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Petition of Karen Duncan for Judicial Review (Court of Session) [2024] CSOH 114 (03 January 2025)
URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024csoh114.html
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[2024] CSOH 114
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 114
P245/24
OPINION OF LADY HALDANE
in the Petition of
KAREN DUNCAN
Petitioner
for
Judicial Review
Petitioner: Reid KC; MDDUS
Respondent: MacPherson, advocate; SGLD
3 January 2025
Introduction
[1]
The petitioner is a General Practitioner in practice in Inverness. The first respondent
is a sheriff who presided over a Fatal Accident Inquiry into the death of a young child,
hereinafter referred to as "J". She issued her determination following that inquiry on
21 December 2023. She has not entered this process. That is not unusual in this type of
proceeding. The second respondent is the Lord Advocate, convened to represent the public
interest. The Lord Advocate has entered these proceedings, as is usual.
[2]
The determination issued on 21 December 2023 made a number of findings, as is
required in terms of the relevant legislation, including, in respect of the petitioner, a single
finding that it would have been a reasonable precaution, which might have resulted in the
2
death of JM being avoided, had the petitioner referred JM to the Paediatric Assessment Unit
following a consultation on 1 November 2019. The petitioner seeks reduction of that part of
the determination (in other words a declaration that one aspect of the determination is of no
legal effect) on the basis, firstly, that the sheriff misdirected herself in law in making that
finding, and secondly and in any event that she failed to engage with the submissions made
on behalf of the petitioner that such a finding was not open to her, and failed to provide a
reasoned analysis of those submissions.
Background
[3]
JM was born on 26 March 2018. She died on 25 November 2019 at the Royal Hospital
for Children, Glasgow. The cause of her death was complications of left nephroblastoma,
otherwise known as Wilms' tumour, and associated therapy. Wilms' tumour is a very rare
childhood cancer. On 20 October 2019 JM was referred to the Paediatric Assessment Unit
("PAU") at Raigmore Hospital following a call to NHS 24 and a subsequent review by the
NHS Highland Out of Hours service. She was examined by specialist paediatric clinicians,
diagnosed with constipation, and provided with Movicol treatment for that condition. On
1 November 2019 JM was reviewed by the petitioner within the GP practice. This was an
emergency appointment booked by JM's mother. Mrs M described on-going anxiety for JM
because of continuing symptoms of the same nature as previously complained about.
Mrs M advised the petitioner that she could feel a mass on the left side of JM's tummy. The
petitioner was unable to carry out a full examination of JM's abdomen because she was
unwilling to cooperate with examination. She did not believe that JM's tummy was
distended. She was unable to find any lumps or masses. Her examination was not as
extensive as she would have liked. She did not think her findings were reliable as a result.
3
Nevertheless, she assumed that the mass reported by JM's mother was perhaps related to
the paediatric diagnosis of constipation and offered this explanation to Mrs M. On
6 November 2019, JM was referred to Raigmore Hospital as an emergency following a
further review at the GP practice by the petitioner's colleague. Following review, JM was
discharged with an increased dose of her Movicol constipation treatment. On 7 November
2019 JM's mother telephoned the PAU at Raigmore Hospital for further advice. On
15 November 2019, JM was admitted to Raigmore Hospital as an emergency, having been
taken there by ambulance from her home after becoming unresponsive. She was diagnosed
as suffering from a Wilms' tumour and transferred to Glasgow for specialist treatment.
Chemotherapy was commenced. JM died on 25 November 2019 at the Royal Hospital for
Children, Glasgow. It was not a matter of dispute that the tumour from which JM suffered,
although rare, has a high survival rate up to a relatively late stage, and that had JM been
diagnosed on or before 6 November 2019, she probably would have survived.
[4]
A Fatal Accident Inquiry into JM's death was ordered. This took place over 4 days of
hearings in the summer and autumn of 2023. The first day of hearings was in person, with
the rest being conducted by way of Webex video platform. When the sheriff issued her
determination, she made a number of findings in terms of section 26 of the Fatal Accidents
and Sudden Deaths etc (Scotland) Act 2016, including, in addition to formal findings as to
time, date and cause of death, findings in terms of section 26(2)(e) as to precautions that
could reasonably have been taken and which, had they been taken, might realistically have
avoided JM's death. None of those findings are challenged bar the following finding in
respect of the petitioner:
"On 1 November 2019, at Culloden Surgery Inverness, Dr Karen Duncan the
consulting GP could have referred Jessi to the PAU for further assessment."
4
[5]
The issue for determination is whether that was a permissible finding open to the
sheriff having regard to the evidence before her, and what might be taken from that
evidence. The parties take opposing views of the correct legal approach to findings made in
terms of section 26 of the 2016 Act. The petitioner contends that established practice and
precedent over a considerable number of years means that such a finding was impermissible
on the basis of the evidence, the respondent contends that the sheriff was not only entitled
to make that finding, she was, having regard to the language of the statute, mandated so to
do.
The applicable legislation
[6]
The inquiry into the death of JM was conducted in terms of the Fatal Accidents and
Sudden Deaths etc (Scotland) Act 2016. It received Royal Assent on 14 January 2016 and
repealed the Fatal Accidents and Sudden Death Inquiry (Scotland) Act 1976. The 2016 Act
emerged from a review of Fatal Accident Inquiry Legislation, which was carried out by the
Rt Hon Lord Cullen of Whitekirk KT and published in November 2009. He observed that
there were a number of differing views on the interpretation of section 6(1)(c) of the Act then
in force (the "reasonable precautions by which the death might have been avoided"
provision, read short) and offered the view that having regard to the public interest in the
learning of lessons from the circumstances of a fatality, there was force in the contention that
hindsight should be taken into account. That report formed the basis of a consultation on
proposals to Reform Fatal Accident Inquiries Legislation in July 2014. It noted Lord Cullen's
recommendation that legislation should clarify and/or say more about what "reasonable
precautions whereby the death and any accident resulting from the death might have been
avoided" sheriffs may recommend. The resultant legislation was the 2016 Act referred to
5
above. For present purposes, the material sections are sections 1 and 26, which are in the
following terms:
"1
Inquiries under this Act
(1)
Where an inquiry is to be held into the death of a person in accordance with
sections 2 to 7, the procurator fiscal must--
(a)
investigate the circumstances of the death, and
(b)
arrange for the inquiry to be held.
(2)
An inquiry is to be conducted by a sheriff.
(3)
The purpose of an inquiry is to--
(a)
establish the circumstances of the death, and
(b)
consider what steps (if any) might be taken to prevent other deaths in
similar circumstances.
(4)
But it is not the purpose of an inquiry to establish civil or criminal liability.
...
26
The sheriff's determination
(1)
As soon as possible after the conclusion of the evidence and submissions in an
inquiry, the sheriff must make a determination setting out--
(a)
in relation to the death to which the inquiry relates, the sheriff's findings
as to the circumstances mentioned in subsection (2), and
(b)
such recommendations (if any) as to any of the matters mentioned in
subsection (4) as the sheriff considers appropriate.
(2)
The circumstances referred to in subsection (1)(a) are--
(a)
when and where the death occurred,
(b)
when and where any accident resulting in the death occurred,
(c)
the cause or causes of the death,
(d)
the cause or causes of any accident resulting in the death,
(e)
any precautions which--
(i)
could reasonably have been taken, and
(ii)
had they been taken, might realistically have resulted in the death,
or any accident resulting in the death, being avoided,
(f)
any defects in any system of working which contributed to the death or
any accident resulting in the death,
(g)
any other facts which are relevant to the circumstances of the death.
