If you want to bring a claim for compensation, usually you have to do this yourself. But there may be circumstances which prevent someone being able to do this, especially when it relates to negligent medical treatment, and there are some situations in which you may be able to help a loved one bring a claim on their behalf.
Advice on bringing a medical negligence claim on behalf of someone else
A child under the age of 18 cannot bring a claim by themselves and this needs to be done by a responsible parent or guardian. It does not matter too much exactly who this is, it could be either parent, a grandparent or even an older adult sibling, but that person must be able to act in the best interests of the child and there will be an assessment of suitability for this purpose. That responsible person will be known as the Litigation Friend.
If the child is a teenager when the claim is on-going it is possible that they may want some input and involvement in their claim and this is perfectly acceptable. It is also important to acknowledge that this is their claim and that this happened to them. We are able to assess whether or not they are capable of giving instructions or information to us, but any overriding decisions will always be made by the Litigation Friend.
You will stop being a Litigation Friend when the child turns 18 and can then make their own independent decisions.
Mental incapacity/protected party
An adult who lacks the mental capacity to manage their own Court case either with or without a solicitor is known as a ‘Protected Party’. They too will be appointed a Litigation Friend.
If the adult regains capacity during the case, you may need to apply to stop being a Litigation Friend and they will be able to take over their own case.
In all cases the Litigation Friend is under a duty to make decisions in the best interests of the child or protected party, keep them informed about the case at all times, where reasonable to do so, and dependent upon their understanding, and talk to their solicitor to give timely instructions based upon the best interests of the child or protected party. A Litigation Friend is also responsible for paying any costs due throughout the case.
If damages are awarded, there will be a Court hearing to approve the settlement. You will need to attend that hearing with your solicitor. Any monies will usually go into a Court Funds Office (CFO) account and if the claimant is a protected party then a Deputy will take over at this stage.
For a child, the monies will normally be held in the CFO account until they turn 18 but occasionally funds can be released for specific circumstances, such as purchasing a new laptop for school work. In that case, the Litigation Friend will still be responsible for any damages awarded until they turn 18 and you must continue to act in the child’s best interests at all times.
It is possible that the negligence itself has caused someone such disabilities that they do not have the mental or physical strength to bring a claim by themselves. In some situations we can take instructions from the next of kin or a near relative, provided that the person whose claim it is gives verbal and written authority for us to do so. They can revoke this authority at any time. Much like a Litigation Friend, you will need to act in the claimant’s best interests at all times, and for as long as they have mental capacity, they will need to sign their own paperwork and you cannot do this on their behalf.
There will be times when we will need to take instructions directly from the claimant, but we will always be mindful of any difficulties they may have and we may need your help in these circumstances to obtain the information that we need.
You may want to help an elderly parent or grandparent bring a claim and much like the scenario above, you might be able to give instructions on their behalf whilst the claim is on-going provided that we are able to obtain their consent for this. Again, there will be times where they need to sign their own paperwork or give instructions directly to us, and as before, they can revoke this authority at any time.
It is sensible to think about getting a Power of Attorney for an elderly relative to be able to make decisions about things like medical care or managing finances. Once someone has lost mental capacity, it is too late to get a Power of Attorney. It must be done whilst they still have capacity.
If you require further advice about getting a Power of Attorney or making or updating a Will, please read more here.
Making a claim on behalf of someone who has died is slightly different and there are specific criteria that apply. If the deceased person left a Will then only the Executors are legally entitled to bring the claim on behalf of the estate and dependants. If there was no Will then there is a chain of entitlement that we must follow. If you want to investigate a claim on behalf of someone who has died, it is best to speak to us and we will be able to provide tailored advice specific to your circumstances.
For further information about bringing a claim on behalf of someone who has died, please click here.
How we can help
If you want to bring a medical negligence claim on behalf of someone else, do speak to our highly specialised team about it. We offer free initial advice and can give you information to take back to your loved one so that together you can decide how best to proceed.
If you would like any advice in relation to the subjects discussed in this article, please contact Baishali or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.