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Recovery of seriously injured woman hailed as 'incredible' as she launches new career as author

A specialist lawyer has hailed her seriously injured former client as ‘an inspiration’ as the road accident victim prepares to launch the next stage of her life as a published author.

Jessica Stevens, from Hendon, North West London, was left fighting for her life after a serious road accident in 2015 in which she suffered a severe traumatic brain injury, a fractured pelvis, an injury to her right shoulder, a collapsed lung and internal bleeding, spending six weeks in a coma.

But serious injury expert Kim Smerdon, from law firm Boyes Turner, worked with the then 25-year-old to get her access to rehabilitation as soon as she was able to leave hospital – enabling her to return to her job with the Financial Ombudsman within 14 months of her accident.

And now Jessica, who continues to suffer some health problems as a result of the accident, will take the next step in her career as she launches a book called Everything is Broken, which tells the story of her injuries and her recovery.

Jessica still remembers nothing about the accident or the period immediately before or after it but was subsequently told that she was struck by a speeding driver as she was turning right onto the main road from the street in which she lived with her parents and brother.

Once out of the coma, a month and half after the incident in June 2015, Jessica spent a further three months in hospital, learning to walk and talk again.

In the immediate aftermath, she was left very unsteady on her feet, with slowed and slurred speech and with her right arm locked in a bent position, as well as facing weakness down the whole of the right side of her body.

Although she was eventually able to return home, she had to undergo continual rehabilitation involving a number of therapists providing physiotherapy, occupational therapy, personal training and a phased return to work.

Through sheer determination, Jessica made an impressive recovery, though she still suffers from ongoing problems including a continued weakness in her right-hand side, limited dexterity in her right hand, inability to straighten her right arm, problems with balance, scarring, memory problems and an increased risk of epilepsy and further stroke.

Now, she has captured her battle to recover and achieve the best possible quality of life she can in her honest and revealing book. It will be launched at a special event at the end of April hosted by Boyes Turner, who worked with Jessica to ensure she could access the support she needed and will continue to need.

Jessica said:

“I was out cold from the accident for six weeks and even when I came out of the coma, I then had to learn how to walk again, how to brush my hair and to dress myself.

“The rehabilitation I was able to get as soon as possible meant I could work with an occupational therapist, a neuro physio and a personal trainer to work my way back to being as strong as possible and get some confidence again.”

The 29-year old has already spoken to some other Boyes Turner clients who have suffered similar life-changing injuries to pass on her experiences and said her book aimed to help others who suffer serious injury in their recovery as well.

“It really does turn your life upside down in a moment, not just for me but for my family as well. It’s been a difficult journey, sometimes very emotional, but I’m proud of what I’ve achieved in my recovery and in being able to tell this story too,”

she said.

“My story shows what can be achieved with the support of the right people and a little determination. I look back on where I was and I’m delighted with where I am now. I’ve still got a way to go and I still have some effects from the accident to deal with but I hope people see what I’ve achieved and it helps them as they begin their recovery.”

Kim Smerdon, a partner and specialist in brain and serious injuries at Reading-based Boyes Turner, said:

“I couldn’t be happier for Jessica. To have achieved what she has achieved in terms of her recovery and the life she has built for herself is nothing short of incredible.

“She’s an absolute inspiration to anyone who faces the challenge of recovering from a serious brain injury.

“Her story shows the importance of injured people receiving quick rehabilitation and physiotherapy to help them begin their recovery journey as quickly as possible. It was vital in helping Jessica and played a huge part in her being able to return to work as quickly as she did, which was always her goal.

“To see her now launching her own book is just fantastic. She deserves every success and I’ve no doubt that this is just the beginning of another inspirational journey for her.”

Chris Day, whose firm Filament have published Everything is Broken, said:

“Jessica has been on a traumatic, emotional but ultimately successful journey from her original accident and injuries to where she is today. Her story makes for incredible reading and will inspire many people, whether they are in a similar situation or not.”

Why you should use a local solicitor for road traffic accident injury claims

If you are involved in a car accident or other type of road traffic accident where liability is disputed, having a local solicitor handle your claim can increase your chances of securing fair compensation.

There are a number of reasons a local claims specialist is likely to be the best choice, including their local knowledge, ability to take a ‘hands on’ approach and their connections with other local road traffic accident experts.

In this article, we will cover some of the key ways using a local road traffic accident claims solicitor can increase your chances of securing compensation in a disputed accident claim.

Making use of local knowledge

An experienced local road traffic accidents solicitor should have strong knowledge of local accident hot spots, traffic conditions and other factors that could be highly relevant to your claim. They will typically have dealt with many other claims similar to yours, possibly even at the same location and in similar circumstances.

This specific local knowledge can help your solicitor to ensure all of the relevant information is brought to light to support your claim (e.g. that several other people have had similar accidents at the same location in recent years).

This type of background information can be crucial to building your case, so its value should not be overlooked.

Visiting the scene of the accident

Where there is a dispute over liability for a road traffic accident, police reports and police witness statements should not be taken at face value when building your case. In our experience, there is no substitute for visiting the scene of accident in person to collect accurate evidence on factors that may have played a part in the events leading to an accident.

This visit should always take place as soon as possible and at the same time of day and under similar conditions to those at the time of the accident to give the most accurate and meaningful information.

