Mandatory Ultrasound Referral for Fundal Height Discrepancies: Commentary on Claire Bayne or Wilkie v Tayside Health Board [2025] CSOH 111

1. Introduction

This case concerns catastrophic birth injury litigation arising from events at the Perth Midwifery Led Unit (PMLU) in 2010. The pursuer, Claire Bayne (now Wilkie), sues on behalf of her daughter, Maisie, who sustained severe hypoxic brain injury during labour and now has quadriplegic cerebral palsy.

Two central features frame the dispute:

• The structure of NHS Tayside’s maternity care pathways (green, amber, red) and the criteria for midwife-led care at the PMLU versus consultant-led care at Ninewells Hospital, Dundee.
• The defenders’ antenatal referral protocol, particularly the trigger for ultrasound scanning where the symphysis–fundal height (SFH) is 3 cm less than the gestational age.

The defenders accepted that had labour and delivery occurred at Ninewells, Maisie would have been born uninjured. The key legal question was therefore whether there was antenatal negligence that ought to have resulted in care being escalated so that birth took place at Ninewells rather than at PMLU.

By the time of submissions, two alleged breaches remained in issue:

1. Alleged negligent advice or information about emergency transfer times from PMLU to Ninewells.
2. Alleged negligent failure by midwife Bannerman to refer the pursuer for an ultrasound scan on 1 April 2010, when the SFH was 37 cm at 40 weeks’ gestation (a 3 cm discrepancy), contrary to the Health Board’s own referral protocol.

The proof before answer was restricted to negligence and causation; quantum was left to a later hearing.

2. Summary of the Judgment

Lord Young held:

• No liability on the “transfer time” issue. On the evidence, he did not accept that staff told the pursuer and her husband that:
  • Transfer to Ninewells would take 12 minutes; or
  • An ambulance would be on standby.
  He also rejected an attempt, made only in final submissions, to recast the case as one about failing to clarify that transfer times were not guaranteed.
• Liability established on the antenatal care issue.
  • On a proper construction of the referral protocol, an SFH measurement 3 cm less than gestational age mandated referral for an ultrasound scan. The words “Use own clinical judgement” did not entitle a midwife to decline referral once that objective trigger was reached.
  • On the facts, midwife Bannerman probably did not appreciate or act upon the 3 cm discrepancy at all; she did not actually exercise any conscious, reasoned clinical judgment about whether to scan.
  • Failure to arrange a scan was therefore a breach of duty.
• Causation was established:
  • An ultrasound in early April 2010 would have suggested fetal growth restriction and moved the pursuer to the amber/red pathway, requiring delivery at Ninewells.
  • At Ninewells, labour would have been monitored with continuous cardiotocography (CTG). The chronic placental insufficiency and Maisie’s relative vulnerability would have made her less able to cope with labour; CTG would have detected fetal distress earlier, leading to expeditious delivery.
  • Maisie would have been born uninjured had she been delivered between 12:15 and 12:45 on 6 April 2010; a scan-triggered change in birth setting and monitoring would have averted the injury.

The court therefore found the defenders liable to make reparation, repelled the defenders’ first to fourth pleas-in-law on liability, and ordered a proof on quantum. Expenses were reserved.

3. Factual and Medical Background

3.1 Maternity Pathways and the PMLU/Ninewells Structure

The NHS Scotland 2009 document “Pathways for Maternity Care” introduced a “traffic light” categorisation:

• Green pathway: low-risk, healthy women with uncomplicated pregnancies, ordinarily managed by midwives, suitable for midwife-led units like PMLU.
• Amber pathway: presence or suspicion of a risk factor needing further assessment; the woman may move to green or red following investigation.
• Red pathway: consultant-led, multidisciplinary care for women with significant medical or obstetric risk factors; delivery at a consultant unit (here, Ninewells).

Crucially, every antenatal contact is a fresh risk assessment, reflecting the dynamic nature of pregnancy risks. A core philosophy is informed, shared decision-making, with the mother provided with up-to-date, evidence-based information about options.

