- June 2, 2021
- By Jackie Spinks
- 0 comments
What is a trial of independent living and why are they so important?
For those involved in serious traumatic brain injury work, the term independent living trial (commonly known as an ILT) will be familiar. They are however becoming an increasingly contentious issue, with the insurance industry and those representing them either taking the view they are unnecessary or that they are driven by the litigation.
In simple form, a trial of independent living provides the injured individual with the opportunity to live away from the environment they returned to following the accident in a structured and supported way. The underlying ethos is to enable the injured party to develop independence in their own living environment as much as is possible in their circumstances. Within the context of litigation because a good trial will provide evidence to assist the Court in evaluating the needs of the injured party in the longer term to enable them to continue to live independently.
However, the primary purpose of an ILT is to enable the injured party to take the next step towards their own version of independence. For some that is never possible. Some individuals will always require 24-hour care within either a residential setting or within a family environment. For others however, simply because they have suffered a traumatic brain injury does not mean they need to remain within a residential setting or within the family home in the longer term. I believe that my clients are entitled to lead as normal a life as is possible and an independent living opportunity provides them with that chance. Many of my clients were very young when they sustained their injury and so naturally, they have continued to live with their family as they have steered their way through adolescence and into young adulthood. Other clients were adults when they sustained the injury and either were on the cusp of moving away from the family home or were living an independent adult life but have had to return to the parental home for ongoing care. For those without a supportive family, many have had to stay within the confines of a residential setting.
An independent living opportunity must be wanted by the injured party and it has to come at the right time. The litigation may have to wait for closure and that is often the crux of the issue for an insurer who wants that closure as soon as possible. However, a correctly progressed independent living opportunity is in the best interests of all parties and not just the injured party even if that means delay in resolution of a claim.
For some the term “independent living” can create anxiety, but careful explanation and management is the path to success. This is not simply a case of moving someone out of the caring environment of a family home or a residential setting. Moving someone into a trial of independent living will take at least six months of meticulous planning and support; for some with more complex issues, it will take considerably longer. An experienced case manager will lead a full team of therapists, including neuropsychologists, occupational therapists and speech and language therapists, as well as bringing in a rotational team of rehabilitation support workers, often in a combination of direct employment of those providing day support and agency for night support, with the injured party having, wherever possible, direct involvement with recruitment. After all, they will be providing the day-to-day support and need to have the skills, patience, understanding and empathy to upskill the injured party to develop their own form of independence.
A rental property will be sourced for the client and a carefully managed transition into that property with the client at the centre will be undertaken. Initially support will be provided on a 24-hour basis but with clear monitoring undertaken to identify whether 24-hour care is likely to be required in the longer term. SMART goals are key and the team need to all work together and communicate regularly with each other to avoid creating a dependency environment.
I have had several clients for whom independent living trials have been the making of them. I have just resolved a claim with court approval for several millions of pounds for a young lady who sustained a traumatic brain injury aged 7. She came to me shortly after her 21st birthday, from a firm inexperienced in such work. For those without an understanding and knowledge of traumatic brain injury, she seemed able. She lived with her mother and seemed on the face of it independent. Her mother went out to work each day, leaving my client at home. But my client in fact did very little. She worked one day per week in a local shop and exercised. She waited until her mother came home each day for dinner. She was unable to plan or initiate. I could see, from the first day I met her, that she was dependent on her mother. On takeover, I broached with my client and her mother the concept of a trial of independent living. There was apprehension, but also excitement at the thought of moving forward with her life. A battle ensued for interim funding as the defendant insurer was perhaps misguided by their instructing solicitor as to the need and benefits of an ILT. It took some 10-months of evidence gathering and litigation and after a contested hearing, where my client succeeded, she was able to commence her journey. My client has lived away from her mother now for a little over 18 months. She has reduced her night support and her days have structure. She will always require support, but she is now able to live her life more constructively and with greater purpose. She has control of her own environment. Fortunately, within that claim the insurers changed their instructing solicitor to one who also saw the importance to my client in having an ILT and it made for an eventual much smoother path to resolution.
The stance of insurers and their legal teams can be frustrating. I have just come out of yet another contested hearing where the defendant advanced a case that my client neither wants, nor requires a trial of independent living, based upon their own care expert evidence. This contrasted with the position of my client’s experts and more importantly, my client’s wish to move out of the family home. Notwithstanding the fact that the insurers had provided my client with interim funding and reserved their position on the recoverability of the costs incurred, they still sought to try and persuade the court that my client ought not be afforded the opportunity to move away from the family home onto her own path of independence before resolution of the claim. They simply wanted resolution of the claim, arguing that providing my client with time would lead to excessive delay and leave the litigation without focus. They could not see that to take such a step was not only not in the best interests of my client, but also that it would assist the court in allowing for appropriate evaluation of the evidence. Without the evidence coming from a trial of independent living, it would be impossible for the court to determine whether the stance taking by the defendant’s care expert was correct or not.
Fortunately, the Court was with us and my client now has the time before resolution of her claim to move forward into a trial of independent living. In my view trials/opportunities of independent living are not only important but essential in some cases, not only for appropriate evaluation of longer-term needs, but for the health and wellbeing of the injured party. Whilst recognising an ILT is not “one size fits all”, insurers would do well to take a more pragmatic view if an experienced team advance the benefits of a trial of independent living for a particular individual.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*
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