Critical evidence a scene of accident visit can produce includes information on:

  1. Road layout – including width of lanes, bends, crossings and lights to establish what the parties involved could have seen at the time of the accident.
  2. Surrounding environment – including anything which might affect driver visibility, whether the area is heavily populated, number of pedestrians at the time of the day the accident occurred, any other specific hazards.
  3. Traffic flow and speed limit – can help judge whether the defendant should have been able to take evasive action at the speed they should have been travelling.
  4. Distances – these can be deceiving, so it is important to understand the direction of travel of all parties and what they could and could not have seen.
  5. Common practices of motorists on the particular stretch of road – e.g. whether bus lanes are being used by other vehicles etc.
  6. Road markings – such as hatchings and signage, which can help to establish whether they may have been reason for confusion over road use.

Non-local solicitors may rely on technology such as Google Maps to judge road conditions, which often miss key details, such as a slight bend in a road that appears straight on a map, or where the images used for Google Maps are not up to date.

Non-local solicitors may also rely on a local agents they do not know personally to visit the site for them and produce a ‘locus report’ or accident reconstruction report. While locus reports and accident reconstructions can be highly useful in disputed claims, it is critical that they be produced accurately and reliably.

For this reason, it is generally safer to work with a local lawyer who has an established working relationship with the road traffic accident experts who produce these reports.

Producing a locus report

A locus report provides clear, detailed information on the place where an accident occurred. It will typically include photos, sketches, diagrams and other types of visual information, as well as a written report on the area.

Locus reports are often critical pieces of evidence during a disputed road traffic accident claim, helping to reduce any uncertainty or leeway for dispute over the traffic conditions or other factors that may have led to the accident in question.

Using accident reconstructions

Accident reconstruction experts will examine the vehicles involved in an accident, as well as looking at the scene of the accident, reviewing evidence from witnesses and any other relevant information to build up a clear picture of what occurred during the accident.

By looking at the damage to the vehicles, the distance the vehicles moved after the impact, any damage to the surrounding environment and other details, an accident investigator can often establish important details, such as how fast the vehicles involved were moving at the time of the accident.

They will then use this information to put together a reconstruction of exactly what they believe occurred in the moments leading up to and during a road traffic accident.

Increasingly accident reconstructions use video and 3D animation to help visualise the events leading up to an accident. This evidence can often be highly compelling in disputed liability cases.

Speak to your local personal injury lawyers in Reading

If you have been injured in a road traffic accident, our specialist personal injury solicitors in Reading have the local knowledge and contacts to help you build the strongest possible case, so you have the best chance of securing fair compensation.

We work with a number of trusted local agents who can produce detailed, reliable locus reports, as well as accident reconstruction experts to help us fight cases where liability for an accident is in dispute.

Our personal injury team have many years of experience handling road traffic accidents for people in Reading and the surrounding area, including Berkshire, Oxfordshire and Buckinghamshire. This gives us deep knowledge of local accident blackspots and challenging traffic conditions, allowing us to give you the strong local expertise you need for a successful claim.

To start a road traffic accident claim with Boyes Turner or to find out more, please get in touch by calling the team on 0800 124 4845 or emailing at claimsadvice@boyesturner.com.

Coroners and Inquests: What do I need to know?

Information for bereaved family members of those with asbestos related illnesses

We act for bereaved families who have often lost a loved one due to asbestos related illness, such as mesothelioma or lung cancer.

What is an inquest?

An inquest is a judicial enquiry to find the answers to a set of questions:

  • Who has died?
  • How did the death occur?
  • What was medical cause of death?
  • When did the death occur?
  • Where did the person die?

The cause of death is usually the focus of the inquest. The inquest is not intended to attribute blame or responsibility for the death of a loved one, nor does it deal with any criminal liability.

What does the Coroner do?

Coroners are independent judicial officers. They are responsible for establishing why a person has died and the circumstances in which the death took place. The Coroner’s involvement is unrelated to any claim for compensation, however, a Coroner’s verdict of “industrial disease” as the cause of death can be used to support a claim. Coroners are responsible for investigating unnatural, violent or sudden deaths of an unknown cause. These include deaths following an industrial disease such as mesothelioma, lung cancer and asbestosis.

Should I report a death to the Coroner?

If a loved one dies from an asbestos-related illness, or there is concern that a death is in someway linked to asbestos, a request for investigation into the death will be carried out by a Coroner. The death is usually reported to the Coroner by the medical staff or GP treating the person who has died. If you suspect that the death was caused by an asbestos-related illness and you think that the death has not been reported to a Coroner, then we would recommend that you report the death to the Coroner yourself. This is particularly important if there is an ongoing claim for compensation, as the Coroner’s verdict and findings will become part of the evidence in a civil claim.

Will there be a post mortem?

A post mortem may be required to establish exactly how the deceased person died. We understand that the thought of a post mortem is unpleasant, but in many circumstances, Coroners can decide that a post mortem does not need to be carried out if a conclusive biopsy was taken during the person’s lifetime (for mesothelioma). In our experience the coroner’s officers are very sensitive and will keep you informed of the process so that the funeral or other service can be held in accordance with your wishes. The decision to hold a post mortem rests with the Coroner and the post mortem is performed by a pathologist. If a post mortem is necessary, it will usually be performed within a few days of someone passing away.  Small tissue samples are often taken during the post mortem for examination.

What happens to any samples taken during the post mortem examination?

The Coroner or Coroner’s Officer will ask you what you would like to do with the tissue samples once the investigation has been completed. We would urge anyone who has an ongoing claim for compensation or is considering one in the future to ask for the samples to be retained. It is extremely important that these tissues are not destroyed and we recommend that you ask for them to be retained as they may be needed for further analysis as they form part of the evidence required for a civil claim for compensation. If you have a civil claim in progress, we will write to the Coroner on your behalf to ensure that these tissues samples are preserved. In some cases, we instruct an independent pathologist to review the tissue samples to provide a report for the ongoing case. The defendants are also entitled to instruct their own expert and should not be deprived of the opportunity to do so by the lung samples being destroyed.

