Petition by A Health Board in respect of KL (Court of Session)

Factual and Procedural Background

This opinion concerns an application by petition to the parens patriae jurisdiction of the court for authority to perform surgical treatment on a child, born prematurely in December 2023, who suffers from patent ductus arteriosus (PDA). The petitioner is a health board responsible for the hospital proposed to perform the surgery. The child was discharged into the care of his maternal aunt after the death of his mother, with no one holding parental responsibilities and rights. The proposed surgery is necessary because medical management is ineffective and the child's PDA causes significant health issues including poor weight gain and respiratory difficulties.

The petition was served on the child’s aunt, father, the Lord Advocate, and the local authority, but no answers were lodged. The court appointed a curator ad litem to represent the child’s interests, who supported the surgery as being in the child’s best interests. The operation had previously been scheduled but cancelled due to uncertainty about consent authority, as the child’s aunt, who has care and control, lacks parental responsibilities and rights. The court was asked to grant authority for the surgery to proceed urgently.

Legal Issues Presented

1. Whether the court should exercise its parens patriae jurisdiction to authorize surgical treatment for the child in the absence of anyone with parental responsibilities and rights.
2. The interpretation and application of section 5 of the Children (Scotland) Act 1995 regarding the authority of a person with care and control to consent to planned elective surgery.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the medical evidence from two consultant clinicians who agreed that surgical closure of the PDA was the only appropriate treatment, with a high success rate and manageable risks. The court acknowledged the absence of anyone with parental responsibilities and rights and the uncertainty surrounding the legal authority of the child’s aunt to consent to elective surgery under section 5 of the Children (Scotland) Act 1995, which has not been judicially interpreted in this context.

Given the urgency and the unchallenged expert opinions that surgery was in the child’s best interests, the court decided to exercise its parens patriae jurisdiction to authorize the procedure. The curator ad litem’s investigations revealed systemic concerns about the lack of social work involvement and support for the child’s carers, which, while serious, did not affect the immediate decision to permit the surgery. The court noted deficiencies in communication and coordination between the health boards, local authority, and carers, emphasizing the need for review and support going forward.

Holding and Implications

The court’s final decision was to grant authority for the surgical procedure to be performed on the child under the parens patriae jurisdiction.

The direct effect of this decision is to allow the surgery to proceed without delay despite the absence of anyone with parental responsibilities and rights. No new legal precedent was established, but the opinion highlights significant procedural and systemic issues regarding the care and legal status of the child, and the responsibilities of local authorities and health boards in such cases.