In 2010:

• PMLU offered both antenatal care and midwife-led birthing facilities, but it was not suitable where mother or baby was likely to require medical or surgical intervention.
• Inductions, instrumental deliveries and caesarean sections were carried out at Ninewells.
• There was no dedicated ambulance stationed at PMLU; emergency calls were made as needed, though ambulances tended to arrive quickly because of local geography.
• Ninewells, 22 miles away, had:
  • Its own midwife-led unit;
  • 24/7 obstetric and neonatal staff;
  • On-site ultrasound; and
  • Theatres suitable for urgent intervention.

For delivery at PMLU, the woman had to remain on the green pathway. Any significant risk factor (e.g. suspected fetal growth restriction) should have led to escalation and delivery at Ninewells.

3.2 Symphysis–Fundal Height and the Referral Protocol

The pursuer’s pregnancy was largely uneventful. Regular SFH measurements between weeks 24 and 38 matched gestation or were within expected variation. A brief move to the amber pathway occurred at 36–37 weeks for suspected breech, but an ultrasound confirmed cephalic presentation and estimated fetal size around the 50th centile. She returned to the green pathway.

SFH is the distance (in cm) from the pubic bone to the top of the uterus. As a rough rule of thumb:

• SFH (in cm) ≈ gestational age (in weeks),
• with an accepted tolerance of a few cm.

The 2010 referral protocol contained a table of “problems arising during pregnancy” and corresponding “actions”. The relevant entry was:

Problem: “Fundal height 3 cm < gestation or clinically small for dates or oligohydramnios.”

Action: “Use own clinical judgement. Refer Consultant Clinic with scan within 1 week.”

Thus, SFH 3 cm less than gestation, clinical impression of “small for dates”, or suspicion of low amniotic fluid (oligohydramnios) were all flagged as potential problems, with some reference to “use own clinical judgement” in deciding upon referral.

3.3 The Critical Antenatal Appointment – 1 April 2010

On 1 April 2010 (40 weeks’ gestation and the estimated due date), midwife Bannerman examined the pursuer:

• SFH was recorded at 37 cm (a 3 cm discrepancy from 40 weeks).
• The fetal head was noted as 2/5 palpable (substantially engaged in the pelvis).
• Fetal movements were reported as normal; there were no maternal health concerns.

No ultrasound referral was made. No discussion of SFH discrepancy took place. The pursuer left that appointment believing all was well and that she remained suitable for PMLU delivery.

3.4 Labour, Injury and Agreed Elements of Causation

The pursuer went into labour at PMLU on 6 April. There was an admitted failure by midwifery staff to auscultate the fetal heart every 5 minutes between 11:00 and 13:05, contrary to standard intrapartum monitoring practice, but that breach was not argued to be causative of injury at proof.

Maisie was eventually delivered by emergency episiotomy at 14:15 after a bradycardic episode (heart rate falling to 100 bpm then to 60 bpm). She required resuscitation and transfer to Ninewells.

Postnatally:

• Maisie weighed 2920 g (around the 9th–13th centile depending on the reference population).
• The placenta weighed 408 g; the birthweight/placenta weight ratio of 7.2 was abnormal and indicated a placenta too small to sustain normal intrauterine growth.

It was agreed that:

• Maisie suffered both chronic partial hypoxia (from placental insufficiency) and an acute profound hypoxic insult during labour, causing her cerebral palsy.
• An ultrasound on or shortly after 1 April 2010 would have raised concern about growth restriction.
• That concern would have moved the pursuer onto the amber or red pathway, mandating delivery at Ninewells with CTG monitoring.
• Had Maisie been delivered between 12:15 and 12:45 on 6 April, she would have been born uninjured.

