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Looking beyond Covid-19 – private or statutory funding for those with a serious injury

Covid-19 has led to a sharp economic downturn that may take many years to recover from. This may mean that even more difficult choices will have to be made about where our finite resources should be invested. Before Covid-19, it was well-known that our hard-working NHS and social care services were stretched due to increasing demand and competing priorities for more investment.

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Before Covid-19, it was well-known that our hard-working NHS and social care services were stretched due to increasing demand and competing priorities for more investment.

It seems like that there will be long-term health complications arising after a Covid-19 infection. There are some specialist rehabilitation programmes which have been set up.

This may further increase the additional demand currently being  put on the NHS.

Our NHS and social care teams will have to prioritise the services that they invest their finite resources in.

High on the priority list for the NHS will be acute medicine, such as the Accident and Emergency Departments.

Sitting alongside free healthcare provision from the NHS including medical and nursing care is the right of the injured person to seek damages in a compensation civil legal claim for the provision of health, nursing, and social  care on a private basis where there had been a breach of the legal duty of care.

There is no obligation to rely upon state healthcare provision even if it can be shown that such provision is readily available and meets the injured person’s needs. However, the injured person will need to prove that it is reasonable to award damages on that basis because he or she will in fact rely upon private provision.

This position has statutory authority under Section 2(4) of the Law Reform (Personal Injuries) Act 1948.

A concern for a claimant lawyer in serious injury cases is the status of provision which is relying upon statutory funding, including NHS treatment.

In the case of Peters – v – East Midlands Strategic Health Authority [2009] EWCA Civ 145, the Court of Appeal held that an injured person pursuing a personal injury claim who sought damages including future care and accommodation was entitled to claim the cost of that future care from the tortfeasor (i.e. the person or entity who had been negligent) and was entitled to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority to provide care and accommodation.

In essence, the Court of Appeal held that it was unreasonable for the injured person to carry a lifetime risk that statutory funding may change or be withdrawn in the future. There are clearly strong public policy reasons for reaching this legal position.

An argument often faced by injured people is that, even though an injured person is entitled to choose private funding instead of statutory funding, the injured person will not in fact spend the money on a private basis.

The injured person has the burden of proving that they will in fact spend money on a private basis. For injured people, the real risk of not being eligible for statutory funding in the future is four -fold:

  1. The eligibility criteria for statutory funding and resource budgets will change generally at some point in the future; and / or
  2. The eligibility criteria for statutory funding will change to be stricter about accessing statutory funding upon receipt of a personal injury award; and / or
  3. There is a risk that assessments under the Care Act 2014 will take into account some of the injured person’s award when assessing entitlement to statutory funding. Where the Court has specifically identified a payment or part of any payment to deal with the cost of providing any care, this could be taken into account for charging purposes. In addition, a Periodical Payment Order (PPO) for care is likely to be treated as income and taken into account pursuant to Regulation 16 (5) of the Care and Suppor (Charging  an Assessmen o Resources)  Regulations   2014. Although Schedule 1 contains an exception for PPO being taken into account, there is an exclusion for sums which are “intended and used for any item which was not specified in the personal budget but was specified in the care and support plan or support plan”. The result of this is likely to be that the full or a significant element of the PPO will be taken into account by the local authority and in almost all cases will result in the client being ineligible for local authority services.
  4. Discretionary decision making by statutory bodies can and often does result in some of the needs of the individual being left unmet. Competing priorities for limited public budgets can result in a refusal to meet certain healthcare, social care, mental health and other needs in individual cases. Certain NHS treatments are already refused on the grounds of limited budgets and the need to ration. 

Where private funding can be secured through a legal claim it is much safer to assume that statutory funding will not be available in the future and to ensure that the injured person’s reasonable needs are met through private funding.

This ensures that the injured person receives “full compensation” and is put back in the position they would have been in prior to their injury as far as is possible.

It may be appropriate to obtain evidence from NHS and local authorities in many serious injury legal cases to ensure the legal and factual positions are clear.

There are now even more acute public policy and moral issues.

Why should an injured person, who can access private funding, put unnecessary pressure on public services which are likely to be very stretched?

It would be more advantageous for the public services to be made available to those who do not have access to private funds obtained to meet their individual needs.

If an individual who is insured has caused serious injury, the insurers can, having spread the cost across all policyholders, make an award to ensure that the injured person’s reasonable needs are met.

Limited public resources, after Covid-19, means that funding priorities within public services will come back into sharp focus.

