Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 32

 

P233/16

OPINION OF LORD ARMSTRONG

In the Petition of

FRASER SUTHERLAND FRCS

Petitioner

for

JUDICIAL REVIEW OF THE DETERMINATION UNDER SECTION 6(1)(c) OF THE FATAL ACCIDENT AND SUDDEN DEATHS INQUIRY (SCOTLAND) ACT 1976, MADE BY THE SHERIFF AT AIRDRIE ON 9 DECEMBER 2015 IN THE FATAL ACCIDENT INQUIRY INTO THE DEATH OF ROBERT YOUNG BAIRD

Petitioner: Macpherson (Sol Adv);  Clyde & Co

Respondent:  Ross, QC;  Scottish Government Legal Directorate

28 February 2017

Introduction

[1]        The petitioner is a consultant cardiac surgeon who was on duty at the Golden Jubilee National Hospital, Clydebank, on 26 March 2010.  The respondent is the Lord Advocate, as representing the Scottish Government.

[2]        On the morning of Friday 26 March 2010, Robert Young Baird was admitted to Monklands General Hospital, Airdrie, complaining of severe chest pain.  Investigations undertaken included a CT scan which was reported upon by Dr Alistair McGhee, consultant radiologist.  His report indicated, inter alia, findings consistent with haematoma, extending along the pulmonary arteries, and a possible small dissection flap arising from the posterior surface of the aortic root at the level of the aortic flap.  Following discussion, it was believed that Mr Baird was suffering from an aortic dissection, and a request was made that he be transferred for cardiac surgery to the Golden Jubilee National Hospital.  Cardiac surgery was not carried out at Monklands General Hospital.  The Golden Jubilee National Hospital was the local centre for cardio-thoracic surgery in the west of Scotland.

[3]        The petitioner was the consultant cardiac surgeon on duty at the Golden Jubilee National Hospital.  He considered that there was uncertainty over the diagnosis, and asked that a further investigation in the form of a transoesophageal echocardiogram (“TOE”) be carried out at Monklands General Hospital.  Given the importance of dealing with aortic dissection quickly, doctors involved in Mr Baird’s care at Monklands General Hospital were of the view that it would be preferable for him to be transferred immediately to the Golden Jubilee National Hospital and for the TOE to be carried out there.  That was duly arranged.

[4]        When Mr Baird arrived at the Golden Jubilee National Hospital, the petitioner arranged for the TOE to be carried out by a consultant cardiologist and a specialist registrar in cardiology.  Before carrying out the TOE, they reviewed the CT scan taken at Monklands General Hospital.  Their notes of that review stated inter alia “no convincing dissection seen”.  No aortic dissection was seen during the TOE, and the consultant cardiologist arrived at the diagnosis of pericarditis.  On being told of this diagnosis, the petitioner decided that Mr Baird did not require surgery and steps were taken to return him to Monklands General Hospital.  Mr Baird was returned to Monklands General Hospital at 2am on Saturday 27 March.  At 12 noon, he suffered a cardiac arrest and died.  A post mortem examination discovered no evidence of primary pericarditis, and that the cause of death was hemopericardium due to thoracic aortic dissection. 

[5]        In due course a fatal accident inquiry (“FAI”) was held before the sheriff, at Airdrie.  The sheriff issued his determination on 9 December 2015.  He made inter alia a finding under section 6(1)(c) of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 in the following terms:

“a reasonable precaution whereby the death and the accident resulting in the death might have been avoided was for Mr Fraser Sutherland, consultant cardiac surgeon at the Golden Jubilee National Hospital in Clydebank to have sought experienced consultant radiology opinion on the CT scan performed at Monklands General Hospital.”

 

[6]        The petitioner seeks reduction of the sheriff’s determination, but to the extent only of the finding under section 6(1)(c).  He challenges that aspect of the sheriff’s determination on two grounds: 

(1)        that it arose from a misdirection in law; and

(2)        that he failed to take into account matters that were in evidence before him, and which he ought to have taken into account.

