Wrongful birth in Scotland: duty of care owed to the father and additional care costs assessed by the child’s reasonable needs (not parental means)

1. Introduction

In (First) PO and (Second) OO against Lothian Health Board [2026] CSOH 55, the Outer House of the Court of Session (Lord Braid) determined two issues arising in a Scottish “wrongful birth” claim. The mother and father alleged that their child, born with Down’s syndrome, would not have been born but for admitted negligence in (i) failing to ensure appropriate second-trimester screening occurred, and (ii) failing to identify a “double bubble” abnormality associated with Down’s syndrome.

Negligence and causation as against the mother were effectively accepted for present purposes, including acceptance that the mother would have terminated the pregnancy if Down’s syndrome had been detected. The case came to debate under Chapter 42A procedure to resolve:

  • Issue 1: whether the Health Board owed a duty of care to the father (in addition to the mother) in relation to fetal abnormality screening and advice; and
  • Issue 2: whether additional disability-related costs are assessed by reference to the child’s reasonable needs or capped/limited by parental resources.

2. Summary of the Judgment

  • Duty to father: The father was held to be a primary victim, not a secondary victim, and the Health Board owed him a duty to take reasonable care in providing fetal testing services to the mother where it was known both parents were relying on competent screening to avoid the birth of a disabled child.
  • Quantification of additional costs: The court held that additional disability-related costs fall to be assessed by reference to the reasonable needs arising from the disability and the likelihood of the expenditure being incurred, not by reference to what the parents could afford from their own resources. The defenders’ “resources” averments were excluded from probation.
  • Reservations: The court signalled caution about (i) claiming expenditure likely to be incurred beyond the parents’ deaths, and (ii) the recoverability of costs of establishing a personal injury trust, as these may risk treating the action as if it were the child’s claim rather than the parents’.

3. Analysis

3.1 Precedents cited (and their influence)

(a) Primary vs secondary victims and the effect of Paul

A central defence argument was that the father’s psychiatric injury claim was that of a secondary victim and therefore barred by Paul and Another v Royal Wolverhampton NHS Trust [2024] UKSC 1. The court rejected that characterisation. Lord Braid treated Paul as addressing claims by relatives for injury “brought about indirectly by injury caused to another person” (the Supreme Court’s formulation, noted at paragraph 51 of Paul).

Here, both parents’ pleaded injuries were directly caused by the “event” of the birth of a child with Down’s syndrome and the ongoing burden of care—not by witnessing injury to the mother. The court held the father’s injury was “simultaneously caused to him”, not parasitic upon harm to the mother. Accordingly, Paul did not apply.

(b) Scottish authority on duty to fathers: Anderson and McLelland

The judgment reaffirmed and relied upon two Scottish decisions:

  • Anderson v Forth Valley Health Board 1998 SLT 588: Lord Nimmo Smith accepted that, although the mother is the patient, a duty may be owed “as much” to the father where both are directly affected by pregnancy-related decisions and where the father can reasonably be expected to be significantly involved physically and financially in upbringing.
  • McLelland v Greater Glasgow Health Board 2001 SLT 446: although the duty to the father was conceded, Lord Braid treated Lord Prosser’s reasoning as showing the concession was properly made. In particular, Lord Prosser’s analysis that the harmful effects on both parents were “direct consequences” for the father, and that “secondary victim” authorities were not in point, strongly supported treating the father as a primary victim within the scope of the defender’s duty.

The defenders urged the court not to follow Anderson and to treat the concession in McLelland as wrong. Lord Braid declined to do so and held “the law remains as set out” in those cases.

(c) English authorities on wrongful birth and parental claims

The court engaged with a line of English decisions primarily to test coherence and policy.

  • Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266: relied upon by both sides. The defenders emphasised Hale LJ’s focus on the mother’s bodily autonomy. Lord Braid read Hale LJ’s comments in context and highlighted that Hale LJ also expressed a “tentative view” that a father who meets parental responsibilities may have a claim given sufficient proximity (albeit obiter).
  • Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309: relevant to conventional awards (loss of autonomy) and noted because it drew no sharp distinction between parents, though the case was brought by the mother alone.
  • Whitehead v Hibbert Pownall and Newton [2009] 1 WLR 549 and Less and Carter v Hussein [2012] EWHC 3513 (QB): cited by the defenders to show judicial caution and “difficulties” in recognising a freestanding duty to fathers; Lord Braid considered these concerns insufficient to displace Scottish authority on the facts before him.

(d) “Beyond the patient” duties and BT v Oei

The pursuers relied on BT v Oei [1999] NSW SC 1082, where a doctor owed a duty to a non-patient sexual partner, discharged by advising the patient appropriately. Lord Braid accepted the factual distance (infectious disease context) but considered it supportive of the narrower proposition advanced at debate: the father’s duty could be fulfilled by taking reasonable care in the services provided to the mother (without any free-standing duty to communicate directly with the father).

(e) Damages and the “resources cap”: Scottish and English approaches, and Meadows

On quantification, Lord Braid anchored the general compensatory principle in Livingstone v Rawyards Coal Co (1880) 5 App Case 25 and its application in clinical negligence in Nunnerley v Warrington Health Authority [2000] Lloyd's Rep Med 170.

He then preferred the Scottish approach in Anderson (reasonableness and likelihood of expenditure) and the majority of English first-instance authority:

  • Hardmin v Amin [2000] Lloyd's Rep Med 498, Lee v Taunton and Somerset NHS Trust [2001] 1 FLR 419, and Roberts v Bro Taf Health Authority [2002] Lloyds Rep Med 182: rejected a means-based limitation and treated the relevant losses as driven by the practical burden on the parent in meeting disability-related needs.
  • Rand v East Dorset Health Authority [2000] Lloyds Med Rep 181: the key outlier; Newman J limited recovery by reference to parental means. Lord Braid rejected the “managing director/chauffeur” analogy as inapposite because earnings loss reflects the counterfactual, whereas care costs do not depend upon wealth in the same way.

The court also located the modern boundary of recoverable loss in wrongful birth cases through the parties’ shared understanding of:

  • McFarlane v Tayside Health Board 2000 SC(HL) 1 and Rees v Darlington Memorial Hospital NHS Trust: the “conventional” award for loss of autonomy.
  • Parkinson and Meadows v Khan [2022] AC 852: confirming recoverability of additional disability-related costs (with Meadows noted as having confirmed Parkinson as correct despite earlier doubts).
  • McKay v Essex Area Health Authority [1982] QB 1166: invoked by the defenders as warning against covert “wrongful life” recovery; the court treated the argument as a non sequitur where parents’ losses are necessarily interwoven with the child’s needs.

3.2 Legal reasoning

(a) Duty to father: proximity, reliance, and the scope of the assumed responsibility

Lord Braid’s reasoning is best understood as a scope-of-duty analysis. The clinical service (screening information, testing pathways, accurate reporting, and counselling as to risks) was accepted to exist. The question was whether its scope encompassed protecting the father from the very harm both parents sought to avoid: the psychological and practical burden of raising a child with Down’s syndrome.

Key features grounding duty and proximity included:

  • Known joint purpose: at booking, the mother communicated that she and the father did not want another disabled child and were keen for available screening.
  • Foreseeable and direct harm to both parents: severe shock/distress on diagnosis and long-term stress and “wear and tear” from care responsibilities (echoing McLelland).
  • Stable family relationship as the practical foundation of reliance: the necessary proximity was said to arise from the parents’ relationship and intention to raise the child together; marriage was not treated as essential, but stability/cohabitation was emphasised.
  • No erosion of maternal autonomy: recognising the father’s duty did not qualify the mother’s patient rights or decision-making; the duty was framed as care in providing services to the mother, not an obligation to advise the father directly.

The court treated contrary hypotheticals raised by the defenders (confidentiality conflicts, abusive fathers, absent partners) as not determinative of the duty in the pleaded circumstances, particularly given the pursuers’ refined position that no direct communication duty to the father was asserted.

