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Capacity for decisions in life and love: part 1

Under Article 8 of the Human Rights Act we all have a right to enjoy a private and family life. The need for relationships and intimacy is an essential part of most of our lives but for individuals living with an acquired brain injury, this can be far more complex, as Georgina Moorhead of Irwin Mitchell explains.

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Dating and Sexual Relationships

The law states that people have capacity to engage in sexual relationships if they understand the physical context. In other words, they should understand the basic mechanics of the acts involved, the risk of pregnancy or sexually transmitted disease and the ability of either party to say no at any stage.

In the context of serious injury litigation, we commonly encounter Claimants who have a strong desire for romantic relationships.

Unfortunately, the cognitive issues they face, which often include difficulty concentrating, poor memory, poor language skills and reduced problem- solving abilities, in addition to disinhibition, impulsivity and impaired reading of social cues, can present significant challenges in both dating and forming romantic relationships.

Cognitive impairments can also impact an individual’s ability to fully comprehend issues such as safe sex and consent.

For professionals involved in such cases, it is crucial to respond by sourcing appropriate support in order to maximise an individual’s capacity to engage in dating safely, whether in person or online.

I recently represented a young man affected by many of these issues. He had a strong desire to be in a relationship but exhibited impulsive behaviour which frequently overrode his ability to exercise caution or appropriate dating behaviour.

His lack of capacity manifested in him having difficulty understanding and utilising appropriate online communication, inappropriate and excessive use of dating sites and accessing inappropriate websites. He was also unable to consistently read social cues and adapt his behaviour/ make decisions accordingly. For all these reasons, the Claimant was considered to be at risk online.

We therefore arranged a specific capacity assessment, following which protective measures were introduced and input was arranged to help monitor and manage my client’s risk from online activity.

He also benefited from input from brain injury specialist support workers with whom he was able to openly discuss his online activity and increase his understanding of the need for him to exercise caution. Ultimately, he had capacity to date and enter romantic relationships but there was a very clear need for support to enable him to do so safely.

In this case, I worked closely with Irwin Mitchell’s Court of Protection team, who appointed a property and financial Deputy for my client.

Katie Strong, a partner in Irwin Mitchell’s Court of Protection team explains that: “Capacity is decision specific and so over time, the level of support and supervision will be kept under review and reduced in the event my client regains capacity in this area.  As well as the specialist support team, we have instructed a neuropsychologist to monitor the client’s capacity and provide support to him as well as his support team in managing the risks.”  

Considerations in Litigation

We are all familiar with the presumption of capacity under the Mental Capacity Act 2005. In serious injury litigation involving brain injured individuals in particular, complex issues often arise when we are acting for clients who have been placed in a vulnerable position (through no fault of their own) and their ability to make reasoned, informed decisions simultaneously reduced.

Such cases inevitably prompt legal professionals to think ‘outside the box’. For example, does an individual require subscriptions for dating agency sites, psychological support or professional IT support to assist in the management of online risk? Does the Case Manager need to act as an intermediary with dating agencies? Is there a role for support workers? There is no ‘one size fits all’ approach and, as always, cases should mould around the individual involved and their particular circumstances.

For example, if a client demonstrates a desire to be in a long- term relationship and to have children, the legal team should consider obtaining expert evidence which addresses the need for any future support that may be required with childcare, both in the context of a successful relationship and relationship breakdown.

An assessment of how well they may manage the end of a relationship and cope with the emotional and psychological challenge may also impact their future care needs, and we may need to prompt our care experts to include additional future contingency care during such periods.

Ultimately, the Courts have consistently held that the requisite standard for capacity to consent to sexual relationships and marriage is deliberately not a high one. We cannot prevent our clients from making decisions we consider to be unwise but we do have several tools at our disposal to protect and support whatever capacity they do have. Our role is to ensure that our client is able to maximise their independence so far as possible.

Read part 2 of this article series – exploring issues regarding capacity to cohabit and marry in more depth.

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Legal

Brain Injury Group – providing practical answers for 10 years

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For the past decade, Brain Injury Group has been supporting people with brain injuries to access the right support for them, working with an array of law firms – alongside other service providers and case managers – to give a comprehensive offering of connections, advice and signposting to clients across the country. NR Times learns more 

 

Tell us about the Brain Injury Group and its aims

Brain Injury Group was set up as a membership organisation for law firms with specialist brain injury claims teams, to promote the importance of instructing a specialist lawyer following a brain injury. 

