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In the wrong brain injury profession?

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Over 90% of case managers in the brain injury field would recommend their career to others – and more than seven in 10 say they enjoy their job.

This is well above the UK national average and on par with the satisfaction levels found among the clergy, teachers and chief executives, says Nockolds Solicitors.

It is also in stark contrast to members of the legal profession, with whom case managers work closely, finds separate research.

Over half of personal injury solicitors say they would not recommend their line of work to others, reports Exchange Chambers.

Angela Kerr (pictured) is the chair of BABICM (British Association of Brain Injury Case Managers), which has over 700 members in the UK. She is also managing director at Nottingham-based AKA Case Management.

Being able to work closely with clients, and contributing positively to many difficult, individual situations can be life-affirming for case managers, she believes.

“Case managers support their clients to overcome life changing injuries, working individually with them to access services unique to that individual’s needs. The closeness of the relationship that develops over a long period of time allows case managers to see the value they can bring, to each and every person they work with.

“Generally, positive outcomes are achieved albeit over many years. Case managers ride the rapids of a client’s recovery through the highs and lows which enables them to connect closely and build trust with them.

“Support is also offered to families, allowing them to develop an in-depth understanding of the situation and adjust to the limitations of the client’s disability.”

Kerr said these relationships develop over a long period of time – as a case manager, she is still working with clients 15 years on from appointment – allowing a deep bond to develop between all parties.

“In many ways your aim is to work yourself out of a job, and that’s fine, as the aim is for your patient to regain as much independence and where possible, for them to get to a certain level requiring minimum help.

“Your role then becomes one of adding value to their lives as they overcome the challenges they face. It’s a very rewarding professional life,” she added.

The job satisfaction findings come in a Nockolds Solicitors paper; ‘The Challenges Case Managers Face in Order to Achieve the Best Possible Outcomes for their Clients’. Meanwhile Exchange Chambers finds 56% of solicitors would not recommend a career as a personal injury/medical negligence specialist to others.

Bill Braithwaite (pictured), QC, head of Exchange Chambers, said: “The reason so few personal injury solicitors would
recommend their career to someone else is that so many of them aren’t involved in really satisfying work.

“Much personal injury litigation is low value, high volume, which may produce lawyers’ profits, but certainly doesn’t look like a worthwhile career.

“Case managers, on the other hand, are undoubtedly setting out to achieve something of real value for people who need all the help they can get.

“In my world of catastrophic brain injury, which is where case managers started – I lectured at the first public meeting of BABICM in 1996 – the first thing a good lawyer will recommend, if money is available, is the appointment of a specialist brain injury
case manager.

“If the patient is lucky enough to have a good case manager, he or she will achieve an enormous improvement in condition and prognosis, and will help to make rehabilitation and later life a much more enjoyable experience for the patient and the family. “Why wouldn’t you recommend that career to someone else?”

Rachel Davis (pictured below), a serious injury specialist at Nockolds Solicitors, said: “I expect the big difference is down to the fact that case management is about assessing a client’s needs and improving their quality of life through care and rehabilitation, while personal injury lawyers deal with the litigation side, the defendants and the costs regime – it can be very frustrating at times.”

Stresses exposed; Further research required

Both pieces of research also highlight the stresses that surface in the relationships between care managers, clients, client’s families and personal injury solicitors. Exchange Chambers’ Case Management Process Survey found 56% of claimant solicitors have sacked and replaced the case manager during the course of their client’s recovery process. Also, over three-quarters of claimant solicitors say they have experienced a situation where the family has not acted in the best interests of their seriously injured relative.
Rachel Davis

In more positive findings, 73% of solicitors say case managers always act in the best interests of the client. However, the Nockolds Solicitors survey found that 81% of case managers have experienced a situation where a claimant solicitor has ‘clearly not acted in the best interests of the client’.

It reports the biggest headache for case managers is the rate at which funding is released; while also finding that over two- thirds of case managers have been verbally abused by their client or client’s family and 13% have been physically attacked.

Braithwaite said: “The themes emerging from this research can act as a catalyst to improve the whole claims and rehabilitation process. “An open dialogue between all parties needs to start now. Serious issues need addressing. Everyone must act in the best interests of the injured person, otherwise the whole system breaks down.”

Davis concluded: “There is clearly a perception that family members, solicitors and case managers are, on occasions, not acting in the best interests of the injured person.

“Whether this is intentional or not, there is simply no excuse for not putting the injured person first. It is particularly worrying because in serious injury cases, traumatic brain injury for example, survivors are likely to have complex long-term problems affecting their personality, their relationships and their ability to lead an independent life. They are extremely vulnerable and often dependent on the support of those around them.”

