Parens patriae in Scotland: Court of Session may authorise urgent treatment despite parental refusal, but not routine immunisation

Court: Scottish Court of Session (Outer House)  |  Judge: Lord Braid  |  Citation: Petitions of (First) Greater Glasgow Health Board, (Second) Greater Glasgow Health Board and (Third) Borders Health Board [2026] CSOH 76  |  Date: 20 August 2026

1. Introduction

This combined opinion addresses three closely timed petitions by NHS health boards seeking authorisation for medical treatment of three children (A, B and C) who lacked capacity to consent, where parents refused consent. Two petitions (children A and B) arose from parental religious objection to blood transfusion associated with life-preserving treatment. The third (child C) involved urgent post-exposure tetanus prophylaxis (a tetanus-containing vaccine and immunoglobulin) after a dog bite, opposed by the parents on “natural lifestyle” and vaccine-sceptical grounds.

In each case the Court of Session:

  • appointed a curator ad litem to represent the child’s interests;
  • made anonymity and non-identification orders; and
  • ultimately authorised medical intervention, though sometimes more narrowly than first sought.

Beyond disposing of the individual petitions, Lord Braid used the opinion to (i) clarify procedural expectations (including intimation on the walls of court under RCS 14.7), (ii) situate the jurisdiction in light of the UNCRC (Incorporation) (Scotland) Act 2024, and (iii) reject the proposition that parens patriae should not be exercised where parents are alive but refuse consent (with resort instead to child protection orders).

2. Summary of the Judgment

2.1 Child A (brain cancer; refusal of transfusion)

The court authorised radiotherapy and chemotherapy necessary to give the child the best chance of cure and long-term survival, and authorised blood transfusion if clinicians considered it necessary to avoid serious harm or death. The court accepted evidence that anaemia and the need for transfusion could arise urgently, leaving insufficient time to return to court.

2.2 Child B (surgery complicated by sickle cell disease; refusal of blood products)

The court authorised surgery and the administration of blood products only as a last resort in emergencies, recognising extensive planning to minimise transfusion risk and reliance on non-blood management strategies. The order was granted in the “narrowest possible terms” proportionate to the risk scenario.

2.3 Child C (dog bite; urgent tetanus prophylaxis; parental opposition)

The court granted an interim order authorising two immediate injections required to address the acute tetanus risk: a tetanus-containing vaccine (REVARIX/REVAXIS as referred to in the petition and submissions) and immunoglobulin (IM TIG), and ordered the parents to take the child to hospital for that purpose. Importantly, the court declined (and the petitioner ultimately abandoned) any attempt to use parens patriae to compel the child’s entry into a longer-term routine vaccination schedule beyond what was required for the acute episode. Once the urgent purpose was achieved, the petition was dismissed.

3. Analysis

3.1 Precedents cited and their role

(a) Law Hospital NHS Trust v Lord Advocate 1996 SC 301

Law Hospital remains the foundational Scottish authority for the Court of Session’s ability to authorise medical treatment for a person lacking capacity. Lord Braid relied on it (as Lady Tait had recently summarised) for three core propositions:

  • the court can authorise treatment for a person (including a child) lacking capacity;
  • authorisation is based on the person’s best interests; and
  • the authorisation has the same legal effect as valid consent (including parental consent for a child).

The decision also featured procedurally: the petitions raised whether older “non-intimation” practice derived from Law Hospital had shifted given modern open justice emphasis. Lord Braid’s answer was rule-based rather than practice-based: RCS 14.7 now states parens patriae petitions “shall not be intimated on the walls of the court”, and the court cannot waive that requirement.

(b) A Scottish Health Board, Petitioner 2026 SLT 71

Lady Tait’s recent summary was adopted as a correct statement of the law on authorising treatment for those lacking capacity, including the best-interests test and treatment of religious views as a factor but not decisive. Lord Braid developed one point not addressed there: whether the child must be an orphan for parens patriae to apply (he held it need not).

(c) Aintree University Hospitals NHS Trust v James [2014] AC 591

The opinion adopted the principle (para 35) that there is a “strong presumption” that it is in a person’s best interests to stay alive. That presumption underpinned the approach in children A and B (where non-treatment carried a risk of death or grave harm) and informed the risk/harm balancing exercise in child C (where the risk of tetanus could not be precisely quantified, but the consequences could be extreme).

