Inner House refuses doctor’s challenge to FAI finding she ought to have referred infant to hospital

About this case:

• Citation:
  [2025] CSIH 27
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Pentland

Dr Karen Duncan brought judicial review proceedings seeking reduction of a single finding that a reasonable precaution she could have taken that might have resulted in the child’s death being avoided was referral to the Paediatric Assessment Unit at Raigmore Hospital. The lord ordinary refused her petition at first instance on the basis that the sheriff was required by statute to make the finding she did.

The appeal was heard by the Lord President, Lord Pentland, with Lady Wise and Lord Clark. Reid KC appeared for the petitioner and reclaimer and G Anderson KC and R Macpherson, advocate, appeared for the Lord Advocate as respondent.

Emptied of meaning

The deceased child, J, was born in March 2018 and died on 25 November 2019 at the Royal Hospital for Children in Glasgow. J’s health began to deteriorate beginning in July 2019 with a loss of appetite, and the sheriff noted that during the period between 3 October and 6 November 2019 J’s mother, Mrs M, had consulted health professionals on five occasions with consistent complaints relating to J’s symptoms.

On 15 November 2019, J collapsed at home after vomiting. After initially being taken to Raigmore, she was taken by air ambulance to Glasgow for further treatment. There, she was diagnosed as suffering from a Wilms’ tumour, a rare childhood cancer with fewer than 50 cases per year in the UK with a cure rate of 85 per cent even at advanced stages.
At the inquiry, expert evidence was given by Dr Norman Wallace, an expert in general medical practice, and Professor Hamish Wallace, an expert in paediatric oncology. Dr Wallace’s report was critical of a consultation with the reclaimer on 1 July 2019, which he considered amounted to a missed opportunity to diagnose the patient correctly. The history of the child’s mother thinking that she could feel a mass on the left side of J’s tummy should have mandated an urgent referral to the PAU.

The sheriff found that, based on J’s medical history and the expert evidence, a referral to the PAU was a reasonable precaution. The reclaimer sought reduction on the basis that, where a doctor took one of two or more reasonable options, it was inappropriate to find one of the others would have been a reasonable precaution. The lord ordinary held that the language of the statutory framework referred to “any” precautions and thus the sheriff was entitled, indeed mandated, to make such a finding.

For the reclaimer it was submitted that the lord ordinary’s approach emptied the word “precautions” of any meaning. In the FAI into the death of Marion Bellfield (2011) Sheriff Braid (as he then was) was correct to hold that where two equally sound clinical options were available, it was wrong to say the option not selected was a reasonable precaution. The respondent submitted that such an interpretation was inconsistent with the terms of the Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

No discretion not to

Lord Pentland, delivering the opinion of the court, said of the relevant provisions: “If the evidence presented at the FAI shows that a precaution could reasonably have been taken and that had it been taken it might realistically have resulted in the death or any accident resulting in the death being avoided then the sheriff must set out such a precaution in his or her determination. The duty to do so is a mandatory one created by the statutory provision. The sheriff has no discretion not to make such a finding where the evidence satisfies the statutory criteria.”

He added: “It is notable that the provision does not say that a precaution should be set out only if the sheriff considers that it ought to have been taken or that it should have been taken. The threshold for making a finding under section 26(2)(e) has been deliberately placed at a lower level than would be the case if the provision required the sheriff to be satisfied that a precaution ought to have been taken or that it should have been taken. It is sufficient if the sheriff is satisfied that the precaution could have been taken.”
Considering the analysis of Sheriff Braid in Bellfield, Lord Pentland said: “In short, the fact that one particular reasonable precaution was taken by a doctor (or anyone else) does not mean that a different precaution may not also have been one that could reasonably have been taken. This approach is entirely consistent with the policy of the 2016 Act: to identify how matters could reasonably have been handled differently in ways which might realistically have avoided the death.”

He concluded: “Reading the determination fairly and as a whole, the informed reader would not have been left in any doubt as to the basis for making the challenged finding. The sheriff’s reasons for making the finding were unquestionably adequate and intelligible. There was no need for her to rehearse parties’ submissions on questions of statutory interpretation or to engage in an elaborate exercise of legal analysis. There was ample factual and opinion evidence to support the challenged finding. The sheriff set out the relevant evidence fully in her determination.”

The reclaiming motion was therefore refused.