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Judgement ruling could change young people’s welfare decisions

A judge has clarified the law surrounding how decisions affecting the future of young people with learning difficulties are made.



A judge has clarified the law surrounding how decisions affecting the future of young people with learning difficulties are made.

The parents of three young people with learning disabilities launched legal action in the Court of Protection to challenge the current welfare deputyship law, which relates to how decisions are taken on behalf of adults over 18.

Under the current law, the parents are responsible for their children up until they become adults, at which point the Mental Capacity Act states that decisions on their behalf should be taken collectively by everyone interested in their welfare, and the family should only be appointed as welfare deputies in ‘the most difficult cases’. 

The families from London, Brighton and Windsor instructed specialist public law and human rights lawyers at Irwin Mitchell to bring a test case.

During a court hearing in the Court of Protection in March, lawyers argued that the Code of Practice which guides the courts’ interpretation of the Mental Capacity Act should be amended. 

The Honourable Mr Justice Hayden, Vice President of the Court of Protection, then handed down a judgment ruling that there should not be a starting presumption against the appointment of a welfare deputy and that the “wording of the Code of Practice… requires to be revisited.”

Alex Rook, a partner at Irwin Mitchell who represented the families, says: “This challenge was brought because our clients and many other parents believed that the law, which stated that they would only be appointed as deputies in ‘the most difficult cases,’ needed to be changed. 

“All they want is to be able to help their children have the best chance in life but felt this was not happening because of how the law was interpreted.

“Our clients appreciate that the court will need to consider every application on its merits, but welcome today’s ruling. They hope that now the judge has clarified that the code needs to be redrafted, making it clear that there is no presumption against them being welfare deputies, it will become more common for family members to be appointed as welfare deputies. 

“Although the judge has suggested that in the majority of cases a welfare deputy will not be needed, our experience and that of our clients is that in many cases it would indeed be in the young adult’s best interests for their family to be able to continue to make decisions in their loved one’s best judgement interests where they are unable to make the decision themselves.” 

During the case it was argued that families were ignored and decisions were being taken without them being consulted. The families said that, frequently, these decisions were taken by social services departments who did not know their children and that funding was a more important factor in such decisions than their children’s best interests.

At present, parents are only appointed as ‘welfare deputy’ status in rare and complex cases. 

Among the parents behind the case was Rosa Monckton, 65, a disability rights campaigner whose daughter Domenica, 24, has Down’s syndrome.

Also involved was Caroline Hopton who has two sons with autism including Oliver, who is non-verbal and has sensory and eating problems. Because of his needs he lived in residential care when he was younger, returning home in September 2017 after he was abused by the carers who were supposed to be supporting him.

A member of staff was found guilty in June 2019 of “ill-treatment or wilful neglect by a care worker, contrary to Section 20(1) of the Criminal Justice and Courts Act 2015,” and is awaiting sentencing. 

Meanwhile, Lucy and Simon Mottram’s son Oscar, aged 24, has autism and suffers from severe learning difficulties, epilepsy and anaphylaxis. They joined the campaign after the family faced huge difficulties when Oscar’s care moved from children to adult services within the local authority.  

Lucy said: “All our efforts go into ensuring that Oscar feels valued and receives the support he needs to flourish. Our experience is that while others involved in his care may be well intentioned, they do not know him and so cannot make informed decisions as to what is best for him. 

“Today’s announcement is a step in the right direction to ensuring correct decisions are made when it comes to the futures of all young people with disabilities.” 

Victoria Butler-Cole QC of 39 Essex Chambers acted for the three families in this case.

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‘Tidal wave’ of rehab needs post-pandemic, case managers predict



The UK faces a tidal wave” of brain injury rehab need post COVID-19, with a huge increase in reliance on private and charitable sectors due to stretched NHS resources, new research shows.

The extent of the expected impact on resources over the coming months is laid bare in newly-released research, which reveals 89 per cent of case managers across the UK expect a deluge in demand for rehabilitation resources.

With NHS capacity already being under strain, 91 per cent of the 152 case managers nationally who took part in the research, conducted by Calvert Reconnections, also predicted a significant increase in demand for private and charity resources.

Referrals to residential-based rehabilitation programmes have dropped significantly – only 10 per cent were currently referring patients – but the majority, 71 per cent, expected to recommence doing so within the next three months.

BABICM British Association of Brain Injury & Complex Case Management. Representing & advancing the brain injury complex case management profession in the UK & Beyond. Membership, Training & Events, Research & Policy.