(d) Manchester University NHS Foundation Trust v Fixsler and others [2021] 4 WLR 123

Lord Braid applied the approach that religious views of the child or parents are relevant but do not have pre-eminent weight (para 81). In children A and B, the refusal of blood products flowed from the parents’ faith; the court nevertheless authorised transfusion if required to prevent death or serious harm. In child C, the parents’ principled “natural living” stance was treated respectfully but could not displace evidence-based assessment of a material risk of catastrophic outcome.

3.2 Legal reasoning

(a) Capacity and the gateway to court authorisation

The court proceeded on the basis that none of the children had capacity to consent. Lord Braid anchored this in the Age of Legal Capacity (Scotland) Act 1991: the general rule of incapacity under 16 (s 1(1)) and the healthcare exception in s 2(4), which was not met on the medical evidence.

(b) Best interests, proportionality, and “material risk”

The organising principle was welfare/best interests, but Lord Braid articulated the analysis as requiring a balancing exercise because authorising treatment over parental objection is an interference with family life and parental autonomy. The judgment emphasises that any authorisation must be a proportionate response to a material risk.

  • Children A and B: the risk was stark—potential death or serious harm without treatment (and, critically, urgency preventing a later return to court once deterioration occurred). Orders were therefore justified but were crafted narrowly, reflecting clinical thresholds and “last resort” use of blood products.
  • Child C: the decision was “finely balanced” and expressed in a structured two-question approach:
    1. What is the risk of the child developing tetanus without prophylaxis?
    2. What harm would occur if tetanus develops?
    Lord Braid accepted the risk was “greater than negligible” (even if unquantifiable), relying on medical evidence and guidance and rejecting speculation about “natural immunity”. On harm, there was little doubt: tetanus could entail severe illness, prolonged inpatient care, and a mortality risk around 10% even with treatment. This justified court intervention.

(c) Scope limit: urgent episode versus imposing “best practice” generally

A key limiting principle is stated explicitly in child C: parens patriae enables intervention “only in urgent situations”, and not to impose measures the medical profession considers generally beneficial “against the wishes of the parents” where there is no acute event. This boundary was operationalised by:

  • refusing to use the jurisdiction to compel follow-on routine vaccination doses not technically connected to the acute episode; and
  • granting authority only for what was required to mitigate the immediate, time-limited tetanus risk.

(d) Parens patriae is not confined to orphans

Lord Braid identified and answered a doctrinal question: whether the jurisdiction depends on the child being an orphan. He held it does not. If welfare requires consent to necessary treatment and parental consent is not available (whether because parents are deceased, absent, untraceable, or refusing for religious/moral/life-choice reasons), the jurisdiction may be invoked. Conceptually, the court may function as a “third parent” in deadlock/refusal scenarios—subject always to the proportionality constraints and respect for parental autonomy.

(e) UNCRC (Incorporation) (Scotland) Act 2024: confirmatory framework

The court treated itself as exercising a “relevant function” (a rule of law), thereby requiring compatibility with UNCRC requirements under the 2024 Act. The judgment highlights:

  • Article 3: best interests as a primary consideration;
  • Article 6: the child’s inherent right to life and state obligation to ensure survival and development to the maximum extent possible;
  • Articles 5 and 18: respect for parental responsibilities and guidance, aligned with (not overriding) best interests.

Practically, the UNCRC analysis did not drive a different outcome in these cases; it reinforced the direction already taken under Scots law.

3.3 Procedure and open justice: RCS 14.7, anonymity, and reporting

The opinion contains procedural guidance of real operational value:

  • Curator ad litem: appointed at the outset in each case; the curator’s scrutiny narrowed orders (notably in child C regarding routine vaccination). Lord Braid’s comparison with child protection orders underscores the curator as a key safeguard in this jurisdiction.
  • Anonymity orders: used to protect the child’s identity; health boards need not routinely be anonymised unless identification would lead to the child’s identification.
  • Intimation on the walls of court: Lord Braid held RCS 14.7 is determinative: parens patriae petitions “shall not” be intimated on the walls, and the court cannot waive that rule. Parties should therefore not seek dispensation from something the rules already prohibit.
  • Open justice: the cases are heard in open court, privacy being protected through anonymity; the media is alerted via intimation of the non-identification interim order.