(3)
For the purposes of subsection (2)(e) and (f), it does not matter whether it was
foreseeable before the death or accident that the death or accident might
occur--
(a)
if the precautions were not taken, or
(b)
as the case may be, as a result of the defects.
(4)
The matters referred to in subsection (1)(b) are--
(a)
the taking of reasonable precautions,
(b)
the making of improvements to any system of working,
6
(c)
the introduction of a system of working,
(d)
the taking of any other steps,
which might realistically prevent other deaths in similar circumstances.
(5)
A recommendation under subsection (1)(b) may (but need not) be addressed
to--
(a)
a participant in the inquiry,
(b)
a body or office-holder appearing to the sheriff to have an interest in the
prevention of deaths in similar circumstances.
(6)
A determination is not admissible in evidence, and may not be founded on, in
any judicial proceedings of any nature"
[7]
By way of comparison, the equivalent provision to section 26 in the previous
legislation was section 6 of the Fatal Accidents and Sudden Deaths Inquiry (Scotland)
Act 1976 which provided:
"6.
Sheriff's determination etc.
(1)
At the conclusion of the evidence and any submissions thereon, or as soon as
possible thereafter, the sheriff shall make a determination setting out the
following circumstances of the death so far as they have been established to his
satisfaction--
(a)
where and when the death and any accident resulting in the death took
place;
(b)
the cause or causes of such death and any accident resulting in the death;
(c)
the reasonable precautions, if any, whereby the death and any accident
resulting in the death might have been avoided;
(d)
the defects, if any, in any system of working which contributed to the
death or any accident resulting in the death; and
(e)
any other facts which are relevant to the circumstances of the death.
(2)
The sheriff shall be entitled to be satisfied that any circumstances referred to in
subsection (1) above have been established by evidence, notwithstanding that
that evidence is not corroborated.
(3)
The determination of the sheriff shall not be admissible in evidence or be
founded on in any judicial proceedings, of whatever nature, arising out of the
death or out of any accident from which the death resulted......."
[8]
A comparison of the two provisions shows, amongst other matters, that the question
of foreseeability has now formally been excluded in terms of section 26(3) of the 2016 Act,
consistent with the recommendations of Lord Cullen having regard to the nature and
purpose of such inquiries, as well as to address the variable approach to this question in
determinations made in terms of the 1976 Act. It can also be seen that there has emerged a
7
slightly different use of language as between section 6(1)(c) and section 26(2)(e) "the
reasonable precautions, if any, by which...." has become "any precautions which could
reasonably have been taken". Parties differed on the significance, if any, of this different
linguistic emphasis between the two provisions. The material placed before me did not
elucidate explicitly the underlying rationale, if any, for this change in language.
Submissions for the petitioner
[9]
Mr Reid, for the petitioner, invited me to sustain his first and second pleas-in-law
and to reduce the determination insofar as it finds that a precaution which could reasonably
have been taken and which might realistically have resulted in the death of JM being
avoided would have been for the petitioner to have referred JM to the Paediatric Assessment
Unit at Raigmore Hospital on 1 November 2019. He broke his submissions down into four
parts; the broad context; the legal framework underpinning Fatal Accident Inquiries (FAI's)
and the law in respect of reasons; what was before the sheriff in terms of evidence and
submissions; and the determination itself and why it is flawed, being predicated upon an
error of law and an absence of reasons.
The broad context
[10]
In terms of context, Mr Reid set out the background to these undoubtedly tragic
events, as narrated above. He stressed that this was not a challenge taken lightly,
recognising that the mere fact of challenging the determination would inevitably be
distressing to the family of JM. However he emphasised that the finding under challenge
was not one lawfully open to the sheriff and not one that should have been made, which is
why reduction of that specific finding only was sought.
8
The legal framework
[11]
Mr Reid indicated that this submission had three elements to it; the statutory
framework; previous determinations; and finally the supervisory jurisdiction of the court
and how that interacts with FAI's. Mr Reid observed that this was the first time that a
Judicial Review had been brought under the 2016 Act and that there was little binding
guidance available to sheriffs on the proper approach to findings in terms of section 26. It
was clear that foreseeability was not relevant, as that was explicitly stated in subsection (3).
The test in regard to reasonable precautions now explicitly involved a two stage
assessment - firstly whether there was a precaution that might reasonably have been taken
and whether that precaution might realistically have resulted in the death being avoided, in
other words a cumulative test. The focus in the present case was on what was reasonable,
and what constituted a precaution. Whilst recognising that the language of the 2016 Act did
not exactly mirror that of its predecessor legislation in this respect, Mr Reid contended that it
could not be assumed that there had been any intention to change what was expected of a
sheriff in this regard. In any event, it was important to recognise that both Acts did not talk
of any "step" that might have been taken, but referred specifically to a precaution.
[12]
As to what might be meant by "precaution", Mr Reid placed reliance upon two
previous determinations which he stated were routinely cited in FAI's where the actions of
medical professionals were being considered. These were the determination in the inquiry
into the death of Lynsy Myles, dated 27 February 2004, and the inquiry into the death of
Marion Bellfield dated 28 April 2011. Looking firstly at the determination in Myles, Mr Reid
contended that the issue facing the then Sheriff Stephen in that inquiry was very similar to
that facing the sheriff in the present case, namely whether a CT scan ought to have been
9
arranged prior to a particular date, and whether such a scan would have been a reasonable
precaution which might have avoided Ms Myles's death. In that context Sheriff Stephen had
made the following observation at page 23:
"What is the correct approach to section 6(1)( c) issues in medical FAIs?
The key word must be `reasonable' - in judging what is reasonable and particularly
whether the actings of medical professionals or indeed any other professional
achieves a certain standard care must be taken by lawyers before we embark on a
critique of the treatment carried out by doctors. As lawyers we are no more than
tutored laymen who can apply normal analytical skills and common sense. Whereas
we may question and indeed criticise medical professionals, lawyers cannot be the
arbiters of what is reasonable based upon our examination alone. There is always a
risk in Inquiries such as this that emotive issues arise, perfectly understandably."
[13]
Mr Reid submitted that this passage contained "sound advice" and explained why
expert evidence was admissible in FAI's, otherwise, he queried rhetorically, why have it?