What happens after the post mortem?

Once the post mortem has been carried out, the Coroner releases the body for the funeral or cremation. All receipts for funeral expenses should be kept as they can be included in a compensation claim. After reading the pathologist’s report from the post mortem the Coroner will decide whether an inquest is required. In most cases involving asbestos, the Coroner will open and then adjourn (postpone) the inquest, providing details of the actual inquest dates once it has been set.

At this point, the Corner will also issue an interim death certificate. This certifies that the death has occurred and should enable all insurance claims to be processed. However, it cannot be used to register to death; that comes about when the final death certificate is issued after the inquest.

The interim death certificate will, however, allow the estate to be administered and if there is a will, you can apply for a Grant of Probate. If a will was not made, the next of kin may apply for a document called a Grant of Letters of Administration. Click here for advice from our wealth protection team who can help with the probate process.

Preparations for an inquest?

Once the inquest is opened by the Coroner, it could be a number of months or even years until the actual hearing takes place. Usually with asbestos-related claims, it takes place within a few months, but the length of the wait can vary by district. During the inquest hearing, the Coroner may ask witnesses to give evidence in person. The Coroner will also rely on medical reports and letters from treating physicians, GPs and other clinicians. If the deceased passed away in a hospice, records from the hospice could be read out at the inquest.

Before the inquest, the Coroner will direct whether or not a post mortem needs to be performed; obtain any medical records, letters or reports from hospitals, surgeries, care homes, hospices; obtain statements from any relevant witnesses. If the deceased gave us a lifetime statement then we will disclose the statement to the Coroner with the family’s permission.

If someone has passed away without making a statement or solicitors have not previously been instructed, the family may be asked to provide a summary of the deceased’s employment history and any likely asbestos exposure. The Coroner often reads out the statement and can ask the family questions. Please be reassured that the Coroner, Coroner’s officer and ushers are very sensitive and are used to dealing with people who have recently suffered a personal loss. We attend many inquests and are always pleased to see the sensitive way in which the staff approach the family during this very emotional time.

Will I have to read a statement out?

If you have provided a statement and you think that giving evidence at the inquest will be too difficult or distressing for you, then you should let the Coroner or Coroner’s officer know, as it may be possible to make arrangements for your statement to be read out on your behalf. We are also happy to liaise with the Coroner on your behalf. On the day of the inquest the witnesses providing evidence will be questioned by the Coroner. Either you or your representative will be able ask the witnesses questions. We often attend inquests and can provide you with any support and assistance needed, if necessary.

What conclusion will the Coroner reach?

At the end of the inquest the Coroner records what is now known as ‘the conclusion’ (previously known as a ‘verdict’). If the Coroner is satisfied that the death occurred as a result of asbestos exposure during employment, he/she may well record the conclusion as “industrial disease”. The Coroner is not able to attribute blame to any individual or company and cannot imply that there is any civil or criminal liability. The Coroner’s role is to consider the evidence heard to decide who the deceased was, where they died, when they died and what the cause of the death was. 

Aside from ‘industrial disease’, the following conclusions can also be used:

  • Accidental death – the cause of death was unnatural, but not unlawful; Misadventure – a very similar ‘verdict’ to ‘accidental death’, but the implication is that the deceased has taken a deliberate action that has then resulted in their own death;
  • Natural causes – the death was caused by the normal development of a natural illness or disease;
  • Suicide – the deceased has voluntarily and consciously acted to end their own life;
  • Neglect – a gross failure to provide the deceased with their basic needs such as food, drink, warmth and medicine. In order for the Coroner to reach this conclusion there must be a clear link between the gross failure and the death.
  • Unlawful killing – the deceased came about their death by murder, manslaughter, infanticide or through a significant driving offence;
  • Open verdict – the Coroner determines there is not enough evidence to return a conclusion. This ‘verdict’ is ideally only used as a last resort.

What is a pre-inquest review hearing?

The Coroner is allowed to hold a pre-inquest review (PIR) at any time during the course of an investigation and before an inquest. PIRs are usually held in more complex investigations where there is a need for issues to be aired prior to the inquest which cannot easily be dealt with by email. The purpose of PIR is to ensure that the inquest is managed effectively, efficiently and openly. Families and other participants are able to raise issues, particularly contentious issues on key topics so that surprises can be avoided. There is an agenda in advance of the PIR which is tailored to the individual case and includes issues to be raised by the Coroner at the PIR, such as: 

  • Identity of interested persons
  • Inquest
  • Whether a jury is required
  • Matters for further investigation
  • Provisional list of witnesses
  • Disclosure
  • Date of the next PIR hearing
  • Date of inquest
  • Length of inquest and venue for hearings.

Other agenda items may include:

  • Anonymity of witnesses
  • Special measures for witnesses (including video links and screens)
  • Public to be excluded for part of the inquest
  • Need for an interpreter

Will the media be present?

An inquest is a public hearing. The Coroner has produced a guidance note for Coroners and the media which can be seen here. Coroners encourage sensitivity and respect for privacy of the families of the deceased, but fair and accurate reporting of the proceedings is also necessary.

Notice of the final inquest hearing, including the date, time and place of the inquest is available to the public in advance and can be found on on the local authority website including the name of the Coroner and whether there will be a jury, the name and age of the deceased and the date and place of the deceased’s death The medical cause of death, circumstance of the death or the likely conclusion of the inquest is never included on any local authority website.

Where possible, any issues regarding the media (such as anonymity of the screening of witnesses or media restrictions) should be addressed in advance of the pre-inquest review.

