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Court in the wheels of progress

The Court of Protection is an influential force in neuro-rehab. Here senior judge HHJ Carolyn Hilder answers your questions on the inner workings of the authority.

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The Court of Protection (CoP) makes decisions on financial and welfare matters for people lacking mental capacity.

It was created under the Mental Capacity Act 2005 and has a range of responsibilities, including deciding whether an individual has mental capacity, and appointing deputies to make decisions for people who lack it.

Deputies may be a friend or relative of the individual, or a professional such as a solicitor or accountant appointed by the court.

The CoP can significantly influence the work of professionals with clients with brain injuries and neurological conditions.

Brain injury case managers, responsible for managing the overall care of brain injured individuals, are particularly attentive to its activities and rulings.

They were given a rare insight behind the scenes of the organisation recently, with an opportunity to put questions to a key figure at the CoP, Senior Judge HHJ Carolyn Hilder.

Their questions, arranged via brain injury and complex case management body BABICM, came against a backdrop of major change in mental capacity-related decision-making.

A new model for determining deprivations of liberty in care, known as Liberty Protection Safeguards, come into play next year in a move which will hopefully speed up the delivery of justice for many vulnerable people, while many other developments are afoot.

Here’s what Judge Hilder had to say….

Case manager: Do you consider that any medical knowledge/experience of what it means to have a brain injury or cognitive impairment is required to make a judgment around capacity/best interests?

JH: One of the hats I wear is as a course director of training for the CoP judges.

Understanding the complexities of different types of impairments to brain function has been a feature of training, and in the last several years, there has always been a clinical psychologist to provide introductory training.

In our ongoing review training, we have, to date, had specialist input in respect of bipolar disorder, dementia, learning disability and brain injury.

Last year, all of the CoP judges had the privilege of hearing from a young man called William Hawkins, who suffered a very significant brain injury in a car accident.

It was nobody’s fault so there were no damages to award, no case manager and actually no money either.

So he wasn’t ever technically within the decision-making of the CoP. But over several years of extraordinary determination and courage, he has made more of a recovery than was ever expected.

He and his mother now make something of a mission of educating people about the impact of acquired brain injury, not just on the person but on their wider family and their struggles to secure adequate support and resources.

I can tell you that some of the judges left that presentation in tears.

So to answer the question, I don’t think that medical qualification or experience is required for making decisions under the Mental Capacity Act – but I do consider that information about the nature of a person’s incapacity is an important part of the information which the judicial decision-maker has to consider.

And, I do consider that the better the information and understanding of the condition, the higher the likelihood of reaching the best decision.

That is why you will sometimes see orders which specify what type of expert is required to produce an assessment capacity.

Where we are concerned with a person that has a complex or fluctuating condition, such as schizophrenia or bipolar disorder, a psychiatrist is likely to be required and similarly, with acquired brain injury, a neuropsychologist will be required.

This [recognises] that complex conditions impact on capacity in ways that require an understanding, and an explanation to the court.

What are your thoughts on professional deputies taking on brain injured clients, in a scenario where they have no specific expertise or experience working with this unique client group?

I think this is meant to refer to property and affairs deputies who charge [a fee].

On the whole, that means solicitors, but actually, the meaning of professional in this context is getting more complicated via the latest iterations of Practice Directive 19B [part of UK CoP rules] – and the expanding commercial basis on which deputyship services are now offered. To me, the key is really the professionalism of the deputy, [in terms of] understanding the requirements of deputyship, which is a judicial duty carrying legal responsibilities, and performing that role with integrity and skill.

It’s that kind of professionalism, in a case where a brain injured person has a very large number of challenges, which is more important than the professional qualification or experience with that particular type of injury.

Of course, it’s gold standard to have both but I would not be in favour of saying that only a professional with experience of this type of brain injury is suitable to be appointed as a deputy.

That runs the risk of limiting the protected person’s access to services, and it runs up against patently obvious difficulties of how do you get experience if you can’t do it without experience in the first place.

That’s where case managers come in. A close working relationship between the many professionals that are likely to be involved in the life of a person with a serious brain injury seems to me likely to be the best way of achieving an optimal outcome.