4. Analysis of the Legal Issues

4.1 The Transfer-Time Allegation

4.1.1 Pleadings and Late Shift in Theory

Originally, the pursuer’s case averred that PMLU staff had understated transfer times (specifically, stating 12 minutes). In final submissions, counsel attempted to pivot: the main complaint became that staff had failed to make clear that transfer times could not be guaranteed, and had (it was said) wrongly implied that transfer was subject to a fixed maximum time.

Lord Young upheld the defenders’ objection in part:

• The “no guarantee” theory was not foreshadowed in the pleadings (Articles 11 and 16 of condescendence focused solely on understatement of time).
• Witness statements did not focus on guaranteed transfer times either.
• The “guarantee” theory only emerged through leading questions in examination-in-chief and was then elevated at the close of proof. To allow such a new case at that stage would be unfair.

However, the court rejected the defenders’ original specification objection in relation to the “12-minute” allegation. Given the pursuer could not reasonably identify the individual midwife who conducted the tour, but could narrow it to date and place, that level of specification was sufficient.

4.1.2 Evaluation of the Evidence

The pursuer and her husband both recalled being told:

• That transfer from PMLU to Ninewells would take 12 minutes; and
• That an ambulance would be “on standby”.

By contrast, midwives gave evidence that while ambulances arrived promptly when called, typical transfer times were around 20–25 minutes, and that there was no dedicated ambulance at PMLU.

Lord Young preferred the defenders’ evidence, for reasons of inherent probability:

• It is “inherently unlikely” that a midwife would suggest a transfer time as short as 12 minutes for a 22‑mile journey, especially when all professional witnesses put normal times at almost double that.
• Even the pursuer’s husband, a police officer, recognised that 12 minutes would be exceptionally quick and only achievable in ideal conditions.
• More plausibly, the couple either misheard or misremembered the figure in light of subsequent traumatic events.
• Similarly, given the evidence about ambulance practice, the judge did not accept that any midwife would have claimed there was an ambulance permanently on standby.

The judge also rejected any implication that staff deliberately oversold PMLU or misled the pursuer regarding comparative safety. He acknowledged that, understandably, the pursuer may retrospectively feel that positives were emphasised and negatives underplayed, but that perception was not borne out evidentially as a matter of deliberate misrepresentation.

4.1.3 Legal Significance

Although fact-specific, several broader points emerge:

• Pleading discipline: A new, materially different theory of breach (failing to warn that times are not guaranteed) cannot be introduced for the first time in submissions, especially where it would have influenced the defenders’ preparation and cross‑examination strategy.
• Reliability of recollection: In clinical negligence, courts will test lay recollections against inherent probabilities and objective background (geography, typical ambulance practice). Where a recollection appears implausible, the court may find an honest but mistaken memory rather than deceit.
• Information for decision-making: This was not a Montgomery-style informed consent case, but it shows a court’s caution before finding negligent misinformation about emergency capabilities in the absence of clear evidence.

4.2 The Ultrasound Referral and Construction of the Protocol

4.2.1 Did Midwife Bannerman Exercise Clinical Judgment?

Before construing the protocol, Lord Young confronted a factual threshold question: did midwife Bannerman actually:

1. Identify the 3 cm SFH discrepancy; and
2. Consciously exercise clinical judgment not to refer for ultrasound?

Bannerman had no independent recollection and relied on the records and her description of normal practice. She said that:

• She recognised 3 cm discrepancies as potentially warranting investigation, but regarded them as part of a broader clinical picture;
• She would weigh SFH alongside history, recent ultrasound (at 37 weeks showing 50th centile size), maternal health, fetal movements and head engagement; and
• If, after applying this clinical judgment, she considered no growth problem existed, she would not discuss the discrepancy with the mother, nor would she routinely record that judgment in the notes.

