Investigating a Claim
The first step is to secure funding for a client. In the majority of cases, a child is granted a public funding certificate.
When a public funding certificate is granted by the Legal Services Commission (formerly known as the Legal Aid Board) that certificate imposes two limitations.
- A procedural limit upon the amount of work permitted to be carried out without reverting to the Legal Services Commission.
- A financial limit on the amount of costs and disbursements permitted to be incurred on a child's behalf. Upon receipt of a public funding certificate, the next step is to obtain the pertinent medical records. In a case involving allegations that a child sustained a brain injury as a result of something that happened during his/her birth, it is important to not only obtain the child's records but it also the mother's obstetric records to ascertain what went on during the pregnancy, labour and delivery, and the mother's GP records to establish the mother's health both prior and during the pregnancy.
Statement
Once a full set of medical records has been obtained, then a statement will be taken from the child's parents to establish the events that took place during the labour and delivery and to provide a brief summary of their child's condition during the first few days of his/her life and his/her subsequent development.
Medical expert's report
The statement is finalised whereupon an expert is instructed to provide a medical opinion. It is really dependent upon the individual facts of a case as to whether more than one expert report is requested in the first instance to address the allegations of negligence.
Particulars of Claim
If reports are obtained that support the allegations of negligence, a meeting may be organised with a barrister, the child's parents and the medical experts in order to draft the allegations of negligence into a formal court document known as the Particulars of Claim in readiness to start a claim in the Court.
Letter to the Defendant
Prior to proceeding with an action through the Court, a letter has to be sent to the proposed Defendant setting out the allegations of negligence and the details of the injuries suffered. The Defendant then has a period of time in which to respond to the allegations before an action can commence. The Defendant's response is required to be a detailed response to provide an indication as to the likely defence.
The Court of Protection
The Court of Protection is an Office of the Supreme Court. Its purpose is to look after the management of the property and affairs of people who, by way of a mental disorder, are incapable of managing and administrating their own property and affairs.
To establish whether a person's affairs should be under the control of the Court of Protection, the following two tests must be proved.
- That a person is suffering from a mental disorder. A mental disorder is defined within the Mental Health Act 1983 as "mental illness, arrested or incomplete development of mind (usually referred to as mental handicap or learning disability), psychopathic disorder (a condition that results in abnormally aggressive or seriously irresponsible conduct) and any other disorder or disability of mind eg. a brain injury".
- As a result of the mental disorder, that person must be incapable of managing and administering his/her property and affairs.
Proving one test does not automatically assume that the other test is also proved. For example, an adult may have cerebral palsy causing him/her physical difficulties but may have preserved intellect such that he/she is capable of looking after his/her affairs. In such a situation, his/her affairs would not be brought under the jurisdiction of the Court of Protection. The same applies to a child but whereas the Court of Protection would not be involved, that child's affairs would still be protected by a different mechanism until he/she attained the age of 18 and became in law an adult. It is also important to note that property and affairs does not include making decisions in respect of medical treatment.
The Master
The head of the Court of Protection is known as the Master. The Master is a member of the judiciary. The Master is assisted by assistant Master(s) and nominated officers. The assisted Master(s) and nominated officers exercise their judicial functions subject to the directions of the Master.
A person whose affairs are managed by the Court of Protection is called "a patient".
The Court of Protection is responsible for the appointment of receivers and any contentious matters arising out of protecting a patient's property and affairs. The function of a receiver is to receive and deal with a patient's income. A parent may apply to be appointed as a receiver for their child subject to proof that their child has a mental disorder rendering him/her incapable of being able in the future to look after their own affairs.
Public Guardianship Office
On 1st April 2001, the Public Guardianship Office was established. It is an executive agency within the Court of Protection. Its purpose is to protect and promote the interest of patients by supervising and supporting the activities of receivers appointed by the Court of Protection. Its function is also to manage the financial affairs of people whom the Court of Protection have decided to be mentally incapable of doing so where nobody else willing or suitable may be appointed as a receiver. It also helps carry out the administrative functions of the Court of Protection.
The Public Guardianship Office is managed by the Chief Executive whom is responsible for the day to day performance of the Public Guardianship Office. The Lord Chancellor is the Minister whose responsibility it is to report to Parliament for the Public Guardianship Office. The Public Guardianship Office supports the Court of Protection. Its staff are civil servants.