Recent Cases
23 December, 2024
In the petition by a Health Board in respect of KL
Louise Jardine acted for a Health Board in a recent application by petition to the Court of Session’s parens patriae jurisdiction to authorise medical treatment for a child.
The child, KL, was born prematurely and required hospital treatment after his birth. His mother very sadly passed away prior to him being discharged from hospital. She was named on KL’s birth certificate. His father was not named on the birth certificate and was also not married to KL’s mother. Accordingly, at the point of discharge from hospital, no one held parental rights and responsibilities for KL. He was discharged into the care of his aunt.
KL has a patent ductus arteriosus (“PDA”), an opening between his arterial and pulmonary arteries. This is common in babies born prematurely and often closes shortly after birth. The cardiologists treating KL considered that the PDA was too large, and had been present for too long, for it to close naturally. An operation to close the PDA was deemed necessary. This was planned for early November 2024 but was cancelled when it became apparent that there was no one holding parental rights and responsibility for KL, and therefore no one who could consent to the procedure on KL’s behalf. The Health Board therefore petitioned the Court to exercise its’ parens patriae jurisdiction to authorise the proposed treatment.
Lady Carmichael heard the petition and was satisfied that the proposed treatment was in KL’s best interest. On that basis, she granted the application.
An interesting point raised in the course of the hearing was of the application of section 5 of the Children (Scotland) Act 1995. This provision allows anyone with care and control of a child to consent to any surgical treatment on their behalf as long as it is reasonable in the circumstances in order to safeguard the child’s health, development and welfare. It was the Health Board’s position that it is not apparent from the wording of the provision that this was intended to cover elective procedures such as the proposed operation for KL. In the absence of clear authority confirming that the provision could be used in these circumstances, particularly for a procedure as invasive as surgical closure of a PDA, the Health Board were of the view that authority from the court was necessary. Lady Carmichael noted that section 5 does not appear to have been the subject of judicial interpretation and commented that it was “more obviously apt to cover situations in which a person with care and control of a child is faced with an emergency requiring surgical, medical or dental treatment to which the child cannot consent”.
The full judgement can be read by clicking here.