Vikki Watt and Natalie Boal

Lady Haldane confirmed that a sheriff may identify a “reasonable precaution” that might have avoided a death even where the clinician’s own actions were themselves entirely reasonable.

In other words: a precautionary finding is not necessarily a criticism of the clinician.

The case

The FAI concerned the tragic death of a young child, JM, from complications of a Wilms’ tumour.

One finding under section 26(2)(e) of the Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 stated that GP Dr Karen Duncan could reasonably have referred JM back to the paediatric assessment unit at an earlier consultation.

Dr Duncan sought judicial review of this single finding, arguing that:

• she had acted reasonably at the time, and
• expert evidence did not criticise her.

She argued that if two reasonable clinical options existed, the sheriff could not lawfully identify one of them as the “reasonable precaution”. The court rejected that argument.

The key legal point: more than one reasonable option can exist

Lady Haldane held that the 2016 Act requires sheriffs to identify any precautions that could reasonably have been taken and might realistically have avoided the death. The statutory language is deliberately broad.

Crucially, she endorsed the principle that a precaution may be reasonable even if the clinician’s actual decision was also reasonable. This reflects the purpose of an FAI to learn lessons for the future, not to assign blame.

The court emphasised that negligence concepts, such as the Hunter v Hanley test, have no place in FAIs. A clinician may act entirely within accepted practice, yet a sheriff may still identify an alternative step that would also have been reasonable.

What does this mean for future FAIs?

• FAIs are not faultfinding exercises.
• A section 26(2)(e) finding does not imply negligence.
• Sheriffs are mandated to record any reasonable precaution that might have avoided the death, even if the clinician’s actions were reasonable and supported by expert evidence.

In this case, the expert expressly stated he was not critical of Dr Duncan. However, Lady Haldane noted that this did not prevent the sheriff from identifying referral as a reasonable precaution.

FAIs, by design, look backwards with hindsight. Sheriffs must consider what might have avoided the death, not what the clinician should have foreseen. This aligns with the preventative purpose of FAIs to support system learning, not to apportion blame.

The distinction is therefore vital for clinicians: a finding under s26(2)(e) is not a judgment on the quality of care provided.

Looking ahead

The decision in Duncan v Lord Advocate offers reassurance to clinicians by confirming that a precautionary finding in an FAI is not a criticism of their professional judgement. Sheriffs are required to record any reasonable precaution that might have avoided a death, even where the clinician’s own actions were themselves reasonable and supported by expert evidence. The purpose is preventative learning, not faultfinding.

At the same time, some observers have noted that this broader approach to identifying reasonable precautions may have unintended effects on clinical behaviour. There is a risk that clinicians, wary of hindsight scrutiny, could drift toward defensive medicine. That is: referring more readily, escalating earlier, or ordering additional tests to avoid future criticism. This is not the intention of the legislation, but it could well be a foreseeable behavioural response in a system where retrospective analysis is routine.

The challenge ahead is ensuring that FAIs continue to promote learning without distorting frontline decision-making. Clear communication that precautionary findings are non-fault-based, coupled with ongoing reassurance and guidance, will be essential to maintaining clinician confidence and supporting balanced, patient-centred care as FAIs under the 2016 Act continue to evolve.

Vikki Watt is a partner and Natalie Boal is a trainee at BTO LLP