Lord Young was unpersuaded that this is what happened on 1 April:

• No discussion with the pursuer: in a system that seeks to involve mothers in decisions about their care pathway, the complete absence of any conversation about a newly identified SFH discrepancy suggested that Bannerman had not in fact recognised or weighed it.
• Absence of note: while the court accepted (following McConnell) that it should not insist on “defensive record‑keeping”, the lack of any notation that a problem had been identified and consciously dismissed was a relevant factor, particularly where the alleged judgment was critical to the antenatal risk assessment.
• Unclear “usual practice”: midwife Bannerman did not convincingly describe what her usual practice was in similar situations, nor how she differentiated between women who were referred for scanning and those who were not when SFH fell 3 cm below gestation. Nor was there supporting evidence from colleagues that they systematically used head engagement as a justification for not scanning.

On balance, the judge concluded that:

“I find myself unable to accept that midwife Bannerman took a conscious decision not to refer for an ultrasound…” ([43])

Instead, she probably either failed to notice the discrepancy as clinically significant, or simply failed to act on it.

4.2.2 Construction of “Use own clinical judgement” in the Protocol

The core legal issue was the meaning of the referral protocol entry:

“Fundal height 3 cm < gestation or clinically small for dates or oligohydramnios. Use own clinical judgement. Refer Consultant Clinic with scan within 1 week.”

The pursuer contended:

• An SFH 3 cm below gestational age was a mandatory trigger for ultrasound referral – a “red flag” leaving no discretion to withhold a scan.
• The “Use own clinical judgement” phrase applied to “clinically small for dates” and “oligohydramnios” – conditions requiring subjective assessment – but not to the objective SFH measurement.

The defenders argued:

• The phrase “Use own clinical judgement” qualified the entire line, including the 3 cm measurement; midwives were expected to consider the whole clinical context.
• Given the crudeness of SFH as a tool, and the high rate of false positives, a midwife could reasonably decide not to scan where SFH was 37 cm at 40 weeks in an otherwise low-risk, healthy pregnancy, especially where head engagement offered an alternative explanation.

Lord Young accepted the pursuer’s construction. His reasoning is central to the case and merits setting out carefully.

4.2.3 The Five Key Reasons for the Court’s Interpretation

Lord Young identified multiple, interlocking reasons why “Use own clinical judgement” did not qualify the SFH measurement trigger:

1. Objective measurement does not require clinical judgment simply to identify the problem ([46]).
   Where the “problem” is defined in purely numerical terms (“Fundal height 3 cm < gestation”), there is little room for judgment as to whether the criterion is met. Either the discrepancy exists or it does not. Clinical judgment is naturally engaged when dealing with non-numerical assessments (e.g. “clinically small for dates”, “oligohydramnios”).
2. If the intention was to leave SFH-based referral to discretion, the measurement trigger becomes redundant ([47]).
   If a midwife may always override the 3 cm discrepancy by clinical judgment, why specify it at all? The protocol could simply have said “suspected small for dates” and left it entirely to clinical impression. Including an explicit measurement strongly indicates that exceeding that threshold is intrinsically significant.
3. Both parties’ experts accepted that “Use own clinical judgement” at least ensures referral in cases where the measurement is normal but clinical suspicion persists ([48]).
   The phrase therefore obviously applies to the subjective conditions (“clinically small for dates”, “oligohydramnios”) and ensures that a midwife is not barred from referring just because the SFH is within 3 cm of gestational age. It would be odd, the judge reasoned, if:
   • A reassuring SFH allowed referral where the midwife was worried; but
   • An unreassuring SFH (3 cm discrepancy) allowed the midwife to avoid referral if she was subjectively unconcerned.
   That asymmetry would be counterintuitive in a screening protocol.
4. The purpose of the protocol is to operate as a first-line screening gateway to ultrasound scanning for a condition with potentially catastrophic consequences ([49]).
   SFH is:
   • Quick and inexpensive to measure;
   • A very crude screening tool, with many false positives; but
   • Useful precisely to identify a broader group for more accurate investigation via ultrasound.
   Ultrasound is non-invasive, relatively easy to arrange, and the only realistic way to evaluate fetal growth and placental sufficiency antenatally. There is “no real downside” to scanning more women once they meet the objective screening threshold, compared to the potential cost of missing true growth restriction. It would therefore “make little sense” to erect a further “clinical judgement” hurdle once the objective threshold is crossed.
5. Clinical judgment cannot robustly reassure against growth restriction in the presence of a 3 cm SFH discrepancy ([50]).
   The factors Bannerman claimed to rely on – good maternal health, normal fetal movements, a reassuring 37‑week scan, head engagement – do not reliably exclude late‑onset placental insufficiency:
   • Maternal wellbeing does not reliably mirror fetal growth.
   • Placental deterioration can occur late; a normal scan at 37 weeks does not exclude restriction at 40 weeks.
   • Reduced fetal movements usually appear late in the course of established restriction, not early.
   To allow such an uncertain set of clinical impressions to block access to the only effective diagnostic tool (ultrasound) when the basic screening test has already signalled possible restriction would be illogical from a patient safety perspective.

