Anonymized Summary of Judicial Opinion — Inner House, Court of Session

Factual and Procedural Background

This is an anonymized summary of an appeal (reclaiming motion) arising from a Fatal Accident Inquiry ("FAI") into the death of a young child ("Child"). The Appellant (a general medical practitioner) sought judicial review and reduction of one finding in a sheriff's determination issued after the FAI. The single challenged finding was that on 1 November 2019 at the general practice ("The Practice") the Appellant could reasonably have taken a precaution — namely, referring Child to the Paediatric Assessment Unit ("PAU") at Hospital A for further assessment — which might realistically have resulted in the death being avoided.

The Appellant convened the Respondent (the public prosecutor) to represent the public interest. Following a substantive hearing in the court below, the Lord Ordinary refused the petition for judicial review. The Appellant appealed to the Inner House on the ground of error in law by the Lord Ordinary and the sheriff in relation to the scope and meaning of section 26(2)(e) of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 ("the 2016 Act").

Summary of the key factual chronology (as found by the sheriff and not disputed): Child was born in March 2018 and died in November 2019 at Hospital B. Between July and November 2019 Child presented repeatedly with weight loss, reduced appetite, abdominal symptoms and a parent-reported lump. On multiple occasions Child was seen by primary care clinicians at The Practice and by paediatric services at Hospital A. On 3 October and again on several dates in October and early November clinicians diagnosed constipation and managed conservatively. On 1 November 2019 the Appellant saw Child at an emergency appointment, carried out a limited examination (hampered by the child's distress), and, in light of a recent paediatric assessment, did not refer to PAU or arrange further investigation. On 15 November 2019 an ultrasound at Hospital A revealed a renal tumour (Wilms' tumour); Child was transferred to Hospital B, underwent emergency treatment, but died on 25 November 2019. Expert evidence at the FAI included a general practice expert ("Doctor Wallace") and a paediatric oncology expert ("Professor Wallace").

Legal Issues Presented

1. How should section 26(2)(e) of the 2016 Act be interpreted — in particular, whether a sheriff may find that a precaution "could reasonably have been taken" even where a clinician chose a different reasonable course of action?
2. Whether the sheriff was entitled, as a matter of law, to find that the Appellant could have referred Child to the PAU on 1 November 2019 and that such a referral was a reasonable precaution which might realistically have avoided the death.
3. Whether the sheriff's written reasons for making the challenged finding were adequate to satisfy the requirements of a determination under the 2016 Act.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that where a clinician had two or more reasonable clinical options, it was inappropriate and amounted to an error in law for a sheriff to identify one of the alternatives not chosen as a "reasonable precaution" under section 26(2)(e). Reliance was placed on prior FAI determinations and cases decided under the 1976 Act (notably Marion Bellfield) to argue that a finding of a reasonable precaution should not be made where the clinician's chosen course was itself a reasonable option.
• The Appellant argued that expert evidence (Doctor Wallace) accepted that it was reasonable for the Appellant not to re-refer Child on 1 November, and that such evidence precluded a finding that referral could reasonably have been taken.
• The Appellant contended that the sheriff's reasoning was inadequate and failed to explain why the challenged finding was reached or why the Appellant's submissions were rejected.

Respondent's Arguments

• The Respondent submitted that the plain words of section 26(2)(e) require the sheriff to identify any precautions which could reasonably have been taken and which might realistically have avoided the death. The court's role is to apply the statutory words objectively and with the benefit of hindsight; foreseeability and negligence principles are not relevant to the statutory test.
• The Respondent argued that the statutory term is "could reasonably have been taken" (not "ought" to have been taken) and that it was therefore permissible to identify as a precaution an option that a clinician might reasonably have adopted even if it was also reasonable not to adopt it.
• The Respondent defended the sufficiency of the sheriff's reasoning, submitting that the determination, read as a whole, made clear the factual and expert basis for the challenged finding and satisfied the public interest in explanation and learning.