Put another way, with the benefit of hindsight in the Lynsy Myles case no one would not
have scanned Ms Myles or, in the present case, referred JM, but it was important that
emotive issues did not cloud the task that the court was being asked to do. The question
was, what could reasonably have been done, so that in the future a clinician did not miss a
chance to avoid a tragedy. Further on, at page 25, Sheriff Stephen continued:
"Again lawyers should be slow to comment upon medical practice, far less criticise
medical practice, unless there is clear appropriate testimony which challenges the
treatment a patient receives. The view I take of this matter is that for precautions to
be reasonable they have to be reasonable given the whole circumstances surrounding
the patient and treatment of the patient with particular reference to the treating
physician and if appropriate his junior medical staff. Before I can find a precaution
to be reasonable in the context of a medical issue, there must either be an admission
by the treating doctor that he failed to take a precaution or course of action which he
clearly ought to have taken or took the course of action which, in the exercise of
ordinary care, ought not to have been taken. Failing that, there would require to be
established by independent evidence, the manner in which the doctor in a particular
area of expertise, and with the particular experience, ought to have acted. This
clearly requires there to be a standard by which the actings of doctors are judged. As
I have said it is wrong for lawyers to be quick to criticise doctors without such
justification and reflecting the jurisprudence surrounding medical negligence issues
it must avoid the situation whereby medical professionals become hamstrung in
10
their treatment of patients because of concern that their view and their clinical
judgement may be called into question by a colleague who takes a differing view"
[14]
That passage, submitted Mr Reid, was a correct statement of the approach to be
taken. Recognising that the language employed by Sheriff Stephen mirrored to some extent
that found in actions of clinical negligence based upon the test in Hunter v Hanley 1955
SLT 213, Mr Reid contended that the rationale underlying Hunter v Hanley was to prevent
the practice of defensive medicine, and that that same rationale lay behind the
determination in an FAI - that the "reasonable judgment" of the medical professional should
be respected. Mr Reid acknowledged that the Hunter v Hanley test was not directly
applicable in the context of an FAI but submitted nevertheless that the test was what was
reasonable, and that caution in that regard was required when considering the actions of
medical professionals. Put another way, the cautionary note drawn from Hunter v Hanley
was not to be quick to criticise and rather to accept that a range of views were possible.
When considering precautions, the key question was what thing should reasonably have
been done to avoid the death. If "x" or "y" were both reasonable, it was not open to find
that a reasonable precaution would be to do "y" instead of "x". If, hypothetically, the death
in question reveals a problem with a particular practice, for example the prescription of a
particular drug, then the reasonable precaution would be not to prescribe that drug.
However where the question was one of clinical judgment in choosing between one course
of action and another, then in that situation the sheriff could not find that one course ought
to have been taken as a reasonable precaution.
[15]
Mr Reid sought to draw support for his submission by returning to the
determination in Myles at page 29, where Sheriff Stephen made the following observations:
"It would be unreasonable to desiderate precautions by analysing backwards from
what is now known to be a rare and unusual condition in its presentation and use
11
that knowledge to analyse the clinical judgement of those treating Lynsy at the
critical times. As has been indicated the decision when and whether to scan has to be
an exercise in clinical judgement, a judgement that will inevitably vary greatly
depending on the level and area of expertise. What may be routine or reflex in
Neuro Sciences requires clinical judgement in other areas. It would cause critical
difficulties for the NHS to suggest that patients presenting with persistent headaches
should routinely be scanned, far less suggesting that all patients presenting with
headaches should be scanned, that would lead to catastrophic consequences for NHS
users and would be completely impractical and would have the effect of ensuring
that those most in need of scanning were denied the opportunity."
From this passage Mr Reid drew the proposition that the lesson cannot be that a medical
professional should always do "x" if there is a risk of "y" - which in the present case
translated to, always re-refer to secondary care if there might be a change in diagnosis. Any
recommendation has to be a "real world" recommendation taking into account a "real
world" health service. Against that background, it was of note that Dr Wallace, who had
given expert evidence at the FAI had said he was not critical of Dr Duncan. Mr Reid
contended that nothing in the determination in Myles turns on the language of the 1976 Act,
and that there was no reason why the "learning" to be gained from Myles did not read
across to the analysis of a determination under the 2016 legislation.
[16]
Mr Reid then turned to the determination of Sheriff Braid (as he then was) in the
Fatal Accident Inquiry into the death of Marion Bellfield, issued in April 2011. The key
question focussed in that inquiry was whether or not the carrying out of a CT scan was a
reasonable precaution which might have avoided the death of Mrs Bellfield. Sheriff Braid
found that it was. In the body of the determination, Sheriff Braid examined the question of
reasonable precautions in more detail. Mr Reid founded on paragraphs 40 and 41 of the
(un-paginated) determination which are in the following terms:
"[40] In considering whether to find, in terms of section 6(1)(c) of the Act, that there
were reasonable precautions whereby Mrs Bellfield's death might have been
avoided, it is necessary to decide what is meant by reasonable precautions, and
whether a precaution may be considered to be reasonable only if the need for it could
12
have been anticipated at the time of the events leading to the death. The latter task is
not made any easier by the divergence of judicial opinion on the issue. Since a fatal
accident inquiry is not concerned with questions of negligence or fault, and there is
no need to consider whether an accident or death was foreseeable, then it seems to
me that there is no reason in principle why, in certain circumstances, a section 6(1)(c)
finding should not be made in relation to a precaution which should not have been
foreseen as necessary, particularly when the finding does not carry any connotation
that the failure to take the precaution was negligent. Accordingly, I consider that
Mr Fitzpatrick's submission, that a precaution is a measure designed to address a
known or foreseeable risk, was overstating the position. I can conceive that there
will be some situations where a risk which was not foreseeable could have been
prevented by the taking of a reasonable precaution, which should be taken in future.
In such situations, it can easily be seen that there is some purpose to the making of a
finding under section 6(1)(c), in order that lessons might be learnt so that future
deaths might be avoided in similar circumstances.
[41] However, that is not to say that every single thing which might have been done
and which might have avoided the death should, if it was a reasonable step to have
taken, make its way into a finding under section 6(1)(c). Not only would that not be
helpful in avoiding future deaths, but it would involve placing an unjustifiably wide
construction on the word `precaution'. Whatever that word means, it must place
some limit on the sort of acts or events which should be included in a 6(1)(c) finding.
The natural meaning of `precaution' is an action or measure taken beforehand
against a possible danger or risk. Further, since one purpose of a fatal accident
inquiry is to inform those with an interest of what precautions should be taken in
future, a finding under section 6(1)(c) must carry with it the implication that the
precaution ought, with the benefit of hindsight, to have been taken in the case which
resulted in the death, albeit without any necessary implication that the failure to take
it was negligent. That being so, I agree that when one has a situation which solely
involves the exercise of clinical judgment, where a range of reasonable actions might
be taken, and the choice as to which to take rests on the skill and experience of a
doctor based upon such information as is available to him at the time, and the doctor
happens to choose a course which results in death, it would be wrong to hold that
the selection of another option within the range, which might have prevented the
death, was a reasonable precaution which ought to have been taken. Not only does
that involve straining the meaning of precaution, but such a finding would be of no
real practical benefit to others in the future. A Fatal Accident Inquiry cannot
prescribe how doctors or nurses should exercise their judgment. Put another way,
the true precaution which ought to be taken in any given case may simply be a
requirement that a patient is seen by a suitably skilled doctor, rather than how the
doctor exercises his skill and judgment thereafter."
[17]
Mr Reid contended that the approach set out by the then Sheriff Braid in the passage
referred to from Bellfield above was the correct approach, that it had not been followed by
the sheriff in this case and that therefore she had erred in law. The sheriff had before her a
13
submission on behalf of the petitioner adopting this approach which she had rejected
without reasons being offered. Mr Reid accepted that the submission had been noted but
that there was no hint that the sheriff had applied her mind to the correctness or otherwise
of that submission.
