Court allows NHS to carry out operation on baby boy after mum died

A judge has expressed concern about the lack of involvement by social services with an ill baby boy whose mum died following his birth.

Lady Carmichael said it was “surprising” to hear about the interactions between social workers and relatives of an infant she referred to as KL.

In a written judgement published at the Court of Session on Tuesday, Lady Carmichael wrote about KL, who needed to have an operation for a condition called patent ductus arteriosus – a blood vessel connecting the arterial and pulmonary arteries, which left untreated can cause children to become seriously ill.

A Scottish health board instructed lawyers to go to the Court of Session and ask Lady Carmichael to give medics permission to conduct a procedure to tackle the problem.

The doctors needed to go Scotland’s highest court because KL’s mother had died before he was discharged from hospital in March 2024.

The court heard how his parents weren’t married, and a maternal aunt registered his birth. The child’s father wasn’t registered as his dad, and KL was “discharged” from the hospital into his aunt’s care.

The court heard that neither the maternal aunt nor his father had assumed parental responsibilities for KL – this meant that neither adult could give the permission needed to allow KL’s procedure to take place.

This prompted lawyers for the NHS to ask the court to grant permission for the operation.

The procedure was previously scheduled to take place but was cancelled.

The court heard how the proposed surgery has a rate of success without “complications of 99% per cent”.

Lady Carmichael agreed with the submissions made to her and allowed for the operation to be carried out.

However, in the judgment, she spoke of her surprise at the lack of involvement by social services in the care of the child.

A reporter appointed by the court to find out about the care said that it wasn’t “clear what involvement, if any”, came from the local authority at the time of the baby’s discharge from hospital into the care of his aunt in March 2024.

The court heard how the aunt recalls how she was contacted by a social worker, but only at the point when KL’s mother became “acutely ill” in January 2024.

The baby’s aunt told the reporter that no one had spoken to her about making sure that the legal position for the child was secured.

KL’s health visitor had provided some advice in relation to social security benefits.

The court heard how KL’s medical records include 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 to the reporter, it didn’t “appear” that the named social worker has had any ongoing involvement with the family.

The discharge summary describes KL’s aunt as his “legal guardian”. The court heard this wasn’t the case.

The court heard how the reporter spoke with a senior manager at the local authority.

The court heard how this manager confirmed that the staff at the hospital where KL was treated had called the social work department to check if anyone had parental responsibilities and rights.

The social work department confirmed to the clinician that KL’s aunt did not have parental responsibilities and rights.

The court heard that it appeared that the local authority was not aware that KL’s mother had died.

Regarding the situation, Lady Carmichael wrote: “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.

“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 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.”

Lady Carmichael said that the local authority whose social work department is responsible for KL’s care and a second health board were notified about the action.

Lady Carmichael said these organisations should be notified of her opinion.

She wrote: “I intend to request that the Clerk of Court send this opinion to the institutions concerned.”