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Capacity to make decisions about using the internet

Approximately 96 per cent of UK households have access to the internet. This can create risks for those who are vulnerable, write Irwin Mitchell’s Mat Culverhouse and David Withers.

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The development of the internet and social media has fundamentally changed the way in which people exchange information and engage with society.

Use of the internet and social media is said to be of particular importance for people with disabilities, as it can offer opportunities for social inclusion, learning new skills and enhanced autonomy.

However, using the internet and social media can also expose vulnerable people to the risk of abuse and predatory behaviour and the risks associated with accessing inappropriate content. It is therefore important that, when a person lacks the mental capacity to make decisions regarding their use of the internet and social media, steps are taken to ensure that their access to social media or the internet is managed in their best interests.

In serious injury litigation where the Claimant has sustained a severe brain injury, it is increasingly common for a case manager to risk assess the risks of the individual accessing social media and for the relevant medico-legal experts to be asked to comment on their capacity to do so.

The starting point is to consider whether the individual retains or lacks capacity to make the relevant decision. Capacity to make decisions about social media is a standalone issue to be determined; it is not a subset of capacity to make decisions about care arrangements or contact with others.

An individual is assumed to retain capacity to make any decision unless it is established that he lacks capacity [Section 1 (2) of the Mental Capacity Act 2005]. Simply because the proposed decision is unwise, does not mean that the individual should be deemed to lack capacity [Section 1 (5) of the Act].

An individual is deemed to lack capacity if they are unable to understand the information which is relevant to a decision, to retain that information, to use or weigh up that information as part of the process of making the decision or to communicate their decision by whatever means [Section 3 (1) of the Act].

The information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision [Section 3 (4) of the Act].

If the individual retains capacity to make decisions about social media, the rehabilitation team and the family can educate and provide advice. However, they cannot stop the person from making decisions.

This is despite the individual making what may seem unwise decisions, some of which could have severe consequences including, for example, a police investigation.

If the individual lacks capacity, any decision about their use of social media must be made by following the best interests decision making process [Section 4 of the Act]. That decision and the restrictions should be documented in the care plan.

The restrictions may include, but are not limited to, parental or content controls, limiting access to devices which can access social media, monitoring the browsing history and supervising or assisting the individual whilst online.

A best interests decision must consider all of the relevant circumstances, permit the individual to participate insofar as possible, and consult anyone engaged in caring for the person or interested in their welfare including a deputy appointed by the Court of Protection [Section 4 of the Act].

In Re. A [2019] WECOP 2, the Court of Protection gave guidance to practitioners about the factors to take into account when assessing what “relevant information” means in connection with assessing capacity to make decisions about social media. The guidelines are as follows:

(i) Information and images (including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know, without you knowing or being able to stop it; 

(ii) It is possible to limit the sharing of personal information or images (and videos) by using ‘privacy and location settings’ on some internet and social media sites; [see paragraph below];

(iii) If you place material or images (including videos) on social media sites which are rude or offensive, or share those images, other people might be upset or offended; [see paragraph below];

(iv)Some people you meet or communicate with (‘talk to’) online, who you don’t otherwise know, may not be who they say they are (‘they may disguise, or lie about, themselves’); someone who calls themselves a ‘friend’ on social media may not be friendly;

(v) Some people you meet or communicate with (‘talk to’) on the internet or through social media, who you don’t otherwise know, may pose a risk to you; they may lie to you, or exploit or take advantage of you sexually, financially, emotionally and/or physically; they may want to cause you harm;

(vi) If you look at or share extremely rude or offensive images, messages or videos online you may get into trouble with the police, because you may have committed a crime;[see paragraph below].”

The Court gave further guidance to assist practitioners to interpret the test:

  • In relation to (ii) in [28] above, I do not envisage that the precise details or mechanisms of the privacy settings need to be understood but P should be capable of understanding that they exist, and be able to decide (with support) whether to apply them;
  • In relation to (iii) and (vi) in [28] above, I use the term ‘share’ in this context as it is used in the 2018 Government Guidance: ‘Indecent Images of Children: Guidance for Young people’: that is to say, “sending on an email, offering on a file sharing platform, uploading to a site that other people have access to, and possessing with a view to distribute”;
  • In relation to (iii) and (vi) in [28] above, I have chosen the words ‘rude or offensive’ – as these words may be easily understood by those with learning disabilities as including not only the insulting and abusive, but also the sexually explicit, indecent or pornographic; 
  • In relation to (vi) in [28] above, this is not intended to represent a statement of the criminal law, but is designed to reflect the importance, which a capacitous person would understand, of not searching for such material, as it may have criminal content, and/or steering away from such material if accidentally encountered, rather than investigating further and/or disseminating such material. Counsel in this case cited from the Government Guidance on ‘Indecent Images of Children’ (see (ii) above). 

