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Petition by A Health Board in respect of KL (Court of Session) [2024] CSOH 108 (03 December 2024)
URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024csoh108.html
Cite as:
[2024] CSOH 108
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OUTER HOUSE, COURT OF SESSION
[2024] CSOH 108
P1097/24
OPINION OF LADY CARMICHAEL
In the petition by
A HEALTH BOARD IN RESPECT OF KL
Petitioner
Petitioner: Jardine; NHS Central Legal Office
Curator ad litem: Innes KC, in person
3 December 2024
[1]
This is an application by petition to the parens patriae jurisdiction of this court for
authority to give surgical treatment to KL, who was born in December 2023. The petitioner
is the health board which operates the hospital in which it is proposed the operation should
be carried out.
[2]
The law and procedure relating to applications of this sort is set out in the decision of
a Full Bench in Law Hospitals NHS Trust v Lord Advocate 1996 SC 301.
Background
[3]
KL was born prematurely in a hospital which is operated by a health board other
than the petitioner ("health board B"). He stayed in hospital until March 2024. His mother
died before he was discharged from hospital. His parents were not married. His maternal
aunt registered his birth. KL's father is not registered as his father. KL was discharged into
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the care of his maternal aunt with whom he has lived since then. He has contact with his
father. Neither his aunt nor his father has acquired parental responsibilities and rights in
relation to KL. There is at present no-one who has parental responsibilities and rights in
relation to him.
[4]
KL has a patent ductus arteriosus ("PDA"). That is a blood vessel connecting the
arterial and pulmonary arteries. It is a structure that usually closes in healthy children who
are born at term. It is more likely to remain open when a baby is born prematurely. It
causes blood flow to be directed away from KL's body circulation, and into his lungs
instead. As result of the PDA, KL has poor weight gain, has to work harder to breathe and
has to take diuretics. He has to work harder to breathe because of the excess blood flow to
his lungs, and his growth is poor because of the extra energy he has to expend in order to
breathe.
[5]
The petitioner provided two medical reports. One was from a consultant in
paediatric cardiology, and the other from a consultant paediatric cardiac surgeon. They
agreed that surgical closure of the PDA under general anaesthetic was the only appropriate
treatment for KL. At his age, medical management will not close the PDA. There is a less
invasive treatment known as interventional device closure. That involves passing catheters
through a vein in the groin to the heart and major arteries to place a device in the PDA to
obstruct the blood flow. KL's PDA is too large, so that a device could not be deployed
without a significant risk of embolisation.
[6]
The risks of not treating the PDA in the short term include poor weight gain and in
the longer term irreversible pulmonary hypertension and heart failure. They include viral
pulmonary infection leading to ITU admission and ventilation. The proposed surgery has a
rate of success without complications of 99% per cent. The risks include bleeding, wound
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infection, and risk to life. The risk to life is less than 0.5%. Although the risks do not
eventuate in the vast majority of cases, they are serious risks.
[7]
The petition was served on KL's aunt and father, on the Lord Advocate, and on the
local authority for the area where KL lives ("the local authority"). It is also the local
authority for the place where KL was born. No answers were lodged.
[8]
When granting first orders I appointed Mrs Ruth Innes KC as curator ad litem to KL.
She carried out investigations and supported the proposition that it would be in KL's best
interests for the operation to be carried out. Her investigations disclosed that both KL's aunt
and his father supported his having the surgery. They disclosed also some matters of
concern not directly related to the surgery to which I turn in more detail below.
[9]
An operation had been planned for early November 2024 but had been cancelled
when medical staff discovered that no-one had parental responsibilities and rights in
relation to KL. I was told that there was significant doubt as to whether the provisions of
section 5 of the Children (Scotland) Act 1995 were intended to confer the right to consent to
planned, elective surgical treatment on a person, such as KL's aunt, who has care and
control of him, and therefore the responsibility to do what is reasonable in all the
circumstances to safeguard his health, development and welfare. That section has not,
apparently, been the subject of judicial interpretation. It is more obviously apt to cover
situations in which a person with care and control of a child is faced with an emergency
requiring surgical, medical or dental treatment to which the child cannot consent.
