An acquired brain injury (ABI) can happen to anyone. It doesn’t discriminate and can occur following a traumatic event such as a stroke, illness or accident.
Here personal injury expert Louise Jenkins, of Irwin Mitchell, talks to occupational therapist, Suzanna Anthony, about how she’s supporting people with memory issues through the pandemic; and what methods and tools there are to assist with memory problems that affect daily life.
Louise: So how exactly can a brain injury affect memory?
Suzanna: In many cases, memory loss is first seen in the period of post traumatic amnesia (PTA) which occurs straight after the brain injury when the person starts to regain a level of consciousness. There’s often a lot of disorientation during this period with the person being confused about where they are and who they are. Memory loss around the period leading up to accident can be a problem and it’s widely understood that the longer the loss of memory around the time of the injury, the more severe the damage often is in the longer term. Milder brain injuries can however be equally as devastating on memory, as these are often unseen and take longer to diagnose due to the changes being more subtle. These types of injuries are also often not visible on scans.
Memory problems more often than not come hand in hand with other cognitive problems including difficulties with information processing and attention and concentration. This can sometimes mean that information is not registered in the first place, so then cannot be retrieved as a memory later on.
Louise: What can this mean for everyday life and how far reaching can the effects be – for example in relationships and our ability to work after a brain injury?
Suzanna: I once had a client who summed up their memory loss in a very simple way by saying “my memory affects every verb.” In other words, every single action is affected by memory; it could be hobbies, work, relationships or just simple, everyday tasks such as remembering how to make a cup of tea.
Relationships with others can change due to a memory problem. It may be perceived that someone’s personality has changed when in fact it could be a memory difficulty that is causing them to be forgetful. For example, they may be seen as not as thoughtful as before if they had forgotten a close friend’s birthday or hadn’t checked in with their partner if they knew they had something important going on. It may not be that their feelings had changed at all, but they may need help in remembering the simple actions they would have done automatically before their injury.
Topographical orientation can also become a barrier to someone’s life, so whereas before they used to take the same daily route to work or the shops, they can no longer remember road layouts and landmarks which used to help them make that journey.
Difficulties around topographical orientation can also become a barrier to someone’s life after a brain injury. Whereas before they used to take the same daily route to work or the shops, they can no longer remember road layouts and landmarks which used to help them make that journey.
Ultimately, your memory is who you are and forms the basis of your sense of identity. To lose that can be terrifying and result in a number of psychological difficulties such as depression and anxiety. These all impact on activity levels and often interfere with sleep, which in turn can cause excessive fatigue. Unfortunately it then becomes a vicious circle as severe fatigue impacts cognitive functioning, worsening the situation further.
There are many ways to help overcome a number of the difficulties memory impairments can bring. The key is to find out what is problematic for that particular individual and what their priorities are before you can help them overcome or better manage their memory issues.
Louise: So, could these problems get better over time?
Suzanna: There are a lot of factors to consider. It all depends on the severity of the injury, the part of the brain that was damaged, the person’s ability to engage in rehabilitation, previous lifestyle and the support systems they have access to.
The quality of the rehabilitation they receive is very important but sadly differs quite significantly across the country. One client might only get offered a few sessions of therapy whilst another might be given months of rehab and a tailored, ongoing support plan.
Support systems can have a huge impact upon recovery. If the injured person lives with someone who understands their memory difficulties and will support the use of strategies, it’s very helpful. Having a support worker in place to help with practical, day-to-day tasks can also help significantly, especially if they’re skilled in using rehabilitation strategies so that they can help to promote independence instead of doing things ‘for’ the injured person.
There are studies on neuroplasticity that indicate that improvements can be made for many months and even several years after brain injury. We are finding out more each year about how the brain can regenerate. The initial stages of recovery are paramount as this is where the biggest improvements are seen therefore it’s essential that good strategies, structures and routines are in place that set out a good recovery plan, as soon as possible after injury.
Louise: In a complex world and with guidance and information around the current pandemic changing all the time, what challenges can this present for someone with memory loss?
Suzanna: The COVID-19 pandemic has had a devastating impact on many of my clients who have cognitive impairments, including memory loss. It can be challenging for the general public to keep up with the amount of information being given and the speed at which it is communicated, but this is far harder for anyone with cognitive problems.
COVID-19 restrictions have meant that the support structures and networks that people with memory loss rely on suddenly stopped, or had to take a back seat due to social distancing.
Understanding and following the rules have been a massive challenge and it has been important for people to develop strategies around this to aid remembering of the ever-changing guidelines. One client of mine has a good technique that they have used throughout lockdown: to write down the key points they needed to remember, such as wearing face masks to go into a shop, and they would stick it on their fridge and next to the front door, so they always knew the Government rules.