(b) Quantification: restoring the parents’ position without a “means cap”

Lord Braid’s measure-of-loss analysis proceeds from the counterfactual: if proper care had been taken, the child would not have been born; therefore the parents would not have borne the lifelong disability-related burden. The parents’ current position is defined by responsibility to meet needs arising from disability; the compensatory aim is to fund the reasonable additional costs of meeting those needs, so far as likely to be incurred.

The court rejected “resources” limitation for four connected reasons:

  • Intertwined needs: while the claim is not the child’s, the parents’ loss is practically inseparable from the child’s disability-related needs.
  • Illogicality in practice: if parents in fact use damages to fund care, a rule that excludes such expenditure because they could not have afforded it absent damages becomes circular and unsatisfactory.
  • Misuse of analogy: wealth affects earnings loss because the counterfactual earnings differ; it should not decide whether disability-related care needs are compensable.
  • Consistency with scope of duty: clinicians knew the objective of screening was to avoid the additional needs burden; quantification should track that risk.

The operative test adopted is that from Anderson: whether the head of expenditure is reasonable and likely to be incurred. This is not a blank cheque—unreasonable items or unlikely expenditure fall away—but it is not constrained by what the parents could otherwise afford.

3.3 Impact

(a) Scottish wrongful birth litigation: fathers’ claims strengthened

This decision consolidates Scottish first-instance authority that a father in a stable parenting relationship may be owed a duty of care in wrongful birth scenarios, and that such a father is properly treated as a primary victim where the harm is the direct consequence of the negligent failure to provide screening services relied upon to avoid the birth of a disabled child.

(b) Clarifying the post-Paul landscape

The judgment provides a clear route to distinguish Paul and Another v Royal Wolverhampton NHS Trust where relatives’ psychiatric harm is not derivative of injury to the patient but arises from a direct wrong within the scope of the clinical duty, as framed by the purpose of the service and the foreseeability of direct harm to the non-patient parent.

(c) Quantum: resisting a wealth-based stratification of disability-related recovery

On damages, the ruling reinforces a needs-and-reasonableness approach (and excludes pleading a parental-means limitation), likely encouraging fuller evidential exploration of disability-related reasonable expenditure. However, the court’s reservations about post-death expenditure and personal injury trusts foreshadow further boundary litigation about which items are truly “parents’ losses” as opposed to mechanisms for provision to the child.

4. Complex concepts simplified

  • Wrongful birth vs wrongful life: a wrongful birth claim is brought by parents who say negligent care deprived them of the choice to avoid birth (usually by termination). A wrongful life claim would be brought by/for the child asserting they ought not to have been born; UK law does not recognise that (cf. McKay v Essex Area Health Authority).
  • Primary vs secondary victim: a primary victim is directly harmed by the negligent act/omission; a secondary victim suffers psychiatric harm from witnessing injury to another. Paul restricts secondary victim claims in medical negligence; Lord Braid held the father’s harm here was direct.
  • Assumption of responsibility and proximity: these are tools for deciding whether the law recognises a duty of care. Here, the clinicians knew both parents were relying on competent screening to avoid raising a second disabled child, creating sufficient closeness for a duty to the father.
  • Counterfactual: damages are assessed by comparing the claimant’s actual position with the position “but for” the negligence (the counterfactual). Here, “but for” negligence, the child would not have been born; the parents would not bear disability-related costs.
  • Solatium: a Scottish head of damages for pain and suffering (including psychiatric injury), broadly analogous to general damages for non-patrimonial loss.

5. Conclusion

[2026] CSOH 55 makes two significant clarifications in Scottish wrongful birth litigation. First, a father in a stable co-parenting relationship may be owed a duty of care in relation to negligent fetal abnormality screening provided to the mother, and may sue as a primary victim for direct psychological harm and related losses. Second, the additional disability-related costs recoverable by parents are assessed by reference to the reasonable needs created by the disability and the likelihood of expenditure, not by what the parents could otherwise afford. The judgment simultaneously signals future lines of dispute on expenses arguably extending beyond the parents’ lives and on trust structures that may resemble provision “for the child” rather than compensation “to the parents”.