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Dealing with hearings remotely

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COVID-19 has undoubtedly had a huge impact on court proceedings – but the wheels of justice spin on and cases are continuing to take place.

Subsequent restrictions, however, have presented numerous challenges to all involved parties; and new and innovative workarounds are being found.

One specific challenge is the drafting and filing of witness statements remotely, which must be done with consideration of a change to ‘statement of truth’ rules from 6 April 2020.

The statement of truth is a declaration that the facts stated on the document are true and that: “I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

The practice direction issued on 6 April this year has added that the ‘process and circumstances’ in which witness statements or other documented accounts are taken must be set out.

This is highly relevant in the present pandemic when we are not generally taking face-to-face statements.

If a statement is given over the phone, for example, the document should ideally reference this, with a reason set out as “because of government guidance cautioning against face-to-face meetings”.

This is an important step to bear in mind when you are drafting documents for the court.

Also, whilst it may be tempting in current conditions to sign statements on behalf of clients or other parties, beware of the risks.

Proceedings for contempt of court can not only be brought against anyone who makes a false statement, but also against anyone signing it on behalf of somebody else. I firmly believe that a statement should always be signed by the person giving it wherever possible.

Another development as a result of COVID-19 is the rise of the ‘e-signing’ of documents. Without face-to-face signing, you might think that email, print, sign and resend might be the best way. But, as I’ve found in recent weeks, not everybody has a scanner and printers are not always reliable.

Documents can be e-signed – but are they valid? Although I had to trawl back several years to find any precedent to whether an e-signature is indeed valid, my view is that they are.

With all the current challenges and a possible rise in satellite litigation cases if people have try to take advantage of the present pandemic, I cannot see the court being critical of somebody e-signing a document. And don’t forget that the explanation of ‘process and circumstance’ of the document should justify why an e-signature is necessary.

There are various e-signing apps available, including Adobe Sign, which tend to be very simple to use.

Serving documents is also a challenge, with courts and offices largely closed right now. Service can take place by email, but only by prior agreement.

So if you were going to send a document to somebody, don’t assume it can be done by email unless you have this prior agreement in place.

It’s also a matter of good practice to state that you will also accept service by email, but only on a case-by-case basis.

Of course, password protecting documents is also vital, especially given the GDPR rules now governing our use of data. This can be done by saving documents as PDFs which can then be e-signed.

Meanwhile, collaboration among all parties involved in cases is proving absolutely key at the moment.

The Association of Personal Injury Lawyers (APIL) and the Forum of Insurance Lawyers (FOIL) have reached a best practice agreement. (https://www.apil.org.uk/files/apil-foil-best-practice-covid-19.pdf)

This set of standard practices aims to help injured claimants and defendants during the disruption of the pandemic.

Efficient communications, collaboration and flexibilities such as accepting service and evidence by email, and use of video conferencing, are among the various points mentioned in the agreement.

There has also been a very helpful amendment to the Civil Procedure Rules. Parties can now agree to extend most time limits set by the court by up to 56 days, up from the 28 days originally prescribed by the Rules.

However, opportunists beware because when all of this is over I think the court will take a very dim view of parties that have unreasonably refused to collaborate or agree extensions of time.

You do not want to be the person trying to justify to a district judge why you tried to take advantage of the present pandemic. In other words, beware of seeking unnecessary advantage and collaborate where possible.

It remains ‘business as usual’, to some extent, and the courts are trying to run hearings as frequently as possible; so when you are preparing for court hearings don’t assume that they will be adjourned.

Prepare for them as you would for any court hearing but also accept that things might move a bit more slowly, so be patient.

It may take longer to prepare for court hearings, and to get documents signed and served.  Make sure good time management is at the top of your agenda.

Once you have the hearing coming up in your diary, how best do you prepare?

In Manchester, where I work, the designated civil judge recently gave guidance to all parties involved in litigation.

An order was given which has now been rolled out and replicated across the country in what’s known as a ‘COVID-19 order’.

This very prescriptive guidance from the court sets out exactly how the hearing should be done, whether it will be by telephone or video link, and any other special measures parties need to be aware of.

On some of the orders I’ve seen, the court states that it expects cooperation between the parties. Look very closely at your order and make sure you comply to it.

I think it is inevitable that we are going to work in a very different way after the pandemic.

Do all hearings really have to be in person? Do some of them even need to take place at all? Could more be agreed by consent, thus helping to prevent the court system from becoming overwhelmed with cases post-coronavirus?

Another possible development will be a streamlining of the information provided in the electronic bundles supplied to the court.

