There will be a detailed forensic analysis of the injured person’s condition and prognosis with a large focus on the functional impact.

The Guide to Best Practice at the interface between rehabilitation and the medico-legal process provides helpful information about how to ensure that the injured person is placed at the centre of the process and that confusion and a disjointed approach are avoided. The key principles of the best practice guide are:

If the injured person remains under NHS care:

  • Any rehabilitation recommendations should be implemented only after consultation with the NHS clinician;
  • An expert report obtained in the litigation should be sent to the NHS clinician at the earliest possible opportunity;
  • An expert may discuss certain recommendations with the NHS clinician;

If the injured person has been discharged from the NHS:

  • There should be a qualified medical practitioner or other appropriately qualified therapist or nurse with responsibility for the management of the treatment programmes. In practical terms, this is usually now done by a case manager but, as I have explained below, it is vital that there is oversight from medico-legal experts;

Although the Guide was prepared some years ago and the authors have in fact retired (one of whom, Grahame Codd, was a Partner of Irwin Mitchell LLP) the principles remain valid.

As lawyers, it is vital that we ensure that the injured person’s rehabilitation feels “joined up”.

If the rehabilitation and the medico-legal examinations feel separated, we have allowed the rehabilitation to become fragmented. In effect, the NHS team should initially guide the rehabilitation recommendations.

My colleague, Glen Whitehead, has highlighted the importance of rehabilitation prescriptions in an article prepared for NR Times.

If there are subsequently private rehabilitation recommendations (either on a treating or medico-legal basis), the NHS team can be consulted and can give an opinion as to whether those recommendations are required and likely to make a difference.

Once the injured person has been discharged from the NHS’ care, the focus should shift to medico-legal experts.

It is a high risk strategy to let a private treatment provider to provide recommendations and implement them without any check or balance.

That is not to say that the treatment providers are incompetent; rather, in litigation, it is for the medico-legal experts to justify the rehabilitation.

If the experts are not the ones driving the recommendations or endorsing the proposed recommendations, it can create difficulties with recoverability of parts of the claim [see for example, Loughlin – v – Singh [2013] EWHC 1641 (QB)].

I am involved in a serious injury case involving a severe traumatic brain injury. The case is subjected to an anonymity order; therefore, the details I have gone into are intentionally brief.

The injured person has deteriorated to the extent that inpatient admission hospital treatment has been required four years after the incident.

The relevant medico-legal experts for both sides in the litigation have had a conference call with the Consultant at the hospital.

They have shared ideas about how the injured person could make an improvement and ultimately be discharged. There is a focus on the short-term. The discussions have been outside of the litigation process.

The lawyers have not been involved. There has been a commitment that we all want the same thing: to help the injured person get better insofar as possible.

It has been a really refreshing experience. The injured person is now making an improvement; discharge from hospital is likely in the near future, subject to Covid-19 and the period of isolation.

The value of the case will decrease if improvement is made but the injured person’s quality of life will improve. The rehabilitation and the litigation are joined up and are ultimately making a positive difference to the injured person’s life.

Ultimately, we must remember that to the injured person, rehabilitation and litigation are not differentiated. It is their life. They should always be at the very centre of what we do.

Collaborating with professionals should be seen as a strength, not a weakness. As always, communication and clear goals which are shared across all relevant clinicians and therapist are vital to ensure the greatest success.

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.