On this construction, once the SFH was recorded at 37 cm at 40 weeks, the protocol required referral for ultrasound; clinical judgment could justify earlier or additional referrals, but not a decision to decline scanning where the measurement trigger had been reached.

4.2.4 The “Head Engagement” Argument

The defenders’ experts contended that engagement of the fetal head could account for the reduced SFH, and that this justified Bannerman’s alleged decision not to refer.

Lord Young analysed this contention closely:

• There was no evidence that midwives are taught, as a standard part of training, that SFH may legitimately fall once the head engages.
• The widely used Myles’ Textbook for Midwives states that “the height of the fundus in centimetres should correspond with weeks of gestation to the nearest 3 cm”, without any caveat about head engagement reducing SFH values.
• The Intergrowth 2016 study, relied on by Professor Sanders to show that 37 cm at 40 weeks was between the 10th and 50th centiles, in fact showed an ongoing upward trend in SFH to 40 weeks, not a typical decline.
• The single diagram in Myles showing the week‑40 fundal height line anatomically lower than the week‑36 line was more plausibly (as Dr Owen suggested) illustrating relative positions on the torso, not a literal reduction in measured SFH.

At best, the court accepted, it is possible that some women’s abdominal profile may change as the head engages. But there is no reliable evidence to support a general proposition that a late 3 cm discrepancy can safely be attributed to head engagement rather than to growth restriction. Accordingly, Bannerman could not legitimately rely on head engagement as a basis for avoiding the referral indicated by the protocol.

4.2.5 Breach of Duty and Causation

Having found that:

• The protocol mandated referral once SFH 3 cm < gestational age was recorded; and
• Bannerman did not in fact exercise any conscious, reasoned clinical judgment to depart from that mandate,

Lord Young held that:

• There was a breach of duty in failing to arrange an ultrasound scan on or about 1 April 2010.
• On agreed and unchallenged expert evidence, that scan would have led to:
  • Suspicion of fetal growth restriction;
  • Transfer from the green to the amber/red pathway; and
  • Delivery at Ninewells with continuous CTG monitoring.
• At Ninewells, Maisie’s compromised condition would have been detected earlier via CTG, and the delivery would have been expedited before irreversible hypoxic injury occurred, particularly given the agreed “window” between 12:15 and 12:45.

Thus, the failure to implement the protocol was both negligent and causative of Maisie’s injury.

4.3 Alternative Negligence Analysis: Ordinary Practice and Bolitho

Lord Young also addressed, in the alternative and for completeness, whether midwife Bannerman would have been negligent if:

• The protocol did permit a midwife to withhold referral after exercising clinical judgment; and
• She had in fact done so.

This engages the standard professional negligence framework:

• In Scotland, the classic test is from Hunter v Hanley: whether the professional has failed to exercise the ordinary skill and care of a competent practitioner, as evidenced by normal and usual practice.
• In English terms, this parallels the Bolam test (reasonable body of professional opinion), qualified by Bolitho, which allows a court to disregard such a body of opinion if it is not capable of withstanding logical analysis.

