Irwin Mitchell’s Angela Batchelor on changes which come into force this week affecting offenders with neurological impairment, mental disorders or developmental disorders.
From tomorrow (1st October 2020) practitioners welcome new guidelines for sentencing adult offenders who, at the time of their offence and / or sentencing, suffer from any neurological impairment, mental disorder or developmental disorder.
While the prevalence of such conditions amongst offenders has been identified as an issue for some time, the previous lack of any formal guidance around sentencing left a void in the sentencing process in which such complex conditions were often ignored or dismissed.
The guidelines seek to redress this lacuna and are reflective of the broader efforts across society to understand and de-stigmatise such conditions.
The guidelines stipulate that “the fact that an offender has an impairment or disorder should always be considered by the court, but will not always have an effect on sentencing”.
Each case will be fact specific and an individualistic approach to sentencing is encouraged, taking into account the wide range of disorders and the varying levels of impairment between individuals.
A formal diagnosis is not always required and sentencers are urged to consider common issues, including: fluctuation of conditions, the fact that some impairments or disorders are not easily recognisable, the interplay of different conditions and the fact that the offender may be unaware or unwilling to accept that they have such an impairment or disorder.
These issues resonate loudly in relation to ABI / TBI cases, where complex cognitive, psychological, emotional and behavioural effects of a brain injury can be difficult to detect, are often hidden, but have devastating and permanent effects on an individual.
The progressive tone within the guidelines continues by highlighting the importance of taking into account relevant cultural, ethnicity and gender considerations – together with the potential stigmas that may be attached to each.
The culpability of an offender is to be considered in the first instance in accordance with offence-specific guidelines. Consideration should then be given to whether that culpability is reduced by reason of the impairment or disorder.
Culpability “will only be reduced if there is sufficient connection between the offender’s impairment or disorder and the offending behaviour”.
The question of what amounts to a “sufficient connection” will no doubt be one that comes before Courts many times in the future.
It is for the sentencer to make an assessment of culpability taking into account all relevant information, but they are not bound to follow any expert opinion that is obtained during this process if there are compelling reasons not to do so.
The sentencer will need to consider whether the impairment or condition effected the offender’s ability to exercise appropriate judgement, make rational choices or understand the nature and consequences of their actions.
The impact of any disinhibition, medication (including “self-medication”) and the offender’s insight (or lack thereof) are all relevant to such considerations.
Where the impairment or disorder is linked to the offence, then it may be relevant to the decision about the type of sentence imposed, the length of any custodial sentence, or the assessment of whether an offender is considered dangerous.
For less serious offences, the Courts can impose a range of sentences including: criminals fines, community sentences, mental health treatment requirements or drug and alcohol programs.
The guidelines say that in cases where a custodial sentence is to be considered, “the impairment or disorder may make a custodial sentence disproportionate to achieving the aims of sentencing, and that the public are better protected and crime reduced by a rehabilitative approach”.
It is the role of the sentencer to ensure that the offenders themselves are able to understand their sentence and the consequences of re-offending or breach of its’ terms.
It is yet to be seen whether there will be any discernible effects on sentencing behaviour as a result of these guidelines, but taking this step towards ensuring greater fairness and transparency for all involved in the criminal justice system is clearly one in the right direction.
Angela Batchelor is a senior associate at Irwin Mitchell LLP.
The importance of goal setting
Many of us will be re-assessing our life goals as part of our resolutions as we enter the New Year. For some, the “health kick” will last a few days, for others, slightly longer. On a personal level, we have all heard the rhetoric about setting realistic and achievable goals for ourselves, and being SMART about it. In serious injury litigation, the importance of goal setting is not just limited to the New Year, write David Withers and Kate Venn of Irwin Mitchell LLP.
The case of Kristopher Loughlin (By his mother and litigation friend Barbara Anne Kennedy, formerly Loughlin) v (1) Kenneth Dal Singh (2) Pama & Co Ltd (3) Churchill  EWHC 1641 (QB) is now over 6 years old. Despite being decided so long ago, few cases have had such a long term influence and such a significant impact on serious injury litigation as Loughlin, and the effects of the case continue to be ever relevant for those representing clients in this area.