All inquest hearings including pre-inquest review hearings must be recorded by the court and the Coroner keeps the recording.

The media may ask for access to documents referred to in any inquest proceedings. The request must come from a genuine journalist and the request must be for a properly journalistic purpose. The request must list precisely the documents sought and explain why they are required. The media is not entitled to see documents which are not referred to in court.

Is there an alternative verdict to the short form conclusions?

The Coroner has no obligation to use a short form conclusion. They can use a narrative conclusion setting out the circumstances of the death in a more detailed way based on the evidence that the Coroner has heard. If the deceased passed away due to mesothelioma, lung cancer or asbestosis, then the Coroner may well record a conclusion along the lines of “by exposure to asbestos fibres during the course of his occupation as a carpenter/plumber/lagger” and insert the conclusion of “industrial disease” on the inquisition form.

If the deceased’s cause of death was mesothelioma, but they were not exposed to asbestos during the course of employment, rather they were exposed during self-employment or perhaps from the washing of a family member’s overalls, the Coroner may decide to use a narrative verdict to express the very specific activities that brought them into contact with asbestos.

Will a jury be needed at an inquest?

In some circumstances, a jury will be used at an inquest, for example, if the death occurred whilst the person was in police custody or if the Coroner believes a jury is needed in the interests of the public. Juries are not normally used cases involving asbestos-related diseases.

If the Coroner does not record the death as “industrial disease” will I still have a claim?

You may still be able to make a successful claim for compensation. For example, where the deceased was a smoker and passed away due to lung cancer, exposure to asbestos is known to be more likely to cause lung cancer in a smoker than in someone who didn’t smoke. the risk of smoking and asbestos in relation to lung cancer are multiplicative. Civil claims for lung cancer are not straight forward, often relying on pathological and engineering evidence to succeed, and should be handled by specialist solicitors experienced in this type of claim. If your loved one passed away due to lung cancer and has a significant history of exposure to asbestos, during employment, we would advise you to contact specialist solicitors as soon as possible.

How can Boyes Turner help a bereaved family at an inquest?

Our asbestos disease specialists are experienced in representing bereaved families at inquests and are familiar with the inquest process.

 Sometimes we are instructed by someone when they are already very ill from mesothelioma, and they pass away during the course of their case. It may be necessary for us to attend the inquest with the bereaved family, particularly if the evidence is important for the case, but on other occasions, the Coroner may be satisfied with the documents that they have (including life time witness statements and pathology reports sent to them by us) and the inquest can be done ‘on the papers’ without the need for a hearing. In other cases we are contacted by the bereaved family for the first time when they need help with the inquest and we can either represent them at the inquest or assist with the preparation. 

If you are considering a potential claim now or might be in the future, it is important that specialist lawyers are notified about any inquest both to ensure that all available evidence is given to the Coroner including statements which will support any future claim relating to asbestos exposure. Ask experts in this field with extensive industry knowledge we can often obtain help gather essential evidence at this critical stage in any claim. Please do contact us for more information about this service.

Mesothelioma - the Stories of Hope and Inspiration

We often write about the sad stories of people who pass away from mesothelioma; of women like Nellie Kershawe, a mother who died from ‘pulmonary asbestosis’ in her early thirties as long ago as 1924. It is right and fitting that we should not forget those people and their journeys.

But what about the stories of positivity and hope? What about the people living now with mesothelioma or those who spent their lives making a difference by inspiring others to keep going? As shocking and sad as it is to see children and young adults diagnosed with mesothelioma, there are countless positive news stories which we can draw upon to offer hope to those who are living with and fighting this asbestos-related cancer.

Macie Greening – teenage inspiration

Macie Greening was just 14 years old when she was diagnosed with peritoneal mesothelioma in spring 2018. ‘Macie’s Army’ was swiftly formed by her friends and family to raise money for a family holiday to Florida. Macie’s family have now booked the holiday and will be going in a few months. Spurred on by Macie’s Army’s efforts, Macie has decided to continue fundraising to help children in a similar situation. Just humbling.

Macie is taking part in a clinical trial which is not usually available to children but the results are looking promising, with scans showing that the tumour as shrinking.  Long may this continue and how amazing it is that Macie is inspired to help others whilst undergoing her treatment. To donate to Macie’s fund please click here.

Mags Portman – leading from the front-line

A consultant in sexual health and HIV with a particular interest in the prevention of HIV, this mum to two boys was diagnosed with mesothelioma in 2017. She died in February 2019 at the age of 44. Mourned by the HIV and mesothelioma communities alike, Mags’ courage in sharing her own experience of mesothelioma raised awareness that modern day mesothelioma can no longer be regarded as “an old man’s disease” which will die out with the lives it extinguishes. Her premature passing was a war-cry to the medical and research community to rally all available resources to fight this terrible disease.

Mags shared her belief in the importance of research and the hope that clinical trials provide. She had some success with first line chemotherapy but, when her disease progressed following the second cycle, she began privately funded immunotherapy. She drew parallels between her own healing journey and that of her patients, who have been diagnosed with HIV - an entirely preventable disease, but one that has had greater funding for research over the years than mesothelioma. Whilst, as we know from her own writings, she went through the darkest of times, Mags continued to fly the flag about the importance of research and clinical trials, blogging about the pain and discomfort, but also the laughter, meals out and trips away with her beloved family.  We send our heartfelt condolences to Martin and their children at this difficult time.

Back in 2004 when I began working with mesothelioma patients, clinical trials were not on the radar.  It’s encouraging to see that mesothelioma research has come so far in a decade. Mesothelioma UK are a fantastic source of information about current clinical trials, which are developing constantly.

