The Court of Session can review the findings a sheriff makes under section 6(1) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (“the Act”). If satisfied that the sheriff fell into error (e.g, by misdirecting himself in law, or by taking account of irrelevant matters/ failing to take account of relevant matters), the Court of Session can reduce, or set aside, those findings vitiated by that error. Such a judicial review is uncommon, but a consultant cardiac surgeon, Mr Fraser Sutherland, who was the subject of a finding in an FAI, recently did just that – and judge Lord Armstrong issued his decision last week.
Robert Baird was admitted to Monklands Hospital in Airdrie complaining of severe chest pain on 26 March 2010. A CT scan was undertaken and it was believed Mr Baird was suffering from an aortic dissection. A request was made for Mr Baird to be transferred to the Golden Jubilee Hospital in Clydebank for surgery. After transfer, further tests were carried out by cardiologists who did not see an aortic dissection and instead diagnosed Mr Baird with pericarditis. Upon receiving word of this diagnosis, Mr Sutherland, the on-call cardiac surgeon and petitioner in the subsequent judicial review, arranged for Mr Baird to be returned to Monklands. No surgery took place. Mr Baird died on 27 march at 12 noon, and following post mortem examination the cause of death was recorded as hemopericardium due to thoracic aortic dissection.
At a fatal accident inquiry heard many years later at Airdrie Sheriff Court, Sheriff Pieri made a finding under section 6(1)(c) of the Act in the following terms:
a reasonable precaution whereby the death…might have been avoided was for Mr Fraser Sutherland…to have sought experienced consultant radiology opinion on the CT scan performed at Monklands General Hospital.
Mr Sutherland challenged that finding on two grounds: (1) that it arose from a misdirection in law; (2) that the sheriff had failed to take into account matters that were in evidence before him, and which he ought to have taken into account. In relation to the first ground, Mr Sutherland argued that the sheriff had misdirected himself in his consideration of hindsight, reasonable foreseeability, and what is meant by a “reasonable precaution” in medical FAIs. In relation to the second ground, Mr Sutherland argued that the evidence before the FAI was insufficient to justify the finding that the precaution identified by the sheriff was available or practicable.
Mr Sutherland was ultimately unsuccessful on both grounds, but nonetheless Lord Armstrong’s judgment is an important decision for two principal reasons. First, it reminds us of the task to be undertaken by sheriffs when hearing FAIs (and gives Court of Session authority to many of the oft-quoted interpretations of the Act which until now were peppered across a large number of FAI determinations issued since 1976). Second, it gives guidance to sheriffs considering making of a “reasonable precaution” finding, with a particular focus on “medical FAIs”.
- The FAI process necessarily involves use of the benefit of hindsight, without reference to the state of knowledge at the time of death – were it otherwise, the utility of the enquiry into the facts, necessarily after the event(s), would be undermined;
- In determining whether a death might have been avoided by a reasonable precaution, the test has been described by sheriffs as that of a “lively possibility” – this description is entirely apt, and certainty or probability are not relevant considerations;
- Determining that a death might have been avoided by the application of a reasonable precaution carries no implication that the failure to take the precaution was negligent or unreasonable, and whether or not a precaution was reasonable does not depend on foreseeability of risks, or whether at the time the precaution could or should have been recognised;
- This approach applies to all FAIs, including “medical FAIs” – the rationale behind the decision in Hunter v Hanley has no application to a “reasonable precaution” finding;
- Whether the death might have been avoided is a matter to be determined on a consideration, with the benefit of hindsight, of the whole facts which emerge from the inquiry, including the according of due weigh to relevant expert medical opinion; and
- In a situation (1) involving the exercise of clinical judgement where a doctor was presented with two or more options and could not know which was in the patient’s best interests, and (2) where that optimal course was not taken and the patient died, it would not be appropriate to determine that the selection of another of the available options would have been a reasonable precaution which ought to have been taken – to do so would distort the ordinary meaning of “reasonable precaution” and would in any event be of no assistance for the future.
Lord Armstrong’s observations at point 6, above are of particular note. They replicate the observations of Sheriff Braid in his determination following the FAI into the death of Marion Bellfield (2011). At paragraph 41, Sheriff Braid went on to consider that:
A fatal accident inquiry cannot prescribe how doctors or nurses should exercise their judgment.
With Sheriff Braid’s approach now endorsed by the Court of Session, it will be interesting to see whether attempts are made by parties in FAIs to apply the same logic to decisions carried out by other professionals. There doesn’t seem to be an obvious reason why it ought not to apply in FAIs involving the judgements of, e.g., police officers, the fire and rescue service or prison officers.