“Could, Not Ought”: Inner House Clarifies Section 26(2)(e) FAIs — Sheriffs Must Record Any Reasonable Precautions Even Where Another Reasonable Option Was Taken

Introduction

In Dr Karen Duncan v The Lord Advocate [2025] CSIH 27, the First Division of the Inner House (Lord President Lord Pentland, Lady Wise, Lord Clark) has delivered important appellate guidance on the scope and purpose of Fatal Accident Inquiries (FAIs) under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. The reclaiming motion arose from a Fatal Accident Inquiry into the death of “J”, a 20‑month‑old child who died from complications of Wilms’ tumour (nephroblastoma) following delayed diagnosis. The sheriff, among other findings, determined that on 1 November 2019 the petitioner (a general practitioner) could reasonably have taken a precaution—referring J to the Paediatric Assessment Unit at Raigmore Hospital—which might realistically have resulted in the death being avoided. The Lord Ordinary refused judicial review of that finding; the Inner House now refuses the reclaiming motion.

The appeal raised fundamental issues: how to read section 26(2)(e) of the 2016 Act (“any precautions which could reasonably have been taken and which, had they been taken, might realistically have resulted in the death being avoided”) and, in particular, whether a sheriff may record a reasonable precaution even where the professional involved took another reasonable course at the time. At stake was the proper distinction between the inquisitorial, public‑interest purpose of FAIs and the blame‑attributing logic of negligence claims, especially in clinical contexts.

Summary of the Judgment

The Inner House refused the reclaiming motion and affirmed the Lord Ordinary’s decision. The Court held:

Section 26(2)(e) requires sheriffs to identify “any” precautions that “could” reasonably have been taken and that “might realistically” have avoided the death; the duty is mandatory where the evidence satisfies the statutory criteria.
“Could” is the operative word: the statutory test is not whether the precaution “ought” or “should” have been taken, nor whether the course actually taken was unreasonable.
FAIs are inquisitorial, backward‑looking exercises in the public interest; negligence standards (such as Hunter v Hanley) are irrelevant; hindsight is permitted, and foreseeability is expressly immaterial (section 26(3)).
There is no special carve‑out for clinical judgment cases. Even where a professional selected a reasonable option, a sheriff may still record another reasonable option as a precaution that could have been taken, provided the “might realistically” causal threshold is met.
The sheriff’s reasoning was adequate: the determination, read fairly and as a whole, allowed the informed reader to understand why the finding was made and on what evidence.

Applying these principles, the Court held the sheriff was entitled—indeed obliged—to record that referral to the Paediatric Assessment Unit on 1 November 2019 was a reasonable precaution that could have been taken and that might realistically have resulted in J’s death being avoided, given the expert evidence (Dr Norman Wallace, Professor Hamish Wallace).

Detailed Analysis

Statutory Architecture and the Court’s Textual Approach

The Court’s analysis centres on section 26 of the 2016 Act. Section 26(1)(a) obliges a sheriff to make findings as to the “circumstances” listed in section 26(2), and section 26(2)(e) specifies:

“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”.

Three textual features drive the decision:

“Any” precautions — the breadth of the term signals an inclusive obligation; the sheriff identifies all evidenced precautions meeting the test, not only a single, optimal measure.
“Could” reasonably have been taken — Parliament chose a lower threshold than “should” or “ought.” The inquiry is whether the step was within the range of reasonable measures available on the facts, not whether omission of that step was unreasonable.
“Might realistically” have avoided the death — a pragmatic causal standard: more than a speculative possibility, but less than probability on the balance of probabilities.

The Inner House emphasises that the sheriff’s duty is mandatory when the evidential threshold is met. This is central to the Court’s rejection of attempts to import negligence concepts or to treat the existence of another reasonable course as a bar to a section 26(2)(e) finding.

Purpose and Method of FAIs: Hindsight and Foreseeability

The Court locates section 26(2)(e) within the wider purpose provision: section 1(3) states that the purpose of an FAI is to establish the circumstances of a death and to consider steps to prevent similar deaths in future, not to apportion civil or criminal liability (section 1(4)). Section 26(3) makes foreseeability immaterial for precautions and defects. As a result:

Hindsight is not only permitted but consistent with the Act’s preventive purpose.
The sheriff’s findings under section 26(1)(a) are retrospective and evidence‑led; recommendations under section 26(1)(b) are prospective and policy‑oriented. A finding that a precaution “could reasonably have been taken” does not compel a forward‑looking recommendation to do so in all future cases.

