The code that open doors to recovery
This article was featured in the Spring 2017 edition of Neuro Rehab Times.
The role of solicitors within neuro-rehab is changing for the better thanks to recent updates to the Rehabilitation Code. Mark Quigley, a leading serious injury lawyer and managing partner of national law firm Sintons LLP, discusses the issue.
When an individual acquires a brain injury through the fault or negligence of another, it is incumbent on the solicitor representing the claimant to consider, at the earliest opportunity, how best to improve the claimant’s present and long term physical and mental wellbeing.
Since 1999, legal practitioners who are involved in claims on behalf of those catastrophically injured should have regard to the provisions of the Rehabilitation Code.
The latest version of the code was published in 2015. It places an obligation on the claimant solicitor to have an initial discussion with the claimant and/or their family to identify whether there is an immediate need for assistance in relation to matters such as aids and adaptations.
Where such a need exists then the code provides a mechanism whereby the claimant solicitor can engage with the compensator (such as an insurance company) in order to consider how best to address these needs.
The code promotes the collaborative use of rehabilitation and early intervention in the compensation process. Its purpose is to help the injured claimant make the best and quickest possible medical, social, vocational and psychological recovery.
Precisely what form any rehabilitation may take needs to be determined in light of an assessment process undertaken by a suitably competent and qualified individual.
The code provides for an Immediate Needs Assessment (INA) to be undertaken by a case manager. Care should be taken to ensure that the case manager instructed to undertake the INA in a case involving an individual with an acquired brain injury meets the ethical standards and best practice advice from organisations such as the British Association of Brain Injury Case Managers (BABICM) and the Case Management Society UK (CMSUK).
The code encourages parties to the litigation to seek to agree the selection of an appropriate qualified independent case manager who is best suited to address the claimant’s needs.
The duty of a case manager is to the injured person. The nature of the relationship with the claimant is therapeutic.
The case manager is not part of the litigation team. The INA and all aspects of interventions and treatment delivered under the terms of the code sit entirely outside of the litigation process.
Consistent with this principle, the INA report should not deal with issues relating to legal responsibility. When undertaking an INA, the case manager is required, under the terms of the code, to have regard to ten “markers” when assessing an injured person’s rehabilitation needs.
These are as follows:
- Age (particularly children/elderly)
- Pre-existing physical and psycho – social commodities
- Return to work/education issues
- Dependents living at home
- Geographic location
- Mental capacity
- Activities of daily living in the short and long term
- Realistic goals, aspirations, attainment
- Fatalities/those who witness major incidents of trauma within the same accident
- Length of time post-accident
In addition, the INA should give careful consideration to the physical and psychological injuries sustained by the claimant and subsequent care received or planned.
The case manager should ensure that contact is made with the treating care professionals in order to gain a full understanding of the claimant’s condition.
This in turn involves consideration of the availability or planned delivery of interventions or treatment via the NHS or other providers such as an employer or health insurance scheme.
It is important to bear in mind that the purpose of a claim for damages is to put the injured person in the same position they would have been in had they not sustained injury as a result of the negligence of another person.
It is well established law that an injured claimant is entitled to have not merely the cheapest rehabilitation but rather the rehabilitation they reasonably need so that their lifestyle can be enhanced with a view to restoring it, so far as possible, to its pre-accident state.
A case manager will also look at the impact upon the claimant’s domestic and social circumstances, covering issues such as mobility, accommodation and employment, and give consideration as to what type of therapeutic input would be beneficial.
Where the case manager makes recommendations for early intervention then the likely cost and duration of any proposals for treatment or other measures should be set out in the INA together with their goals, duration and anticipated outcomes.
Goal setting should follow the principles of SMART – namely be specific, measurable, achievable, realistic and time bound. Compensators should not refuse rehabilitation unreasonably. The code imposes a duty on the compensator, from the earliest practicable stage, to consider whether the claimant would benefit from any additional medical or rehabilitative treatment and to work collaboratively with the claimant’s solicitor on how best to address those needs.
Once the case manager has made recommendations, the compensator should give immediate consideration as to whether or not they are prepared to provide funding to enable the recommendations to be implemented.
Without question, early intervention by an experienced case manager leading a therapeutic team can have a profound impact on the quality of life of a catastrophically injured person.
A solicitor has a duty to act in the best interests of their client. Those who act on behalf of claimants with an acquired brain injury must not lose sight of the fact that this does not always equate to maximising damages; maximising life chances for the injured person is more important.
Mark Quigley is managing partner and a catastrophic injury lawyer at Sintons LLP. You can contact Mark on mark.quigley@sintons.co.uk or on 0191 226 4899.
