Scottish judge holds the court can consent for a child whose parents refuse — two of three cases are Jehovah's Witness blood refusals

Within about two weeks, three petitions reached Scotland's highest civil court asking it to do something a parent normally does: give consent to a child's medical treatment. In each case the parents had refused. Lord Braid granted an order permitting medical intervention in all three — "albeit not, in all cases, in precisely the terms originally sought" — and then, on 20 August 2026, published a single written opinion explaining why, "since it is important that such cases are not held and decided in secret."^[1]

Two of the three cases involve Jehovah's Witness families who had refused blood transfusions for their child. Both were brought by Greater Glasgow Health Board, and the opinion records a refusal on religious grounds in those two only. The third petition, by Borders Health Board, records no religion at all: child C's parents refused a tetanus vaccination after the family dog bit their daughter.^[1]

The opinion — cited [2026] CSOH 76, and issued by the Outer House, the first-instance branch of the Court of Session — takes up a question an earlier Court of Session opinion had left open. The court's protective jurisdiction over children is known by the Latin phrase parens patriae — literally, parent of the nation. An opinion from December 2025 had not addressed whether it applies only where a child is an orphan, and an academic writer had argued it should not be used at all where a child's parents are alive but refusing consent. Lord Braid held that it is not so confined. Where a parent is alive but refuses, he wrote, "the court is, in effect, acting as a third parent in such circumstances."^[1]

He set the counterweight in the same paragraph. Any such authorisation "is an exception to parental autonomy; it is an interference by an organ of the state in family life and any authorisation which is given must be a proportionate response to a material risk."^[1]

And in a postscript he recorded what he made of the three sets of parents in front of him: "In all cases, there were no social work concerns about the parents. All were loving parents who were acting in accordance with what they perceived to be their child's best interests."^[1]

STV News reported the opinion the same evening, under the headline "Doctors can give treatment to children whose parents refuse consent, judge rules." Its standfirst read: "Cases were brought by NHS Greater Glasgow regarding Jehovah's Witnesses who refused consent to him receiving a blood transfusion on religious grounds."^[2] That is a fair description of the two Greater Glasgow petitions. It is not a description of the third, which was Borders Health Board's and concerned a vaccination — and STV's own report sets that out correctly further down, noting that "two of the actions were brought by Greater Glasgow Health Board, and the third was brought by Borders Health Board."^[2] The distinction is easy to lose in a summary, and worth holding onto: the opinion identifies Jehovah's Witness families in only two of these three cases.^[1]

How these cases work

A health board — the regional NHS body responsible for hospital care in an area — brings a petition, a written application to the court. On receiving each of these three, the court did two things straight away.

First, it appointed a curator ad litem: an independent lawyer whose only job is to represent the child's interests in the case, separately from the hospital and separately from the parents. In all three cases the curator supported the petition — and in all three, the curator's work narrowed what the health board ended up with. For children A and B the orders were granted, "largely thanks to the report of the curator in each case, in narrower terms than originally sought." In child C's case the curator's questioning of the treating clinician led the health board to drop part of its request before any decision was needed.^[1]

Second, it made orders anonymising the child and prohibiting publication of any detail from which he or she could be identified. The health boards were deliberately not anonymised; that, the opinion says, "would normally only be done if to identify it might lead to identification of the child."^[1] The children are therefore identified in the opinion, and here, only as child A, child B and child C.

None of the three children had capacity to consent. The Age of Legal Capacity (Scotland) Act 1991 provides that, as a general rule, a person under 16 does not have legal capacity. Section 2(4) makes an exception where a doctor attending the child considers the child "capable of understanding the nature and possible consequences" of the treatment. None of the three children fell within that exception, so none could consent — or refuse — for themselves.^[1]

Child A: brain cancer, and a transfusion held in reserve

Child A is a 13-year-old boy with medulloblastoma, an aggressive cancer that begins in the brain. He has severe non-verbal autism, and the clinicians treating him assessed him as unable to make his own healthcare decisions. He and his parents are Jehovah's Witnesses.^[1]

"In accordance with their religious beliefs and an expressed degree of mistrust in Western medicine," the opinion records, his parents had fluctuated over whether to consent to life-saving radiotherapy and chemotherapy. But they had positively confirmed that they did not and would not consent to the transfusion of primary blood components — what the opinion calls "more commonly known as a blood transfusion."^[1]

