Including family therapy in a compensation claim

As we found in our recent Ahead Together Conference, the impact of a brain injury on family identity can lead to a range of challenges, not least psychological strain as people come to terms with the changes to their way of living.

Kerstin Scheel (above left) and Pardeep Biring (above right), both of whom have significant experience working with the families of children with brain injury, discuss how families can secure the right support when their group identity is challenged.

Kerstin: “It’s not uncommon that a Deputy, whilst the litigation is still ongoing, will come to us seeking guidance on the recoverability of family psychological therapy costs. It goes without saying that a brain injury doesn’t just affect the brain injured child.

Many children with brain injuries suffer significant behavioural problems, which in turn puts huge strain on the relationship of the parents and also the wellbeing of other siblings in the family."

Pardeep: “Yes, I recently had a case where the child was exhibiting very challenging and aggressive behaviours within the home, which placed both the child, family and property at risk, and placed a significant strain on the family as a whole.

The client’s behaviours had a huge impact on the atmosphere and the family dynamics within the home. It can be an uphill struggle for all, including siblings and parents when they do not understand how to effectively manage issues such as these, and the child cannot manage their own behaviours as a result of their brain injury, which has the result of causing daily friction within the home.”

Kerstin: “The impact on families can be so tough and it seems nonsensical to take a linear approach to management of behavioural problems by only looking at it through the lens of the brain injured child.

Parents need to be equipped to have the tools to manage difficult behaviours such as tantrums, outbursts or physical aggression for example. Part of this must also include psychological therapy and support to enable them to remain in the best position to support their child through such episodes, while juggling all the other high level demands of caring for a brain injured child."

Pardeep: “I couldn’t agree more, many of my clients get to a point where they feel they cannot cope without a high level of support.

One of the parents of my client felt so frightened in the family home due to the aggressive behaviours exhibited towards her, that she suffered from high levels of anxiety which in turn caused her to experience low moods. She needed psychological support along with other siblings witnessing such behaviours, in order to understand how to cope with her child’s behaviour, and also to learn the skills of managing such outbursts in order to keep the family together within the home.

All of the family also required support and therapy to understand that the client’s behaviours were as a result of the brain injury and were not as a result/or fault of anyone within the family themselves.

We felt that the family required training on de-escalation, coping mechanisms/strategies in order to learn how to deal with the matter in a more effective way. This is a perfect example of when we feel more is needed to provide therapeutic input for parents too, but we are often advised this isn’t a recoverable head of loss as part of a claim; that just doesn’t feel right?”

Kerstin: “This is far from a black and white situation and I find a flexible and pragmatic approach to be the best option. Strictly speaking the only recoverable therapeutic costs are those related directly to provision for the injured child. However it can be properly argued that providing parents and siblings with psychological therapy, both as a family group and in individual sessions, so that they can better care for and support their injured family member, is a recoverable head of loss.

The civil courts are not necessarily there to take a holistic view point when it comes to therapy and are more focused on the needs of the injured individual rather than the family as a whole. However unless the family can cope and function well, the strain on the family unit can go to cause greater problems with all aspects of daily living."

Pardeep: “Yes, the Deputy has a more flexible approach to psychological input costs and has the generic authority to act in the best interests of the child in considering expenditure of their compensation. The key things we consider are:

what are in the best interests of the client as a whole in terms of the short-term and long-term gains
will providing/paying for such support enable the client to continue to live at home with their family
will providing such support enable the client to have a better quality of life then if they were placed outside of the home
we also consider the client’s right to a private and family life as a key part of this decision
what would the client’s wishes and feelings be in respect of family therapy
what are the likely benefits of such support to the client and family
what would happen if the support were not provided to the client and family

Often the benefit of such psychological input does not have a monetary value, and the benefits of such support can be innumerable."

Kerstin: “There is an onus on litigators and case managers to work closely together and to communicate with the family, case managers and therapists in considering what is required to allow the family to receive the help they ALL need.

Taking a restricted approach to therapeutic needs will do no one any favours. A good neuro-psychologist will be able to properly advise all the professionals involved of the help needed by the family as a whole and advise the Court as to how this will be of direct benefit to the Claimant child."

Pardeep: “Yes, for example, we frequently instruct Recolo to undertake a full assessment report, not only for the injured child but also for the family. These reports are then often attached by case managers to their regular update reports, enabling the case manager to request of the Deputy to pay the funds required for family therapy.

Good communication with the litigation team throughout the case can enable them to use these psychology and case manager reports to justify the recoverability of these fees as part of the claim.”

Kerstin: “Yes absolutely, it is for the litigator to advise the Deputy what is likely to be recovered in therapy costs on settlement of the claim or at trial and then for the Deputy to use their discretionary powers of expenditure of funds in their client’s best overall interests.”