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Opinion

The role of a serious injury lawyer in rehabilitation

By David Withers, partner in the serious injury team in Irwin Mitchell’s Sheffield Office.

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The role of a serious injury lawyer is varied and complex. Our clients have sustained life-changing injuries which have a long-term impact on all areas of their life including their family life.

Rehabilitation

The Serious Injury Guide 2015 (the Guide) seeks to put the interests of the seriously injured person at the centre of the litigation and accompanies the Rehabilitation Code 2015.

Although the Guide is not mandatory, many claimant and defendant solicitors and insurance companies have become signatories to the Guide and commit, on behalf of their organisations, to comply with the principles and ethos.

David Withers

The aims of the guide are to resolve liability as quickly as possible. It provides early access to rehabilitation for claimants to maximise their recovery where it would be beneficial, to resolve claims cost effectively and proportionately and within an agreed timeframe, and to create an environment of mutual trust, transparency and collaboration.

Our clients’ worlds have been turned upside down. They want to maximise their recovery. There is often an unrealistic expectation as to how they might recover to their old life, certainly initially due to limited insight.

A serious injury lawyer’s role is to manage their expectations, agree with the defendant about rehabilitation funding or take advantage of deferred payment arrangements or private insurance and make the necessary introductions to first class clinicians and therapists.

With serious injuries, there is often a small window where our clients can maximise their recovery. It is vital that rehabilitation is considered at an early stage. Our clients frequently say that the acute and often life-saving treatment they have received is first-class, particularly if they have been treated in a major trauma centre, but that the rehabilitation is then quite limited thereafter.

Effective rehabilitation can vary significantly. A serious injury lawyer will consider the injured individual’s as a person and focus on all of their needs. This includes housing, aids and equipment, care, social enablement, transport, financial security, re-assurance about the future, therapy, medical treatment and other legal services that they may benefit from.

Best practice

In this section, I have identified what has worked particularly well on Irwin Mitchell’s serious injury cases. It is recognised that there may be other ways in which to showcase best practice.

Collaboration with the defendant’s legal team is vital. There should be a genuine commitment to resolve liability as quickly as possible and focus both before and after liability has been resolved, on maximising the injured person’s recovery.

This could include agreements with defendant legal teams, which include no early Part 36 offers before a negotiation meeting has taken place, interim payments and rehabilitation funding in exchange for access to the injured individual for medico-legal examinations. Other requirements could be voluntary disclosure of records and frequent dialog between the parties to focus on and narrow the central issues. This could also mean the defendant legal team attending MDT meetings when appropriate.

Joint or unilateral instructions will need to be considered on a case-by-case basis but my view is that jointly instructed rehabilitation providers are much better than having no rehabilitation providers if liability is disputed.

The rehabilitation must never become standard or generic. The rehabilitation must be tailored to each and every injured individual that we represent. They will all have different functional impairments. The lives they had and the lives they want will be completely different. Their motivations will be different. If the rehabilitation is tailored to the individual and they have bought into what the rehabilitation team is trying to achieve, the goals will be clearly identified which will avoid any arguments about recoverability at a later stage.

The goals must motivate the injured person. If they do not, the serious injury lawyer should question whether that form of rehabilitation is the most appropriate way to maximise their recovery.

The serious injury lawyer should attend the MDT meetings if at all possible. The legal claim is a significant part of the injured person’s life. There is an overlap because the claim is funding the private input. The clinicians and therapists should have a good relationship with the serious injury lawyer. They should be able to pick up the phone to talk through any challenges faced. The claim and the rehabilitation should never be seen as two separate processes.

Consideration should also be given to other legal or financial services that the client may require. This may include investment advice, setting up a personal injury trust or applying for a Deputyship Order, creating or updating a will, executing a Power of Attorney or seeking employment advice if the injured person is at risk of losing their job. Also, conveyancing may be required if there is a need for alternative accommodation, as well as family law if a relationship has broken down or is at risk of doing do. Irwin Mitchell is a full-service-offering law firm; we view holistic legal advice as a central part of the rehabilitation process. If the injured person’s legal needs are protected, they can focus on maximising their recovery.

The benefits of rehabilitation

In early 2017, Simon sustained serious injuries following a road traffic incident. The defendant driver was primarily at fault however Simon accepted that he held a proportion of the responsibility for the very unfortunate incident and the resulting injuries.

Simon was treated at the Queen’s Medical Centre. He was then transferred to Royal Derby Hospital where he remained for a period of six months. He received life-saving treatment. He was diagnosed as suffering from a severe traumatic brain injury. A CT scan identifiedleft frontal and parietal haemorrhages alongside the presence of a thalamic haemorrhage which indicated a diffuse axonal brain injury.