For more information click here and telephone Mesothelioma UK if you are interested in participating in any clinical trials to find out whether you could be a suitable candidate.

Mavis Nye – Mesowarrior!

“Mesowarrior” Mavis Nye probably needs little introduction; she and husband, Ray, have done so much to raise awareness of mesothelioma, clinical trials and the health and safety concerns about asbestos that still affect the UK. Diagnosed almost 10 years ago, Mavis continues to support mesothelioma sufferers and their families, travelling up and down the country between treatments to give presentations, attend industry events and support group meetings. Whilst continuing to live life to the fullest, she has set up the Mavis Nye Foundation, a charity which will provide research grants to fund clinical research into treatment for mesothelioma and other asbestos-related diseases. The first application process is open from January to 31 March 2019. For more information, and to apply for this grant, please click here. We are behind you Mavis!

Liam Bradley- cracking on with life

And if it’s a male role model you’re looking for, meet Liam Bradley. Diagnosed at 30 years old, Liam commented, “The first few months were a blur, always wondering if this would be my last Christmas or my last birthday but, as time went on, I learnt to basically stick two fingers up at the cancer. After the first six months or so, I became mentally much stronger. The main reason for that is my three-year-old daughter – I’m determined that nothing is going to stop me seeing her grow up.”

Liam challenged himself to raise £100,000 for Mesothelioma UK, by cycling from Nottingham to Alicante, a mere 100 miles a day! Completely committed to the charity, he also cycled to the patient and carer day at Mesothelioma UK’s event in October in Burton upon Trent. What an achievement and an inspiration!

For every inspirational story that is featured on social media or the local news, there are many more who are carrying out their inspirational yet humbling work away from the glare of the limelight.

There is no doubt about it; mesothelioma is a disease that devastates the lives of individuals and their families, but medicine is advancing, help is at hand and, as these courageous people have proven, where there’s hope there’s life, and there is always room for hope.

If you or a loved one have suffered from an asbestos-related disease and you would like to find out more about making a claim, contact the mesothelioma and asbestos claims team by email at idclaims@boyesturner.com.

An Interview with a Case Manager

If you, your child or another family member has complex health needs arising from negligent care, when funding is available, we can help you to manage these needs by appointing and working with a case manager.

We asked Christine Anderson, an experienced case manager with CA Therapy Ltd with whom we work closely, some questions about her role.

What do case managers do?

A case manager will work closely with an individual to understand what is important to them now and what they would like to achieve in the future. 

At the initial meeting a case manager will complete an assessment with the individual and identify their goals and how these can be achieved.  We also identify whether any other professionals could help them achieve their goals, for example, a physiotherapist, occupational therapist, psychologist or speech and language therapist. The case manager is then responsible for liaising with each professional and ensuring all therapists work to meet the individual’s goals.

If the individual needs assistance on a day to day basis, for example with getting dressed or accessing community facilities, the case manager is responsible for sourcing and managing the support/care.

The case manager is responsible for ensuring all professionals and support staff work together. It is vital that the case manager develops and maintains a trusting relationship with the individual and their families.

What are the most common difficulties you find that families experience?

I find that families are not aware of what is available to them. There is no manual that tells them how to manage and who to contact. They are left with very little information. Families often welcome the opportunity to talk about aspects of their claim with me in an informal setting, enabling them to check they have understood or better come to terms with the information they have received from their solicitor.

When I first meet families, they are often struggling with day to day life, they feel isolated from friends and extended family. The life they had been so familiar with is now non-existent. They no longer have a life of their own and everything revolves around their loved one. 

How can a case manager help an injured individual or their family find support?

A case manager can liaise with social services and private therapists to identify a package of support. Communication with the family throughout the process keeps families at the centre of decision making for their loved ones.

A case manager can provide support to know who and what to ask to get the information they need.

A case manager can spend time with the family in their own home, listening to their concerns and work out ways to provide long term support which they find acceptable.

What are the key skills you think it is important for case managers to have?

A case manager should have at least five years in a relevant clinical setting. They should be effective at problem-solving and decision making. Case managers should be able to work as part of a team and on their own. The nature of case management means you work closely with families, other professionals and the legal team. It is therefore vital that they have excellent communication skills and can be flexible in their communication style.  In any day a case manager must call on many of these skills. It is important that they can work flexibly and respond to situations as they arise.

What is a typical day like for you as a case manager?

There is no typical day for a case manager. Some days can be filled with client meetings where we set goals and review progress. Other days could include professional meetings or supervision with the support team. Keeping records and report writing is a daily demand as it is vital to ensure information is documented accurately.

A case manager often manages several important events in one day. They must keep a level head and ensure they are consistent and pay attention to the individual they are with at the time, regardless of other events.

What is the most rewarding part of your role?

I usually meet families when they are experiencing a traumatic life event. Building a relationship and supporting them through that very challenging time is very special. 

I am lucky to be supporting individuals and their families who are constantly working towards goals. Acknowledging those achievements with the individual and their family is very rewarding.

If you or a member of your family have been seriously injured as a result of negligence and would like to find out more about making a claim, contact us by email at claimsadvice@boyesturner.com.

Deputies and Carers: Hiring and maintaining

In this article we explain how a carer is hired by a property and affairs deputy. We will explore the process that is followed, how deputies and case managers work together and address some of the issues that often arise.