Application to the Facts

The factual matrix is uncontroversial. Over a month, J presented repeatedly with consistent signs (weight loss, abdominal mass, distress). On 1 November 2019, the reclaimer’s abdominal examination was limited; she assumed the reported mass reflected constipation, given a recent paediatric diagnosis, and did not refer. Expert evidence was as follows:

Dr Norman Wallace (GP expertise) — referencing the Oxford Handbook of General Practice, he stated that a reported abdominal mass in a child mandates urgent referral or, if examination is difficult, imaging; he described the 1 November consultation as a missed opportunity, though he accepted in cross‑examination that, given the prior paediatric opinion, not re‑referring could also be viewed as reasonable.
Professor Hamish Wallace (paediatric oncology) — even advanced Wilms’ tumour has high cure rates; if investigated and treated up to and including 6 November, survival was likely; the delays significantly contributed to J’s death.

On that evidence, the sheriff concluded that referral on 1 November both could reasonably have been taken and might realistically have avoided the death. The Inner House affirms that conclusion.

Precedents and Authorities Cited

Black v Scott Lithgow Ltd 1990 SC 322 (Lord President Hope) — FAIs are fact‑finding, not about criminal guilt or civil blame. The Inner House re‑endorses this as the bedrock distinction between FAIs and negligence litigation.
Hunter v Hanley 1955 SC 200 — the well‑known negligence test for clinical cases has no role in FAIs. The Court rejects attempts to smuggle that standard into section 26(2)(e).
Sutherland v Lord Advocate 2017 SLT 333 — correctly recognised that FAIs permit hindsight and that negligence concepts are inapposite. The Inner House expresses limited disagreement with a particular dictum (para [34]) only insofar as it has been read to bar a section 26(2)(e) finding where a clinician faced a range of reasonable options and selected one.
FAI Determinations under the 1976 Act:
- Lynsy Myles (27 Feb 2004): to the extent this suggested a Hunter v Hanley-type threshold is needed to make a precaution finding, it is unsound and inconsistent with both the 1976 and 2016 regimes.
- Marion Bellfield [2011] FAI 21 (Sheriff Braid): the Court accepts the ordinary meaning of “precaution” but rejects the implication that a precaution finding necessarily means the step ought to have been taken; under the 2016 Act, “could” not “ought” governs. Importantly, Sheriff Braid also recognised that it can be open to hold that other reasonable precautions existed even if what was done was reasonable—this aspect is expressly approved.
- Leo Lamont and others [2025] FAI 15 (Sheriff Principal): the Inner House disagrees with the proposition that where a range of reasonable clinical options exists, it is not appropriate to find that the unselected option was a precaution that “could reasonably have been taken.” That reading fails to give proper effect to “could” and “any.”
R (O) v Home Secretary [2023] AC 255 (Lord Hodge) — general principle of statutory interpretation: meaning in context by the words Parliament used. Here, the terms of section 26(2)(e) are plain and unambiguous.
Lord Cullen’s Review and the 2016 Act — the legislative history underscores the move to modernise FAIs, accommodate hindsight, and emphasise learning. Section 26(3) expressly disapplies foreseeability, aligning the statute with that policy.

The Court’s Legal Reasoning

The reasoning proceeds in four steps.

Textual clarity. The plain language of section 26(2)(e) controls. The sheriff must record “any precautions” that “could reasonably have been taken” and that “might realistically” have avoided the death. The statute does not condition such a finding on showing that the precaution “ought” to have been taken or that the course actually taken was unreasonable.
No negligence overlay. FAIs are not the forum for adjudicating blame or civil liability; importing Hunter v Hanley or “only if the chosen course was unreasonable” is legally erroneous and incompatible with the Act’s text and purpose.
Hindsight is legitimate; foreseeability is immaterial. Section 26(3) and the preventive aims of FAIs justify and require retrospective assessment unclouded by contemporaneous uncertainty. A sheriff’s task is not to replicate the clinician’s decision under pressure but to determine, with hindsight, what precautions were available and what their realistic effect might have been.
Clinical cases are not special. There is no doctrinal carve‑out that treats clinical judgment as immune from section 26(2)(e) findings where multiple reasonable options existed. So long as the evidence shows the alternative step could reasonably have been taken and might realistically have avoided death, the sheriff is obliged to record it.