    Whilst the Guidance does not refer to ‘looking at’ illegal images as such, a person should know that entering into this territory is extremely risky and may easily lead a person into a form of offending. This piece of information (in [28](vi)) is obviously more directly relevant to general internet use rather than communications by social media, but it is relevant to social media use as well.”

In some cases the supervision and control arrangements to manage the person’s use of the internet and/or social media can impact on the person’s liberty and may amount to a deprivation of liberty when taken as a whole.

In these circumstances, strong consideration should be given to seeking expert legal advice and / or ensuring that the relevant Local Authority is notified of the restrictions and the potential deprivation of liberty.

If there is likely to be a lack of capacity to make decisions about social media in the longer-term, consideration should be given as to whether additional costs will arise which will need to be factored into the personal injury litigation.

The additional costs may include additional legal advice and additional deputyship costs particularly if frequent communications with the Local Authority and best interest decisions are required. In addition, there are likely to be additional costs incurred by the case manager and the rehab team to protect the individual.

Mat Culverhouse and David Withers are partners at Irwin Mitchell LLP.

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Legal

Traumatic brain injury vs psychological injury

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By Alice Hall, serious injury solicitor at Irwin Mitchell.

Neurocognitive deficits caused by traumatic brain injury (TBI) can be one of the more challenging injuries to prove and as a Claimant solicitor; it is my client who bears the burden of proving every aspect of their injuries and resultant losses.

I have seen that it is often the case that mild TBIs are just one of many injuries, whilst other injuries may present as far more life-threatening, particularly during the emergency stage of treatment.

Sometimes, therefore, mild TBIs are either not fully diagnosed at the outset, or they are noted but are not treated as a priority in comparison with other more seriously recognised injuries at the time, which may be more obvious and more pressing.

Claimants are often then discharged from hospital with their physical injuries having been treated and follow up arranged for Occupational Therapy input and Physiotherapy, but with no neurological or neuropsychological investigation or follow-up.

This is then often further complicated by the subtle ways a mild TBI can manifest itself. For example, they may cause issues such as dizziness, fatigue, tinnitus, loss of smell or taste, difficulty concentrating, multi-tasking or changes in mood or personality.

Sometimes, these issues are picked up only by family members or friends; with the symptoms being so subtle that they go unnoticed by the injured party themselves, particularly when they are focused on recovery from their more obvious physical injuries.

I have had Claimants approach me following a serious injury and it is only at that point through my discussions with them that the possibility of a TBI is first explored, and that can be something which can be quite shocking and upsetting for an injured person to first consider.

In proving such an injury, expert evidence, particularly neurological and neuropsychological, will obviously be key.

The difficulty is often that, in the absence of objective evidence of a TBI shown for example by way of day-of-injury imaging, expert evidence must be unequivocal in determining the presence of any TBI or otherwise, which of course is not always possible for a variety of reasons.

However, in recent years, there have been reports regarding seemingly exciting new technologies that have been developed with the aim of gathering objective evidence regarding the presence of TBI.

For example, there has been research into the use of ‘Diffusion Tensor Magnetic Resonance Imaging (DR-MRI)’ – which evaluates water movement within the brain to locate brain cells that are not functioning properly – which has been shown to provide objective evidence of TBI.

There have been other developments for example, specific blood tests which may measure plasma-based metabolomic biomarkers, which have been shown to indicate elevations in metabolites in individuals who have suffered TBI when compared to non-injured control participants.

Matters can be further complicated in litigation if, once expert evidence is obtained, the waters become muddied with suggestions of there being overlying psychological components to what is suspected as being a TBI, or potentially experts being of the opinion that the symptoms complained of are entirely psychologically based.

Of course, when Claimants have been through trauma, it is not uncommon that they will present with some sort of psychological injury in addition to their other injuries.