Agency care is becoming increasingly expensive and cannot be a cost effective solution for many client’s with care needs in the long term. Consistency of care is crucial, particularly where the client has complex care needs which require the carers to undergo specialist training. Familiarity is also important and will also contribute to good outcomes. We see our carers as instrumental to maximising our client’s quality of life as this enables them to live at home and maintain their independence. We always seek to ensure that carers have the passion, dedication, empathy and experience that are required to carry out this role.

The first step will be to identify how much care is required and whether any of this will need to be nursing care. If a Case Manager is instructed then they will be able to provide the Deputy with a report setting out the care requirements such as hours, qualifications, training and a description of the role to be advertised. The Deputy will always ensure that the client and their family should have as much input into this as they wish. 

Finding the right carer

This is often the greatest challenge! An advert is always a good way to find carers but it is not the only way to recruit. The client and their family may already know someone that they would like to employ or have been recommended a particular person or agency; the Case Manager may also have links with a recruitment agency. The Case Manager will usually oversee the interview process and again, the client and their family can be as involved as much as they want. We would always recommend that the client meets with the potential carer so that they can check that they are compatible and will be able to work together. It is important that the advert highlights exactly how complex the client’s needs are so that any prospective carer is fully aware of the level of need that they will be required to meet and support.

What is the role of the Deputy in hiring a carer?

Generally the Deputy will be the employer but there are cases where a family member would prefer to take that role. Once the carer has been identified and they have provided the necessary references and DBS checks the Deputy will seek specialist employment advice in order to draft the contract of employment. They will need to capture all the necessary information such as who the carer will report to, place of employment, salary, hours of work and office rules, holidays, benefits and monitoring.

The employment solicitor will identify the most appropriate contract depending on the circumstances of each case. In addition they will ensure that the job description is suitable and that the carer is issued with the disciplinary and grievance procedures.

After the contract of employment has been signed the carer will then provide their financial details so that payroll and pensions can be set up. The carer will then submit their timesheets on a monthly basis which will then be approved by either the case manager or the carer.

It is also important to ensure that the necessary employment liability insurances are in place. There are specialist providers of independent living insurance which offer protection for those employing personal assistants and carers.

Prior to the commencement of the role it will be important for them to carry out any necessary training if not already completed such as manual handing, suctioning, first aid, therapy and medication.

What if my carer is ill?

It is always important to have back up for the occasions when carers may be unwell or need to take time off. As an employee, carers are entitled to sick leave and also may put the client at risk of infection by attending work when they are unwell and so it is important to have contingencies in place. Where there is a team of carers in place they can provide cover or if there is a parent or relative living with the client then they can step in. Difficulties arise where there is only one carer in place; in such circumstances we would have plans in place such as using agency support on an ad hoc basis.

What challenges are faced in relation to paid carer support?

Numerous challenges can arise on a regular basis. Issues can arise that have to be dealt with on a frequent basis, examples include:

  • Lack of training/experience
  • Carer stress
  • Late payments from payroll company
  • Calculating holiday entitlements

It is so important to have access to employment advice and support as well as a robust contract of employment to ensure that both the employee and client are protected should such issues arise.

More complex challenges often occur as tensions can arise with the client and their families. There can be occasions where family members have unrealistic expectations of the carers, requiring them to work beyond their contracted hours and to carry out tasks that are not within the scope of the job description. Privacy and boundary issues within the family home are also an issue; by its very nature where the property is one person’s place of residence and another’s place of work this can be a very delicate situation. These issues have to be dealt with sensitively and on a case by case basis which is why it is so crucial for the deputy to have a good relationship with the client, family and case manager.

If you require further information and advice on Deputyships please email the team at cop@boyesturner.com. We also offer advice for lay Deputies and can assist with applications, preparing annual reports and dealing with issues arising from the deputyship.

Do you need capacity to use the internet and social media?

There has certainly been a rise and development of the internet and social media over recent years. This has changed the way in which we communicate with each other. Electronic devices such mobile phones are now used across the world for communication, entertainment, education, relaxation and for gathering information. There are an ever growing number of social media apps.

Arguably the internet and social media are even more important to people who have a disability and or difficulties with social communication. However, the internet can be a dark place with illegal material readily accessible. Internet abuse is common place and can take many forms including bullying, sexual grooming and personal identity theft.

In the recently reported case of Re A (Capacity: Social Media and Internet Use: Best Interests) [2019] EWCOP2, the Court of Protection sets out the information P must be able to understand, retain, use and weigh up to have capacity to access the internet and social media safely.

Background:

P is a young adult and identifies as a gay man. P had learning difficulties with low levels of literacy. He resided in a supported living placement where he received extensive support. Without support, P would be unable to manage his personal and domestic care needs.

What was the case about?

Court of Protection proceedings had been instigated by the local authority when concerns emerged about P’s capacity to make decisions about his residence, care, contact with others and internet use.

Concerns had been raised about P’s internet use. He had shared intimate photos with unknown men on social media and had accessed extreme pornography and images of child abuse. P had also made contact with sex offenders. The police were concerned P could commit offences of unlawful distribution of images due to his lack of understanding. Practical steps had been taken to help P understand the issues, without success.

The Court’s decision:

The Court was asked to consider whether it was in P’s best interests to restrict his use of the internet and social media.

In assessing whether P had capacity to weigh up the risk involved, the judge applied the criteria set at section 3(1)(a) of the Mental Capacity Act 2005.

The judgment sets out the relevant information which P needs to be able to understand, retain, use and weigh. For example:

“i) information and image s(including videos) which you share on the internet or through social media could be shared more widely, including with people you don’t know, without you knowing or being able to stop it”

The issue of whether someone had capacity to engage in social media for the purposes of online contact should be considered separately from any consideration of who that person should have contact with generally. However, when assessing capacity to access the internet safely there should be a universal test covering use of the internet to contact others as well as using the internet for other purposes such as entertainment or education.