Greater Glasgow Health Board asked for two things: authority for a course of radiotherapy followed by chemotherapy, said to be necessary to give him the best possible chance of cure and long-term survival, and, separately, authority for a blood transfusion during that treatment if the clinician then responsible for his care judged it necessary to avoid serious harm including death. Without the cancer treatment, the court was told, he would likely die from a recurrence.^[1]

The risk that a transfusion would be needed was high, because the treatment itself was likely to cause anaemia, a shortage of the red blood cells that carry oxygen. If that risk materialised, the opinion says, there would likely be no time to come back to court.^[1] Lord Braid also recorded the clinical position: the conventional threshold for giving primary blood components is a high one, and a transfusion "would only ever be given if it was necessary so as to avoid the risk of serious harm including death."^[1]

Child B: kidney surgery complicated by sickle cell disease

Child B is a 3-year-old boy who needed an open pyeloplasty — surgery to repair a pelvi-ureteric junction obstruction, a blockage at the point where the kidney meets the tube that drains it, which was stopping his right kidney from draining properly.^[1]

The operation was first scheduled urgently in August 2025, then postponed after he was diagnosed with sickle cell disease, an inherited blood disorder in which red cells change shape and can block small blood vessels. It was rearranged for May 2026. He and his parents are Jehovah's Witnesses, and on religious grounds his parents refused consent to any blood products.^[1]

Much of the opinion's account of child B is a record of how far his doctors had gone to avoid blood. Children with sickle cell disease are generally kept at a haemoglobin level — haemoglobin being the protein in red cells that carries oxygen — of at least 100 g/L. His anaesthetist was prepared to proceed provided the level did not fall below 90 g/L. An alternative drug regimen used successfully from March 2026 brought it to 107 g/L by early May, above both figures.^[1]

He had twice been admitted to hospital, in December 2025 and March 2026, with infections that dropped his haemoglobin as low as 57–58 g/L. On both occasions he recovered without a transfusion.^[1]

The surgical plan was built around the family's beliefs where it could be. The open operation was preferred to a less invasive alternative because it offered a 95% success rate against 60%, and because the alternative carried a risk of undetected bleeding; an external stent — a drainage tube whose end sits outside the body — was chosen to spare him a second anaesthetic and further transfusion risk. Clinicians rated the risk of needing blood during the operation itself as very low — none had been required in similar procedures over many years — and said any bleeding would first be met with non-blood volume replacement, saline and albumin. The opinion notes that "human albumin is considered a matter of personal choice within Jehovah's Witness doctrine and is clinically used as a first-line alternative."^[1]

The greater concern was afterwards: a sickle cell crisis, an acute attack of the disease. The opinion lists acute chest syndrome, stroke, splenic sequestration — a sudden pooling of blood in the spleen — and a significant drop in haemoglobin as complications in which a transfusion may occasionally be required, and notes that in extreme cases of major bleeding further blood components may be needed: platelets, plasma, and cryoprecipitate, a concentrate made from plasma that helps blood clot.^[1]

As in child A's case, what the court granted for child B was contingent rather than a direction to transfuse. The treatment the parents had refused to consent to, and for which the board sought authority, covered blood transfusions "should they be deemed necessary by the treating medical professionals to save the child's life or to prevent serious harm"; what the court actually granted was narrower still. The orders in both cases, Lord Braid wrote, "were in the narrowest possible terms, and were proportionate," and in B's case he was satisfied the clinicians would continue their efforts to avoid blood and would "administer blood products only as a last resort."^[1]

Neither A's nor B's parents opposed the petition. Lord Braid went further, recording that "there was at least a hint that they expected the court to grant the consent to enable the procedures to take place, in order that their child would not die."^[1]

Child C: a dog bite, a tetanus jab, and a refusal the opinion does not tie to religion

Because all three petitions were decided in a single opinion, the third is easily read as another blood case. It is not. The opinion records a refusal on religious grounds only in the two Greater Glasgow petitions; for child C's parents it records the grounds they gave for themselves, which were about how they choose to live.

