Since the start of the Coronavirus crisis in March 2020, face to face appointments, for everything from haircuts to eye-tests to doctors’ appointments have all but disappeared, almost overnight.
In many serious injury cases, the immediate concern was that cases and rehabilitation would effectively have to be put on hold because appointments could not take place, whether that is therapeutic assessments or medico-legal assessments.
For individuals who have already suffered from significant injuries, this uncertainty was even more unsettling.
Access to urgent and thorough rehabilitation is an integral part of the personal injury process, and something that my colleagues and I at Irwin Mitchell strive to get in place as early as possible for our clients.
Before lockdown, that was relatively straight-forward if liability could be established. We could instruct a Case Manager to prepare an Immediate Needs Assessment, and from that, recommendations could be made and implemented to ensure that the injured person’s quality of life and recovery could be maximised. After lockdown, this has become much more challenging.
Enter the virtual assessment. Conducted over Zoom, or Google Meet, or even WhatsApp, the injured person and therapist or expert can see each-other, and establish the best way forward together. It sounds pretty good, right?
Do these appointments offer the same potential for all the issues to be picked up? You may of course think straight away of the things you simply cannot see when you can only see someone’s head and shoulder or when you are not able to be in somebody’s home? But what about the more subtle issues?
I’ll give you an example – you are speaking with an injured person, and the connection is not very good. You ask them a question, and they say they cannot hear you because of the connection, you repeat yourself several times and they eventually hear you and answer the question and you are satisfied with their answer.
What if the internet connection was fine and the injured person was instead asking you to repeat the question because they did not understand the question, or was struggling to put together an answer?
Using that same example, the assessment is then prepared, and recommendations are made, and a plan is put together, but potentially with a key piece missing.
The same could easily apply to issues with vision, hearing, idea generation, insight, all issues that could very easily be missed in a virtual setting due to their subtle presentation, but may have a significant impact on an injured person if missed.
From my perspective as a serious injury lawyer, I need to be satisfied that we have thoroughly investigated all of our client’s functional problems and deficits to ensure that we protect their future. From the perspective of the injured person, this may be a barrier to their getting the rehabilitation that may be very seriously needed.
So what is the solution to this? Is there even a solution to this? The obvious answer is to have virtual appointments but accept that they are not ideal and that face-to-face assessments and rehabilitation should be implemented in the future when it is safe to do so.
From a therapeutic point of view, not having any rehabilitation is not an option, meaning that virtual appointments are a necessity and here to stay, at least for the time being. To my mind, awareness is a large part of the solution.
I am currently involved in a case where our client sustained significant neurological spinal injuries as a result of a road traffic collision where she was an unrestrained passenger in a bus which collided with a tree. Our client has seen both a neuro-physiotherapist and their GP, both remotely.
The neuro-physio identified some concerns about how our client was managing at home following neuro-surgery, but stated in her notes that her inability to be in her home and see the issues for herself meant that she could not get to the bottom of it.
The GP then picked this up, and during that appointment, asked some directed questions and got to the bottom of the situation. This could so easily have been missed had the neuro-physio not recognised that the virtual appointment meant that she could not see everything she needed to see.
So what can you do? Embrace the opportunity to keep working with patients during these difficult times, but always be mindful of the limitations of the technology, and do not be afraid to put in your notes or your reports that there are potential issues that need more investigation in a face-to-face setting. Be thorough, and think about things you would normally do in person, but can’t via a video-link.
Jack Lloyd is a Chartered Legal Executive, specialising in serious injury cases in the Irwin Mitchell Southampton office.
Living with a spinal cord injury and maintaining good mental health during lockdown
In conjunction with Mental Health Day 2020, Irwin Mitchell organised a webinar offering valuable insights into maintaining good mental health for those affected by Spinal Cord Injury (SCI).
The speakers were a mixture of professionals and people living with a SCI.