Having considered the evidence available, the judge was satisfied that P did not have capacity to use the internet or social media. This is not just ‘unwise’ behaviour. As a result, the Court approved the local authority’s plan for P to have limited access, under a degree of supervision, to the internet.

On the other issues, the judge decided that P had capacity to decide on his residence and consent to sexual relations but that he lacks capacity to litigate, in relation to his care and support package and contact, and in the management of his property and finances.

What if I have concerns about a vulnerable person?

Although this case concerns a young adult, the criteria for accessing the internet and social media safely will be relevant to other vulnerable groups including the elderly.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

If you have any queries or questions about capacity and deputyship please contact our Court of Protection team by email on cop@boyestuner.com

The role of a professional deputy: My life as a professional deputy

I act as a professional Financial Deputy for many clients and recently I have had a run of people wanting to change their Professional Deputy and come to me. So what causes this? Well, there are several reasons and it is usually a combination of two or three but the biggest reason by far is a lack of communication they receive from their current Deputy. Families do not know what is going on, they’d like to know more but are reluctant to ask.

What is a Professional Deputy?

Under section 4(7)(b) of the Mental Capacity Act 2005 a Deputy has a duty to take into account and consult “anyone engaged in caring for the person or interested in his welfare”. Therefore the Deputy has to take into account the views of the family when making best interest decisions. Apart from this being an obligation under the Act it also helps build a relationship so that everyone can make clearer and more well informed decisions for the client. It also builds trust.

How we work as Professional Deputy team

I have a team of 10 so even if I am out of the office there is always someone to help. I visit my clients once a year for a face to face meeting and have an allocated solicitor as my “second in command”. The system works well. 

My whole team understand how important it is to get to know the client. It is not just about investing their money wisely. It is also about knowing our clients as individuals so that we can do our best for them. Do they have favourite places they like to go on holiday? Are they a really close family unit and like to treat each other at Christmas? Or, are they so in love with cars that they would really appreciate an older car to do up as a fun project? Small things I know but this really does help build on the knowledge you have of a client.

What is the most important thing about being a Professional Deputy?

Being a Professional Deputy is all about relationships. The family need to know that they can talk to you and that you can all get on. You may not always agree on everything but then you should always be able to talk it through. You should never force a decision on someone. If you both want the best for your client then usually a solution can be found.

Other elements which are key to making a Deputyship work are:

  1. A firm relationship - A good relationship with the family, built on trust is hugely important.
  2. Strong communication - Even if the Deputy is unavailable there should be somebody else in the office you can speak to and emails should be responded to as quickly as possible.
  3. Honesty in your dealings - This works both ways. In the past I have received invoices from the client’s family that have been “doctored” which doesn’t help anyone.
  4. Explain your reasoning – Always ensure that family’s understand the reasoning behind advice or decisions you have taken or given on their behalf.

See the bigger picture – Never lose sight of the many things families have to cope with. Life may be filled with constantly reading medical reports. They need a break but cannot get it. I, as a Deputy need to be mindful of this as I do not live their lives but what I do see is hard for them. Somehow they cope and I hope that in my small way I can help with that.

If you would like to talk to Ruth or the Court of Protection team about your deputyship needs email them at cop@boyesturner.com

Personal Injury Trusts for Children

Following settlement of a claim our specialist Court of Protection team can assist with the financial management of the compensation your child has received. They help to ensure that your child is provided for throughout their entire life through a personal injury trust. Often our clients have never heard of a personal injury trust so in this article Ruth Meyer, head of the Court of Protection team, explains what they are in more detail…

What is a personal injury trust?

A trust is a relationship that is recognisable and enforceable by the court. When a person, even a child, receives compensation for personal injuries the child can put that compensation in a trust under the control of others known as trustees.

How can a personal injury trust be set up?

If a child is under 18 years of age then their litigation friend can set up a personal injury trust on their behalf. The litigation friend is usually their parent and they can apply to the court under the CPR rules to set up a trust. Some of the paperwork that they will need to submit includes, but is not limited to:

  • A draft of the trust deed.
  • Financial advice setting out the investment strategy.
  • Details of the cost of the trust.

What are the benefits of a personal injury trust?

If a trust is not applied for then if the child is still under 18 all of the award including any earlier interim payments must be paid into the court funds office until they reach 18. Any investment of that money is dealt with by the court funds office and interest paid is nominal.

It is usually better if funds are removed from the court so that full investment options can be looked at and flexibility given to the trustees. This will mean that they can use the money in the best interests of the child without having to go to the court each time for approval. This saves both time and money. It also allows the child to become more involved in the running of their trust as they are older otherwise they would simply receive the funds at the age of 18 without any guidance.

Will my child still be eligible for means tested state benefits?

A personal injury trust protects the compensation from being taken into account for assessment for means tested state benefits. A child may not be in receipt of such benefits while under the age of 18 but may be in the future. By setting up the trust while they are young, the compensation is ring fenced and this will continue into adulthood. 

A personal injury trust is also disregarded for local authority care should the child require local authority assistance or funding for care in the future.

Such a trust is particularly suitable for children who are likely to retain their capacity at 18 but for various reasons may remain vulnerable. The trust provides protection, guidance and flexibility.

When can I set up a personal injury trust for my child?

The best time to set up the trust is as soon as liability has been admitted in a claim and you know that an interim payment will shortly be made. You will need to ensure that any payment is paid directly into a trust bank account and not intermingled with the child's or parents' other accounts. If it is intermingled then that money cannot go into a trust. 