The average time for an application to the CoP is taking too long. Whilst additional resources might help, are there any root and branch reviews planned to speed the process up? Failing to deal with applications expeditiously is letting vulnerable people down given that the court cannot deal with matters in a swifter fashion.

Let’s not beat around the bush, I accept that justice delayed is justice denied. And I understand that applications too often take too long to resolve.

The [applications process] taking X number of weeks may be perfectly acceptable in some cases and hopelessly inadequate in others.

There is actually only one key performance indicator in CoP statistics and that is ‘16 weeks to complete a non-contentious property and affairs deputy application’.

As of March this year, 35 per cent of applications are being concluded within that. Health and welfare applications are taking an average of four to six weeks to complete.

But an average is meaningless to an applicant who wants his or her application determined.

The reality is that we live in an age of austerity when resources are tight. At the same time, the number of applications for the CoP is on a constantly upwards trajectory, so there’s a degree of inevitability to the result…

But I do not believe any of us should wallow in defeatism about this. There are structural measures already in place to address this as soon as possible and there is the prospect of further development. Firstly we have a cohort of dedicated staff.

They are human beings, who come to work with a skip in their step wanting to do something which they believe to be socially useful.

I ask you in your dealings with them to start on the basis that they really are trying to do their best to help.

More concretely, every single day there is an urgent business judge on duty so that applications which are genuinely urgent can be and are dealt with immediately.

Since October 2018, we have had for the first time a cohort of deputy judges.

They’ve been a long feature of the civil and family courts but for reasons of history the CoP has not had a cohort of deputies until now.

Most of those who were appointed have direct experience of CoP work as practitioners.

And in February of this year, we secured some extra funding to have a blitz team of those deputies.

So in 10 judge days, those deputies cleared a backlog of 1200 non-contentious property and affairs deputyship cases, which reduced the waiting time to three weeks.

Unfortunately, in that same period, 920 new applications were received, so the overall effect was dispiriting and not as great as the efforts deserved.

For the longer term, we have now secured additional funding for new and permanent posts of authorised court officers, increasing the manpower from five to eight.

More strategically, just before last Christmas it was announced that the CoP was taken out of the great [programme of court reform] which is sweeping across court services throughout the country currently.

That was a blow in terms of anticipated investment, although it has had a positive effect on our staff in terms of our stability being assured.

Instead, we have a regime called ‘business as usual reform’.

It means that the CoP will benefit from the reform processes as and when possible, within existing budgets.

So I can’t promise a root and branch review, but rather incremental development.

Which development at the CoP over the next 12-18 months are you most excited about and which will benefit P the most? Is there a timeframe for online submissions for applications and electronic bundles in the CoP?

As you will gather from my response to the last question, there’s not a huge amount of excitement here.

I would get most excited about the development of online applications to the CoP.

I think that that system is particularly well suited to property and affairs deputy applications. If it were possible, it would enormously reduce the workload of the court and therefore benefit P by speeding up the process.

Unfortunately, I’m not really excited about it, because it is not yet on the horizon.

There is a willingness but there are not the resources and so there is not a time frame either. Electronic bundles would have some potential advantages.

Local authorities are accustomed to doing this in the family courts and there is a fair amount of pressure for them to be able to do them for the CoP too. I’ve seen a demonstration of one particular system, which seems to meet the needs of the court.

But unfortunately that’s not being made available yet either.

So the two developments which I’m actually most excited about are the introductions of bulk scanning and dual screens.

To my mind you can’t have one without the other.

But there are plans actively on the way to move to a system which is already operating in other parts of the courts system whereby the application, once made, doesn’t go to any human brain in the central registry until it’s been to a bulk scanning centre somewhere else and turns it into electronic documents and reduces the amount of paperwork for the court.

There is some suggestion that that might be up and running by Christmas.

Will the application process ever be made easier for lay deputies?

It can be hugely time consuming to make an application, the OS fees are significant for P (and they are acting for a person they have never met) and the lay deputy has to either seek and pay for advice, or navigate the process on their own.

