Parens Patriae Override of a Capacitated Under‑16’s Refusal of Blood: Adoption of the Three‑Stage “E” Framework in Scotland

1. Introduction

In Petition of a Scottish Health Board for the court to exercise its parens patriae jurisdiction to authorise medical treatment of Child A ([2025] CSOH 121), Lady Tait considered an urgent petition by a Scottish health board concerning a 14‑year‑old patient (“Child A”) who is a Jehovah’s Witness. Child A had made a clear and consistent decision, grounded in her religious beliefs, to refuse transfusion of “primary blood components” (commonly described as a blood transfusion) even in a life‑threatening emergency. Clinicians assessed her as having capacity to make that decision under section 2(4) of the Age of Legal Capacity (Scotland) Act 1991.

The health board sought a court order authorising clinicians to administer any and all blood products, if necessary to avoid serious harm (including death), at any time up to 14 days after an imminent medical procedure where blood loss was inevitable and a transfusion, while rare, was a recognised risk. An interim order had already been made; a curator ad litem was appointed; and no answers were lodged.

The key legal issue was described as novel in Scotland: how the Court of Session should exercise its parens patriae protective jurisdiction where the patient is under 16 yet has legal capacity to consent (and withhold consent) to treatment under the 1991 Act.

2. Summary of the Judgment

Lady Tait granted authority permitting clinicians to administer a transfusion (and other blood products) only if considered necessary to avoid serious harm, including death, and for the defined period up to 14 days post‑procedure. While accepting Child A was capacitated and her views deserved significant weight, the court held that:

• the court retains parens patriae jurisdiction over a child under 16 even where the child has capacity under section 2(4);
• the decision is governed by an objective best‑interests assessment, with due weight to the child’s views (including religious views) but those views are not determinative;
• the English Court of Appeal’s three‑stage framework in E v Northern Care Alliance NHS Trust [2022] Fam 130 provides a helpful structure and was adopted;
• given the low probability but catastrophic consequences of not transfusing in an emergency, and the impracticality of seeking an order mid‑crisis, advance authorisation was justified.

3. Analysis

3.1 Precedents Cited

Law Hospital NHS Trust v Lord Advocate 1996 SC 301

This was treated as the principal Scottish authority on the Court of Session authorising medical treatment through parens patriae. The judgment was relied on for several propositions:

• the Court of Session can authorise treatment for a person (including a child) who lacks capacity and cannot consent;
• authorisation is based on best interests;
• the order has the same legal effect as valid consent (including parental consent for a child);
• such applications should proceed by petition to the parens patriae jurisdiction.

In Child A, Lady Tait used Law Hospital as the anchor for the court’s protective role, but crucially extended the analysis to the unreported Scottish question: what happens when the child is assessed as having capacity under the 1991 Act.

R (Burke) v General Medical Council [2006] QB 273

Cited to highlight that, for an adult with capacity, clinicians cannot impose treatment contrary to the patient’s wishes even if it is in the patient’s best interests. This authority underlined the centrality of autonomy in adult medical law and provided a contrast with the child context, where the court may intervene notwithstanding capacity.

Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63

Cited for the principle that autonomy and self‑determination underpin the patient/clinician relationship. Lady Tait treated autonomy as a “transcendent factor” to be weighed—particularly salient because Child A’s refusal was informed, mature, and values‑based.

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

Cited for the starting point that there is a strong presumption in favour of preserving life when assessing best interests. In Child A, this presumption materially influenced the outcome because the downside of refusing transfusion in the rare emergency was death or irrevocable injury.

Manchester University NHS Foundation Trust v Fixslter and others [2021] 4 WLR 123

Cited for the proposition that religious views of a patient or parents may be taken into account but are not accorded pre‑eminent or decisive weight in best‑interests analysis. Lady Tait applied this by giving Child A’s religious refusal serious consideration, yet holding it could be overridden where necessary to avoid grave harm.

E v Northern Care Alliance NHS Trust [2022] Fam 130

This was the key comparative authority. Lady Tait accepted the petitioner’s submission that there was no principled basis for Scotland to diverge and adopted the Court of Appeal’s three‑stage approach for deciding whether to authorise treatment contrary to the wishes of a minor who has capacity:

1. Establish the facts (probability of the risk event and magnitude of consequences);
2. Determine whether an immediate decision is necessary (including whether a future crisis would permit a fair and timely court decision);
3. Carry out a welfare/best‑interests assessment, balancing “two transcendent factors”: preservation of life and personal autonomy.

The adoption of this framework is the judgment’s most practical doctrinal contribution: it supplies an explicit structured method for Scottish courts faced with urgent, anticipatory applications about emergency treatment for capacitated minors.

