Medical Negligence Claims For Children & Protected Parties

Are you pursuing a medical negligence claim on behalf of a child or a protected party? If so, different rules may apply to both the proceedings and settlement of these claims.

Who can pursue a medical negligence claim on behalf of a child or a protected party?

In most circumstances, where a protected party or a child pursue a medical negligence claim they must have a litigation friend to conduct proceedings on their behalf. The Court can appoint a litigation friend, however it is more common for someone the Claimant knows to be appointed.

The law states that a person may act as a litigation friend if they can fairly and competently conduct proceedings and have no interest adverse to that of the child or protected parties. We often see family members acting on behalf of the Claimant.

Usually, all that is required is a Certificate of Suitability which is sent to the Court during the course of the claim. If the party lacks capacity, a medical report explaining this is also required. This allows the litigation friend to correspond with the solicitor and make decisions on behalf of the claim.

Do you need approval of any settlement?

At the end of any successful case on behalf of a child or protected party, Court approval will be required. This is to ensure that the child or protected party has been adequately compensated for any injuries.

These hearings are usually very short and informal.

What happens to the compensation?

If the claim is on behalf of a child, the money is usually put into the Court Funds Office where it will either be placed into the special account or a percentage of the compensation will be invested in Government gilts and shares.

There are circumstances where you can apply for an Order which would allow you to remove some of the funds in the Court Funds Office for specific payments on behalf of the child. In order to do this you would need to provide evidence that the child would benefit from a payment and provide proof of the exact costs. A good example of this would be to request monies to buy a laptop for the child to assist with school work.

When the child turns 18, the monies will be released and the account at the Court Funds Office will be closed.

Where a claim has settled on behalf of a protected party, the position is more complex. The Court of Protection has jurisdiction to make decisions in the best interests of a protected party. If the sum to be invested is more than £50,000, the litigation friend will usually have to apply to the Court of Protection for the appointment of a Deputy. This is not always the case if the litigation friend has a Power of Attorney. If the award is under £50,000 the money can be retained in the Court Funds Office and invested in the same way as the funds of a child.