Many people who experience memory problems after a brain injury can be anxious about getting back out into the community in normal circumstances but this has been further complicated by the current restrictions. For example the two metre and mask rules, which can be forgotten and subsequently bring about feelings of embarrassment. There is a danger that this can cause many to avoid leaving the safety of their familiar environments and ultimately delays their recovery.
It’s vital to speak to your support network if you’re struggling during this difficult time. There are lots of ways cognitive (including memory) problems can be addressed to help you get through this.
Louise: What are the key tools, resources and strategies that are likely to be most effective in supporting someone to be as independent as possible when living with memory loss?
Suzanna: There are all sorts of tools and resources out there these days to support someone who’s experiencing memory difficulties after a brain injury and some that have been particularly useful during lockdown.
Video calling has been a lifeline for many people during COVID-19 to keep people connected and keep some sort of routine in place, whether that’s working from home, weekly quizzes with friends or receiving therapy virtually.
Routine, structure and setting up the environment well is key to making sure you can function as independently as possible within your home and your everyday activities. Put items in obvious places, use checklists and reminder systems, get into routines that help you stay on track with the things you need, and want, to do.
Making your own wellbeing a priority is extremely important. This might sound obvious but stress and fatigue affect everything. Try to plan out your time so that it incorporates rest periods if you need them, mix up ‘thinking’ and ‘doing’ tasks and take time to try and recognise how you are feeling.
There are some great apps and technology that can assist with memory problems. Consider what is out there and think about using devices that will provide reminders, store information and help you to plan. If you rely heavily on technology to compensate for your memory problems, be careful to always have a backup plan. Consider what you might do if your system failed, for example you lost your phone or had a power cut. Sometimes a back up to a cloud based system or a mixture of paper based and tech solutions can be a good thing.
Ask those around you to help support your memory problems and ensure they have a good understanding of what is helpful or unhelpful for you. Ask them not to do things ‘for’ you, but to help you get there yourself. Simple techniques can help, for example by giving you a clue if you forget rather than giving you the full answer. Ask them to help you work on finding solutions to the things you notice you are finding difficult.
Louise: Where can anyone affected by the issues in this article go to find out more about the support available?
Suzanna: Headway’s website is a brilliant resource to assist with all areas of cognitive function. They have reading material available that you can print out or share with friends and family so they can better support you on your journey. Take a look to see if there is a local support group in your area, as speaking to people who truly understand what you’re experiencing can be a big help.
On the The Royal College of Occupational Therapists website there is a directory of independent OTs that can support you further with your recovery. And lastly, check what is in your local area and find local resources that can help. There may be outreach teams which can help you or a local support group.
Suzanna Anthony is a treating specialist brain injury occupational therapist working with people who have experienced an acquired brain injury. She has over 20 years’ experience in neurology and works closely with her clients to overcome physical problems, as well as less obvious but equally debilitating cognitive, emotional and behavioural difficulties that a brain injury can bring.
DoLS cases rise, as completion rate improves
The yearly number of applications to legally deprive a person of their liberty (DoLS), where they lack the mental capacity to consent to their care or treatment, has risen slightly in England, new figures show.
In 2020/21, there were 256,610 Deprivation of Liberty Safeguards (DoLS) applications – up three per cent on the previous year, versus an average growth rate of 14 per cent between 2014/15 and 2019/20.
DoLS is a legal procedure when an adult who lacks mental capacity to consent to their care or treatment is deprived of their liberty in a care home or hospital, in order to keep them safe from harm.
In England, all deprivations of liberty that take place in a care home or hospital must be independently assessed and authorised by a local authority to ensure they are in the person’s best interests.
The reported number of cases that were not completed as at year end in April 2021 was an estimated 119,740, around 10,000 fewer than the end of the previous year.
More than half (57 per cent) of completed applications in 2020-21 were not granted was 57 per cent. The main reason was given as ‘change in circumstances’, at 60 per cent of all not granted cases.
The proportion of standard applications completed within the statutory timeframe of 21 days was 24% in 2020-21, the same as the previous year. The average length of time for all completed applications was 148 days.
During the coronavirus (COVID 19) pandemic period, some aspects of the DoLS process have changed due to new Government guidance.
This includes greater use of remote assessments and shortened forms.
Read the full report here.