Dr Parashar Ramanuj, Consultant Psychiatrist gave an in depth clinical insight as to what a person who has recently sustained an SCI may be dealing with and what ‘coping’ really means
Sophie Lester, a case manager and spinal occupational therapist provided some really helpful guidance on how to maintain good mental health alongside rehabilitation and sustaining a healthy balance.
Ian Younghusband and Anne Luttman-Johnson provided first-hand insight into specific challenges of living with SCI and offered tips, advice and practical strategies to develop coping mechanisms in support of you and/or your loved ones.
The webinar offered some invaluable tips, but after seven months of different degrees of lockdown there were two key points that struck home with me. These were firstly the importance of reaching out to friends, family and charities and secondly keeping to some sort of daily routine and structure which includes hobbies, interests and exercise.
Lockdown was difficult for everyone, but especially for those who were deemed to be high risk. For those living with a SCI, a common cold has the potential to be life threatening. Most people with a SCI live with suppressed immune systems and/or possible respiratory issues, and so the possible impact of coronavirus has the potential to be devastating. Accordingly, people with a SCI were considered to be potentially high risk and were advised to shield.
For anyone who was asked to shield, in order to protect themselves, they were advised to isolate and effectively cut themselves off from their families, support networks and normal daily routines. This would have undoubtedly had an impact upon their mental health and wellbeing.
In response to the growing situation, a number of positive and innovative projects have been launched to support the tens of thousands of SCI people who were isolating.
The Spinal Injuries Association (“SIA”) set up a movement, Together in Isolation. The SIA along with other charities and partners, joined forces to support and provide advice to those living with a SCI.
This included weekly inspirational blogs, an online drop-in café at 3pm every Wednesday with SCI Nurse Specialists and Horatio’s Garden providing gardening tips. Back Up, another national SCI charity also set up an online BackUp Lounge for people to just chat.
NeuroKinex is a not for profit organisation which in usual times, provides hands-on activity based rehabilitation for those living with an SCI. They continued to provide therapies and treatment virtually for a number of their clients, providing continuity of their rehabilitation, treatment and routine.
Online accessible experiences
Accessible exercise and fitness and wellness experiences have also become available online, to assist wheelchair users to continue to access exercise from home.
AirBNB launched their ‘experiences’ back in 2017, but when travel had to stop, these converted to virtual experiences with the option of filtering your results to those designed for accessibility. The experiences which have been featured include seated fitness and wellness experiences including Cardiobox, seated adaptive yoga, wheelchair dance and fitness, Mindfulness and Positive thinking with Paralympic heroes. Back Up moved their national wheelchair skills to virtual videos.
Additionally a number of free accessible exercise videos have been shared on social media. Ella, a GB U25 Wheelchair basketball player created Ella’s Wheelchair Workouts, a page on YouTube and Facebook offering and sharing exercise videos to do at home. She does this in conjunction with GymPossible an accessible gym in the North East who then started to produce adaptive fitness videos online.
The last seven months have been tough for everyone, and I am sure that it has had a huge impact on mental health across the country. But I am encouraged by the innovation and sense of community fostered by the use of online and virtual communication which has been sparked by this pandemic, and hope it has assisted some people to be able to continue with accessing their support networks and connecting with others, while participating in their hobbies and exercising from home.
Having access to positive experiences, friendships and exercise virtually when we can’t be there in person helps maintain good mental health. And although it doesn’t replace face to face in person experiences, I am hopeful that this positive community movement continues when life returns to what will be our new ‘normal’.
For those who are interested, I would really recommend watching the webinar recording which gives practical tips and guidance. This can be seen below:
Written by Jessica Bowles, a solicitor specialising in serious injury with a specific interest in Spinal Cord Injuries and rehabilitation at Irwin Mitchell.
Osseointegration for amputees – key considerations in a schedule of loss
Richard Biggs, senior associate at Irwin Mitchell, takes a closer look at the practical benefits and cost issues related to osseointegration.
I have considered for several years as to how to plead a schedule of loss on an amputation case where a Claimant may choose to undergo osseointegration in the future. Osseointegration is described as follows:- (source London International Patient Services):“OsseoIntegration is an operative procedure used to eliminate the need for a conventional socket prosthesis”.