Our core values – to ensure that those affected by brain injury have access to the specialist support they need to help them receive the right rehabilitation at the right time and to support them to rebuild their life– have remained throughout our ten-year history. Our members can advise not just on claims, but also education, employment, family matters, continuing healthcare funding and the Court of Protection.

In addition to our website, which contains a range of useful information for the individual, families, and carers, we also offer support via telephone, email, and live chat on our website; not just to those who have a claim, but to anyone who has suffered a brain injury – if we cannot help ourselves, our aim is to signpost to services who may be able to.

We’ve also created a large directory of goods and services online, who can assist not just those who have sustained a brain injury, but the businesses who support them – so a one stop shop for goods and services from accessible holidays to specialist medico legal report providers, and much more in between.

Finally, we are recognised as providers of high quality CPD training, primarily for catastrophic injury lawyers, but also for case managers and therapists. We also provide free access to our training for the NHS and are happy to deliver bespoke sessions for them, which proved popular with neuro navigator teams in London. Our training covers a range of medical, legal and rehabilitation topics and we aim to deliver it in a neutral, friendly way, making it relevant to both claimant and defendant teams.

Who are your members?

Membership of the Brain Injury Group consists of three different streams; firstly, our law firm members who, in order to be accepted as members of the Group, must satisfy our joining criteria to ensure they really are specialists in the field of brain injury claims. Secondly, we have associate

Sally Dunscombe, operations director

members who provide supporting services to our law firm members, so for example medico legal agencies, IFAs and mental capacity assessors. 

Finally, in 2020, we introduced our case manager membership which is actually open to residential rehabilitation facilities and therapists as well as case management organisations throughout the UK – we also have one member who is based in the Republic of Ireland.  This has been our fastest-growing membership stream and we’re really pleased to be working more closely with so many excellent case management companies who have a particular interest in brain injury. 

As part of their membership they receive free or discounted access to our training, allowing them to enhance their knowledge of brain injury, for

the benefit of their clients.

What are the benefits for a client of contacting Brain Injury Group rather than a law firm direct?

Firstly, we’re not a claims management company, so if a client contacts us, we are simply providing them with contact information of law firms who they can be assured are specialists in the field of brain injury.

This is so important as brain injury claims can be very complicated, and depending on the nature of the injury, can take many years to settle, so its important someone is confident in the abilities of their lawyer, and that that lawyer is experienced in this type of claim and is able to arrange the rehabilitation, care and support that person needs – not just for the duration of their claim, but for their entire future.

We always recommend people speak to at least three different lawyers before deciding to proceed. By contacting Brain Injury Group, just one call or email will provide them with details of three specialists, reducing some of the burden of researching firms at a time when there may be massive changes and stresses in their lives as they adapt to life after brain injury.

Julie McCarthy, training and membership manager

At the same time, we can connect them with organisations who can provide a free welfare benefits check-up or advise them on any employment issues that may arise, talk to them about continuing healthcare funding, or introduce them to a charity who can offer emotional support and may also be able to offer a small grant to assist with travel, accommodation, therapies, or the purchase of specialist equipment.  

This service is provided free by Brain Injury Group and all our members will offer free initial advice to the general public who approach them via Brain Injury Group.

What does the future hold for Brain Injury Group?

During the pandemic we moved all our training online which has proven very popular, and whilst our webinars will continue, we really hope people will be happy to return to meeting in-person at events – we have held a couple of events recently which were very well received and attended, so we are hopeful.  

We’re keen to continue to develop our membership further and introduce a training programme specifically aimed at case managers, which will run alongside our main training for catastrophic injury lawyers.  

By forging closer links with case managers, rehabilitation providers, barristers, and lawyers, we hope we can extend our reach to help even more people who have sustained a brain injury, including those who do not have a personal injury claim.

For further information on how Brain Injury Group can help or to find details of membership and our training, visit our website www.braininjurygroup.co.uk

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Legal

DoLS cases rise, as completion rate improves

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DoLS applications have risen year-on-year.

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.

 

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Insight

‘This is an exciting time in the future of clinical rehab’

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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

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