Court of Session issues guidance on parens patriae petitions for children’s medical treatment
Lord Braid has issued a single opinion addressing three petitions presented to the Court of Session within a period of around two weeks, each inviting the court to exercise its parens patriae jurisdiction to authorise medical treatment for a child whose parents had refused consent.
Three members of Ampersand appeared for the petitioning health boards, instructed in each case by the NHS Scotland Central Legal Office: Scott Clair for Greater Glasgow Health Board in respect of child A, Louise Jardine for Greater Glasgow Health Board in respect of child B, and Paul Reid KC for Borders Health Board in respect of child C.
The three cases
Child A was a 13-year-old boy with medulloblastoma, an aggressive brain cancer. He had severe non-verbal autism and was assessed as lacking capacity to make decisions about his healthcare. He and his parents are Jehovah’s Witnesses, and his parents had confirmed that they would not consent to the transfusion of primary blood components. Authority was sought for a course of radiotherapy followed by chemotherapy, and for transfusion if the treating clinician considered it necessary to avoid serious harm including death.
Child B was a 3-year-old requiring an open pyeloplasty for a pelvi-ureteric junction obstruction, whose surgery had been complicated by a subsequent diagnosis of sickle cell disease. His parents, also Jehovah’s Witnesses, refused consent to any blood products. Clinicians had used an alternative regimen to raise his haemoglobin above the surgical threshold, but could not rule transfusion out entirely, particularly in the event of post-operative complications.
Child C was a 10-year-old girl bitten by the family dog, who required tetanus-containing vaccination and immunoglobulin within four days of the injury. She had not previously been vaccinated. Her parents refused consent and, unlike in the first two cases, actively opposed the petition, disputing the medical evidence and addressing the court both orally and in writing.
In each case a curator ad litem was appointed on presentation of the petition, each curator supported the petition, and the court granted an order permitting medical intervention — though not, in every case, in the terms originally sought.
Points of wider significance
Lord Braid took the opportunity to address several matters going beyond the individual cases.
On the scope of the jurisdiction, he held that a child need not be an orphan for parens patriae to be engaged. Where the welfare of the child requires parental consent to a necessary procedure and that consent is not available, it does not matter whether the reason is that no parent is alive, that a parent cannot be found, or that a parent is refusing consent on religious, moral or life-choice grounds. In such circumstances the court is, in effect, “acting as a third parent.”
He emphasised that any such authorisation is an exception to parental autonomy and an interference by an organ of the state in family life. It must be a proportionate response to a material risk, and requires a balancing exercise at the heart of which lies the welfare of the child, but in which the parents’ wishes, religious beliefs and right to parental autonomy must also be weighed.
On the limits of the jurisdiction, the opinion is instructive. In child C’s case, the petition as presented had also sought authority for two further doses of vaccine at monthly intervals. The curator elicited from the treating clinician that those doses were not related to the acute episode but were intended to bring the child into the routine childhood vaccination schedule. The court observed that this would go considerably beyond the proper compass of an exception to parental autonomy; the jurisdiction enables the court to intervene in urgent situations, not to impose measures against parents’ wishes. Senior counsel for the health board confirmed at the interim hearing that the order was no longer sought in those terms.
On procedure, the opinion confirms that RCS 14.7 states in terms that a parens patriae petition shall not be intimated on the walls of court, and that it is not open to the court to waive that requirement. There is accordingly no need to seek dispensation. Open justice is served by the petitions being heard in open court, with the family’s privacy preserved by anonymity orders.
The opinion also addresses the interaction with the UNCRC (Incorporation) (Scotland) Act 2024, the court being satisfied that the UNCRC requirements were in any event consistent with Scots law.
Finally, in a postscript prompted by a recent academic suggestion that a child protection order should be sought in such cases, Lord Braid expressed no concluded view but observed that it had not struck him that a child protection order ought to have been sought in any of the three cases. There were no social work concerns; all were loving parents acting in accordance with what they perceived to be their child’s best interests; and it is not obvious that the statutory mechanism provides the same safeguards, including the power to seek a curator’s report and the hearing of applications in public. As Lord Braid put it, “the procedural cart must not drive the welfare horse.”
The opinion is available on the Scottish Courts and Tribunals Service website here.
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Ampersand Advocates Clinical Negligence Seminar 2026 (waiting list in operation)
Ampersand Advocates is delighted to confirm our Clinical Negligence seminar for 2026. This afternoon half day event held in-person at the Hawthorndean Lecture Theatre at the National Galleries on the Mound, Edinburgh will attract 3 hours of CPD and will be followed by a drinks and social hour.
The theme this year is Birth Injuries. The programme is noted below.