Put simply, during osseointegration an implant is attached directly to a patient’s bone and left to protrude through the skin. It offers a rapid connection between the prosthetic limb and the stump and also provides an element of stability for the patient’s long term prosthetic use. In my experience of discussing the issues with patients who have undergone osseointegration in the past they all report that it is a lifechanging experience.
It means they avoid the hassle of having to take the prosthetic socket on and off, but they report that the prosthesis feels far more stable than before and allows them to undertake much more activity than using a conventional prosthesis.
Like all surgical procedures, there can be complications so it is important that anyone considering the procedure is well informed before making a decision to proceed.
Historically, osseointegration was generally only available in Australia, Germany and Sweden. That’s changed in recent years and the Royal Free Hospital in London has been undertaking osseointegration since October 2018. Professor Norbert Kang confirms that the Royal Free Hospital implanted eleven cases by the end of 2019 with further surgery dates listed during 2020.
The potential functional advantage for osseointegration is clear to see, but how would that impact upon the pleading of the cost of future prosthetic sockets in a serious injury case? I have dealt with a number of amputee cases over many years and almost inevitably the largest head of loss in a schedule of loss in an amputee case is for the future case of prosthetics.
Naturally, this is dependent upon the age of the Claimant; whether they are an above or below knee amputee; and the types and number of prostheses they will need during their lifetime. The lifelong costs of prosthetics can run into seven figures for a Claimant with a long life expectancy. Part of the prosthetic claim is the need to renew a prosthetic socket many times over a Claimant’s lifetime.
With osseointegration, this need to replace a socket every few years is removed. Does this mean that a Claimant who opts for osseointegration would have reduced annual prosthetic costs as a result? I have given consideration to pleading that osseointegration should be something done in the alternative, i.e. to plead in a schedule of loss that a Claimant wishes to recover the cost of lifelong sockets, but in the alternative may wish to undergo osseointegration.
In that way I could seek to include in the claim not only the potential cost of surgery, but also the costs of flights to Australia and significant follow up care, particularly where if anything went wrong after osseointegration the patient would have to travel back to Australia. Component costs, if they need to be sent from Australia, would also be high.
This would mean that potentially the total costs of, and associated with, osseointegration would be significantly higher that lifelong socket replacement.UK costsHowever, now that osseointegration is becoming more regularly available in the UK, how could this potentially affect the pleading of a schedule of loss?
Typically, I understand that at the Royal Free Hospital a baseline figure of £65,000 is charged for a patient wanting to have a straightforward, transfemoral bone-anchor inserted. I am advised however by Professor Kang that ‘straightforward’ is actually the exception rather than the rule, so costs are usually higher because patients often need to have nerve or soft tissue surgery performed at the same time. Importantly, this cost does not include consumables.
At the Royal Free Hospital they tend to use the OPL system from Australia which requires certain components which will need to be replaced as part of preventative maintenance to ensure that they do not wear out and fail. The components therefore can be changed every two to four years.
The average cost of such components is in the region of £6000 every two to four years. (source: Pace Rehabilitation). Therefore, if a Claimant gave me a firm instruction that they would undergo osseointegration in the future, in theory the Schedule of Loss should plead the cost of surgery in the sum of £65,000 plus components lifelong.
This would give potential costs as follows: Cost of components every three years in the sum of £3000 x multiplier as follows:
Male age 18 x 26.2 x £3000 = £157,200
Male age 25 x 22.66 x £3000 = £135,967
Male age 35 x 19.2 x £3000 = £115,206
I have contrasted this with the potential costs of renewing sockets over a Claimant’s lifetime.
Again, I have used Claimants of the same age to give a broad spectrum and I should stress that these are all male Claimants using life multipliers. I have not allowed any discount but it does give a general indication as to potential lifelong costs. Typically, the cost of sockets annually can vary from case to case.