[10]
The consultant paediatric cardiologist who provided a report advised on
19 November 2024 that, ideally, the surgery should be performed in the following two
weeks. A procedure had been programmed for the day after the hearing in this petition.
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Decision
[11]
There is no dispute that the proposed surgery is in KL's best interests. I am satisfied
on the basis of the information provided to me, which includes the uncontradicted opinions
of two consultant clinicians, that it is in his best interests. In light of the urgency of the
situation I am satisfied that it is appropriate to exercise the jurisdiction of this court to grant
authority for the procedure described in the prayer of the petition.
Matters arising from the curator ad litem's report
[12]
The curator ad litem's investigations disclosed the following matters, which on the
face of things give rise to concern. They relate to what appears to be a lack of social work
involvement in ascertaining KL's circumstances and what support may be appropriate for
his aunt and his father. They do not relate to the care he is receiving from his aunt.
[13]
It is not clear what involvement, if any, there was with the local authority at the time
that KL was discharged by health board B into the care of his aunt. KL's aunt recalls being
contacted by a social worker, but only at the point when KL's mother became acutely ill in
January 2024. KL's aunt told the curator ad litem that no-one had spoken to her about
making sure that the legal position for KL was secured. KL's health visitor had provided
some advice in relation to social security benefits.
[14]
KL's neonatal discharge summary includes an entry under the heading "Social
issues" recording that he had an identified, named social worker. The same entry records
that the neonatal outreach team had been coordinating discharge under the care of KL's
aunt, and that KL would need support and close supervision in the community. From the
account given by KL's aunt, it does not appear that the named social worker has had any
ongoing involvement with the family. The discharge summary describes KL's aunt as his
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"legal guardian", which may have given rise to confusion. She is not his guardian by virtue
of an appointment mentioned in section 7 of the Children (Scotland) Act 1995.
[15]
The curator ad litem spoke with a senior manager in the litigation team of the local
authority. That manager confirmed that the treating hospital had called the social work
department to check if anyone had parental responsibilities and rights. That is consistent
with a note by an anaesthetist in KL's medical records from early November 2024. The
social work department confirmed to the clinician that KL's aunt did not have parental
responsibilities and rights.
[16]
The social worker who took the call "passed on to the health visitor who was
engaged with the family that the aunt should take legal advice and apply for parental
responsibilities and rights if she wished to do so". It appeared that the local authority was
not aware that KL's mother had died. Having reflected on matters the manager confirmed
to the curator ad litem that it was the responsibility of the local authority to review the case
and to offer any support or carry out any assessments considered necessary. She told the
curator ad litem that she would take matters forward with the head of the Children and
Families Service.
[17]
It is surprising that there appears to have been no social work involvement at or
following KL's discharge. At the very latest, however, an acute issue arising from the fact
that no-one has parental responsibilities and rights for KL was highlighted in early
November when his operation had to be cancelled. The local authority was made aware of
the issue by an inquiry from the treating hospital. It is again surprising that this did not
prompt direct communication with KL's aunt.
[18]
The lack of communication with KL's aunt during the period after the cancelled
operation raises issues not just in relation to the local authority, but also in relation to the
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petitioner. KL's aunt told the curator ad litem and the petitioner did not dispute this that
after the cancelled operation she had heard nothing more until the petition was served on
her. That is plainly unsatisfactory. There is, first, the obvious practical concern that she
should have been placed in a position that allowed her to plan for the operation. Second, it
is not clear why no-one communicated with her with a focus on the need to obtain parental
rights and responsibilities so that she could provide consent in KL's interest. Although time
was relatively short it is not obvious that an order could not have been sought urgently in
KL's local sheriff court.
[19]
Health board B are not involved in these proceedings. The local authority received
service of the petition, but did not enter the proceedings. Neither has had an opportunity to
respond in relation to any of the matters mentioned above, other than insofar as a manager
in the local authority has spoken with the curator ad litem. I intend to request that the Clerk
of Court send this opinion to the institutions concerned.