In Loughlin, the Claimant sustained a traumatic brain injury in October 2002 when he was a 12 year old child. By the time the claim was set down for trial to assess the damages to which he was entitled, the Claimant was a young man. Liability had been established and therefore the value of the claim was the only aspect still in dispute by the date of trial.
A comprehensive rehabilitation and care package was set up to benefit the Claimant using interim funds obtained via the claim. The package included very high level professional support and various therapies, and was overseen by a case manager.
In December 2008, the appointed case manager was aware that the Claimant had poor sleep hygiene. He was going to sleep and waking up at differing times. This had a negative effect on his ability to function. This, in turn, was said to have increased the Claimant’s need for care; he had a 24 / 7 care package.
In 2012, a sleep hygiene regime was set up. The Claimant made rapid progress once the regime had been instituted.
The expert neuropsychologists instructed by the parties agreed that the goals set by the Claimant’s multi-disciplinary team were not clearly specified or challenging enough. They raised concerns that the support provision was fostering dependence on support rather than promoting the Claimant’s independence.
At trial, the care expert instructed by the Claimant gave evidence about the complexities involved in running a care and therapy programme for a young adult like the Claimant.
Taking into account all the evidence presented, the Court disallowed 20% of the past case management and past care costs sought by the Claimant, which represented a very substantial sum of money indeed.
In its Judgment, the Court noted:
“.. in this case the contemporary documentary evidence did not show, first, that the care team recognised, until the problem had become chronic and practically overwhelming, the fundamental importance of addressing the need for a specific and effective sleep hygiene regime, and secondly, that the team took determined steps to implement such a regime, a task that I readily acknowledge would have encountered resistance and would have required skilful and tactful management”.
“… the Defendant’s primary submission is that I should disallow the costs of past care and management, on the basis that the standard of such care and management fell significantly below that which could reasonably be expected to meet the exigencies of the Claimant’s condition and circumstances. However….. to deprive a Claimant of all compensation for incurring such costs, whatever the shortcoming in their delivery and whatever the benefit received, would be wholly disproportionate and unjust. However, it does seem to me that principle requires that I should take due account of the fact …that the standard of the care and case management services did, in an important respect, fall significantly below the standard that could reasonably have been expected. ….. It appears to me, balancing these factors, that a reduction of 20 per cent in the charges actually claimed would be fair and proportionate”.
Once he had found that there were shortcomings in the approach to the Claimant’s rehabilitation and care, the Judge essentially had two options:
- Allow the costs of past case management and past care in any event on the basis that the Claimant had reasonably incurred them, even if the service had been sub-optimal; or
- Reduce or disallow the costs of past case management and past care on the basis that they had not been reasonably incurred by the Claimant.
The Court opted for option 2.
In personal injury litigation, the Claimant is entitled to “full compensation”. In Heil – v – Rankin  2 W.L.R 1173, the Court summarised the principle as follows:
“The aim of an award of damages for personal injury is to provide compensation. The principle is that ‘full compensation’ should be provided. This principle of full compensation applies to pecuniary and non-pecuniary damage alike. Compensation must remain fair, reasonable and just. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as reasonable”.
The Loughlin Judgment was challenged by some in the industry as being unduly punitive on the Claimant, in that he failed to recover compensation for services that he had been provided with and had paid for. He had, after all, followed the advice of professionals and incurred a financial liability as a result. It was not his fault that those appointed to oversee his rehabilitation and care failed to set proper goals and/or act expediently upon identified problem areas such as the sleep hygiene issue. However, on the opposite side of the coin, it would have been equally unfair to the Defendant to expect them to pay for services which were found to have had a detrimental impact upon the Claimant’s progress and independence.
In any event, Loughlin served as a warning to those representing Claimants in these cases. Simply because past costs have been incurred, it does not mean they will automatically be recoverable at trial. The burden of proof is on the Claimant to show that costs have been reasonably incurred. Evidence of the benefit to the Claimant of services such as therapy and case management must be obtained via records, witness statements and expert evidence, in order to ensure a Loughlin type argument is not successfully raised by a Defendant.
Avoiding a Loughlin situation is not just about the presentation of evidence at Trial. For all those who are involved in these cases, the principle must be borne in mind at all stages, right from the outset when a case manager or therapist is first appointed. There are a number of key principles and practices that can be adhered to in order to mitigate the risks associated with Loughlin.
