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The Liberty Protection Safeguards explained

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By Saoirse de Bont

Introduction

The Liberty Protection Safeguards (LPS) were introduced through the Mental Capacity (Amendment) Act 2019, which received royal assent on 16 May 2019.

The purpose of the LPS are to replace the existing Deprivation of Liberty Safeguards (DoLS) regime, partly due to the substantial increase in cases which fell under the auspices of the DoLS following the Supreme Court case of Cheshire West, and partly due to criticisms of the DoLS regime, including the fact that there were many settings such as supported living placements and family homes, where people were being deprived of their liberty but the DoLS did not apply.

Road to Assent

The Mental Capacity (Amendment) Bill’s journey to royal assent was not smooth, with, for example, the Law Society reporting on its website in September 2018 that they “do not believe that the proposed Bill has sufficient safeguards and is not fit for purpose in its current form. It requires serious re-consideration and extensive revision”.

The Bill did undergo some key amendments before it was passed.

These amendments included extending the LPS to apply to 16 and 17 year olds, replacing the previous term “unsound mind” with “mental disorder”, explicitly stating that the cared-for person must be consulted, and explicitly stating that the cared-for person’s wishes and feelings must be considered as part of the necessary and proportionate assessment.

Further amendments included requiring that assessments cannot be carried out by someone with a financial conflict of interest, requiring responsible bodies to decide if care home managers should arrange the assessments and statement or if the responsible body takes on these functions, and including a duty to appoint an Independent Mental Capacity Advocate (“IMCA”) if a person doesn’t have an ‘appropriate person’ representing them, unless it is in the person’s best interests not to have an IMCA.

During the course of the Bill’s journey between the House of Commons and the House of Lords, the House of Lords disagreed with the proposed definition of ‘deprivation of liberty’ within the Bill. As a result, the final Mental Capacity (Amendment) Act does not include a statutory definition of the term ‘deprivation of liberty’.

Summary of the New System

The new Liberty Protection Safeguards will apply to individuals aged 16 and over, and will apply in all settings where someone is being deprived of their liberty, including supported living placements and family homes.

Although there is no statutory definition of ‘deprivation of liberty’ guidance is to be provided in the forthcoming Code of Practice.

The responsible body, i.e. the public body with responsibility for authorising the deprivation of liberty, will be the local authority in most settings, including private hospitals.

The responsible body will be the hospital manager for arrangements in an NHS hospital or the local Clinical Commissioning Group (CCG) in cases where an individual in the community is in receipt of NHS continuing healthcare.

There are certain conditions that need to be satisfied before arrangements can be authorised, and these are as follows:

  • That the individual lacks capacity to consent to the arrangements depriving them of their liberty
  • That the individual has a mental disorder
  • That the arrangements are necessary to prevent harm to the individual, and are proportionate in relation to the likelihood and seriousness of harm

A pre-authorisation review must be carried out by someone who is not involved in the day-to-day care of the individual, or provides treatment to the individual, to ensure that the above three conditions are met.

In addition, it cannot be conducted by a person who has a connection with a care home.

An individual, or “cared-for person”, who is deprived of their liberty has the right to challenge the authorisation via the Court of Protection, pursuant to the new s21ZA of the Mental Capacity Act, which appears designed to work in the same way as s21A challenges to the DoLS, and which the government has confirmed will attract non-means tested legal aid.

The authorisation can be renewed in the first instance for one year and thereafter for periods of up to three years.

However, if the cared-for person is over the age of 18, and the proposed arrangements resulting in the deprivation of liberty are in place wholly or partly in a care home, then the responsible body, i.e. the local authority, can decide whether the care home should take the lead in various aspects of the authorisation process, including consulting with relevant individuals, such as the cared-for person, providing a statement setting out the basis for the authorisation, and conducting reviews.

The new system does not include a role for Relevant Person’s Representatives, with cared-for persons instead being represented and supported either by an “appropriate person” or, in certain circumstances, an Independent Mental Capacity Advocate (“IMCA”).

An appropriate person cannot be engaged in providing care or treatment to the person in a professional role, and if the cared-for person has the capacity to consent, they must consent to the appointment of the appropriate person.

If the cared-for person lacks capacity to consent to the appropriate person’s appointment, then the responsible body must be satisfied that it would be in the cared-for person’s best interests to be represented and supported by that appropriate person.

In both cases, the appropriate person must agree to act.

If there is no appropriate person who can be appointed, then, if the cared-for person has capacity to consent to being represented by an IMCA, the person must make a request for one, following which the responsible body must take “all reasonable steps” to appoint an IMCA to represent and support them.

If the cared-for person lacks the capacity to consent, the responsible body must take all reasonable steps to appoint an IMCA to represent and support them, unless satisfied that this would not be in their best interests.

