Court of Session confirms duty of care owed to father, and rejects “resources cap” on damages, in wrongful birth claim

PO and OO v Lothian Health Board [2026] CSOH 55

In an opinion issued on 11 June 2026, Lord Braid has decided two significant questions in a “wrongful birth” claim against Lothian Health Board, finding for the pursuers on both. The case concerned a couple whose fourth child, “A”, was born with Down’s syndrome following the Board’s admitted negligence in failing to carry out fetal screening that would have detected the condition. The defenders accept that, but for that failure, the first pursuer would have terminated the pregnancy.

With the joint claim for care costs valued at over £18 million, two issues were taken to debate under chapter 42A: first, whether the Board owed a duty of care to the father (the second pursuer) as well as the mother; and second, whether the additional costs of raising child A should be assessed by reference to the child’s reasonable needs, or capped by the parents’ financial resources.

First issue: was a duty owed to the father?

The defenders argued that the father was, at best, a secondary victim whose claim was precluded by Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1, on the basis that a clinician owes a duty only to the patient. They invited the court not to follow the Scottish authorities of Anderson v Forth Valley Health Board and McLelland v Greater Glasgow Health Board, contending that the decision whether to terminate a pregnancy is the mother’s alone and that recognising a duty to the father would qualify her autonomy as a patient.

Lord Braid disagreed. He held that the father was a primary, not a secondary, victim: his psychological injury flowed from the trauma of caring for a disabled child caused directly to him, not from witnessing harm done to the mother. Paul therefore did not apply.

On the wider question, the court held that the Board did owe the father a duty of care in the provision of fetal testing. The necessary proximity arose from the father’s relationship with the mother and the couple’s shared intention to raise their child together — not from the happenstance of his parental rights or his attendance at one appointment. Importantly, the duty did not require the clinicians to advise the father of anything directly; it was fulfilled by taking reasonable care in testing the mother and reporting the results accurately to her (an approach drawn from the Australian case BT v Oei). Lord Braid confirmed that the law in Scotland remains as set out in Anderson and McLelland, and that this is consistent with authority from other jurisdictions.

Second issue: needs of the child, or resources of the parents?

The defenders argued that the parents’ loss must be measured by reference to the resources available to them, so that costs they could not afford to incur were not recoverable, relying on Rand v East Dorset Health Authority and the familiar “managing director and chauffeur” analogy.

Lord Braid rejected that approach. Following Anderson and the weight of English authority (Hardman, Lee and Roberts, in preference to Rand), he held that damages fall to be assessed by reference to the reasonable needs of the child, asking simply whether a particular head of claim is reasonable and likely to be incurred. Capping recovery by the parents’ means would produce the “deeply unattractive” result of the poorest parents recovering less for identical needs. He noted that the parents’ needs and the child’s needs are “inextricably intertwined”, and that the fact that the parents’ claim (necessarily) reflects the child’s needs, does not convert the claim into an impermissible “wrongful life” claim.

The defenders’ averments seeking to limit damages by reference to the pursuers’ resources were held irrelevant and excluded from probation. Lord Braid did, however, sound a note of caution: it does not necessarily follow that the pursuers can recover for expenditure beyond their own deaths, or for the costs of a personal injury trust, those being questions “for another day”.

Disposal

The court sustained the pursuers’ second and fifth pleas-in-law, reserved all questions of expenses, and appointed the case to a further case management hearing.

Full Opinion of Lord Braid can be viewed here.

Ampersand’s Euan Mackenzie KC appeared for the pursuers, with David Swanney, instructed by Slater & Gordon. Ampersand’s Paul Reid KC and Louise Jardine appeared for the defenders, instructed by the NHS Central Legal Office.

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Una Doherty K.C. – decree of absolvitor in AM v Lothian Health Board [2026] CSOH 42

Una Doherty K.C. acted for the successful defender Lothian Health Board, along with Ewen Campbell, Advocate, in this action in which Lady Hood granted decree of absolvitor on 30 April 2026. The pursuer was represented by Astrid Smart K.C. and David Swanney, Advocate.

The action related to alleged negligence by midwifery staff and obstetricians at the Royal Infirmary of Edinburgh, in their care of the pursuer during her labour in September 2010. The pursuer claimed that the alleged negligence caused her son’s severe brain injury. In September 2024, the court agreed to the defender’s motion to allow a PBA restricted to the issue of breach of duty, with there to be a further PBA on causation and quantum if required.

At the proof, evidence was heard over eleven days, followed by an oral submissions hearing with written submissions in advance. Oral evidence was led from eight factual witnesses and four expert witnesses. There were three alleged breaches of duty against midwifery staff and a total of five alleged breaches of duty against two obstetricians. The pursuer sought to amend during the proof to introduce further duties said to have been breached – this motion to amend was successfully opposed.

In relation to the case against midwifery staff, Lady Hood did not accept the evidence by the pursuer and her partner as to when they first alerted staff to the presence of meconium. Lady Hood did not accept the pursuer’s expert midwifery evidence that it was required midwifery practice to assess all patients including the pursuer within 15 minutes of arrival in triage, or that there was a duty to assess this pursuer significantly earlier.

In relation to the case against the obstetricians, the interpretation of the cardiotocograph was critical. Two disputed issues were relevant to this interpretation: the concept of shallow late decelerations, and the proper approach to the interpretation of the NICE Intrapartum Care Clinical Guideline 55 (2007), Table 6, in relation to the frequency of late decelerations required to be an abnormal feature. Given the competing obstetric expert evidence, Lady Hood required to apply the Bolitho test, and concluded that there was no basis to reject the defender’s expert obstetric evidence, and the five alleged duties against the obstetricians did not arise.

The opinion of Lady Hood can be viewed here.

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