For treating therapists and case managers, the best practice approach is:
- Identify the short to medium term needs of the Claimant;
- Triage those needs by considering what input would make the biggest difference;
- Clearly document the plan and goals set and, if necessary, include details as to why certain needs are not being prioritised at a particular stage;
- Execute the plan and ensure everybody involved in the MDT is working to the same set of goals;
- Regularly revisit the plan and goals set and critically assess what is working and what is not working;
- Do not be afraid to change or to deviate from the plan – clearly document the reasons why, if necessary;
- Update the plan if there are material changes and / or after at least 6 to 12 months, whichever is sooner;
- Ask the lawyers whether there is any relevant medico-legal evidence you can have access to or have a discussion about to ensure that what you are doing will be endorsed by the experts in the claim;
- Accept that the experts are the individuals whose views matter in the context of the litigation. A good expert should accept that there is a range of service provision and a certain degree of flexibility as to how such a service might reasonably be provided. However, if an expert makes a recommendation, it is worth implementing that recommendation. The Court will be heavily influenced by what an expert’s view is in most circumstances, particularly if it is an expert instructed by the Claimant to comment on expenditure by a Claimant. If recommendations made cannot be followed for good reason, speak to the lawyer and explain why, and carefully document the same;
- At all stages, ensure detailed notes are kept of decisions relating to goal setting and planning. If called to give evidence at trial about why a particular decision was made, it is far easier to refer to contemporaneous notes than to try and rationalise a particular decision on the stand several years later.
For lawyers, the best practice approach is:
- Appoint an experienced and trusted case manager. When considering the appointment, give due thought to the likely complexity of the case, the issues which will arise and the robustness of your chosen case manager should Loughlin arguments be made;
- Finalise medico-legal evidence quickly and use this to influence the rehabilitation programme;
- Flag any concerns raised by the Defendant or the medico-legal experts with the case manager at the earliest opportunity. Even if there is good reason why a particular report cannot be finalised and disclosed in its entirety, there is no reason why any comments or suggestions made by the expert which are relevant to the case manager cannot be extracted and provided to him/her sooner;
- Be obsessive about goal setting;
- Attend MDT meetings to contribute to and be aware of what is happening “on the ground”;
- Take witness statements from the case manager and the therapists about the goals and about any issues raised by the Defendant or the medico-legal experts;
- Be selective about which medico-legal experts you go to and when. It can become very difficult if you have “too many chefs in the kitchen” with differing opinions on what is reasonably required by the Claimant.
It is worth remembering: goal setting is for life in serious injury litigation, not just for New Year! They can also be exciting and varied. For example, the authors represent a young man with an acquired brain injury. His personal goals are to get married, buy an albino peacock and become an Olympic bob sleigher!
The team at Irwin Mitchell are very happy to provide training to healthcare professionals and therapists about the integration of rehabilitation with the litigation process. To enquire about any training sessions, please e-mail David.Withers@IrwinMitchell.com or Kate.Venn@IrwinMitchell.com.
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.
Kate Venn is a senior solicitor at Irwin Mitchell LLP, specialising in representing adults and young people with severe acquired brain injuries.
Neuropsychological testing in the COVID-19 age
NR Times reports from the side-lines of an Irwin Mitchell event which explores the case for tele-neuropsychology.
COVID-19 has presented major challenges to those delivering neuropsychological assessments.
Perhaps in the early days of the pandemic, deferring assessments may have been an initial consideration. But as it became clear that the crisis would be around for months, rather than weeks, other solutions were quickly sought.
Such assessments are crucial in ensuring the seriously injured are given a level playing field in their journey to secure compensation and support for care.
Speaking at the virtual event, Matt Brown, partner in the serious injury team at Irwin Mitchell’s Manchester office, introduces the topic, asking delegates: “Just how important is it that the neuropsychological expert meets the client in person to conduct the testing? Does it matter that the expert is not in the room?”
Also, he continues, “how will clients take to the new method of testing?”
Neuropsychological opinions can be pivotal to the outcome of cases, with huge implications in terms of claims for loss of earnings, requirement for care and support; and the question over whether an individual has the ability to manage their own finances.
In a criminal case, the results may help determine the connection between a brain injury and a criminal act, and the potential need for rehabilitation.