As mentioned above it depends on below or above knee amputation. I tend to plead that a Claimant will need to renew his socket on average every 2.5 years over his lifetime.Therefore, to give a broad indication as to the potential pleading of a schedule of loss, I have used the figure of £5200 for renewal of a transtibial socket (so £2080 per year over 2.5 years) and £6700 for a transfemoral socket renewal (so £2680 every 2.5 years).
Again, I’ve used a Claimant aged 18, 25 and 35 to give a general indication as to cost. The figures are slightly skewed because the likelihood is that as a Claimant ages he may well be less mobile and sockets might not need to be renewed as frequently. Nevertheless, I have set out below a table which gives a helpful indicator as to annual cost.
I have compared this then to potential costs of osseointegration. A male age 18 might spend £65,000 on surgery and then a further £157,200 on components. This is more than would be spent by an 18 year old transtibial or transfemoral amputee on lifelong socket replacement.
How then to address this in a schedule of loss? As always it is based on the Claimant’s instructions. My view is that if the Claimant is adamant that he will undergo osseointegration then that is how the case should be pleaded, but the Claimant’s solicitor has to be very careful because a Claimant might not be eligible for osseointegration, may change his mind or osseointegration could, in rare circumstances, fail.
Furthermore, where osteointegration costs are higher, it is likely that a Defendant may well argue any such claim is speculative unless the Claimant is very clear about his long term wish to undergo osseointegration. After all, a Claimant is only entitled to recover expenses which are reasonably incurred as a result of an accident and is not entitled to recover a significant figure for surgery if he is unlikely to undergo it.
One option is that where a Claimant wishes to undergo osseointegration then an interim payment should be sought so that the Claimant undergoes the surgery before a case is settled. This might mean seeking flexibility in setting a Court timetable, or it may well mean seeking to stay the claim until the Claimant has undergone surgery and long term prognosis is known.
In this way the solicitor protects themselves because if a Claimant has undergone osseointegration successfully then the cost of osseointegration can be pleaded as a past loss rather than speculating that the Claimant might undergo such surgery in the future.
It is important that the Claimant can access relevant experts who can give clear advice at an early stage. That will make it easier to take very clear and careful instructions at an early stage in the case and certainly before a Schedule of Loss is pleaded and served upon the Defendant. The danger is of course that there might be too much ‘crystal ball gazing’ where a Claimant might wish to consider osseointegration but there are a number of hurdles to overcome before he is able to book in for surgery.
There is always the danger of potential hidden costs of surgery, such as if a component fails or/and needs to be renewed more regularly than pleaded, though such uncertainties in litigation are very common when pleading a significant value case subject to all sorts of contingencies that life may throw at them.
Finally, a medico-legal expert in the case (usually a consultant in rehabilitation or orthopaedic surgeon) will need to provide support in their expert report that the Claimant is a suitable candidate for osteointegration, as without that, a claim for surgery costs will fall at the first hurdle.
In conclusion, a bare comparison of costs as set out above does not tell the whole story. Whilst the end result of a personal injury claim is the award of damages, the ‘journey’ rather the ‘destination’ is always the most important part of the case in my view, namely attempting to help a Claimant return to as good a quality of life as he or she can lead following a serious accident. Osseointegration can be a sensible procedure for many amputees who meet the criteria.
What the above figures don’t show is the potential for osseointegration to improve a Claimant’s quality of life and the effects on social and economic wellbeing, and this is the most important consideration of all when advising a Claimant on settling a claim.
Richard Biggs is a senior associate solicitor at Irwin Mitchell.
The Liberty Protection Safeguards explained
By Saoirse de Bont
The Liberty Protection Safeguards (LPS) were introduced through the Mental Capacity (Amendment) Act 2019, which received royal assent on 16 May 2019.
The purpose of the LPS are to replace the existing Deprivation of Liberty Safeguards (DoLS) regime, partly due to the substantial increase in cases which fell under the auspices of the DoLS following the Supreme Court case of Cheshire West, and partly due to criticisms of the DoLS regime, including the fact that there were many settings such as supported living placements and family homes, where people were being deprived of their liberty but the DoLS did not apply.