On this counterfactual analysis, the judge concluded:

• Although a 3 cm discrepancy is widely taught as a “concern” marker, there is no single, uniform practice across the UK requiring ultrasound referral whenever a single SFH measurement shows such a discrepancy.
  • Some health boards emphasise isolated measurements; others use serial plotting on customised charts.
  • Some rely on crossing centile lines rather than an absolute 3 cm threshold.
  • Resourcing considerations legitimately influence how generously ultrasound is deployed.
• Accordingly, there is no clearly established “normal and usual” practice that would make a non‑referral (in the abstract) a deviation from professional standards.
• Moreover, Bannerman’s notional decision not to scan was supported by two responsible experts (Professor Sanders and Dr Ferguson), who considered it reasonable to interpret a single 37 cm measurement at 40 weeks as consistent with a fetus within the normal range.
• In light of Bolitho, the judge could not say that this professional approach was “devoid of all logic” – differences in how scarce scanning resources are rationed can legitimately produce different, but rational, thresholds.

He therefore accepted that, were the protocol genuinely discretionary, a decision not to scan might not, on its own, have been negligent. Liability arises here because the Health Board’s own protocol removed that discretion once the 3 cm trigger was crossed, and the midwife failed to act on it.

5. Precedents Cited and Their Influence

5.1 McConnell v Ayrshire & Arran Health Board (2001)

Lord Young cited Lord Reed’s warning in McConnell against fostering “defensive record‑keeping” by expecting clinical notes to record every detail of judgment or conversation. The principle is:

• The absence of a note does not automatically prove that an event did not occur.
• Equally, notes are evidence and their silence on a point may legitimately contribute to an inference, especially when considered alongside other factors.

In this case, Lord Young carefully applied that balance:

• He did not treat the absence of a note about clinical judgment as conclusive.
• But when combined with the lack of any discussion with the pursuer about the discrepancy, and the absence of a clearly described “usual practice” for managing 3 cm discrepancies, the silent records supported the conclusion that no conscious judgment had been exercised.

The judgment therefore refines how Scottish courts may use clinical records: as important, but not exhaustive, evidence, and part of a broader mosaic rather than a decisive binary.

5.2 Bolitho v City & Hackney Health Authority [1998] AC 232

Bolitho is central to modern professional negligence law. It holds that:

• Courts normally defer to a “responsible body of professional opinion” (Bolam / Hunter v Hanley), but
• They may reject that body of opinion where it is not capable of withstanding logical analysis – i.e. where it is internally inconsistent, ignores clear risks, or is not defensible against rational scrutiny.

In this case, Bolitho was invoked by the pursuer to argue that any midwifery opinion tolerating non‑referral in the face of a 3 cm discrepancy should be disregarded as illogical. Lord Young declined to go that far. He accepted that:

• Resource allocation and differing local policies can justify different referral thresholds as long as the reasoning is coherent.
• Therefore, a responsible body of opinion not referring every single woman with a 3 cm discrepancy, in the absence of any binding protocol, is not necessarily irrational.

Instead, he grounded liability in the failure to apply a binding local protocol, rather than in the inherent illogic of the professional opinion itself. This is a careful, conservative application of Bolitho, illustrating judicial reluctance to brand mainstream professional views as irrational unless clearly warranted.

6. Complex Concepts Explained

6.1 Maternity Pathways and Midwife-Led Units

• Green pathway: Low-risk women with uncomplicated pregnancies. Midwife‑led care, often suitable for free‑standing midwife-led units like PMLU.
• Amber pathway: A risk factor has emerged or is suspected (e.g. possible growth restriction). Further assessment is needed – often by obstetricians – before deciding whether to return to green or escalate to red.
• Red pathway: High-risk. A consultant obstetrician leads care; delivery should occur in a facility with full medical and surgical capability (like Ninewells).