The difference – whether the presenting symptoms are caused by TBI or some psychological component – is essential in many respects. First and foremost, the treatment that the Claimant will be recommended to address any neurocognitive deficits that they present with, must be recommended in line with its underlying cause.

Failing this, a Claimant risks undergoing potentially lengthy, costly and challenging rehabilitation which may turn out to be wholly inappropriate to their condition.

Secondly, the quantification of damages is also influenced heavily by the nature of the injury, both in terms of the PSLA (pain, suffering and loss of amenity) element of the claim, which refers to the sum of compensation that a Claimant is awarded to compensate them for having suffered the injury itself.

This element of any award is guided by a set of guidelines which include brackets of awards for every injury and, within that, a range of severity.

Whether such neurocognitive deficits are presenting as a result of TBI, or psychological injury, or a combination of both, will determine which section of those guidelines, and which bracket, a Claimant will be assessed under, hence influencing the ultimate award that they receive.

Further, thought must also be given in any personal injury claim regarding what other losses a Claimant has, or will, suffer as a result of their injuries e.g. loss of earnings, care, case management, rehabilitation, aids, equipment.

Again, the nature of the injury will permeate all other aspects of the quantification of the claim, particularly if, depending on the nature of the injury, the experts consider that the prognosis is significantly different in either scenario.

The danger in this situation would be that a Claimant would be at risk of either being significantly under or over compensated, which would of course be entirely inappropriate.

Whether such deficits are caused by TBI or psychological elements will potentially have a significant impact on a Claimant’s long-term prognosis, and therefore the compensation to ensure that they are adequately compensated to reflect whatever their future needs look like.

For example, it is widely accepted that there is an increased risk of various serious long-term medical conditions, including epilepsy and dementia, in people who have suffered TBI.

One recent study concluded that there was more than a two-fold increase in the risk of dementia in those with TBI, even in those who did not suffer any documented loss of consciousness at the point of injury.

Of course, the costs involved if either of these conditions materialise are potentially huge. This is often addressed in litigation by way of provisional damages. Provisional damages allow greater security for Claimants if there is a chance in the future that may develop some disease or serious deterioration in their condition.

This provides the Claimant with an option to return to the Court to seek a further sum of compensation if they do indeed deteriorate significantly after the original claim has been settled.

This is in contrast to the normal course whereby a personal injury claim is settled in “full and final” terms, meaning that there would be no scope to re-open a case and pursue additional compensation should the injured person’s injuries or condition significantly deteriorate beyond what had originally been envisaged.

 

 

 

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Legal

The importance of identifying priorities in rehabilitation

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After a life-changing injury, such as acquired brain injury, it can be tempting for the injured person and their loved ones to want to ensure that they get as much of the best quality rehabilitation that the state can provide or that money can buy, writes Irwin Mitchell’s David Withers.

This is because it is generally accepted that the greatest recovery is made in the first few years, particularly in the case of acquired brain injury.

When an individual sustains a traumatic brain injury, there are a range of disciplines that may need to be involved including, but not limited to: physiotherapy; occupational therapy; neuropsychology; neuro-psychiatry; neurology; neuro-surgery; dietician / nutritionist; speech and language therapy; personal trainer; counsellor; and support workers. The injured person’s passion for rehabilitation is absolutely vital. If and when that goes, it can be very difficult to regain that motivation. Mind-set in rehabilitation is critical.

A case manager’s role is to co-ordinate the rehabilitation. This includes introducing therapists at the right time. An injured person’s goals and aspirations must be identified.

The case manager and the injured person and their family must then formulate a rehabilitation strategy, focussing on what will make the greatest difference.

In the author’s experience, achieving a major goal will build momentum, leading to smaller goals being achieved rapidly thereafter. If a case manager overwhelms the injured person with too much rehabilitation, they will become disengaged.

Every rehabilitation programme will be different, rightly so as it should be tailored to the injured person’s needs. However, generally speaking, it is often sensible to rehabilitate the physical limitations through physiotherapy and the cognitive and emotional changes through neuro-psychology initially.

After progress has been made, an occupational therapist can be introduced, potentially to assist with returning to work or identifying strategies to maximise independence insofar as possible.

