Brain Injury Group

Wednesday 16 September 2015

Brain Injury Group

Specialist training from

brain injury experts

Supported by

www.braininjurygroup.co.uk

0800 612 9660

[email protected]

http://www.braininjurygroup.co.uk/

Welcome from the

Chair

Mark Beaumont

Director, Brain Injury Group


0800 612 9660

[email protected]


Agenda

Professional negligence and brain injury

Refreshment break

Brain Injury: the hidden signs

Defendants perspective – tactical training

Lunch

Working together with a case manager

Refreshment break

Court of Protection – deprivation of liberty


0800 612 9660

[email protected]


CPD Accreditation

- Accredited by the SRA

- Accredited by APIL Training - any delegates

wishing to claim APIL CPD points must sign the

register which will be available on the

registration desk during the last break

- CPD Certificates will be emailed to you


0800 612 9660

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Housekeeping

Fire Alarms

No fire alarm tests due today so if the alarm

sounds, please evacuate, following the

directions of Exchange Chamber’s staff to the

assembly point

Mobile Phones

Please ensure mobile phones are turned to

silent


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Sponsors

Nestor

Mobility Solutions (part of the Lewis Reed

Group)


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PROFESSIONAL NEGLIGENCE

IN BRAIN INJURY CASES

ANDREW RITCHIE QC 9 Gough Square

LONDON

for the Brain Injury Group

7

Professional Negligence

Lawtel review

10 reported cases in 8 years

Only 2 brain injury cases

You are all doing very well!

8

What are the main mistakes?

1. Missing limitation 2. Giving incorrect advice on

the merits 3. Failing to claim a head of

loss 4. Failing to gather evidence 5. Settling too low 6. Delaying the claim so that

the claimant dies 7. Not believing your client?

9

What happens if I make a mistake?

Advise the client that you may have done so

Advise the client to take advice elsewhere

Get an independent opinion on what you have done from a barrister

Settle or defend the claim against your firm

10

How are damages assessed in Prof neg claims?

Where C looses the right to bring a claim due to the solicitors failure to issue

What is the value of the lost chance?

Kitchen v RAF [1958] Assess the likely full value then

take off a % for the risk that the claim might have been lost

Full value £3,000, award £2,000

11

Examples:

McGrath v Kiely [1965] C suffered an RTA and instructed her solicitor

to sue for her PI Her medical expert failed to include her

fractured clavicle in his report Sol was aware of the injury, C had told him,

but failed to re-instruct the expert The case was pleaded without the clavicle

injury – counsel was not told A few days before the date of trial the D made

an offer of £1,500 Sol and counsel advised C to reject that and

press on, taking into account that asking for an adjournment to plead the clavicle would cost her a lot in costs

12

The trial and the hypothetical trial

At trial C was awarded £1,235 by the Jury Having failed to beat D’s offer C paid the

trial costs: £597 C sued her solicitors for failing to

produce evidence and plead the clavicle injury

At the professional negligence trial Henchy J considered the “hypothetical trial” and what the jury would have awarded

He awarded £100 for the omitted injury Noting that this would have made her likely

award £1,335, This was less than the D’s offer so she did

not recover her costs of the PI trial

13

Settling too low

Hickman v Blake Lapthorne (1) David Fisher (2) [2006]

C suffered a head injury in an RTA He instructed BL to sue and BL

instructed DF for the liability trial The medical reports indicated the C’s

employment prospects were minimal Just before the liability trial the MIB

made money offers DF advised accepting the offer on the

basis that C would probably find work 14

Prof neg claim

C did not find work and being pennyless sued his solicitors and counsel for undersettling

Jack J held that no reasonable counsel or solicitor would settle the claim on the assumption that C would be able to work …

When the medical evidence was that he would probably not be able to work

Liability was apportioned 2/3rds to counsel and 1/3rd to solicitor

15

How to defend yourself

Walker v Chruszcz (1) Irwin Mitchell (2)

C sued his solicitors and counsel for undersettling alleging they bullied him into settling low at trial

C had a PI claim against his employers

C had put his foot on a JCB under its hydraulic bucket arm whilst the engine was running

The arm came down and crushed his foot.

16

Allegations

Counsel and sol advised C in conference earlier that he had a reasonable claim with a small risk of losing and there would be some contrib

On the day of trial D made an offer and counsel and sol advised C that he faced a serious risk of losing

C took the advice and the offer C asserted he was bullied into

settling and counsel was not properly

prepared for trial and bottled it

17

Defeated …

Counsel and solicitor asserted in response that C had shown himself to be an unreliable witness between the date of the advice and the trial

So the risk of losing was much higher Davis J: accepted the evidence of the

lawyers Held that C made his own mind up to

settle in any event The lawyers did not threaten to

withdraw from acting They just advised him to settle

18

So where are the risks in future?

Areas of risk for brain injury practitioners:

Borderline Capacity Therapy pools Lost years claims

19

Life on …….

20

BORDERLINE brain injury claimants

What damages can the Claimant recover? The Court of Protection fees?

The costs of a Deputy?

The costs of investment advice for the award?

The costs of setting up a PI trust?

The costs of a professional trustee?

The costs of a gratuitous trustee? 21

The Mental Capacity Act 2005

Governs the assessment of capacity

5 main principles:

Presumption of capacity

Must take all practical steps to help C before incapacity can be found

Unwise decisions alone do not prove incapacity

Can the same purpose be achieved in a less restrictive way?