COVID-19 orders are currently restricting these bundles to 100 pages and so careful thought is being given to what really needs to be in there and what can be removed. Lawyers being more succinct and concise can only be a positive change in the long run.

During the hearings themselves, the disruptive impact of technology failings should be minimised. Check the technology works in advance and, if an advocate loses their connection for example, the judge should be notified immediately.

It may seem obvious, but don’t forget that microphones and cameras may still be on when you have finished talking. Don’t get caught out pulling faces or muttering.

Although you may be sitting in your living room, remember that you are actually in court. Wearing business attire and doing your best to avoid any distracting background noise are of course advisable. Also, staring at a screen for hours at a time and maintaining concentration can be extremely tiring, so be sure to walk around and have drinks and snacks in any breaks you have.

Another step I’ve found useful is to set up separate lines of communication.  Why not set up a WhatsApp group with your barrister or witnesses to communicate with them before, during and after the hearing? (Whilst being careful to avoid posting into the wrong group!)

It can be a hindrance at times, but technology right now is playing a crucial role in the delivery of justice and should be embraced.

We’re also learning new skills and finding more efficient ways of working, many of which could remain in place long after the current crisis.

Richard Biggs is a senior associate solicitor specialising in serious personal injury cases. He is based in Irwin Mitchell’s Manchester office.

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Legal

Neuropsychological testing in the COVID-19 age

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NR Times reports from the side-lines of an Irwin Mitchell event which explores the case for tele-neuropsychology.

COVID-19 has presented major challenges to those delivering neuropsychological assessments.

Perhaps in the early days of the pandemic, deferring assessments may have been an initial consideration. But as it became clear that the crisis would be around for months, rather than weeks, other solutions were quickly sought.

Such assessments are crucial in ensuring the seriously injured are given a level playing field in their journey to secure compensation and support for care.

Speaking at the virtual event, Matt Brown, partner in the serious injury team at Irwin Mitchell’s Manchester office, introduces the topic, asking delegates: “Just how important is it that the neuropsychological expert meets the client in person to conduct the testing? Does it matter that the expert is not in the room?”

Also, he continues, “how will clients take to the new method of testing?”

Neuropsychological opinions can be pivotal to the outcome of cases, with huge implications in terms of claims for loss of earnings, requirement for care and support; and the question over whether an individual has the ability to manage their own finances.

In a criminal case, the results may help determine the connection between a brain injury and a criminal act, and the potential need for rehabilitation.

At the beginning of the first COVID-19 lockdown, three options in relation to assessing and reporting psychoneurological impact in legal cases were set out in an article by Dr Freedman:

1. Delay all reports and testing until the situation changed
2. Complete reports based on interviews and medical records (with no testing)
3. Report based on video interviews with remote psychological tests, and review medical records

Dr Nick Priestley, consultant neuropsychologist, advocates option three – but should this continue post-pandemic?

Speaking at the Irwin Mitchell event, he says: “It’s not a question of whether I think it should continue. It will continue as it is a modality of assessment which is valid and revealing with many advantages and very few disadvantages.

“This has been around for almost two decades in some shape or form, and when looking at the evidence there are two very good international peer-reviewed journals that deal with tele assessments in medicine and other clinical fields (The Journal of telemedicine and telecare, the Journal of Cyberpsychology, Behaviour and Social Networking).

“These have been publishing important articles for quite a long time, but in terms of the research – while this has been going on for 10 to 15 years previously, it has accelerated and it has certainly started to come together.”

In the webinar, Dr Nick Priestley answers questions posed by Brian Cummins, barrister from Old Square Chambers in London.

Brian Cummins (BC): When it comes to the devices used to carry out these assessments, what is the best methodology?

Dr Nick Priestley (NP): “There are a number of markers that should be observed and both Pearson’s assessment and that of other authorities – not least the division of British Neuropsychology. [It] has set out certain criteria that must be observed, for example mobile phones are not acceptable to use. There has to be a check on the image size of the respondent’s equipment, there has to be 25cm screen measured diagonally in order that test materials don’t become distorted or fall below a certain proportion.

“This screen size restriction relates to testing as some of the visually presented materials cannot validly be used if they are presented below a certain size or proportion. There has been a great deal of research on the validity of verbal tests, however less objective research on visually presented measures and so, for instance, the Wechsler Memory Scale Four, the sub tests have not been fully validated for tele-neuropsychological use, although they are supported in certain circumstances.

“In terms of software, clinicians need to give very careful thought to the platform they sign up for, but it’s important that the platform used is a professional subscription. When it comes to encryption, in some circumstances, it is an important feature. However when visual materials are presented and copies are made, it’s extremely important that those are destroyed in camera view by the client.