Road to Assent
The Mental Capacity (Amendment) Bill’s journey to royal assent was not smooth, with, for example, the Law Society reporting on its website in September 2018 that they “do not believe that the proposed Bill has sufficient safeguards and is not fit for purpose in its current form. It requires serious re-consideration and extensive revision”.
The Bill did undergo some key amendments before it was passed.
These amendments included extending the LPS to apply to 16 and 17 year olds, replacing the previous term “unsound mind” with “mental disorder”, explicitly stating that the cared-for person must be consulted, and explicitly stating that the cared-for person’s wishes and feelings must be considered as part of the necessary and proportionate assessment.
Further amendments included requiring that assessments cannot be carried out by someone with a financial conflict of interest, requiring responsible bodies to decide if care home managers should arrange the assessments and statement or if the responsible body takes on these functions, and including a duty to appoint an Independent Mental Capacity Advocate (“IMCA”) if a person doesn’t have an ‘appropriate person’ representing them, unless it is in the person’s best interests not to have an IMCA.
During the course of the Bill’s journey between the House of Commons and the House of Lords, the House of Lords disagreed with the proposed definition of ‘deprivation of liberty’ within the Bill. As a result, the final Mental Capacity (Amendment) Act does not include a statutory definition of the term ‘deprivation of liberty’.
Summary of the New System
The new Liberty Protection Safeguards will apply to individuals aged 16 and over, and will apply in all settings where someone is being deprived of their liberty, including supported living placements and family homes.
Although there is no statutory definition of ‘deprivation of liberty’ guidance is to be provided in the forthcoming Code of Practice.
The responsible body, i.e. the public body with responsibility for authorising the deprivation of liberty, will be the local authority in most settings, including private hospitals.
The responsible body will be the hospital manager for arrangements in an NHS hospital or the local Clinical Commissioning Group (CCG) in cases where an individual in the community is in receipt of NHS continuing healthcare.
There are certain conditions that need to be satisfied before arrangements can be authorised, and these are as follows:
- That the individual lacks capacity to consent to the arrangements depriving them of their liberty
- That the individual has a mental disorder
- That the arrangements are necessary to prevent harm to the individual, and are proportionate in relation to the likelihood and seriousness of harm
A pre-authorisation review must be carried out by someone who is not involved in the day-to-day care of the individual, or provides treatment to the individual, to ensure that the above three conditions are met.
In addition, it cannot be conducted by a person who has a connection with a care home.
An individual, or “cared-for person”, who is deprived of their liberty has the right to challenge the authorisation via the Court of Protection, pursuant to the new s21ZA of the Mental Capacity Act, which appears designed to work in the same way as s21A challenges to the DoLS, and which the government has confirmed will attract non-means tested legal aid.
The authorisation can be renewed in the first instance for one year and thereafter for periods of up to three years.
However, if the cared-for person is over the age of 18, and the proposed arrangements resulting in the deprivation of liberty are in place wholly or partly in a care home, then the responsible body, i.e. the local authority, can decide whether the care home should take the lead in various aspects of the authorisation process, including consulting with relevant individuals, such as the cared-for person, providing a statement setting out the basis for the authorisation, and conducting reviews.
The new system does not include a role for Relevant Person’s Representatives, with cared-for persons instead being represented and supported either by an “appropriate person” or, in certain circumstances, an Independent Mental Capacity Advocate (“IMCA”).
An appropriate person cannot be engaged in providing care or treatment to the person in a professional role, and if the cared-for person has the capacity to consent, they must consent to the appointment of the appropriate person.
If the cared-for person lacks capacity to consent to the appropriate person’s appointment, then the responsible body must be satisfied that it would be in the cared-for person’s best interests to be represented and supported by that appropriate person.
In both cases, the appropriate person must agree to act.
