Petition of Karen Duncan for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioner, a General Practitioner practicing in The City, was involved in a Fatal Accident Inquiry (FAI) concerning the death of a young child ("J"). The inquiry was presided over by the first Respondent, a sheriff, who issued a determination on 21 December 2023. The second Respondent, the Lord Advocate, represented the public interest and participated in the proceedings. The determination included a finding that the Petitioner could have taken a reasonable precaution on 1 November 2019 by referring the child to the Paediatric Assessment Unit (PAU), which might have avoided the child's death from complications of Wilms' tumour. The Petitioner seeks judicial review to reduce that specific finding on grounds of legal error and failure to provide adequate reasoning.

JM, the child, was born in March 2018 and died in November 2019. Prior to death, JM was seen by various healthcare providers, including the Petitioner, who conducted a limited examination during an emergency appointment on 1 November 2019 but did not refer JM to specialist care. Subsequent events led to JM's diagnosis with Wilms' tumour and death despite treatment. The FAI was held over four days in 2023, partly in person and partly via video platform, resulting in several findings under the Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, including the contested finding relating to the Petitioner’s conduct.

Legal Issues Presented

1. Whether the sheriff was legally entitled to make a finding under section 26(2)(e) of the 2016 Act that the Petitioner could have reasonably taken a precaution by referring JM to the PAU on 1 November 2019, which might realistically have avoided JM's death.
2. Whether the sheriff failed to adequately engage with the Petitioner’s submissions challenging that finding, thereby failing to provide sufficient reasons in the determination.

Arguments of the Parties

Petitioner’s Arguments

• The Petitioner contended that the sheriff erred in law by making a finding that was not open on the evidence because there were two reasonable courses of action: to refer JM back to secondary care or to continue with the existing treatment. This was an exercise of clinical judgment, and it was not open to the sheriff to find that one reasonable option was a "reasonable precaution" over another.
• Reliance was placed on previous Fatal Accident Inquiry determinations (Myles and Bellfield) and the supervisory jurisdiction of the court, emphasizing that such findings should not be made absent clear evidence of unreasonableness or fault.
• The Petitioner highlighted expert evidence from Dr Wallace, who stated he was not critical of the Petitioner’s decision and that it was reasonable not to refer JM back given the recent paediatric assessment, a position unchallenged during the inquiry.
• The Petitioner argued the Crown’s submissions were unbalanced, failing to fairly present Dr Wallace’s evidence and overstating the reasonableness of referral.
• The Petitioner submitted that the sheriff failed to provide adequate reasons for rejecting these submissions, leaving the informed reader and court in substantial doubt regarding the basis of the finding.

Respondent’s Arguments

• The Respondent argued that the language of section 26(2)(e) of the 2016 Act mandated the sheriff to make findings on any precaution which could reasonably have been taken and might realistically have avoided death, emphasizing the words "any" and "could".
• The Respondent accepted that the 2016 Act differed from its predecessor and that foreseeability and fault are irrelevant to the inquiry’s purpose.
• It was submitted that the finding did not imply criticism or negligence but was a fact-finding exercise aimed at learning lessons to prevent future deaths.
• The Respondent contended that the Petitioner’s reliance on previous determinations and the Hunter v Hanley test was misplaced, as these were superseded by the 2016 Act and the Sutherland decision.
• The Respondent maintained that even if multiple reasonable options existed, the sheriff was obliged to make findings on reasonable precautions, and the evidence supported the finding that referral was such a precaution.
• Regarding reasons, the Respondent acknowledged the sheriff did not engage in detailed analysis of submissions but argued that the determination was sufficiently intelligible and adequate for its statutory purpose.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the agreed principles that the Hunter v Hanley negligence test does not apply to FAIs, that hindsight is relevant for learning purposes, and that foreseeability is irrelevant under the 2016 Act. The core legal question was whether the sheriff was entitled or mandated to find that a reasonable precaution existed where multiple reasonable options were available, specifically whether referring JM to the PAU was such a precaution.

The court analysed the statutory language of section 26(2)(e), emphasizing the words "any precautions which could reasonably have been taken," interpreting this to require findings on any reasonable precaution supported by evidence, without implying fault or criticism. The court distinguished the statutory test from clinical negligence standards and rejected the Petitioner’s submission that a finding could only be made if the medical practitioner acted unreasonably.

In support, the court adopted the analysis from the Bellfield determination, which held that a precaution need not be the only reasonable option and that the inquiry’s purpose is fact-finding and future learning rather than fault attribution. The court further held that the expert evidence of Dr Wallace, who acknowledged the reasonableness of both referring and not referring JM, did not preclude a finding that referral was a reasonable precaution.

The court found that the sheriff had accepted the evidence that referral was a reasonable precaution and was thus mandated to make the finding. It rejected the Petitioner’s argument that the sheriff erred in law in making this finding.

Regarding adequacy of reasons, the court recognized that the sheriff did not provide detailed engagement with the parties’ submissions but concluded that the reasons were intelligible and adequate for the statutory fact-finding purpose. The court noted that the determination summarized the evidence and submissions sufficiently to avoid real and substantial doubt about the basis of the findings.

Holding and Implications

The court REFUSED THE PETITION, thereby upholding the sheriff’s determination in full, including the finding that the Petitioner could have reasonably taken the precaution of referring JM to the Paediatric Assessment Unit, which might realistically have avoided JM’s death.

The direct effect of this decision is that the contested finding remains legally effective and binding in the context of the Fatal Accident Inquiry. The court did not establish any new precedent beyond affirming the statutory interpretation of the 2016 Act and the approach to findings of reasonable precautions in medical FAIs. The decision confirms that multiple reasonable courses of action do not preclude making a finding of reasonable precaution under section 26(2)(e), and that the inquiry’s fact-finding role is distinct from fault-finding or negligence assessment.