[18]
Mr Reid then moved on to examine the interrelationship between the supervisory
jurisdiction and Fatal Accident Inquiries. He began by looking at the case of Lothian Regional
Council v The Lord Advocate 1993 SLT 1132. This case was authority for the proposition firstly
that judicial review of a Fatal Accident Inquiry was competent, and secondly that all that can
be reduced is something that fell within section 6(1) of the 1976 Act. The Lothian Regional
Council case however also made clear that reduction of a particular finding could only occur
where that finding was severable from the rest of the determination. Mr Reid submitted that
that was the position here so far as the order that he sought in respect of the finding made so
far as Dr Duncan was concerned. The same approach had also been taken in the case of
Smith v The Lord Advocate 1995 SLT 379. Mr Reid also accepted, under reference to
Sutherland v The Lord Advocate 2017 SLT 333 that firstly the conduct of an FAI is not a fault
finding exercise; rather it is a process which is entirely separate and distinct from the
determination of any question of civil liability; and therefore that reasonable foreseeability
is not a relevant consideration. He also accepted that the process involved, of necessity, the
use of the benefit of hindsight without reference to the state of knowledge at the time of the
death. However Mr Reid drew parallels between what was said in paragraph 34 of
Sutherland and the present case. Paragraph 34 is in the following terms:
"It was submitted that it would be possible to envisage a situation, involving the
exercise of clinical judgment, whereby a doctor was presented with two or more
options and could not know which was in the patient's best interests. I accept that in
a situation where the optimal course was not taken, it would not be appropriate to
determine that the selection of another of the available options would have been
14
reasonable precaution. I accept that to do so would distort the ordinary meaning of
`reasonable precaution' and would in any event be of no assistance for the future.
I am satisfied, however, that the circumstances of the petitioner's decision, not to
operate, were not of that type."
[19]
In particular, he contended that Dr Duncan had two options available to her. Firstly
to allow the course of treatment in secondary care which had been started to continue, or to
refer JM back to secondary care. That, Mr Reid contended, is an exercise of clinical
judgment and therefore the failure to refer back in the present case could not be described as
a "reasonable precaution". There were two options, both of which were reasonable. In
making that submission Mr Reid relied upon the evidence given by Dr Norman Wallace
during the course of the FAI. He contended that it was accepted by Dr Wallace that the
petitioner was entitled to place weight and reliance upon what had happened in secondary
care. Drawing those strands together, Mr Reid asked the court to approve paragraph 41 in
Bellfield and suggested that the court in so doing could take comfort that to do so was to
march in step with paragraph 34 of Sutherland.
[20]
Mr Reid then turned to the legal framework underpinning the duty to give reasons.
He submitted that it was uncontroversial that the findings in an FAI required reasons and
that the touchstone for the quality of those reasons could be found under reference to Wordie
Property Co Ltd v The Secretary of State for Scotland 1984 SLT 346 at page 348, in short that the
decision must leave the informed reader and the court in no real and substantial doubt as to
what the reasons for it were and what were the material considerations which were taken
into account in reaching it. Or, as slightly differently expressed by the editors of De Smith's
Judicial Review (8th Edition at paragraph 7.15):
"In short, the reasons must show that the decision makers successfully came to grips
with the main contentions advanced by the parties and must tell the parties in broad
terms why they lost or as the case may be, won. Provided the reasons satisfy these
core criteria, they need not be lengthy."
15
What was before the sheriff in terms of evidence and submissions
[21]
Mr Reid then moved to the third part of his submissions and began this chapter by
looking firstly at the evidence of the petitioner and the evidence of Dr Wallace. He
submitted that the starting point for the petitioner's evidence was found in her witness
statement which had been lodged with the inquiry and which was to be found at page 147 of
the joint bundle. In particular Mr Reid focused on the last paragraph of that statement and
placed particular emphasis on the petitioner's evidence firstly, that she stated that she
generally had a "low threshold for assessment", secondly that she stated she was "reassured
that she (meaning JM) had already been seen in the PAU with the same clinical picture and
there had been no deterioration or change that would merit a further referral", and that,
thirdly, she ended her witness statement by stating "however, should a similar case present
itself in future I would have a much lower threshold for seeking further specialist input to
reconsider the diagnosis and investigate further." That last sentence submitted Mr Reid was
unsurprising having regard to the experience that the petitioner had gone through, however
it should not be construed as an acceptance that what she did was unreasonable, and more
significantly did not support the recommendation ultimately made by the sheriff.
[22]
Mr Reid then turned to examine the transcript of the evidence of the Fatal Accident
Inquiry beginning with the evidence of Dr Norman Wallace between pages 38 and 41. From
this passage, Mr Reid contended, Dr Wallace could be taken as accepting that the petitioner
was entitled to place some reliance upon the fact that JM had already presented to the
Paediatric Assessment Unit and why, therefore, she might be entitled to feel "falsely
reassured" by the previous paediatric opinion which suggested that the mass JM's mother
reported might possibly be loaded bowel. This opinion mirrored the evidence given orally
16
by the petitioner at the Fatal Accident Inquiry and set out at pages 53 and 54 in particular.
This passage of evidence, according to Mr Reid, was an example of the petitioner exercising
clinical judgment on whether to refer back to specialist care. It was of note, said Mr Reid,
that there had been no re-examination by the procurator fiscal on that point and that
therefore it could be taken that the Crown had no issue with that factual position.
[23]
Mr Reid then turned to a critique of the evidence of Dr Norman Wallace. He began
by looking at his expert report. The key passage of Dr Wallace's report could be found at
paragraph 3.0 and was in the following terms:
"a further opportunity however to correctly diagnose the patient was missed on
1 November 2019 when Dr Karen Duncan noted `Mum thinks she can feel a mass on the
left side of her tummy'. This history alone from a concerned patient should have
mandated an urgent referral but I can understand why Dr Duncan was again falsely
reassured by the previous paediatric opinion which suggested that the mass might
be `possibly still loaded bowel'".
Mr Reid observed that it was not entirely clear from this passage whether this was to be
construed as a criticism or not. Mr Reid then turned to passages from Dr Wallace's evidence
at the FAI. During the course of cross-examination, beginning at page 76 of the transcript it
was put to Dr Wallace as follows:
"Whilst it might have been reasonable for her (referring to the petitioner) to refer J
back, it was also reasonable for her not to do so in light of her recent assessment by
the paediatrician. Would you agree with that or not."
Dr Wallace's ultimate response, to be found at page 77, beginning from line 17 was as
follows:
"It certainly would have been reasonable, we can't disagree with that, it would have
been entirely reasonable for her to refer back. But the more critical question was,
was it reasonable for her not to have sought a further paediatric opinion and in my
experience, of course in most of my experiences in terms of litigation, and that's a
slightly different issue, you're looking to what the ordinarily competent GP would
do in similar circumstances, and while I said that I have a lot of sympathy with
Dr Duncan because she was falsely, and considerably falsely reassured by the
paediatric opinion that had been provided just a matter of days previously. So there
17
is considerable shelter in the actions of Dr Duncan and many GPs in similar
circumstances acting with ordinary skill and care might have managed the child in
the same way because she had been falsely reassured by the paediatric opinion."
Dr Wallace's evidence then continued at the top of page 79 in the following terms:
"... I think that many, as I have said before, GPs might have managed her in a similar
way having been falsely reassured by the paediatric opinion, which is the overriding
issue from my perspective in this case. I mean, as you appreciate, general practice is
a very lonely and, I agree, increasingly pressurised profession and we are
disproportionately and hugely influences by specialist opinion, and rightly so. And
that can't really be overestimated and overstated and I think that's the prime issue in
this. So I wouldn't be specifically critical of Dr Duncan in that situation."