Seriously injured people, who have the ability to secure private funds to meet their needs through their legitimate legal claims, play their part in ensuring already stretched public budgets are available to reach more people.

In doing so those who have been seriously injured are not only exercising their own individual human rights, they are relieving the burden of meeting everyone’s needs.

Yogi Amin is a partner at Irwin Mitchell LLP and is the National Head of the Public Law Team. He has a particular interest in community care law and has led many cases which have changed or clarified the law in this area.

David Withers is a partner and solicitor-advocate at Irwin Mitchell LLP, leading a team specialising in neuro-trauma and other serious injuries such as amputations or significant poly-trauma. 

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News

Osteoarthritis: breaking the cycle

Medical technology company Ottobock shares its expertise on approaches to the condition.

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Sponsored feature

Why is Cartilage Important?

Bones that come in contact with other bones are covered by cartilage at their contact points. Cartilage does not have blood vessels – it is supplied with nutrients through movement of the joint. That’s why regular exercise is so important!

Cartilage ensures that the joint surfaces move against each other in the most efficient way and with little friction. It absorbs shock, cushioning the joint, and distributes the forces acting on the joint.

If cartilage is damaged and its gliding properties are affected, it can no longer serve its purpose and the joints range of movement can become limited.

Typical Progression of Osteoarthritis

When osteoarthritis of the knee develops due to joint malalignment, an accident, advancing age, obesity or excessive strain, the damaged cartilage is no longer able to properly fulfil its function.

This results in pain and re­duced mobility. The affected patient instinctively assumes a relieving posture to reduce strain on the knee.

However, this often leads to new prob­lems in other places, such as the hip, and reduces the supply of nutrients to the cartilage, for which movement is required – sparking a vicious circle.

The cartilage develops cracks and begins to break down. At the same time, the bone thickens at the site of the damage.

When the cartilage layer is completely worn away, the affected bones come into direct contact and rub against each other causing joint pain and inflammation.

The thickest joint cartilage is located behind the kneecap (patella). This is an area of high stress. Osteoarthritis occurring in this area is known as patellafemoral osteoarthritis

Signs and Symptoms

There are several common symptoms that signal knee osteoarthritis. They can occur individually or together. However, with the initial onset, you may not notice any of these symptoms

When symptoms appear they usually occur in the following order:

  • Cracking in the joint
  • Pain during load bearing activities, such as carrying a heavy object
  • Pain during every day activities, such as climbing the stairs
  • Reduced mobility
  • Swelling and inflammation

Non-Invasive Treatments

Joint specific exercises: with regular exercise mobility can be maintained and muscle strengthened, ensuring the cartilage is supplied with the nutrients it needs.

Temperature: with acute inflammation, cold relieves pain and reduces swelling. Heat relaxes the muscles and tendons and increases the flow of nutrients. Heat may only be applied when the joint is not inflamed.

Creams: various over the counter products are available at your local pharmacy including gels and creams that can help relieve pain.

Orthopaedic devices (braces and supports): these are applied externally to the knee, reducing pain and improving mobility.

Lifestyle: living a healthy lifestyle can help to combat osteoarthritis. A healthy diet and an active lifestyle reduces the chance of obesity, putting less stress and strain through the knee joints.

Orthotic Options

An orthotic fitting is a key component in the treatment of osteoarthritis. It can provide the following:

  • Pain relief
  • Support daily activities
  • Support during activities that affect the joint, whether at work or during sports

Did you know?

An osteoarthritis patient takes an average of around 1,200 tablets a year to manage pain. But this can lead to damage to the stomach, bowel and liver.

An orthosis from the Agilium line is therefore a good alternative. It’s worth-while for anyone with knee osteoarthritis to test the effectiveness of the orthoses themselves.

The Agilium Line

The braces in our Agilium line are designed specifically to target the symptoms of osteoarthritis of the knee.

Each works in a different way to address the various characteristics of osteoarthritis of the knee. At the same time, we placed great emphasis on their comfort and suitability for daily use.

The Agilium Freestep, the Agilium Reactive and the Agilium Softfit are used to treat unicompartmental osteoarthritis of the knee.

The Agilium Patella is used for patients with patellofemoral arthritis.

The Agilium Freestep is used to treat OA, although it is not applied directly to the knee. Instead is worn on the foot, right inside the shoe! For targeted relieve, it alters the load-line of the knee – the point where the body weight impacts the cartilage.

The Agilium Softfit is a pull on knee brace with a textile base and single upright that stabilises and relieves the knee using a three point force system to offload the affected compartment (side) of the knee.

