Brain injury solicitors report greater cooperation from insurers

March 25, 2020

By Bill Braithwaite QC

New research by barristers at Exchange Chambers and brain injury rehabilitation charity, Calvert Reconnections, has examined the effectiveness of the brain injury claims and rehabilitation process through 164 in-depth interviews with claimant brain injury partners at law firms throughout the country.

Bill Braithwaite QC, Head of Exchange Chambers and expert advisor to Calvert Reconnections, provides his analysis on the key findings.

The majority (71%) of claimant solicitors do not believe the state is able to provide effective rehabilitation for seriously brain injured patients.

This is not at all surprising.  Acute care is often very good but subsequent rehabilitation can be hit and miss, doubtless because of shortage of money.  That’s why the private and charitable sectors are so important.

Over the last 12 months, the majority (66%) of claimant solicitors have dealt with a defence solicitor / insurer who has refused to use the Rehabilitation Code.

This is very worrying.  The purpose of the Code is to make sure that suitable rehabilitation is available to those who need it, which is to the benefit of the claimant, family, insurer (potentially reducing lifetime cost), and to society in general.

Over the last 12 months, the majority (63%) of claimant solicitors have dealt with a defence solicitor / insurer who has refused to accept their suggested case manager.

This is more understandable because claimants and defendants will have different views about who does a good job.  In the end though, the claimant and family have to be happy with the chosen case manager and have trust in him or her.  Sensible dialogue on both sides would improve this problem.

Over the last 12 months, the majority (68%) of claimant solicitors have dealt with a defence solicitor / insurer who has refused to accept the recommendations of the Initial Needs Assessment.

This is extremely disappointing.  On the face of it, the Initial Needs Assessment should set out obvious recommendations, which should be capable of agreement by both parties, as a starting point. Delay is not helpful to the injured person.

The majority (70%) of claimant solicitors believe that the Rehabilitation Code be made compulsory.

Unfortunately, making the Code compulsory might not serve a useful purpose because rehabilitation will only work at its best if both sides enter into it voluntarily.

The majority (81%) of claimant solicitors believe the application process for interim payments under Part 25 of the Civil Procedure Rules is too costly and time consuming.

I can’t see any improvement here.  If the defendant chooses to resist an application for interim payment, there is no obvious alternative to the court process and that is inevitably slow.  There is no obvious way to speed it up, partly because evidence has to be gathered on both sides and that takes time. The answer, of course, is mature dialogue between sensible lawyers on both sides – too much to ask for?

The majority (61%) of claimant solicitors do not believe there are enough suitably qualified brain injury case managers in the UK.

This is surprising because it has been a growing profession since it started in the UK in the 1990s.  However, perhaps it is the suitably qualified phrase that is the stumbling block.  Sometimes it seems as though people put themselves forward when they do not have the training or experience for the job.

Claimant solicitors believe greater cooperation by insurers has been the greatest advance over the last 3 years.  This was placed above advances in treatment and the greater number of rehabilitation units now available, with 56% of respondents reporting improved cooperation so patients gain earlier access to rehabilitation.

This is extremely encouraging. One of the most heartening aspects of ABI rehabilitation is the increased understanding by insurers of its benefit and their resulting co-operation.

Claimant solicitors believe walking / rambling / fell walking is the most effective outdoor activity for brain injury rehabilitation.  Fishing, horse riding and gardening also score highly.  

Part of the process of change has been the way in which rehabilitation units are run. Historically, they tended to be quite institutionalised, whereas there has been a move away from that approach wherever possible. I always think that we should look beyond the traditional rehab routes, and one area of real interest to me is the positive role which outdoor activities can play in brain injury rehabilitation. Many years ago, I represented a young man with a very severe brain injury, who could not work, and couldn’t function in daily society; his salvation was fell walking.  Since then, I have seen countless people who have benefited from some form of outdoor activity.

There is considerable medical support for the notion that outdoor activity is helpful in brain injury rehabilitation. The challenge moving forward is to incorporate outdoor activities into rehabilitation plans wherever appropriate.