Self-help guide
Advice for parents acting for babies and children
This guide is sponsored by Lester Aldridge
Find out more at lesteraldridge.com/for-you/medical-negligence
Children and consent
The United Nations Convention on the Rights of the Child (UNCRC) defines a child as anyone under the age of 18 years old. There are exceptions to this, but these are very limited.
However, consent given by anyone over 16 to surgical, medical, or dental treatment is as effective as if they were of full age — it is not necessary to obtain consent from their parent or guardian. The only exception to this might be if the minor is shown to have lacked mental capacity to make the decision.
Reference to surgical, medical, or dental treatment includes any procedure undertaken for the purposes of diagnosis and generally applies to any procedure including the administration of any anaesthetic required.
Legal aid funding
In April 2013, the availability of legal aid for clinical negligence claims was largely swept away. Some legal aid has been retained for a small group, namely infants who have suffered physical and/or mental injury as a result of negligence occurring in the womb, during birth, or a short time thereafter.
To receive legal aid, you have to show that you satisfy both a means test (in reference to your income and outgoings) and a merits test (whether there appears to be an arguable case). The means assessment is based on the child’s income, so unless your child is the beneficiary of a trust fund or the will of someone who has died, they are likely to satisfy the test. Whether the merits test can be satisfied will depend on the facts of the case.
Owing to difficulties with low rates paid by the Legal Aid Agency to experts, it can sometimes be difficult to run a case with legal aid funding. As a result, not all solicitors offer legal aid. Make sure you ask your solicitor before the visit.
Complaints procedure
Before you visit a solicitor, you may want to write to the hospital or healthcare provider to find out more about the case. Correspondence passing on the complaints procedure can be helpful to solicitors when first assessing the case. Some solicitors will help you write a letter of complaint, so it is worth asking them first. In some cases, we can provide assistance. It doesn’t cost anything to use the complaints procedure. You can read more about the complaints procedure on our dedicated webpage on complaining about healthcare.
Assistance from Avma
Some people find the thought of approaching a solicitor daunting. Avma can give you advice either through our helpline or written advice service.
If you prefer to write in, please provide us with as much information as possible. Generally we find it helpful to have copies of documents such as:
- the medical notes (treating hospital and GP notes),
- Any complaint correspondence, for example your letter of complaint to the hospital and their reply, if any was given,
- any internal investigation reports (these might be called serious incident or root cause analysis reports) that have been sent to you, and
- a short statement setting out the reasons you believe your child may have experienced negligent treatment and the injuries which have been caused because of it. There may be times when you don’t know what went wrong but that the outcome is not what you expected. In these situations, it is helpful to give us as much information as you can.
Please note that we are unable to accept large documents by email — these should be sent in by post. Upon receipt of your documents, one of our advisers will look at your case and let you have a written opinion on whether they think there is negligence. If the case should be investigated further, they will help to refer you on to one of our panel solicitors if appropriate.
Making a claim
If your child has died or suffered injury as a result of negligence, you may be considering bringing a legal claim for compensation. In this case, you will need to speak to a solicitor. Here are a couple of things you should think about:
Choosing the right solicitor
Always choose a solicitor who is accredited in clinical negligence work. This indicates they have been able to demonstrate competence and experience in running clinical negligence claims. Avma was the first organisation to accredit solicitors and we have been doing this for longer than any other agency offering accreditation. Solicitors who have been accredited by us are described as Avma panel solicitors. Look out for this logo to be sure:
Time limits
In personal injury claims (including clinical negligence), you have three years from the date the cause of action arose (or the date the injured person had knowledge of the negligence) to issue a claim. The time limits are referred to as the limitation period and court proceedings must be issued within this time.
However, the time limits are different in the case of children. The three-year time limit begins to run from the date the child reaches 18 years of age, which means the claim must be issued by the time the child reaches 21 years.
If the injury has resulted in mental incapacity, there is no time limit. However, the courts will need to examine carefully whether there is capacity. For more information on time limits, read our self-help guide on limitation.
Try to choose the right solicitor for your case at the outset. Clinical negligence claims can take a long time to complete; you are likely to be with your solicitor (or at least the firm) for a number of years. For further information on choosing a solicitor, read our self-help guide on choosing a solicitor.
If you do not feel confident enough about choosing a solicitor or approaching them directly, contact our helpline for assistance and advice with the process. Avma has worked with other agencies such as SANDS in order to help identify firms who have particular expertise in helping clients who have experienced a stillbirth or who have lost a child.
Inquests
If you believe your child has died as a result of negligent hospital care or mismanagement by a health professional, our pro bono inquest service may be able to help you. The service is free of charge, although you will be asked to cover any out-of-pocket expenses. We will endeavour to find a barrister who will represent you at the inquest. Alternatively, if you are simply looking for advice on what to expect, please refer to our page on inquests.
Demand for our pro bono inquest service often outstrips what we can supply. Avma does recognise how difficult it is for families who have lost a child and we will make every effort to take your case on, although we are unable to offer any guarantees. In any case, we will always try to provide you with advice.
Avma is unable to offer any counselling to distressed or bereaved parents, but are pleased to recommend you to other charities which may be relevant. If you are a parent who has experienced a stillbirth, you may find it helpful to visit the SANDS website. For more resources , read our mental health guide.
If you are suffering bereavement as a result of losing a child, you may find the Child Bereavement UK charity helpful. Alternatively, if your child has suffered a mental or physical injury, you may find it helpful to contact Mencap.