The trust bank account should be an account dedicated to only holding the compensation funds and have the facilities of an everyday current account for flexibility. Interest rates tend to be low but with the trust in place, trustees can transfer funds from the account to invest in assets with a higher return as long as they remember to keep those other assets in the name of the trustees. Income would then be paid from those assets into the trust bank account or rolled back into the trust investment.

What type of trust is a personal injury trust?

There are many types of trusts with different names. What is important is the source of funds. If the source is for personal injury then the trust is a personal injury trust which is also sometimes known as a special needs trust. Quite often compensation is placed into what is known as a 'bare trust'. The main advantages of this type of trust are that the child retains a large degree of control when they reach 18. If the child wants to they can close the trust down when they get to 18 and at that age they are free to change trustees.

The trust is also tax neutral which means that all income and capital gains are reported in the child's personal tax return as if it was income and capital gains in their own right. It is therefore taxed at their own rates and not at the higher trust tax rate. 

Who can be a trustee?

In respect of large compensation awards the trustees are usually the child's parents and a professional trustee such as a solicitor. A solicitor will be insured. There must be a minimum of two trustees and a maximum of four. A child can be a trustee of their own trust once they reach 18 as long as there are other trustees to act with them. For practical reasons there is more administration with a higher number of trustees.

The involvement of a professional trustee enables the trustees to receive ongoing professional advice through the child's minority and afterwards. If the child chooses to keep a professional trustee once they reach 18. A professional trustee will also help assist in accessing other professional support. 

What is the role of a trustee?

A trustee must look after the award (the 'trust fund') for the benefit of the beneficiary (the child). When trustees are appointed they agree to act in the interests of the beneficiary and not for themselves. They are entrusted with the funds and this is why it is called a 'trust'. The trustees will have certain powers over handling the trust fund and these are set out in the trust document.

What do trustees do?

Trustees are required to keep good records and accounts and pay the tax on time. They must seek appropriate advice, including financial advice and take reasonable care when carrying out their duties. Professional trustees, such as a solicitor, must take more care than others. 

What is the child's involvement in the trust?

As a child gets older, perhaps in their teenage years, they should start attending annual trustee meetings so that they can gain a better understanding of their financial position in readiness of turning 18. By that time they should hopefully understand and be happy with the arrangements in place and understand why a trust was set up in the first place. It is with this knowledge that they can choose to take on the role as a trustee themselves and continue with the trust if they wish.

What does a trust cost?

The cost will be set out in the application to the court for a trust for a child. These will also be included in the litigator's 'Schedule of Loss'. This will mean that they litigator will try and get those costs recovered by the defendant when the claim settles. It is not unusual to get costs paid for up to the age of 18 and sometimes beyond that if a child can be shown to retain mental capacity to understand their award but still remain vulnerable so that they require supported decision making.

Professional trustee's costs are usually on an hourly basis so they depend on the amount of work carried out. Administration costs can be higher with a large number of trustees or if one is particularly difficult to contact. Costs are usually higher in the first year while the trust is set up and it enters the first functioning year. After that they should decrease.

So, in summary, why should I set up a personal injury trust for my child?

  1. The creation of a trust means the trustees can deal with finances more easily and without the delay and expense associated with continual court applications each time sums are required.
  2. The trust allows for greater flexibility than if the funds remain in court.
  3. It is likely that trustees will obtain a better return by investing money outside of the court.
  4. The involvement for a professional trustee enables the trustees to receive ongoing professional advice throughout the child's lifetime both before they are 18 and once they are over 18 if they wish. For many, this assistance, once they reach adulthood, is when they need it most.
  5. A professional trustee can assist in accessing other professional support that the trustees may need and continue to need throughout the whole of the child's life.
  6. The trust ring-fences the compensation and the child is therefore protected from outside influences and opportunists and is especially beneficial after the child reaches 18.
  7. Once a child is 18 they can continue to receive means-tested state benefits as funds are protected from being taken into account from assessment.
  8. Professional trustee costs can be included within the award for damages up to the age of 18 and sometimes beyond.

If you or a member of your family know someone who might find a further conversation about setting up a personal injury trust for their child useful, contact the Court of Protection team by email at cop@boyesturner.com.

Reading Half Marathon 2019 for Headway UK

On Sunday 17 March, Kim Smerdon, Claire Roantree and Martin Anderson from our Personal Injury team ran the Reading Half Marathon to help raise over £1,000.00 for Headway Thames Valley.

Headway Thames Valley is a great local charity, which provides help and support to help people to rebuild their lives after suffering a brain injury.  They also do important campaigning work to raise awareness of the causes and effects of brain injury. Their dedicated team provides help and rehabilitation therapies across the Thames Valley.

A brain injury does not only affect the victim, but also their family, friends and colleagues and Headway Thames Valley also provide information, support and services to families and carers.

Fortunately, the weather was relatively kind, which was a relief given the storms the night before. There was also huge crowd support all the way along, which helped us make it to the finish line in the Madejski Stadium.

Kim Smerdon, head of the Personal Injury team at Boyes Turner and a trustee for Headway Thames Valley said

“as someone who has dedicated much of my career to acting for clients with brain injuries, this is a cause which is particularly close to my heart.  Headway Thames Valley give vital support to brain injury victims and their families when it is most needed and I hope that the funds raised will help them to continue their great work”

If you or a family member has suffered a brain injury, we may be able to help. Get in touch with a member of our experienced personal injury claims team to discuss making a claim by emailing them at piclaims@boyesturner.com.

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The service was personal, professional and considered. I was treated so kindly and in the end I knew that not only had I found the right organisation but also the right person.

Boyes Turner client

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