In a recent blog, my colleague and experienced child brain injury lawyer Jo Chapman remarked on how the characteristics of autism can also be the hallmarks of brain injury. As a child brain injury lawyer and mother of three children, two of whom have Asperger’s syndrome, dyspraxia and sensory modulation disorder, this topic just fascinates me.

Typical autistic traits include:-

  • rigid thought
  • obsessive behaviour
  • problems coping with change
  • issues with social interaction and communication
  • information processing difficulties,
  • difficulties with concentration
  • difficulties expressing feelings and emotions
  • sensory sensitivities
  • sensory seeking behaviour (including ADHD)
  • anxiety, which can be triggered by the issues above.

All of these traits are also symptoms of brain injury. Autism Spectrum Disorder (ASD) is simply a convenient way to describe a collection of symptoms, and can also be used to describe the symptoms of a brain injury.

As child brain injury lawyers, we are seeing this diagnosis for children with brain injury more and more.

My personal experience of ASD

Where a child has a brain injury, I can see that having a diagnosis of ASD can have benefits (I make the assumption here that the diagnosis has been made appropriately). It can really assist a parent to access the appropriate help and support for their child.

I speak from personal experience. The boys’ diagnoses have enabled me to secure for each of them a statement of Special Educational Needs (recently replaced by Education and Health Care Plans) which places a duty both on their school and on the local authority to fund one to one support for them at school and to access expert input from local therapists, including occupational therapists, speech and language therapists and an autism outreach specialist.

This makes a vast difference to their school and learning experience, helping them to develop not just academically, but also socially and emotionally.

The term “brain injury” is a wide definition.

Like autism, there is a vast spectrum, ranging from mild brain injury, where intelligence may be intact but some of the symptoms mentioned above may be prevalent, to severe brain injury, where there is no mental capacity and complete dependence on others.

To be able to give a child’s brain injury a label that is pretty widely known and understood in education and healthcare circles can be helpful.

What is needed to prove a claim for damages for brain injury

We act for people who have been caused an injury be negligence or mistreatment. Naturally, the people or organisation responsible for the brain injury will want to avoid having to pay out – compensation in these cases is likely to be substantial! The downside of a diagnosis of autism is that the institutions we are suing may try to wriggle out of having to pay a penny by arguing that the autism has been caused by genetic factors.

To counter this, a specialist child brain injury solicitor will obtain focussed medical evidence on this point, together with detailed witness evidence and nursery/school records to show that autistic traits were not apparent before the brain injury and that there is no family history of ASD.

As Jo has said, ASD is simply a convenient way of labelling a collection of symptoms; however, the point to make to defendants is that the ‘label’ does not denote the cause.

Identifying the complex needs of a brain injured child with ASD

Identifying the complex needs of a brain injured child with a diagnosis of ASD requires specialist knowledge and experience. These children suffer from a “hidden” disability which will not be obvious by simply looking at them.

Often, it is vital to focus on reducing anxiety and pre-empting situations in which anxiety may arise, to ensure that the child is in an optimum state of mind for learning and for functioning in life in general. I know that my boys can be completely derailed for the day if something unexpected happens. Before he had his statement, I once had to take my eldest son home from school because his usual teacher was absent for the day  writing reports, but he had not been pre-warned of this. He was not at all prepared for this change to his school day, and in frank terms, completely freaked out and a meltdown ensued. No-one had anticipated just how distressing this change would be from him, and to be honest, why would they have done if they had not had previous experience of ASD or appropriate training in ASD?

Whilst there is growing awareness of ASD, the difficulty is, without experience of a particular child, it is very hard to second guess what might upset or unsettle them, as no two children are the same. Initially, observation and the constant sharing of information about the child by everyone involved in their life will reveal patterns in behaviour which can inform the approach to be adopted. Then, specialist training and input is a must to educate those working with the child in the school and in the home on how to understand the child’s behaviour and best support them.

Often, when autistic children present with challenging behaviour, this will be mistakenly labelled as “naughty behaviour” and even worse, the behaviour may be punished, which will simply cause confusion and lower confidence and self-esteem.

It is always important to try to understand why the behaviour may have occurred and to learn lessons from this. As I describe above from my eldest son’s experience, it may have occurred because the child has experienced anxiety and has became unsettled due to a change in routine or environment.

Another possible cause might be an adverse reaction to a particular noise or smell. Behaviour is often just an expression of anxiety and/or distress. A claim for damages should include the cost of expert input and training for anyone working with the child.

It is also appropriate in these cases to consider a care package. The home situation needs to be considered. Where there are siblings, it will be incredibly difficult for parents to provide consistency at home and meet the demands of their autistic child without support. Interests can be very specific and intense and a child with ASD may not be interested in playing with their siblings, preferring to pursue their own special interest. A buddy carer can help with this, particularly when a child returns home exhausted after school. A well trained buddy can also help to pre-empt situations in which anxiety might arise or de-escalate situations where it does arise, maintaining a sense of calm in the family home.

They can also help meet the child’s therapy needs,  in situations where the parent may not have the time to do so due to the  demands of other siblings or work commitments.

Extra – curricular activities

It is also very important to ensure that brain injured children can enjoy a level playing field with their peers when it comes to accessing extra-curricular activities, which help children thrive and develop.

So many children with ASD start extra curricular activities, only to discover they are not really very well set up for their needs. They then feel isolated, do not enjoy themselves and eventually give up, sometimes after an uncomfortable experience which can serve to deter them from trying new after school experiences.

The trick here is to identify the barriers that prevent ASD children enjoying these activities and with creative thinking, to find an effective way to overcome them. Sometimes, simply taking along a buddy carer who has ASD training, knows the child well and is able to act as their advocate can improve the experience, but as my former senior partner always used to say, reconnaissance is of the utmost importance! Visiting the club first and meeting the people in charge can be enlightening.

Swimming is a classic after school activity, but it is also an essential life skill for all children, particularly for those ASD children who struggle to grasp the notion of risk and are likely to place themselves in danger. My younger son loves to run close to the edge of water (aghhh!). I am therefore desperate for him to learn to swim.

However, how can an autistic child effectively learn how to swim in an echoing pool filled with several classes of noisy children and chattering parents in classes where instructions are not broken down in bite size clear chunks and are not delivered to the child on a one to one basis?

The answer here to try is to seek funding for one to one lessons in a calmer and quieter environment that will be more conducive to the child learning and will hopefully be more fun for them. It is important to think outside the box in terms of where to learn. Is there a local gym or private health club that has a quieter pool? Might it be possible to take the child out of school earlier one day for a swimming lesson at the local pool, if this means it will be much quieter? Hustle and bustle in the changing rooms can be offputting. It is important to find instructors with experience of ASD as any negative experience in the pool could make it hard to return. It is also really helpful to have an instructor who will get into the water with the child to teach them. That way, if the child struggles to grasp what is being explained, the instructor can simply demonstrate this in the pool and ask the child to copy them.

Bringing a compensation claim

The ultimate aim of the compensation is, as far as possible, to put the injured child back into the position they would have been in, had the negligence that caused their injury not occurred. The challenge then is to ensure that all of the relevant points have been covered and that the compensation can make a meaningful difference to the child’s life, helping them to thrive, be happy and reach their full potential. After all, isn’t that what we all want for our children?