12.30pm to 1pm – Registration, tea & coffee
1pm – welcome by chair: Una Doherty KC
1.10pm to 1.50pm – Abigail Holmes – Director of Midwifery and Neonatal Services, University Hospital Wales: “Induction of Labour”
1.50pm to 2.30pm – Dr Tara Fairley – Consultant Obstetrician and Associate Medical Director NHS Grampian: “(1) Suspected Macrosomia – Consent and Shoulder Dystocia; and (2) Key Points of CTG Interpretation”
2.30pm to 3.10pm – Dr Julie-Claire Becher – Consultant Neonatologist: “Time is brain: Attributing causation and contribution in intrapartum and neonatal care”
3.10pm to 3.40pm – break
3.40pm to 4.10pm – Fiona Drysdale KC: Litigating birth injury cases
4.10pm to 4.40pm – Louise Jardine, Advocate: Case law update
4.40pm – closing remarks and social hour
The event is now full. To add your name to the waiting list, please use this online form: https://forms.cloud.microsoft/e/N9ZyAhFfm9, or scan the QR code below. Any queries, please email: ampersand.events@advocates.org.uk.
As part of our commitment to this area of practice there is no charge for practitioners attending this event.
Numbers are strictly limited, allocated on a first come first serve basis. As in previous years, a waiting list is now in operation because the event is fully subscribed.
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Laura-anne Langlands
Laura-anne Langlands called to the Bar after 16 years in practice working in private practice and latterly for a large public sector organisation.
Laura-anne specialises in clinical negligence and personal injury actions and has extensive experience in representing both pursuers and defenders in high value and complex actions. She has particular experience in dealing with birth injury claims, claims involving missed and delayed diagnosis, fatal claims and claims involving life altering injury. Prior to calling, Laura-anne was accredited by the Law Society of Scotland as an accredited specialist in clinical negligence law (defender). She has appeared in the All-Scotland Personal Injury Court and regularly dealt with actions raised in the Court of Session. Laura-anne also has experience in mental health matters.
During her period of devilling Laura-anne continued to build on and develop her primary practice areas of clinical negligence and personal injury and expanded her knowledge of more specialist areas including historic abuse cases. She also gained experience in healthcare related public law matters and professional regulation.
Laura-anne is a tutor for the Personal Injury elective course on the Diploma in Professional legal practice at the University of Edinburgh.
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Ampersand Advocates welcomes 2 new members: Laura-anne Langlands and Miranda Cannibal
Ampersand is delighted to welcome Laura-anne Langlands and Miranda Cannibal to the stable, following their call to the Bar on Friday, 26th June 2026.
On the new members’ arrival, Stable Director Isla Davie KC, said: “We are delighted that Laura-anne and Miranda are joining Ampersand. They are already highly regarded as lawyers, and this is the start of incredibly promising careers for both at the Bar. Not only does their considerable experience lend itself well to our existing practice areas, but they are also lovely people. We look forward to welcoming them into the stable.”
Ampersand’s Practice Manager, Alan Moffat added “I am delighted to welcome our newest members of Ampersand. Their addition to our set brings the membership to 61 and the experience which each of them brings is a fantastic fit for Ampersand’s core areas of practice. They will be a real asset to those looking to instruct counsel. I am sure that joining Ampersand will offer them rewarding opportunities and collaborative support”.
Laura-anne and Miranda featured in the Ampersand Live podcasts “& the Devils in the Detail” earlier in June. You can watch clips of them discussing their practice areas below.
Laura-anne:
Miranda:
Watch their full podcasts on Ampersand’s LinkedIn page.
Laura-anne Langlands
Laura-anne has extensive experience of pursuer and defender clinical negligence work and pursuer and defender personal injury work having been a solicitor focusing on these practice areas for 16 years. During her time working at the Central Legal Office she represented health boards and dealt with workplace personal injury actions and many complex clinical negligence actions, including birth injury, delayed and misdiagnosis and fatal claims. When in private practice she primarily represented pursuers in high value catastrophic personal injury claims and fatal claims arising from accidents at work and road traffic accidents. She also acted for pursuers in complex clinical negligence matters.
Miranda Cannibal
Miranda is an advocate at Ampersand Advocates, bringing nine years’ post-qualification experience as a civil and commercial litigation solicitor specialising in construction and professional negligence disputes which she was recommended for in the Legal 500 as a solicitor. She has a strong track record across ADR and court, having conducted adjudications and arbitrations and appeared in proofs, debates and professional disciplinary proceedings. She also tutors on the Civil Procedure Court at the University of Edinburgh’s Diploma in Professional Legal Practice.
For further information about their practices view their profiles on the Ampersand Advocates website: Our People – Ampersand Advocates
To instruct either of them, please contact the Ampersand Clerking Team: ampersandclerks@advocates.org.uk.
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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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& the devil is in the detail: Laura-anne Langlands
In this Ampersand Live session, Alan Moffat sits down with Laura-anne Langlands as she prepares to call as an advocate at Ampersand.
Now available on demand – this was broadcast live on Monday 15 June 2026 at 12.30pm, with questions from Deputy Clerk, Sheena Hume.
Laura-anne talks candidly about her journey to the Scottish Bar – the experiences and influences that shaped her decision, the moment she knew advocacy was the right path, and the intensity of the devilling process at the Faculty of Advocates. She also shares her plans for calling and beyond: the areas of law she’s passionate about and the kind of work she hopes to take on as she begins her career as an advocate.
Whether you’re considering a career at the Bar, looking to instruct new counsel, or simply curious about the journey from solicitor to advocate, Laura-anne’s story offers a compelling insight into the next generation at Ampersand.
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