3.2 Legal Reasoning

(a) Capacity under the 1991 Act is real, but not conclusive

The court acknowledged that section 2(4) confers legal capacity on an under‑16 to consent to treatment where the child understands the nature and possible consequences. Lady Tait also made explicit that:

• capacity to consent includes capacity to withhold consent; and
• understanding consequences includes consequences of not receiving treatment.

However, the court held that irrespective of such capacity, the court may exercise parens patriae in the child’s best interests. This is the core resolution of the “novel issue”: capacity informs weight and evaluation, but it does not remove the court’s protective power for those under 16.

(b) Fact-finding: low probability, severe consequences

Applying stage one of E, Lady Tait accepted the clinical evidence:

• blood loss was inevitable in the procedure;
• need for primary blood components was very rare but unpredictable;
• if the rare event occurred, failing to transfuse could cause death or significant and irrevocable injury (including brain damage from hypoxia).

This framing—low likelihood but catastrophic downside—was decisive in supporting advance authorisation.

(c) Necessity of an advance order

Stage two focused on procedural realism. The court reasoned that if a haemorrhage occurred, the situation would be urgent and there would likely be insufficient time to seek a fresh order. It was also “plainly preferable” for the clinical team to have certainty before starting the procedure. The order therefore functioned as an anticipatory legal safeguard to avoid delay at the critical moment.

(d) Best interests: balancing autonomy and life

At stage three, the welfare assessment:

• gave “appropriate weight” to Child A’s views, including religious views, and recognised her maturity and understanding (supported by the curator);
• accepted clinicians’ respectful, patient‑centred approach and that transfusion would be a last resort after other measures;
• nevertheless concluded that the risk of death/serious harm outweighed the refusal, so an objective best‑interests assessment favoured authorisation.

The court’s order was also bounded by clinical practice: transfusion would occur only at a high threshold where necessary to prevent significant harm (including death).

(e) Children’s rights framing (the 2024 Act)

The petitioner submitted, and Lady Tait accepted, that no separate issue arose under the United Nations Rights of the Child Incorporation (Scotland) Act 2024. The judgment nonetheless signals alignment with children’s rights norms: the child had an opportunity to participate and express views, and best interests remained central.

3.3 Impact

• Scottish structure for “anticipatory emergency treatment” petitions: By adopting E v Northern Care Alliance NHS Trust [2022] Fam 130, the Outer House provides a practical template likely to be followed in future urgent applications concerning children who refuse life‑saving treatment.
• Clarification of the court’s protective reach despite section 2(4): The decision supports the proposition that under‑16 capacity does not oust parens patriae. This matters for hospitals, clinicians, and families when a mature minor refuses critical interventions.
• Refined weighting of autonomy: The reasoning recognises autonomy as a central value (drawing on Montgomery) yet treats it as one of the two factors to be balanced rather than a trump card in under‑16 cases.
• Practical clinical‑legal collaboration: The judgment implicitly endorses early, planned engagement—using court orders to avoid bedside legal crises—while requiring that clinicians respect the child’s wishes as far as law and safety permit.

4. Complex Concepts Simplified

• Parens patriae: The court’s protective jurisdiction to make decisions for a child’s welfare where necessary, even overriding others’ wishes, based on best interests.
• Best interests (objective): Not simply what the child, parents, or clinicians prefer; it is what the court decides is best for the child overall, considering medical benefits/burdens and the child’s values and views.
• Capacity under section 2(4) (1991 Act): A child under 16 can have legal capacity to decide about treatment if the child understands the nature and possible consequences. In this judgment, that includes understanding the consequences of refusing treatment.
• Curator ad litem: An independent court‑appointed lawyer who investigates and reports what appears to be in the child’s best interests (and assists the court in welfare evaluation).
• Primary blood components vs minor fractions: “Primary” components (red cells, plasma, platelets, white cells) were refused; certain “minor fractions” derived from blood (e.g., albumin, immunoglobulins) were accepted, reflecting the child’s faith‑based distinctions.
• Anticipatory order: A court order made in advance of a possible crisis, because waiting for the crisis may make a timely court decision impossible.

5. Conclusion

This decision provides Scottish guidance on a hard edge of medical law: when a mature, capacitated under‑16 refuses potentially life‑saving treatment on religious grounds. Lady Tait held that the Court of Session may still intervene under parens patriae, and she adopted the English Court of Appeal’s structured approach in E v Northern Care Alliance NHS Trust [2022] Fam 130 to decide anticipatory applications.

The key takeaway is that, in Scotland, section 2(4) capacity substantially strengthens the weight given to a child’s autonomy, but it does not make the child’s refusal determinative. Where the risk is rare but the consequences are catastrophic and immediate decision‑making in a crisis is impracticable, the court may authorise treatment as a last resort to prevent death or grave harm.