In catastrophic brain injury litigation - whether this involves an injury arising from an accident or medical negligence - the coordination of rehabilitation can shape both the client’s recovery and the progression of the legal claim. The appointment of a brain injury case manager - instructed either singly or jointly - is often one of the earliest and most influential decisions made after injury.
As a solicitor with extensive experience in acting for clients with traumatic and acquired brain injuries, I have seen first‑hand how the instruction model chosen can affect access to and efficiency of rehabilitation, the level of collaboration between parties, and, in the end, the outcomes for injured individuals and their families. Understanding these models and keeping under constant review how things are working and what is best for the client is therefore crucial for ensuring that they receive timely, appropriate, and properly funded support.
What is a brain injury case manager?
Brain injury case managers operate at the centre of the rehabilitation process. Their responsibilities include:
- comprehensive assessment of needs;
- development and review of rehabilitation pathways;
- appointment and coordination of multidisciplinary therapy teams;
- recruitment and supervision of support workers;
- regular monitoring and reporting;
- liaison with statutory providers;
- day to day support for clients and their families;
- provision of information about needs that is crucial for the associated litigation.
Single or joint instruction?
In my practice, I work closely with case managers at every stage of a client’s recovery. Their input, support and experience can make all the difference to an injured client - from the very early days of coming to terms with a serious injury and accessing comprehensive rehabilitation and support through to helping a mutual client get established on a long term pathway that, as far as possible, aligns with their pre-injury life and plans. Their role in my experience goes far beyond professional advice on rehabilitation and needs to all-round support for an individual and their family.
The optimum will always be that a case manager is funded through a claim either under the Rehabilitation Code or via interim damages and is instructed directly for/by the injured claimant. However, there are circumstances where a joint instruction in the early stages can have advantages.
At its core, the role of a case manager requires them to always act in a client’s best interests. Under a single instruction (by the claimant’s solicitor), they are able to be involved in the litigation, providing detailed information on needs and future expectations, discussing how the litigation should be presented to align with the claimant’s needs, and understanding the expert evidence and its implications for the claimant’s projected expenditure.
This means that we can have an open dialogue with them, discussing the claimant’s case and evidence subject to principles of confidentiality and privilege, and the claimant does not need to worry about what they can say to the case manager for fear of it being ‘reported back’ to the other side. There is no concern that their recommendations need to balance differing views between claimant and defendant representatives or that they will be limited in what they can do by a defendant. Their job is simply to do their best for our mutual client. The downside is that their time, costs and recommendations are all open to challenge by the other side and, as with all heads of loss, the issue is what is reasonably required - and opinions on that can vary. This can mean that not all of the costs incurred by a case manager are recovered in the claim and so any shortfall has to come out of other heads of loss.
However until we actually secure admissions of liability and entitlement to damages, we may not have access to funds to pay for a case manager. In medical negligence claims, that often means that we cannot involve a case manager early in a case at all. However, in personal injury claims, insurers dealing with serious brain injury claims are well aware of the long-term benefits of early and appropriate support and rehabilitation. They are therefore frequently amenable to agreeing early funding of a case manager under the Rehabilitation Code, but on a joint basis. Sometimes this is, in the round, the best way forward - it means a case manager comes on board quickly and there is complete transparency. If the case manager makes recommendations which the defendant is happy with and funds under the Code, the injured party gets what they need swiftly and those costs cannot be challenged later. The fact that information is shared will in most cases enable a sensible dialogue between the parties in litigation that is focused on what the claimant needs. This can allow the early stages of litigation and rehabilitation to progress without delay, with cooperation and agreement on the rehabilitation input required - all of which can significantly benefit the claimant.
A joint instruction funded under the Rehabilitation Code can also be advantageous where there are issues over liability that mean that a claimant may or will only recover a percentage of their damages. For example, if they are found 25% to blame for the accident that caused their injury, the damages they are entitled to are reduced by 25% and if they pay for a case manager, they will only recover 75% of the cost. If the other side funds the case manager under the Rehabilitation Code, they pay the sums in full and there is no later deduction.
Moving to a single instruction
While a joint instruction approach has benefits in certain circumstances, in my experience it is only for a limited period. There may be issues about agreeing a case manager and those whom the defendant is willing to appoint jointly may be less experienced or pro-active than ones we know and work with directly. More often, as time goes on, reaching agreement on what the claimant reasonably requires becomes more difficult and we need to have discussions with the case manager without them feeling an obligation to report back to the defendant. For these reasons, although joint instruction can be a useful starting point, once liability is resolved and interim damages are an option, we almost always move to a single instruction - sometimes retaining the same case manager and sometimes starting again with a new one.
As a brain injury specialist who has represented clients with a range of brain injuries and needs, I have learned that the right approach depends on the individual, how soon we are involved after injury, the severity of injury, the stage of the case, the dynamics between legal teams and, of course, the particular case manager.
In practice, where we are instructed in the early days post-injury, if a joint instruction will secure help and support more quickly, we can agree on a suitable case manager, and the defendant is sensible about funding recommendations, then I will agree a joint instruction - particularly where liability may take some time to resolve. However, this is a decision I keep under review and there has not been a single brain injury client where we have not moved at some point to a single instruction. Where case manager involvement is only an option once liability is resolved (usually in medical negligence claims), I will almost always instruct on a single basis.
The considerations around how to work with a brain injury case manager and what is best for a client do not stop with the nature of the instruction. Information collated and held by case managers is crucial to understanding a client’s needs and the rationale for the support that is in place. Where we require ongoing funding during a claim for case management, rehabilitation, therapy and related services, being open with case manager records, MDT minutes, therapists’ updates and attendance at MDTs can make agreeing the provision of further funding a relatively simple exercise. A single instruction does not mean that the case manager’s work needs to be concealed or that all documentation is privileged - in fact, there can be great benefits in being totally transparent about what the case manager is seeking to implement and why. What is avoided, however, is any difficulty over divided loyalties or obligations on the case manager to provide documentation to a defendant.
Legal principles guiding current practice
The issue of single versus joint instruction of a case manager is not a new one. In Wright v Sullivan, some years ago, a defendant sought to persuade the High Court that any further interim payment on account of damages (ie compensation paid up front to fund rehabilitation) should be conditional on the case manager being jointly instructed. The court refused to make an order on those terms and the matter went to the Court of Appeal. The Court of Appeal set out some key principles which remain valid today:
- the representatives of both parties and their expert witnesses should have liberty to communicate with the case manager in relation to matters relevant to the likely issues in the claim;
- the clinical case manager owes duties to the patient alone and must make decisions in the best interests of the patient;
- therefore, the lower court was right to hold that the case manager should not be jointly appointed;
- if the clinical case manager considers that it is in the client’s interests for them to attend a conference with legal advisers at which advice is being sought, the privilege is not theirs to waive and the court has no power to direct such a waiver. Nor can the court prevent the manager from attending conferences with lawyers and experts where the content is privileged;
- the role of the clinical case manager, if they are called to give evidence, is clearly that of a witness of fact. They will not be giving evidence of expert opinion.
The case is often relied upon by lawyers acting for injured people to justify the single instruction preference.
Overall, my view is that case managers are integral to the recovery and outcomes of clients with brain injuries, and ultimately one of our aims in bringing a claim is to ensure that our clients are left with someone in place whose priority is their best interests. There can be advantages or reasons to consider a joint instruction along the way, but any such decision should be kept under constant review.