[7]        No challenge was made to the sheriff’s finding as to the cause of the death.  It was accepted that Mr Baird had been suffering from aortic dissection, and that the wrong diagnosis had been made.

[8]        In the context of the challenge made, it was recognised that an FAI is not a fault finding exercise, and that section 6 of the 1976 Act conferred no power to make a determination of fault, or to apportion blame between any persons who may have contributed to the death (Black v Scott Lithgow Ltd 1990 SC 322, 327). 

[9]        A challenge to a sheriff’s determination by way of judicial review, seeking reduction of only a particular determination made under section 6(1), is competent (Lothian Regional Council v Lord Advocate 1993 SLT 1132, 1133-4).  Where aspects of a sheriff’s determination are not supported by the evidence, they may be reduced (Smith v Lord Advocate 1995 SLT 379).

 

The Grounds of Challenge
(1)        Error in Law

(i)         Submissions for the Petitioner

[10]      At the outset, it was relevant to note the very particular content of the sheriff’s determination, made under section 6(1)(c): 

(a)        it related specifically to the petitioner, who was named in terms;

(b)        the fact that the stated precaution involved the concept of seeking something, meant that in order for its content to be given meaning, there was a requirement for consideration of what might have been found; and

(c)        the term “experienced” in the context of radiological opinion did not provide adequate definition of what was meant.

[11]      The sheriff had misdirected himself in his consideration of hindsight, reasonable foreseeability, and what is meant by a “reasonable precaution” for the purposes of section 6, in the context of a case involving clinical judgment.

[12]      In that regard, it had been submitted to the sheriff that the correct approach was that adopted by the sheriff in the FAI relating to the death of Marion Bellfield (2011 FAI 21), as set out at paragraph 41 of the sheriff’s determination: 

“… I agree that when one has a situation which solely involves the exercise of clinical judgement, where a range of reasonable actions might be taken, and the choice as to which to take rests on the skill and experience of a doctor based upon such information as is available to him at the time, and the doctor happens to choose a course which results in death, it would be wrong to hold that the selection of another option within the range, which might have prevented the death, was a reasonable precaution which ought to have been taken.  Not only does that involve straining the meaning of precaution, but such a finding would be of no real practical benefit to others in the future.  A fatal accident inquiry cannot prescribe how doctors or nurses should exercise their judgement.  Put another way, the true precaution which ought to be taken in any given case may simply be a requirement that a patient is seen by a suitable skilled doctor, rather than how the doctor exercises his skill and judgement thereafter.”

 

[13]      That approach was consistent with that adopted by the sheriff in the FAI into the death of Lynsy Myles (27 February 2004), at page 25, to which the sheriff was also referred:

“Again lawyers should be slow to comment upon medical practice, far less criticise medical practice, unless there is a clear appropriate testimony which challenges the treatment a patient receives.  The view I take of this matter is that for precautions to be reasonable they have to be reasonable given the whole circumstances surrounding the patient and treatment of the patient with particular reference to the treating physician and if appropriate his junior medical staff.  Before I can find a precaution to be reasonable in the context of a medical issue, there must either be an admission by the treating doctor that he failed to take a precaution or a course of action which he clearly ought to have taken or took the course of action which, in the exercise of ordinary care, ought not to have been taken.  Failing that, there would require to be established by independent evidence, the manner in which the doctor in a particular area of expertise, and with the particular experience, ought to have acted.  This clearly requires there to be a standard by which the actings of doctors are judged.  As I have said it is wrong for lawyers to be quick to criticise doctors without such justification and reflecting the jurisprudence surrounding medical negligence issues it must avoid the situation whereby medical professionals become hamstrung in their treatment of patients because of concern that their view and their clinical judgement may be called into question by a colleague who takes a different view.  That is of course the rationale behind the standard approved in Hunter v Hanley 1955 SC 200.”.

