In serious injury cases, there are three options when it comes to private care: gratuitous care, commercial care or a combination of the two (excluding inpatient long-term care which can be funded on a private basis). When an injured person is recovering, it is common for family members to provide gratuitous care; that is care free of charge.
However, often family members need to return to work, they may have children who need their focus and attention and/or they may already be providing care for elderly relatives. It is therefore quite common to seek commercial care at a relatively early stage in an injured person’s recovery if liability (fault) has been established.
However, for some families, they prefer to continue providing care on an ongoing gratuitous basis. The Court will generally order a small hourly rate for the gratuitous care hours provided to the family member for past care and those which they are likely to be providing in the future to reflect the fact that if the gratuitous care provider was not providing the care, the injured person would have to pay someone to do so.
If a care package is provided gratuitously, there are associated risks. The value of the claim significantly drops. This is because the cost of gratuitous care is significantly less expensive than the cost of commercial care.
The most significant risk for the injured person is that the gratuitous care provider changes their mind after the litigation has resolved, becomes too ill to provide the gratuitous care, or passes away. In those circumstances, the injured person will be left without the necessary damages (compensation) to fund their care needs on a commercial basis.
They would then have to turn to the state; the care provision from the state would be far less, in all likelihood, than what the injured person had been assessed as needing at the point that the litigation resolved and what had been recommended by the care expert. It is important to remember that the aim of personal injury litigation is to put the injured person back in the position, insofar as damages can do so, that they would have been in but for the negligence.
The author has dealt with a number of cases where these issues have arisen. The issue can often arise when a child is injured and the parent, often feeling guilty about what has happened, wants to be there at all times. It is often necessary for the parent(s) to get psychological support to enable them to deal, insofar as possible, with the significant life adjustment and guilt. It can be very rewarding to see a family member, often after years of arduous care, starting to enjoy aspects of their life again such as re-engaging in hobbies or socialising.
The issue can also arise with older couples who are used to having defined roles and have been co-depending on each other for many years. In these circumstances, it is a very alien feeling for them to introduce strangers into their home.
In the author’s experience, this is a much more difficult issue. With a serious injury resulting in permanent care, the care need is likely to increase in later life. If the litigation is resolved on the basis of gratuitous care, the injured person will not have sufficient monies to pay for commercial care and therefore ensure that their needs are protected when they need protecting the most. In these cases, an attractive option is sometimes to consider a retirement home.
The cost of the retirement village can be sought as part of the litigation. The author was involved in a tragic case when a man, who was 78 at the time of the road traffic collision, sustained grievous injuries. His wife tragically passed away whilst he was in hospital. Her death was not connected to the road traffic collision. He was initially discharged from hospital to a care home. After being instructed at a later stage (having taken over the case from another firm of solicitors), Irwin Mitchell arranged for him to be transferred to a retirement village.
He did not want to return home. This was particularly so because his home would have needed extensive adaptations and even then may not have been completely suitable for his reasonable needs. He went from strength-to-strength. He found friends. He was able to go to the gym. He enjoyed going to the bar which was on site. He was encouraged to be as independent as possible in a supported living environment.
If gratuitous care is provided on an ongoing basis, it can cause the family dynamics to change and for relationships to become strained. The injured person starts to depend upon the family to meet their basic needs; this can result in the family member working or being on call all of the time. They can quickly burn out.
It is usually a much better course of action to have a commercial care package set up and for the family members to go back to being family. They can still enjoy nice times with the injured person but without working when they are with them. The injured person also has security in knowing that the litigation can be resolved on the basis of commercial, rather than gratuitous, support.