Court Below (Lord Ordinary) — Summary of Position

• The Lord Ordinary had held that the language of section 26(2)(e) referred to "any" precautions which could reasonably have been taken and that nothing in the statutory language suggested a precaution could not be found merely because an alternative reasonable course had been taken. The Lord Ordinary rejected importing the negligence test (Hunter v Hanley) into the FAI context.

Table of Precedents Cited

Court's Reasoning and Analysis

The Inner House reviewed statutory language, the purpose of FAIs under the 2016 Act and the factual and expert evidence before the sheriff. The court's analysis proceeded through the following key steps (stated in the opinion and summarized here without addition):

1. Statutory Text and Purpose: The court emphasised that section 26(2)(e) requires the sheriff, as soon as practicable after evidence and submissions conclude, to make findings including "any precautions which (i) could reasonably have been taken, and (ii) had they been taken, might realistically have resulted in the death ... being avoided." The words chosen by Parliament were found to be plain and unambiguous.
2. Focus on "Could" Not "Ought": The court identified the key word "could" and held that the provision requires identification of precautions that could reasonably have been taken, not a finding that they ought or should have been taken. This is a lower threshold than that applied in civil negligence inquiries.
3. Inquisitorial and Hindsight Context: The court reiterated the statutory purpose of FAIs as inquisitorial and aimed at learning lessons to prevent future deaths (section 1(3) of the 2016 Act). Hindsight is relevant in the determination exercise; foreseeability as applied at the time by clinicians is not determinative for making precaution findings.
4. Rejection of Importing Negligence Test: The court held that it would be erroneous to import the Hunter v Hanley negligence standard into section 26(2)(e). The FAI's task is not to determine civil negligence; a finding that a precaution could have been taken does not equate to a finding that a clinician acted unreasonably.
5. Consideration of Prior Authority: The court considered judicial determinations under the now-replaced 1976 Act and later FAIs. It accepted useful definitions (for example, the ordinary meaning of "precaution") but rejected approaches that required establishing negligence or that would prevent identification of unchosen but reasonable precautions. The court specifically rejected the narrower interpretation in Leo Lamont and similar dicta which would constrain section 26(2)(e) unduly.
6. Application to the Facts: The Inner House concluded that the sheriff had ample factual and expert evidence (including expert opinions that referral to PAU on 1 November was a reasonable course and that earlier diagnosis would likely have led to cure) to find that the Appellant could have referred Child to PAU and that such a referral might realistically have avoided the death. The sheriff therefore had no discretion to refrain from making such a finding once the statutory criteria were met.
7. Adequacy of Reasons: The court evaluated the sufficiency of the sheriff's reasoning and held that, read fairly as a whole, the determination provided intelligible and adequate reasons for the challenged finding and satisfied the public interest in explanation and learning.

Holding and Implications

Core Ruling: The reclaiming motion (appeal) was refused. The Inner House adhered to the interlocutor of the Lord Ordinary dated 3 January 2025 and held that the sheriff did not err in law in making the challenged finding under section 26(2)(e) of the 2016 Act.

Implications and Consequences:

• Direct effect: The specific finding in the sheriff's determination that the Appellant could have referred Child to the PAU on 1 November 2019 (and that such a referral might realistically have avoided the death) remains in force.
• Statutory interpretation: The court clarified that section 26(2)(e) requires identification of any precautions that could reasonably have been taken and might realistically have avoided the death; the threshold is the ability to have taken the precaution, not a determination that it ought to have been taken. The negligence test is not part of this statutory inquiry.
• Practical outcome: The decision reinforces that FAIs, using hindsight and an inquisitorial approach, may identify reasonable alternative measures that were not taken even where those measures would have been only one of several reasonable clinical options; such findings serve the public interest in learning and prevention.
• Broader precedent: The court rejected narrower readings of the 2016 Act (including an interpretation that would restrict findings where reasonable alternatives existed) and reaffirmed the statutory scheme's wide scope to identify precautions for learning purposes. The opinion emphasized that the duty to identify such precautions is mandatory if the statutory criteria are met.

Note: All personal names and identifying particulars in this summary have been replaced with consistent generic placeholders to preserve anonymity and follow the constraints of the summary task. The content is drawn solely from the provided opinion and does not add or infer facts beyond that source.