In this article, Jackie Dean, Clinical Director at N-Able Services and with over 30 years of experience in preparing Occupational Therapy and Care Reports considers the need for the Care Expert to be actively working in their area of expertise in order to advise the Court adequately. She also considers the need to explore corroborating evidence in the context of daily life and bias within the injured party and those examining them. She notes that whilst there remains the need to consider exaggeration and malingering, there should be equal consideration of understatement and subtle problems that are not immediately obvious in order to avoid under-compensation
Recently, during a meeting of Care Experts, my counterpart disputed the level of gratuitous care that I had allowed for emotional support provided by the family to a brain injured teenager. Their view was that this should be considered as part of family life, and that the level of prompting and support that I had allowed for him to complete his everyday tasks was excessive. Needless to say, this Expert had no experience of working in community rehabilitation, nor of brain injury, having worked in acute care at a high level for many years. I was reminded of the need to ensure that the appointed Expert has ‘lived’ experience of the area in which they are commenting and the need for the Solicitors appointing such Experts to have an understanding of the complexities that their client presents. The complexity of the need for support can often arise from the sum of all parts being greater than the individual advice that other Experts provide and the person must be considered in a bio-psycho-social model that explores them within their environment, within their own life, and within their own pre-morbid disposition. Consideration must be given to the individual family system and support mechanisms, the individual’s wishes and aspirations. How else can the Expert advise the Court of the support required to place the individual back to the life they would have had but for the accident? As others have voiced – it is not the injury that matters, but the head in which it has occurred.
Any clinician working in the community with people with brain injury will affirm that much of community based neuro-rehabilitation involves work in assisting people through emotional crises of survivors and their relatives and that focus is not predominantly on the basis of neurological presentation but due to lack of insight, development of mood problems, chemical dependency or family disintegration. The journey from the accident and emergency department to acceptance and adjustment following a life changing injury or illness is a long one; both for the injured party and for their family.
It has been noted for many years that behavioural and personality changes are less understood and less researched. There is also longstanding evidence that the stresses on families increase over time. In my experience, I note that often care and therapy assessments will refer to the person’s cognitive and physical needs in detail but merely define that there are personality changes or the person is disinhibited without adequate analysis and consideration. It is often the issues surrounding insight and awareness that instigate the greatest intervention from Case Managers in the community over time (Clark Wilson, Muir Giles et al, 2016) and that pose the greatest challenges for families and are linked to poor outcomes, and with increased risk of secondary mental health problems and even suicide.
Subtle and neuro-behavioural difficulties are often missed, and there remains limited understanding of the long-term issues arising from minor traumatic brain injury. Whilst symptoms in such cases generally resolve within a relatively short time period, there are individuals who exhibit longer term physical, emotional, social, marital and vocational dysfunction. Valid assessment by Experts is essential in ensuring that there is accurate diagnosis, that treatment is optimally provided and in a timely manner, that impairments and disabilities are not inadvertently reinforced and ultimately that accurate damages can be determined. Although there are studies focussing on exaggeration of impairments there are fewer surrounding minimisation of deficits and ‘response bias’ in those examining. (Zasler, Martelli. 2003) Compensation can be an important factor impacting on presentation.
Currently we see a focus on deliberate exaggeration of difficulty, such as symptom magnification or malingering but in reality Zasler notes that there is a continuum that exists. This extends from “(1) denial or unawareness of impairments through (2) symptom minimisation, (3) normal or average symptom presentation, (4) sensitisation to subtle or benign symptoms or problems, (5) exaggeration or symptom magnification, and up to (6) frank malingering.” This is again an oversimplification of a complex presentation, but can provide a framework for consideration at assessment, and can also be applied to consideration of assumptions made by Experts.
Difficulties with awareness and denial can lead to an understatement or minimisation of cognitive dysfunction, and emotional responses may be repressed during structured assessments and examination. It is important that assessments should consider exaggeration but we should be just as concerned in identifying where symptoms and issues are understated leading to individuals becoming under-compensated. Sometimes subtle difficulties can be missed and the Expert should pay particular attention, therefore, to performance in functional life areas and consider the individual in their daily environment as a whole. Assessments conducted in a quiet, comfortable, stress-free home or office are not always sensitive to the issues facing the person within the real world. The Expert must seek out corroborative or contradictory evidence, witness reports and consider the normal expectations of the family and pre-morbid presentation. Alternative explanations should be considered.
