A 'schizophrenic's' brutal and unprompted fatal attack on an elderly dog walker could not have been predicted despite the killer failing to attend mental health appointments, a judge has ruled.
Frank Kinnis, 83, suffered fatal blunt force trauma injuries after David Johnstone punched, kicked and stamped on his head in Birkenhill Woods, Elgin on October 21 2019. He died in hospital later the same day.
Johnstone, 38, was originally tried for murdering the retired dairyman but was instead locked up at Carstairs State Hospital indefinitely after a judge ruled he could not be held criminally responsible.
A fatal accident inquiry held at Elgin Sheriff Court heard that Johnstone, from Elgin, who had used cannabis regularly since his teens, had been referred for psychiatric assessments.
The doctors handling the referral chose not to follow-up after Johnstone failed to appear for his appointment, just under four months before he viciously attacked Kinnis and two others.
But Sheriff Olga Pasportnikov concluded they could not have foreseen the unspeakable violence, noting: "The untimely death of Frank Yule Kinnis was a horribly tragic event arising from a most unfortunate combination of unpredictable circumstances."
The inquiry heard that Johnstone's father Richard made two calls to GPs and an out of hours service on June 24 2019 regarding his son's mental health. This led to an appointment the next day with Dr Kerry Anne Cattanach, a GP from Elgin's Maryhill Medical Practice, who referred Johnstone to adult psychiatric services after diagnosing psychotic symptoms and "possibly a schizophrenic type illness".
In evidence submitted on the GP's behalf, she said there were "no circumstances" justifying detaining Johnstone in hospital. But when an "urgent" referral appointment was booked for July 1, Johnstone failed to show.
Dr Bruce McGregor Davidson, a consultant in psychiatry at NHS Grampian, told the inquiry that he discussed the no-show with Dr Cattanach. They concluded an "open door" approach was best – allowing Johnstone to contact mental health services in his own time.
The Crown argued that this approach was "defective" – but Sheriff Pasportnikov accepted Dr Cattanach's submissions that she had no reason to suspect Johnstone ought to have been detained. He had no history of violence prior to his savagery later that year and had not come to the attention of the police.
In a written judgment published on Wednesday, the sheriff concluded there were "too many 'unknowns'" for her to make any informed conclusions on what could have been done differently.
She said: "One cannot speculate as to what may have or not have happened if David Johnstone had attended an appointment with Dr Davidson. Therefore one cannot say with any certainty whether any treatment would have been required or, if required, would have been successful or indeed whether David Johnstone would have complied with any such treatment.
"Having taken all these factors into account, therefore, I do not consider that there is anything which could have been done by either Dr Cattanach and/or Dr Davidson. Lastly, I once again express my sympathy to the family of Frank Yule Kinnis for their loss."
However, Frank Kinnis' family has expressed their "disappointment" at the outcome of the inquiry, which failed to make any recommendations that could avoid a repeat of the tragedy.
In a statement provided to the Press and Journal, the family said: "Although we have no dispute with the stated findings, we believe that it overlooked areas which to us seemed of greater concern. It has also not given us the sense of closure we had hoped for.
"As a family we feel that everyone involved in this tragic incident has been let down by our healthcare system, and that it was not proactive enough in trying to reach David Johnstone to treat the illness that he was suffering from.
"It was easier to simply leave his case in limbo and leave him to manage his illness alone. The consequences of this were tragic."
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