Commenting on the role case managers play, Braithwaite added: “I’ve always thought that a good case manager was the key to a successful outcome for the injured person, the family, and the compensation claim.

“If you appoint a good case manager early, and that person has the ability to get to know the family, gain their trust and confidence, and help to manage the stormy voyage through recovery and rehabilitation, that person will be an invaluable contact point for the solicitor, frequently helping him or her to avoid disturbing and distressing the family.

“So much of the litigation is bound up with the injured person and the family, and the plan for life, that it seems to me to be obvious that the case manager should be involved in some part of the litigation process.”
Kerr described the research as interesting, “having triggered many questions”.

She continued: “We have spoken to Exchange Chambers in acknowledgement of its research which is adding to the conversation between professionals.

“The survey is interesting, although we would not necessarily support its findings and would like to develop a more validated hypotheses in conjunction with BABICM’s research partners at Plymouth University.”

She went on to say members of the BABICM council had not been approached to participate in the research and felt further work was needed to more accurately quantify the value of case managers.

She also explained that BABICM was looking to establish a regulatory body in conjunction with the other professional bodies involved in case management work.

Braithwaite summarised that the surveys show there is room for improvement in managing the relationship between case managers and personal injury solicitors.

He continued: “Moving forward, the starting point for me would be to ensure that personal injury lawyers are truly expert in what they do. “Since time immemorial, personal injury has been an area of work that many or most lawyers think they can manage alongside their other areas.

“I’ve found, over more than a quarter of a century, that true specialisation really works; clients appreciate the knowledge that you bring to their problem, and the whole rehabilitation and litigation process is much better managed.

“That expertise in the lawyers would naturally lead them to appreciate good case managers and recognise bad ones. That would lead to more scrutiny of what case managers do, and so raise the standards.

“Equally, good case managers would – as they do now – help the family to identify the non-specialist or inappropriate solicitor or barrister and support them in finding a good alternative.

“Developing the relationship between the two professions, and enlarging their knowledge, would inevitably improve standards.”

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News

Adventures in online conferencing

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Merryn Dowson, of rehab goal-setting platform Goal Manager, on why the virtual conference should endure long after COVID-19’s limitations are gone.

Just in case you hadn’t noticed, the last year has been a little bit different from previous years and by ‘different’ I, of course, mean ‘online’.

Conferences have been no exception. Instead of arriving at a large hall, picking up the first of the day’s seven coffees and scanning the room for the best pens on offer, we are finishing off our morning routines and setting our out-of-office email only to sit in the same chair and log in to an online virtual conference.

In March we may have hoped that these conferences would actually happen in person and that the world would quickly get back on its axis but we soon realised that this would not be the case.

We were to access it all from our computers, perched wherever we can manage in our homes.

In August, I had my first taste of this unprecedented, socially- distanced, new-normal approach to conferences by logging on to that of the American Psychological Association (APA).

For many, a previously inaccessible conference due to travel and registration fees, this year it was beamed on to my laptop at a comparatively low cost.

Not only that but, unlike at physical conferences, I did not have worry about rushing from room to room, all of my belongings slung over my arm (including a tote bag of the aforementioned pens), hoping to make it on time to the next talk I had circled in the programme.

I was able to click freely between ‘rooms’, catching the end of the talks while the kettle boiled in anticipation of the next speaker. I made notes from the comfort of my desk, no balancing a free notepad on my knee.

It was refreshing. Even if I missed a talk because I dipped back into some work (another luxury of the online conference), I was safe in the knowledge that it remains online for the rest of the year to be viewed at my leisure.

I had the privilege of seeing this from the presenter side too. In October, Dr Penny Trayner, Dr Andrew Bateman and I delivered an instructional course on best-practice goal setting in clinical practice at the annual conference of the American Congress of Rehabilitation Medicine (ACRM).

Although a complex presentation involving multiple presenters and real-world video examples, unusually, there was no sense of trepidation about everything going to plan because, like the other presenters, we had already submitted a video of the entire workshop to be broadcast right on time.

There was simply a sense of calm excitement. We were able to join the attendees in the live discussion chat, respond immediately to questions and follow the buzz on Twitter.

We were even able to ask participants to log in to Goal Manager, a cloud-based platform for facilitating the key processes of goal setting, and ‘follow along’ with a case example by filling out a patient profile using the knowledge and skills developed during the course.