 

[14]      In the context of the approach adopted in these cases, it was submitted that:

(a)        there was a distinction to be drawn between what would have been a relevant precaution, and what might in future be a relevant precaution.  The fact that section 6(1)(c) was expressed in the past tense suggested that it was the former concept which required to be considered;

(b)        the use of hindsight was relevant to the process of identifying such a precaution, but there required to be something more taken into account than simply the facts made apparent by the results of the post mortem examination;  and

(c)        the question of reasonable foreseeability was not a relevant consideration.

[15]      In his determination, the sheriff had indicated his agreement with observations made in the determinations into two other deaths.  In that regard, I was referred to the following passage in the determination by the sheriff in the FAI into the death of Sharmain Weir, 23 January 2003, at pages 46-47:

“In my opinion a fatal accident inquiry is very much an exercise in applying the wisdom of hindsight.  And it is for the sheriff to identify the reasonable precautions, if any, whereby the death might have been avoided.  The sheriff is required to proceed on the basis of the evidence adduced without regard to any question of the state of knowledge at the time of death.  The statutory provisions are concerned with the existence of reasonable precautions at the time of death and are not concerned with whether they could or should have been recognised.  They do not relate to the question of foreseeability of risk at the time of the death which would be a concept relevant in the context of a fault-finding exercise which this is not.  The statutory provisions are widely drawn and are intended to permit retrospective consideration of matters with the benefit of hindsight and on the basis of the information and evidence available at the time of the inquiry.  There is no question of the reasonableness of any precaution depending upon the foreseeability of risk.  In my opinion, the reference to reasonableness relates to the question of availability and suitability and practicability of the precautions concerned”;

 

and to the following passage in the determination by the sheriff in the fatal accident inquiry into the death of Kieran Nichol, at page 11;

“It was submitted that particular rules apply in the case of fatal accident inquiries that involve medical professionals.  It was said that in order for me to hold that there were reasonable precautions that might have been taken by members of the medical profession whereby the death might have been avoided, the standard required to be applied was, by analogy, the one to be found in Hunter v Hanley 1955 SC 200.  In other words, I was not entitled to consider evidence of what others say they might have done or do in deciding whether there existed a reasonable precaution.  Only expert evidence on what would have been a reasonable precaution for the particular medical practitioner to have taken considered similarly to the Hunter v Hanley professional negligence standard was sufficient.  In the absence of the Crown leading such expert evidence, it was argued, I did not have sufficient evidence before me to entitle me to be satisfied that such reasonable precautions existed.  I reject that argument.  It is based on a misunderstanding of the law in relation to fatal accident inquiries.  Entitlement to decide whether I am satisfied that it has been established that there exists a reasonable precaution whereby the death and an accident resulting in the death may have been avoided, in my opinion, only requires it to be demonstrated, with the benefit of hindsight, that the precaution might have prevented the death or accident and, that it was a reasonable precaution in the ordinary sense of that word.”

 

[16]      Although it was recognised that none of these cases was binding on the sheriff, it was submitted, nevertheless, that he had erred in failing to adopt the approach followed in the cases of Marion Bellfield and Lynsy Myles. 

[17]      What was stated in the case of Sharmain Weir required qualification.  In the present case, hindsight had indicated that Mr Baird had been suffering from an aortic dissection, and that there had been a misdiagnosis.  But the sheriff had ignored the fact that the considerations required by section 6(1)(c) relate only to the past, that is, to the circumstances known at the material time.  That was particularly relevant where surgery was in contemplation.  In the particular circumstances of the present case, where it was recognised that the surgery in contemplation itself carried a high risk, the options for the petitioner had been that if no surgery were carried out then harm could have resulted, and if surgery had been carried out, but no dissection was found, harm could also have resulted. 