An initial notification letter and a letter before action were sent quickly to the relevant insurer to enable them to undertake their investigations quickly. In the letter, Irwin Mitchell indicated a preference to deal with the claim in accordance with the Guide.

Within days, there was dialog between both parties. The criminal proceedings were ongoing but despite that, the insurer agreed to fund rehabilitation assessments, the funding of which was of course without prejudice to liability at that stage. The parties also agreed to attend a way forward meeting with an acceptance that face-to-face contact, on serious injury cases, is particularly useful to build an effective working relationship, identify the central issues and plan a way forward.

At the way forward meeting, Simon and his family attended. There was a commitment to putting Simon at the centre of the process. The insurer and their solicitors gave a further commitment to funding rehabilitation. The parties agreed that no Part 36 offers should be made at least until they had had a joint settlement meeting at the appropriate time. As a result of this agreement, Simon was willing to allow the insurer’s solicitors to attend the multi-disciplinary team meetings. There were additional face-to-face and telephone discussions frequently between the legal teams.

The criminal investigation was ongoing. The parties managed to secure early disclosure from the police in accordance with the National Policing Guidance issued by the College of Policing. This enabled the parties to discuss the issue of liability. There was acceptance on behalf of Simon and his legal team at Irwin Mitchell that there would be contributory negligence.

A sensible position was adopted. The parties had a number of informal discussions about the percentage reduction that should apply. An apportionment was subsequently agreed at 70:30% in Simon’s favour. The parties negotiated a costs settlement at this point up until the date when the liability apportionment was agreed. The costs negotiations were dealt with quickly and sensibly, resulting in a rapid conclusion.

Despite this apportionment, the insurer continued to fund the rehabilitation programme at 100%, showcasing their genuine commitment to maximising Simon’s recovery. This enabled Simon to engage in his rehabilitation without worrying about paying for therapy at 100%, only to recover 70% from the defendant.

When discharged from the hospital, Simon struggled with his balance and required a wheelchair to mobilise. He also had reduced voice strength and slurred speech due to vocal cord palsy from his brain injury. Due to the input of early rehabilitation, Simon was able to mobilise independently, improve the strength of his upper limbs and improve the quality of his speech; which will have a great effect on Simon’s quality of life for the foreseeable future.

After Simon had benefited from rehabilitation for approximately 12 months, the parties’ solicitors agreed to pencil in a date for a Joint Settlement Meeting to take place in a further 12 months’ time (near to the 2ndanniversary of the incident). The parties’ solicitors scheduled telephone discussions frequently to update each other about key evidential developments and to ensure that the parties closely communicated. They also discussed the case at the multi-disciplinary team meetings.

The likely issues to be discussed at the Joint Settlement Meeting (care, deterioration, accommodation, Court of Protection) were identified and the parties focussed their efforts on securing evidence to ensure that there was a meaningful discussion at the meeting. Both parties had a significant amount of expert evidence. Simon’s legal team also obtained a significant amount of documentary and witness of fact evidence.

Just after the second anniversary, the parties attended a Joint Settlement Meeting. A sensible and fair settlement was achieved, taking into account both parties’ positions on the key issues. The outstanding legal costs were also negotiated on the day, meaning that both parties could leave the meeting with certainty as to their positions, subject to a few procedural steps that were required; namely, discharging the litigation friend as Simon had, largely through the effective rehabilitation that he had received, regained capacity to litigate and to manage his own property and financial affairs.

Showcasing their commitment one final time on this case, the insurer agreed to fund the rehabilitation at 100% for a further three months until the procedural aspects of the case had concluded.

The early settlement gave Simon the option to move on with his life relatively soon after the incident. He now has plans to purchase the property of his dreams and continue focussing on maximising his quality of life.

The way this case was dealt with was very refreshing. There was frequent dialog between the parties’ legal teams and the insurer. The insurer seemed genuinely committed to improving Simon’s quality of life through effective rehabilitation.

It even funded items throughout the case that theydid not think would make a huge difference but which were important to Simon. I was particularly impressed with the defendant’s solicitor.

Despite advocating the insurer’s best case throughout the litigation, she focussed on the key issues, raising their best points as and when required, whilst remaining pleasant, friendly and easy to deal with throughout. At the end of the litigation, Simon’s family even said that they would be sad not to see the defendant’s solicitor any more at the multi-disciplinary team meetings.

