I was asked to give a talk a while ago to the Walton Neuro Centre in Liverpool, and I used the title “Lawyers treating severely brain injured patients”. I wanted to see if the doctors could contemplate the possibility that the intervention of lawyers could, within the damaging limitations of the judicial system, actually be constructive in the therapeutic process. They appeared to be very receptive to that notion (possibly just being polite), and I wonder if the time has come when doctors and lawyers are able to co-operate more extensively in the management of the patient’s rehabilitation. This appears to be particularly topical because insurers are keen to be involved in that process, which raises some interesting ethical issues.

In my opinion, the legal management of a claim can and should start, subject to the family’s wishes, whilst the patient is in hospital. That may sound controversial (shades of ambulance chasing) but in fact it is precisely the reverse. Again and again I see families who have not been helped by lawyers, doctors or the State, and who have consequently struggled to get out of hospital when ready, and have then found it almost impossible to survive in the radically changed circumstances following catastrophic injury. As I write this, I can think immediately of three clients who all need lawyers’ help to move on in their lives; one has been stuck in an institution for well over a year when all she wants to do is to go home.

This management question raises what is, I think, a fundamental difference in the approach of personal injury lawyers. The traditional method of managing a claim was to take the claimant as you find him, and establish the cost of what he thinks he needs. The more sympathetic system is to enable (empower?) the claimant and his family to put their ruined lives back together following the catastrophe, and to do so in a way which suits them, not the insurers, nor the State, nor even the defence solicitors.

Going back to visiting the patient in hospital, it can be exceptionally difficult to return home from hospital; the obvious example is the patient in a wheelchair, whose house is inappropriate. In order to find new accommodation, the sympathetic lawyer has to find out what the family really wants. It is not uncommon for the patient to be told that he should move into a bungalow, because that would suit his disability. However, bungalows do not suit everyone, and families should not feel any pressure to alter their wishes to suit lawyers. The correct rule is that there is no fixed rule; I have clients all over the country, in all sorts of different accommodation, and the only true guidance they should be given is that they ought to act reasonably. The rule for the lawyers is to listen and enable, thereby managing the client’s expectations and solving his problems. By doing that, you discover what he wants, help him to find it (eg by giving guidance on how to look, or by employing a property finder), obtain the money to buy it, arrange the legalities, and sort out the moving. What could be more therapeutic for the patient than to have this huge problem solved to his, and his family’s, satisfaction?

When that first problem is solved, by discharge of the patient into suitable accommodation, all is not over. First, the accommodation may prove not to be suitable after all. That raises the question whether they have to stay, or can they move when they realise their mistake? Putting that on one side, it’s no good finding the right accommodation if the patient cannot survive without help. Families are often the most powerful support for the injured person, but they cannot always provide continuous care; it is axiomatic in this world of catastrophic injuries that 24/7 care is highly demanding, and beyond the ability of all professional carers. And yet families are frequently left to manage on their own. Good care and support can be the key to rehabilitation. It is widely acknowledged that a good case manager, with suitable support workers, can provide community-based rehabilitation.

Unfortunately, that can be expensive, and it may not be realistic to see it as cost-effective. Sometimes there is no chance of reducing dependence, or of rehabilitation back into work, and so the cost is aimed at improving quality of life. If that is so, it can be difficult for insurers to justify funding an expensive package. However, if that is the correct course for the individual claimant, his lawyers must make the rehabilitation process work by obtaining the money, and helping the client to initiate a suitable package of support and rehabilitation.

It is all too easy for lawyers to overlook the pressures of continuous care, but it is our duty to perceive the problem, and manage it in a way which will suit the family, and help them to cope.
That requires money, which has to come from the defendant. Oddly though, it is not universal for claimants’ lawyers to obtain substantial interim payments, even though this is an essential part of the good management of a claim.

An area of difficulty which has arisen in the last few years is that insurers seek involvement in the process of “rehabilitation”, used in its widest sense of finding suitable accommodation, implementing a support package, sourcing suitable equipment, and generally returning life to as near normal as can be expected. The concept sounds ideal; co-operation in the way envisaged when the Civil Procedure Rules were implemented in 1999. Sadly, all is not as it seems, and there can be a risk that outside involvement will be damaging. There was an attempt recently to ensure involvement by insurers in the brain injury case management of a patient, but fortunately it did not succeed; case management is a form of clinical treatment, and it should remain part of the treatment process.

Another example of the difficulty is the attempt by insurers to insist that a claimant should seek local authority or health authority help in finding accommodation, and in the provision of care. There are all sorts of tactics being used, some covered with sugar to hide the bitter taste, but they all have the same object; to reduce the cost to the insurer. Good management of a claim requires the lawyers to understand the law correctly, apply it individually to the client, support the client and his family in their decisions (helping them to reach reasonable ones), and resist outside pressures. This is not always easy, because in order to obtain sufficient money to buy accommodation, instal care, fund equipment, and put life back together again, one has to rely on the insurer (or other defendant). Sometimes, they will promise co-operation in return for involvement, and that might not be the best way forward. It is very difficult to see what a defendant could add, by way of expertise or advice, to a well-managed claimant’s team.

When accommodation and care have been arranged to the claimant’s satisfaction, there are many other areas which all need attention, and money. Transport can be vital to a person’s well-being; if he does not have a suitable wheelchair or vehicle, he cannot move around with dignity and independence; he cannot go out, be entertained, or live life as the rest of us know it. Suitable equipment can make an enormous difference in what an injured person can do, but it all costs money.

The more we can persuade doctors that we have a place in the therapeutic process, the more likely it is that they will be prepared to involve us in the therapeutic management of their patient. By working together as a team, it is more likely that the patient will achieve a good result.

An incidental effect of this form of rehabilitative management is that, by the time the case comes to trial, most of the problems and uncertainties have been resolved, and there is less left to argue about; those are the cases which are more likely to settle, thereby saving the claimant from stress and worry, and aiding his rehabilitation.

Bill Braithwaite QC