6.2 Symphysis–Fundal Height (SFH)

SFH is a simple measurement:

• Measure from the top of the pubic bone (symphysis pubis) to the top of the uterus (the fundus) in centimetres.
• Because uterine size reflects fetal growth, SFH provides a rough estimate of whether the baby is growing appropriately.
• Rule of thumb: SFH (cm) ≈ gestational age (weeks), with about ±2–3 cm tolerance.

SFH is a screening tool: it is cheap, quick and simple, but not very precise. Many women with abnormal SFH measurements will have entirely healthy babies (false positives). Ultrasound scanning is then used as a more accurate, diagnostic tool to distinguish true from false positives.

6.3 Centiles and Fetal Growth Restriction

• Centiles: Statistical percentiles describing where a baby’s weight or size lies in relation to a reference population. For example, the 50th centile is the median; the 10th centile means that 10% of babies are smaller and 90% larger.
• Small for gestational age (SGA): Often defined as below the 10th centile. Such fetuses may be constitutionally small or may have pathological growth restriction.
• Growth restriction (intrauterine growth restriction, IUGR): The fetus is unable to achieve its genetically predetermined growth potential, frequently due to placental insufficiency.

6.4 Cardiotocography (CTG)

CTG is continuous electronic monitoring of:

• Fetal heart rate; and
• Uterine contractions.

It allows clinicians to see patterns of variability in heart rate, accelerations and decelerations that may indicate fetal hypoxia (insufficient oxygen) and to intervene (e.g. expedite delivery) before irreversible brain injury occurs. At PMLU, intermittent auscultation with a Doppler was standard; continuous CTG was standard practice at Ninewells for fetuses considered growth-restricted or otherwise high‑risk.

6.5 “Proof before answer” and Pleas-in-law

• Proof before answer: A Scottish civil procedure term indicating that the court hears evidence on certain issues (here, negligence and causation) before deciding on legal issues or finally disposing of all pleas‑in‑law.
• Pleas-in-law: The formal legal propositions, at the end of each party’s pleadings, which set out the legal basis for the orders sought (e.g. that the action should be dismissed, or that decree should be granted for damages).

7. Impact and Broader Significance

7.1 Status and Precedential Value

This is an Outer House decision of the Court of Session – a first-instance judgment. It is not binding on other Outer House judges or on the Inner House, but it is likely to be persuasive, particularly given the detailed engagement with clinical evidence and the clarity of the reasoning on protocol interpretation.

7.2 Protocols vs Clinical Judgment in the NHS

The most significant legal development is the court’s treatment of clinical protocols:

• Where a Health Board promulgates a protocol with an objective measurement (e.g. SFH 3 cm below gestation) as a specific trigger for further investigation, that threshold will ordinarily be interpreted as mandatory, unless the document plainly states otherwise.
• Phrases like “Use own clinical judgement” will be read in context. They are more likely to:
  • Empower clinicians to escalate in borderline cases where the objective threshold is not met; and
  • Ensure that subjective concerns about “small for dates” or fluid levels can still generate referrals,
  than to authorise clinicians to ignore objective triggers once reached.
• A health authority that has adopted such a protocol cannot later rely on resourcing arguments to justify non-compliance at the individual level.

This has clear implications:

• Health Boards must ensure that protocols are clearly drafted. If discretion is intended for objective triggers, it should be spelled out.
• Midwives and clinicians must understand that deviation from objective criteria in protocols can constitute negligence, especially where such criteria guard against high-consequence risks like fetal growth restriction.

7.3 Evidence, Records and “Usual Practice”

The judgment also speaks to forensic and evidential practice in clinical negligence:

• Courts will not simply accept ex post facto claims of “I would have used my clinical judgment” where:
  • Records are silent;
  • There was no discussion with the patient about the issue; and
  • The alleged “usual practice” is not independently evidenced or coherent.
• McConnell is not a shield against reasonable inferences drawn from silence in the records when combined with other factors.
• Hospitals may wish to consider whether, for key risk‑based decisions (e.g. to depart from a protocol), there should be a brief written note of the reasoning, to assist both patient care and future scrutiny.

