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.
