Medical negligence claims for children and protected parties

By law, certain people are unable to bring a claim on their own:-

1. a child (anyone under the age of 18 years); and
2. a ‘Protected Party’ (PP): a person who lacks the mental capacity to make certain decisions for themselves, owing to an impairment of, or a disturbance in the functioning of, their mind or brain.

A child or PP will need another person, called a ‘Litigation Friend’ (LF) to instruct solicitors to conduct court proceedings on their behalf.

In many cases, parents or close relatives will take on the role of LF, however, in certain circumstances where this is not appropriate, a professional LF, for example the Official Solicitor may be appointed.

The law requires a LF to conduct the proceedings fairly and competently; take all decisions and steps in the proceedings for the benefit of the child or PP; and have no personal interest in the claim.

The effect of the Limitation Act 1980 on claims made by children and Protected Persons

The general rule is that a claim for damages for personal injury must be commenced at Court (ie a Claim form issued) within three years of the date of the injury. There are exceptions to this, and one of them is for children and Protected Persons (referred to as ‘people under a disability’ in the Act)

For children, the time limit is three years, but the three year period does not start until the child reaches the age of 18. For example, if a child was injured in a road traffic accident on 1 January 2009, and at the time of the accident the child was aged 15, (DOB 1st July 1993), the three year period would not start until the date of the child’s 18th birthday, on 1st July 2011. The child would have until 1 July 2014 (‘within 3 years’) to bring issue court proceedings.

For ‘Protected Persons’ – defined in the Limitation Act 1980 as people who are incapable of managing their property and affairs due to mental disorder - Court proceedings must be issued within three years from the date when the person ceased to be under a disability. If the Protected Person never becomes sufficiently mentally able to bring proceedings for themselves, there is no time limit for commencing the claim.

CAUTION: The law about time limits for bringing claims is complex especially for ‘persons under a disability’. Legal advice should always be sought.

Awards of damages (compensation) for children and Protected Persons

Children

Special rules apply when damages are awarded to a child or a ‘protected party’.

In any claim for personal injury, whether for an adult or a child, terms of settlement can either be agreed through negotiation between the parties or, if agreement cannot be reached, ordered by a Judge at the trial.

Whether the terms of settlement are agreed before the trial or are decided by the Judge at trial, the Court has to approve the award on behalf of the child. The Judge has a responsibility to look into the terms of settlement and ensure that it is a reasonable and proper settlement for the child. Usually there is a hearing at which the lawyer for the child will explain the case and proposed settlement to the Judge. The Judge will read the papers and ask any questions. If the Judge is satisfied that the settlement is reasonable in all the circumstances, he or she will make an order approving it on behalf of the child.

The Court will also have to decide how the child’s compensation fund should be invested. In cases where the award of compensation is small, the Judge may simply order that it be paid direct to the Litigation Friend to be put into a building society account (or similar) for the child’s use.

The decision can be more complex in higher value cases. One option is for the money to remain in Court and be managed for the child. Another option is to ask the Court to settle the funds into a Personal Injury Trust for the child where, usually their parents, and often a Professionl trustee, manage the money. Alternatively a Court of Protection application may be required to appoint a Professional Finance Deputy to manage the child’s funds. The decision is usually dependant on whether the child is likely to have mental capacity when they are 18 to manage their own finances.

Finance Deputyships and Personal Injury Trusts are often preferred options for flexibility. If the funds are managed by the Court, an application is required each time money needs to be taken out for the benefit of the child, and will only be granted if it is considered a reasonable request.

When the child reaches the age of 18 years and she or he has capacity to manage their own affairs, the Court will make arrangements to send the full amount and interest accrued to him or her (or if the fund is held in the form of investments; for these to be sold or transferred into his or her name).

If the young person concerned is not able to manage his or her property and affairs when he or she reaches the age of 18 (see protected beneficiaries below), the money will remain invested in Court and the Court will order the Litigation Friend to apply immediately to the Court of Protection for the appointment of a Finance Deputy.

Protected persons

The Court also has to approve an award of compensation on behalf of a Protected Person . Once approved, it must then decide if the Protected Person is also a ‘Protected Beneficiary’ (PB). A PB is a person defined as incapable of managing his or her property and affairs due to mental disorder. The Court decides this question by looking at medical evidence.

If the Court decides the person is a PB, and the award is £50,000 or more, it will order that the LF apply to the Court of Protection for the appointment of a Finance Deputy. A Deputy is a person appointed to manage and administer the PB’s financial affairs. If the award is less than £50,000 the Court will treat it in the same way as the fund of a child.

At Leigh Day we have conducted many cases on behalf of children and protected persons who have suffered both minor and significant injuries. Many of our clients are protected persons because they have suffered severe head injuries resulting in brain damage.