At the beginning of the first COVID-19 lockdown, three options in relation to assessing and reporting psychoneurological impact in legal cases were set out in an article by Dr Freedman:
1. Delay all reports and testing until the situation changed
2. Complete reports based on interviews and medical records (with no testing)
3. Report based on video interviews with remote psychological tests, and review medical records
Dr Nick Priestley, consultant neuropsychologist, advocates option three – but should this continue post-pandemic?
Speaking at the Irwin Mitchell event, he says: “It’s not a question of whether I think it should continue. It will continue as it is a modality of assessment which is valid and revealing with many advantages and very few disadvantages.
“This has been around for almost two decades in some shape or form, and when looking at the evidence there are two very good international peer-reviewed journals that deal with tele assessments in medicine and other clinical fields (The Journal of telemedicine and telecare, the Journal of Cyberpsychology, Behaviour and Social Networking).
“These have been publishing important articles for quite a long time, but in terms of the research – while this has been going on for 10 to 15 years previously, it has accelerated and it has certainly started to come together.”
In the webinar, Dr Nick Priestley answers questions posed by Brian Cummins, barrister from Old Square Chambers in London.
Brian Cummins (BC): When it comes to the devices used to carry out these assessments, what is the best methodology?
Dr Nick Priestley (NP): “There are a number of markers that should be observed and both Pearson’s assessment and that of other authorities – not least the division of British Neuropsychology. [It] has set out certain criteria that must be observed, for example mobile phones are not acceptable to use. There has to be a check on the image size of the respondent’s equipment, there has to be 25cm screen measured diagonally in order that test materials don’t become distorted or fall below a certain proportion.
“This screen size restriction relates to testing as some of the visually presented materials cannot validly be used if they are presented below a certain size or proportion. There has been a great deal of research on the validity of verbal tests, however less objective research on visually presented measures and so, for instance, the Wechsler Memory Scale Four, the sub tests have not been fully validated for tele-neuropsychological use, although they are supported in certain circumstances.
“In terms of software, clinicians need to give very careful thought to the platform they sign up for, but it’s important that the platform used is a professional subscription. When it comes to encryption, in some circumstances, it is an important feature. However when visual materials are presented and copies are made, it’s extremely important that those are destroyed in camera view by the client.
“The recording of an assessment is set out in the consent form and pre-examination interview, but it is unacceptable to record an interview or take copies of the standardised tests.”
BC: While easily managed through physical assessments, are there any rules or restrictions on who can be in the room while a tele-assessment is being conducted?
NP: “In the pre-assessment, it is often the case that a third party is present to help set things up and get things working. However, when the main assessment is in progress, it’s very important there is no one else in the room, which is explained and made clear during the preparation stages. Having a third party in the room during the assessment itself invalidates and complicates the examination.”
BC: Is the ability of a claimant to receive the email and dealt with those instructions, set up the equipment and participate in that pre-assessment, part of the assessment itself?
NP: “It certainly provides valuable information. There are also instances where an individual who may respond in a disorganised or frontal way. Even at that stage, you are gaining pointers, even minor fragments of clinical information, before you get onto the pre-assessment. These are things I would investigate in the assessment and examination in particular detail.
“Neuropsychologists are behavioural scientists, experts in brain behaviour relationships, and a medico-legal report that relies entirely on neuropsychological testing is a weak report as no single test score should ever be used to make a clinical decision.
“Even under the best possible testing circumstances, it contributes to a decision, but the tests used are more proxies to describe underlying abilities, states and functions, and there is no test in any discipline that is capable of explaining with 100 per cent accuracy any underlying trait or peculiarity.
“The emphasis must be on the basis of all evidence and assessment, not just neuropsychological testing but also behavioural analysis.”
BC: Is this virtual method of assessment suitable for all of your clients and if not, when would it not be suitable?
NP: “No, it isn’t suitable for all. For example, those that have complex mental health problems, have language or communication difficulties, or have complex neuro developmental conditions are not suitable for tele-neuropsychological assessment.”
BC: Is it your view that, in the cases for which this is suitable, video is just as effective as face to face or is it still limited? In other words, can you still build up that rapport – what do you do if a client starts crying, for example?
