Children and certain adults are considered to be vulnerable members of society. Children are generally deemed to lack the required mental capacity to bring a claim and require a suitable adult to act as their litigation friend. This effectively means someone is acting as the claimant in their place, pursuing the child’s best interests throughout the claim. This is often the case for adults who are vulnerable as well.
At Osbornes Law we have acted for many vulnerable claimants in personal injury claims, child abuse claims and clinical negligence claims. It can often be very stressful for the family of an injured vulnerable person to cope with the aftermath of the injury and deal with the litigation at the same time as dealing with day-to-day issues, such as caring for their family member.
Who qualifies as a Vulnerable Adult?
The following are examples of people who are classed as vulnerable:
- The Elderly
- Adults with mental health issues
- Adults with physical or learning disabilities
- Adults with speech, language or communication difficulties
- Isolated members of a community reasonably require additional support, for example, foreign nationals who cannot communicate in English or people who live alone.
Vulnerable members of society may suffer medical negligence whilst under the care of GPs, public or private hospitals, care homes, private carers and/or mental health facilities.
Reviewing your case
Our team will consider whether the potential claimant has the capacity to conduct their claim. Not all vulnerable adults require support through the litigation process. If we are of the view that someone does lack the required capacity to appreciate the risks of the litigation process and make decisions in relation to their case we will advise them on appointing a litigation friend and on who may be suitable for this role. This is usually a family member or friend who has no conflicting interests with the claimant but in specific circumstances can be a government official such as the Official Solicitors Office.
If it can be shown that the vulnerable adult pursuing the claim does not have the capacity to conduct proceedings, a medical report will be obtained to support his. This means that the limitation period, which is usually 3 years from the date of the injury, or 3 years from the date on which a person became aware that they had suffered a significant injury, is waived. In effect, there is no limitation period as such.
It is always prudent to pursue a claim as soon as possible after the negligent medical care/accident as medical records, doctors records, nursing records and any other relevant records will be more difficult to trace the longer the amount of time has elapsed, especially if the treating doctor has retired or moved hospital. This makes it harder for the defendant to obtain witness evidence and may make it difficult for the case to be pursued.
Settlement of any case on behalf of a vulnerable person must be approved by the court. If a case settles prior to the issue of proceedings then proceedings will have to be issued in court so that an approval hearing before a judge can be fixed. The purpose of this hearing is so that a judge can review all the evidence and make sure that an appropriate settlement has been reached between the parties on behalf of the vulnerable person. The judge can then enquire further if he/she has any issues with the settlement figure or the expert evidence before approving the settlement on behalf of the vulnerable claimant.
The claimant’s monies will be invested in accordance with expert financial advice if so required. A professional or lay deputy will be appointed and if the claimant requires ongoing medical and/or nursing care and treatment, the monies will be released to the family of the claimant following an application to the Court of Protection by the Deputy. The Court of Protection will have to approve all applications made to the court by the Deputy before any monies are released by the court for the claimant.
Advice can also be sought in certain cases, in relation to setting up a Personal Injury Trust and this will protect the vulnerable claimant’s welfare benefits if they are in receipt of these.
Cases we have settled
- In a claim for a woman who sustained a brain injury and required full-time nursing care, her daughter was appointed Litigation Friend in her case.
- A claim for a man who sustained a brain injury and was left in a minimally conscious state and his son was appointed Litigation Friend in his case.
- A child who lost her mother due to clinical negligence and her father was appointed her Litigation Friend
- Two children who lost their father due to clinical negligence and their mother was appointed their Litigation Friend.
- Multiple claims for childhood sexual abuse where either the foster parent or the official solicitor’s office was appointed as Litigation Friend.
If you experience negligence during medical care
If you think that you or a loved one has experienced negligence during medical care please contact our specialist team. We are here to help.
We speak your language
Our dedicated injury team speaks a variety of languages including Polish, Hungarian, Romanian, Bulgarian, Spanish and Greek.
Our promise to you
- We will review your potential claim by advising you on NHS complaints procedure or other alternative procedures if your case does not relate to NHS care and treatment
- We will not charge a fee for our time in undertaking an initial review of your case.
- We can assist you with any issues that you may have regarding the complaints procedure or that you encounter in obtaining copies of your medical records
- We will advise you of the course of action in respect of your case.
- We will advise you on appointing a litigation friend or applying to be someone’s litigation friend should the case have merit.
For a confidential discussion regarding your situation call Stephanie Prior on 020 7681 8671 or fill in our online enquiry form.