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Petition of a Scottish Health Board for the court to exercise its parens patriae jurisdiction to authorise medical treatment of Child A (Court of Session)
Summary of Court Opinion
Factual and Procedural Background
Company A (the health board) petitioned the Court of Session's Outer House for the exercise of the court's parens patriae jurisdiction to authorise medical treatment of Child A, a 14‑year‑old Jehovah's Witness, who has been assessed by clinicians as having capacity and who refuses consent to primary blood components (blood transfusion) even in life‑threatening circumstances. The petition sought authority to give Child A a transfusion of any and all blood products at any time up to 14 days after a scheduled medical procedure if, in the opinion of the clinician then responsible for her care, it is necessary to avoid serious harm including death. An interim order permitting such a transfusion was made by Judge Uist on 18 November 2025 and Attorney Innes was appointed curator ad litem. No answers were lodged. Following a hearing on 4 December 2025 and having considered the curator's report, Judge Tait granted the authority sought and gave a written decision explaining the reasoning.
Legal Issues Presented
- Whether the court can and should exercise its parens patriae jurisdiction to authorise medical treatment (primary blood components) contrary to the expressed refusal of Child A, who is under 16 but has legal capacity under section 2(4) of the Age of Legal Capacity (Scotland) Act 1991.
- How the court should approach decision‑making in such cases, and in particular whether the three‑stage assessment set out by the Court of Appeal in E v Northern Care Alliance NHS Trust should be applied.
Arguments of the Parties
Petitioner's Arguments
- There is no principled reason why the Scottish court should not adopt the three‑stage approach from E v Northern Care Alliance NHS Trust for deciding whether to authorise treatment contrary to the views of a capacitated minor; that approach is rooted in the best interests of the child and aligns with Scottish law and the United Nations Rights of the Child Incorporation (Scotland) Act 2024 where relevant.
Child A and Curator's Position (as reported)
- Child A is mature, confident and articulate, has researched her decision, and refuses primary blood components on religious grounds; she consents to certain minor blood fraction products.
- The curator reported that Child A understands the proceedings, accepts that a court order may permit transfusion, expects her wishes to be respected so far as possible, and considers a transfusion should be a last resort.
- The curator concluded that the risk of death or serious harm outweighs Child A's clearly expressed refusal and that the court is likely to reach the same conclusion, subject to respect for her wish that transfusion be a last resort.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Law Hospital NHS Trust v Lord Advocate 1996 SC 301 | That the Court of Session can authorise treatment for a person who does not have capacity and may do so where treatment is in the person's best interests; such authority has the same legal effect as consent and applications should be by petition to the parens patriae jurisdiction. | The court relied on Law Hospital as the leading Scottish authority for court authorisation of medical treatment and noted it as the principal reported Scottish decision addressing the legal basis for such authorisation. |
| R (Burke) v General Medical Council [2006] QB 273 | That a clinician cannot provide treatment contrary to the wishes of an adult patient who has capacity; a capacitated patient may decline treatment even for irrational reasons, reflecting autonomy. | Used to illustrate the principle of patient autonomy in cases involving adults with capacity and as background on the limits of providing treatment contrary to a capacitated person's wishes. |
| Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63 | That patient autonomy and the right to self‑determination underpin the patient/clinician relationship. | Referenced to support the significance of autonomy in clinical decision‑making, as part of the legal context. |
| Aintree University Hospitals NHS Trust v James [2014] AC 591 | That there is a strong presumption that it is in a person's best interests to stay alive. | Relied on as a transcendent factor in the welfare assessment—preservation of life weighs heavily. |
| Manchester University NHS Foundation Trust v Fixsler and others [2021] 4 WLR 123 | That religious views are a material factor in best interests assessments but do not carry pre‑eminent weight. | Applied to state that the child's religious views must be given due weight but are not determinative. |
| E v Northern Care Alliance NHS Trust [2022] Fam 130 | Sets out a three‑stage assessment for cases where minors with capacity refuse treatment: (1) establish facts and risks; (2) consider whether an immediate decision is necessary; (3) carry out an objective welfare assessment balancing preservation of life and autonomy. | The court adopted the three‑stage approach from E as a helpful framework for exercising parens patriae in respect of a person under 16 with capacity and applied that framework to the present case. |
Court's Reasoning and Analysis
The court identified the novel issue as how parens patriae should be exercised in respect of a person under 16 who has legal capacity under section 2(4) of the Age of Legal Capacity (Scotland) Act 1991. The court adopted the three‑stage framework from E: (1) establish the facts and the probability and consequences of the risk; (2) assess whether an immediate decision is necessary or whether a later decision would be feasible and fair; and (3) conduct an objective welfare assessment balancing preservation of life and personal autonomy.
Applying stage 1, the court found that while the probability of a transfusion being required is very low, the consequences of requiring but not receiving a transfusion are severe (including death or significant irreversible injury). At stage 2 the court concluded that, were the recognised risk to materialise, the situation would be urgent and there would likely be insufficient time to seek a court order then; it was preferable for clinicians to have certainty in advance. At stage 3 the court carried out an objective best interests assessment, giving appropriate weight to Child A's views and religious beliefs but recognising they are not determinative. The court noted the high clinical threshold for transfusion, the availability of alternative measures, and that clinicians had taken proactive steps to minimise risk and would treat transfusion as a last resort.
Holding and Implications
AUTHORISED — The court authorised Child A to receive a transfusion of any and all blood products at any time up to 14 days after the medical procedure if, in the opinion of the clinician then responsible for her care, a transfusion is necessary to avoid serious harm, including but not limited to death.
Implications: The direct effect is that clinicians caring for Child A have prior judicial authorisation to administer primary blood components in an urgent life‑threatening or seriously harmful situation within the specified period, subject to clinical judgment and the stated high threshold for transfusion. The decision applied established principles and the E three‑stage framework; the opinion does not purport to establish a novel binding precedent beyond its application to these facts.
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