Mr Reid submitted that this last passage was the critical one Dr Wallace had stated at the
FAI that he would not be critical of the petitioner in that situation. However, Mr Reid
continued, that chapter of evidence was not referred to or found in the determination. It
was noteworthy that at the end of the cross-examination of Dr Wallace there had been no
re-examination, and no challenge to his evidence that he would not be specifically critical of
the petitioner. Therefore there had been no challenge to the proposition that it was
reasonable for the petitioner to have relied upon secondary examination. That was the
evidence that the sheriff had before her the petitioner's explanation, and Dr Wallace's
unchallenged evidence that he was not critical of her relying on secondary care diagnosis.
[24]
Mr Reid then moved to examine the submissions that had been made to the sheriff at
the conclusion of the FAI and which were lodged in process. Mr Reid had a number of
specific criticisms to make of the written submissions presented by the Crown in the FAI.
Mr Reid drew particular attention to the crown submission at paragraph 6 which was in the
following terms:
"On 1 November 2019 arrangements could have been made for JM to be referred by
the consulting GP (the petitioner) to the paediatric assessment unit.
In Dr Norman Wallace's opinion, an urgent referral would have been reasonable
based on the information available to the consulting GP."
18
Mr Reid's submission was that this was simply not correct and he went further, contending
that there was no reasonable or proper basis for that submission. Mr Reid submitted that
the Crown's summary of the evidence upon which that submission had been made, did not
follow from the evidence. He contended that, given the Crown responsibility to fairly
present the evidence and not to advocate a side, it was wrong of the Crown to make no
mention of Dr Wallace's evidence that he would not be critical of the petitioner. It was
legitimate to expect that a balanced summary of the evidence would include that reference.
[25]
Turning then to the submissions made on behalf of the petitioner Mr Reid focused
particularly on paragraph 4 of the submissions which were in the following terms:
"If the court believes that there is a reasonable precaution that could have been
adopted, but that there is no evidence that it might realistically have avoided the
death, then the test is not met and it is respectfully submitted that a finding in terms
of section 26(2)(e) cannot be made. Similarly if the court considers that there is a
means by which the death might realistically have been avoided but that it would
have required a doctor to do something which would not, in the circumstances, have
amounted to a reasonable precaution, then the test is not met."
It was significant according to Mr Reid that there had been no engagement with that
submission on the part of the sheriff. Further on, at paragraphs 12 to 17 there had been
detailed submissions on the question of reasonable precautions and in particular, at
paragraph 17, the correct legal approach as proposed by senior counsel for the petitioner
was summarised in the following terms:
"The approaches of Sheriff Braid (as he then was) and Lord Armstrong are
commended to the court. It is respectfully submitted that, on the evidence before it,
the court is not entitled to conclude that it would have been a reasonable precaution
for Dr Duncan (the petitioner) to have made a further referral, because the
unchallenged evidence of Dr Wallace was that it was reasonable for her not to do so,
and Dr Duncan did not herself accept that she acted unreasonably in not
re-referring."
19
[26]
The written submissions for the parties were supplemented by further oral
submissions, and a partial transcript from the submissions hearing was also lodged.
Mr Reid looked firstly at a passage from the oral submissions for the Crown. There the
procurator fiscal, on behalf of the Crown, made the following submission:
"The court is being asked to consider the precautions, my Lady, and those are actions
which could reasonably have been taken and might have realistically resulted in
death being avoided. The Crowns submissions in respect of those actions are based
on what the experts said. Of course it is that case that if one course of action is taken
and was reasonable, it doesn't preclude other reasonable courses of action from
being available. So, even if a doctor did do something, there might have been
something else which would have been reasonable and might have led to earlier
diagnosis and life being saved."
Mr Reid was critical of that submission. He said that this was not the "Bellfield Sutherland"
approach. More fundamentally, Mr Reid submitted it was clear that there was a stark legal
issue between the approach of the Crown and the approach taken on behalf of the petitioner
as to the proper legal test. The Crown's submission did not engage with the evidence of
Dr Wallace, which was unchallenged, and appeared to proceed on the basis that reasonable
could mean one of a number of reasonable options. That submission depended on the
evidence of Dr Wallace drawn from his report and ignoring his oral evidence. Mr Reid
contrasted that approach with the approach taken on behalf of the petitioner. He pointed to
an oral submission in which, by way of preamble to more detailed submissions counsel for
the petitioner had stated:
"My Lady should be aware that a finding that a doctor has failed to take reasonable
precaution which might realistically have avoided the death of a child is
self-evidently of the utmost seriousness and can have significant professional and
regulatory consequences for the doctor concerned, and the inquiry cannot and
should not make such a finding without a clear legal basis for doing so, and without
being satisfied that the evidence before it actually justifies that finding."
Mr Reid adopted that proposition and reiterated that a finding in an FAI is not a finding
without consequence. It was clear from the transcript of submissions, he contended, that
20
there was a real dispute between the representatives of the petitioner and the Crown about
the nature of the evidence and the applicable law. Counsel for the petitioner at the FAI was
heavily critical of what was said to be the failure on the part of the Crown to provide
meaningful legal analysis of the test that ought to be applied in determining whether a
precaution was a reasonable one that could have been taken. The submission went further
and contended that the available authorities (Myles, Bellfield, and Sutherland) supported the
legal proposition that in a scenario where a doctor has acted reasonably, but an alternative
reasonable course of action was also open to them, no finding in terms of reasonable
precautions that might have been made in terms of the legislation, could be made. Despite
this being a clear area of dispute between the parties, Mr Reid observed that it could be seen
from the conclusion of the transcript that there had been no questions from the sheriff to
either party emerging out of the submissions.
The sheriff's determination
[27]
Mr Reid then turned to look at the determination itself. The relevant passages from
the determination so far as the petitioner was concerned, began at paragraph 38. Mr Reid
was critical of the use of the reference to caution in paragraph 38:
"I was generally directed to be cautious about making any finding that these two
doctors (referring to the petitioner and one other GP) could have taken reasonable
precautions as it was submitted that the evidence was insufficient."
Mr Reid submitted that if the sheriff had taken it that she was being urged to be "cautious"
then she had misunderstood the submission made on behalf of the petitioner. Rather, he
suggested, the submission had been clear it was not open to the sheriff to make a finding
in relation to the petitioner on the basis of the evidence before her. Reference at
paragraph 52 of the determination to Dr Wallace being "critical" of the consultation with the
21
petitioner was wrong. Dr Wallace had not been critical of the petitioner, in fact he had said
the opposite, in terms, during the course of his evidence. Specifically his unchallenged
evidence was that he was not critical and that it was reasonable for her to do what she did.
He had not been re-examined on that point and nor was he questioned by the sheriff. Whilst
it might be reasonable to say that the passage in the determination might be a gloss or
summary of one paragraph from his report it did not represent his evidence as a whole. On
the same theme, where the sheriff had found at paragraph 65 that Dr Wallace gave an
opinion that the petitioner should have made an urgent referral to PAU on 1 November 2019
again this was wrong. He had not said that the petitioner should have made a referral,
rather his only view was that it had been reasonable not to refer and no criticism had been
advanced. The summary provided by the sheriff at the end of paragraph 65 in the following
terms:
"A summary of Dr Wallace's opinion on Dr Duncan's consultation on 1 November is
that it would have been reasonable to refer J back to PAU given the reported
abdominal mass, but it was also reasonable not to refer back given the recent
paediatric diagnosis."
went straight to the heart of the legal issue that had been identified by counsel for the
petitioner in submissions. A further error could be found in paragraph 67 where the Sheriff
had conflated two limbs of the legal test it did not follow that because the death would be
avoided that the referral was a reasonable precaution to take. More fundamentally Mr Reid
contended that the last sentence of paragraph 65 (quoted above) represented the totality of
reasoning so far as the finding in respect of the petitioner was concerned. These were not
reasons in any accepted sense. It followed, according to Mr Reid that his second plea-in-law
must be sustained and reduction must follow. The sheriff had failed to provide a reasoned
determination so far as the petitioner was concerned. Amplifying that proposition, Mr Reid
22
submitted that these "reasons" could not support the determination made in paragraph 5(e).