She is a 10-year-old girl, bitten on the right wrist by the family dog on 19 May 2026. The bite left a visibly deformed wrist, swelling, bruising and a 1–2 cm open wound, along with a confirmed fracture of the radius near the wrist (the distal radius), repaired surgically that evening. Her parents took her to hospital promptly and she recovered well.^[1]

Because of the risk of tetanus arising from a dog bite, staff advised from the outset that she receive two injections against tetanus, a rare but potentially fatal infection of the nervous system: a tetanus-containing vaccine, which prompts the immune system to build longer-term protection, and a dose of immunoglobulin, ready-made antibodies that give immediate short-term protection by neutralising the toxin. (The opinion names the vaccine REVARIX in two places and REVAXIS in two others.) She had never been vaccinated, which the court was told put her at "particularly high risk" and made her risk profile "high."^[1]

Her mother refused consent, first because she believed the risk of tetanus was low and later expressing a lack of trust in the vaccine; after repeated discussions and clear medical advice on 19 and 20 May 2026, both parents maintained the refusal.^[1] Borders Health Board sought an interim order — a provisional order made urgently, before a case is finally decided — and this was the only one of the three petitions the parents opposed.^[1]

In a written statement they lodged and adopted, and speaking to the judge in person, the parents said they "choose to live in a way that prioritises simplicity, nature and mindful choices about what is put into their bodies." Wherever possible they prefer natural remedies. They believed the incident was low-risk for several reasons they set out, argued there was little research on harms from vaccination, and said the vaccination might itself harm their daughter. They also asked for more time.^[1]

Time was the one thing the court could not give. The medical evidence was that the vaccination had to be given within four days of the bite, and by the hearing three had elapsed — the hearing having itself been put back a day so the parents could be notified and heard. They were not legally represented; the judge recorded that they "were able to present their views reasonably and articulately."^[1]

Lord Braid put two questions to himself: what was the risk of C developing tetanus without the injections, and what harm would follow if she did. On the first he found a "greater than negligible" but impossible-to-quantify risk, noting there was no scientific evidence for the parents' suggestion that she might have developed natural immunity, and that, as her mother herself said, it was impossible to know for certain. On the second there was "little room for doubt": serious harm, and a mortality rate of about 10% even with medical care, which "at 1 in 10 was considerably higher than negligible."^[1] Tetanus is rare in the United Kingdom, the opinion notes, largely because of a six-dose childhood vaccination programme in place since 1961; those who contract it are typically unvaccinated or incompletely vaccinated.^[1]

He authorised both injections, ordered that she receive them that day, and ordained her parents (in the court's word: ordered them) to take her to hospital for that purpose — "which I understand they duly did." The petition was later dismissed, its purpose achieved.^[1]

What the curator took out

In child C's case the health board had originally asked for more: authority for two further doses of the vaccine at intervals of one month, to bring her into the routine childhood vaccination schedule.

The curator elicited from the treating clinician that those further doses were "not technically related to this acute episode"; that their purpose was long-term protection; and that he had "mostly assumed" the court would not authorise them, which meant that without them C "would essentially go back to no immunity and be back at square one." As the curator pointed out, granting them would use the parens patriae jurisdiction to bring an unimmunised child into routine vaccination against her parents' wishes with no acute medical event making it necessary — going considerably beyond the proper compass of an exception to parental autonomy, and with no legal authority supporting it.^[1]

"Those comments appeared to me to be well made," Lord Braid wrote. The jurisdiction "enables the court to intervene only in urgent situations, rather than to impose measures which the medical profession considers to be in the best interests of children against the wishes of the parents."^[1]

No formal ruling was needed. At the interim hearing, senior counsel for the board dropped that part of the request, telling the judge the board "would not have initially sought one, had counsel been aware of the views expressed by the clinician."^[1]

The same pattern held in the other two cases, where the curator's report was largely what narrowed each order.^[1]

The law the court applied

Lord Braid adopted the summary of the law given by Lady Tait nearly nine months earlier. The Court of Session can authorise treatment for a person, including a child, who lacks capacity to consent; it may do so where the treatment is in that person's best interests; such authority has the same effect in law as consent given by the person or, for a child, by a parent; there is a strong presumption that it is in a person's best interests to stay alive; and the religious views of the child or the parents "are a factor which may be taken into account but that factor does not carry pre-eminent weight."^[1]

He also had to reckon with the UNCRC — the United Nations Convention on the Rights of the Child, the international treaty setting out children's rights, incorporated into Scots law for certain purposes by an Act of the Scottish Parliament in 2024. That Act makes it unlawful for a court to act incompatibly with the Convention's requirements when exercising a "relevant function," which includes a function conferred by a rule of law. The relevant articles, he noted, make a child's best interests a primary consideration, recognise every child's inherent right to life, require states to respect parents' rights and responsibilities in guiding their child, and provide that both parents share responsibility for the child's upbringing.^[1] In the cases of A and B, he found, "there was no real need to resort to the UNCRC requirements, which were in any event consistent with Scots law."^[1]

