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Opinion from Court of Sessions on parens patriae jurisdiction to authorise medical treatment for a child

Ampersand’s 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.

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Ampersand Celebrates Achievements at Legal 500 Scotland Awards 2024

Ampersand Advocates is proud to announce its continued recognition for excellence in the Scottish legal sector, with two individual recognitions at the Legal 500 Scotland Awards held on 29 November 2024 in Edinburgh. This year, the Stable celebrates the awards of Alan Moffat, named “Clerk of the Year”, and Una Doherty KC, who has been crowned “Silk of the Year”.

Following the success of last year’s ceremony, The Legal 500 Scotland Awards returned in 2024, highlighting the best domestic, national and international firms Scotland has to offer and shining a light on the top work handled in this compelling market. The awards recognise the legal professionals attracting attention throughout Scotland.

Ampersand, winners of Stable of the Year 2023, and also picked up Silk of the Year then, were shortlisted in multiple categories again this time. The awards are based on The Legal 500’s independent research for the annual UK guide.

Ampersand’s Stable Director Isla Davie KC commented: “Ampersand is immensely proud of Alan and Una. Their recognition is a testament to the exceptional standards we maintain at Ampersand. Alan’s outstanding work in our clerking team and Una’s legal expertise truly embody the excellence we strive for every day.”

List of all the winners can be viewed here.

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Faculty Christmas Collection 2024 opens for donations

This year’s Faculty Christmas Collection, which raises funds for vulnerable families in Fife, is now open for donations.

It was founded and has been run for the past nine years by Maria Maguire KC. “We are still going strong,” she said.

“The money we raise is really making a difference because we are now helping families in Cowdenbeath, Dunfermline, Kirkcaldy, East Fife and Levenmouth as well as Glenrothes. They are all so grateful we have stepped in, and they are depending on us.”

Cash donations are used to buy food vouchers and Christmas dinners for families, and provide gas and electricity, baby food, bedding, beds, warm clothes, lunches for children with additional needs, transport to hospital appointments, hygiene products and other essentials.

“In addition, cash donations provide an emergency fund to help families who need urgent help. “A family of a single mum and three children under the age of five last week lost everything in a house fire,” said Ms Maguire.

“Times this year have been really hard due to the lack of access to mental health services to support those with chronic anxiety and post-natal depression. The money also helps with activities for families all year round – picnics, play sessions and swimming lessons – that families could not access otherwise due to anxiety or which they cannot afford. The move to universal credit is still a problem with a six-week gap for benefit payments and assessment,” she added.

Other suitable donations include new toys, books, games, clothes, pyjamas, accessories or any fun presents for children of all ages (including teenagers). Second-hand bicycles in good condition would be appreciated, as would presents for the parents and Christmas treats such as selection boxes, tins of biscuits, sweets, and savoury treats that are not too perishable.

All donations can be dropped off at Faculty Reception at Parliament Hall in Edinburgh until Saturday 14 December, and on that day they can be delivered to the Laigh Hall. Faculty Superintendent Scott Brownridge can also arrange for items to be collected. For more information on how to donate please click here.

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Ampersand Advocates Launch Specialist Personal Injury & Clinical Negligence Channel on new Hey Legal Hub

Ampersand Advocates has announced the launch of an innovative digital engagement channel specifically designed for Personal Injury and Clinical Negligence practitioners, the first such channel on the new Hey Legal Hub.

The new platform represents a significant development in professional legal resources, offering practitioners comprehensive access to specialist knowledge and networking opportunities. It features:

To mark the channel’s launch, Ampersand has made available a selection of talks from their recent Clinical Negligence seminar, with plans to regularly expand the content library. The initiative aims to bring Ampersand’s expertise directly to practitioners through digital channels hosted by Hey Legal, enhancing accessibility to specialist legal knowledge.

“This platform represents our commitment to supporting the wider Personal Injury and Clinical Negligence community,” said Ampersand’s Practice Manager, Alan Moffat “by providing practitioners with readily accessible, high-quality resources and creating opportunities for professional collaboration.”

Ally Thomson of Hey Legal said: “We are delighted to partner with Ampersand Advocates to deliver this new, innovative personal injury & clinical negligence channel. We look forward to building out this resource over the months ahead along with launching other specialist channels covering multiple work types.”

Initial access to the channel is being offered complimentary by Ampersand Advocates for those who instruct the stable, demonstrating Ampersand’s commitment to fostering professional development within the sector. Legal practitioners interested in accessing the channel can contact Alan Moffat at Ampersand Advocates for details.

General access to the Hub is also available for free, including access to a free legal technology channel.

