Friday, October 31st, 2025
Dr Karen Duncan v The Lord Advocate [2025] CSIH 27
The Inner House of the Court of Session has issued its Opinion on how the legislation which governs fatal accident inquiries falls to be interpreted and applied. Compass Chambers’ Gavin Anderson KC and Ranald Macpherson appeared for the Lord Advocate.
Following the tragic death of a young child, a fatal accident inquiry was held which considered clinical decisions surrounding her care. The sheriff determined that there was a precaution which a general practitioner could reasonably have taken and which, had it been taken, might realistically have resulted in the death being avoided. This was so notwithstanding that what the general practitioner had done was also a reasonable course of action.
The general practitioner challenged the finding by way of judicial review. In refusing the application, the Lord Ordinary opined that the sheriff had not erred and that the proper interpretation of section 26 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 permitted the finding to be made: [2024] CSOH 114. The general practitioner reclaimed.
The reclaiming motion (appeal) was heard by the First Division, in the first case to come before it on the interpretation of the 2016 Act. In refusing the reclaiming motion, the court set out the proper meaning of section 26(2)(e), taking account of the underlying policy of the 2016 Act. The court emphasised that under the 2016 Act, sheriffs enjoy a wide power to identify any precautions which could reasonably have been taken which might have avoided a death.
The Opinion, which is essential reading for all who conduct fatal accident inquiry work, can be found here.