There were huge benefits to both parties as a result of utilising the Serious Injury Guide and complying with the ethos. The legal costs were significantly less than in most serious injury cases because of the sensible approach taken by all and the early rehabilitation which was implemented.

The issues were identified at an early stage and the parties focussed their efforts on resolving those issues. The defendant team were in the loop about the rehabilitation and understood Simon’s priorities. It was really refreshing to see how effective the Guide can work in practice for the benefit of the seriously injury person and their families, but also for other stakeholders to the litigation.

Simon is now receiving investment advice from IM Asset Management. He is updating his will and purchasing his own home. He has also been advised about the risk of any dependency if he enters into a relationship given that he has secured a significant sum of money to meet his reasonable needs for the rest of his life. His settlement money has been placed in a trust to provide some protection for the future.

David Withers, who represented Simon, is a partner in the serious injury team in Irwin Mitchell’s Sheffield Office. He leads a team of serious injury specialists dealing with life-changing injuries.

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Case management

Neurotechnology – life-transforming or an expensive white elephant?

Rachel Charles discusses the power and potential of technology in neurorehabilitation

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We are at an exciting time in neurorehabilitation, where we are discovering more and more about our brain and nervous system and how we can adapt to life-changing injuries by harnessing the potential of technology to push the boundaries of what is currently possible.

Our previously unseen electrical and brain activity can be enhanced to enable us to visualise our emotions, communicate when we can’t speak, lift limbs that we have difficulty moving. We can be transported to far off, fantastical lands from the comfort our armchairs by putting on a VR headset, and exercise on a treadmill without being able to walk.

This is not just the stuff of Hollywood movies and fantasy novels, but real life that can be seen, touched and used in rehabilitation centres across the world right now.

So, how do we ensure that this technology is accessible, appropriate and enables the people using it to achieve their goals and aspirations?  How we do prevent exoskeletons from gathering dust in cupboards or the corners of therapy rooms? How do we justify and prove that these technologies make a difference and are worth the investment?

Firstly, we need to keep in mind who the technology is for. We are adaptable, complex systems that require varied, intensive, targeted opportunities to refine and improve our abilities. We know about “practice makes perfect” – practice needs to be the right amount, in the right place, at the right time – for a purpose and have meaning, not necessarily helping us achieve perfection. One size definitely does not fit all.

Secondly, we need to coproduce, collaborate, and cooperate to share knowledge and skills – it is essential the end user is part of the team. It is totally possible to repurpose and adapt current technologies that are already in use such as robots and VR games for the rehabilitation market.  What works in one setting does not necessarily work in others. It is a great opportunity to design and manufacture technology that is fit for purpose, which can be updated and upgraded and recycled.

Thirdly, we will still need therapists and case managers.  (You probably think that this is because I am one…”so you would say this wouldn’t you”). Technology is not a magic bullet and will not replace therapists or therapy or the need for case management. It will enable more people to participate in high dose, high quality rehabilitation that is commissioned by case managers and structured by therapists as part of their individual rehabilitation programme.

Therapists need to be open-minded and given access to systems and training that enable them to use their clinical reasoning to consider technology as a viable option as part of their treatment plan. Case managers need to keep up to date with innovations and technologies by networking and sharing information so that our clients have the possibility of being able to access neurotechnology now and in the future when this is appropriate.

Lastly, technology has the potential to transform the rehabilitation experience of people affected by life changing injuries and our understanding of the brain and nervous system. By trialling available technologies with people who may benefit from them and being able to demonstrate tangible changes in function – enabling people to thrive, not just survive – we have the potential to create a very different future for all of us.

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Dementia

Person-centred dementia care during the COVID-19 pandemic

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The COVID-19 pandemic has presented unique challenges for people living with dementia, as well as for those who support them. Tracey Carter, senior quality manager (dementia care) at Exemplar Health Care, shares how colleagues across the company have found innovative ways to support people living with dementia to stay safe and well, and uphold the principles of person-centred care

 

It’s vital that health and social care workers, other professionals and family carers continue to take a person-centred approach to care during the pandemic, to support people with dementia to maintain, and enhance, their health and wellbeing. 

Putting people first

There are currently around 850,000 people living with dementia in the UK, each with their own unique personalities and life stories. Everyone will experience the pandemic and its effects differently, which is why it’s important to maintain a person-centred approach. 

Tracey Carter

At the start of lockdown, care homes were cut off and isolated from the wider community which posed a significant shift for service users and care workers. 

In response, we quickly adapted many of our ways of working, systems and processes to adhere to national guidelines and safety policies.

However, when it comes to our approach to care at this time, there’s not a ‘one size fits all’ approach. 