3.4 Child protection orders as an alternative route: a restrained but clear rejection (on these facts)

Lord Braid expressly declined to lay down a universal rule about child protection orders under the Children's Hearing (Scotland) Act 2011. However, he provided pointed reasons why they were not apt on these facts—and why parens patriae should not be artificially displaced:

  • Mismatch of statutory thresholds and context: CPOs require reasonable grounds to suspect/believe neglect or treatment likely to cause significant harm (s 39). Here, the parents were described as loving, acting on their understanding of the child’s interests, and there were no social work concerns.
  • Counter-intuitive remedy design: CPO health assessment powers are tied to removal to a place of safety (s 37(2) and (4)). Removing a child from otherwise safe parental care solely to facilitate consent was viewed as inherently difficult to justify.
  • Safeguards and transparency: CPO applications are in chambers, can proceed without parental intimation, and do not involve a curator ad litem. Lord Braid contrasted this with the Court of Session process (curator, open court, anonymity rather than secrecy).
  • Timing risk: the children’s hearing system may engage only days later—potentially too late for urgent medical scenarios.

The practical message is that, where urgent treatment is required to avert death or serious harm and parental consent is refused, parens patriae is not merely available but may be the more welfare-attuned and procedurally safeguarded route.

3.5 Impact

(a) Doctrinal clarification: “orphanhood” not required

The most significant legal clarification is that parens patriae in Scotland is not confined to orphaned children. The jurisdiction is framed around welfare necessity and the unavailability of parental consent (in a functional sense), not the parents’ existence.

(b) A practical limiting principle: no parens patriae to enforce routine vaccination programmes

The judgment draws a careful line: the court may act to address an acute, time-sensitive medical risk (tetanus prophylaxis), but should not use parens patriae to override parents on longer-term, non-urgent public health “best practice” measures absent an acute trigger.

(c) Procedural guidance for health boards and practitioners

Health boards should expect:

  • early appointment and active use of a curator ad litem (including for narrowing orders);
  • open court hearings coupled with anonymity orders; and
  • no intimation on the walls of court in parens patriae petitions (RCS 14.7).

(d) Post-UNCRC litigation environment

By explicitly treating the court’s parens patriae decision-making as a “relevant function” under the UNCRC (Incorporation) (Scotland) Act 2024, the opinion signals that future disputes may be argued more directly through UNCRC framing (life, survival/development, best interests), even if outcomes often converge with established best-interests analysis.

4. Complex concepts simplified

  • Parens patriae: a power allowing the Court of Session to act as protector of those who cannot protect themselves (including children without capacity), authorising treatment as if valid consent had been given.
  • Best interests (welfare): the court’s primary lens—what most benefits the child overall, not what the parents prefer or what clinicians ideally want in the abstract.
  • Material risk and proportionality: the court intervenes only where there is a real (not fanciful) risk to the child, and the order goes no further than necessary to address that risk.
  • Curator ad litem: an independent court-appointed representative whose job is to advance the child’s interests; here, the curator’s scrutiny was pivotal in limiting the scope of orders (especially in the vaccination petition).
  • Child protection order (CPO): an emergency sheriff-court order typically aimed at protection from neglect or significant harm, often linked to removal to a place of safety and entry into the children’s hearing system; it is not simply a substitute mechanism for medical consent disputes.

5. Conclusion

[2026] CSOH 76 consolidates and develops Scottish parens patriae practice in urgent paediatric medical disputes. Lord Braid affirms that the Court of Session may authorise necessary treatment where a child lacks capacity and parents refuse consent—even when the parents are alive—provided intervention is proportionate to a material risk of serious harm or death. At the same time, the judgment marks a principled limit: parens patriae should not be used to impose non-urgent, routine healthcare programmes against parental wishes. Procedurally, the opinion clarifies that such petitions are heard openly with anonymity protection, and that RCS 14.7 prohibits intimation on the walls of court.