The sheriff had not even implicitly referred to the authorities; she had not dealt with the
submission that was a principal focus at the hearing. It was to be inferred that she must
have rejected the submission made by senior counsel on behalf of the petitioner, and if that
were so in so doing the sheriff had rejected a quarter of a century of authority. She had a
responsibility to explain why she was rejecting that submission and she had failed to do so.
There was nothing in the determination that showed that the sheriff had successfully come
to grips with the main contentions of the parties. Therefore the only conclusion could be
that she had not engaged with the main contentions by the parties.
[28]
Mr Reid emphasised that his reasons challenge stood independently of his first
ground of challenge. Put another way he said it would be possible to find against him on
the meaning of section 26(2)(e) of the 2016 Act, that is to say against the proposition that
where two courses of action were possible no finding in terms of section 26(2)(e) should be
made however the reasons challenged stood alone, this was not an adequate determination
at common law, and that alone justified reduction.
Submissions for the respondent
[29]
Mr MacPherson adopted his note of argument. He broke down his submissions into
two broad chapters, firstly whether the finding of the sheriff can be supported having regard
to the legal framework and secondly whether the reasons were adequate. Looking firstly at
the wording of section 26(2)(e), Mr MacPherson submitted that although there was no
material distinction between that provision and its predecessor they were nevertheless
different. A sheriff is mandated to make findings relating to the matters set out in
subsection (2). He suggested that the focus should be on the word "any" and the word
23
"could" where they arise in subsection (2). The reasonableness qualification would come
into play where there might be a dispute. On that analysis, the first question should be
whether there was a precaution, and the second being whether it could have been taken,
before getting to the question of whether such a precaution was reasonable. If the sheriff
answered the first question in the affirmative - that there was a precaution that could have
been taken, then provided such a precaution was reasonable, section 26(1) directed the
sheriff to set out her findings as to the circumstances. Put another way, if there was a
precaution which was reasonable, then the sheriff must make a finding to that effect.
[30]
Such an approach required a definition of the word "precaution" and
Mr MacPherson too commended the analysis of the then Sheriff Braid in Bellfield in this
regard. Mr MacPherson submitted that "precaution" did not connote every "thing" that
could have been done, even if reasonable, rather a precaution meant something done in
advance to avoid something happening. It involved an element of looking forward with a
future outcome in mind. However there was nothing in the word or its definition that
imported the concept of reasonableness at this point. Mr MacPherson observed that in this
regard the submission in Sutherland to the effect that a precaution must involve an element
of foresight had been superseded by the explicit language of section 26(3) of the 2016 Act.
That said, Mr MacPherson submitted that there was not much to be taken from the word
precaution other than it had to be something done in advance. The true focus lay on what
was reasonable, and whether it was reasonable to take the precaution.
[31]
Mr MacPherson emphasised that there was nothing in the terms of section 26 which
carried the implication of fault or blame - that was plain because of the use of the word
"could" rather than "should". Therefore given that criticism in that context was not
necessary, the evidence of Dr Wallace should not be taken as asserting or implying
24
"criticism" in a professional negligence sense. The plain language of the provision meant
that if a precaution could have been taken, which was reasonable, then the section directs
the Sheriff to make a finding. A finding made by the Sheriff in that context did not imply
criticism. This determination was therefore different from that in Lothian Regional Council v
The Lord Advocate where the sheriff had made very critical findings of certain individuals for
which there was no basis in the evidence. That was a very different situation from making a
finding assuming the statutory test is satisfied.
[32]
Mr MacPherson's position so far as the determination in Myles was concerned is that
this should no longer be followed. It proceeded on the basis that Hunter v Hanley and the
test set out therein was a relevant factor, and it was clear, on the basis of Sutherland, that that
was no longer correct. That was not the case here, rather the sheriff had simply made a
finding in relation to a reasonable precaution that could (emphasis added) have been taken.
The answer to the complaint made by the petitioner to the effect that it could not be
reasonable to scan every patient, or refer every child back was found in that language - if
there was evidence that it was reasonable to send this child back, then that was sufficient to
meet the statutory test. In any event, Mr MacPherson continued, it was important to bear in
mind that in the present petition, the petitioner did not challenge the proposition that it
would have been reasonable to refer JM back to the paediatricians, rather the focus was on
the assertion that it was reasonable to take another course of action.
[33]
Mr MacPherson acknowledged that in a "medical" FAI, where a sheriff was
considering the exercise of judgment on the part of the practitioner in question, it was
legitimate to consider how far that could go, but once again the key distinction in this
context is that no criticism in the sense of attributing fault is being made. It was equally
legitimate to consider whether it would be helpful to make the finding in question, in the
25
sense of providing learning for the future. Here, the criticism was that there was no
additional learning from the tragic outcome in this case that would make a difference, but
the language of the statute bound the sheriff to make a finding on the basis of the evidence
before her. The danger in adopting the approach contended for by the petitioner was that
comparing different approaches to determine what was reasonable inevitably drew one back
to the Hunter v Hanley test. That was concerned with the standard of care, and in that
scenario the court required evidence that the conduct complained of fell outwith the realms
of reasonable practice. That approach had no part to play in the interpretation of section 26.
If there was evidence that it was reasonable to do one thing, and also reasonable to do
another, that did not take away from the obligation on the sheriff to make a finding. Put
another way, if both avenues of treatment are in play, and one is a precaution, and both are
reasonable, then a finding in terms of section 26(2) was required.
[34]
That was important in the present case because there was more material before the
sheriff than simply JM's presentation at the relevant consultation. If there had only been one
consultation and no relevant history then it might be reasonable to say there were no
grounds for referral, but that was not the case here. The situation in this case resonated with
the language employed in Bellfield at paragraph 41 where the then Sheriff Braid had
expressed the point thus:
"Put another way, the true precaution which ought to be taken in any given case
may simply be a requirement that a patient is seen by a suitably skilled doctor, rather
than how the doctor exercises his skill and judgment thereafter."
In short, if referral is obviously a precaution that could be taken, the minute that precaution
becomes reasonable it is within the ambit of a finding in terms of section 26(2).
[35]
Mr MacPherson then turned to look at the evidence which was available to the
sheriff. She had the expert report of Dr Wallace, in terms of which he categorised the failure
26
to refer JM on 19 November as a "missed opportunity" to correctly diagnose the patient.
The history alone mandated an urgent referral but he could understand why the petitioner
was "falsely reassured" by a previous paediatric referral. It was clear that Dr Wallace was
not suggesting the petitioner should have made the diagnosis herself following that
consultation. This missed opportunity followed on from an earlier GP consultation (with
another GP) which also represented a missed opportunity to refer JM. This was evidence
the sheriff was entitled to accept, and in accepting that the failure to refer represented a
missed opportunity to diagnose and prevent the death of JM, the sheriff was by the
language of the statute mandated to make the finding that she did. Referral was a
precaution that could have been taken, and it was a reasonable precaution. In addition to
the expert report of Dr Wallace, the sheriff had available to her his oral evidence which was
to the same effect, whilst he equally acknowledged that it was understandable that the
petitioner was falsely reassured by the earlier paediatric assessment.
