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Lynda O’Neill and others v Scottish Ambulance Service Board

Ampersand’s Lauren Sutherland KC acted for the pursuers with Hugh Masters as junior counsel, instructed by Drummond Miller LLP, in this sad case which arose out of the death in June 2020 of Brian O’Neill. At the time of his death Mr O’Neill was visiting an off-grid hutting community. One evening he fell and sustained a significant laceration to his head. He was attended to in the first place by a psychiatrist, who was also visiting the hutting community and who was, to that extent, “off duty”. A 999 call was made and triaged into the ‘green category’ to be the subject of further triage.

A second 999 call followed, made by a paramedic employed by the defenders. The call was, in substance, to the psychiatrist. The content of the call was very controversial. The psychiatrist’s evidence was that she felt that Mr O’Neill needed to go to hospital, and told the paramedic that. The paramedic gave evidence that the psychiatrist said that she would look after Mr O’Neill without further assistance. After the call ended an ambulance was not sent. The psychiatrist left Mr O’Neill in his hut overnight.

The following morning Mr O’Neill was found on the floor of his hut. He was not breathing and a third 999 call was made. Ambulances were despatched but he could not be resuscitated.

The nub of the case was the second 999 call. The pursuers argued that the paramedic who made it should have sent an ambulance. The defenders argued that the psychiatrist had told the paramedic that an ambulance was not required, and that it was reasonable in those circumstances for the paramedic to decide not to send an ambulance.

The case came to proof before Lord Young. He preferred the evidence of the psychiatrist and found the paramedic to have breached her duty by not sending an ambulance after the second 999 call. He awarded the pursuers more than half a million pounds in damages.

The Opinion of Lord Young can be viewed here.

 

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SYLA event: Beyond the Basics – Clinical Negligence

SYLA event in partnership with Ampersand Advocates

The Scottish Young Lawyers Association is delighted to present Beyond the Basics of Clinical Negligence on Wednesday, 29th January 2025 at 9am.

We are pleased to welcome Ayla Iridag, Advocate, Andrew Pollock, Partner at Drummond Miller and Katherine Trail, Solicitor at the NHS Central Legal Office.

Our speakers will discuss recent Scottish cases, the NHS and SPSO Complaints Procedure, how to satisfy the Hunter v Hanley test , the role of Fatal Accident Inquiries, the process of ingathering evidence as a Pursuer and Defender agent, the role of experts and counsel as well as the important of being a trauma-informed lawyer. This is a not-to-miss event for both Trainee Solicitors and Practitioners with an interest in clinical negligence and is TCPD authorised. Attendance will be recorded for TCPD purposes.

This event is partnered with Ampersand Advocates and will be available for members to attend at Thorntons Law LLP, 4th Floor Lomond House, 9 George Square, Glasgow G2 1DY or via Zoom from 9am. There will be an opportunity for a Q&A with the audience. Please submit questions in advance to mail@syla.co.uk

Visit Eventbrite for details and to sign up.

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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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