Brain injuries and vulnerability: the challenges of proving the need for overnight care

One of the most contentious issues in serious brain injury cases is the provision of night time care. 

The arguments deployed by claimants are usually based on significant cognitive deficits, behavioural problems and extreme vulnerability. 

The arguments deployed by defendants are based on proportionality: it is unreasonable to seek a substantial sum and implement an overnight care package to protect against risks that may occur once every so often. 

Brain injury care challenges facing lawyers

The real challenge faced by claimant lawyers is that vulnerability can lead to significant problems without warning very quickly. It is vital that cases are not comprised without adequate provision for overnight care claim without very careful consideration.

A knock on the door or a telephone call are usually quite innocent examples of social interaction. For a vulnerable individual with a severe brain injury, this can be an anxiety provoking moment. They can be taken advantage of and often are. It is not uncommon for brain injured survivors to be pressured into signing up to some scheme or another which would involve them parting with their money.

The internet is a further problem. That can be a breeding ground for those with bad intentions, seeking to take advantage of vulnerable people. This can expose financial and sexual vulnerability.

There may be vulnerability caused by relationships, sexual or otherwise.

Overnight supervision reduces vulnerability risks

Seeking to evidence the need for overnight supervision is not straight forward. The defendant may not agree that there is a need and will seek to restrict funding. The claimant will seek to implement the care. 

However, by implementing the care, the risks associated with vulnerability are often removed or at least significantly alleviated. In addition, the supervision will gradually reduce so as to maximise independence and autonomy insofar as possible. This can often create a false economy whereby defendants believe that the need has been removed altogether, rather than being reduced to the least intrusive level in a very controlled way.

Clearly, one option is to see how a brain injury survivor gets on without any support. However, this is often contrary to risk assessments prepared by the case manager and the therapists and can be a very high risk approach. 

They are often very uncomfortable at the prospect of leaving a vulnerable person without support, simply to identify what the care need is in the future for the litigation. Also, even if the survivor is left overnight without support and there are no serious incidents or near misses, that does not necessarily mean that there would be no overnight issues for the remainder of their life.

Care packages and case law

There is case law to support claimants recovering significant care packages even if they only need the care or the second carer for some of the time. In Wakeling – v – McDonagh and MIB [2007] EWGC 1201 (QB), HHJ Mackie QC, sitting as a Judge of the High Court, found:

“The obligation upon the Defendant is to provide not simply what is necessary for Adam to survive but what he reasonably requires to have proper access to the very limited opportunities available to him. In order to provide Adam with what he reasonably requires it may well be that from time to time the provision of care available is not utilised to full capacity. But that potential waste of resource is something the Defendant should bear given that manifest unfairness to him of having to save money by imposing unnecessary restrictions on the enjoyment of a very limited life”. 

 There are other useful judicial remarks such as those made in Manna – v – Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC 2279 (QB). Cox J found that there were real practical difficulties in setting up a care regime with one carer, allowing for flexible care as needed.

These findings can apply equally to overnight care vulnerability. The vulnerability is difficult to predict. That does not mean that it should not be mitigated against.

Night diaries can evidence a pattern. Witness statements can give context to the support workers’ notes. Social media entries and text messages can highlight vulnerability.

Vital those needing overnight care receive funding

It remains the case that overnight care is often opposed far more vehemently than day time care. That is because the need for the care overnight than in the day; however, the risks overnight are just as significant, if not more so. It is of vital importance that those who need funding to protect against vulnerability obtain that funding. There should be no pressure to compromise a case until the needs, both present and future, are very clearly known and understood. 

David Withers is a Partner of Irwin Mitchell LLP. He leads a team specialising in serious injury litigation. He represents individuals who have suffered very significant traumatic brain injuries, spinal cord injuries and amputations. He is the secretary of the Association of Brain Injury Lawyers’ Brain Injury Special Interest Group. 

Find out more about Irwin Mitchell's expertise in helping people and their families following serious injury at our dedicated brain injuries section.