Virtual means of communication will also remain important as the country emerges from the pandemic, according to case managers, which have proved such a vital tool in maintaining communication with patients during lockdown.

Many traditional practices have been forced to change as a result of the pandemic, with the use of video, telephone and other virtual means of communication coming to the fore – 84 per cent of case managers believed this was an essential” means of ensuring client rehab and mental health needs were met.

Additionally, outdoor activities are also predicted to grow in prevalence as a result of ongoing social distancing and restrictions on indoor meetings, with 86 per cent of case managers anticipating an increase in such activities as part of brain injury rehabilitation programmes.

Of those surveyed, 92 per cent felt they currently had clients who could benefit from such an alternative approach which included outdoor activities as part of their rehab.

Calvert Reconnections carried out its research among case managers during August, at a time when restrictions began to be lifted in some parts of the country, before being re-imposed.

Speaking to NR Times, Sarah Green, centre manager at Calvert Reconnections, part of the Lake District Calvert Trust, said the research shows that traditional rehabilitation models are changing, with the support of case managers in achieving that. 

During the pandemic, it is a great time to highlight the importance of maintaining strong service delivery that is safe and effective in the lived outcomes for the individuals,” she said. 

The pandemic does not have to stop outstanding rehabilitation in its tracks. Through strategic planning, organisational oversight and up-to-date knowledge, the delivery of a needs-led pathway can still be maintained. 

We are in unprecedented times and services are having to improvise, adapt and overcome. But let’s not forget about the importance of rehabilitation. Life has stopped and changed for us all, but most of all for the vulnerable individuals in our society that still need continuity, support and progression.”

Outdoor rehabilitation, such as that being offered at the Calvert Reconnections centre in Keswick – which has won praise for its groundbreaking focus on a range of outdoor activities for patients with acquired brain injuries – is now being given renewed focus as a result of the pandemic, added Sarah.

The unique nature of outdoor education as an integral part of our pathway plays to our advantage during COVID-19,” she said.

The great outdoors still offers a safe place for rehabilitation to continue. We have on-site facilities such as the stables and equine therapy, which offer not only vocational support to individuals, but also the emotional connection that is of upmost importance for wellbeing.

We feel that our assets and connections to the great outdoors as the fundamental principle to our model means that lived outcomes will be able to be maintained at a time when life has literally been locked down.” 


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Traumatic brain injury vs psychological injury



By Alice Hall, serious injury solicitor at Irwin Mitchell.

Neurocognitive deficits caused by traumatic brain injury (TBI) can be one of the more challenging injuries to prove and as a Claimant solicitor; it is my client who bears the burden of proving every aspect of their injuries and resultant losses.

I have seen that it is often the case that mild TBIs are just one of many injuries, whilst other injuries may present as far more life-threatening, particularly during the emergency stage of treatment.

Sometimes, therefore, mild TBIs are either not fully diagnosed at the outset, or they are noted but are not treated as a priority in comparison with other more seriously recognised injuries at the time, which may be more obvious and more pressing.

Claimants are often then discharged from hospital with their physical injuries having been treated and follow up arranged for Occupational Therapy input and Physiotherapy, but with no neurological or neuropsychological investigation or follow-up.

This is then often further complicated by the subtle ways a mild TBI can manifest itself. For example, they may cause issues such as dizziness, fatigue, tinnitus, loss of smell or taste, difficulty concentrating, multi-tasking or changes in mood or personality.

Sometimes, these issues are picked up only by family members or friends; with the symptoms being so subtle that they go unnoticed by the injured party themselves, particularly when they are focused on recovery from their more obvious physical injuries.

I have had Claimants approach me following a serious injury and it is only at that point through my discussions with them that the possibility of a TBI is first explored, and that can be something which can be quite shocking and upsetting for an injured person to first consider.

In proving such an injury, expert evidence, particularly neurological and neuropsychological, will obviously be key.

The difficulty is often that, in the absence of objective evidence of a TBI shown for example by way of day-of-injury imaging, expert evidence must be unequivocal in determining the presence of any TBI or otherwise, which of course is not always possible for a variety of reasons.

However, in recent years, there have been reports regarding seemingly exciting new technologies that have been developed with the aim of gathering objective evidence regarding the presence of TBI.

