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Dr Karen Duncan v The Lord Advocate
Dr Karen Duncan v The Lord Advocate
P245/24
Thursday 9 October 2025
10:30 to 13:00 then 14:00 until conclusion
First Division
[1] This reclaiming motion (appeal) concerns the competence of a Sheriff’s findings in a Fatal Accident Inquiry Determination. Fatal Accident Inquiries are carried out pursuant to the Inquiries into Fatal Accident and Sudden Deaths etc (Scotland) Act 2016.
[2] The circumstances giving rise to the FAI were the tragic death of a child, JM as a result of a Wilms’ tumour. JM was born on 26 March 2018 and died on 25 November 2019. JM’s mother initially raised concern about JM’s lack of appetite in July 2019. There were a number of attendances at both the GP and the Paediatric Assessment Unit at Raigmore Hospital following this date. The Wilms’ tumour was not diagnosed until 15 November 2019. Had the tumour been diagnosed prior to 6 November 2019 it was likely that JM would have survived.
[3] There was a discretionary FAI as the death of JM gave rise to serious public concern. The purpose of the inquiry was to establish the circumstances of the death and to consider whether the death was a result of systemic failure.
The Sheriff’s finding at the FAI
[4] The reclaimer (appellant) in this case is a GP who reviewed JM on one occasion on 1 November 2019. She had been unable to carry out a full examination because of JM’s presentation. The reclaimer did not consider her findings to be reliable as a result. The reclaimer considered that the mass reported was related to the paediatric diagnosis of constipation and did not make any further referrals or seek further investigations.
[5] In the determination, the Sheriff made the following finding: “On 1 November 2019, at Culloden Surgery Inverness, Dr Karen Duncan the consulting GP could have referred [JM] to the PAU for further assessment.”
Judicial Review
[6] The reclaimer judicially reviewed this finding. The main issue of contention was the interpretation of section 26 of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 which details matters to be determined by the Sheriff. At section 26(2)(e), the Sheriff is required to set out any precautions which could reasonably have been taken and which, had they been taken, might realistically have resulted in the death, or any accident resulting in the death, being avoided.
[7] The Lord Ordinary considered that the finding was a reasonable precaution under section 26(2)(e) of the 2016 Act. Her Ladyship particularly noted the words “any precautions” within the provision, which are only caveated by the term “reasonable”. The statutory provision in the 2016 Act was distinct from the test deployed in medical negligence cases whereby the standard is that of a doctor exercising ordinary skill and care.
[8] A second contention was made by the reclaimer, that the determination did not provide adequate reasons, nor did the Sheriff engage with parties’ submissions. Her Ladyship considered that any judicial decision required to be comprehensible, but an FAI is not an adjudication between the parties. Her Ladyship considered that sufficient reasoning could be found within the Sheriff’s determination for the findings in fact that she was required to make to discharge her statutory duty.
The Reclaiming Motion (Appeal)
[9] Dr Karen Duncan appeals against the decision of the Lord Ordinary on three main grounds. First, that the Lord Ordinary failed to correctly interpret and apply the word “precautions” in the 2016 Act. It is argued that too wide a construction has been taken to the word, and that if all possible courses of action were listed, the purpose of an FAI would be defeated, as no lessons would be capable of being learned for future cases. Second, that the Lord Ordinary failed to correctly apply section 26(2)(e) of the 2016 Act. A precaution under the 2016 Act was more than something that should have been done differently at the time. Third, that the Lord Ordinary erred in holding that sufficient reasoning had been provided in the FAI determination. No explanation was provided for the departure from previous case law, and interpretations of “reasonable precaution.”
[10] In response, the Lord Advocate argues that a precaution is simply an action or measure taken against a possible danger or risk arising in the circumstances, and that section 26(2)(e) is sufficiently wide to cover referral of a child to hospital for specialist input. With regard to the overall application of section 26(2)(e) of the 2016 Act, the respondent submits that there was no error, the test is precautions which could have been taken and not those which ought to have been taken. Finally, with regard to the provision of reasons, the respondent notes that the FAI is not a dispute between the parties. The purpose is not to establish criminal nor civil liability. The respondent argues that the sheriff found that the referral was a precaution which could reasonably have been taken which might realistically have resulted in the death of JM being avoided. The respondent argues that this was a finding open to her on the basis of the evidence that was led, which was summarised in her determination.