NP: “This is a particularly interesting area, and I think it has been an urban myth that has been developed that somehow tele or remote assessments cannot generate empathy. When you look at the evidence, there is virtually none to suggest that remote assessments are in some way cold or heartless, or that you cannot generate empathy.
“The authorities for this go back a long time. A paper by Kirkwood in 2000 found no significant difference at all when objective measurement was made between face to face and virtual assessment of ‘customer satisfaction’.
“In another paper in 2010, even the clients that initially said they were ‘not keen’ and would prefer face to face, showed an equivalent outcome and did not complain about the modality of the service delivery. In fact, it was just the opposite and they were quite surprised, given their initial scepticism, that it worked just as well.”
BC: How is visual stimuli to be presented in the context of a tele-assessment?
NP: “The logistics of sending things through the post raises so many complications and is something I personally don’t do at all.
“Holding things up to a camera in order that the client can see it, screen sharing techniques and screen mirroring are all approved of by Pearson. and all observe any copyright issues as they are not being reproduced.”
BC: Due to the pandemic and people being stuck at home, could the subjects be displaying signs such as apathy or disinhibition as a matter of the pandemic rather than a result of any illness or injury?
NP: “I think certainly as far as issues of mood are concerned that is likely to be the case. However I don’t think there is any evidence to suggest that lockdown, or more repressive social circumstances, provoke disinhibition or perseveration. Issues to do with empathy and social judgement are still going to be evident within a family setting.”
BC: Are there any disadvantages to doing the assessment within the family setting of the home?
NP: “Yes, and I have found that there’s a very obvious one in that all individuals who have sustained a brain injury all suffer from fatigue problems of some kind or another, so fatigue ability is a ubiquitous problem.
“If you are seeing someone in their own home, the burden of travel to a city centre or unknown location has been removed, and in their own home, behaviours often become less guarded with the number of signs and signals both during the interview phase of the assessment and also during the testing phase become more apparent if you are observant enough.
“It is important to remember that behaviour is environment-specific. When an individual is in your consulting room and everything is ordered, secure and disciplined, it doesn’t easily lead itself as an environment to allowing the individual to show themselves in their least favourable form. There is a degree of constraint on their behaviour in a consulting room that is not going to be there when you are a guest in their home.”
Watch the event in full, including a Q&A session with Dr Nick Priestley, below:
The way ahead for rehab tech
NR Times invited three experts for a virtual discussion on the changing role of technology in rehab after brain injury.
Neuro-rehab specialists Anna Wilkinson and Rebecca Bancroft, of physiotherapy provider More Rehab, are joined by Louise Jenkins, partner and serious injury specialist at Irwin Mitchell.
Anna Wilkinson (AW): Using tech gives us a different way of rehabilitating someone; it keeps patients attentive, keeps them concentrated and keeps them motivated to reach their goals.
The key to neuroplasticity is the amount of repetition. This is where the technology plays a vital role.
As therapists, it is extremely hard and laborious to achieve the amount of repetition you can achieve with technology. Technology and hands on work should go together –
for example, therapists may work on alignment in a therapy session to help the patient achieve a normal movement pattern.
Once they have established that, we can put them on the tech to repeat and practice.
Rebecca Bancroft (RB): What’s also very important with the technology is the quality of repetition and the feedback we receive. We could give somebody an exercise sheet and tell them to go home and do one hundred repetitions of lifting their arm in the air, but this can be mind-numbing, especially when they get to day three or four.
What’s more, we don’t know if they’re doing the movements correctly. Technology gives us the control of feedback; it alerts both the patient and the therapist if they’re getting the movement wrong so we can intervene and keep them on track.
AW: Our clients tend to be very excited about using the tech because it means they are getting more practice within a week than they would with traditional therapy. This additional practice and repetition results in quicker and better recovery which is the ultimate aim.
I think a big component of it is related to their interest and their engagement; technology really helps make it fun for them. Some of the equipment has games installed, some of it has a feedback function.
These features make it possible for them to track their progress and makes the therapy much more interactive.
RB: Some people get a little nervous around tech, but for other people it really makes them tick. It all depends on the kind of exposure they’ve had to technology before.
A client that’s very in tune with using an iPad or an iPhone tends to love the technology we use.
There are other clients that potentially aren’t as familiar with technology so tend to be more hesitant.