[36]
Moving on from the evidence, Mr MacPherson examined the authorities relied upon
by the petitioner. In reality, he submitted, these amounted to two FAI determinations and
one decision in a Judicial Review. The two determinations were not, strictly speaking,
"authorities" and in terms of precedent nothing had been presented that was binding , the
decision in Sutherland being an Outer House decision. In any event, the decision in Myles
had plainly been superceded by Sutherland so far as it related to the question of
foreseeability and both had now been superceded by the terms of the 2016 Act which made
explicit the fact that foreseeability is an irrelevant consideration. In similar vein, any
reliance upon or comparisons drawn with Hunter v Hanley in Myles had no substance and
had in any event been overruled by Sutherland. The consequence was, according to
Mr MacPherson that the proposition advanced by the petitioner that a finding can only be
27
made if the medical practitioner in question accepted that they had acted unreasonably, or
an expert opines that they acted unreasonably was misconceived. The true question was
what was reasonable by way of a precaution in any given case. Any analysis underpinned
by consideration of negligence fell into the trap of the negative - that is to say a contention
that the medical practitioner did not act with reasonable care. There was nothing in the
language of the 2016 Act that required that to be done. In that regard Sutherland quoted
Bellfield with approval and did not have the effect contended for by the petitioner.
[37]
Sutherland ought to be regarded as highly persuasive, submitted Mr MacPherson,
being a decision based on similar facts and circumstances to the present case. In that case, a
cardiac surgeon elected not to perform surgery on a patient who later died from an aortic
dissection. The Sheriff found that a reasonable precaution by which the death might have
been avoided would have been to refer the patient's scans to an expert radiologist for their
view, which might have led to the dissection being discovered. The Lord Ordinary
(Armstrong) held that that was a finding open to the sheriff on the evidence. Sutherland was
authority for the proposition that in the context of an FAI it is a question of what could have
been done, a test very different to that necessary for a finding of negligence.
[38]
Mr MacPherson then addressed the second broad ground of challenge relating to the
reasons underpinning the findings made by the sheriff. Mr MacPherson accepted that the
sheriff did not proffer a response to the submissions advanced by the petitioner, but
Mr MacPherson submitted that it was not at all clear from the transcripts provided that a
coherent and in any event certainly not a correct position in law had been advanced on
behalf of the petitioner and any failure to address those submissions directly did not fatally
undermine her conclusions. In any event it is clear that the sheriff had these submissions.
They are summarised at paragraphs 38 and 40 of the determination. Paragraph 38 seems to
28
refer directly to the petitioner's submission about whether there was sufficient evidence.
Paragraph 40, even if a brief summary, clearly bears to be a reference to the arguments made
by the petitioner. The petitioner's submissions focussed, erroneously on the language of
fault that had no part to play in this statutory regime.
[39]
The context was significant, because what was being produced was a determination,
a creature of statute. Thus properly understood, notions of being able to understand who
had "won and lost" (De Smith) did not feature. This was not a dispute, the process was not
adversarial, and it was not a "decision". The determination had no bearing on future legal
proceedings, rather it is a fact finding exercise which requires the sheriff to set out findings,
not to reach a decision on one point as against another. Once the sheriff had made her
finding in paragraph 65, that was sufficient when read together with paragraph 66. Any use
of the word "critical" has to be looked at broadly in the statutory context.
[40]
In the result, Mr MacPherson submitted that the petitioner's first ground of challenge
failed because there was an ample basis for the finding complained of, and the second
ground failed because although there were absences in aspects of the reasoning, those were
not fatal to the finding made in respect of the petitioner.
Reply for the petitioner
[41]
In a brief reply, Mr Reid rejected the criticisms made of the positon advanced on
behalf of the petitioner at the FAI. The logic of the respondent's position, he suggested, was
that referral services would be inundated with patients being referred to them by GP's. That
was wrong because it was an exercise of clinical judgment on the part of the GP as to which
resources to engage. A "precaution" must have content and meaning, otherwise there was
29
no possibility of learning for the future if, faced with a range of options, all would constitute
reasonable precautions.
[42]
Further, the approach contended for by the respondent invited disapproval of and
departure from an established line of precedent and practice that had subsisted for over two
decades. That was not what the sheriff had been asked to do and it was not appropriate for
the respondent to invite this court to depart from that established practice having not
troubled the sheriff with that suggestion. The submission made on behalf of the petitioner
to the sheriff was correct in law, and if it were not, the sheriff had an obligation to engage
with that submission and say why it was not correct. Mr Reid renewed his motion to reduce
the determination to the extent sought.
Analysis and decision
[43]
There were matters upon which the parties were in agreement. Firstly, that the test
in Hunter v Hanley was of no application in the context of a fact finding exercise such as an
FAI, where no attribution of fault is made. Secondly, there was agreement that hindsight
was relevant in considering findings that might be made, having regard in particular to the
future learning and education aspect of such inquiries, and thirdly, as now confirmed in the
2016 Act, the question of foreseeability was not relevant. Parties were also agreed that, as a
matter of fact, had the petitioner referred JM to hospital after the consultation on
1 November 2019, it is likely she would have survived.
[44]
Parties did however fundamentally disagree as to the correct approach to the task
mandated by section 26 of the 2016 Act. The petitioner's position, in a nutshell, is that in
making a finding that a reasonable precaution which might have avoided the death of JM
was if she had been referred by the petitioner to specialist paediatricians, the sheriff has
30
erred in law. That error arises because there was evidence available to the sheriff to the
effect that the petitioner equally could not be criticised for being falsely reassured that JM
had already been seen by paediatricians who had diagnosed her to be suffering from
constipation. The submission on behalf of the petitioner was that in such a situation, based
on practice and precedent, sheriffs should not, and do not make findings in respect of
reasonable precautions that might have been taken.
[45]
No examples of what was said to be this almost invariable approach were placed
before me. Whilst of course there is no reason to doubt what Mr Reid said in this regard, it
would have been useful, and provided some additional insight, had such material been
available. Instead, the proposition advanced was that the two determinations in Myles and
Bellfield, whilst not binding authorities, are routinely referred to as supporting the
contention that where there are two reasonable courses of action, then a finding in relation
to reasonable precautions will not be made. Despite both these determinations, and indeed
the decision in Sutherland, also relied upon, pre-dating the coming into force of the 2016 Act,
the petitioner's positon is that there is not and should not be, any change in approach.
[46]
As indicated above, it was accepted by parties that the language of the 2016 Act does
not exactly mirror that of its' predecessor. In particular, the language has changed from
being "the reasonable precautions" to "any precautions which could reasonably have been
taken..." The petitioner suggests that that is not a material change and does not affect the
legal approach contended for by her. The respondent initially agreed that the difference
between the two provisions was not material, but did submit that the wording was
nevertheless different, and that meant that where there was evidence from which a sheriff
could find that there was a precaution that was reasonable, then that mandated a finding
under section 26(2) (e).