Another important factor is ensuring that the rehabilitation feels like it is part of “real life”. An injured person may have spent months in hospital. Although there is of course a time and a place for rehabilitation at home or in a clinical setting, in the author’s experience, injured people generally want to be able to return to some sense of normality insofar as possible quickly after discharge.

This means that the rehabilitation specialists need to fit around that person. Effective rehabilitation is about identifying goals, creating an exciting plan, monitoring progress and achieving them. This leads to momentum, motivation and the desire or passion to keep getting stronger. If rehabilitation is likely to be a long-term need, the integration of the package into real life is particularly important.

The author has experience of representing a severely injured person who was interested in pubs and bars. He had the capacity to make these decisions. The support team, working with the speech and language therapist, facilitated him being able to go.

They were able to educate him about the risks of consuming alcohol (again, which he had capacity to make decisions about), and work with him, in real-time, on his engagement with others.

He was able to return to doing something that he was passionate about. This made him more engaged in the less “real-life” rehabilitation sessions that he was having at the time.

David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in life-changing injuries including severe traumatic brain injury, spinal cord injury and amputations.  

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Legal

Case managers and lawyers – the power of collaboration amid Covid-19

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The Covid-19 epidemic has had a disproportionate impact on societies most vulnerable, due to social, financial and medical needs, write legal executive Jack Sales and clinical case manager Alexandra Hitchcock…

With many clients falling into this category case managers and solicitors have needed to continue to work in a collaborative and responsive fashion in order to best respond to the clients’ changing needs.

This is compounded when the client is not the only person in the household and  their care team’s needs also need to be considered.

Elderly family members and those with other medical conditions along with roommates working from home, children requiring home schooling and regular paid carers needing to self-isolate have made supporting clients’ needs more challenging.

This has required the breadth of consideration to be widened to ensure revised planning takes into account the needs of all involved, while keeping the client as the central focus.

Urgent need has often required initial reliance on social services and charities with mid to longer term support coming with solicitors accessing interim payments or additional services.

Increased funding to social services and charities has been beneficial to fill this void, such as food deliveries to people in need, volunteers collecting basic necessities and telephone support for those experiencing loneliness. However other services, such as home repairs and modifications have been delayed in the current crisis.

Having funding available to follow on when statutory or charity services cease is as important as the duration of these services is unknown and clients may not have the capacity to react.

The introduction of government restrictions has required a delicate balance of risk assessments to determine the clients’ health and financial support needs.

When clients require medical, case management and/or expert witness appointments to be completed in order to not only further their health but support their claim, a decision must be made as to whether the need falls within government guidelines and the level of risk of potentially introducing coronavirus into the household.

With many appointments suddenly not available, cancelations through the NHS and uncertain waitlists in the independent sector finding the best and safest fit for clients has required consistent review, understanding and close working by all involved.

Rehabilitation has been noticeably slower with a downturn impact on clients’ mental health, including low mood related to social isolation or anxiety related to the pandemic, slowing momentum for many who were previously progressing.

With rehabilitation planning taking clients’ clinical need and motivation into account, case managers have needed to work closely with clients, rehabilitation teams and solicitors to determine if continuing, delaying or ceasing treatment is the best option.

Although beneficial, some clients have been reluctant to utilise remote rehabilitation sessions or have found that they are less able to connect with therapists via video or telephone.

This has led to some choosing to wait for face to face appointments to become available at the risk of pausing or reverting aspects of their rehabilitation.

Other clients have managed remote sessions well with online appointments likely to have a permanent place in their continued rehabilitation and they require less travel and cost than face to face appointments.

As government restrictions lift but the potential for a second wave of Coronavirus looms, the client/case manager/solicitor relationship will continue to evolve as we progress rehabilitation in unprecedented times while keeping the clients current and long-term needs at the forefront of their rehabilitation plans.

Legal team

Instructing a case manager is one of the first acts of the instructed legal team. Under the Rehab Code, the focus of the legal claim should be on rehabilitation at an early stage.

Often, case managers will work with clients over many years and it is vitally important to get this working relationship right as soon as possible.

They will need to be a “good fit”, have the right expertise and crucially be able to pro-actively progress the client’s rehabilitation and find solutions when they come across obstacles.

There have been few greater obstacles to rehabilitation than Covid-19 and the social distancing measures introduced which have given rise to additional barriers to rehabilitation for already vulnerable clients.

