Acting to stop harm: the FCA and Appointed Representatives
As a claimant clinical negligence solicitor, I see first-hand the impact a spinal injury can have on an individual’s life. Coming to terms with such a life changing event is difficult and not made any easier by the state’s inability to provide immediate and on-going rehabilitation.
Initial assessment, rehabilitation programme and discharge planning
Upon sustaining a spinal cord injury an individual will be transferred to one of the 13 specialist Spinal Injury Units across the country. Once in a spinal unit the individual will undergo an initial assessment and their spinal injury will be classified using a standardised scale created by the American Spinal Injuries Association (ASIA). This scale is an international system used to classify the level, type and degree of spinal cord injury.
With an ASIA classification to hand a rehabilitation programme will be devised which usually includes intensive physiotherapy, hydrotherapy and occupational therapy. The individual will be taught how to use a wheelchair safely, access their living environment and undertake day to day activities such as personal hygiene tasks. In addition to medical and therapeutic input, psychological support will often be provided to help an individual, and their family, come to terms with such a devastating injury.
Once the rehabilitation programme is in place attention will turn to discharge planning. The Spinal Injury Unit will contact the individual’s local authority to ask the community occupational therapy team to undertake a housing need assessment. At this point the individual’s accommodation will be assessed to determine whether it is suitable and able to cater for their acquired spinal cord injury. The local social services team will also undertake an assessment of need as part of their statutory duty to provide for those with disabilities.
Lack of support
One of the most shocking, and upsetting, aspects of claimant clinical negligence spinal injury practice is the lack of support provided by local statutory services in respect of neuro-physiotherapy. The level of support provided is dependent on where a claimant lives. The postcode lottery is not a media creation. Input can be sporadic and is usually insufficient to meet long term needs. This lack of support often results in deterioration of the individual’s condition and a loss of the gains achieved while in a Spinal Injury Unit.
Our clients regularly face similar difficulties with community occupational therapy and social care provision. The community based teams are faced with ever increasing budgetary constraints which limit the level of input that can be provided. Equipment tends to be of standard specification and rarely adapted to specific needs. There is often no continuity of care with carers changing from day to day resulting in carers not being fully aware of the individual’s particular care and therapy needs.
The 2007 Rehabilitation Code
Whether on-going input is provided by the state or on a privately funded basis depends on the availability of private funds. If an individual has sustained injury as a result of an accident which is the subject of litigation then The 2007 Rehabilitation Code will apply. Until April 2015 this code only applied to personal injury claims; it did not extend to clinical negligence claims. This changed with the introduction of the new Pre-action Protocol for the Resolution of Clinical Disputes in April 2015. Parties to clinical negligence litigation are now required to consider, as early as possible, whether the claimant has reasonable needs that could be met by rehabilitation treatment or other measures.
The temptation is to think that the new protocol will result in the introduction of privately funded rehabilitation as a matter of course. However, upon closer reading of the protocol and the 2007 Code, there is unlikely to be any change. Why? The answer can be found in paragraph 1.4 of the 2007 Code which states “… unless so agreed, the Code does not apply in the absence of liability or prior to agreement on liability being reached.” In a case where a claimant states within a Letter of Claim that there is a need for rehabilitation, the likely response from the defendant, in the absence of an admission of liability, will be that the Code does not apply and any rehabilitation should be sought from local statutory services. Until an admission is received it is unlikely that a claimant will have sufficient means to fund a Case Manager and therapy, whether it is neuro-physiotherapy or occupational therapy in the respect of the provision of suitable aids and equipment (typically, wheelchairs, hoists, slings and accessible baths/showers). Without private funds the individual is reliant on state provision.
What can be done to readdress this lack of access to rehabilitation?
The obvious and simple answer is to amend the 2007 Rehabilitation Code to make the provision of rehabilitation mandatory regardless of an admission of liability. This measure is likely to prove unpopular with defendant insurers but the current system is in need of reform. It should not be forgotten that funds put to good use at the outset of litigation to purchase specialised on-going rehabilitation may well mitigate the extent of loss and the value of the claim. It is only fair, just and right that a claimant is given, at the outset of the litigation process, appropriate and highly specialised care, therapeutic and psychological support to deal with and manage their catastrophic injury and given the opportunity to rebuild their life.
Should you have any questions regarding any of these issues, please contact Richard Lodge or a member of the Clinical Negligence and Personal Injury team. You may also wish to visit our Spinal Injury Claims page.
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