If there is no appropriate person who can be appointed, then, if the cared-for person has capacity to consent to being represented by an IMCA, the person must make a request for one, following which the responsible body must take “all reasonable steps” to appoint an IMCA to represent and support them.
If the cared-for person lacks the capacity to consent, the responsible body must take all reasonable steps to appoint an IMCA to represent and support them, unless satisfied that this would not be in their best interests.
- There remain concerns about how the LPS will be implemented. Some of these concerns include:
- That access to an IMCA is conditional on a best interests test, and that such appointment is not mandatory, rather that the responsible body must take “all reasonable steps” to appoint an IMCA
- How it is to be assessed whether an individual has capacity to consent to the appointment of an appropriate person or to request an IMCA
- The role of care home managers and the fact that under paragraph 23 of the Act, that care home managers can take on the role of consulting with the cared-for person
- That the Act allows for an individual to be deprived of their liberty for up to three years without review
- Concerns about potential conflicts between the LPS scheme and the existing rights of young people and their parents under the Children Act 1989.
As such, it appears the new safeguards will serve to dilute, as opposed to strengthen, some existing protections for people who are deprived of their liberty.
There has been much emphasis placed on the Code of Practice, which will not only provide the definition of the term ‘deprivation of liberty’ but it is hoped will provide important clarification in respect of the above concerns.
It is also likely that certain elements of the new system will undergo legal challenges in the first months and years of implementation, as professionals and lawyers work together to ensure that their clients are safeguarded and protected in the best ways possible.
What happens next?
The government is in the process of drafting regulations and a Code of Practice to accompany the new legislation, with input being provided by various stakeholders.
On 16 July 2020, the government announced that the LPS will come into force in April 2022, as opposed to the previously announced date of October 2020, although some provisions, covering new roles and training, will come into force ahead of that date.
It has confirmed that it will undertake a public consultation on the draft regulations and Code of Practice, which will run for 12 weeks, and that a period of approximately six months will be allowed following the publication of the final Code of Practice, to allow the sector to prepare for the implementation of the LPS.
Importantly, as the LPS is not being implemented for some time, public authorities and professionals working in the relevant fields need to ensure that they continue to comply with the existing DoLS regime and the Mental Capacity Act 2005.
This requirement was reinforced by Mr Justice Hayden in a letter to the Directors of Adult Social Services in May 2020, in which he stressed the importance of the statutory requirements, and the need to properly authorise any deprivation of liberty in accordance with existing law.
As Mr Justice Hayden wrote: “The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.”
Obligations of Deputies
At present, in the case of an individual who is being deprived of his liberty without proper authorisation (either under the DoLS or by court order) deputies have an obligation to raise this issue with the relevant providers and the local authority (or responsible body) with statutory duties to safeguard the individual.
In the event that the responsible body fails to take the necessary steps to ensure the appropriate authorisation is put in place, the requirement is on the deputy to make an application to the Court of Protection to draw this to the attention of the court (ACC & ORS  EWCOP 9).
There is no indication that this obligation will change with the introduction of the Liberty Protection Safeguards.
However, further information may come to light with the finalisation of the regulations and the Code of Practice. In the meantime, it is incumbent on any deputies to remain alert to situations in which any individual for whom they act is being unlawfully deprived of their liberty and to take appropriate steps to refer this to the responsible body, and, if necessary, make an application to court.
For further information please contact Lilly Drakoulakou of Irwin Mitchell on Lilly.Drakoulakou@IrwinMitchell.com.
Saoirse is a solicitor who specialises in Court of Protection and community care cases. She regularly acts on behalf of vulnerable adults and their families in Court of Protection matters, particularly in relation to disputes regarding capacity and best interests. She acts on behalf of the Official Solicitor, Independent Mental Capacity Advocates (IMCAs) and family members, as well as deputies. She also assists people to challenge decisions made by public bodies, including local authorities and the NHS. This includes challenging cuts to NHS services and the closure of local government services, and working with people who have received unlawful care assessments or inappropriate care packages.
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