7.4 Screening, Resource Allocation and the Court’s View of Risk

The court’s reasoning highlights a policy preference:

• When:
  • The screening test is cheap and crude (SFH), and
  • The diagnostic test is safe and relatively accessible (ultrasound), while
  • The harm from a missed diagnosis is serious (catastrophic brain injury),
  it is rational for protocols to err on the side of scanning more women, even at the cost of many false positives.
• Courts are wary of allowing “clinical judgment” to undercut such protective screening strategies unless there is clear, evidence-based justification.

While resource constraints are real, they are expected to be factored into the design of the protocol. Once that protocol is in place, an individual clinician cannot unilaterally rewrite resource policy by ignoring its objective triggers.

7.5 Litigation Strategy: Pleadings and FOI Material

The case underscores:

• The importance of precise pleadings. New breach theories emerging at proof will be vulnerable to objections if they materially alter the case the defender must meet.
• Limited evidential value of FOI summaries. The pursuer sought to rely on a 2016 FOI response summarising the protocol as if it commanded unconditional referral at 3 cm discrepancy. Lord Young declined to use such a later, summarised description as an interpretive tool for the original protocol; primary documents and contextual clinical evidence carry more weight.

7.6 Implications for Fetal Growth Restriction Cases

For future Scottish cases involving alleged failure to detect fetal growth restriction:

• This judgment will be a key authority on:
  • The meaning and legal effect of SFH‑based referral protocols;
  • The interaction between SFH discrepancies, ultrasound referral, and pathway allocation (green/amber/red); and
  • The expectation that growth‑restricted babies often cannot safely undergo a “normal” labour in a midwife‑led unit without continuous electronic monitoring.
• Defenders will need to show either:
  • That objective protocol triggers were not in fact met; or
  • That the protocol did not intend mandatory referral at the threshold, if they wish to defend a decision not to scan.
  • Pursuers will likely rely on this case to argue that where SFH‑based protocols exist, clinicians cannot invoke subjective reassurance about maternal wellbeing to justify not scanning once thresholds are reached.

  8. Conclusion

  Claire Bayne or Wilkie v Tayside Health Board [2025] CSOH 111 is an important addition to Scottish clinical negligence jurisprudence, particularly in obstetrics and midwifery. Its main contributions can be summarised as follows:

  • It holds that a Health Board’s antenatal referral protocol, using SFH 3 cm less than gestation as a trigger, imposed a mandatory duty to arrange ultrasound scanning. The phrase “Use own clinical judgement” did not dilute this duty where the objective threshold was met.
  • It emphasises that “clinical judgment” is principally engaged in:
    • Recognising when subjective signs (“clinically small for dates”, oligohydramnios) justify referral, even absent an abnormal SFH; and
    • Justifying earlier or more frequent use of diagnostic tools, not in overriding objective triggers.
  • It illustrates a careful evidential approach:
    • Courts will not infer the exercise of clinical judgment purely from professionals’ assertions about what they “would have done”, especially in the face of silent notes and absent patient discussion.
    • However, courts also resist imposing unrealistic record-keeping burdens.
  • It clarifies the boundary between professional deference and judicial oversight:
    • Bolitho remains a high threshold; courts will not readily label mainstream professional approaches as illogical.
    • But they will enforce local protocols as defining the standard of care once adopted.
  • On the information/transfer-time issue, it demonstrates judicial caution in accepting serious allegations of misrepresentation without strong evidential support, and reinforces the need for precise pleadings.

  Ultimately, the case underlines that where simple antenatal screening identifies a potential risk – particularly one as grave as fetal growth restriction – and where a clear protocol mandates escalation to precise diagnostic testing, failure to follow that protocol will likely be held negligent when harm ensues. For maternity services, the judgment is a clear signal that objective risk thresholds embedded in local guidance are not mere suggestions: they are obligations.