[18]      In that context, although it was accepted that the Hunter v Hanley test was not a relevant consideration, it was submitted that what amounted to a “reasonable” precaution ought to involve some consideration of best practice in the particular circumstances concerned.  Amongst the experts who had given evidence at the FAI, there had been a broad consensus that to operate in the particular circumstances of this case, without further radiological opinion, would not have been reasonable.  Although it could now be said that if further radiological opinion had been obtained, the death might have been avoided, that was with the benefit of hindsight.  On the other hand, to have operated without sufficient reason to do so would have been contrary to good medical practice.  In such a situation, the issue of the reasonableness of what had taken place required to be taken into account.  By failing to consider that, as he ought to have done, by following the approach consistent with that set out in the cases of Marion Bellfield and Lynsy Myles, the sheriff had fallen into error in making the determination under section 1(6)(c) which he did. 

 

(ii)        Submissions for the Respondent
[19]      For the respondent it was submitted that the sheriff had been correct to decline to follow an approach to section 6(1)(c) which involved consideration of the rationale of Hunter v Hanley.

[20]      The language of that provision was clear and straightforward.  It could not have been expressed otherwise than in the past tense, not least since it concerned enquiry after the event.  Properly understood, however, that did not restrict consideration of matters to what was known at the time of the events under investigation.

[21]      There was nothing significant about an FAI into a death which had occurred in a medical context.  It was relevant to note that the terms of the 1976 Act made no reference to the decision in Hunter v Hanley, or its underlying rationale, or to any particular class of FAI defined by its medical circumstances.  There were no aspects of what constituted a reasonable precaution which were particular to a “medical” FAI, as compared with an FAI into a death in any other circumstances.

[22]      To constrain a sheriff in such an FAI, by requiring the application, or part of the underlying rationale, of the test in Hunter v Hanley would be contrary to the aims of an FAI, which included the possibility of a determination as to what, looking back, would have been a reasonable precaution by which the death might have been avoided.

[23]      It was correct to say that lawyers should be slow to comment upon medical practice unless there was clear appropriate testimony which bears on the treatment received.  In the course of the FAI before the sheriff, there had been a good deal of such evidence.  Twelve of the thirteen witnesses who gave evidence were doctors.  Seven of those were involved in Mr Baird’s treatment at Monklands General Hospital and at the Golden Jubilee National Hospital.  Three were independent experts who had been instructed by the Crown to produce reports.

[24]      The passages from the determination in the case of Lynsy Myles, to which the sheriff was referred, were ambiguous and lacking in clarity.  If it was being suggested that in medical cases, a determination under section 6(1)(c), and a finding of clinical negligence, were two sides of the same coin, or that, in order for a determination under section 6(1)(c) to be justified, it would be necessary to reach a view that a doctor had acted unreasonably, then that approach was misconceived.  It had been recognised by the sheriff in the case of Marion Bellfield, at paragraph 46, that a determination under section 6(1)(c) could be made without any implication that the actings of the doctor concerned were unreasonable.  Whether or not a precaution could be said to be reasonable was unrelated to considerations to be taken into account in determining clinical negligence.

[25]      The use of hindsight was entirely consistent with the language of section 6(1)(c).  Put another way, there was nothing in the terms of the section to exclude it.  Further, the justification for the use of hindsight was compelling.  It allowed the identification of any reasonable precautions on the basis of the evidence resulting from the inquiry, after the facts, without regard to the state of knowledge at the time of death.  The purpose of the conclusions drawn was to assist those legitimately interested in the circumstances of the death to look to the future (see the sheriff’s determination in the case of Sharman Weir, at pages 46-7).

[26]      It would be possible to figure a situation whereby a doctor was faced with two options without the possibility of knowing which was preferable.  If, after a post mortem examination, it was clear that the option not chosen would have been the better course of action, then in such circumstances, it could be said that a determination under section 6(1)(c), bearing on these matters, would not be appropriate.  Such a determination would stretch the ordinary meaning of the term “reasonable”, but, more importantly, would be of no assistance in informing future practice.  That, however, was not the position in the present case.  The determination which the sheriff had made was one which did not distort the meaning of “reasonable”, and was one which was of assistance for the purposes of looking forward to similar situations in the future.

