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Brain injury case management

The impact of case law judgements on case management practice

By Susanna Robinson, Keystone Case Management

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Lessons Learnt from CCC vs Sheffield Teaching Hospitals NHS Foundation Trust 2023

Whilst case management can be applied in a wide range of industries and businesses, case managers can be commonly found operating within a medical legal context (CMSUK, 2024).

As with any job, the case manager needs to fully understand the sector within which they are working.

This includes understanding the role of the Court and that of other parties with whom their client, or service user, has contact, many of whom have a vested interest in the client’s changing function.

Additionally, the case manager has an obligation to maintain a current working knowledge of sector developments (IRCM, 2024, CMSUK, 2009, BABICM, CMSUK, and VRA, 2020).

This responsibility extends to maintaining a professional awareness of cases which traverse the legal system and from which judgements are handed down to directly, or indirectly, which impact case management practice.

It goes without saying that any such judgements need to be carefully weighed by a case manager to ensure that they align with their concurrent adherence to relevant professional standards and guidance (IRCM, 2024). 

This article aims to highlight a judgement handed down by Mr Justice Ritchie in the case of CCC vs Sheffield Teaching Hospitals NHS Foundation Trust, dated 12th July 2023 (Royal Courts of Justice, 2023).

It will summarise how some of the main findings pertain to case management and consider the implications of integrating these into future practice.

A brief generalised overview of the case manager’s role will be provided for context.

The statements within the judgement which we consider to be particularly salient and relevant for case managers, will be set out as matters for review and reflection.

Additionally, we will make recommendations for case management training and registration.

The Role of the Case Manager

The focus of a case manager’s collaborative relationship with their client is to ensure that the individual’s health, social care, and educational or employment needs are identified and improved where possible following accident or injury.

It is the role of the case manager to use communication and available resources to promote quality, cost effective outcomes for the client, regardless of who may be funding the input (CMSUK, 2009, IRCM, 2024).

The case manager needs to maintain an objective approach which is reasonable and in the interests of the client (IRCM, 2024, CMSUK, 2009).

In terms of their role within the legal process, the case manager’s work lays the foundational evidence for how the client’s functioning is impacted by any injury and identifies which services they require to return them, as far as is reasonably possible, to the position they would have been absent the injury.

          Susanna Robinson

They may be called to present evidence as a Witness of Fact. As stated by Cottrell (2013), case managers who are called to give evidence should expect robust and detailed cross-examination and should be prepared to justify the decisions they have made in relation to their case management input.

Their case management records may also be scrutinised by different parties involved in the process and the recorded activity be subject to comment, as they were in this case.

At all times, the case manager needs to have readily available the clear justification for their actions and documented evidence of the clinical reasoning they have applied in any decision-making process (IRCM, 2024).

In this case, both the Claimant’s current and previous case managers were called to the witness box to give evidence and undergo cross-examination. 

Background to the Case

Succinctly, this case is that of a young girl (referred to as CCC) successfully suing the Defendant for negligent treatment at birth.

Her resulting severe spastic quadriplegia, very severe brain damage, and complex needs require a maximum severity care package consisting of two carers to assist with all activities of daily living whenever she is awake. 

The main issues identified by Mr Justice Ritchie were those of the quantification of the care, case management, accommodation, transport and equipment costs.

As a reminder, the compensation subsequently awarded for each ‘head of claim’ is intended to enable CCC’s daily care needs to be met for the duration of her life, whilst also offering the opportunity for an improved quality of life.

We will consider some of the key lessons raised which highlight the increasing scrutiny given to care recommendations arranged by the case manager.

Aspects of Care 

In March 2015, CCC was discharged from palliative care to the family home where her mother became her sole carer until February 2019 when the local authority funded around 33 hours per week of care.

Following the award of an interim payment to CCC in August 2019, which was managed by a Deputy, case management services commenced in autumn 2019.

This facilitated the appointment of privately funded care.

However, as this was being instigated, the COVID-19 pandemic arrived with all the associated public ‘lockdowns’ and recruiting and retaining care workers became extraordinarily difficult to achieve.

Mr Justice Ritchie describes the evolving care package over the next three and half years to the point of trial which, initially and through the COVID-19 pandemic, relied heavily on CCC’s mother (identified as M), providing assistance.

At one stage this involved M taking a team leader’s role and becoming ‘desperate’ when trying to find suitable paid care workers.

This is against the backdrop of M experiencing a significant back problem due to excessive lifting of CCC.

A hoist for this purpose was not introduced until the delivery of commercial care, as it is deemed essential for the role of paid carers.

Until this point, M had been lifting and carrying CCC, even when carers were in attendance as they resisted doing so. 

In his ruling on the parties agreed past gratuitous care, on which no deduction is made, Mr Justice Ritchie notes that whilst preferring the evidence of the Claimant’s care expert and taking her rates into consideration, these undervalue the care provided by CCC’s mother.

He provides a very clear and moving description of the care given by M to her daughter.

He eloquently pinpoints the daily and nightly struggles that she endured, on her own, for many years and even during the time when commercial care was introduced, to the point of M experiencing physical exhaustion and psychiatric symptomatology.