C’s best interests are the foundation

22

The trigger for a finding of incapacity

S.2: “A person lacks capacity in

relation to a matter if at the material time he is unable to make a decision for himself in relation to that matter because of an impairment or disturbance of the functioning of the mind or brain.”

23

Medical evidence must prove

S.3: he is unable to

understand; and/or Unable to retain; and/or Unable to use or weigh;

and/or Unable to communicate the “relevant information”:

24

Suarez bite:

How do you prove that?

With a neurologist – to evidence the organic brain injury

A neuro-psychologist – to evidence the reduced cognition

A neuro-psychiatrist to diagnose the psychiatric condition

All must opine on the S.3 factors

25

Lack of capacity – What can be claimed?

Can C claim damages for the fees for advice on investing the award?

If C lacks capacity – A lump sum award will be invested for him

Who pays the stockbrokers and the investment advisers fees?

Not D: the law assumes C will invest in government Gilts at low risk producing 2.5% above inflation

If C chooses to invest elsewhere in shares, can he claim the costs?

See Eagle v Chambers [2005]

26

Eagle v Chambers 2005

Waller LJ:

“A defendant must pay by way of compensation damages assessed on the basis that the return on the money will be by way of investment in gilts even though the practice is to gain a higher return by investing more broadly. To order the defendant to pay the costs of taking the advice so as to enable the investment to be made more broadly so as to enable the claimant to recover more than that which he would have recovered if investments had been maintained in gilts is to make the defendant lose both on the swings and the roundabouts”

27

COP costs and Professional Deputy fees?

If the Claimant is proved to be a protected beneficiary because he is unable to manage his affairs

Due to D’s tort He can claim the COP

costs and his Deputy’s fees?

28

Rialas v Mitchell 1984 O’Connor LJ: “there is the question as to whether the fees of

the Court of Protection for managing the fund created by the award of damages can be recovered as a separate head of damage. … this head of damage was first awarded by Mr. Jowitt Q.C… in Futej v Lewandowski, …in 1980. The basis of the award was that as a result of his injuries the plaintiff was unable to manage his affairs and that the sums charged by the Court of Protection were greater than those which would be incurred by a plaintiff managing his own affairs … . It seems to me that Futej v Lewandowski was correctly decided on this point, and I think that this is a loss directly flowing from the injury and is recoverable from the defendants.” 29

What if capacity is disputed? Where is the borderline?

The presumption of capacity:

In Re Cumming 1852

“It is the right of an English person

to require that the free use of his property and personal freedom shall not be taken from him on ground of alleged lunacy .. Without being allowed the opportunity of

establishing his sanity”

30

Lindsay v Wood 2006 Rash Decisions

Stanley Burnton J “A finding that a person lacks

capacity is a serious matter since it deprives him of basic human rights, namely the power to make decision as to his own affairs and assets. Many people of full capacity make rash decisions, or cannot be trusted to manage their money sensibly. Thus these qualities or deficiencies do not necessarily lead to a finding of incapacity.”

31

Masterman-Lister, still the leading case on capacity to litigate

Facts:

in 1980 C was 17 and when riding his motor bike he was run down by a milk float!

He suffered a serious brain injury

He sued through a next friend but took over the case when he reached 18.

In 1987 he settled on advice for £76,000

32

Mastermann - Lister

6 years 3 months later he sued his solicitors for under settling

He served a neuro-psychiatric report stating he had lacked capacity all along

so he was not limitation barred and so he could not have consented to the settlement

So how is capacity to litigate assessed by the courts?

33

I lacked

capacity

The Court of Appeal reviewed the authorities and approved the judgment of Boreham J in White v Fell 1987

34

Boreham’s Principles:

Capacity for each issue is assessed separately

Capacity to manage money is different from capacity to litigate

To have capacity C must have:

1. The insight to realise he has a problem and needs advice

2. The ability to seek advice from an appropriate adviser and instruct him

3. Sufficient mental capacity to understand the advice and make the decision

35

So did Masterman-Lister have insight, ability and understanding?

36

After age18:

he had found work as an

office clerk.

he had run the claim with his

lawyers.

In 1992 he had bought a

house

Drs Jacobson, Leng, Rose,

Powell gave evidence,

They advised that C had

regained capacity a few years

after the accident.

His counsel, Brain Langstaff (as he then

was), asserted:

C had made some life decisions which

proved he lacked capacity: • he had joined the vegan society for life;

• he had taken part in an anti-hunt demo

during which a van was burned and he

had been arrested;

• he had written in a letter that he would give

every penny away if he could go out with

a particular girl…

37

Court of appeal decision

that behaviour is quite normal.

C had capacity to litigate

The claim failed

38

Capacity to manage financial affairs - Saulle v Nouvet 2007 Facts:

C suffered a severe brain injury in an RTA.

On a preliminary issue to determine capacity

Neither party asserted incapacity

But Dr Rose advised that C lacked capacity

Andrew Edis QC ruled that the CPR and the MCA required the court to determine the issue

C was very difficult to live with, moved between his 2 sisters, then parents and then partner and then lived alone

Occasionally violent, impaired memory and processing

He was also exaggerating his symptoms

39

Facts post RTA: C fathered a son; brought contact proceedings without a

litigation friend abandoned when he learned that another

family member (a police officer) had failed in his own similar action.

managed his own bank account and credit card without getting into debt.