[27]      In summary, the sheriff’s approach, in relation to these matters, as set out by him at paragraphs 90-93 of his determination, including his approval of the approaches set out in the determinations made in the cases of Sharmain Weir and Kieran Nichol, had been correct.  Contrary to the submissions for the petitioner, he had not erred in law.

 

(iii)       Decision
[28]      Against a background in which the approach to be taken in relation to section 6(1)(c) has been expressed in a number of different ways, my clear and considered view is that in describing the matters as he did, in paragraphs 90-93 of his determination, the sheriff was entirely correct.

[29]      It was not in dispute before me that the conduct of an FAI is not a fault-finding exercise.  It is a process which is entirely separate and distinct from the determination of any question of civil liability.  Thus, reasonable foreseeability is not a relevant consideration.  Rather, the aims of the process are to identify the circumstances of the death and, to the extent that it is possible, to inform any subsequent actings with a view to avoiding such a death in future.  Such a 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 events, would inevitably be undermined.

[30]      The statutory provisions of the 1976 Act are intended to permit retrospective consideration of matters with the benefit of hindsight. 

[31]      In determining whether the death might have been avoided by a reasonable precaution, the appropriate test has been described as that of a “lively possibility”.  Such a description is entirely apt and is consistent with the language of section 6(1)(c).  According the provision its ordinary meaning, certainty or probability are not relevant considerations in determining whether the death might have been avoided.  Further, given the nature of the process as I have described it, in considering whether a precaution is reasonable, foreseeability has no part to play.  That question falls to be determined with the benefit of hindsight, and a finding that the 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.  Whether or not a precaution was reasonable does not depend on foreseeability of risk, or whether at the time the precaution could or should have been recognised.

[32]      In this context, there is nothing so particular, in relation to a death which occurs in medical circumstances, that merits the disapplication of that general approach.  There is no statutory provision to the effect that findings as to reasonable precautions in such cases should involve different considerations, and no objective justification for imposing the common law concepts of the applicable test in matters of clinical negligence onto a general statutory model, in circumstances where to do so would restrict the public utility of the process. 

[33]      Notwithstanding the subtlety of the argument presented for the petitioner, I am not persuaded that the rationale behind the decision in Hunter v Hanley, or any part of it, has any application in a determination made under section 6(1)(c).  An analysis of what would have been a reasonable course of action for the medical practitioner concerned, in the light of information known at the time, is not a relevant consideration in determining whether a reasonable precaution might have resulted in the death being avoided.  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 enquiry, including the according of due weight to relevant expert medical opinion.

[34]      It was submitted that it would be possible to envisage a situation, involving the exercise of clinical judgement, whereby a doctor was presented with two or more options and could not know which was in the patient’s best interests.  I accept that in such a situation where the optimal course was not taken, it would not be appropriate to determine that the selection of another of the available options would have been a reasonable precaution.  I accept that to do so would distort the ordinary meaning of “reasonable precaution” and would in any event be of no assistance for the future.  I am satisfied, however, that the circumstances of the petitioner’s decision, not to operate, were not of that type. 

[35]      In the whole circumstances, therefore, given the terms of his determination, as set out at paragraphs 90-93, I find that the sheriff did not err in law in approaching his determination under section 6(1)(c) in the manner that he did, whether in relation to his consideration of hindsight, reasonable foreseeability, the meaning of “reasonable precaution”, or otherwise. 

 

(2)        The Extent of the Evidence Bearing on the Determination under Section 6(1)(c)
(i)         Submissions for the Petitioner
[36]      In this respect, whether the precaution identified by the sheriff was a reasonable one was to be determined by the extent to which it was available or practicable.  For the petitioner, it was submitted that, in that regard, the available evidence was not sufficient to justify the finding in relation to the precaution identified. 