We consider that it is beholden to all case managers to re-acquaint themselves with the reality of the parental burden and personal sacrifice made in caring for a severely disabled child (Royal Courts of Justice, 2023, Point 147). 

In relation to commercial care, the Defendant objected to the presented costs and herein lies a salutary warning to case managers.

During a period between December 2019 and June 2021, with the Deputy’s approval, care was purchased through a nursing agency which charged five to six times as much for their staff as the pre COVID-19 rates for support workers.

Whilst this provided a supply of qualified nurses who CCC’s mother found did not require any training, it quickly reduced the available interim funds. In turn, this caused M extreme stress and the need for her to reduce care and therapies and re-negotiate deferred payment terms with the employing care agency, as well as with the case management company.

Although organised through the case management company, it was Mr Justice Ritchie’s judgement that the case manager, due to his inexperience and lack of qualifications, made ‘unreasonable decisions’ to engage a nursing agency and that ‘any competent case management organisation….. should have been able to construct and implement a care regime without using’ one.

On the basis of no evidence being proffered by the Defendant of less expensive support workers being available during the period of COVID-19, past commercial care was awarded on the basis of the sums actually spent to the point of trial with a deduction of 80 per cent of those nursing agency fees incurred up to the commencement of COVID-19 restrictions.

This equated to a not insignificant amount.

It is noted that with a change of case manager company and the commencement of a new case manager in December 2021, there is a marked change in approach to care.

The newly appointed case manager ‘hit the ground running’ and made it her priority to focus on reorganising care and therapy and moving away from any reliance on agency carers.

Despite the ongoing pressures within the sector, which have been well documented (BABICM, 2022) and related to a shortage of care workers, she managed to build up a team of staff and bank staff directly employed to work with the claimant.

Within a short space of time, the case manager established the team on a fairly negotiated rate of remuneration, with a managed payroll, with no reliance on agency staff and a reduced burden of care on CCC’s mother.

She asked for them to keep meticulous records to establish precisely the client’s care requirements, especially at nighttime but also during the day. Her regime resulted in fewer chest infections for the client.

Following a further risk assessment, she identified that the client needed two to one care at all waking times.

She evidenced the role of CCC’s mother as being on the payroll for three nights shifts per week as well as additional shifts at times of staff absence.

Additionally, the case manager organised for carers to support CCC whilst at school to enable a better level of safe care throughout the school day. 

For the experts making recommendations for past and future care needs, quality records are essential evidence for ‘getting it right’ for the client.

The evidence, provided by the case management records and resulting from instigated nighttime care trials, was vital in over-riding the initial opinion of the care experts and in securing adequate funding for the nighttime care for the duration of CCC’s lifetime.

It is important for the case manager to be current and up to date with all their information, including with the level and cost of care, as failure to do so could result in the client receiving an inadequate award for the support they need.

The actions of this case manager highlight the need for them to be skilled, knowledgeable, trained and experienced.

Not knowing what to do or how to do it well, can quite easily result in a situation deteriorating, additional stress for any caregiver or family member, as well as being detrimental to the client’s health and quality of life.

Aspects of Case Management

Whilst it may not be unusual for a client to have different case managers over the course of their involvement (there are various reasons why they might need to change), the marked difference between the case management provision in this case highlights key points of learning. 

Firstly, there is a need for a consistent and reliable delivery of case management services.

This is particularly so where a client has multiple, complex and life-long needs and the relationship between the case manager, client and client’s family requires longevity.

Moreover, the quality of the relationship between the case manager and the client is itself therapeutic and an essential component which can influence the process and outcome of the service given (CMSUK, 2009). 

Time is needed to build rapport and trust and for the case manager to fully appreciate all the intricacies of the client’s life.

Whilst the therapeutic relationship will inevitably be subject to internal change over time, external aspects that adversely affect the relationship should be kept to a minimum (CMSUK standards).

One such external aspect is a frequent change of case manager, as was the situation in this case.

For any client, such a frequent change of case manager is not, in the words of Mr Justice Ritchie, ‘objectively reasonable in a case of maximum severity’ and can deliver an unsatisfactory outcome for all parties. 

Mr Justice Ritchie records a marked difference in the performance of the case managers.

Even though one of them provided helpful and honest evidence in Court, it was recommended that his opinions be cautiously approached due to his lack of experience and training in the role.

Furthermore, the judge stated that he should not have been offered or taken the job due to being unqualified and lacking experience to manage a child with CP.

A sobering consequence is the ruling in the reduction of past case management costs to reflect that the service provided during this period was by an unqualified person and should not have been charged out at full rates by the case management company responsible.

It is a key reminder for such companies to carefully select and match the case manager appropriately to a client.

This requires a thorough and robust recruitment process with attention to detail with regard to the professional background, experience and skill level of the person.

Whatever the duration of clinical practice, many clinicians are new into the profession of case management and require transitional training to carry out the role competently.

A company which provides an emphasis on training and development and a clear programme for measurable progression, which is also aligned to sector standards, should be sought by all those considering moving into the field.