31
[47]
Although it was not possible to discern explicitly from the face of the report and
consultation document referred to when and why the decision to amend the language of the
2016 Act in the manner described above came about, it is apparent from that material that
there was a desire to clarify what sort of recommendations sheriffs might make in relation to
reasonable precautions. In the foreword to the Scottish Government Consultation Paper on
the proposed new legislation the then Cabinet Secretary for Justice wrote:
".......in general the purpose of an FAI is to establish the time, place and cause of
death and, crucially, any precautions which might be taken in future to avoid deaths
in similar circumstances. FAIs are therefore held in the public interest they are not
intended to provide a venue for bereaved families to establish grounds for future
civil action."
The phrase "any precautions" is one which ultimately found its way into the 2016 Act. It
carries a wider connotation than the language used in the predecessor legislation, albeit the
differences are perhaps marginal. However the distinction drawn between the purpose of
an inquiry in contrast to that of civil litigation remains explicit.
[48]
That is of significance having regard to the proper approach to determinations under
the 2016 Act. The petitioner urges an approach which pays proper respect to questions of
clinical judgment in the context of a "medical" FAI. That is an uncontroversial proposition.
However that is not the same thing as an approach which suggests that a sheriff is disabled
from making a finding in terms of section 26(2)(e) if more than one course of action was
available (assuming that course of action is a precaution) which was reasonable. The
language of section 26(2)(e) refers to any precautions - the qualification of those being
precautions which could reasonably have been taken then follows. There is nothing in the
statutory language which suggests that a finding may not be made where another option
was available. To approach matters in that way in effect mirrors the Hunter v Hanley test
which it is agreed has no part to play in an FAI. In the present case of course, the question
32
was whether to refer, or not to refer. Mr Reid characterised that as a clinical decision. It
might be said that a clinical decision carries a connotation of choosing between different
types of treatment, rather than whether to refer or not to refer to a specialist, or whether to
operate, or not (as was the case in Sutherland, where the Lord Ordinary drew a distinction
between decisions involving clinical judgment, and the decision, in that case, not to operate).
[49]
In that regard, although neither party made explicit reference to it, the comments of
the then Sheriff Braid at para [46] of his determination in Bellfield are instructive. He said the
following:
"46. The next question which arises is whether it was in this case a reasonable
precaution. In deciding that question, I must deal with the submissions presented to
me to the effect that it would be open to me to find that a CT scan was reasonable
only if I reached the view that what was done was unreasonable. With respect, I do
not consider that to be correct. I have already pointed out that negligence is not in
issue and that it is not the function of this inquiry to attribute blame. It is therefore
nothing to the point to inquire as to whether what was done was reasonable, and it
seems to me to involve a non sequitur to hold that a precaution which was not taken
can be held to have been reasonable only if what was done was not reasonable. To
take that approach respectfully seems to me to apply the principles and language of
negligence, which are irrelevant for the purposes of this inquiry. I do not see why it
is not open to me to hold that, even though what was done was reasonable, other
reasonable precautions might also have been taken which might have prevented the
death"
[50]
Although that analysis is not binding on me, it encapsulates entirely correctly the
proper approach and I respectfully adopt and endorse it. That analysis was of course
contained in a determination that pre-dated the coming into force of the 2016 Act but having
regard to the more expansive language of section 26(2)(e) it is entirely consistent with the
language of the statute as now framed. Applying that approach to the present case, the
evidence of Dr Wallace that he could understand why the petitioner felt reassured by the
earlier referral and that he would not be critical of her in so feeling, has to be seen in its'
proper context. That context is a passage of evidence in which he is moving between the
33
statutory test and the test employed in litigation, with which he is clearly familiar (see the
passages of evidence quoted in para [23] above). He is not, viewed fairly, departing from his
view that referral would have been a reasonable precaution. He is simply saying that he
would not be critical of the petitioner, employing the test of a doctor exercising ordinary
skill and care, for having been falsely reassured in all the circumstances. It was not in
dispute that, that test is not one that is relevant for the purposes of a determination in an
FAI.
[51]
It follows that I accept the submission for the respondent that where there was
evidence before the sheriff, which she accepted, to the effect that a referral to the Paediatric
Assessment Unit was a precaution which could reasonably have been taken which might
have avoided the death of JM, she was entitled, indeed mandated, to include a finding to
that effect in her determination. Therefore I can discern no error of law in the approach of
the sheriff to this question, and the first ground of challenge accordingly fails.
[52]
Mr Reid submitted that even if his first ground of challenge did not find favour, then
the determination nevertheless fell to be reduced on the basis of a lack of adequate reasons.
In summary, the criticism under this heading is that the sheriff failed properly to engage
with the competing submissions of the parties, nor did she set out her reasons for accepting
or rejecting those submissions. As a result the informed reader and the court were left in
real and substantial doubt as to what the reasons for the determination were and what were
the material considerations which were taken into account in reaching it (Wordie). Or, as
Mr Reid also expressed it, parties could not know who had "won" or "lost" from the face of
the determination and what the sheriff had made of the competing submissions on the law.
[53]
It may be a moot point as to how useful any analogy employing the language of
"winning" and "losing" might be in the context of an FAI. That said, there can be no real
34
dispute that any judicial decision, whether it be in the context of a litigation or an inquiry
such as this, should be comprehensible, and set out what evidence has been accepted and
which rejected, and the conclusions reached in light of the findings on the evidence. Some
decisions of course go further and provide detailed analysis of the parties competing
contentions and the view taken by the fact finder of those. In the present case,
Mr MacPherson accepted that the sheriff had not engaged in any detail with the submissions
of the parties, but submitted that was not fatal to her determination so far as the petitioner is
concerned. It was important to remember that this was not an adjudication between parties,
rather it was a fact finding exercise, with the potential to make recommendations based on
the facts found established. If there are reasons for the findings, which he argued could be
found in paragraphs 65, 66 and 67 in the determination, that was sufficient to discharge the
statutory duty.
[54]
Mr Reid is correct to say that the sheriff has not met the parties head on when comes
to analysing in detail their submissions. No doubt she could have put the matter beyond
peradventure by stating that she rejected the legal analysis put forward by the petitioner.
However there is no standalone obligation in terms of the statute, or as a matter of
generality, for a fact finder to accept or rebut in an overly analytical fashion, the competing
contentions of the parties. The key touchstones for adequacy of reasons as discussed in
various authorities are as follows:
the reasons given should be intelligible and they must be
adequate, allowing the reader to understand why the matter was decided as it was and what
conclusions were reached on the principal important issues; reasons can be briefly stated;
the degree of detail required depends on the nature of the issues falling for decision; the
reasoning must not give rise to a lot of doubt as to whether the decision-maker erred in law;
35
the reasons need to deal with only the main issues in dispute, not to every small
consideration (South Bucks District Council v Porter (No.2); De Smith on Judicial Review).
[55]
By that measure, the sheriff has set out her findings in relation to the evidence, in
particular the evidence of Dr Norman Wallace upon which she relied in making the finding
complained of; she has recorded in summary form the competing submissions of the
parties; and she has determined that it was open to her to make a finding in terms of
section 26(2)(e) on the basis of the evidence which she accepted. This is not a situation as
was discussed in Smith v the Lord Advocate 1995 SLT 379, where the sheriff made findings
unsupported by the evidence. The reasons are adequate, as that term is understood in the
relevant authorities. The second challenge based on inadequate reasoning also fails.
Disposal
[56]
I shall repel the first and second pleas in law for the petitioner, sustain the third and
fourth pleas in law for the respondent, and refuse the petition. I will reserve all questions of
expenses meantime.