Sift stage
Section 19 – Determination as to whether to hold a review
175.This section deals with what steps are to be taken by the review oversight committee following receipt of a notification or referral of a death.
176.Under subsection (1), the committee firstly has to satisfy itself that the death is one which is capable of falling within the review model. For example, a death may have been notified based on a misunderstanding of the relationship between two people. The threshold for referral by the Scottish Ministers is also predicated on the understanding that they may not have the full picture and permits referral where they merely believe that a death “may be” a reviewable death, with the intention that the committee will then be able to ingather sufficient information to form its own view.
177.Once the committee is satisfied that the death falls within the scope of the review model, they then have to determine whether a review should be carried out in respect of it. Alternatively, if the committee is unable to reach a unanimous decision and the chair of the committee decides it is appropriate to do so, the question may be referred to the Scottish Ministers for them to decide. There is no requirement though for the committee to reach a unanimous decision when deciding whether a review should take place – if the chair is content not to trigger the referral option then the committee could agree to take a majority decision.
178.Subsection (2) provides that the criteria on which this sift decision (i.e. whether or not to hold a review in respect of a death which has been found to be reviewable) is to be taken is to be based on three things—
The first element is the likelihood of the review identifying lessons to be learned from the death which would improve Scottish practice in the safeguarding of those affected by abusive domestic behaviour or the promotion of the wellbeing of victims of abusive domestic behaviour.
The second element is whether Scottish public authorities or voluntary organisations operating in Scotland were involved, or had the opportunity to be involved, in the circumstances leading up to the death. This recognises that although there may be things authorities or organisations in Scotland could learn from incidents which take place in other jurisdictions, the review model is about looking at “missed opportunities” as well as opportunities taken by authorities or organisations in Scotland in particular cases and learning lessons from those.
The third element is relevant only in cases where the persons referred to as person A and person B were not partners/ex-partners. In such cases, the sift is to consider whether and to what extent there appears to be a connection between the death and abusive behaviour between partners/ex-partners.
179.Subsection (3) then sets out some factors which are to be considered as part of the subsection (2) tests, although other factors which are relevant to the assessment under subsection (2) could also be considered. The factors specified in subsection (3) are—
the extent of the apparent connection between the abusive domestic behaviour and the death (this would be most relevant to either suicides or some connected deaths),
the information which the review will be able to have at its disposal,
the extent of the connection which both the person who has died, and other person(s) involved, have to Scotland (since if, for example, a relationship mostly took place abroad, the opportunities for earlier intervention within Scotland would have been limited).
180.While the legislation therefore sets out certain parameters for the decision-making process, it will be complemented by the guidance referred to in section 31 which will help the committee to determine whether a review ought to be held or not.
181.Subsection (4) then allows the committee to, at the chair’s discretion, seek advice from the Scottish Ministers in relation to its determination as to whether to hold a review. This could, for example, relate to the overall determination or to an individual element which factors into the committee’s decision-making.
182.Subsection (5)(a) requires the chair of the committee to, in cases where the committee is not going to carry out a review, provide Ministers with a summary of the committee’s reasons for reaching that decision. This applies where the committee’s decision is made because it believes the death is not a reviewable one, and also where it determines that, although the death falls within the review model, a review should not be carried out. Subsection (5)(b) then provides the Scottish Ministers with a power to overrule the committee. However, Ministers cannot overrule a determination by the committee that a review is to be carried out.
183.Subsection (6) requires the chair of the committee to, if putting matters to the Scottish Ministers under this section (i.e. seeking advice, or asking Ministers to make the determination), provide such information as the chair holds or controls which they consider is likely to be of assistance to Ministers in providing the requested assistance. This is additional to the power which exists under section 26 to ingather information, and which Ministers could (for example) use if deciding whether to step in and overrule the committee under this section.
