By David Withers, partner at Irwin Mitchell.
In serious injury cases, the parties can often disagree about whether an injured person has a need for a hydrotherapy pool. The installation, and subsequent maintenance, costs of a hydrotherapy pool are significant. This is often one of the most contentious heads of loss that arises in a serious injury case.
In tort, the principle of “restitution in integrum” applies. This means that insofar as is possible the injured person should be put back in the position that they would have been in but for the negligence [see Livingstone – v – Rawyards Coal Co (1980) 5 App Cas 25]. This is often known as the full compensation principle.
There is no financial limit. The consequences for the Defendant of a high award of damages are not considered [see Lim Poh Choo – v – Islington Area Health Authority (1980) AC 174].
The general rule is that “he who asserts must prove” [see Robins – v – National Trust Co (1927) AC 515.
More recently, the concept of proportionality has been developed in the context of assessing damages in high value cases. For example, in Whiten – v – St George’s Healthcare NHS Trust  EWCH 2066 (QB), Swift J stated that when considering whether actual or proposed expenditure is reasonable, she had regard to proportionality as between the cost to the Defendant and the extent of the benefit which would be derived by the injured person.
In Ellison – v – University Hospitals of Morecambe Bay NHS Foundation Trust  EWHC 366 (QB), Warby J rejected the argument that an injured person should not recover the cost of a particular item if the cost was disproportionately high in comparison with the benefit achieved.
Therefore, in summary, if an injured person has a need for hydrotherapy which cannot be met in any other way realistically, the cost of a hydrotherapy pool will be allowed.
If an injured person has a need for hydrotherapy but that need can be met realistically in some other less expensive way, the cost of a hydrotherapy pool will probably not be allowed.
The costs of a hydrotherapy pool are likely to be allowed if:
- an injured person has a daily need for hydrotherapy;
- this is supported by the relevant medical experts and the physiotherapy expert;
- the injured person reports feeling much better after the sessions;
- there is a track record of engagement with hydrotherapy provision if possible, evidenced in the notes and in invoices; and
- there is evidence that alternative provision either does not exist or is completely impractical.
Although each claim is of course fact specific and bespoke to the injured person, if there is a clinical need for hydrotherapy, identified by the relevant medical expert(s) and the physiotherapist and the need arises frequently (the authors would say on at least a weekly basis), the costs associated with a hydrotherapy pool should be recovered.
There is, however, a mix of case law and no guarantees about recoverability can ever be made. For example, in Robshaw – v – United Lincolnshire Hospitals NHS Trust  EWHC 923 (QB), the cost of a hydrotherapy pool was allowed, whereas in JR – v – Sheffield Teaching Hospitals NHS Foundation Trust  EWHC 1245 (QB), the cost of a hydrotherapy pool was disallowed. In JR, the annual sum of £1,925.00 was instead allowed on the basis that the injured person would have 35 visits to a local pool each year. This equates to c.67% attendance each week.
The Judge, Davis J, found:
“The final issue in relation to accommodation is whether a hydrotherapy pool should be provided at JR’s home. It would not be reasonable or proportionate. JR likes the water and is relaxed by it. He would enjoy having his own pool. But this is a case in which I can and should take an approach similar to that which I took in HS v Lancashire Teaching Hospitals  EWHC 1376 QB, namely make provision for the cost of visiting a local hydrotherapy pool (of which there are several) on a regular basis.
In JR, the Judge was not persuaded to allow the costs of a hydrotherapy pool. This case highlights the challenges that injured people can have in recovering the cost.
An important point of good practice is to plead the claim in the alternative. In the event that the claim for a hydrotherapy pool and the associated costs fails, the injured person should be able to seek the additional cost of care, travel, aids and equipment, pool hire and insurance which will likely arise if using a local pool.
These costs can easily be quantifiable if the injured person has in fact been hiring a local pool. If there is no such past evidence, the physiotherapist will quantify these costs based upon their experience of arranging such provision for injured people.
Evidence and mitigation of loss
The starting point should be the frequent use of a hydrotherapy pool if the injured person has access to one. If the injured person is frequently travelling to use a hydrotherapy pool and is reporting benefit from doing so, the argument becomes much stronger.
There is a requirement for medical and physiotherapy evidence to underpin the importance of hydrotherapy. This could be, for example, to assist with controlling spasms, to prevent contractures or to provide cardiovascular exercise.
Defendant teams will often assert that it is unreasonable for the injured person to have a hydrotherapy pool in their garden on the basis that they can travel to one close by. The Courts can be persuaded by these arguments. The issues that need to be weighed up are as follows:
- The distance from the injured person’s home to the hydrotherapy pool;
- The availability of the hydrotherapy pool;
- The number of times per month that the injured person needs to reasonably use the hydrotherapy pool;
- The cost of arranging for the injured person to go to the hydrotherapy pool;
- Whether there are adequate changing facilities at the premises of a local pool;
- Whether there is access to a hoist in a local pool if required;
- Whether the water is at an appropriate temperature;
- Whether the pool is too noisy;
- Whether the pool can be hired.
If the injured person has a need for hydrotherapy once a month, it will be a steep uphill battle to obtain damages to install and subsequently maintain a hydrotherapy pool at home.
If a hydrotherapy pool is sought, the following expenses will need to be born in mind by the lawyers:
- The actual pool and any replacement cost;
- The capital cost, and the subsequent maintenance costs, of building or extending the property to house the pool;
- The additional equipment, running and maintenance costs such as heating and treatment of the pool.
In summary, although it is certainly possible to obtain the costs associated with a hydrotherapy pool, it is probably fair to say that it is one of the most challenging heads of loss to prove and the need for specialist lawyers and evidence is vital.
David Withers is a Partner of Irwin Mitchell LLP and a Solicitor-Advocate, leading a team specialising in serious injury cases in excess of £250,000.
Neuropsychological testing in the COVID-19 age
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:
The way ahead for rehab tech
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.
‘Wind of change’ revolutionising traditional claims process
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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