The Care Expert must maintain their objectivity and avoid joining the legal team. They must remember that their duty is to be independent and inform the Court. They should arrive at opinions only after considering a review of all available evidence, and should not be afraid to change their opinion as further information is provided. They should be able to critique opinions from both sides and consider the arguments presented. Information should come from a variety of sources in order to prevent bias of opinion.
Assessment of care, rehabilitation and support needs is fraught with complications, opportunities for assumption and bias. Legal teams should ensure that they choose a professional that has an understanding of the many complications and variables that will impact on presenting a true picture to the Court. Experts should seek out the range of opinions that are available, and lay witness statements, treating therapist and case management records with support worker notes may provide a more longitudinal and holistic picture than the presentation at assessment.
How can N-Able Services Assist?
N-Able Services Ltd was formed in October 2002 by the Directors, Margaret Edwards, Business Director, and Jackie Dean, Clinical Director, who have a wealth of knowledge and experience in the field of litigation work that the company undertakes. We have consistently provided Expert reports for many of the leading solicitor firms throughout the UK and have forged excellent working relationships with these companies. N-Able Services are aware that the organisation is only as good as those that work within it and, as such, recruitment of high calibre employees is key to our suc cess.
Litigation: Occupational Therapy and Care Expert Reports
N-Able Services have a consultancy of highly experienced Occupational Therapists throughout the UK who are able to prepare Expert Occupational Therapy and Care Reports for the Courts. We provide Expert reports on clients following accidents, through work or road collisions, or as a result of medical negligence. Our Expert reports are Part 35 compliant and our Experts continue to work within their field of expertise to ensure that they remain up to date with their practice, knowledge and skill base. They are experienced at responding to questions, undertaking Joint Discussion, attending Barrister’s conferences and attending Court, and many have undertaken Bond Solon Expert Witness courses.
Our Experts provide a detailed report based on their assessment of the client as well as a comprehensive review of the available relevant documentation. The team are supported by an excellent administrative team who understand that communication is paramount for the smooth running and progress of claims and ensuring the efficient delivery of the service.
Case Management Services
Across a range of catastrophic injuries and conditions, N-Able Services has a bespoke Children and Young People’s team and Adult team to ensure we provide the best possible service to these client groups, who have differing needs and challenges.
Clients are appointed a Case Manager with the skills and personality that fits them, to work with the individual to ensure the best outcome is achieved following their injury. We are aware that relationships are paramount in rehabilitation and ensure that the Client has choice by allowing them to meet and get to know the suggested Case Manager before work starts. We also ensure that they meet other members of the team in order that we can provide continuity should their appointed Case Manager be unavailable for any r e ason.
Our comprehensive Case Management report details the likely areas of input, recommendations and actions, along with a guide to the potential cost, of this input. In line with the Client and their family, along with treating therapists, we produce a goal focused rehabilitation plan. We act as an advocate for the Client ensuring that they always have a voice in their rehabilitation journey.
N-Able Services endeavour to provide the highest standard of support to its Clients and always keep the individual and their family as the key focus of all that we do.
In addition to Case Management services and Expert Witness reports, N-Able also provide:
• Immediate Needs Assessments
• Housing/Accommodation Reports
• Occupational Therapy assessment and treatment
• Training – including Manual Handling, Acquired Brain Injury, Medication and Safeguarding
Zasler, ND, Martelli, MF. Mild traumatic brain injury: Impairment and disability assessment caveats. Neuropsychological Rehabilitation, 2003, 13 (1/2), 31-41
Clark-Wilson J, Muir Giles G, Seymour S, Tasker R, Baxter DM and Holloway M (2016): Factors influencing community case management and care hours for clients with traumatic brain injury living in the UK, Brain Injury