Section 20 – Determination as to whether to expand the remit of a review
184.Where the outcome of consideration of a death under section 19 is that a review should be carried out (whether that outcome is reached by the review oversight committee or by the Scottish Ministers), section 20(1) will apply. It requires the review oversight committee, in relevant cases, to determine whether the remit of the review should be expanded to cover certain events following on from the death. The cases which are relevant for this purpose are set out in subsection (2) and are those where the death is one where persons A and B were partners or ex-partners (i.e. the scenario set out in section 12(3)(a)) and either or both of them, at the time of death, had either (a) a child who was a young person or adult at risk, or (b) another young person living in their household. In such cases, it is likely that the young person/adult at risk will have lost an adult or adults who had responsibility for their care – with the loss being either due to the person being killed or the person being imprisoned.
185.Where the review oversight committee opts to expand the remit of a review in a relevant case, subsection (3) sets out what the remit can be expanded to cover. It can be expanded to cover any or all of the following things—
It can be expanded to cover the extent to which the young person/adult at risk was able to provide their views in relation to any decisions made by a public authority following on from the death where that decision relates to matters which directly concern their welfare and where their best interests were a primary consideration. For example, this would not cover matters such as a decision by Social Security Scotland to grant or deny an application for social security assistance (as that is based on fixed criteria, rather than on trying to always do what is best for the person regardless of any other factors), but it would cover matters such as a decision by a local authority as to a foster care placement.
It can be expanded to cover the extent to which the young person/adult at risk has received any support the person reasonably required in order to provide those views. This support would not necessarily need to be provided by the public authority itself and could also be provided by, for example, a charity or another family member. The examination would simply be of whether there was a gap in support being provided.
It can be expanded to cover the extent to which the young person/adult at risk received the support they reasonably needed following on from the death. This would not be limited to the support they need to provide views on decisions concerning them and is about support more generally – which might include, for example, grief counselling. It does not matter whether or not the support is of a type which a public authority would normally provide.
186.Subsection (4) states that where there is more than one young person/adult at risk, the remit of the review can be expanded in respect of any or all of them. For example, the deceased may have had two children – one who is 17 and was already living full-time with their other parent and had very little contact with the deceased, and one who was 12 and living full-time with the deceased. In such a case, the review oversight committee could, for example, opt to expand the remit of the review in respect of the 12 year-old but not consider it necessary to expand it in respect of the 17 year-old.
187.Subsection (5) provides that the expansion of the remit of a review is subject to the Lord Advocate’s consent being granted to the expansion.
188.While this section deals with the initial decision as to whether or not to expand the remit of a review to cover certain matters following the death, the remit can also be expanded (or, for that matter, contracted if it was initially expanded) later on. This is dealt with in section 22(4) and (5) – see paragraphs 198 and 199 of these Notes.
Section 21 – Reconsideration of whether to hold a review
189.Subsection (1) of this section allows for the reconsideration of a decision that a review was not to be carried out in respect of a death. This is permitted where the person who made that decision (i.e. the review oversight committee or, as the case may be, the Scottish Ministers) believes it is appropriate to reconsider the death as a result of becoming aware of relevant information which they did not have at the time of their previous consideration. Subsection (4) clarifies what is meant by referring to the “decision-maker” in respect of the previous consideration: other than where Ministers actually made the previous decision themselves, this means the review oversight committee (even if the committee took advice from Ministers).
190.A reconsideration could therefore take place under subsection (1) where the previous outcome was that the death did not fall within section 12 and was therefore not reviewable, or where, although the death fell within the criteria, a review was nevertheless not thought to be appropriate (for example, because the abusive behaviour was not grounded in partner/ex-partner abuse, or because the link to Scotland was insufficient to allow there to be enough information and learning to be taken from the review).
191.Where a reconsideration takes place, subsection (2)(a) provides that section 19 applies as it applies following notification/referral of a death, subject to one exception. The exception is that if the Scottish Ministers were asked to make the determination then they are to perform the review oversight committee’s functions under section 19(1)(a) and (b)(i) in the reconsideration. This would mean that they would look afresh at whether they considered the death to be a reviewable one and, if so, whether a review ought to be held. If the original decision was made by the review oversight committee, they will be able to take advice from Ministers if they wish or refer the question to Ministers in exactly the same way as they would have been able to originally.
192.Subsection (2)(b) provides that the outcome of the reconsideration is to be treated as being the outcome of consideration of a death under section 19. There are two consequences to this. First, any reference to “
193.Subsection (3) goes on to provide that where a reconsideration is itself reconsidered, references to the “
