It is well recognised that the impact of an acquired brain injury is very sudden. But this is not just restricted to the victim themselves, as such injuries present formidable and enduring challenges to the family and friends of the victim too.
If the injured person also happens to be a foreign national working and living in the UK, whose family and friends are either back in their home country, or perhaps cannot speak English fluently, then the challenges are multiplied.
Since 2006, I have dealt with a number of acquired brain and catastrophic injury cases for overseas nationals. In particular, my cases have dealt with people from Eastern European countries that have come to the UK to work. While each case is unique, there are a few common themes which may be useful to note for other practitioners or family members in similar situations.
Assessment of capacity
The assessment of an injured person’s capacity, particularly those with a subtle brain injury, can be challenging if the victim is a foreign national. For example, the victim may not have been through the UK education system, or may not have complete command of our language.
In such cases, I find it useful to build up as comprehensive a picture as possible about the injured person’s pre-accident persona. By gaining insight from family and friends, as well as information from carers and nurses based on patient medical notes regarding post-accident behaviour, I can begin to build a better understanding of the person.
When assessing capacity, neuropsychological testing can be very challenging. It is vital, if possible, to have a qualified native speaker of the victim’s language perform this testing.
Unfortunately, this is not always possible, meaning that such assessments usually come with some significant caveats. There is no quick fix to neuropsychological testing, and while there are some experts who have experience assessing foreign nationals, it is always best to use a suitably qualified native speaker.
Guilt and blame
In most instances, the injured person has been working in the UK for economic reasons to send money to family back home.
As the impact of the brain injury progresses, the injured person will not be able to work. This can lead to feelings of guilt or worthlessness due to their inability to financially provide for their family. Depression is a well-recognised symptom of an acquired brain injury, and feelings of guilt and blame can become a considerable issue for the injured person. In an effort to try and alleviate these issues, I seek to explain to the family the situation and see if they can offer reassurance to the injured person. However, if there are significant anxiety symptoms then this does not always remedy the situation. It is important that such feelings are addressed by a Consultant Neuropsychiatrist, who can treat these complex emotions.
Court of Protection and approval of settlements
The concept of the Court of Protection is not always mirrored in other countries. The injured person’s close family often find it very difficult to understand why they cannot deal with the injured person’s affairs.
This is particularly so when the injured person is a child and the mother is the Litigation Friend. Parents can sometimes feel affronted, interpreting this as suggestion they would not do the right thing for their child. Explaining such things as infant approval to the family can also be quite difficult. The continuing obligations of Deputyship and the expense involved in conducting the protected person’s affairs are also usually quite difficult for the family to grasp.
On conclusion of the claim, the injured person’s family may wish them to return to their country of origin. The Court of Protection will not release the injured person’s funds unless they are satisfied that there is a similar establishment in that country to protect the damages. Although some countries, for example Sweden, do have well recognised procedures for such protection, others do not. This will need to be explained to the family and researched prior to any decisions being taken. The relevant permission from the Court of Protection will also be required.
NHS Rehabilitation treatment and availability of benefits
There can sometimes be an expectation from the injured person’s family that all rehabilitation needs and treatments will be covered by the state, and assume that the NHS and benefits will provide.
Although the critical care provided by the NHS is second to none, the rehabilitation or follow up often fails. This can be for a number of reasons, for example, the injured person may not even be registered with a GP at the time of the accident, leading to them becoming lost in the system. The importance of the rehabilitation code, early admission of liability and the securing of interim payments for treatment all need to be explained in detail to the family.
In addition to the specific points raised above, there are often considerable cultural issues. Families from certain countries may be unable to come to terms with the impact of a family member with a brain injury, and seek to isolate or hide the injured person from the wider community. This carries considerable negative effects for the victim. It is important to be alert to such issues, particularly if there is an intention for the injured person to return to that community.
Often, in Eastern European countries for example, there are no case managers or occupational therapists. Neuro-rehabilitation is also mainly focused around physical recovery, rather than mental wellbeing.
I would strongly advise anyone acting on behalf of a foreign national to carry out considerable investigation into the availability of such expertise in the country of origin. It is vital this be done before concluding any settlement, as on occasion case management care and assistance may need to be heavily supervised. This would need to be carried out by qualified persons here in the UK, with frequent visits and intervention which should be reflected in the Schedule of Loss.
Adrian Fawden has been Head of Simpson Millar’s Polish and Eastern European Department since 2006. Simpson Millar are Brain Injury Group members.