[37]      The sheriff had noted (at paragraph 98 of his determination) that Mr Brackenbury, consultant cardiothoracic surgeon, gave evidence that, in all the circumstances, he would have sought the advice of an expert radiologist in relation to the CT scan.

[38]      Dr Bloomfield, consultant cardiologist, gave evidence (paragraph 102) that in his view, after the TOE had been carried out, a consultant radiologist, expert in looking at CT scans of the aorta, should have become involved. 

[39]      The petitioner’s position (paragraphs 106-107) was that he had considered that, as he already had a report on the CT scan from Dr McGhee, there was no need for him to seek the advice of another radiologist.  It was submitted that it was relevant to note that, although the petitioner was not a radiologist, Dr McGhee was.  The petitioner also stated that had Dr McGhee told him that he was almost certain that there was a dissection, then he would have dealt with matters differently.  Although there was evidence that Dr McGhee had indicated to others that he was almost certain that there was a dissection, it was accepted that he had not told the petitioner that. 

[40]      Another witness, Mr Zamvar, consultant cardiothoracic surgeon, had given evidence (paragraph 110) that he would not have sought a further radiological opinion.

[41]      Emphasis was placed on the evidence of Dr Reid, consultant radiologist and specialist cardiothoracic radiologist (paragraphs 114-115) to the effect that radiological experience would have been necessary to view Mr Braid’s CT scan properly, and that another radiologist, experienced in CT scans of the aorta, should have been consulted, or, if such a person was not available, a gated CT scan should have been carried out.  It was common ground that a gated CT scan could not be carried out at the Golden Jubilee National Hospital after 5.00pm. 

[42]      Dr Reid’s view was that the case was not an easy one, in that the diagnosis was difficult to make because what was concerned was not a routine dissection, and that a further opinion should have been sought from a cardiothoracic radiologist. 

[43]      On the basis of that evidence, it was submitted that, when considering the appropriate level of radiological expertise which might have been consulted, the sheriff had in mind someone of the experience and professional eminence of Dr Reid.  That was consistent with the sheriff’s observation at paragraph 131 of his determination, to the effect that had the petitioner had the benefit of consulting a radiologist of his experience in relation to the CT scan, the outcome would have been different.  Against that, however, there was no explicit evidence that someone of his experience and expertise would have been available to provide a further opinion.  In the absence of such evidence, it could not be said that there was a lively possibility that, had the petitioner sought such opinion, the death might have been avoided. 

[44]      It was significant that in the following passages (paragraphs 132-3), the sheriff had used different language, referring to a reasonable precaution as one involving the petitioner seeking the opinion of a “suitably experienced consultant radiologist”, which in turn was consistent with the language of the actual determination made under section 6(1)(c), where the reference was to “experienced consultant radiology opinion”.  It was correct to note that the petitioner in his evidence had conceded that there would have been a radiologist on call whom he could have contacted, but there had been nothing specific in the evidence to indicate that a radiologist of the requisite experience, as assessed by the sheriff, would have been available.  In the absence of such evidence, there was no sufficient support for the determination made under section 6(1)(c).

 

(ii)        Submissions for the Respondent

[45]      In this context, reduction was available as a remedy only where the sheriff so disregarded the evidence as to have erred in law.  For reduction to follow, it was necessary that the sheriff altogether failed to take into account a matter which he should have taken into account (Lothian Regional Council (supra), at 1133).

[46]      There was a substantial amount of evidence to the effect that at the relevant time, in the circumstances concerned, to obtain a further opinion on the CT scan from a consultant radiologist would have been a reasonable thing to do.  That was consistent with the evidence of Dr McCulloch, consultant cardiologist, Mr Brackenbury, consultant cardiothoracic surgeon, Dr Bloomfield, consultant cardiologist, Dr Tzemos, consultant cardiologist, and Dr Reid, consultant radiologist. 