‘This is an exciting time in the future of clinical rehab’
For seriously injured military personnel, the options around rehabilitation are increasing further with plans for a new National Rehabilitation Centre. Matthew Tomlinson and Rachel Seddon, from the military team at Slater & Gordon, discuss the importance of access to specialist support
For the majority of readers, initial treatment for their serious injury or illness will likely come from our exceptional NHS’ regional acute hospitals. When clinical rehabilitation, to assist those seriously injured is required, it is widely recognised that timely and tailored support is necessary to maximise the potential to return to a quality of life, and minimise further problems down the line. This is significant in relation to an individuals’ physical and mental health.
Getting people back to a meaningful life and capability following serious injury is a major policy area in Government. Return to work rates for people experiencing serious injury and trauma in England are below rates achieved in other European countries as well as rates achieved in the Armed Forces.
For seriously injured military personnel, the Defence and National Rehabilitation Centre (or DNRC) in Loughborough will already be a familiar part of Defence Medical Services, which comprises, in addition to the national Defence Centre, Regional Rehabilitation Units (RRUs), Units embedded within NHS Trusts, the Royal Centre for Defence Medicine and mental health services such as the DCMH (Departments of Community Mental Health) network.
The Defence Centre, or DMRC/Stanford Hall as it is known, is the state of art successor to the Ministry of Defence’s former Headley Court facility in Surrey. The facility, which is run by a Commanding Officer alongside uniformed staff and civilians employed by MoD, opened in 2018 and continues to treat and rehabilitate seriously injured members of the armed forces including those with serious neurological and spinal cord injuries.
In addition, plans to develop a ‘National Rehabilitation Centre’ (NRC) on the Stanford Estate (next to the Defence Centre) are gaining momentum and will be a very welcome initiative bringing world-class clinical rehabilitation for civilian NHS patients, as well as providing a national hub for training, research and development.
Recent reports suggest that, all being well, the green-light should be given later this year for construction of this new facility, with a target for treating patients by 2024. This is an exciting time in the future of clinical rehabilitation and the NRC will extend the success of acute services and established major trauma centres by providing a national centre of excellence in both patient care and innovation.
The recent and ongoing lessons of COVID-19 are showing the real value of excellent clinical rehabilitation in making a meaningful difference to an individual’s recovery and capability. For example, a specialist three-step rehabilitation programme developed at DMRC has been credited with saving the careers of military personnel with “long- Covid” (shortness of breath, fatigue, low mood and “brain fog”). The BBC recently reported that nearly all of the 150 patients that took part in the programme were able to return to work within three months.
The plans for the NRC appear to offer a unique opportunity to drive new rehabilitation products and technologies and improve accessible state of the art rehabilitation. The NRC would provide patient care focused primarily on treating patients within the NHS East Midlands region with the potential to treat patients referred from elsewhere in the country similar to the Defence Rehabilitation Model.
Already, the Defence establishment is acquiring new knowledge through, for example, Computer Aided Rehabilitation Environment and the cohort of patients treated at both the NRC and the Defence facilities must widen the opportunities for clinical research. The NRC facility itself aims to be transformative, leading in the testing and development of future treatments and techniques and the positives that can be derived from the Defence Rehabilitation Model and its collaboration with Defence Medical Services looks likely to bring about meaningful changes to injured individuals’ pathways.
Good rehab after serious injury is often described as ‘like a relay race’. Taking for example, the experience of our client, Soldier X. X was paralysed from the mid-chest down and would be graded T4 complete ASIA A paraplegic. He suffers from residual neuropathic pain, increased tone, spasms, impaired sensation and loss of power below the mid-chest and loss of visceral function. He has to self-catheterise and manually evacuate the bowels, and within a few years of injury, developed a syrinx, which is, along with syringomyelia, likely to further progress.
In the immediate aftermath of the injury, he went through numerous intensive and emotionally difficult stages of rehabilitation, including treatment at Stoke Mandeville NSIC.
During X’s Naval Service Recovery Pathway with Hasler Company, and numerous inpatient stays at DMRC Stanford Hall, he has been able to access tailored rehabilitation which has included hydrotherapy, 1:1 specialist physiotherapy and psychotherapy, and he has had the opportunity to complete successful trials of the ReWalk exoskeleton.
DMRC Stanford Hall has the feel of a military establishment in one sense and of somewhere very conductive to rehabilitation in a relaxed and personal manner. It has buildings and spaces specially designed to aid the recovery process including gyms, a range of swimming and hydrotherapy pools, a gait lab and “all the elements essential for its clinical purpose”, that is, to rehabilitate the most seriously injured members of the Armed Forces and also, importantly, return those who have been injured in the course of training back to work.
