Serious injuries: securing early rehabilitation

Traumatic injuries to the brain or spine can be sustained in a variety of ways, such as in a road traffic collision, at work, while playing sport or during an assault. A necessity for clients with a serious traumatic brain and spinal injury, regardless of its cause, is prompt access to rehabilitation and support services.

Throughout my work, I have been able to see the transformative impact of early rehabilitation for clients in practical terms. In this article, I hope to examine the practical steps taken to secure rehabilitation, and the importance of doing so at outset without delay.

Early Rehabilitation

The evidence is clear - a seriously injured client who has the benefit of access to early rehabilitation will make a better recovery and therefore require less support overall in the long-term. 

This may also make returning to work after the injury a possibility. This is clearly and most importantly beneficial for the client, but it's also helpful to consider that a defendant has a vested interest in actively collaborating with regards to rehabilitation. If a client makes a better recovery, the defendant will pay less damages overall in the event of successful conclusion of the claim.

For these reasons, the guidance documents which generally apply in serious injury claims - Rehabilitation Code and Serious Injury Guide - both promote and reflect the importance of a collaborative approach towards early rehabilitation, which is often put into place before liability is admitted.

The Rehabilitation Code is a framework under which a defendant is invited to fund the process of completion of an Immediate Needs Assessment and the initial early rehabilitation in a collaborative approach. If the case fails later on, a defendant isn't permitted to recoup any of the costs under the code, unless fraud or fundamental dishonesty is proved. 

The code sets out timeframes for communication between the parties at outset. The framework is voluntary, but its use should be considered for all types of personal injury claims, regardless of their value or complexity.

The Serious Injury Guide is aimed at cases with a value of over £250,000 which will involve an element of future continuing loss, such as ongoing loss of earnings, childcare, personal care or therapy needs. Again, this sets out guidance and a timeframe for notifying a defendant, their response, and the request for rehabilitation.

The below shows how these guidance documents come to life in practical terms.

Notification 

After we have been properly instructed and also considered the client’s rehabilitation needs at the earliest possible stage, a defendant is notified in a formal Letter of Claim. With the aim to secure rehabilitation as quickly as possible, the Letter of Claim will often be a brief document with the overall aim to inform a defendant of our representation, an overview of the accident circumstances and injuries sustained as well as a clear request and invitation for the defendant to collaborate with rehabilitation from outset, in accordance with the Rehabilitation Code and Serious Injury Guide. Under the Rehabilitation Code, a defendant should respond to this request within 21 days.

The first request that is made will often cover the appointment of a case manager with a medical or occupational health background to complete an immediate needs assessment (INA), after which the client’s rehabilitation needs will be clearer.

Case Management

A case manager will usually have a clinical background, and their role is to coordinate an individual rehabilitation and support regime according to the client’s assessed specific needs. They will be mindful of the most cost-effective treatment, and in doing so they will continually complete cost-benefit analyses balancing the need for immediate treatment, which is often private, against statutory NHS provision to ensure that any available funds are stretched as far as possible.

If a collaborative approach is feasible, a case manager can be jointly instructed and funded by a defendant.

Immediate needs assessment 

An INA is a detailed document prepared by the case manager at the outset of their involvement. Each client’s position and needs after injury are unique, and this is a useful document to identify the way in which their injury has impacted them, spanning across many areas. 

For example, this might include physical limitations, family life, personal care, any cognitive impairments, and/or any difficulties with accommodation and travel. The INA will set out the client’s position before their injury including pre-existing conditions and/or limitations, their immediate needs and the plan going forward for rehabilitation including any potential barriers to successful treatment.

This document has a dual purpose. It's a useful reference for the treating rehabilitation team, as well as the client’s legal team to see the impact of a client’s injury at that point in time in a holistic way.

Rehabilitation

Rehabilitation may alternatively be funded by interim payments released by a defendant. These are sums of money advanced to a claimant, which is then deducted from any damages that are paid in the event of successful conclusion of the claim.

It's difficult to estimate the rehabilitation services that might be required, as each clients' injuries and needs are different. For clients who have suffered serious traumatic spinal and/or brain injuries, the following rehabilitation may be required:

·        Neurophysiotherapy – to treat physical impairments and limitations.

·        Neuropsychiatric or psychiatric therapy – to diagnose and treat psychiatric conditions such as PTSD, anxiety or depression.

·        Neuropsychological therapy – to assess and treat any cognitive, memory-related or behavioral symptoms as a result of traumatic brain injury.

·        Occupational therapy – to identify limitations in completing and improve on the ability to complete daily activities and meaningful occupations.

·        Speech and language therapy – to assess and treat any impact on speech.

Depending on the specific injuries sustained, there may be other support requirements - such as accommodation needs, assistive technology, or vocational support - or other medical interventions required - examples being plastic surgery, maxillofacial or prosthetics.

Lucy Poulson is a serious injury lawyer at Irwin Mitchell irwinmitchell.com