The Agilium Reactive also uses a three point force system to offload the affected compartment (side) of the knee. However, the innovative closure system in the upper calf provides comfort while sitting without compromising the stable position when standing.

The Agilium Patella combines a textile structure and stabilising component with a dynamic re-alignment mechanism enabling it to maintain the central alignment of the knee cap, reducing pressure behind the knee cap.

Find the appropriate brace with Agilium Select.

Visit our website or go to ottobock.com/agilium-select

If you would like to know more about any of these products please get in touch via orthoticsuk@ottobock.com or visit our website for more information: www.ottobock.co.uk

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Masturbation linked to stroke in medical case study

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Doctors in Japan have reported how masturbation sparked a bleed on the brain of a 51-year-old man; as published in the Journal of Stroke and Cerebrovascular Diseases.

Doctors at the Nagoya City University Graduate School of Medical Sciences in Japan explained that the man attended hospital after orgasming, with the sudden onset of a searing headache that lasted for around a minute. This was followed by an intense bout of vomiting.

A CT scan showed an acute subarachnoid hemorrhage in the left hemisphere.

The researchers note that masturbation causes an increase in heart rate, blood pressure, and noradrenaline plasma levels – which are likely to contribute to the risk of splitting a blood vessel in the brain and result in a hemorrhagic stroke.

The man was treated with stents and coiling, two techniques used to bolster the blood vessel and maintain blood flow to the brain, and he went on to make a full recovery.

The study authors say that they found just two other cases of masturbation-linked strokes in other scientific literature.

The Japanese man survived and was discharged after nearly two weeks in hospital in an “excellent” condition.

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Engineers develop ultrasound patch to monitor blood flow

Breakthrough could help to better predict stroke and other cardiovascular conditions earlier.

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Engineers at the University of California San Diego have developed an ultrasound patch that can be worn on the skin. It monitors the blood flow through major arteries and veins deep within the body.

It is hoped that it could help clinicians diagnose cardiovascular conditions faster. It could also help to diagnose blockages in the arteries which could lead to strokes or heart attacks.

The ultrasound patch continuously monitors blood flow as well as blood pressure and heart function in real-time. Assessing how much blood flows through a patient’s blood vessels could help diagnose blood clots, heart valve problems and poor circulation in the limbs.

For many patients, blood flow is not measured during a regular visit to their doctors. It is usually assessed after a patient shows signs of cardiovascular problems.

The patch can be worn on the neck or chest and can measure cardiovascular signals up to 14 centimetres inside the body non invasively with high accuracy.

How the patch works

The patch is made of a thin, flexible polymer that sticks to the skin.

There is an array of millimetre-sized ultrasound transducers on the patch known as an ultrasound phased array.

These are individually controlled by a computer. Another feature is that the ultrasound beam can be tilted at different angles to areas in the body that are not directly below the patch.

It can operate in two modes. In one, all of the transducers can be synched together to transmit ultrasound waves which produce a high-intensity beam that focuses on one spot.

This can be up to 14cm deep in the body.

A wearable ultrasound patch on the skin

The other mode allows the transducers to be programmed to transmit out of sync producing beams at different angles.

In being able to manipulate the beams, it gives the device multiple capacities for monitoring central organs as well as blood flow with high resolution.

When the electricity flows through the transducers, they vibrate while emitting ultrasound waves that travel through the skin into the body.

When they penetrate a blood vessel, they encounter the movement of red blood cells flowing inside. The cell movement changes how the waves are transmitted back to the patch.

This change is recorded by the patch and creates a visual recording of the blood flow. It can also be used to create moving images of the heart’s walls.

The benefits:

Sheng Xu, professor of nanoengineering at the UC San Diego Jacobs School of Engineering said:

“This type of wearable device can give you a more comprehensive, more accurate picture of what’s going on in deep tissues and critical organs like the heart and the brain, all from the surface of the skin.”

Xu added: “This is a first in the field of wearables because existing wearable sensors typically only monitor areas right below them.

“If you want to sense signals at a different position, you have to move the sensor to that location. With this patch, we can probe areas that are wider than the device’s footprint. This can open up a lot of opportunities.”

The researchers say that the easy to use patch could allow patients to wear the patch and monitor the results themselves. It doesn’t depend on a technician to read the results

The next stage

The patch is not yet ready for clinical use. The researchers are currently working on a way to make the electronics wireless as it currently needs a power source and benchtop machine.

Image credit: Nature Biomedical Engineering

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