The tech may or may not be for them, but we always try it out and see whether they like it.
AW: Deciding which tech we use is about gathering knowledge of what’s out there, as well as getting to know the clients and what they want and what motivates them.
Clients are motivated by very different things. For example, people have very different attitudes towards technology; some love it whereas others find it quite frightening.
Louise Jenkins (LJ): At Irwin Mitchell, we’re committed to understanding the latest options available and the full range of technology that is out there, whatever the cost might be.
This is why we make sure we’re connecting with companies like More Rehab very closely so we can find the right solutions for our clients and give them rehab choices including access to
the best available technology and equipment to facilitate their recovery.
Some of the new equipment coming onto the market can be incredibly expensive, but within the legal process, we are entitled to claim what is reasonably required to restore someone’s quality of life to how it was prior to their injury.
We aim to build these innovative items of equipment into our legal claims in order to keep pushing the legal process to keep pace with developments in therapy developments.
AW: Louise is right that the technology can be very expensive, and it takes a good lawyer to justify it and demonstrate the fact that it will improve the patient’s life. The justification process is very much interwoven.
As professional therapists we can explain how the technology is going to make the patient more independent, give them better movement, which will then give them better function, improve quality of life and ultimately may reduce other costs.
It’s not just about giving them the best treatment that they can get, it’s about achieving the best outcome. From there, legal experts can explain why we’re using the technology and how we balance up the costs.
LJ: For people who have legal claims, we can receive interim payments to trial new technology.
This gives us the evidence that shows the benefits it has brought to the client, which helps to justify the cost.
Gone are the days where you simply put in a claim for 10 to 20 sessions of physio. This does have its place in many cases but we also look more broadly and holistically at a client’s needs. We think about what we can do to really give them the best chance of recovery, to restore the best function possible and the highest levels of independence.
AW: If you take the Indego, our ‘walking robot’, as an example, we can achieve more walking in 10 sessions with the walking robot than 20 to 30 sessions with a physio in a lot of cases.
This is because if you’re trying to walk somebody with two pairs of hands, it’s heavy, so you might only get two metres in one session.
With the robot, they can be doing hundreds or thousands of steps. So, although technology might look more expensive as an upfront cost, in the long term it could end up less expensive.
RB: The Indego Exoskeleton is a fantastic piece of kit. It makes it possible to walk somebody who is completely paralysed or has an incomplete spinal injury or a mild to severe brain injury.
We can use it as part of a therapy session to improve gait patterning.
You can adjust the settings to give the patient what they need and allow them to use the function they have. This is called ‘variable assist’, which is the real beauty of the technology. You can tweak it little-by-little as the patient progresses.
AW: We also have the AlterG, which is a really interesting concept; it’s an anti-gravity treadmill. Essentially, the patient’s lower body is zipped into a pressurised chamber which surrounds the treadmill and eliminates gravity.
This allows us to get people walking and running much sooner than if they were holding their own weight.
Particularly if pain is a factor. Both the Indego and the AlterG allow us to make adaptations to people so that they can achieve better gait for a longer period of time than they would do on ‘dry land’.
BR: The anti-gravity treadmill is great for managing neuropathic pain and it’s also very good for improving balance because the patient is de-weighted and completely safe.
Our latest piece of kit is called ICone. It’s a totally interactive computer game-orientated arm robot for upper limb rehab.
The client sits with their forearm supported and holds onto a cone. They can then interact with games that can either be passive, active, assisted or resisted. This incorporates the trunk and the whole shoulder complex.
We also have the GripAble device which is a smart mobile device for assessment and training of hand functions.
AW: We’re inspired by the approach to neuro-rehab in other countries. In the UK, the evidence shows many acute centres barely look at arm rehabilitation in the hospital; it’s all about getting people functional so they can be at home.
Whereas in countries like Italy, they send their neuro clients home with these technologies and the outcomes that come from that are much better.
A lot of our clients don’t have the tech at home and come to clinic to use it more regularly, currently due to the associated costs, but it is something that we’d like to look forward to doing in the future which we’re very excited about.
Louise Jenkins is a partner and heads up the specialist serious injury team at Irwin Mitchell’s Sheffield office. Anna Wilkinson is managing director of More Rehab, while Rebecca Bancroft is clinical manager of More Rehab.
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