Inverness GP fails in challenge of sheriff’s FAI determination that death of infant may have been prevented

About this case:

• Citation:
  [2024] CSOH 114
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Haldane

Karen Duncan argued that the sheriff had misdirected herself in law in making that finding and failed to engage with submissions made on the petitioner’s behalf that such a finding was not open to her. The sheriff did not enter proceedings, with the Lord Advocate entering proceedings to represent the public interest.

The petition was heard by Lady Haldane in the Outer House of the Court of Session, with Reid KC appearing for the petitioner and MacPherson, advocate, for the lord advocate as second respondent.

Clinical judgment

On 21 December 2023 a sheriff who presided over a fatal accident inquiry into the death of a young child, JM, issued her determination. JM, born in March 2018, died on 25 November 2019 from complications of left nephroblastoma, otherwise known as Wilms’ tumour.

On 20 October 2019 JM was referred to the Paediatric Assessment Unit at Raigmore Hospital following a call to NHS 24 and a subsequent review by the NHS Highland Out of Hours service. At that time, she was diagnosed with constipation, however on 1 November 2019 she was reviewed by the petitioner within her GP practice after experiencing continuing symptoms. While the petitioner was not able to perform as extensive an examination as she would have liked, she assumed that the mass reported by JM’s mother was related to the previous diagnosis of constipation.

Among the sheriff’s findings was a single finding that it would have been a reasonable precaution for the petitioner to refer J to the Paediatric Assessment Unit following the consultation on 1 November 2019. Had she done so, the sheriff went on to say, it might have resulted in J’s death being avoided.

It was not a matter of dispute that the tumour from which JM suffered had a high survival rate up to a relatively late stage, and had JM been diagnosed on or before 6 November 2019, on which date she was prescribed more anti-constipation medicine by a colleague of the petitioner, she probably would have survived.

For the petitioner it was submitted that the petitioner had exercised clinical judgment, and where two courses of action were reasonable it was not open for a sheriff to find that one course of action should be taken over the other. The respondent submitted that the plain language of the Act meant that if a precaution could have been taken, which was reasonable, then the relevant section directed the sheriff to make a finding.

No standalone obligation

In her decision, Lady Haldane said of the approach required by the 2016 Act: “The phrase ‘any precautions’ is one which ultimately found its way into the 2016 Act. It carries a wider connotation than the language used in the predecessor legislation, albeit the differences are perhaps marginal. However the distinction drawn between the purpose of an inquiry in contrast to that of civil litigation remains explicit.”

She continued: “I accept the submission for the respondent that where there was evidence before the sheriff, which she accepted, to the effect that a referral to the Paediatric Assessment Unit was a precaution which could reasonably have been taken which might have avoided the death of JM, she was entitled, indeed mandated, to include a finding to that effect in her determination. Therefore I can discern no error of law in the approach of the sheriff to this question.”

Addressing the level of detail in the sheriff’s findings, Lady Haldane said: “Mr Reid is correct to say that the sheriff has not met the parties head on when comes to analysing in detail their submissions. No doubt she could have put the matter beyond peradventure by stating that she rejected the legal analysis put forward by the petitioner. However there is no standalone obligation in terms of the statute, or as a matter of generality, for a fact finder to accept or rebut in an overly analytical fashion, the competing contentions of the parties.”

She concluded: “She has recorded in summary form the competing submissions of the parties; and she has determined that it was open to her to make a finding in terms of section 26(2)(e) on the basis of the evidence which she accepted. This is not a situation as was discussed in Smith v the Lord Advocate (1995), where the sheriff made findings unsupported by the evidence. The reasons are adequate, as that term is understood in the relevant authorities.”

The petition was therefore refused on both grounds of challenge.