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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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Legal

Video: everyday vs specialist tech

Assistive technology Expert Andy Fell joins Irwin Mitchell law firm for an in-depth exploration of the very latest independence-boosting devices and platforms.

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Technology plays a day to day role in our lives and mobile phones, tablets, Alexa and Siri are common place.

Imagine the impact on your life if you were no longer able to interact with a touch screen or keyboard or give voice commands….

In this virtual event, Assistive Technology expert Andy Fell gives practical demonstrations of how everyday technology and specialist technology can be used to help give independence to those who need it most and why specialist technology may be needed.

During the event hosted by Lauren Haas, personal injury solicitor at Irwin Mitchell LLP, Andy goes into detail about what apps and gadgets are on the market, how everyday technology can be optimised such as the Amazon Alexa, and answered a number of questions ranging from touch screen sensitivity to smart watch reminders.

Case managers, ancillary medical professionals, as well as interested members in healthcare, social care, parents and clients may find this recording useful, as well as anyone caring for, working or living with people such as dementia sufferers or sufferers of other conditions which restrict their mobility.

Andy Fell is an independent disability and assistive technology (AT) consultant with almost twenty years’ experience working with all disabilities and age groups.

He is a qualified Rehabilitation Officer for the Visually Impaired and, since qualification, has lectured on the use of assistive technology and role of AT in the life of disabled people.

He has worked with a wide range of charitable organisations including British Dyslexia Association, was head of assistive technology for Guide Dogs for the Blind and National Disability Advisor for the Royal Yacht Association.

He has also worked for blue chip companies, the emergency services and various government departments including Department for Work and Pensions.

Andy is a fellow of the Royal Society of Arts, chairman and founding trustee of the Wetwheels Foundation and sat on the British Dyslexia Association – Workplace Assessors Professional Review Panel.

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The relationship between music and running

By Daniel Thomas, joint managing director of Chroma Therapies.

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By Daniel Thomas, joint managing director of Chroma Therapies

With its ability to produce new neural pathways, Neurologic Music Therapy is able to encourage movement, co-ordination, improve speech and language, and improve the ability to read/feel emotions, reactions and more, in people living with catastrophic injuries.

This is because music automatically connects to the brain. And this automaticity is what makes music so powerful.

Music also has to ability to push your training capabilities farther and faster especially in running.

This is why a running playlist is the ideal accompaniment to any runner.

Each songs tempo stimulates the brain, evoking a running response of either a faster pace or a steady rhythm depending on what you want to achieve.

For a faster pace, a good running playlist should contain songs with 150-180bpm.

Unfortunately, with not many songs out there using that speed (unless you enjoy rock, metal or speed garage for running) than the other option is to choose songs with 75-90bpm, as this tempo is perfect for a steady rhythm and maximising efficiency.

Do you recall an earlier blog where we discussed cadence and stride length using NMT for preventing falls in the elderly?

We suggested music with a high bpm count promotes movement, good cadence and walking speed, so songs like Nancy Sinatra’s ‘These Boots are Made for Walkin’, which has 85 bpm, is ideal.

BPM strongly correlates to step cadence.

Rhythmic Auditory Stimulation (RAS) is an important aspect of NMT.

Predictable rhythmic structure allows the sensori-motor system to move in sync with the beat.

This is, in essence, why music is important to runners, as it has the ability to communicate with the brain in order to help maintain a steady pace or increase speed depending on the bpm.

When it comes to mental wellbeing, we will always discuss music’s ability to improve mental wellbeing, and its effect can also be attributed to runners.

Music’s ability to improve stride, cadence and style, to produce better and better runs, and enable runners to achieve personal goals also have a positive effect upon mental wellbeing.

A sense of accomplishment. And with the right playlist, runners can end each run on a high.

We also like to discuss how NMT is more effective when it is personalised to that individual.

The same can be said in the case of a runner. A playlist that includes, not only songs with the ideal tempo for them, but also have some personal meaning, have the greatest positive effect upon runners.

The more enjoyable the run, the less fatigue is experienced. This may be due to the fact that music is able to interfere with the parts of the brain that communicate fatigue, essentially causing a distraction, so less fatigue is experienced.

For runners, the relationship between music and running can be seen to be just as effective and important as the relationship between music and recovering from a brain injury.

Its ability to improve running capability, speed, motivation, and promote mental wellbeing is what makes the difference between a run just being a run and reaching ‘Flow State’ – the mental state where the runner is in the moment of running – no distractions, and the run becomes…euphoric.

Read more: Running in the name of mental health

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Concussion could lead to depression, ADHD, dementia and Parkinson’s – study

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A new study has revealed a link between concussion and the risk of being diagnosed with attention-deficit hyperactivity disorder, mood and anxiety disorders, dementia and Parkinson’s disease later in life.

Despite ‘clinical recovery’ from concussion typically lasting one week, a team of researchers from the University of Manitoba suspected there may be longer term effects. They used 25 years of population-based health data between 1990 and 2015, involving almost 50,000 cases of concussion from people living in Manitoba, Canada.

They found that concussion was associated with an increased risk of being diagnosed with attention-deficit hyperactivity disorder (ADHD), mood and anxiety disorders (MADs), dementia and Parkinson’s disease.

After analysing the population data, they found that concussion was linked to an increased risk of diagnosis of ADHD, dementia and Parkinson’s.

Women who had a concussion were at greater risk of developing ADHD and MADs, but there were no differences between men and women for the risk of developing dementia or Parkinson’s.

Multiple concussions didn’t affect the risk of later being diagnosed with ADHD, but a second concussion increased the risk of dementia, while exposure to more than three concussions increased the risk of being diagnosed with MADs.

While previous studies have found links between concussion and ADHD, dementia, Parkinson’s and MADs, most have relied on patients self-reporting their symptoms, the researchers write.

However, this study can only show an association, not cause and effect.

The mechanism behind this increased risk is unknown, but the researchers state it’s possible that the pathways of some biomarkers that are dysregulated in ADHD, Mads, dementia and Parkinson’s, namely, cortisol, are also affected after a concussion.

The paper, published in the BMJ journal, states that future research is needed to explore the relationships between concussion and ADHD, MADs, dementia and Parkinson’s in other populations.

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