We adapted and adopted a creative approach to ensure that the same quality of person-centred care was achieved with lockdown restrictions in place.

To achieve this, Exemplar Health Care divided its approach into four key areas of need. 

The needs of people living with dementia 

One of the most important things for us was to identify how each individual communicates pain and discomfort, so we could monitor them for signs of Coronavirus (COVID-19).

Some older people living with dementia may have different symptoms or are unable to communicate when they are experiencing one of the common symptoms of the virus.

We provided training to support our care teams to look for signs that might indicate that people have the symptoms of Coronavirus (COVID-19), such as changes to their personality or everyday behaviours. 

We also assessed potential communication challenges, like the use of full PPE which could frighten or upset people living with dementia, and continue to work with individuals and their loved ones to ease any stress. Some examples are wearing a name badge and photo on clothing, using drawings or written words to communicate and playing music to aid relaxation. 

Combatting loneliness

Combatting loneliness has been a huge priority during the pandemic. At Exemplar Health Care, we’ve kept the same colleagues working on our units so that people are supported by a consistent team who know them, which is fundamental to person-centred care. 

Our teams continue to be creative in supporting people to take part in meaningful activities and engagement in our homes – including doing everyday living tasks such as laundry and cleaning to give people a sense of familiarity, routine and purpose. 

Where possible, we’ve brought the outdoors inside when people are not able to go out. For example, our activities teams have supported flower arranging or plant potting inside, as well as creating indoor beaches, to support people to maintain their hobbies and interests. 

We’ve also made good use of technology during times of lockdown. At the beginning of the pandemic, we purchased iPads for each of our homes which have enabled residents to stay in touch with their loved ones, as well as provided opportunities for meaningful activity, such as virtual tours of tourist attractions or playing music. 

The spaces in our homes have always been personalised to the people we support, with decorations, photos and posters tailored to their interests – this became even more important during the pandemic, as maintaining interests became key to combat loneliness and frustration. 

Family/loved ones’ needs 

Families have found it incredibly difficult not being able to physically see and be with loved ones during the lockdown period. 

Throughout the pandemic, we’ve supported people to keep in touch via video calls, using systems such as Skype and Zoom. 

When visiting was permitted, we implemented individual risk assessments to support safe visits, outlining what support individuals might need during visits. We also made all the efforts to ensure that visits happened when people wanted them. 

Several of our homes have assigned a new Family Liaison role, whose responsibility is to keep in touch with family and friends, and facilitate communication between service users and their loved ones.  

Multidisciplinary team needs 

Teams across the company, and externally, have utilised tools such as Skype and FaceTime to carry out assessments and discuss people’s needs to ensure that we can continue to provide high quality care during the pandemic. 

Where safe and appropriate, we’ve allocated in-house specialists, such as quality managers and trainers, to specific homes so they can support colleagues without travelling between homes. 

We have continued to work with external teams, such as community nurses and palliative teams, throughout the pandemic to maintain standards of care.

We’re also working as closely and pre-emptively as we can with local GPs and other community-based services who are no longer able to make face-to-face visits to homes, to see and assess residents virtually. 

Support for colleagues

Care work is extremely rewarding, but can be inherently stressful. The pandemic presented unique challenges to colleagues, taking a toll on everyone’s wellbeing.  

Knowing that colleagues who are well, happy and engaged are more likely to provide quality care, Exemplar Health Care implemented a ‘We Care’ package to support colleague wellbeing. 

We started working with a new Employee Assistance Programme partner to provide colleagues with 24/7 support from a team of trained counsellors, as well as growing our team of in-house Mental Health First Aiders. 

Our specialist dementia quality manager has continued to work with each home to provide training and identify the best ways to support residents living with dementia during the pandemic, so that we can continue to uphold the principles of person-centred care.

This has been supported by short online videos and an enhanced eLearning schedule, so that we can continue to ensure that colleagues feel supported, and have the right skills and knowledge to maintain standards of care, despite the challenges of lockdown. 

About Exemplar Health Care 

Exemplar Health Care is a provider of specialist nursing care for adults living with complex and high acuity needs. 

Our community-based homes provide person-centred care and rehabilitation that focuses on maximising independence, building everyday living skills and empowering people to live as fulfilled lives as possible.

We have over 30 homes across Yorkshire, the Midlands, North East and North West. 

Read more about Exemplar Health Care.

About Tracey Carter

Tracey Carter is a senior quality manager (dementia care) at Exemplar Health Care. She’s responsible for ensuring that Exemplar Health Care’s 32 care homes have dementia-friendly living environments and that colleagues receive the right training to be able to support people living with dementia in a person-centred way. 

