The impact of life-changing birth injuries on family units: legal rights of siblings | Lexology
When a child is disabled, as a result of negligence or otherwise, their disability does not happen in isolation, but affects the family unit as a whole. There may already be children in that family unit, or parents may choose to have more children after their arrival; regardless of how the family unit is built, the reality is that disability changes its very essence.
The impact on parents when they have a child with a disability is widely acknowledged – parents are responsible for both arranging and providing care, coordinating healthcare appointments, getting the correct educational provision, securing benefits, sourcing equipment, making sure the home is suitable for their child … the list is endless, as is the effort that is often required to meet these needs.
The impact on siblings is less appreciated by those outside the family but is often felt acutely by the parents and the siblings themselves. Depending on the seriousness of the disability of the injured child, their sibling(s) may witness life-threatening medical situations from a young age and have to manage with parents who are, understandably, occupied with the extensive demands of meeting the needs of their disabled child. Frequently, they also have their own responsibilities from a young age, taking on the role of a carer or, at the very least, a supporter in the family. They can feel isolated and, in some situations, traumatised by their home situation. Nevertheless, siblings of injured children can often take away many positives from experiencing disability in their family unit: for example, gaining empathy for others, developing an understanding of those facing difficulties and acquiring a resilience and independence built from coping with challenging situations. This is not to say, however, that it is always an easy situation for them or a straight-forward childhood of the type they might have had if their sibling had not been injured.
The rights of a sibling in a medical negligence claim
A question frequently raised by parents when pursuing a claim for a child who has experienced life-changing injuries as a result of alleged medical negligence is what they can claim for their other children who, as a result of said injuries to their sibling, also experienced a life-changing event and, often, related trauma. The simple answer to this question is, unfortunately, very little. In a claim for compensation following a life-changing injury, compensation is awarded to the injured party alone, regardless of the wider implications for other family members, save for in very limited circumstances [1].
Even when responsibility for negligence is quickly accepted by a hospital trust, the process of working out the compensation that a child is due can be a lengthy and complex process. This, sadly, often puts further pressure on families, which are already strained. Frequently, parents are keen to secure therapy for the siblings of their disabled child as part of their legal claim. There is an argument that such therapy benefits the injured sibling by maintaining the stability of the family unit as a whole, but on the strict interpretation of the law this is not the injured person’s loss and, therefore, it may well be resisted.
This can be a very emotive subject for a family as, whatever the law says, the effects are far-reaching when a child experiences life-changing injuries. Sibs is a national charity that assists siblings of disabled people. It recognises that siblings have a lifelong need for information, often experience social and emotional isolation, and have to deal with difficult situations. The charity focuses on ensuring that siblings can access the help they need. Charities like Sibs can prove vital in providing the support that siblings require to have their own needs recognised and to enable them to reach their full potential, both during the litigation process and after.
Ultimately, on the conclusion of a negligence claim, regardless of whether money is specifically secured for siblings to access therapy or other support, they will feel the benefit of their parents’ efforts. On receiving compensation for life-changing injuries, the injured child will be supported with the care package they need, in a home that is suitable and equipped for their disability, and the financial pressure that can be caused by the situation is generally relieved. This does not take away from a sibling’s entitlement to be seen as an individual with their own unique needs, but it makes it easier for these to be addressed.
Helen Hammond, senior associate in the clinical negligence team, comments: “Whilst I understand the limitations of the law in providing compensation to the injured party only, having grown up with a disabled sibling myself I recognise that parents want to ensure that the needs of all their children are met. Inevitably, when you have a child with a disability in the family, it may be a complicated situation to manage. This is something I aim to be sympathetic to for all my clients and I look for any opportunity, either through compensation or signposting charitable support, to make sure that siblings’ requirements are, at the very least, considered.”