The past few months, even with some easing of restrictions, have had a significant impact on the availability and accessibility of much needed treatment for injured clients.

Whether it has been a barrier to getting rehabilitation off the ground in the crucial early stages of recovery or the setback of an interruption to an existing rehabilitation package, the impact can be felt acutely and can be a serious obstacle on the clients’ road to recovery, both physically and psychologically.

This can be compounded by social isolation for those living alone or additional strain on family relationships in what can already be a difficult set of circumstances following a life changing injury.

Many therapists have been able to use the benefit of available technologies to offer remote sessions to mitigate the impact of Covid-19 but this is not suitable for all therapies and not possible for some clients who do not have the availability of, or capacity to use, such technologies.

This creates a “black hole” of much needed treatment for many clients. Additionally, although some of the current challenges may be shared by clients, often their needs are unique meaning there is no “one-size-fits-all” approach that can be applied.

As a result, it is more important than ever for the legal team and the case manager to work closely and pro-actively together to find alternative and innovative solutions to these problems.

This is not limited simply to rehabilitation but the need to ensure even the most basic needs can be met for the most vulnerable clients, such as charities who can provide and deliver groceries to those who are vulnerable, shielding and on low incomes.

It is often the case manager who is on the front line, seeking solutions to problems, finding alternative ways of delivering rehabilitation and attempting to increase a client’s independence and quality of life, but it will require the expertise of the legal team to secure funding, primarily by way of interim payments, to ensure positive solutions can be put into effect without delay.

Clients may also require assistance with financial advice to address any concerns about their ability to meet outgoings such as rent, mortgage payments and utility bills. This may be provided by way of advice from a financial planner, for example, or the use of charities that can provide guidance and assistance with financial concerns.

The legal team can also consider the need for securing larger interim payments to cover the increased costs of care in these times; including the additional costs of ensuring that all necessary Personal Protective Equipment is available.

In addition, the collation of the supporting clinical records by the legal team can play a huge part, not just in securing funding, but in allowing medico-legal experts to assess the full picture when recommending treatment and further needs. This in turn can be crucial in ensuring clients receive the best compensation to meet their long-term needs.

A collaborative approach by the legal team and the case manager has never been more important than here and now to ensure the client remains at the forefront of everything we do and to maximise their recovery.

Case study

We recently worked together on a case where a client has been faced with the types of challenges outlined above.

The client suffered a lower limb orthopaedic injury restricting his mobility.

He also suffers with psychological symptoms including low mood, anxiety, suicidal ideation and outbursts of anger which impact on his thinking and engagement in activities of daily living.

The client lives alone and has little by way of a support network in the local community other than a care package provided by the Local Authority.

His rehabilitation was due to commence just as the lockdown struck in March 2020. The client was left isolated, unsure of his welfare and unclear of the impact on his rehabilitation.

Working collaboratively and proactively, Irwin Mitchell and Bush & Co Rehabilitation were able to support the client and find solutions to the unprecedented challenges posed by Covid-19.

In case management terms, we were able to identify local charities who could deliver groceries to the client who was shielding. Psychological and physiotherapy support was sourced independently as the client has difficulty engaging in statutory service virtual provision.

On the legal front, we were able to ensure the client’s legal claim enabled there to be funding available under the Rehab Code to allow Bush & Co Rehabilitation to implement treatment. There were also regular telephone calls with the client to discuss his needs and keep him updated on actions being taken to ensure the client was a part of the process.

The client was unable to engage in video assessments and so telephone assessments were arranged. It became apparent the client’s psychological presentation meant he had difficulty engaging in any remote appointments without significant support provided by someone else in the home.

Therefore, with some easing of restrictions, face-to-face assessments were arranged. This required the need to risk assess and ensure Personal Protective Equipment and safeguarding measures were followed.

Despite the obstacles posed by Covid-19, these were not allowed to be a barrier to the client’s rehabilitation. The client has remained motivated to engage in the rehabilitation process and any disruption and delays caused by the lockdown have been mitigated to ensure motivation and engagement levels are maintained.

Jack Sales is a legal executive specialising in serious injury cases at Irwin Mitchell. Alexandra Hitchcock is a clinical case manager at Bush & Co Rehabilitation.

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