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Insight

‘Don’t be alone, don’t be too proud to reach out for help’

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After Vasili Kalisperas was born a healthy baby, his jaundice was left undetected by midwives and led to him being left with cerebral palsy and needing round-the-clock care. Here, his mum Elena discusses the huge mental health challenges of being a parent in such a position and how she learned to admit it’s OK not to be OK 

 

I’ve always been a very optimistic and positive person, which I do think helps during such traumatic times, but that’s definitely not to say it hasn’t been a struggle. As equipped as you might be in terms of your outlook on life to deal with challenges, when something so traumatic happens to you, it is of course going to be a struggle to come to terms with that. 

No-one tells you how to cope, you can never prepare yourself for something like this. There is no right or wrong way to do things and you can only get through it as best you can. 

My husband and I dealt with things so differently in the early days. He found comfort in talking about what had happened to Vasili, by sharing a lot of information on social media, whereas for me I was more introvert, I didn’t want to do that.

I was diagnosed with PTSD, which stemmed from the fact our situation was so completely preventable. I became fixated with Vasili still being in the womb, when things were still fine, and I so desperately wanted to find a way to turn back time. I had a water birth with Vasili, and every time I had a bath I’d be in there for hours crying, reliving the whole experience of giving birth to him, feeling the exact pains I felt. 

My husband made sure I was cared for and was OK, but finding help was hard. I did try and get medical help but the waiting list was huge. I waited for over a year to see a therapist but I didn’t find it helpful – she wasn’t trained in my needs and was a general counsellor, so I didn’t get anywhere. I was then referred somewhere else, but that was in the same place I had my check ups when I was expecting Vasili, and that in itself was too traumatic. 

After being bounced around for a couple of years, eventually, I went privately and found an amazing therapist. It does take a huge amount of time and energy to relive the experience, but I found that opening up and talking about how I felt was so important. I also discovered EMDR therapy through these sessions, which was fantastic and really helped me so much. I realised how far I had come through taking that decision to open up and look for support. 

If you have a support network around you, then that can be vital in times of trauma. Even if friends don’t know quite what to say, the fact that they’ll listen can be so valuable. My mum and sister were always there, anytime I needed anything. There were times when no-one could say the right thing, no-one could fix what had happened, but just being able to talk and cry and share what I was going through helped me so much. You need to allow yourself time to grieve, as it really is a grieving process. 

In society, while things have thankfully changed massively in recent years, there is still a feeling for many people that showing emotions is a sign of weakness. There is still a stigma in admitting you’re struggling with your mental health, but I see that it’s like your physical health – you’re never going to breeze through life without any problems at all, it’s going to happen to us all at some point. No-one should ever be afraid to admit they’re struggling and they need support. 

Lockdown has been difficult for us all, and seeing the impact on the children and my oldest daughter in particular, has been awful. She is in high school and not being able to leave the house has had a big impact on her mental health. But as a family, we share our feelings and talk about it, and I teach my children the importance of positivity and an optimistic outlook to help them cope with challenges.  

In learning to deal with what you face and move on with your life, you need to accept it and forgive yourself by recognising it isn’t your fault. It has been a long journey for me – Vasili will be nine in May – but we’ve made so much progress. 

While Vasili and our other children are of course our priority, I’ve learnt the importance of making time for self love and care. Without making time for that, you’ll run yourself into the ground. For the last two-and-a-half years, the children have been at school every day, which has meant I’ve had time to take control of my mental and physical health. I started doing daily exercise, which began by making sure I got out to walk every day, and I now regularly go to the gym. It’s a big release for me. 

I’ve also reached a place where I’m able to look to the future and I’ve started my own business as a hairdresser, working from home in a salon we’ve created in an outbuilding. Being a hairdresser gives me a chance to help other people to open up and discuss anything that’s on their mind, which for many people may be the only chance they have to do that. And also, I’m training to be a personal trainer – I’m already a mental health first aider, and I’ve seen for myself the impact that exercise can have during the most trying times, so I think the combination of mental and physical wellbeing support is so important and I’d love to help people with those. 

For me, in being able to find acceptance of our situation, I’ve been able to move on and find time for myself and what I want to do with my life. I’ve definitely found my purpose, both as a mum and as a woman, and I’m in a much better place now. But without having the strength to open up, to reach out and admit I needed some help, I don’t think I’d have reached this point in my journey. 

The one thing I’d say to people who are struggling, whatever their situation or circumstances, is to talk. Don’t be alone, don’t be too proud, and reach out to someone. I’m so pleased I did. 

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