Received some funds from an insurance policy. Made savings decisions and paid maintenance

to his former partner for his son. Used a computer at a basic level travelled on holiday alone to Marseilles and

Australia. family helped him buy the flights and gave

him a doctor’s letter explaining his disabilities.

40

Experts

Only Dr Rose asserted that due to his pathological grief and lack of ability to adjust he lacked capacity.

Dr Jacobson, Dr Scheepers, etc considered he had capacity to manage his affairs except on the occasions when his condition overwhelmed him

When that occurred he could not make rational decisions

41

Support: Andrew Edis QC

“S.1(3): A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. This involves focussing on the present state of affairs. Is the Claimant unable to make a decision, and, if so, have all practicable steps been taken to help him without success? In fact there is no evidence that he is unable to make a decision, and to the extent that he may be (because of his intellectual deficits and mental state), his family and his medical and legal advisers are able to provide support to ensure that he has proper explanations of information required for the decision, and that he takes decisions when he is in the right frame of mind to do so. There is no evidence that these steps have failed. On the contrary, the evidence from the family is that they have succeeded.”

42

The borderline problem – all or nothing -

The older classic cases were “all or nothing”

Either COP & Deputy damages were awarded or they were not.

If the C could make decisions with help – no damages were awarded.

What about professional trustees and family trustees who help?

What about damages for the time spent by the people who provide the help needed by C, because of the injury?

Should the cow be paid to help the bear get the sweety? To support the bear…

43

When the Claimant lacks capacity? Can you create a personal Injury Trust instead of appointing a COP Deputy

If C lacks capacity and receives a settlement less than full value,

due to litigation risk or contributory negligence,

can he then ask the COP to authorise the setting up of a Personal Injury trust instead of using a deputy

Can he thereby avoid the full COP costs?

In SM v HM (2013) EWHC B6 (COP) HHJ Hazel Marshall QC approved of this course.

The Judgment contains a useful analysis of the relevant factors: the need for protection, insight, a close family, a track record of care etc.

44

SM v HM 2011

The facts:

C was 7 when he applied

He was born with Cerebral Palsy caused by negligent medical treatment at birth

C was seeking approval to settle the claim

In the meantime C applied to the COP for permission to set up a PI Trust rather than have a deputy and COP supervision

The proposed trustees were C’s mother and solicitor

45

Hazel Marshall QC

Deputyship is the norm but… The MCA permitted the Court

to authorise a PI trust instead as an exception

To justify the exception C have to prove that his interests were better served by the PIT

The factors to consider are:

46

Factors

The restrictions which deputyship imposes: Wills: the intestacy rules on death before

majority would disadvantage C Potential to recover: and if C does recover and

get released from COP supervision, yet remains vulnerable, the lack of support C would have

The advantages of a deputy: He controls all of C’s assets not just those within the trust

The higher supervision provided by the COP Advantages of a PIT The quality of the trustees (Mother was first

rate, responsible and would control costs) The comparative cost – much cheaper Order for PIT made

47

So – if it can be ordered, Can you claim Professional and family Trustees fees? If the COP can permit this for someone who lacks

capacity why do the courts not award damages for the trustee’s work?

Also where C has capacity dependent on seeking and receiving assistance…can he recover for the costs of the assistance which he needs?

For any Claimant, to retain State Benefits PI damages should be paid into a PI trust.

It costs money to set up a trust. A professional trustee is needed where C has

“dependent capacity” – capacity dependent on receiving explanations, advise and guidance to make decisions

A responsible family trustee may also be appointed The trustee provides the help required by the MCA

2005 for C to exercise Dependent capacity

48

The MCA requires help to be given

The Code @ paragraph 3 states: “Before deciding that someone lacks capacity

to make a particular decision, it is important to take all practical and appropriate steps to enable them to make that decision themselves (statutory principle 2). In addition, as section 3(2) of the Act underlines, these steps (such as helping individuals to communicate) must be taken in a way which reflects the person’s individual circumstances and meets their particular needs. This chapter provides practical guidance on how to support people to make decisions for themselves, or play as big a role as possible in decision-making.”

49

Cases about Trustee costs for those with borderline Capacity

Defendants usually rely on A v Powys [2007] to assert no damages are payable

Facts: C suffered cerebral palsy She had high intelligence, was not intellectually

vulnerable. She had grave physical disabilities but was on the

verge of joining the Irish National Paralympic horse riding team

Claimed the costs of managing her award by a professional trustee and for the work involved in paying her carers, preparing annual accounts, managing the accounts, negotiating employee contracts and protecting her against unscrupulous individuals

Mother was her litigation friend 50

Lloyd Jones J

Dismissed all the heads of claim Reasoning: “The Claimant is of full mental capacity. There is no evidence to

suggest that this will not remain the case for the rest of her life, nor has this even been suggested. Until she reaches the age of majority directions for the administration of the award will be by the Cardiff District Registry. It has not been suggested that this is in any way inadequate or inappropriate. The Claimant has not been a patient under the Mental Health Act 1983 and will not be a person who lacks capacity under the Mental Capacity Act 2005. Accordingly, the Court of Protection will not be involved in her case.”

51

Lets duck the issue…

“I have heard competing submissions as to whether it would ever be appropriate to make an award in the case of someone who is not and will not be a patient for the cost of a trustee performing a protective role similar to that of a court appointed deputy in the case of a patient. However I do not have to decide that question because it is clear to me that such an award would not be reasonable in the particular circumstances of this case”

“C suffers from severe physical disabilities but I do not consider her to be any more vulnerable than any other severely physically disabled Claimant. On the contrary, she has the great good fortune to have a devoted and protective family. Accordingly, it seems to me that the cost of providing for a professional person to perform such a role cannot be justified.”