Concerns

  • There remain concerns about how the LPS will be implemented. Some of these concerns include:
  • That access to an IMCA is conditional on a best interests test, and that such appointment is not mandatory, rather that the responsible body must take “all reasonable steps” to appoint an IMCA
  • How it is to be assessed whether an individual has capacity to consent to the appointment of an appropriate person or to request an IMCA
  • The role of care home managers and the fact that under paragraph 23 of the Act, that care home managers can take on the role of consulting with the cared-for person
  • That the Act allows for an individual to be deprived of their liberty for up to three years without review
  • Concerns about potential conflicts between the LPS scheme and the existing rights of young people and their parents under the Children Act 1989.

As such, it appears the new safeguards will serve to dilute, as opposed to strengthen, some existing protections for people who are deprived of their liberty.

There has been much emphasis placed on the Code of Practice, which will not only provide the definition of the term ‘deprivation of liberty’ but it is hoped will provide important clarification in respect of the above concerns.

It is also likely that certain elements of the new system will undergo legal challenges in the first months and years of implementation, as professionals and lawyers work together to ensure that their clients are safeguarded and protected in the best ways possible.

What happens next?

The government is in the process of drafting regulations and a Code of Practice to accompany the new legislation, with input being provided by various stakeholders.

On 16 July 2020, the government announced that the LPS will come into force in April 2022, as opposed to the previously announced date of October 2020, although some provisions, covering new roles and training, will come into force ahead of that date.

It has confirmed that it will undertake a public consultation on the draft regulations and Code of Practice, which will run for 12 weeks, and that a period of approximately six months will be allowed following the publication of the final Code of Practice, to allow the sector to prepare for the implementation of the LPS.

Importantly, as the LPS is not being implemented for some time, public authorities and professionals working in the relevant fields need to ensure that they continue to comply with the existing DoLS regime and the Mental Capacity Act 2005.

This requirement was reinforced by Mr Justice Hayden in a letter to the Directors of Adult Social Services in May 2020, in which he stressed the importance of the statutory requirements, and the need to properly authorise any deprivation of liberty in accordance with existing law.

As Mr Justice Hayden wrote: “The deprivation of the liberty of any individual in a democratic society, holding fast to the rule of law, will always require appropriate authorisation. Nothing has changed. The Mental Capacity Act 2005, the Court of Protection Rules and the fundamental rights and freedoms which underpin them are indispensable safeguards to the frail and vulnerable.”

Obligations of Deputies

At present, in the case of an individual who is being deprived of his liberty without proper authorisation (either under the DoLS or by court order) deputies have an obligation to raise this issue with the relevant providers and the local authority (or responsible body) with statutory duties to safeguard the individual.

In the event that the responsible body fails to take the necessary steps to ensure the appropriate authorisation is put in place, the requirement is on the deputy to make an application to the Court of Protection to draw this to the attention of the court (ACC & ORS [2020] EWCOP 9).

There is no indication that this obligation will change with the introduction of the Liberty Protection Safeguards.

However, further information may come to light with the finalisation of the regulations and the Code of Practice. In the meantime, it is incumbent on any deputies to remain alert to situations in which any individual for whom they act is being unlawfully deprived of their liberty and to take appropriate steps to refer this to the responsible body, and, if necessary, make an application to court.

For further information please contact Lilly Drakoulakou of Irwin Mitchell on Lilly.Drakoulakou@IrwinMitchell.com.

Saoirse is a solicitor who specialises in Court of Protection and community care cases. She regularly acts on behalf of vulnerable adults and their families in Court of Protection matters, particularly in relation to disputes regarding capacity and best interests. She acts on behalf of the Official Solicitor, Independent Mental Capacity Advocates (IMCAs) and family members, as well as deputies. She also assists people to challenge decisions made by public bodies, including local authorities and the NHS. This includes challenging cuts to NHS services and the closure of local government services, and working with people who have received unlawful care assessments or inappropriate care packages.

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The importance of goal setting

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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 [2013] 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:

  1. 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
  2. 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 [2000] 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:

  1. Identify the short to medium term needs of the Claimant; 
  2. Triage those needs by considering what input would make the biggest difference; 
  3. 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; 
  4. Execute the plan and ensure everybody involved in the MDT is working to the same set of goals;
  5. Regularly revisit the plan and goals set and critically assess what is working and what is not working;
  6. Do not be afraid to change or to deviate from the plan – clearly document the reasons why, if necessary; 
  7. Update the plan if there are material changes and / or after at least 6 to 12 months, whichever is sooner; 
  8. 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;
  9. 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;
  10. 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:

  1. 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; 
  2. Finalise medico-legal evidence quickly and use this to influence the rehabilitation programme; 
  3. 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; 
  4. Be obsessive about goal setting; 
  5. Attend MDT meetings to contribute to and be aware of what is happening “on the ground”; 
  6. 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; 
  7. 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. 

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Neuropsychological testing in the COVID-19 age

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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:

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The way ahead for rehab tech

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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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