DV Fatality Review Teams

The law provides that the state’s attorney, head of the primary law enforcement agency, or the head of the local domestic violence program has the authority to organize a fatality review team. The approach of the MNADV has been that all three should be in agreement and should proceed together.

Once organized, the team develops an operational protocol. The team uses a model protocol as a guide. This model protocol is based on HB 741 (the enabling legislation), best practices and the experiences of fatality review teams around the state. While the model protocol addresses administrative processes, teams should remember that the point of a review is to humanize the victim’s life and death so that the best possible findings and recommendations will result. The protocol, and all the administrative and other processes, should work toward that end.

A team is made up of representatives from various agencies in a county, including domestic violence agencies, the state’s attorney’s office, law enforcement, hospitals, the health department, department of social services, parole and probation, as well as other knowledgeable individuals, including survivors of domestic violence.

Teams may review any fatality, whether a homicide or suicide, in which a domestic violence victim, perpetrator, or third parties are killed, or any near-fatality, that has intimate partner domestic violence as an involved factor. Teams identify cases usually through information from law enforcement agencies, the state’s attorney’s office, or other available resources.

The legislation enables members of local teams to share confidential information with their teams without liability or fear that it will end up in court or in the newspaper. All members of a team must keep confidential the information shared with the team about particular cases, unless the information is already public, or team members are legally or ethically required to report it (such as child abuse).

Because of the confidential nature of the information being discussed, only team members and individuals invited to present information about a particular case, who have signed confidentiality agreements, may participate. Meetings in which no cases are discussed may be open to the public.

The team makes recommendations based on its findings and publishes an annual report, which does not reveal confidential case information, but lists the recommendations the team has agreed upon, concerning agency responsiveness, agency policy and procedures, services, intervention strategies, legislation and regulations, community education and training. The report should also include the status of prior recommendations.

HB 741, Local Domestic Violence Fatality Review Teams, was signed into law on April 26, 2005, effective July 1, 2005. The legislation enables counties to establish domestic violence fatality review teams under Title 4, Subtitle 7, entitled Local Domestic Violence Fatality Review Teams, of the Family Law Article.

The MNADV put legislation forward primarily to respond to the experiences of the Anne Arundel and Calvert County teams. They found it difficult to operate as well as they would like without protections in the areas of confidentiality and liability. Accordingly, a bill was fashioned, modeled after the existing child fatality review statute, to provide for protections that would allow members of a team to share otherwise confidential information within the setting of a team review, require team members to honor the confidential nature of team reviews, and protect members from liability and from being subpoenaed to testify in civil and criminal cases about information provided during the course of team reviews.

Title 4, Subtitle 7, of the Family Law Article, section by section, contains the following provisions, with comments.

FL 4-701: Definitions.
The definition of domestic violence, for purposes of fatality review, identifies cases where the involved parties were or had been intimate partners. Therefore, the definition does not include such family relationships as father-son, brother-brother, etc.

FL 4-702: Authorization.
This section authorizes the establishment of a team and designates which agency heads have the authority to organize a team.

FL 4-703: Membership.
This section sets out the persons, organizations, agencies, and areas of expertise from which membership of the team shall be drawn, and provides for the designation of representatives by member agencies and organizations and the election of a chairperson.

The section states that members shall be drawn from a specifically named list, but provides that the members shall be drawn as available. We consider this latter phrase to be subject to broad interpretation for agencies or organizations which do not believe they can participate.

The section also provides for the appointment of any other person necessary to the work of the team, recommended by the local team.

FL 4-704: Purpose (A), Method of Operation (B), and Scope of Review (C).
The purpose portion of this section sets forth how the team intends to prevent domestic violence deaths.

The method of operation portion of the section provides for the establishment of a protocol, the review of fatalities and cases of serious physical injury related to domestic violence that have occurred in the county, meeting as a team to review cases, and preparing reports that include recommendations. This section authorizes the review not only of deaths related to domestic violence but also to what might be termed near fatalities, as specified by the term cases of serious physical injury. This latter term is taken specifically from CR 3-201 related to first degree assault which provides that it is a physical injury that creates a substantial risk of death; or causes permanent or serious disfigurement; loss of the function of any bodily member or organ; or impairment of the function of any bodily member or organ. The term serious physical injury is the legal term that most closely identifies the term that Anne Arundel and Calvert used in their protocols near fatality.

Additionally, the section provides for the review of any fatality related to domestic violence. This language includes the deaths of third parties. For example, during a fight between a husband and wife, their child is killed. That would be considered a fatality related to domestic violence.

The scope of review portion designates which fatalities a team may review and that the team shall determine the number and types of cases the team will review. This latter provision allows for a team not to have to review every domestic violence fatality that may have occurred, particularly if there is good cause not to do so, such as the filing of a civil suit arising from the criminal case.

FL 4-705: Access to Information and Records.
This section provides for mandatory access to information and records, on request of the chair and as necessary to carry out the local team’s purpose and duties, by a provider of medical care, by state or local government agencies, and by a social services agency that provided services to the person or the person’s family. The law does not give subpoena powers to the chair and does not provide a specific compliance mechanism.

FL 4-706: Meetings.
This section provides that meetings shall be closed to the public…when the local team is discussing individual cases; and that information that identifies a deceased person, a family member, or perpetrator, or regarding the involvement of an agency, organization or person with a deceased person may not be disclosed during a public meeting. Violation of the section is a misdemeanor punishable by fine or imprisonment.

FL 4-707: Confidentiality.
This section provides that all information and records acquired by the team is confidential and free from disclosure, and provides that members may not be questioned in any civil or criminal proceeding regarding information presented in or opinions formed as a result of a meeting.

CJ 5-637.1: Liability.
This section in the Courts and Judicial Proceedings Article provides that any member who acts in good faith within the scope of the team’s jurisdiction is not civilly liable for any action as a member of the (team) or for giving information to, participating in, or contributing to the function of the (team).

Books:

• Adams, D. Why do they kill? Men who murder their intimate partners. Nashville, TN. Vanderbilt University Press. 2007.
• Websdale, N. Understanding Domestic Homicide. Northeastern University Press. Boston, MA. 1999.
• Websdale, N. Familicidal Hearts. Oxford University Press. New York, NY. 2010.

Articles:

• Editorial, Promoting Patient Safety by Preventing Medical Error, Journal of the American Medical Association, October 28, 1998, Vol 280, Number 16: 1444-1447.
• Gawande, Atul. 1999. When Doctors Make Mistakes, The New Yorker, Feb 1, 1999.
• Leape, L.L. Error in Medicine. Journal of the American Medical Association, 1994, 272: 1851-1857.
• Websdale, N. Reviewing Domestic Violence Deaths. NIJ Special Research Bulletin on Intimate Partner Homicide, 2003.
• Websdale, N., Town, M., and Johnson, B. “Domestic Violence Fatality Reviews: From a culture of blame to a culture of safety.” Juvenile and Family Court Journal, May 1999: 61-74.