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Paul Reid KC success in appeal for The Standards Commission for Scotland

Paul Reid KC successfully represented The Standards Commission for Scotland in a recent appeal arising out of an altercation that took place between the pursuer, Gary McGarvey, who is an elected Councillor for Stirling Council, and another councillor. The case involved a summary application under Section 22 of the Ethical Standards in Public Life etc (Scotland) Act 2000. The purpose of the Act is to promote ethical standards in the public through the use and imposition of codes of conduct. Another of its purposes is its adjudicatory function to assist in public hearings to decide on breaches of codes of conduct and to regulate the suitable sanctions.

The pursuer had acted in an angry aggressive manner towards another Councillor which was found to constitute a breach of Paragraph 3.1 of the Code at a hearing before the defender. This breach resulted in the Standards Commission imposing a sanction of suspension for one month. The result of imposing such a sanction is to disqualify the pursuer, for life, from being a member of an integration joint board, and from being a member of a Health Board. However, these restrictions do not apply if the sanction is imposed had been censure.

The following arguments were put forward by Paul Reid KC, instructed by Shepherd and Wedderburn LLP on behalf of the defender: it was argued that the sanction that has been imposed was reasonable and that the conduct of the pursuer had been characterised as “egregious and unacceptable.” The pursuer’s grounds of appeal fell into two categories. The first being the “censure issue”.  The pursuer argued that the Commission had failed by not first considering imposing a lower sanction, namely censure. The second issues was the “disqualification issue” which, argued the pursuer, arose from the Commission not having proper regard to the practical consequences of the sanction. Paul Reid KC moved to argue that neither ground was justified. The censure issue had been examined and disregarded as the Commission’s reasoning for imposing such sanction could not be criticised. The consequences of disqualification derived from the suspension as a matter of law which had been approved by Parliament and was backed up by legislation. There is a process in which the pursuer can apply to Scottish Ministers to invite them to reconsider at least part of his disqualification. It was, argued the defender, inappropriate for the pursuer to use this mechanism to avoid the policy choice of Parliament. The financial implications that arise from suspension and subsequent disqualification are irrelevant in determining the necessary sanctions that should be imposed.

Based on the above arguments Sheriff Principal Gillian A Wade KC decided in favour of The Standards Commission for Scotland, on the basis that it was clear the defender had properly considered all the inevitable consequences for imposing such suspensions and subsequent disqualifications, and considered a short period of suspension was a reasonable sanction in the circumstances. Sheriff Wade KC stated that there is no serious flaw in the reasoning. All the pursuer’s arguments were rejected by the Court and stated, “It cannot be said that the defender’s panel has erred in the manner suggested by pursuer and accordingly the sanction of suspension must stand.”

The full judgment can be read by clicking here.

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Ampersand Advocates excels in Chambers and Partners UK Bar Guide 2025

Ampersand Advocates has once again demonstrated its exceptional standing in the Scottish legal landscape, securing top-tier rankings across multiple practice areas in the newly published Chambers and Partners UK Bar Guide 2025. The stable has been recognised as a Band 1 set in Clinical Negligence, Personal Injury, Planning & Environment, and Public and Fatal Accident Inquiries, while achieving Band 2 rankings in Administrative & Public Law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Construction, Professional Negligence, Real Estate Litigation, and Restructuring/Insolvency.

This performance underscores Ampersand’s breadth and depth of expertise, with the stable boasting a total of 11 set rankings and an impressive 101 individual rankings across 18 areas of practice for 41 members, which includes 6 “star individual” rankings.

Key highlights from the guide include:

In additional to these Scottish bar listings, Ampersand has members recognised in the London Bar where Julian Ghosh KC is Band 1 ranked in 3 tax areas, Aidan O’Neill KC is Band 2 listed for European Law, and Susanne Tanner KC has a spotlight listing for Independent Investigations in the All Circuits region.

The Ampersand clerks have again garnered widespread praise for their exceptional clerking services, with numerous sources highlighting the team’s efficiency, responsiveness, and proactive approach. The clerks are described as friendly, helpful, and pragmatic, offering first-class service that aligns with the commercial realities of litigation. Overall, Ampersand’s clerking team is recognised for delivering a consistently high standard of service.

These outstanding rankings reaffirm Ampersand Advocates’ position as a leading stable in Scotland, offering exceptional expertise across a wide range of practice areas. The stable’s commitment to excellence and depth of talent backed by exceptional clerking, continues to give instructing agents confidence when instructing an Ampersand advocate.

All of the Ampersand rankings can be viewed on the Chambers and Partners website here.

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