For example, there has been research into the use of ‘Diffusion Tensor Magnetic Resonance Imaging (DR-MRI)’ – which evaluates water movement within the brain to locate brain cells that are not functioning properly – which has been shown to provide objective evidence of TBI.

There have been other developments for example, specific blood tests which may measure plasma-based metabolomic biomarkers, which have been shown to indicate elevations in metabolites in individuals who have suffered TBI when compared to non-injured control participants.

Matters can be further complicated in litigation if, once expert evidence is obtained, the waters become muddied with suggestions of there being overlying psychological components to what is suspected as being a TBI, or potentially experts being of the opinion that the symptoms complained of are entirely psychologically based.

Of course, when Claimants have been through trauma, it is not uncommon that they will present with some sort of psychological injury in addition to their other injuries.

The difference – whether the presenting symptoms are caused by TBI or some psychological component – is essential in many respects. First and foremost, the treatment that the Claimant will be recommended to address any neurocognitive deficits that they present with, must be recommended in line with its underlying cause.

Failing this, a Claimant risks undergoing potentially lengthy, costly and challenging rehabilitation which may turn out to be wholly inappropriate to their condition.

Secondly, the quantification of damages is also influenced heavily by the nature of the injury, both in terms of the PSLA (pain, suffering and loss of amenity) element of the claim, which refers to the sum of compensation that a Claimant is awarded to compensate them for having suffered the injury itself.

This element of any award is guided by a set of guidelines which include brackets of awards for every injury and, within that, a range of severity.

Whether such neurocognitive deficits are presenting as a result of TBI, or psychological injury, or a combination of both, will determine which section of those guidelines, and which bracket, a Claimant will be assessed under, hence influencing the ultimate award that they receive.

Further, thought must also be given in any personal injury claim regarding what other losses a Claimant has, or will, suffer as a result of their injuries e.g. loss of earnings, care, case management, rehabilitation, aids, equipment.

Again, the nature of the injury will permeate all other aspects of the quantification of the claim, particularly if, depending on the nature of the injury, the experts consider that the prognosis is significantly different in either scenario.

The danger in this situation would be that a Claimant would be at risk of either being significantly under or over compensated, which would of course be entirely inappropriate.

Whether such deficits are caused by TBI or psychological elements will potentially have a significant impact on a Claimant’s long-term prognosis, and therefore the compensation to ensure that they are adequately compensated to reflect whatever their future needs look like.

For example, it is widely accepted that there is an increased risk of various serious long-term medical conditions, including epilepsy and dementia, in people who have suffered TBI.

One recent study concluded that there was more than a two-fold increase in the risk of dementia in those with TBI, even in those who did not suffer any documented loss of consciousness at the point of injury.

Of course, the costs involved if either of these conditions materialise are potentially huge. This is often addressed in litigation by way of provisional damages. Provisional damages allow greater security for Claimants if there is a chance in the future that may develop some disease or serious deterioration in their condition.

This provides the Claimant with an option to return to the Court to seek a further sum of compensation if they do indeed deteriorate significantly after the original claim has been settled.

This is in contrast to the normal course whereby a personal injury claim is settled in “full and final” terms, meaning that there would be no scope to re-open a case and pursue additional compensation should the injured person’s injuries or condition significantly deteriorate beyond what had originally been envisaged.




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When your life gets saved, you know you’re on this earth to help



SameYou is only one year old, but the charity is making real changes to bran injury recovery. Jenny and Emilia Clarke share their ambitions for the charity, and the motivations behind them.

Last year, Game of Thrones actor Emilia Clarke wrote in a New Yorker essay that, while filming Game of Thrones, she had two subarachnoid haemorrhages, a life-threatening type of stroke caused by bleeding into the space surrounding the brain.

She was 24 when the first one struck almost 10 years ago. Around the time the essay was published, Emilia’s mum Jenny Clarke had a subarachnoid haemorrhage too.

Emilia’s essay was published in conjunction with the launch of SameYou in May 2019, a charity Emilia has set up with Jenny in response to seeing a lack of brain injury recovery, with the aim to help improve patients’ and carers’ experience, and remove stigma and misunderstanding surrounding brain injuries.

When Emilia told her own story last year, she said, “I told you mine, now you tell me yours”. The charity received thousands of replies. Now, Jenny has hired someone to work full time, dedicated to responding to people getting in touch about their experiences.

“When you’ve had a brain injury, it’s a very difficult thing to do to talk about it,” Jenny, chief executive of Same You, tells NR Times. “It’s about hearing stories and giving people the sense they’re not alone.