“The recording of an assessment is set out in the consent form and pre-examination interview, but it is unacceptable to record an interview or take copies of the standardised tests.”

BC: While easily managed through physical assessments, are there any rules or restrictions on who can be in the room while a tele-assessment is being conducted?

NP: “In the pre-assessment, it is often the case that a third party is present to help set things up and get things working. However, when the main assessment is in progress, it’s very important there is no one else in the room, which is explained and made clear during the preparation stages. Having a third party in the room during the assessment itself invalidates and complicates the examination.”

BC: Is the ability of a claimant to receive the email and dealt with those instructions, set up the equipment and participate in that pre-assessment, part of the assessment itself?

NP: “It certainly provides valuable information. There are also instances where an individual who may respond in a disorganised or frontal way. Even at that stage, you are gaining pointers, even minor fragments of clinical information, before you get onto the pre-assessment. These are things I would investigate in the assessment and examination in particular detail.

“Neuropsychologists are behavioural scientists, experts in brain behaviour relationships, and a medico-legal report that relies entirely on neuropsychological testing is a weak report as no single test score should ever be used to make a clinical decision.

“Even under the best possible testing circumstances, it contributes to a decision, but the tests used are more proxies to describe underlying abilities, states and functions, and there is no test in any discipline that is capable of explaining with 100 per cent accuracy any underlying trait or peculiarity.

“The emphasis must be on the basis of all evidence and assessment, not just neuropsychological testing but also behavioural analysis.”

BC: Is this virtual method of assessment suitable for all of your clients and if not, when would it not be suitable?

NP: “No, it isn’t suitable for all. For example, those that have complex mental health problems, have language or communication difficulties, or have complex neuro developmental conditions are not suitable for tele-neuropsychological assessment.”

BC: Is it your view that, in the cases for which this is suitable, video is just as effective as face to face or is it still limited? In other words, can you still build up that rapport – what do you do if a client starts crying, for example?

NP: “This is a particularly interesting area, and I think it has been an urban myth that has been developed that somehow tele or remote assessments cannot generate empathy. When you look at the evidence, there is virtually none to suggest that remote assessments are in some way cold or heartless, or that you cannot generate empathy.

“The authorities for this go back a long time. A paper by Kirkwood in 2000 found no significant difference at all when objective measurement was made between face to face and virtual assessment of ‘customer satisfaction’.

“In another paper in 2010, even the clients that initially said they were ‘not keen’ and would prefer face to face, showed an equivalent outcome and did not complain about the modality of the service delivery. In fact, it was just the opposite and they were quite surprised, given their initial scepticism, that it worked just as well.”

BC: How is visual stimuli to be presented in the context of a tele-assessment?

NP: “The logistics of sending things through the post raises so many complications and is something I personally don’t do at all.

“Holding things up to a camera in order that the client can see it, screen sharing techniques and screen mirroring are all approved of by Pearson. and all observe any copyright issues as they are not being reproduced.”

BC: Due to the pandemic and people being stuck at home, could the subjects be displaying signs such as apathy or disinhibition as a matter of the pandemic rather than a result of any illness or injury?

NP: “I think certainly as far as issues of mood are concerned that is likely to be the case. However I don’t think there is any evidence to suggest that lockdown, or more repressive social circumstances, provoke disinhibition or perseveration. Issues to do with empathy and social judgement are still going to be evident within a family setting.”

BC: Are there any disadvantages to doing the assessment within the family setting of the home?

NP: “Yes, and I have found that there’s a very obvious one in that all individuals who have sustained a brain injury all suffer from fatigue problems of some kind or another, so fatigue ability is a ubiquitous problem.

“If you are seeing someone in their own home, the burden of travel to a city centre or unknown location has been removed, and in their own home, behaviours often become less guarded with the number of signs and signals both during the interview phase of the assessment and also during the testing phase become more apparent if you are observant enough.

“It is important to remember that behaviour is environment-specific. When an individual is in your consulting room and everything is ordered, secure and disciplined, it doesn’t easily lead itself as an environment to allowing the individual to show themselves in their least favourable form. There is a degree of constraint on their behaviour in a consulting room that is not going to be there when you are a guest in their home.”

Watch the event in full, including a Q&A session with Dr Nick Priestley, below:

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Legal

The way ahead for rehab tech

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NR Times invited three experts for a virtual discussion on the changing role of technology in rehab after brain injury.

Neuro-rehab specialists Anna Wilkinson and Rebecca Bancroft, of physiotherapy provider More Rehab, are joined by Louise Jenkins, partner and serious injury specialist at Irwin Mitchell.

