Foetal anti-convulsant syndrome legal advice

Until now, damages claims arising from the discovery that a child suffers from FACS have been investigated by Solicitors as 'wrongful birth' claims. This involved an allegation that properly warned of the risks involved in taking anti-convulsant drugs during epilepsy, mothers would have chosen either:

• not to become pregnant at all; or
• not to have taken anti-convulsants during pregnancy
• (or if inadvertently pregnant) that the opportunity for termination was lost.

The claims that are being brought by Irwin Mitchell differ because they are not brought under the law of negligence but under the Consumer Protection Act 1987 in relation to all claims after 1 March 1988 (when that Act came into effect). To recover damages a Claimant must show that product has a 'defect' which has caused the complained of injuries.

We think that it is possible to say that these anti-convulsant drugs are defective because the epileptic mother who is pregnant faces an impossible dilemma; either she takes the drugs whilst pregnant and runs the risks of FACS known to be associated with them, or she gives up anti-convulsant drugs before conceiving and during the pregnancy and runs the risk of seizures and/or status epilepticus which may themselves harm herself and baby. From the mother's perspective, anti-convulsant drugs are necessary and therapeutic; from her baby's viewpoint those drugs are harmful and have no therapeutic effect.

Time limit under the Consumer Protection Act 1987

One important aspect the Consumer Protection Act 1987 is based is that it sets a ten year "longstop" date; within which all claims must be commenced. This is very different from the normal situation where it is possible for injured children to bring claims up to a time three years from their date of achieving majority (i.e. until their 21st birthday) in this (and only in this) area of the law, the children with FACS must bring claims within ten years of the date of supply of the drug to their mothers.

If you are in any doubt about when this date might have been or feel that you need advice about when your child's particular circumstances please get in touch with us as a matter of urgency so that we can help you to determine whether your child is inside or outside the time limit.