Lynda O’Neill and others v Scottish Ambulance Service Board [2025] CSOH 17

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.

Ampersand’s Lauren Sutherland KC acted for the pursuers with Hugh Masters as junior counsel, instructed by Drummond Miller LLP.

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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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