Whilst collaboration between claimant and defendant lawyers is considered the key to the success of effective rehabilitation, this case study is a reminder to take an open minded and consistent approach to rehabilitation, the odd leap of faith and to never, ever give up.

In 2013 we were approached by my client, B’s mum about a statutory will to support her son who was residing in a residential care home.

In 2011 B had sustained a very severe traumatic brain injury resulting in severe and complex neurological problems.

He was 19 years old at the time he sustained his injuries. B had a combination of complex residual physical, communicative and cognitive defects requiring full assistance with all activities of daily living. He needed support with all of his communication, simple choice making, safety, mood and anxiety monitoring.

As regards his physical difficulties, he had complex tetraparesis with weakness, spasticity, left sided ataxia and poor neck and trunk control. He had severe communication impairments and was at a high risk of self-neglect.

A compensation claim had not entered his mum’s head and she was travelling from London to Cambridgeshire twice weekly to visit B as well as holding down a job and caring for her younger daughter.

Her world had been turned upside down and she had devoted herself to B, effectively acting as his therapist in carrying out cognitive exercises with him and taking him out and about as much as ever possible with a very basic and clunky wheelchair.

The legal claim for liability was straightforward and we were able to resolve that issue very quickly. Implementing the right rehabilitation package has been more complex and was imperative to put in place to ensure that we could sustain the long term support and care needed for B.

We gained very early expert evidence in the fields of neurology, neuropsychology and care who all advised that B was a prime candidate for a trial of independent living.

As so often with these cases this position was refuted by the defendant whose experts all concluded that independent living would be the worst possible outcome for B.

He would be isolated, he would be neglected, he would have no peer support and he would be very lonely and likely to regress further.

Powerful arguments which frightened his family who felt unable to take such a huge step and wanted to try other options before embarking on a trial of independent living.

We had to listen to the family and respect that decision and ensure that they were on board with the next steps for B’s rehabilitation.

Sadly, B had various setbacks with his health including a period of intensive rehabilitation which impacted on his mood and his health regressed.

As his awareness improved B became more prone to periods of low mood, distress and lack of engagement to the detriment of his health such as refusing feeding, drinking and activities.

We sought ongoing guidance from the raft of experts in the case who all agreed that B’s mood and participation improved when he was settled into an appropriate routine.

It remained their opinion that residing in his own home with a bespoke package of care and therapy would be the best option for B.

As such we trialled several options, and worked on improvement on B’s mood. This included a move to a care home near the coast as B loved being near the sea.

In that residential setting we were able to arrange a full care package including care workers, neuropsychology, neuro occupational therapy, neuro physiotherapy and aquatic physiotherapy, speech and language therapy, postural management and music therapy.

A specialist brain injury case management company was commissioned at this point to manage this large team.

However, progress was not made, and the clinical team were unanimous in their opinion of why this was the case.

The care home was not a specialised brain injury unit, the staff rota was very inconsistent and the management struggled to work alongside outside agencies, despite the best efforts of all concerned. B had a swallow disorder which placed him at very significant risk of aspiration and he suffered frequent chest infections.

We worked closely with the care home to manage these risks but unfortunately the high turn over of staff and lack of specialist brain injury knowledge left B at risk and we had real concerns for his safety.

By this time B’s mood had improved considerably and his mum had the upmost faith in the case manager and therapy team.

As such, she agreed that it was time to trial independent living. There was a best interests meeting involving the whole family, therapy team, the deputy and support from our public law team.

We also involved the experts in the case and obtained their updated views on the independent living trial. There was unanimous agreement that it was time to trial independent living.

Once a decision had been made, we moved quickly to ensure continued support and rehabilitation for B.

We made an application to the High Court for a significant interim payment to fund this, and successfully argued for this bespoke package of rehabilitation and support to be provided in the community.

Within seven months, B was in his own home, a privately rented and adapted  bungalow with access to the seafront.

B requires a very specific 24/7 rehabilitative response which needs a dedicated 2:1 staff team, supported by a skilled multi-disciplinary team of therapists.

This was all put in place by the specialist brain injury case manager.

It was vital to put B’s mum, sister and grandparents at the heart of the process.

Mum interviewed the new case manager to reassure herself that he was the right person to make this work and she and the family were also very involved in finding the right property, carrying out the adaptations and decorating B’s new home.

For the first time in seven years the family were able to celebrate Christmas together in B’s new home in 2018.

The Defendant’s solicitor now attends the MDT meetings and can see the huge benefits of this bespoke rehabilitation package and their experts have expressed surprise with how well the package has been put together and how B’s progress has superseded their expectations.

B has made tremendous progress since the move to his own home.  He is engaging in activities such as sailability, including a sailing trip to Cowes, adapted cycling and an indoor skydive.

He is also now able to make choices using low tech aids such as talking mats and is able to play games and make choices using eye gaze technology.