He is making good progress with his physical rehabilitation but acknowledges his ongoing challenges in terms of bowel and bladder care, sexual health and fertility, pressure sores, syrinx management, and mental health and so continuity and quality of care remains vital both now and beyond his medical discharge. In due course, Soldier X will likely engage with the Recovery Career Services which was launched as part of the Defence Recovery Capability back in 2013 with the mission of getting injured and sick personnel competing in the civilian employment market.
What the current Defence Rehabilitation Model seems to do very well is integrate all aspects of recovery including medical care, welfare, housing, education, reskilling, work placements, employment issues and opportunities. Whilst this remains an ideal care model and one that is decades ahead due to the combined efforts of the Services and the Service charities responding to carefully tailored individual recovery plans setting out a recovery pathway, if the NRC development plans can keep momentum, it presents a very exciting, and similarly patient-led opportunity to build the right environment for successful rehabilitation.
- For more information about Slater & Gordon’s specialist work with the military, visit here
The importance of goal setting
Many of us will be re-assessing our life goals as part of our resolutions as we enter the New Year. For some, the “health kick” will last a few days, for others, slightly longer. On a personal level, we have all heard the rhetoric about setting realistic and achievable goals for ourselves, and being SMART about it. In serious injury litigation, the importance of goal setting is not just limited to the New Year, write David Withers and Kate Venn of Irwin Mitchell LLP.
The case of Kristopher Loughlin (By his mother and litigation friend Barbara Anne Kennedy, formerly Loughlin) v (1) Kenneth Dal Singh (2) Pama & Co Ltd (3) Churchill  EWHC 1641 (QB) is now over 6 years old. Despite being decided so long ago, few cases have had such a long term influence and such a significant impact on serious injury litigation as Loughlin, and the effects of the case continue to be ever relevant for those representing clients in this area.
In Loughlin, the Claimant sustained a traumatic brain injury in October 2002 when he was a 12 year old child. By the time the claim was set down for trial to assess the damages to which he was entitled, the Claimant was a young man. Liability had been established and therefore the value of the claim was the only aspect still in dispute by the date of trial.
A comprehensive rehabilitation and care package was set up to benefit the Claimant using interim funds obtained via the claim. The package included very high level professional support and various therapies, and was overseen by a case manager.
In December 2008, the appointed case manager was aware that the Claimant had poor sleep hygiene. He was going to sleep and waking up at differing times. This had a negative effect on his ability to function. This, in turn, was said to have increased the Claimant’s need for care; he had a 24 / 7 care package.
In 2012, a sleep hygiene regime was set up. The Claimant made rapid progress once the regime had been instituted.
The expert neuropsychologists instructed by the parties agreed that the goals set by the Claimant’s multi-disciplinary team were not clearly specified or challenging enough. They raised concerns that the support provision was fostering dependence on support rather than promoting the Claimant’s independence.
At trial, the care expert instructed by the Claimant gave evidence about the complexities involved in running a care and therapy programme for a young adult like the Claimant.
Taking into account all the evidence presented, the Court disallowed 20% of the past case management and past care costs sought by the Claimant, which represented a very substantial sum of money indeed.
In its Judgment, the Court noted:
“.. in this case the contemporary documentary evidence did not show, first, that the care team recognised, until the problem had become chronic and practically overwhelming, the fundamental importance of addressing the need for a specific and effective sleep hygiene regime, and secondly, that the team took determined steps to implement such a regime, a task that I readily acknowledge would have encountered resistance and would have required skilful and tactful management”.
“… the Defendant’s primary submission is that I should disallow the costs of past care and management, on the basis that the standard of such care and management fell significantly below that which could reasonably be expected to meet the exigencies of the Claimant’s condition and circumstances. However….. to deprive a Claimant of all compensation for incurring such costs, whatever the shortcoming in their delivery and whatever the benefit received, would be wholly disproportionate and unjust. However, it does seem to me that principle requires that I should take due account of the fact …that the standard of the care and case management services did, in an important respect, fall significantly below the standard that could reasonably have been expected. ….. It appears to me, balancing these factors, that a reduction of 20 per cent in the charges actually claimed would be fair and proportionate”.
Once he had found that there were shortcomings in the approach to the Claimant’s rehabilitation and care, the Judge essentially had two options:
- Allow the costs of past case management and past care in any event on the basis that the Claimant had reasonably incurred them, even if the service had been sub-optimal; or
- Reduce or disallow the costs of past case management and past care on the basis that they had not been reasonably incurred by the Claimant.
The Court opted for option 2.
