Background to the Challenge
The decision was handed down on 3 January 2025 by Lady Haldane. The petitioner, a GP, sought the reduction of a finding made by the Sheriff in her determination over a Fatal Accident Inquiry ("FAI") into the death of a young child, known as J.
When the Sheriff issued her determination in the FAI, she made several findings as required under section 26 of the 2016 Act. Section 26(2)(e) requires the Sheriff to consider any precautions that could reasonably have been taken and which, had they been taken, might realistically have avoided J’s death. The particular finding challenged by the petitioner was: “On 1 November 2019 … Dr Karen Duncan, the consulting GP, could have referred J to the Paediatric Assessment Unit ("PAU") for further assessment.”
The petitioner sought the reduction of that part of the determination on the basis that, firstly, the Sheriff misdirected herself in law, arguing that where there are two reasonable courses of action, a finding in relation to reasonable precautions should not be made. Secondly, the petitioner contended that the Sheriff failed to engage with the submissions made on her behalf, arguing that such a finding was not open to her and that she failed to provide a reasoned analysis of those submissions.
Decision of Lady Haldane
In delivering her decision, Lady Haldane recognised the language of the 2016 Act. The phrase "any precautions" suggests that a Sheriff is entitled to make a finding under section 26(2)(e) if more than one reasonable course of action was available. She accepted that where there was evidence before the Sheriff indicating that a referral to the PAU was a precaution which could reasonably have been taken and might have avoided J's death, the Sheriff was entitled and indeed mandated, to include a finding to that effect in her determination. Consequently, Lady Haldane found there to have been no error of law and the first ground of challenge failed.
Regarding the petitioner’s second ground of challenge, Lady Haldane acknowledged that there is no standalone obligation under the 2016 Act for a fact finder to accept or refute the competing contentions of the parties in an overly analytical fashion. She found that the Sheriff set out her findings in relation to the evidence, recorded in summary form the competing submissions of the parties, and determined that it was open to her to make a finding under section 26(2)(e), based on the evidence she accepted. Therefore, the reasons were adequate, but the second challenge also failed.
Comments on the Decision
This decision now provides binding guidance for Sheriffs on the proper approach to findings in FAIs and affirms that section 26(2)(e) applies to any reasonable precaution which may be taken, and which might realistically have avoided the fatality, regardless of the number of reasonable precautions available. This approach appears to support the general purpose of an inquiry, which is to establish the circumstances of the death and to consider what steps might be taken to prevent other deaths in similar circumstances. Given the overriding principle that an inquiry is not convened to establish blame, it seems appropriate that in considering the prevention of future deaths, a Sheriff should consider all reasonable precautions. This approach allows for the greatest opportunity for learning from a tragic event.