52

Cost of premier banking service

“As a result of her injury, the Claimant is unable

to handle cash, use bank cards or write

cheques. …I propose to allow for the annual

cost of a premier banking service from the

date of her majority.”

53

Scottish case: SRC v Kemp [2001]

Lord Brailsford “I have been provided with sight of that report

and it offers advice as to the likely costs that would be incurred in managing a trust fund for the Claimant. The report expressly raises the possibility of the creation of a personal injury trust with the Claimant as the beneficiary. In these circumstances it appears to me that there was no impediment in the present case to the costs associated with the creation and administration of a personal injury trust for the benefit of the Claimant forming a separate head of damages in this action.” 54

Borderline cases: Evidence on dependent capacity: If D’s and C’s experts advise the court that the Claimant

has capacity but only with help, guidance, explanation and

assistance Who is to provide the assistance, day in and day out? Who it to determine which phone contract the Claimant will

enter? How to set up a direct debit? Which gas company to contract with and how to apply for the congestion charge exemption? Who is to advise the Claimant on which investments he chooses to make after receiving advice from an investment advisor? Who is to run the correspondence concerning the PPO? Who is to advise on the house purchase decisions?

Why should these services be provided free when physical care provision is valued and awarded? 55

Evidence of disputed borderline mental capacity

The same question arises even more starkly where D’s experts say that the Claimant has capacity with help

But C’s experts advise that he does not have capacity even with help.

The Claimant will calculate the costs of a professional deputy and the Court of Protection costs and put them in the schedule

The Defendants will deny the costs entirely in the counter schedule.

Historically such cases are settled with a reduction for the risk that the capacity issue will be lost – that is not fair to either party

56

The answer – Claim damages for “dependent capacity”

In Saulle v Nouvet [2007] EWHC 2902 Andrew Edis QC commented as follows:

“58. I also draw attention to the proposition discussed

in argument that where a person is held to have capacity because he is able to understand and seek suitable professional advice, as here, it may be necessary to include in the award a sum which is designed to enable him to retain such advisers. This head of award has been controversial in the past, but it is arguable that section 1(3) of the Act requires further consideration of it in a case where a person who has impaired mental capacity is held nonetheless (not) to be a patient.”

So the door is open. 57

2 recent settlements in borderline cases

C claimed damages for incapacity (COP and Deputy costs) D disputed lack of capacity – asserted with help C could

make decisions So C claimed in the alternative damages for dependent

capacity: Setting up the trust, the professional trustee’s costs and expenses for the help to be provided

On evidence from a professional deputy The Defendants were hoisted on their own petard: their

experts asserted C had capacity if he had help to exercise capacity yet D had allowed nothing for the help

Both settled at sums between the dependent capacity claim and the incapacity claim

If you don’t claim it you may be negligent

58

Hydrotherapy Pools

A v Morcombe Bay NHS Trust [2015]

C was born in 2007 Suffered hypoxic ischaemic injury at

birth leading to severe quadriplegic spastic cerebral palsy

She was totally immobile with virtually no spontaneous ability to use her hands and arms

She was effectively blind, doubly incontinent and dependent on tube feeding

59

Disputed

The only effective way of easing the pain caused by the spasms

was to immerse her in a hydrotherapy pool

The journey to and from the nearest pool was around two hours

C claimed the costs of building and maintaining a pool in her adapted accommodation

D disputed the head of loss

60

Warby J

When determining whether a given item of expenditure should be incurred to meet a claimant's reasonable needs

consider whether the same or a substantially similar result could be achieved by other, less expensive means

A general requirement of proportionality could not be applied to the quantification of damages for future costs, as that would be at odds with the basic rules relating to compensation for tort

The cost of making good the harm suffered by the claimant, insofar as money could do so, was not a defence if there were no cheaper alternative that would produce a substantially similar effect

Pool awarded

61

Lost years claims

Totham v KCH [2015] C suffered HIE at birth and resulting

cerebral palsy Her life expectation was to age 47 Her claim included loss of earnings

from 47 – retirement and loss of pension to age 93, her normal life expectation

D disputed that on authority: Croke v Wiseman [1982]

Which set down the rule that only damages for life can be claimed by a young person

62

Elisabeth Laing J kicked the door – but did not step through The rationale for the decision in Croke was that

the court should not speculate as to whether a claimant might in future have had children who would require support.

The decision in Croke was inconsistent with the principle of full compensation.

D's negligence had reduced T's life expectancy C would not earn the salary and pension which

she would have earned In principle she should be be compensated for

that loss. The policy justifications referred to in Croke were

inconsistent with the judgments in Pickett v British Rail and Gammell v Wilson [1982]

The court at first instance was bound by Croke

63

So it should go to appeal

Totham should go to appeal

It is not listed on the court of appeal case tracker site

But you should be aware that the rule in Croke may go ….

