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When does it become necessary to have a Litigation Friend in a Dental Negligence Claim?
By Laura Podger
Going to the dentist can put fear into the most resilient of adults, when children attend their very important dental appointments, many feel quite anxious at the prospect of being examined with sharp instruments. Unfortunately some dentists become complacent and even ignorant to the child’s concerns and calls of pain.
When a child reaches their teenage years a number are faced with the decision as to whether to have braces, attached to this are feelings of self-consciousness and a reluctance to smile,. This adds to the pressure of the already challenging teenage years. When a child has braces, fitted extractions are often needed to make room for the changes that will happen.
We have acted in several cases where extractions have not been completed by the appropriate professional and/or without the use of general anaesthetic. This has caused the child extensive pain, cuts, bruises and swelling, all of which could have been avoided had the correct instructions been followed by the dentist.
In such cases the child is not able to bring a claim alone and needs a litigation friend to do so 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 dental negligence claims involving children it is the mother or father of the child who acts as their Litigation Friend. The Litigation Friend instructs the Solicitor and provides instructions 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. 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.
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.