Impact and Implications

This decision is a significant appellate clarification for FAIs across domains, with particular resonance in clinical settings.

For sheriffs: Determinations should identify all evidenced precautions satisfying section 26(2)(e), even if individuals took other reasonable courses. The “any/could/might realistically” triad should structure reasoning. The duty is to capture learning, not to single out fault.
For parties (Crown, public bodies, clinicians, regulators): Arguments that a precaution cannot be recorded because the decision‑maker acted reasonably are no longer tenable. The focus should be on (a) whether the alternative step was reasonably available in context, and (b) whether it might realistically have altered the outcome on the evidence.
For expert evidence: Two strands matter: feasibility/reasonableness of the step at the time, and realistic causal efficacy (not mere speculation). Experts should address both candidly. Concessions that “not doing X was also reasonable” do not preclude a section 26(2)(e) finding.
For clinical practice and guidance: The case validates recording alternative reasonable pathways—such as early referral or imaging—without implying negligence. Expect determinations to reflect lower thresholds for referral or investigation where symptoms persist, even where initial diagnoses were reasonable.
For recommendations (section 26(1)(b), (4)): A section 26(2)(e) finding does not automatically generate a recommendation. Forward‑looking prescriptions turn on future risk assessment, not simply on what, with hindsight, could have been done in the individual case.
On subsequent litigation: Section 26(6) remains crucial: FAI determinations are inadmissible and non‑foundable in other proceedings. While reputational and policy impacts may follow, the statutory firewall between FAI findings and civil/criminal liability is intact.
Judicial review of FAIs: This decision illustrates the narrow scope for successful challenges: legal error in interpreting the statute or irrationality, rather than disputes about weight of evidence, and adequacy of reasons assessed holistically.

Complex Concepts Simplified

FAI vs negligence lawsuit: An FAI asks “What happened, and what steps could have prevented it?” It does not decide who is legally at fault. A negligence action asks “Was someone in breach of a duty of care causing loss?” The standards, purposes, and consequences differ.
“Could” vs “ought”: “Could reasonably have been taken” means the step was a sensible option available on the facts; it does not mean that failure to take it was wrong. “Ought” or “should” would imply culpable omission; that is not the FAI test.
“Might realistically”: More than a remote possibility but less than probability. Evidence must support a practical, non‑speculative prospect the precaution would have avoided the death.
Hindsight: In FAIs, the sheriff is allowed to consider, with the benefit of what is now known, which steps could have made a difference. This is different from evaluating a clinician’s real‑time judgment for negligence.
Foreseeability: Under section 26(3), sheriffs do not ask whether the risk was foreseeable at the time. They look at whether the precaution could reasonably have been taken and might realistically have avoided the outcome.

Key Takeaways

Section 26(2)(e) is expansive: sheriffs must list any evidenced precaution that could reasonably have been taken and might realistically have prevented death, even if another reasonable option was taken.
FAIs are not negligence trials. Hunter v Hanley and “only if the chosen course was unreasonable” have no place in section 26(2)(e) analysis.
Clinical judgment cases are not exempt from section 26(2)(e) findings. Multiple reasonable options can coexist; the sheriff can record any that meet the statutory test.
Hindsight is legitimate; foreseeability is immaterial. The goal is learning to prevent future deaths, not apportioning blame.
In this case, the sheriff was right to find that referral to the PAU on 1 November 2019 was a reasonable precaution that might realistically have avoided J’s death; the Inner House upheld that finding and refused the reclaiming motion.

Conclusion

Dr Karen Duncan v The Lord Advocate is a landmark Inner House clarification of the reach and method of section 26(2)(e) determinations under the 2016 Act. By foregrounding the words Parliament chose—“any” and “could”—and by firmly decoupling FAIs from negligence adjudication, the Court restores the FAI’s preventive, public‑interest focus. The message is clear: sheriffs must record all evidenced precautions that were reasonably available and that might realistically have averted the death, irrespective of whether the person involved took another reasonable path.

For practitioners, coroners’ officers, and experts, the practical shift is consequential. Evidence and submissions should be framed to address feasibility and realistic efficacy, not to exclude alternatives on the basis that the actor’s chosen course was itself reasonable. For clinicians and health systems, the case will likely encourage a lower threshold for escalation or imaging where persistent red flags exist, while maintaining the statutory firewall that FAI determinations are not findings of fault. In short, the decision strengthens the learning function of FAIs and will shape determinations across the spectrum of sudden and unexplained deaths in Scotland.