Court of Session clarifies when the Court can step in and authorise medical treatment contrary to the wishes of the parents
Court of Protection, Health & Social Care
Lord Braid has clarified the position in Scotland as to when the Court of Session can step in and provide consent for a child to receive medical treatment against the wishes of their parents. Three separate applications came before him in which parents had refused to consent to medical treatment which the health board considered in the child’s best interests. In two of those applications, the consent sought was conditional: the child was shortly to undergo a procedure which may result in a blood transfusion being required. In both cases, the parents refused consent based on their religious beliefs. In the third case, the child had been bitten by a dog and had not had a tetanus vaccine. Her parents refused consent based on their concerns about the safety of the vaccine and more general lifestyle choices.
In each case, Lord Braid authorised the treatment including, in the third case, ordering the parents to take the child to hospital so that she could receive the vaccine. In doing so, he confirmed that the Court of Session’s jurisdiction was a last resort to be exercised where there was a real risk of serious harm or death to the child. In exercising the jurisdiction, the Court acts as “a third parent” and so can provide sufficient consent even where the child’s parents disagree.
The decision is important and builds on an earlier judgment of Lady Tait, where she authorised a blood transfusion for a child who had capacity to consent but refused to do so. In both decisions, the Court of Session has generally adopted the approach taken by the courts in England and Wales, where the case law is more developed.
The full judgment can be read here.
In both cases, Cornerstone’s Paul Reid, K.C. (Scot) appeared for the health board.
This case has been reported on by the BBC.
