Y and others against NHS Grampian (Court of Session)

Factual and Procedural Background

The case concerns a child ("B"), born in January 2016, who suffered from a complex and unusual medical history involving multiple hospital admissions and invasive treatments, including administration of anti-epileptic medication and various feeding tubes. In February 2018, B was admitted to a children's hospital severely ill with profuse watery diarrhoea and dangerously high sodium levels. During this admission, suspicions arose among the treating paediatricians, Dr Stephen and Dr Cochrane, that B might be a victim of fabricated or induced illness (FII), allegedly caused by her primary caregiver, the mother ("X"). This suspicion was communicated to the local authority ("Orkney Islands Council"), which led to the application for and granting of a child protection order (CPO) removing B from her family’s care.

Following the CPO, B was placed with foster carers and subject to interim compulsory supervision orders (ICSOs). After expert opinion evidence obtained by the family, the referral alleging FII was abandoned in January 2019, and B was returned to her family, where she has since thrived without recurrence of the previous symptoms or need for medical interventions.

The pursuers (B, X, the father "Y", and siblings "Z") brought an action against the defender (NHS Grampian), alleging a violation of their rights under article 8(1) of the European Convention on Human Rights (ECHR) due to the doctors’ suspicions and resulting interference with their family life. The defender denies any infringement and resists the orders sought. The principal issue at proof was liability for any unlawful interference with article 8 rights.

Legal Issues Presented

1. Whether the provision of a medical opinion by the defender's doctors, suspecting fabricated or induced illness, constituted an interference with the pursuers' article 8 rights to respect for private and family life.
2. If such interference occurred, whether it was justified as necessary and proportionate under article 8(2) of the ECHR.
3. Whether the defender, through its doctors, is liable for any unlawful interference with the pursuers' article 8 rights.
4. Whether damages or other remedies are appropriate if liability is established.

Arguments of the Parties

Pursuers' Arguments

• The separation of B from her family was an interference with their family life caused by the doctors' allegations of FII.
• The doctors' belief in the existence of FII was not reasonably held and was vitiated by error, lacking relevant and sufficient basis.
• The doctors failed to properly investigate, cross-check medical records, or seek independent expert opinions, resulting in flawed advice.
• The local authority and sheriff acted on the basis of the doctors' flawed advice, which was the proximate cause of the interference.
• The doctors’ opinion was defective and unjustified, thus causing an unlawful interference with article 8 rights.

Defender's Arguments

• B had a complex medical history with some clinicians reasonably concerned about FII prior to February 2018.
• The doctors’ suspicions were based on the unusual presentation and medical findings, including the nature of the diarrhoea and rapid improvement when separated from the mother.
• The suspicion of FII was genuinely and reasonably held, consistent with professional guidance and child protection duties.
• The interference with family life arose from lawful statutory processes initiated by the local authority, Reporter, sheriff, and children’s hearing, not directly from the doctors.
• The doctors were entitled to provide their clinical opinions, and a difference of expert medical opinion does not amount to unlawfulness.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by clarifying that the case was not about determining whether B was in fact a victim of FII, but whether the suspicion held by the doctors was reasonably formed and whether the defender is liable for any resulting interference with article 8 rights. The court recognized that the provision of a medical opinion that a parent has harmed a child amounts to an interference with family life, given the serious consequences that flow from such an opinion.

The court analyzed the statutory child protection framework, emphasizing that the interference with family life arises not only from the granting of a child protection order by the sheriff but also from the medical opinion that triggered the process. The defender’s argument that only the local authority, Reporter, sheriff, and children’s hearing are responsible for the interference was rejected insofar as the medical opinion was a necessary causative factor.

Turning to the necessity and proportionality of the interference, the court applied established Strasbourg jurisprudence requiring that interferences be supported by relevant and sufficient reasons. It acknowledged that professionals may be mistaken, but their concerns must be reasonably held and not vitiated by error.

The court addressed criticisms of the doctors, including alleged failures to carry out certain tests, alleged inaccuracies or omissions in the medical chronology, and incomplete disclosure of information to other experts. It found that the failure to perform stool electrolyte tests was understandable given the clinical circumstances and did not undermine the doctors’ opinions. The court accepted that some symptoms may have been exaggerated or unobserved by medical staff, consistent with the nature of FII. It rejected the claim that the doctors’ chronology was materially flawed.

The court found the medical experts Dr Cochrane and Dr Stephen credible and reliable, preferring their evidence over that of opposing experts who had not reviewed all relevant records. It found that the doctors’ suspicions were reasonably held based on the unusual clinical presentation, the rapid recovery when B was separated from her mother, the refusal by the mother to allow feeding trials in hospital, and other unusual factors such as the discovery of a syringe in the hospital room.

The court concluded that the doctors’ opinion was not only reasonable but necessary to protect the child’s welfare. The interference with the pursuers’ article 8 rights was therefore justified and proportionate. Although the family’s separation was traumatic and ultimately unnecessary in hindsight, the statutory process was conducted fairly and in accordance with law, with judicial oversight and measures to maintain contact between B and her family.

Accordingly, there was no unlawful interference by the defender through its doctors, and the pursuers’ action failed on the issue of liability.

Holding and Implications

The court DISMISSED the pursuers’ claims and granted decree of absolvitor on all conclusions.

The decision means that the medical opinion expressing suspicion of fabricated or induced illness, even if ultimately mistaken, did not unlawfully infringe the pursuers’ article 8 rights, as it was reasonably held and proportionate in the circumstances. No damages or other remedies were awarded. The ruling underscores the principle that professional medical concerns, when reasonably formed and properly communicated, are protected under the Human Rights Act even if later disproved. The case does not establish new precedent but affirms the careful balancing required in child protection cases between safeguarding children and respecting family life.