Introduction

The case of Karen Duncan v The Lord Advocate ([2024] CSOH 114) marks a significant development in the jurisprudence surrounding Fatal Accident Inquiries (FAIs) in Scotland. Karen Duncan, a General Practitioner (GP) based in Inverness, sought a judicial review of a determination made by a sheriff regarding the death of a young child, JM. The sheriff concluded that Dr. Duncan could have potentially prevented JM's death by referring her to the Paediatric Assessment Unit (PAU) following a consultation on November 1, 2019. This judgment delves into whether the sheriff acted within her legal authority under the Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, particularly focusing on the interpretation of "reasonable precautions."

Summary of the Judgment

The Court of Session deliberated on two primary grounds raised by Dr. Duncan:

• The sheriff misapplied the law in determining that a referral to the PAU was a reasonable precaution that could have avoided JM's death.
• The sheriff failed to adequately consider Dr. Duncan's submissions, which argued that such a finding was not permissible based on the evidence presented.

After thorough consideration, the Court upheld the sheriff's determination, rejecting Dr. Duncan's petition. The Court affirmed that under Section 26(2)(e) of the 2016 Act, the sheriff was mandated to make a finding if there was evidence supporting that a reasonable precaution could have been taken. The judgment clarified the scope of "reasonable precautions," especially in scenarios involving multiple reasonable courses of action.

Analysis

Precedents Cited

Dr. Duncan's legal team referenced several prior determinations to bolster their argument:

• Lynsy Myles Inquiry (2004): Emphasized that determinations should not impose a standard akin to negligence but should focus on whether reasonable precautions could have been taken.
• Marion Bellfield Inquiry (2011): Highlighted that in cases involving clinical judgment, multiple reasonable options may exist, and failing to prescribe a single course of action avoids imposing undue standards on medical professionals.
• Sutherland v The Lord Advocate (2017): Reinforced that FAIs are distinct from negligence litigation, focusing solely on factual findings rather than fault attribution.

These precedents collectively underscored the notion that FAIs should respect the clinical discretion of medical practitioners, especially when multiple reasonable options are available.

Legal Reasoning

Central to the Court's reasoning was the interpretation of Section 26(2)(e) of the 2016 Act, which mandates sheriffs to determine "any precautions which could reasonably have been taken" to prevent a death. The Court emphasized that:

• The statutory language does not preclude findings when multiple reasonable options exist.
• "Reasonable precautions" encompass actions that could have been reasonably undertaken, even if they reflect different clinical judgments.
• The sheriff's role is to identify potential precautions based on the evidence, not to enforce a singular standard of care.

The Court also addressed Dr. Duncan's reliance on prior cases (e.g., Hunter v Hanley) related to negligence, clarifying that such standards are irrelevant in the context of FAIs, which are non-adversarial factual inquiries.

Impact

This judgment significantly impacts how FAIs interpret and apply the concept of "reasonable precautions." It establishes that:

• Sheriffs are empowered to make findings even when multiple reasonable precautions are viable.
• FAIs should focus on factual determinations rather than imposing negligence standards.
• The decision provides clarity on the breadth of "reasonable precautions," ensuring that medical practitioners retain clinical discretion without unintended legal overreach.

Future FAIs will likely reference this judgment to support similar determinations where multiple reasonable options exist, reinforcing the balance between thorough inquiry and respect for professional judgment.

Complex Concepts Simplified

Conclusion

The Duncan v The Lord Advocate judgment serves as a pivotal reference in the realm of Fatal Accident Inquiries in Scotland. By elucidating the scope of "reasonable precautions," the Court reinforced the necessity for FAIs to consider all plausible preventive measures without imposing undue standards of care on medical professionals. This decision ensures that FAIs remain focused on factual findings and future preventive measures, rather than becoming arenas for fault attribution. As a result, medical practitioners can exercise their clinical judgment with the assurance that FAIs respect the complexities inherent in medical decision-making.