So plead the loss and be prepared to go higher

64

Litigate safely -

Thank You

Andrew Ritchie QC

9 Gough Square

65

REFRESHMENT BREAK


0800 612 9660

[email protected]


Brain injury: the hidden signs

John Norris

Consultant Neurosurgeon

Southeast Neuro Sciences Centre

The slides from this talk are not available for

download due to their clinical nature

© Weightmans LLP

THE DEFENDANT’S PERSPECTIVE

Emerson Wallwork Partner

DDI 0161 233 7437 [email protected]

© Weightmans LLP 70

HOW YOU MAY SEE THE DEFENDANT?





HOW WE SEE OURSELVES



Do Defendants/Insurers Share a Common Goal/Philosophy?

▪ Accuracy of reserving

▪ Minimum possible shelf life

▪ Limiting legal costs

▪ Desire to meet only genuine claims

▪ Maintaining control over the legal process

▪ Limiting claims creep/inflation


Practical Issues – Initial Instructions

▪ Initial letters

▪ Strategic development calls

▪ Early RTMs

▪ Road maps


Practical Issues - Rehabilitation

▪ All insurers support rehabilitation ‘in principle’

▪ What is in it for the insurer?

▪ Promoting independence/dependency

▪ Challenging suspicions that therapies/support implemented to boost value of claim

▪ Effective use of statutory services

▪ Willingness to revise/re-cost proposals


Practical Issues – Interim Payments

▪ Defendants increasingly expect something in return for pre-action interims

▪ Part funding of INA recommendations

▪ Eeles v Cobham


Practical Issues - General

▪ Disclosure/management of records

▪ Ongoing communication

▪ Timetabling/selection of experts

▪ Unilateral/mutual disclosure/exchange


Practical Issues - Settlement

▪ Early settlement/meeting expectations

▪ JSMs/RTMs

▪ Part 36 Offers

▪ Mediation

▪ All inclusive offers


Conclusions

▪ Be open with issues/concerns

▪ Early disclosure of records/preliminary reports may secure the interim payment required

▪ Don’t assume the defendant has understood your case

▪ Avoid nasty surprises

▪ Most defendants responsive to collaborative approach


Questions/Abuse?

LUNCH BREAK

Sponsored by

Mobility Solutions (providing

wheelchair accessible vehicles, part

of Lewis Reed)

Afternoon session will

resume at 1.45 pm


0800 612 9660

[email protected]


Working Together with a Case Manager

Catherine Williams

Independent Living Solutions Ltd

• Founded in 1992

• Provides Paediatric and Adult Case Management

• Based in Wiltshire but cover England and Wales

• All Case Managers have a professional background either in Health or Social Services

• Client centred approach

• All of our Case Managers receive ongoing supervision and mentorship.

Introducing: Independent Living Solutions

• Case Managers within ILS needed appropriate and timely therapists

• In 2012 Rehabilitation Solutions was developed

• All therapists are specialists in their fields

• Provide adult and paediatric services

• All therapists receive regular supervision

• 10 specialist teams are available and cover England and Wales.

Rehabilitation Solutions

Speech and Language Therapy

Physiotherapy Paediatric

Occupational Therapy

Adult Occupational Therapy and vocational

rehabilitation

Educational Consultancy

Nursing Visual Impairment Moving and

Handling

Posture and Seating

Housing, Adaptations and Equipment and

ADL

Rehabilitation Solutions

Aims: Greater Understanding of…

• The role of Case Management and key areas of work

• What is included in the Case Management Immediate Needs Assessment (INA)

• Factors influencing on the ongoing level and focus of Case Management

• Case Management and the Legal Team – best practice and suggestions for working together

‘It is the duty and responsibility of case managers to support people to get the

most out of their lives’

‘A case manager is someone who will get on with the job and get their hands dirty

and make things happen’

Ref: What do personal injury solicitors expect of case managers? Susan Bidswell 2013

What is Case Management Definitions

• ‘Case Management is an active process devoted to the co-ordination, rehabilitation, care and support of people with complex, clinical needs and their families. It aims to facilitate their independence and improve their quality of life whilst acknowledging safety issues.’

(British Association of Brain Injury Case Managers - BABICM)

• ‘Case Management is a collaborative process which: assesses, plans, implements, co-ordinates, monitors and evaluates the options and services required to meet an individual’s health, social care, educational and employment needs, using communication and available resources to promote cost effective outcomes.’

(Case Management Society UK - CMSUK)

Duty of care to client

Focus is client not litigation process

Case Management often continues after the case has settled............

“My right hand man”….

Case Managers Should Be:

• Professionally qualified.

• Members of BABICM and/or CMSUK.

• In receipt of comprehensive Supervision and Training.

• Supported by a Duty Case Manager.

• Backed up by an established administration team.

• Supported by a Human Resources Department.

Immediate Needs Assessment Includes:

• Background information and client’s /family priorities for NOW and NEXT 12 MONTHS

• Activities of daily living assessment • How the client and family are able to participate in the

family, community and work/education. • Level of current therapy support and what family and CM

feel could be beneficial. • Identification of priorities and immediate needs and Case

Management recommendations to meet them • Estimate of costs associated with setting up support.

Case Managers often cover the following: • Care/Support.

• Accommodation.

• Nursery/School/College/Work Placement.

• Facilitating leisure & social activities.

• Coordinating therapy input and the Multi Disciplinary Team.

• Equipment.

• Holidays.

• Transport.

• Statutory services eg Children’s Team, Mental Health Service

Recruitment of a Care Team • Advertising and recruitment of staff.

• Obtaining references and DBS checks.

• Training and supervision which conform to CQC requirements.

• Risk assessment.

• Insurance – carers indemnity.

• Employment contracts.