A high level of professional knowledge and skill is required when accepting any new case but even more so where the case is complex or the client has experienced catastrophic consequences.

Companies need to be vigilant in assigning appropriately experienced case managers to such cases, allowing them to safely practice within their area of competence, and have a responsibility to closely monitor the progression of each case.

Additional supervision of the case manager always, but additionally so if they are new into the role, is part of any training to ensure a smooth and effective transition.

Ongoing training and supervision are required to further develop skill and fulfil continuing professional development requirements (CMSUK, 2009).

This can enhance the experience of the case manager and continue to deliver an excellent, safe service to the client.

Providing Good Evidence

When called to give verbal evidence in this case, the current case manager and support workers were observed by the judge to be ‘impressive’.

He qualified this as being straightforward, honest, balanced, consistent, without exaggeration and thoughtful.

When cross-examined, rather than undermine their evidence it supported it. 

Evidence is very often written.

A consequence of engaging an inexperienced case manager was a shortfall in the production of required documentation, such as case management reports.

Aside from justifying the costs for the service, it is beholden on the case manager (and employing company) to adequately document all assessments, actions, conversations, decision making, risk assessments, support worker notes, shift logs and diaries, clear and agreed goals, and outcomes of actions implemented.

Assessment, whether for the client’s initial needs or during the process of case management, provides the foundation for effective intervention and is crucial to be undertaken.

Ineffectual assessment can lead to poor or inappropriate choices of intervention. Documentation of any assessment process needs to be clear and easily followed (IRCM, 2024).

The current case manager in CCC’s case clearly demonstrated her skill, training and ability to document accurately which was recommended by the judge. 

In response to any client need, the case manager carried out due diligence to instruct those who were most suitably qualified, with a clearly documented reason for incurring additional cost.

For example, in instructing a second set of architectural plans for CCC’s new home.

Whilst maintaining a close eye on cost, she requested a review of statutory funding and obtained an increased provision of care funding.

In a short space of time, the case manager had instigated assessments by physiotherapy, occupational therapy and speech and language therapy and installed a more holistic therapy package.

Her evidence demonstrated a good awareness of any local statutory provision, where this fell short, and what was required in its place or to substantiate it.

The research and reasoning for all the decisions she made is well set out and clearly justified.

It is incumbent on case managers to be fully aware of statutory as well as private services and give equal consideration to these.

They also need to manage budgets, maintain awareness of costs incurred, keeping relevant parties informed of these and obtaining permission as needed.

The need for case managers to be fully conversant with the legal context within which they operate is clarified by this case.

They require an understanding of the processes and timescales involved and adhere to these as necessary.

They need to feel confident if ever called to account in Court. Training in this aspect is necessary.

As previously stated, the laying down of evidence of the Claimant’s needs and level of functioning is a crucial role of the case manager.

It is needed not only to understand the extent and quality of the service delivered, but the depth and reach of services required by the client to ensure adequate provision for them in the long term.

This evidence is needed by all parties involved in the case, including the care experts for whom it can provide clear information to support their recommendations.

This level of required knowledge and skill should never be assumed whatever the previous duration or professional background of the case manager.

It is not acquired from outside of the sector and needs to be supplied to all case managers from within, as does ongoing training and supervision. 

Keystone Case Management considers that it is vital to use a rigorous recruitment process to migrate highly skilled and regulated professionals into the case management sector.

From day one, the implementation of a supervision model and a structured training programme ensures the thorough development of skills necessary for case managing people with complex disabilities and needs.

The training includes writing excellent reports and case notes which are subject to monthly quality assurance.

A supervisory model allows case managers to easily access support, advice and expertise whenever needed, particularly with complex situations.

All are encouraged to work towards an advanced practitioner status and expected to consistently meet with current and future regulations.

Regulation by sector specific bodies, such as the Institute of Registered Case Managers, and in the meantime, the Nursing and Midwifery Council, the Health and Care Professions Council and Social Care England, is highly necessary and to be welcomed for the ongoing protection of clients.

Find out more about Keystone Case Management at keystonecasemanagement.co.uk

References

BABICM, CMSUK, VRA. (2020) Code of Ethics and Conduct in Case Management Practice. Available at: Code of Ethics – BABICM

BABICM. (2022) A Perfect Storm. Available at: Perfect Storm Survey results – BABICM

BABICM. (2023) BABICM Standards & Competencies. Available at: BABICM-Full-Document-Sept-23-printed-Updated-JM.pdf

CMSUK. (2009) Standards of Practice and Best Practice Guidelines. Available at:  www.cmsuk.org 

CMSUK. (2024) Case Management. Available at: UK Business Case Management | Case Management Society UK (cmsuk.org)

Cottrell, S. (2013) ‘Caveat Case Manager’, Journal of Personal Injury Law, 4, pp. 224 – 233.

IRCM. (2024) Standards of Proficiency. Available at: Microsoft Word – Case_Management_Framework_Final_Conference.docx (ircm.org.uk).

Royal Courts of Justice (2023) CCC vs Sheffield Teaching Hospitals NHS Foundation Trust, Citation no. EWHC 1770.

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