comprehensively examine the chronology, care delivery problems and contributory factors. It is most likely that homicides by mental health service users will be reviewed as a significant adverse event review. A full review team is commissioned by a senior manager to review significant adverse events. The review team should be sufficiently removed from the event, and have no conflict of interest, to be able to provide any objective view.

The framework contains a number of stages where the Board is encouraged to engage and share findings with service users and their families. There is no mention of engaging with the families of victims. This is something which victims organisations feel strongly should be happening. This was not included within the scope of the framework, as it covers harm to people in contact with the health and care system. However, families of victims could be informed of the progress of the review and the learning points and recommended actions. However, it is recognised that there will be confidentiality considerations when it comes to sharing information in this way.

An FOI request in 2014 revealed that of the 40 homicides reported by the National Confidential Enquiry into Suicide and Homicide by People with Mental Illness ( NCISH) over the previous 3 years, only 10 had been the subject of a significant adverse event review ( SAER) or similar investigation (100 families report).

During informal discussions with a number of NHS Boards, we were told that there is no formal mechanism for them to be informed of homicides by their patients. Boards reported often finding out through informal word of mouth and through stories in the press. Given this situation, it is inevitable that a number of homicides may never come to the Boards' attention and are, therefore, never subject to a SAER.

Reporting to the Commission

Boards are required to notify the Commission of all cases where an individual who is receiving care from mental health or learning disability services is accused of or convicted of a homicide. We ask that they send us:

- A brief account of the circumstances of the incident or situation, its antecedents and any other relevant information;
- Information on the diagnosis, treatment and mental state of the person;
- Information on any other person involved;
- What further action is being taken or considered;
- An indication of any further investigation, enquiry or review that is being carried out or considered, and a copy of the outcome of these when available.

The Commission's system does not currently enable us to specifically search for/ retrieve such notifications. However, of the 19 relevant homicides we were able to identify, we had only been properly notified of 9. We had become aware of a number of others through other routes. The Commission carried out full investigations in two of these cases and paper investigations in five of them.

Although we have only been able to identify a small sample of cases, we have also spoken to Commission casework teams, and it is clear that the Commission is not receiving anywhere close to the number of notifications we should be. This is probably largely due to Boards not being aware of incidents, as described previously, or being unaware of our guidance.

Conclusion

The information available shows that the majority of homicides by mental health service users are not being investigated by Boards and are not being reported to the Commission. This is partly due to the lack of any formal mechanism for Boards to be made aware of such events but also because of the lack of formal guidance about how they should be handled. The existing system needs to be strengthened in order to make sure that learning points can be identified and improvements made.

4. Proposal for new process

The Commission considers that the new process should apply to homicides committed by people who have had contact with mental health or learning disability services within the last 12 months. This is the criterion applied by NCISH so will ensure a consistent approach.

5. The Commission has significant experience of this type of case and we do not consider that all cases need a full independent investigation. We are proposing a system utilising expertise and existing processes that takes a proportionate approach and is cheaper than the system in place in England.

Stage 1

Each person accused of homicide has one psychiatric assessment which is arranged by COPFS. If the first psychiatric assessment identifies a mental health issue, then a second assessment will be arranged. COPFS have proposed entering into an Information Sharing Agreement with the Commission in order that it can discuss with the Commission the information which it needs in order to determine whether a person accused of homicide has had recent contact with services. This agreement will include the stage in proceedings that the information will be provided by COPFS and will also include what be done with the information and when. In 2014 - 15 the number of homicides in Scotland was 59.

The Commission will review the information provided by COPFS to determine whether there is any evidence of recent contact with services. This information may be contained in the information provided by COPFS but we are also able to check our own database to find out whether the perpetrator is known to the Commission.

We propose that homicides by service users who have had contact with drug and alcohol services will not qualify under this process unless the individual has a co-morbid mental health condition.

Where a relevant homicide is identified, the Commission will liaise with COPFS to ensure that it is appropriate for the Board to proceed with an adverse event review. COPFS are clear that in the majority of cases, there will be no issue with the Board or MWC proceeding with an adverse event review or investigation. However, there will be cases where it would not be appropriate for an investigation or local adverse event review to take place until after criminal proceedings have concluded, for example where the presence of a mental health issue and its impact upon the commission of the offence are contentious matters that will be debated at trial.

The Commission will notify the relevant Health Board of any homicide committed by someone who has accessed their mental health service during the year prior to the offence being committed.

If the Health Board becomes aware of a relevant homicide before the Commission, they will be required to notify the Commission.

Stage 2

The Commission will generally require the Health Board to report to it with the same information that is required under the current process (see 'reporting to the Commission' section above). However, in exceptional circumstances, the Commission will move straight to an independent investigation of the events (stage 5).

Stage 3

The Health Board adverse event review

The Commission will work with HIS to produce some guidance specific to SAERs in these circumstances. This will promote a consistent approach and reduce variance. We propose two tiered approach to serious adverse event reviews involving homicides:

- If service user is an inpatient, is detained in hospital or in the community at the time of the homicide, review should be independent of the Health Board (but commissioned by the Board). [ HIS category 1]
- For any other service user, the review can be internal but Board can appoint independent person if they feel it is appropriate. [ HIS category 2]

The Board should have the discretion to take a proportionate response to each incident - we envisage most reviews being in category 2.

The Board should make early contact with the victim's family and contact with the perpetrator. The requirement and appropriateness of this will vary depending on the circumstances of the case and on the preferences of the individuals involved.

The aim of the SAER is to review internal processes and systems and to identify any learning points. It is not to determine the services user's guilt or innocence.

When complete, the Board will be required to send the SAER to the Commission. The Commission and the Board will liaise with COPFS at this stage to discuss whether there is any reason why a summary of key findings and learning points cannot be shared with the family of the victim. Subject to this discussion, the Board will share a summary of key findings and learning points to the family of the victim.

Stage 4

The Commission will review the SAER and liaise with the Board to obtain any further information they consider is necessary to reach a view on the case.

The aim of this stage is to determine whether the SAER adequately identifies any learning points in the care and treatment and puts in place appropriate actions to address these. It will generally be necessary to request the service user's medical records as a minimum; however, there will be cases when this is not necessary. There may also be value in interviewing some members of the treatment team at this stage.

The Commission will make contact with the victim's family and will consider whether to make contact with the perpetrator / their family.

Stage 5

Following consideration of the case by the Commission's Senior Management Team, the Commission will decide whether to take the case to investigation, revert it back to the Board for further work or to close it. All relevant parties will be notified of the decision and the reasons for it.

The Commission will open an investigation:

- Where the Board adverse event review does not sufficiently address issues and that is deemed inappropriate to ask them to investigate further;
- Where the issue is a matter which is deemed to require independent investigation because of direction from Scottish Ministers, because of the level of public interest, or because of concerns about the Board's actions which have not been resolved by the SAER;
- Where the Commission deems that there are wider lessons to be learned.

Stage 6

Commission appoints a team to investigate. The team will be headed by the lead investigation practitioner, who will decide what other staff are required for the investigation. These may be internal or external depending on the specialism required. Investigations will follow the Commission's existing process and reports will be made publicly available. The Commission will engage with victims' families, and the service user and their family as appropriate.

Monitoring

The Commission will work with HIS to make use of existing networks and to share learning from the homicide cases.