• Employment issues e.g. access to advice on Employment Law through client insurance.

• Payroll Service.

Recruitment and Management of care staff Is not always straight forward….. Can the family cope with having carers involved now? Recruitment Issues

Retention Issues

Carers and client/family relationship difficulties

Carers

• Resign

• Suffer a bereavement

• Become ill

• Have to be dismissed

• Raise a grievance

Responses to recruitment campaigns vary significantly...

Highest ever 124 enquiries 40 to 50 applicants In contrast 0 enquiries 0 applications received Some 15 enquiries 0 applications

“Our Case Manager manages our care team, so that means I

can have some distance from any

problems they may have here.”

Care Support - John • Client Michael – 2 ½ years old.

• Living with Mum and Dad.

• Birth injury – severe cerebral palsy - dependent on others for all care needs, severe physical learning disability.

• Health problems.

• Parents acknowledged emotional and physical demands.

• No previous care support.

Plan – to engage a private carer.

Client now 6 years old.

Care team of 3 now in place.

Graph showing 4 years of case management costs for a child with severe cerebral palsy, who was aged 4 when Case management intervention commenced....

0

500

1000

1500

2000

2500

3000

3500

4000

4500

5000

Aug-08 Oct-08 Dec-08 Feb-09 Apr-09 Jun-09 Aug-09 Oct-09 Dec-09 Feb-10 Apr-10 Jun-10 Aug-10 Oct-10 Dec-10 Feb-11 Apr-11 Jun-11 Aug-11 Oct-11 Dec-11 Feb-12 Apr-12 Jun-12

Accommodation

• Knowing the client and family.

• Not just about physical dimensions of a property.

• Location, location, location!

“I don’t belong here......I just

don’t fit in…………….”

Accommodation - Gemma

Personal injury aged 3 years due to delayed treatment for Septicaemia. Lost digits and neuropsychiatric symptoms.

Family moved following advice from Accommodation and Care Experts. In a new estate, the other side of town from the rest of their close-knit family.

Case Manager instructed later – behavioural problems causing strain and the family was not coping being away from support network.

15 years old

RTA aged 3 years

Right hemiplegia, learning difficulties and epilepsy

Mobility may deteriorate through adulthood

Wanting to remain close to the family home long term – very close knit family involved with ongoing rehabilitation

Accommodation - Sam

Solution:

Two adjacent properties – staged adaptation. Living in larger family home with adapted bathroom and therapy facilities. Weekend and holiday care support. Renting out the next door property until he leaves college and wants to live independently. Will then adapt property to suit his adult needs and accommodate 24 hour care team as needed.

Education/Occupation - Suzanne

• ABI due to RTA at 17 years.

• Completed education at specialist college at age of 22 years.

• Desire to complete further study or become employed.

• Be a value to, and be valued in, society.

• Residual mobility and memory difficulties.

• Requiring 1:1 supervisory support throughout the day.

• Good progress – where next?

Considerations- what next for the rest of my life?:

• Further rehabilitation? Acute phase has ended.

• Support options?

• Dreams for the future.

• Research different options – visited several units/ colleges with Suzanne’s mum. Arranging for Suzanne to visit.

• Time.

• Decisions, decisions, decisions……. Enabling the organisation of thoughts and plans.

• Case Manager – pivotal in facilitating the process due to the trusted working relationship separate to parents.

• Knowing the client and family, working with their priorities.

• Private therapists - recruiting and working together.

• Ensuring standards. • Making progress with therapy

has cost implications!

• Regular reviews.

• Funding.

Therapy

Therapy - Michael

• Birth injury.

• Now 5 years old.

• Attends local special school.

• Statutory service therapy provision, some unmet needs.

• Frustration, behaviour, and impact on development.

Needed:

Better access to opportunities to develop communication.

Integrated services.

Consistency.

Note the term manager in ‘Case

Manager’!

Estimate of Costs - Our estimated costs are

usually fairly accurate

But…….we can’t predict the future……!

William and George

• 6 years old.

• Severe cerebral palsy.

• Gastrostomy fed.

• Hoisted for all transfers.

• Dependent on others for all of care needs.

• No verbal communication.

• Live with their parents and two siblings.

• Attended specialist schools.

• Similar travel distances involved.

Estimated costs for first Year of CM input in INA

• William - £13,688.00 • George - £13,731.50

Actual Costs Spent In First Year

• William - £4,059.25 • George - £22,572.50

Estimate Actual

William £6,455.38 £5,580.42

George £24,144.72 £24,311.70

Costs for second year of CM input

“It is not so much the disability the person has, but the person and family

the disability has.”

Aged 8 years, athetoid cerebral palsy and complex needs. Home schooling. Unsettled case.

Care Expert report stated that from 12 years onwards he would need two carers to work with him.

Received a phone call from very experienced carer/ Team Leader. She has a sore shoulder and back from assisting him during hoisting. Strong, unpredictable movements are causing ongoing difficulty.

Care Issues and Unanticipated Costs - Joe

Conversation with Solicitor and subsequently Care Expert….

Risk assessment and discussion confirmed that we needed two carers present during waking hours.

Unexpected costs for recruitment, specialist training, additional recruitment when team members did not work out.

Moving & Handling protocols needed close monitoring and expert training.

Effective use of 2:1 carers – additional client-related tasks were defined to help justify and use their time effectively.

Client also needed time without close contact to reduce developing dependency and reliance on others to “occupy” him.