Anna Wilkinson (AW): Using tech gives us a different way of rehabilitating someone; it keeps patients attentive, keeps them concentrated and keeps them motivated to reach their goals.
The key to neuroplasticity is the amount of repetition. This is where the technology plays a vital role.

As therapists, it is extremely hard and laborious to achieve the amount of repetition you can achieve with technology. Technology and hands on work should go together –
for example, therapists may work on alignment in a therapy session to help the patient achieve a normal movement pattern.

Once they have established that, we can put them on the tech to repeat and practice.

Rebecca Bancroft (RB): What’s also very important with the technology is the quality of repetition and the feedback we receive. We could give somebody an exercise sheet and tell them to go home and do one hundred repetitions of lifting their arm in the air, but this can be mind-numbing, especially when they get to day three or four.

What’s more, we don’t know if they’re doing the movements correctly. Technology gives us the control of feedback; it alerts both the patient and the therapist if they’re getting the movement wrong so we can intervene and keep them on track.

AW: Our clients tend to be very excited about using the tech because it means they are getting more practice within a week than they would with traditional therapy. This additional practice and repetition results in quicker and better recovery which is the ultimate aim.

I think a big component of it is related to their interest and their engagement; technology really helps make it fun for them. Some of the equipment has games installed, some of it has a feedback function.

These features make it possible for them to track their progress and makes the therapy much more interactive.

RB: Some people get a little nervous around tech, but for other people it really makes them tick. It all depends on the kind of exposure they’ve had to technology before.
A client that’s very in tune with using an iPad or an iPhone tends to love the technology we use.

There are other clients that potentially aren’t as familiar with technology so tend to be more hesitant.

The tech may or may not be for them, but we always try it out and see whether they like it.

AW: Deciding which tech we use is about gathering knowledge of what’s out there, as well as getting to know the clients and what they want and what motivates them.

Clients are motivated by very different things. For example, people have very different attitudes towards technology; some love it whereas others find it quite frightening.

Louise Jenkins (LJ): At Irwin Mitchell, we’re committed to understanding the latest options available and the full range of technology that is out there, whatever the cost might be.

This is why we make sure we’re connecting with companies like More Rehab very closely so we can find the right solutions for our clients and give them rehab choices including access to

the best available technology and equipment to facilitate their recovery.

Some of the new equipment coming onto the market can be incredibly expensive, but within the legal process, we are entitled to claim what is reasonably required to restore someone’s quality of life to how it was prior to their injury.

We aim to build these innovative items of equipment into our legal claims in order to keep pushing the legal process to keep pace with developments in therapy developments.

AW: Louise is right that the technology can be very expensive, and it takes a good lawyer to justify it and demonstrate the fact that it will improve the patient’s life. The justification process is very much interwoven.

As professional therapists we can explain how the technology is going to make the patient more independent, give them better movement, which will then give them better function, improve quality of life and ultimately may reduce other costs.

It’s not just about giving them the best treatment that they can get, it’s about achieving the best outcome. From there, legal experts can explain why we’re using the technology and how we balance up the costs.

LJ: For people who have legal claims, we can receive interim payments to trial new technology.

This gives us the evidence that shows the benefits it has brought to the client, which helps to justify the cost.

Gone are the days where you simply put in a claim for 10 to 20 sessions of physio. This does have its place in many cases but we also look more broadly and holistically at a client’s needs. We think about what we can do to really give them the best chance of recovery, to restore the best function possible and the highest levels of independence.

AW: If you take the Indego, our ‘walking robot’, as an example, we can achieve more walking in 10 sessions with the walking robot than 20 to 30 sessions with a physio in a lot of cases.

This is because if you’re trying to walk somebody with two pairs of hands, it’s heavy, so you might only get two metres in one session.

With the robot, they can be doing hundreds or thousands of steps. So, although technology might look more expensive as an upfront cost, in the long term it could end up less expensive.

RB: The Indego Exoskeleton is a fantastic piece of kit. It makes it possible to walk somebody who is completely paralysed or has an incomplete spinal injury or a mild to severe brain injury.

We can use it as part of a therapy session to improve gait patterning.

You can adjust the settings to give the patient what they need and allow them to use the function they have. This is called ‘variable assist’, which is the real beauty of the technology. You can tweak it little-by-little as the patient progresses.

AW: We also have the AlterG, which is a really interesting concept; it’s an anti-gravity treadmill. Essentially, the patient’s lower body is zipped into a pressurised chamber which surrounds the treadmill and eliminates gravity.

This allows us to get people walking and running much sooner than if they were holding their own weight.