This would not have been as accessible had everyone been gathered in a room, rather than sat at their computers. At the end, we hosted a live Q+A with the workshop participants and it truly had that sense of community that we all attend conferences for, connecting everyone with a shared interest live from their living rooms across the globe.

This continued throughout the conference including the poster presentations. As we well know, posters are often presented in the same room as a substantial lunch and, occasionally, complementary wine. This can make it slightly difficult to having a meaningful discussion with someone about their life’s work and the next huge contribution to neurorehabilitation.

Instead, this year’s posters were displayed on screen with a short pre-recorded narration of key themes and findings.

Dr Trayner and I presented an evaluation of real world systemic interventions run within Clinical Neuropsychology Services and we were able to give much more of an insight into the bootcamp we ran, the parenting course we delivered, and the DJ skills programme that Dr Trayner has helped to coordinate.

We were able to answer questions on these interventions both during the poster presentation and for a while afterwards on social media as people continued to revisit all of the posters long after each session. This meant that we too were able to see others’ posters and ask them questions. Everything was at our fingertips.

Of course, I describe all of this understanding its overwhelming sense of novelty.

While I have very much enjoyed learning about the latest developments in our field while wearing considerably more comfortable trousers than I would permit myself to wear in public, I would love to be in a room with the innovators, pioneers and trailblazers of neurorehabilitation, each eager to share new ideas (not forgetting the free pens – have I mentioned those?).

Networks are built at these events that go on to forge lasting collaborations and amazing developments.

Whereas academia and specialised clinical work can often exist in silos across the country, continent and world, conferences bring everyone together.

I look forward to the next event that is held in person however I do hope that not everything from this new world is discarded too quickly. This year has shown us how so many barriers to access can be broken down just by a few additions. The option for online attendance has provided entry to previously inaccessible events; the ability to re-watch talks for months afterwards has taken away the pressure of cramming hours of content into a few days while abandoning all other commitments. More people have access to the discussions and ideas shared than ever before. I hope the concessions that allow this to happen remain long after the many advantages to physical conferences resume.

In the meantime, however, I enjoy the literal home comforts that this new age of conferences brings.

As you read this article, I will have recently attended the Time For Change Online Summit by the UK Acquired Brain Injury Forum (UKABIF) with my cat on my lap and my favourite mug in hand.

At least for the time being, that is something to be enjoyed. Until I run out of pens.

www.goalmanager.co.uk

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News

Editor’s comment: Onwards and upwards in 2021

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In a former life in newspapers, it was at this time of year that the dreaded churn of annual reviews and previews came…

Ups and downs of the months gone by and ill- informed soothsaying for the year ahead served only to plug the festive news glut.

Pity the junior reporter seeking their highlights of 2020. This year feels less a series of chronological news events and more a mighty tempest that has shaken our entire reality off course.

There are some positives shining through the storm, but their longevity can barely be contemplated before we’ve worked out exactly what 2020 was all about.

There has been much talk of the great technology embrace; and telemedicine and digital health purveyors have certainly been among the winners this year.

New ways of working have emerged and now feel like they’re here to stay, with hours spent travelling to meetings replaced by a few moments positioning laptops and checking audio.

Other silverlinings of the year include fresh investment in health innovation and greater respect for key workers in all their many roles.

Perhaps the most widely felt positive of 2020, however, is its hammer-blow reminder of the importance of human interaction. Smiles hidden behind masks. Embraces blocked by glass. Conversations hindered by dodgy wifi. Each momentary expression of COVID life reminds us of what we’re missing – and hopefully what we can look forward to in 2021.

Neuro-rehab professionals have fought hard to preserve what remnants of direct human interaction they safely can in the lives of their clients.

Many facilities have moved heaven and earth to enable safe visiting of family members, and the crucial interactions with the cast of professionals helping them on the road to independence.

And this is no mere sentimentality or what corporate speak terms a ‘nice-to-have’. It is borne out of a recognition of the pivotal input of people, both family members and professionals, in the rehab journey which no amount of machinery or bandwidth can replace.

I wish all our readers the very best for 2021 – a year which is loaded with optimism and an eagerness to move on from 2020’s challenges.

As the Blairite anthem goes, things can only get better!

Andrew Mernin is editor-in-chief at NR Times. 

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Legal

Hydrotherapy pools at home – are they necessary?

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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.

Legal position

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 [2011] 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 [2015] 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 [2015] EWHC 923 (QB), the cost of a hydrotherapy pool was allowed, whereas in JR – v – Sheffield Teaching Hospitals NHS Foundation Trust [2017] 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 [2015] 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.

The claim

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.

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