If you are a lay person that has found the application process too complicated, I can only offer the assurance that the court does its best as far as possible [to help you].

We operate a team of dedicated telephone enquiry options… The [application] forms are constantly under review for improvement. Overall it is our aim to offer as courteous a process as possible.

Official solicitor fees are, of course, completely outside my domain.

But it was to tackle the expense and delay of official solicitor involvement that the accredited legal representatives were essentially invented by the rules committee.

It’s taken a long time, and a lot of work on the part of the Law Society, to become a reality but there is now a cohort of them.

The court has been able to appoint them for over a year. There have been few appointed so far but their numbers are gradually increasing.

So if you have a case where you think an accredited legal representative would be appropriate given the nature of the issues, you can now make that request as part of your application.

It remains to be seen if that will simplify the process at all, but that is the hope and intention.

What are your thoughts on the amendments to the Mental Capacity Act around Deprivation of Liberty (DoL)? Will the amendments help in making the application process and workload for the CoP more manageable?

 

I’ve kept a distant eye on various iterations of the Amendment Act because it’s important to know what’s on the horizon but its definitely not the role of the judiciary to wade into legislative development.

We do now have a final version so we can seriously think about how it will work.

We know that the present intention is for the new Liberty Protection Safeguards to come into force on 1st of October 2020, with the final draft of the code to be made before Parliament several months before that in spring of 2020.

It’s not appropriate for me to express views in case I am in due course called upon to determine issues, but we can look at the impact on
the work of the court.

There’s a lot which is very difficult to predict, but at every stage of the development of the DoL jurisdiction, the predictions of numbers involved have been eye-watering but they have never materialised.

You can speculate as to why, but it doesn’t make it any easier to plan for. On a structural level, the implementation of the Liberty Protection Safeguards will be the demise of the streamlined, Re X procedure. [This process was put in place in 2015 to deal with large volumes of cases, allowing judges to make an order authorising a deprivation of liberty in uncontroversial cases “on the papers” – without an oral hearing, saving time and costs.

This followed the 2014 Cheshire West judgement, when the Supreme Court clarified the definition of a deprivation of liberty as a person being “under continuous supervision and control and not free to leave” the place they were in, regardless of whether this arrangement would be appropriate or ‘normal’ for a person with those particular needs.

This exposed thousands of cases in which people were being deprived of their liberty by the arrangements made by the state and created a surge in cases for the court to deal with]. There won’t be a need for [Re X] and that will have a liberating effect on some resources.

Presently we have a whole team of staff which will be able to be deployed in other areas. I’m not getting too excited about that just yet because the indications are that there will

be a time when they both run in tandem. My priority at the moment is to do what we can to make sure that the current backlog in the streamlined applications does not swamp the new system from the start. And to that extent, there are administrative meetings

going on to see if there can be some progress in clearing that backlog as quickly as possible.

As to how it will affect the workload of the court, the Rules Committee has set up a working group which is considering forms and procedure.

That has yet to produce anything substantive but the wheels are in motion. In theory, the Liberty Protection Safeguards should take a large tranche of people who currently need to come to the CoP and also to the family court out of the need for court orders.

General experience would suggest that there is going to be a new type of workload for the court and that’s going to be the challenge of LPS authorisation, but we have no idea how many appeals will be made or on what grounds.

We approach the implementation of the new system in the spirit of optimism and we will see where it takes us.

We are depriving the liberty of 14 community dwelling clients. They each lack capacity around decisions relating to need for support, going out alone etc. Best interests judgment is that, to remain in the community, the least restrictive option
is applied but this is still a (reasonable) deprivation. We have applied to the relevant local authority (LA) in each case.

Responses by LAs so far have been to deny responsibility, to say DoLS does not apply in the community, to refuse to respond
to correspondence or to try and get a non-expert to find capacity (in one case) against experienced ABI team opinion. In 3 years, not one case has been progressed or resolved. Our approach has been designed with a leading public law firm. We quote judgments and charge our clients for our time.

This feels unethical and a poor use of money. What should we do in these situations where the LAs respond in this way and do not seem to understand their responsibilities?

