Petitions of (First) Greater Glasgow Health Board, (Second) Greater Glasgow Health Board and (Third) Borders Health Board (Court of Session)

Factual and Procedural Background

Over approximately two weeks, three Health Boards presented petitions to the Outer House of the Court of Session seeking authorisation under the court’s parens patriae jurisdiction for medical treatment of three children who lacked capacity to consent. In each case, the parents had refused consent. Curators ad litem were appointed and supported the petitions. The court granted medical authorisation, in narrower terms than initially sought in some cases. [1][2]

Child A required life-saving radiotherapy and chemotherapy for aggressive brain cancer. His parents opposed blood transfusions on religious grounds. [3][4][5]

Child B required surgery for a kidney obstruction and had sickle cell disease. His parents refused consent to blood products, although clinicians had taken extensive steps to minimise that risk. [6][7][8][9][10]

Child C, who was unvaccinated, suffered a dog bite and fracture. Her parents refused recommended tetanus vaccination and immunoglobulin. The court granted an interim order requiring both treatments, which the parents carried out; the petition was subsequently dismissed after its purpose was achieved. [11][12][13][14]

Legal Issues Presented

1. Whether the Court of Session could exercise its parens patriae jurisdiction where the parents were alive but refused consent to necessary medical treatment. [15]
2. Whether authorisation of treatment was in each child’s best interests, proportionate, and justified by a material risk of death or serious harm. [15][16][17][18]
3. What medical intervention should be authorised in Child C’s case, given the competing risks of vaccination and tetanus. [19][20]
4. What procedural requirements applied to intimation, anonymity, open justice, and possible child protection orders. [21][22][23][24]

Arguments of the Parties

Parents of Child C

• They considered the dog bite to present a low risk of tetanus because of the dog’s circumstances, wound cleaning, and possible natural immunity. [25][26]
• They believed vaccination could itself cause harm and that there was insufficient research concerning vaccination risks. [25]
• They considered the decision rushed and sought more time to investigate the issue. [27]

Health Board Petitioners

• The Health Boards sought authority for treatment necessary to preserve the children’s lives or prevent serious harm, including blood transfusions if clinically necessary. [4][5][6][10]
• In Child C’s case, the Health Board submitted that both the tetanus-containing vaccine and immunoglobulin were required because immunoglobulin alone would not adequately eliminate the risk of tetanus and standard guidance recommended both. [20]

Curators ad litem

• The curators supported the petitions. In the cases of Children A and B, their reports contributed to orders being framed more narrowly than originally sought. [2][16][28]
• In Child C’s case, the curator challenged seeking later routine vaccination doses through the parens patriae jurisdiction, because they were not connected to the immediate medical emergency. [29][30]

Table of Precedents Cited

Court's Reasoning and Analysis

The court accepted that it could authorise treatment for a child lacking capacity where treatment was in the child’s best interests, and that such authority had the same legal effect as parental consent. [31][34]

The court held that the jurisdiction did not depend on the child being an orphan. It could be exercised where parents were alive but unable or unwilling to consent, including where refusal arose from religious, moral, or lifestyle beliefs. The court nevertheless recognised that authorisation interfered with parental autonomy and family life, so any order had to be proportionate to a material risk and based on a balancing exercise centred on the child’s welfare. [15]

The court also had to act compatibly with the UNCRC requirements, including the child’s best interests, right to life, survival and development, and the rights and responsibilities of parents. [35][36]

For Children A and B, the risk of death or serious harm justified intervention. Child A needed life-saving cancer treatment. Child B urgently required surgery, and clinicians had taken substantial measures to avoid blood products, which would be used only as a last resort. The orders were therefore framed in the narrowest practicable and proportionate terms. [16][28]

In Child C’s case, the court rejected authorisation of later routine vaccination doses because they were not connected to the immediate incident and would extend beyond the proper scope of an exception to parental autonomy. [29][30]

Regarding the urgent treatment, the court found a greater than negligible, though unquantifiable, risk that an unvaccinated child with a dog-bite wound could develop tetanus. The consequences could include serious illness, hospitalisation, and death, with an estimated mortality rate of approximately one in ten even with treatment. [17][18][19]

The court concluded that the small risk of adverse effects from the recommended treatments was outweighed by the substantially more serious consequences of tetanus. It therefore authorised both the tetanus-containing vaccine and immunoglobulin as necessary and proportionate. [20][14]

On procedure, the court held that RCS 14.7 meant that parens patriae petitions should not be intimated on the walls of court. Open justice was maintained through hearings in open court, while anonymity orders and publication restrictions protected the children’s identities. [37][22]

The court expressed no concluded view on whether a child protection order could ever authorise medical intervention in such circumstances. However, it considered that such orders were not appropriate or likely to have been granted in these cases, which involved loving parents and no social-work concerns. [24][38]

Holding and Implications

Orders authorising medical intervention were granted for Children A, B, and C. The authorisations were confined to treatment justified by urgent medical risks and were proportionate to the children’s welfare. Child C’s petition was later dismissed because the authorised treatment had been completed and no further order was sought. [2][28][14]

The opinion confirms that the parens patriae jurisdiction may be used despite living parents’ refusal of consent, provided the intervention is necessary, proportionate, and focused on the child’s best interests. The direct effect was to permit the specified medical treatment notwithstanding parental refusal. No separate broader implication or new precedent was identified in the opinion. [15][14]