Background

In Petition of a Scottish Health Board for the court to exercise its parens patriae jurisdiction to authorise medical treatment of Child A [2025] CSOH 121, Child A was a 14-year-old girl, a Jehovah’s Witness, who was about to undergo a medical procedure during which blood loss was inevitable, though the risk of her requiring a blood transfusion was very low. In accordance with her religious beliefs, she told her clinicians that she refused consent to transfusions of primary blood components such as red blood cells, plasma, platelets, and white cells, even in a life-threatening emergency, though she didconsent to receive products derived from minor blood fractions (which was permissible within her faith) – and they agreed that she had the capacity under s.2(4) Age of Legal Capacity (Scotland) Act 1991 to make that decision [1].

The Health Board petitioned for authority from the Court of Session to transfuse her at any time up until 14 days after the medical procedure if her clinicians considered it “necessary to avoid serious harm, including but not limited to death” [2]. On 18 November, the Lord Ordinary (Uist) made an interim order permitting transfusion and appointed a curator ad litem [3]. Following a hearing on 4 December, and with the benefit of the curator’s report, Lady Tait granted authority for the girl to receive a transfusion of any and all blood products at any time up until 14 days after the medical procedure if it was considered “necessary to avoid serious harm, including but not limited to death” [5]. Lady Tait granted the order sought and later issued a written decision explaining her reasoning.

The judgment

Her Ladyship began by setting out the legal framework governing court-ordered medical treatment under Scots law: the Court of Session might authorise treatment for a person who lacks capacity and cannot consent, provided the treatment is in that person’s best interests, and such authorisation has the same legal effect as consent.

While the Scots case law on the issue was limited – most notably Law Hospital NHS Trust v Lord Advocate 1996 SC 301 – there was a more developed body of authority on the point in England and Wales, particularly where treatment was refused on religious grounds [6]. R (Burke) v General Medical Council [2006] QB 273 had reaffirmed that, for adults with capacity, clinicians could not provide treatment contrary to the patient’s wishes, even if refusal appeared irrational [7]; however, where a patient lacked capacity or was a child, best interests became the governing consideration. There was also a strong presumption that it was in a person’s best interests to stay alive. Religious views might be taken into account, but they did not carry decisive weight [8&9].

The 1991 Act provided that children under 16 generally lacked capacity, subject to exceptions – one of which was s.2(4), which allowed a child to consent to medical treatment if, in the opinion of a qualified practitioner, the child understood the nature and possible consequences of the treatment [10]. Capacity to consent necessarily included capacity to refuse consent, which in turn required understanding the consequences of refusal [11]. Crucially, however, even where a child under 16 had legal capacity, the court retained its parens patriae jurisdiction to act in the child’s best interests, and while a child’s views – especially those of an older and more mature child – were to be given due weight, they were never determinative. The ultimate question was the best interests of the child [12].

There was no reported Scottish decision directly addressing how the jurisdiction should be exercised where a child under 16 had legal capacity. In E v Northern Care Alliance NHS Trust [2022] Fam 130, the Court of Appeal had set out a three-stage approach for determining whether to authorise treatment contrary to the wishes of a capacitous minor: establishing the relevant facts and risks; assessing whether an immediate decision was required; and conducting a welfare assessment that balanced the preservation of life against respect for personal autonomy [13].

In the present case, Child A’s clinicians accepted that she had a clear and informed understanding of her decision [14]. The risk of a transfusion being needed was very small, and she would only be transfused as a last resort to avoid serious harm – but the potential consequences of not transfusing her if severe blood loss occurred could be catastrophic [16-17]. The curator ad litem had described Child A as mature, articulate, and well-informed, having researched the medical and religious issues thoroughly and understood the legal process and the reasons for the petition:

“She understands why the petitioner has taken court action and accepts that if a court order is made, then a transfusion can be given. However, she is very clear that she expects her wishes to be respected insofar as they can be and that a transfusion should be a last resort” [18].

The curator had nevertheless concluded that, from a best-interests perspective, the risk of death or serious harm outweighed Child A’s refusal [20].

Lady Tait identified the core issue as how to exercise the Court’s parens patriae jurisdiction in respect of a capacitous child under 16. She accepted that the three-stage framework in E was appropriate and consistent with Scots law, including the emphasis on best interests under both common law and the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 [23]. Adopting the Court of Appeal’s framework in E, though the probability of transfusion being needed was low, the consequences of it being required but not given would be severe [24&25]. Further, if a crisis arose, the need would be urgent, and it was therefore preferable to rule in advance in order to give the clinicians and the patient clarity and reassurance [26]. She granted the order; Child A’s religious beliefs and autonomy had been given careful consideration, and she was satisfied that the clinicians would respect Child A’s wishes as far as possible and transfuse her only as a last resort [28].

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