 

It’s a story I hear often and probably goes a long way to explain the mismatch between the predictions of need and the actual numbers of applications. I’m afraid it all comes down to money.

The local authorities have been saying ever since the Cheshire West case that they do not have the resources to apply processes as they should be applied.

The last vice president of the CoP, Sir William Charles, before he retired [in February 2018] did not mince his words in the line of cases which followed Re X and how the funding gap needed to be addressed.

His last word on this was SRK against Staffordshire County Council. SRK’s care package from home was arranged and provided without any input from the local authority.

Care was supervised by a specialist brain injury case manager and provided by current carers.

The local authority had no knowledge of SRK or his care arrangements until his property and affairs deputy wrote to them saying that there was probably a deprivation of liberty.

The local authority did an assessment and they shared that conclusion. And so it made an application to the court for authorisation.

The Secretary of State for Justice was joined as a respondent so she could address the circumstances and extent to which the state is imputable in any deprivation of liberty arising out of private care arrangements.

Everybody else said it was but the Secretary of State said it wasn’t. The vice president decided at the time that a welfare report had to be made to provide a procedure that protects the relevant person from arbitrary detention and so to avoid violation of the state’s positive obligation under Article 5 [of the Human Rights Act, which protects an individual’s right to liberty and security].

That was based on the premise that the state knows or ought to know the situation on the ground and that knowledge exists because the civil court awarding the damages and the CoP appointing the deputy – and the deputy when appointed should take steps to ensure that the relevant local authority with various safeguard elements knows of the regime of care.

The Court of Appeal upheld Sir William Charles’s judgement. It sounds to me like the questioner is fully aware of all of this and is doing what they can to bring the situation on the ground to the attention of the local authority, so what then can be done?

I’ve seen applications made by the deputy under the streamline procedure, usually in situations such as this.

My response has been to require the relevant local authority to explain why it should not be substituted for this applicant.

So far, they have always accepted that they should be. Of course there are cost implications.

In the Staffordshire case, the vice president expressly provided for the deputy to act as a Rule 1.2 representative in the annual reviews. [A 1.2 representative is the name given by the court to a person who is able to consider whether from the perspective of individuals best interests you agree or do not agree that the court should authorise the individual’s package of care and support resulting in a deprivation of their liberty].

That was possibly a reflection of the availability of funds for that from damages. And the vice president specifically said that when damages are assessed, this should be considered carefully.

Generally, it is my view that requiring a protected person to pay for the state to be able to meet its obligations is unattractive. If no one can be identified to act as a Rule 1.2 representative then it becomes a balancing act.

Is it in P’s best interest to pay the cost of representation so the application can be considered, in the case of no authorisation? It’s going to be a case-by-case decision that probably comes down to P’s resources.

When I have required local authorities to justify why P should pay, miraculously an alternative solution so far has been found.

Ultimately it must be acknowledged that it is wholly unacceptable for the state to be in violation of its obligations for a period of three years as described and I wonder why applications for damages have not been issued. That would be a best interests decision in each case.

Judge Hilder was responding to questions at the BABICM 2019 annual conference in Birmingham recently.

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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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‘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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The importance of goal setting

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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 [2013] 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:

  1. 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
  2. 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 [2000] 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:

  1. Identify the short to medium term needs of the Claimant; 
  2. Triage those needs by considering what input would make the biggest difference; 
  3. 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; 
  4. Execute the plan and ensure everybody involved in the MDT is working to the same set of goals;
  5. Regularly revisit the plan and goals set and critically assess what is working and what is not working;
  6. Do not be afraid to change or to deviate from the plan – clearly document the reasons why, if necessary; 
  7. Update the plan if there are material changes and / or after at least 6 to 12 months, whichever is sooner; 
  8. 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;
  9. 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;
  10. 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:

  1. 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; 
  2. Finalise medico-legal evidence quickly and use this to influence the rehabilitation programme; 
  3. 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; 
  4. Be obsessive about goal setting; 
  5. Attend MDT meetings to contribute to and be aware of what is happening “on the ground”; 
  6. 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; 
  7. 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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