Particularly if pain is a factor. Both the Indego and the AlterG allow us to make adaptations to people so that they can achieve better gait for a longer period of time than they would do on ‘dry land’.

BR: The anti-gravity treadmill is great for managing neuropathic pain and it’s also very good for improving balance because the patient is de-weighted and completely safe.

Our latest piece of kit is called ICone. It’s a totally interactive computer game-orientated arm robot for upper limb rehab.

The client sits with their forearm supported and holds onto a cone. They can then interact with games that can either be passive, active, assisted or resisted. This incorporates the trunk and the whole shoulder complex.

We also have the GripAble device which is a smart mobile device for assessment and training of hand functions.

AW: We’re inspired by the approach to neuro-rehab in other countries. In the UK, the evidence shows many acute centres barely look at arm rehabilitation in the hospital; it’s all about getting people functional so they can be at home.

Whereas in countries like Italy, they send their neuro clients home with these technologies and the outcomes that come from that are much better.

A lot of our clients don’t have the tech at home and come to clinic to use it more regularly, currently due to the associated costs, but it is something that we’d like to look forward to doing in the future which we’re very excited about.

Louise Jenkins is a partner and heads up the specialist serious injury team at Irwin Mitchell’s Sheffield office. Anna Wilkinson is managing director of More Rehab, while Rebecca Bancroft is clinical manager of More Rehab.

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Legal

‘Wind of change’ revolutionising traditional claims process

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Exchange Chambers and Calvert Reconnections have lead the new research

A “wind of change” in personal injury litigation is enabling the traditional way specialist claims into brain injuries and other major cases are handled to be revolutionised, new research has revealed.

The COVID-19 pandemic has forced major change in the way claims are handled, with much of it being done remotely out of necessity amidst ongoing restrictions on travel and meetings.

However, new research has revealed that as a result of this, litigation has become more efficient, with remote case management conferences, joint settlement meetings and low value trials all set to become the ‘new normal’ post pandemic.

The findings, from barristers Exchange Chambers and brain injury rehabilitation centre Calvert Reconnections, have been welcomed by neuro-specialist legal professionals, who believe the move towards technology brings new efficiencies and collaboration within the claim process.

“A wind of change is blowing through the personal injury sector. Personally, I hope it gets a lot stronger,” says Bill Braithwaite QC, Head of Exchange Chambers and Trustee at the Lake District Calvert Trust.

More than half of personal injury lawyers nationally said that video technology and best practice guidelines for mutual co-operation have made the process more efficient in recent months. Only 19 per cent believed the opposite.

In further findings from the research, 85 per cent of lawyers believe case management conferences should take place remotely as standard.

The majority – 58 per cent – also believe that joint settlement meetings should take place remotely as industry standard going forward, alongside low value trials, which 60 per cent of lawyers believe should be handled remotely.

However, while the consensus was that a technology-led approach was one that should be adopted in many cases, equally there was agreement to the contrary in others.

In high value trials, 97 per cent of personal injury lawyers believe these must continue to take place in person, with 62 per cent also stating that mediations must not take place remotely in general.

Bill Braithwaite QC continues: “Traditionally, we have approached too many areas of our work in an old-fashioned, inefficient way.

“Joint Settlement Meetings are just one example. Over the last few months, we have undertaken hundreds of settlement meetings within Chambers by video.

“They work. Yes, they are different from meetings in person but for negotiation it is usually enough simply to talk.

“I’m also encouraged by the move towards remote case management conferences. They are quicker, simpler, cheaper and at least as efficient.”

However, the leading legal expert believes the industry does need to go further in its willingness to adopt change.

“I’m less encouraged by the reluctance to embrace remote mediations,” he adds.

“In my view, it shows the entrenched views of the profession.  Mediation on video is straightforward and effective and can be managed in just the same way as it can in person.”

Specialist neurotrauma lawyer Kate Nicklin, from Sintons, echoes the positive impact the use of technology has had on the process.

“Personal injury lawyers have truly and readily adapted to the changes brought by the pandemic,” says Kate, who handles complex claims from across the UK.

“My personal experience is that remote working has created more time for collaborative working between the parties delivering mutually beneficial outcomes, including earlier payment of interim payments and the provision of information at an earlier stage.

“Furthermore, there has been an increase in regular client contact; rather than spending time travelling, time is spent with clients and the professionals who work with them.”

However, Kate believes that there must always be a place for face-to-face interaction.

“Some changes will be long lasting, I hope. However, I have missed meeting clients face-to-face and having a cup of tea with them,” she adds.

“Building trusting relationships so that we can seek to understand an individual’s life-changing circumstances, cannot be achieved fully through technology.”

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