“One of the problems with brain injury is that you can feel very isolated, and it feels very difficult to believe you can be the same as you were before, when inside, you’re the same.”

Jenny, who was previously vice-president of marketing for a global management consultancy, helped care for her daughter when she recovered, so has had experience as both a patient and a carer. Both of their lived experiences, Jenny says, puts them at an advantage.

“Every clinician I’ve spoken to believes this is right approach,” Jenny says.

Jenny argues there also needs to be more funding put into recovery.

“When we talk about health, everyone understands the value of research and how that feeds into treatment. Recovery is the third element,” Jenny says.

“But provision for recovery is inadequate. It’s a postcode lottery whether you get the care because brain injury is so complex and there are limited options on the NHS.

“There’s strong evidence, and it’s our belief, that with increased, high intensity treatment you can make huge progress, which isn’t always the message doctors tell patients after they’ve had a brain injury.”

Same You is also looking at finding ways to fund innovations that help to improve the treatment of patients in brain recovery. While the charity is young, it is already making real-world changes.

“At the moment we’re showing we’re taking action and that we’re a credible, long-term, viable resource for people. We have a few programmes underway where we’re making a difference with action,” Jenny says.

“We’ve got an opportunity to do things a bit differently. We’re a nimble, agile organisation, we’re able to create a fundraiser in a few days.”

For example, when coronavirus hit, Jenny and Emilia put a call out to help fund a virtual rehab clinic for people with brain injury, in collaboration with Queen’s Square National Hospital in London. Halfway through the programme, 131 so far have benefitted from the programme.

The charity is also working with the Spaulding Rehab Hospital in Boston, US, funding a two-year programme of pilot treatments. Researchers there are looking at what happens in young adults and how resilience can play a part in their recovery.

Another project the charity has just launched is the Nightingale Challenge Global Solutions initiative, involving almost 30,000 nurses and midwives, which aims to aims to empower and equip them in brain injury care, starting on the 22 July until the 23 September.

The programme, Emilia said in a recent Nursing Now webinar about the programme, will challenge nurses to look at the whole area of rehab.

“You get a huge amount of attention when you’re in hospital, rightly so. But not enough is being done for patients and their families after a brain injury between leaving hospital and getting back to society,” Emilia said on the webinar.

After her first brain haemorrhage, Emilia says she couldn’t wait to leave hospital and go home.

“But in the car leaving hospital I panicked because I’d been in such a safe space in hospital,” she says.

“Leaving hospital feels very unsafe, it’s an alien environment.”

“When you’ve broken a limb, you have something to show the world what’s wrong with you. When you look perfectly normal you feel doubly anxious, you need to be doubly cautious about the situations you put yourself in. It suddenly felt like home was the most dangerous place in the world.

“I was incredibly lucky. I has a specialist nurse who I could call when I had another headache, or didn’t know when I could wash my hair, or felt dizzy or sick. She was on the other end of the phone and could talk me through it.”

Nurses also ‘translated’ the jargon doctors told her, a lot of which she says she didn’t understand.

“It’s only when we feel safe we have confidence to feel better,” she said.

The Nightingale initiative will encourage nurses to look closely at brain injury patients and identify any gaps, and come up with solutions together.

One example of a solution, Emilia says, could be finding places on a ward where nurses can take a patient and their family to explain what has happened and what they can expect to happen next.

“Our personal experience is that patients have had such a shock they don’t always take it in the first or second time. It takes repetition before what has happened to them sinks in,” she said.

“Ask patients how they’re feeling and listen to what they have to say, because when you’re on a ward as a patient and someone asks you if you’re okay you say you’re fine. You’re on display on a ward. Take the patient to a quieter place and ask them honestly how they’re feeling. This can have a huge impact.”

Jenny and Emilia are encouraging nurses to speak to patients who’ve been discharged and ask them about their experience of rehab, and what they think is missing, as well as medical professionals across disciplines.

“It’s important for nurses to amplify hope. A great number of people can improve a patients’ quality of life by the dedication they put into it, help empower patients to take control back and take over their recovery when they get out of hospital,” Jenny said.

While Jenny wrote in the New Yorker essay that she has made a full recovery, she says she’s dedicated to improving care and treatment for others in the position she was.

“I knew I wanted to try and give back in some way,” she said. “When your life gets saved twice, you know you’re on this earth to help.”

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