Invasion of “family time”- a problem at weekends with teenage sisters.

Huge implications for immediate Case Management and HR costs and ongoing costs for maintaining a larger team.

Revised costs drawn up between Case Manager and Litigating team.

Implications for preparing the case 12 months away from settlement!

To ensure you do the best for your clients, you need to have an understanding of the realities of Case Management input and

care, including costs, for each of your clients.

One set formula does not work!

Working together: The Case Manager can…

Develop day-to-day involvement and ‘on the ground’ working knowledge of the client and family.

Help the family get a feel for the elements they can coordinate and what they will need ongoing assistance with following settlement (often related to carer management).

When required, can provide information and updates to Solicitor – summary or full case notes.

Can provide additional information eg time & motion studies for care use, impact on the rest of the family (24 hour care v residential placement)

Identify other needs e.g. emotional support, residential schooling, potential DOL or safeguarding issues .

Give adequate notice about reports for budgets, costs, and needs information.

Provide information about interim payment budgets and implications for planning of care, therapies & accommodation.

Clarify re: privilege in case notes.

Working Together: The Legal Team can….

Clarify opinion re: interface and use of statutory provision and services.

Not insist that expert report recommendations are put into place immediately – families often need time to adjust to new therapies, care regimes.

Advice Get a Case Manager in as early as possible.

Establish good communication between you and the case manager early on.

Request reports from your case manager.

Read their contact notes. “The records kept by the CM can provide very useful evidence on a variety of issues to substantiate the claim that is being made for the client”.

Advice

Ask for explanations as to HR costs.

Facilitate discussion between Care Expert and Case Manager where appropriate.

Ask for information specific to the client and their family that impacts on costs needed for future care and CM input.

• The Case Manager has a unique insight into client/ family situation due to their regular contact and day to day working knowledge ‘One may find that with their solicitor the family may display a ‘stiff upper lip’ however, they may

be more forthcoming with the Case Manager who can report back the difficulties to the solicitor,

which can then influence the instruction of experts and drafting of the schedule’.

“If it is demonstrated that the care package, therapies and equipment are working well, it becomes more difficult for the defendant to argue these are not reasonable at trial”

“When a case manager was first mentioned I couldn’t see why I would need one, it seemed an

unnecessary cost. Nicola’s above and beyond approach, her care, tact and sensitivity and ability to deal with pretty much anything has made me change my mind completely. She has brought an

in-depth knowledge, excellent manner and organisation and assisted me immeasurably.

Without her valued input and assistance my family and I would be in a much worse situation…..”

Contact us…

• Case Management referrals & INA enquiries: Operations Team. T: 01722 742442 E: [email protected]

• CPD Training: Lindsay Oliver - External Training and Presentations Coordinator. T: 01722 742442 E: [email protected]

• General enquiries: T: 01722 742442 E: [email protected]

Head Office: 2 Wilton Business Centre Wilton Salisbury Wiltshire SP2 0AH T: 01722 742442

Leeds Office: No 1 Leeds 26 Whitehall Road Leeds West Yorkshire LS12 1BE T: 0113 357 0055

mailto:[email protected]



REFRESHMENT BREAK


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Deprivation of liberty

Brain Injury Group Training Day

16 September 2015

Victoria Butler-Cole

[email protected]

Outline

• What is deprivation of liberty?

• The Cheshire West decision and its aftermath

• The current position

• The future

Article 5 ECHR

1) Everyone has the right to liberty and security of the person. No-one

shall be deprived of his liberty save in the following cases and in

accordance with a procedure prescribed by law:

...

(e) The lawful detention of persons for the prevention of spreading

infectious diseases, of persons of unsound mind, alcoholics, drug

addicts and vagrants

(4) Everyone who is deprived of his liberty by arrest or detention shall

be entitled to take proceedings by which the lawfulness of his

detention shall be decided speedily by a court and his release

ordered if his detention is not lawful.

Deprivation of liberty

• Article 5(1) - the three limbs:

– Objective limb

– Subjective limb

– State involvement

• Article 5(4) – entitled to take proceedings

to determine lawfulness of detention

HL v United Kingdom [2004]

ECHR 720 • “’.. the concrete situation was that the applicant was under

continuous supervision and control and was not free to leave. Any

suggestion to the contrary was, in the Court’s view, fairly described

by Lord Steyn as ‘stretching credulity to breaking point’ and as a

‘fairy tale.”

• Lord Steyn: “The truth is that for entirely bona fide reasons,

conceived in the best interests of L, any possible resistance by him

was overcome by sedation, by taking him to hospital and by close

supervision of him in hospital and, if L had shown any sign of

wanting to leave, he would have been firmly discouraged by staff

and, if necessary, physically prevented from doing so. The

suggestion that L was free to go was a fairy tale.”

DoLS

• MCA 2005 amended to introduce a system

for authorising and challenging

deprivations of liberty in care homes and

hospitals - DoLS

• Applications to Court of Protection

required for people in other settings

including supporting living

Key features of DoLS

• Authorisation should always take place

before the DOL starts, except in real

emergencies

• Urgent and standard authorisations

• RPRs and IMCAs

• Best Interests Assessors

• Reviews

• s21A court applications

Cheshire West and its aftermath

Cheshire West and Chester

Council v P [2014] UKSC 19 • People are deprived of their liberty if they are

under continuous supervision and control

and

not free to leave

‘these cases are not about the distinction between a restriction on freedom of

movement and the deprivation of liberty. P, MIG and MEG are, for perfectly

understandable reasons, not free to go anywhere without permission and

close supervision’. Baroness Hale

The impact of Cheshire West

• On DOLS authorisations:

– From 7,000 applications in year 1....to over

100,000 anticipated applications in 2015.