[47]      Given the state of the evidence, the sheriff was entitled to conclude that in the circumstances at the time “many consultant cardiac surgeons and cardiologists would have sought the opinion of a consultant radiologist experienced in the interpretation of CT scans of the aorta” (para 130 of the determination). 

[48]      There was evidence that Dr McGhee was accustomed to viewing CT scan images at home, when on call. 

[49]      As to the evidence bearing on the level of radiological expertise available, the following points were made:

(a)        Dr Reid’s evidence, read properly as a whole, was that what was required was the opinion of a radiologist experienced in CT scans of the heart and chest, rather than someone specifically of his own experience and distinction;

(b)        The petitioner’s own evidence was that he could have contacted a radiologist, had he thought it necessary;

(c)        It was significant that there was evidence before the sheriff that the Golden Jubilee National Hospital was a specialist centre for cardiac surgery;

(d)       It was reasonable to draw the inference that at a specialist centre for cardiac surgery, there would be available radiologists with experience in CT scans of the heart and chest;

(e)        Dr McGhee had identified the dissection, and although he did not tell the petitioner, had been almost certain of its existence;

(f)        As a matter of fact, Dr McGhee had been correct; and

(g)        Against that background, it was not unreasonable for the sheriff to conclude that had the opinion of a suitably experienced consultant radiologist been sought, the death might have been avoided.

 

(iii)       Decision
[50]      In the light of the evidence before the sheriff, on which emphasis was placed before me, I am satisfied that there was a sufficiency of evidence to support the determination made under section 6(1)(c) which the sheriff made.

[51]      While it may well be fair comment to state that the sheriff placed some weight on the evidence of Dr Reid, the terms of the determination, read as a whole, do not support an interpretation of the evidence to the effect that only a consultant radiologist of Dr Reid’s eminence could have been of positive assistance in the events under consideration. 

[52]      Certainly, at paragraph 131 of his determination, the sheriff indicated very clearly his view that had Dr Reid been consulted, matters would have developed differently, but that passage, read in isolation, does not encompass, on a fair reading of the whole determination, the sheriff’s concluded thoughts on the matter of the necessary requisite standard of expertise to be taken into account. 

[53]      At paragraph 133, the sheriff refers to the fact that Dr McGhee was almost certain of the presence of a dissection, and it is significant that, on the evidence, he was proved to be correct.  Read in that context, the sheriff is to be interpreted as equiparating “the opinion of a suitably experienced consultant radiologist” to that of an expert of Dr McGhee’s standing.  In that context, I attach weight to the evidence that Dr McGhee was contactable, if not at Monklands General Hospital, then at home.  More to the point, however, I accept that it is reasonable to infer that attached to the Golden Jubilee National Hospital, a specialist centre for cardiac surgery, there would have been a consultant radiologist, experienced in interpreting CT scans of the heart and chest, available for consultation by a consultant cardiothoracic surgeon who considered that course to be appropriate.  The petitioner, himself, gave evidence to the effect that he could have contacted a radiologist at the Golden Jubilee National Hospital, had he thought it appropriate. 

[54]      On that analysis, I conclude that the level of expertise to which reference is made in the determination under section 6(1)(c) is clear, that there was a proper basis in the evidence to support the conclusion that to seek a further opinion from such a source would have been reasonable, that such expertise would have been available, and that the determination under challenge was therefore practicable.  In these circumstances, I find that, in approaching the evidence as he did, the sheriff did not err, and that, contrary to the submission for the petitioner, he did not fail to take into account matters which he ought to have taken into account.  Rather, I find that the sheriff’s determination under section 6(1)(c) of the 1976 Act was supported by the evidence arising from the inquiry, and was legitimate and appropriate.

 

Disposal
[55]      In the event, for the reasons I have stated, I shall repel the petitioner’s first and second pleas-in-law, sustain the respondent’s third and fourth pleas-in-law, and refuse the petition.

[56]      I reserve meantime all questions of expenses.