In personal injury litigation, the Claimant is entitled to “full compensation”. In Heil – v – Rankin  2 W.L.R 1173, the Court summarised the principle as follows:
“The aim of an award of damages for personal injury is to provide compensation. The principle is that ‘full compensation’ should be provided. This principle of full compensation applies to pecuniary and non-pecuniary damage alike. Compensation must remain fair, reasonable and just. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as reasonable”.
The Loughlin Judgment was challenged by some in the industry as being unduly punitive on the Claimant, in that he failed to recover compensation for services that he had been provided with and had paid for. He had, after all, followed the advice of professionals and incurred a financial liability as a result. It was not his fault that those appointed to oversee his rehabilitation and care failed to set proper goals and/or act expediently upon identified problem areas such as the sleep hygiene issue. However, on the opposite side of the coin, it would have been equally unfair to the Defendant to expect them to pay for services which were found to have had a detrimental impact upon the Claimant’s progress and independence.
In any event, Loughlin served as a warning to those representing Claimants in these cases. Simply because past costs have been incurred, it does not mean they will automatically be recoverable at trial. The burden of proof is on the Claimant to show that costs have been reasonably incurred. Evidence of the benefit to the Claimant of services such as therapy and case management must be obtained via records, witness statements and expert evidence, in order to ensure a Loughlin type argument is not successfully raised by a Defendant.
Avoiding a Loughlin situation is not just about the presentation of evidence at Trial. For all those who are involved in these cases, the principle must be borne in mind at all stages, right from the outset when a case manager or therapist is first appointed. There are a number of key principles and practices that can be adhered to in order to mitigate the risks associated with Loughlin.
For treating therapists and case managers, the best practice approach is:
- Identify the short to medium term needs of the Claimant;
- Triage those needs by considering what input would make the biggest difference;
- Clearly document the plan and goals set and, if necessary, include details as to why certain needs are not being prioritised at a particular stage;
- Execute the plan and ensure everybody involved in the MDT is working to the same set of goals;
- Regularly revisit the plan and goals set and critically assess what is working and what is not working;
- Do not be afraid to change or to deviate from the plan – clearly document the reasons why, if necessary;
- Update the plan if there are material changes and / or after at least 6 to 12 months, whichever is sooner;
- Ask the lawyers whether there is any relevant medico-legal evidence you can have access to or have a discussion about to ensure that what you are doing will be endorsed by the experts in the claim;
- Accept that the experts are the individuals whose views matter in the context of the litigation. A good expert should accept that there is a range of service provision and a certain degree of flexibility as to how such a service might reasonably be provided. However, if an expert makes a recommendation, it is worth implementing that recommendation. The Court will be heavily influenced by what an expert’s view is in most circumstances, particularly if it is an expert instructed by the Claimant to comment on expenditure by a Claimant. If recommendations made cannot be followed for good reason, speak to the lawyer and explain why, and carefully document the same;
- At all stages, ensure detailed notes are kept of decisions relating to goal setting and planning. If called to give evidence at trial about why a particular decision was made, it is far easier to refer to contemporaneous notes than to try and rationalise a particular decision on the stand several years later.
For lawyers, the best practice approach is:
- Appoint an experienced and trusted case manager. When considering the appointment, give due thought to the likely complexity of the case, the issues which will arise and the robustness of your chosen case manager should Loughlin arguments be made;
- Finalise medico-legal evidence quickly and use this to influence the rehabilitation programme;
- Flag any concerns raised by the Defendant or the medico-legal experts with the case manager at the earliest opportunity. Even if there is good reason why a particular report cannot be finalised and disclosed in its entirety, there is no reason why any comments or suggestions made by the expert which are relevant to the case manager cannot be extracted and provided to him/her sooner;
- Be obsessive about goal setting;
- Attend MDT meetings to contribute to and be aware of what is happening “on the ground”;
- Take witness statements from the case manager and the therapists about the goals and about any issues raised by the Defendant or the medico-legal experts;
- Be selective about which medico-legal experts you go to and when. It can become very difficult if you have “too many chefs in the kitchen” with differing opinions on what is reasonably required by the Claimant.
It is worth remembering: goal setting is for life in serious injury litigation, not just for New Year! They can also be exciting and varied. For example, the authors represent a young man with an acquired brain injury. His personal goals are to get married, buy an albino peacock and become an Olympic bob sleigher!
The team at Irwin Mitchell are very happy to provide training to healthcare professionals and therapists about the integration of rehabilitation with the litigation process. To enquire about any training sessions, please e-mail David.Withers@IrwinMitchell.com or Kate.Venn@IrwinMitchell.com.
David Withers is a Partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma.
Kate Venn is a senior solicitor at Irwin Mitchell LLP, specialising in representing adults and young people with severe acquired brain injuries.
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