We have involved our assistive technology expert with this and he was able to recommend that B trial more sophisticated switches and buzzers. B is now using switches to operate kitchen appliances and a joystick for gaming.

B has made significant progress in his neuro physiotherapy sessions such that he is now able to stand with support.

Three months after moving into his accommodation, his PEG feeding tube was removed, he is now able to use a more standard wheelchair, he now has a consistent yes/no.

Most recently he has engaged in music therapy jointly with a speech and language therapist and has been able to communicate that prior to his brain injury he was in love and wants to have another relationship.

Earlier in August 2019, B was finally able to say ‘hello’ to his family; the first time he has been able to speak to them in 8 years.

He also spoke and wished his sister happy birthday, a moment captured on film that would melt the coldest of hearts to see.

It is well evidenced that successful rehabilitation and good outcomes are best achieved by a consistent, high frequency specific approach.

B is now receiving this from his therapists and Support Workers providing 24-hour rehabilitation, thus improving every aspect of his well-being and potential.

It has now been 1 year since B moved to his own accommodation. He has exceeded all expectations in what he has achieved and is continuing to do so.

At an MDT in early December 2019, his treating neuropsychologist who has worked with B for the last 18 months described him as ‘a different man completely’.

From a legal perspective this is a great working example of the whole legal team working together.

We have a strong team of highly skilled experts in this case whose recommendations and support have allowed us in turn to recruit a highly skilled case manager, therapy team and support workers who all put B at the heart of the litigation to achieve his absolute best potential.

The evidence that we have gathered from both the experts and the therapy team on B’s gains has allowed us to successfully argue for this bespoke package of rehabilitation as we can clearly demonstrate the benefits to B and his family.

‘She was adamant that ‘there is more in here’

Brain injury case managers Mark Holloway and Jo Pendlebury on their experiences with B.

For complex neurorehabilitation to work there are a number of ingredients that are required, an absence of any one of these is a factor that can slow or destroy progress or actively cause deterioration or even death. B’s presentation was not straightforward.

We were confronted with a man whose cognition we could not even assess owing to his lack of communication and movement, we had no consistent yes/no and his swallow was actively dangerous.

Such presentations are always more concerning, how do we know we are doing the right thing? How do we measure progress or quality of life?

The neurophysiotherapist was adamant that “there is more in here”.

Her role with B was very hands on, his dyspraxia and dystonia a really complicating factor, the more he actively thought about a movement, the less he was able to do it; she was convinced however that we could do more.

It became apparent upon first meeting with the residential home manager however that this was not a shared view.

Working with units, working inside other organisations, is always challenging, even in the best of circumstances; it was simply not possible to do in this instance.

Standing, speaking, removing a PEG tube and gaining a consistent yes/no after a period of eight years sounds like a miracle.

It is nothing of the sort. It is simply the application of sound and research informed principles of rehabilitation, knowledge of neural plasticity, the integration of a wide range of therapists towards a shared goal system and, most importantly, the development of the support work team.

This group of men and women, mostly with no brain injury experience, were chosen for their willingness to learn and their openness to being an active part of a multi-disciplinary team (MDT).

The training package that was created for them was bespoke, designed by the acting case manager, the therapy team and the family.

The support team learnt the necessity of acting in complete unison, of absolute consistency of approach, even down to the exact words used when asking B to engage with physical tasks such as dressing.

Maintaining this consistency takes some management but is greatly helped by the fact that the support workers are listened to fully by the MDT and they can see, week by week, the progress made by B.

They have a “Team B” mentality, evidenced by the fact that eight of them turned up to a barbecue on their day off to help B and his family celebrate his first anniversary in his new home.

The only member of staff who could not make it wrote a poem to be read out at the event.

The upshot is that B is far more active, is measurably happier and is engaged very positively with his family, his community and his support team.

He continues to make progress with his physical abilities, his communication is, after years, now functional, his posture has improved dramatically, he has a sense of agency and control.

These changes are iterative and show no signs of slowing yet.

Far from being more isolated in the community, B, like most people, was much more isolated in a residential setting.

Provided individuals can access the required support, I do not buy the “isolated in the community” argument and none of the positive changes achieved by B could have been achieved in the residential setting because consistency cannot be achieved there, it is the consistency that is essential.

However, none of this could have happened without a supportive family and legal team who could see the possible benefits and understand the clinical reasoning behind the approach taken.

They had the courage of our convictions and have proved able to translate sound clinical reasoning into the necessary “litigation-speak” to enable this plan to come to fruition.

I often wonder how many other severely brain injured people remain, unnecessarily, in residential settings with their potential untapped and their rights to participation withheld?

Sarah Griggs is a partner at Irwin Mitchell LLP and a trustee for Headway East London.
Dr Mark Holloway and Jo Pendlebury are brain injury case managers at Headfirst LLP.

This article was first published in APIL’s PI Focus on 6th February 2020.