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What is a Litigation Friend and when is it required when making a claim for cerebral palsy suffered due to medical negligence?
Complications are always a worry during childbirth. Fortunately in the majority of births babies are born into the world healthy. Sadly though what happens during the birth of some babies will have far reaching consequences for the rest of their lives. It is reported on the NHS Choices website that approximately 1800 babies are diagnosed with cerebral palsy each year, which is one in every four children. This figure includes those who will have suffered cerebral palsy as a result of medical negligence.
We have acted in several cases where a baby has suffered brain injury around the time of their birth due to inadequate medical treatment. Our clients include a girl who suffered oxygen deprivation during her birth as a result of the hospital trust staff failing to react to signs of foetal distress and failing to undertake an emergency caesarean section. She was subsequently diagnosed with cerebral palsy and received compensation to provide for her additional needs, including care, equipment and accommodation, for the rest of her life.
Children with cerebral palsy are not able to bring their own cerebral palsy medical negligence cases and, in such cases, a Litigation Friend is needed to conduct the case on their behalf.
Many people ask me to explain what it means to be a Litigation Friend and what will it involve. As a litigation friend you will take all the decisions and steps in the case for the benefit of the child, acting in their best interests.
The Court rules state that the Litigation Friend:
1. Must consent to act
2. That he/she knows or believes the claimant is a child or lacks the capacity to conduct court proceedings
3. That he/she can fairly and competently conduct court proceedings on behalf of the child and has no interest adverse to that of the child
4. Must give an undertaking to pay any costs which the party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the party’s assets.
In most cerebral palsy cases it is the mother or father of the child who acts as their Litigation Friend and must instruct the Solicitor and give instructions in relation to the case on their child’s behalf.
It is not only children who require a Litigation Friend. Adults who lack the required mental capacity to bring a claim also require a Litigation Friend. The issue of whether someone has or lacks mental capacity is determined by reference to the Mental Capacity Act. The assumption is that someone has capacity unless proven otherwise, and the issues to be considered are very complex and medical evidence is usually required as to whether someone has capacity to bring their own medical negligence claim, looking at issues such as whether the person can understand and retain information, weigh up information and reach a decision and then communicate a decision.
A child requires a Litigation Friend until they reach the age of 18. If they have capacity they can then bring their own claim. It is sometimes the case that a medical negligence claim relating to cerebral palsy is not brought immediately when the injured person is a child and, if the claim is brought after the person has turned 18, there needs to be careful consideration as to whether they have capacity to bring the claim themselves.
Cerebral Palsy in particular can affect someone in many different ways, depending on the nature of the brain injury suffered. The person may have severe physical injuries affecting their mobility and speech, but may still be able to bring their own claim with the right support, for example assistance to help them communicate their instructions. Equally a person may seem physically less affected but their injury has affected the way they process information which may mean they are not capable of bringing the claim themselves as they may not understand the information given to enable them to give proper instructions.
Recent cases have stressed the importance of full and proper assessments of capacity to enable people who are able to bring claims to do so, and to identify those who require a Litigation Friend to ensure their case is conducted properly.
If you have any questions about acting as a litigation friend, bringing a claim on a child’s behalf or whether you are able to bring your own claim please contact us today. Our experience enables us to empathise and understand that this is a sensitive issue and we are here to support you throughout the claim and explain the issues to you.