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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.

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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 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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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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Ampersand Advocates Welcomes Joanna Cherry KC

Ampersand Advocates is thrilled to announce the return of Joanna Cherry KC to practice at the Scottish bar. Joanna, a distinguished advocate with a remarkable career spanning law and politics, is joining Ampersand Advocates. She brings with her a wealth of experience in human rights, public law, criminal law, constitutional matters, medical-legal matters and in fatal accident inquiries.

Called to the bar in 1995 and taking silk in 2009, Ms. Cherry has established herself as a formidable presence in the legal world. Her extensive experience includes serving as a standing Junior to the Scottish Government and as an advocate depute. Prior to her political career, she built a successful appellate practice, regularly appearing before the UK Supreme Court as well as handling complex medical-legal cases and fatal accident inquiries.

Joanna served as the Member of Parliament for Edinburgh South West from 2015 to 2024. During that time, she was the front bench spokesperson for her party on justice and home affairs from 2015 to 2021. Thereafter she chaired parliament’s influential Joint Committee on Human Rights .

Her parliamentary tenure was marked by significant legal achievements, including her involvement in high-profile constitutional litigation that took her to both the European Court of Justice and the UK Supreme Court. Notably, she led the Scottish litigation that resulted in Boris Johnson’s prorogation of Parliament being ruled unlawful.

Joanna’s exceptional work has been widely recognised. She was awarded the Herald’s “Best Scot at Westminster” in 2019 and Holyrood magazine’s equivalent award in 2021. She is also an Honorary Bencher of the Middle Temple. The Legal 500 have recognised her as a leading silk in the criminal field and in personal injury, medical negligence and professional negligence where she was described as ‘Fearless in her pursuit of a satisfactory outcome for the client.’

Ampersand’s Practice Manager, Alan Moffat, expressed enthusiasm about Joanna joining the Stable: “We are delighted to welcome Joanna to Ampersand. Her expertise in human rights and public law, combined with her recent experience in high-level constitutional matters, along with her medical and FAI experience, will be an invaluable asset to our stable. Joanna’s addition reinforces our commitment to providing the highest caliber of legal representation to those instructing counsel.”

Ampersand is a leading Scottish Stable with recognised experience across Clinical Negligence and Personal Injury, Public and Planning law, and Commercial and Alternative Dispute resolution. Joanna Cherry’s inclusion in its ranks with 27 other senior counsel and 34 junior counsel further enhances Ampersand’s reputation as a leading force for those looking in instruct Scottish Counsel.

Ampersand is a tier 1 set with the leading legal directories across multiple practice areas and is the Scottish “Stable of the year” at the Legal 500 Scottish Awards 2023.

You can view Joanna Cherry KC’s profile here.

For any enquiries about instruction Counsel, please contact the Ampersand Clerking Team: ampersandclerks@advocates.org.uk.

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Joanna Cherry KC

Joanna Cherry KC called to the bar in 1995 and took silk in 2009. Joanna has established herself as a formidable presence in the legal world and has experience in human rights, public law, constitutional matters, criminal, medical-legal matters and in fatal accident inquiries. Her extensive experience includes serving as a standing Junior to the Scottish Government and as an advocate depute. Prior to her political career, she built a successful appellate practice, regularly appearing before the UK Supreme Court and handling complex medical-legal cases and fatal accident inquiries.

Joanna served as the Member of Parliament for Edinburgh South-West from 2015 to 2024. During that time, she was the front bench spokesperson for her party on justice and home affairs from 2015 to 2021. Thereafter she chaired parliament’s Joint Committee on Human Rights.

Her parliamentary tenure was marked by significant legal achievements, including her involvement in high-profile constitutional litigation that took her to both the European Court of Justice and the UK Supreme Court. She led the Scottish litigation that resulted in Boris Johnson’s prorogation of Parliament being ruled unlawful.

Joanna’s work has been widely recognised. She was awarded the Herald’s “Best Scot at Westminster” in 2019 and Holyrood magazine’s equivalent award in 2021. She is also an Honorary Bencher of the Middle Temple.

Prior to entering politics, the Legal 500 had recognised Joanna as a leading silk in the criminal field, and in personal injury, medical negligence and professional negligence, where she was described as “fearless in her pursuit of a satisfactory outcome for the client.”

Joanna has returned to full-time practice and is available for instruction.

Selected cases:

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