• On local authorities

– Prioritisation tool

– Backlogs re applications, and now renewals

• On court applications for supported living

placements

• On the number of s.21A appeals/challenges

Cheshire West and brain injury

• A5 engaged where:

– Not living in a residential home/hospital

– 24 hour care required but access to

community not limited

– No-one is objecting

– Hypothetically not free to leave

The backlash

• W City Council v Mrs L [2015] EWCOP 20

– 93 year old lady with dementia living in her own home.

– 3 x daily visits from local authority carers

– Able to exit home into enclosed garden, but not to leave the property

– Night-time door sensors in case Mrs L tries to leave

– Not free to leave, but not under continuous supervision and control

• Rochdale Metropolitan Borough Council v KW & Ors [2014]

EWCOP 45

– K: cognitive and mental health problems, epilepsy and physical disability

– living in own home with 24 hour support funded by the state • I find it impossible to conceive that the best interests arrangement for Katherine, in her own home,

provided by an independent contractor, but devised and paid for by Rochdale and the CCG, amounts

to a deprivation of liberty within Article 5.

• She is not in any realistic way being constrained from exercising the freedom to leave, in the required

sense, for the essential reason that she does not have the physical or mental ability to exercise that

freedom.

The backlash, continued...

• Bournemouth Borough Council v PS & Anor [2015] EWCOP 39

– 2 bed bungalow with garden

– 24 hour live-in support staff

– No access to kitchen

– Medication given by staff

– No locked doors, but door sensors

– If B left, staff would follow him, try and persuade him to return (if appropriate) and

ultimately, seek an MHA assessment or call the police

– No DOL • You know a DOL when you see it: “when I see a bird that walks like a duck and swims like a duck and

quacks like a duck, I call that bird a duck”

• B was free to leave

Law Society guidance

http://www.lawsociety.org.uk/support-

services/advice/articles/deprivation-of-liberty/

• Duration. Any DOL that extends beyond 2-3 days is likely to be ‘non-

negligible’ and that a substantially shorter period will be relevant in setting

where intense control is imposed

• Continuous supervision and control. Present where there is a plan in

place which means that people responsible for P’s care need always

broadly to know where P is and what P is doing.

• Free to leave. Covers both temporary removal and permanent relocation,

and hypotheticals

• ...and another 137 pages of guidance/checklists/scenarios!

Other problems

• How much State involvement is enough to trigger A5?

– Needs assessment?

– Direct payments?

– Knowledge of arrangements?

– Self-funders in private care homes caught (in practice)

– Do Deputies have to alert local authorities to possible DOLs?

• Consent

– Can you consent in advance (if fluctuating capacity)?

– What do you need to understand to consent to a deprivation of liberty?

Procedural issues

• Re X litigation – streamlined process

introduced but now suspended

• P must be a party (for now)

• Still no non-means-tested funding for non

Sch A1 cases

• More s21A challenges as objection by P

must generate an appeal (AJ v A Local

Authority [2015] EWCOP 5)

Current position

• Contradictory caselaw, and more to come

• Procedural problems and delays

• Out of date Code of Practice

• Law Society guidance

• No formal government guidance and none

likely pending the Law Commission’s

conclusions

The future

• Law Commission consultation now open

• Key elements:

• Move to Tribunal system rather than CoP

• “Protective care” scheme:

• Supportive care

• Restrictive care and treatment

• Hospital care (including some palliative care)

• Broader, but simpler (?)

Supportive care

• No independent assessment

• Just proper care planning plus an

independent advocate and/or an

‘appropriate person’

• No court/tribunal role

• Not for domestic settings

Restrictive care

• Would cover deprivations and restrictions on liberty

• Applies to care homes and supported living

• Criteria – continuous and complete supervision and control, not free to leave, barriers or restraint used, P objects, significant restrictions on diet, clothing, contact etc

• New Approved MC Professional, plus advocate/appropriate person and access to the First Tier Tribunal

The hospital scheme

• Hospitals treating physical disorders; includes hospices providing palliative care

• Doctors able to authorise a DOL for 28 days (further paperwork!)

• Responsible clinician appointed, as well as advocate and appropriate person

• Further authorisations require AMCP approval

• Applications to First Tier Tribunal possible

Mental impairment

• MCA uses MHA definition for DOLs –

disorder or disability of mind.

• Law Comm proposes expanding this to

include ‘pure brain injury’ (including PDoC)

by using standard MCA definition –

impairment of or disturbance in functioning

of mind or brain

Timetable

• Consultation open until November 2015

• Final proposals from Law Commission by

December 2016

• Then – primary legislation required...

http://www.39essex.com/

resources-and-training/

mental-capacity-law/

39 Essex Chambers LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number 0C360005) with its registered

office at 39 Essex Street, London WC2R 3AT. 39 Essex Chambers‘ members provide legal and advocacy services as independent, self-employed barristers and no entity connected

with 39 Essex Chambers provides any legal services. 39 Essex Chambers (Services) Limited manages the administrative, operational and support functions of Chambers and is a

company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street, London WC2R 3AT

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Documents

Brain Injury Group