JUDGMENT SUMMARIES

 

Summaries of opinions (judgments) provide a short explanation of judicial decisions in order to assist understanding and may be published in cases where there is wider public interest. They provide the main findings, but do not form part of the reasons for the decision.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.


Reclaiming motion (appeal): Dr Karen Duncan against the Lord Advocate

 

Oct 30, 2025

The First Division of the Inner House of the Court of Session has today issued its judgment in this case. The court’s judgment was delivered by the Lord President, Lord Pentland.


Background

The proceedings arose following the tragic death of a young child (referred to as ‘J’).  J was born on 26 March 2018. She died on 25 November 2019 at the Royal Hospital for Children, Glasgow. A post mortem examination recorded the cause of death as complications of left nephroblastoma, a very rare childhood cancer, and associated therapy.  

A Fatal Accident Inquiry concluded that when Dr Duncan assessed J on 1 November 2019 an opportunity was missed to complete an examination of J’s abdomen and thereafter to refer J to the Paediatric Assessment Unit at Raigmore Hospital, Inverness. 

The FAI found that had there been a full and thorough investigation of J’s symptoms it would have been likely to have led to referral to the PAU at Raigmore Hospital which in turn would have led to full diagnosis, immediate treatment and survival would have been likely.

The appeal

Dr Duncan submitted that the sheriff made a finding in the FAI that she was not entitled to make.

This was on the basis that:
  • Following approaches taken in other FAIs, where a doctor took one of two or more reasonable options it was inappropriate to find that one of the other available options would have been a reasonable precaution.  
  • The sheriff had failed to provide adequate reasoning for making the finding.  
The question before the Inner House was whether the first instance judge was right to hold that the sheriff was correct in finding that Dr Duncan could have referred J to the PAU for further assessment. This amounted to a reasonable precaution which could have been taken and might realistically have avoided J’s death.

Analysis and decision

In its judgment the Inner House held that the purpose of an FAI is to establish the circumstances of the death and consider what steps might be taken to prevent other deaths in similar circumstances. The proceedings are inquisitorial and are not concerned with establishing blame. They are, in short, intended to enable lessons for the future to be learned. 

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.

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 legislation to identify how matters could reasonably have been handled differently in ways which might realistically have avoided the death.

Dr Duncan accepted in her evidence that she would now adopt a lower threshold if she had to decide whether to seek specialist input to reconsider the diagnosis and investigate further. So, the finding now challenged can be said to be of possible assistance for the future. It may serve to draw to the attention of the medical profession (and others) the decisions made in the present case and may provide learning in the event that similar circumstances were to arise in the future.  

The evidence fully justified the sheriff finding that on 1 November 2019 at the Culloden Medical Practice, Inverness, Dr Duncan could have referred J to the PAU for further assessment and that this amounted to a reasonable precaution which could have been taken and that had it been taken it might realistically have avoided J’s death. She did not err in law.

The determination satisfied the public interest in the need for information concerning the circumstances of J’s death.

The court refused the appeal.

 

The full opinion, published on the Scottish Courts and Tribunals Service website, is the only authoritative document.