Claims on behalf of a child
If you are the parent or guardian of a child, you can bring a claim on their behalf.
Anyone under the age of 18 is deemed in law to not have capacity to bring a claim in their own right. They will therefore need someone to act on their behalf in order to bring a claim in medical negligence. This person will act as their “Litigation Friend”.
If the claim is successful, any agreed settlement will also need to be formally approved by the Court at an Infant Approval Hearing. Provided the Court is content that the settlement represents a fair and reasonable settlement for the child, approval will be provided and the compensation monies for the child must then be paid into a Trust to be held for them until the age of 18.
The time limits for bringing a claim on behalf of a child are also different. The general time limit of 3 years from the date of the incident or date of knowledge does not apply in the same way for a child and instead, the 3 years will begin to run on their 18th birthday and expire when they reach 21 years of age.
Claims on behalf of a person without mental capacity
If the patient is an adult, but is lacking the mental capacity to bring a claim in their own right, e.g. a person who has suffered a brain injury which impacts their mental function, they will need someone to bring the claim on their behalf.
This person will also act as their “Litigation Friend”. Any settlement reached on behalf of a person lacking capacity will need to be approved by the Court.
The general time limit of 3 years from the date of the incident or date of knowledge does not apply whilst a person does not have capacity. If, during the course of the claim, the patient regains capacity, the 3 year limitation period will then start to run. However, if they do not regain capacity at all, then the limitation period does not start to run.