His summary of those two cases was blunt. "In each case, stated bluntly, there was a risk of the child dying if the orders were not granted." And: "the procedural cart must not drive the welfare horse."^[1]

Notice, secrecy and open justice

Part of the opinion is housekeeping. Rule of Court 14.7 states that a parens patriae petition shall not be intimated on the walls of court — "intimation on the walls of court" being the formal public notice a court gives that a case has been raised, now posted in a virtual equivalent rather than physically.

The three petitions had been handled three different ways. In A's case the health board argued that, given the greater emphasis on open justice since Law Hospital NHS Trust v Lord Advocate 1996 SC 301 — the decision from which the practice of not giving notice was derived — notice should not be dispensed with, and the petition was duly posted. In B's case the board asked to be excused from posting, and was. In C's case the court's attention was drawn to Rule 14.7, so nothing needed to be dispensed with and the petition was not posted.^[1]

Lord Braid settled it: "As I read the Rules of Court, it is not open to the court to waive the requirements of RCS 14.7." Such petitions should not be posted on the walls of court, and there is no need to ask the court to excuse it. Open justice is served instead by hearing the petitions in open court, with the family's privacy preserved by anonymity orders of the kind granted here — and the media's attention is drawn to a case by intimation of the interim order prohibiting identification of the child.^[1]

The postscript: why not a child protection order

The opinion ends with a postscript on child protection orders. Lord Braid had said at the outset that issuing a single opinion also gave him an opportunity to comment on a recent suggestion by an academic writer: that the court should not exercise its parens patriae jurisdiction where a child's parents are alive but have refused consent to necessary medical treatment, and that a child protection order should be sought instead — an order from a sheriff, Scotland's local judge, under Part 5 of the Children's Hearing (Scotland) Act 2011. The opinion does not name the writer or the article.^[1]

Lord Braid expressed no opinion on whether such an order might ever be sought for that purpose; that, he said, would be for a sheriff to decide. But it did not strike him that one ought to have been sought in any of these three cases, or was likely to have been granted. There were no social work concerns about any of the parents. It would "appear counter-intuitive," he wrote, to order that children be removed from their parents' care, even for a short period, so that consent might be given to a medical procedure.^[1]

He added a practical objection. A sheriff hearing such an application "does not have the luxury of the power to seek a curator's report," and applications for child protection orders are not heard in public. Given how urgent these situations are, "by the time the children's hearing became involved, it may already be too late."^[1]

Background: the December 2025 case

The law Lord Braid applied had been set out in A Scottish Health Board, Petitioner, [2025] CSOH 121, an opinion of Lady Tait dated 4 December 2025 and reported at 2026 SLT 71.^[3]

That case concerned a 14-year-old Jehovah's Witness girl about to undergo a procedure in which blood loss was inevitable. Unlike the three children in the 2026 petitions, she had been assessed by her clinicians as having capacity, and she had confirmed that she did not and would not consent to the transfusion of primary blood components even in a life-threatening emergency. That opinion sets out what those components are — red blood cells, fresh frozen plasma, platelets and white cells — and notes that she had consented to receive products containing minor blood fractions, a choice her beliefs permit.^[3]

An interim order permitting a transfusion was made on 18 November 2025. After a hearing on 4 December, Lady Tait granted authority for the child to receive a transfusion of any and all blood products at any time up to 14 days after the procedure, if the clinician then responsible for her care considered it necessary to avoid serious harm including death. No answers were lodged opposing the petition.^[3]

The curator described a "mature, confident and articulate young person" who had thoroughly researched the material, understood why the health board had gone to court, accepted that if an order was made a transfusion could be given, and was "very clear that she expects her wishes to be respected insofar as they can be and that a transfusion should be a last resort."^[3] Lady Tait recorded that the child had been helped to understand the legal process by her religious community, and assisted by the "balanced information" it shared about why the petition had been brought.^[3]

The health board in that case was anonymised.^[3] The two boards behind the 2026 petitions were not: Greater Glasgow Health Board, which brought the petitions for children A and B, and Borders Health Board, which brought the petition for child C.^[1]