by Deanne Barrow Dip RCOT
My Professional Background
I qualified as an occupational therapist (OT) in 1985 and have worked extensively in the NHS and Social Services since that time. Over the years I have been an integral part of various multi-disciplinary teams, working alongside doctors, nurses, physiotherapists, speech and language therapists, dieticians, social workers and architects amongst others. Since 2007, I have worked in the private sector for Tania Brown Ltd Case Management and Expert Witness Services. During this period, I have gained experience of working as a case manager in addition to undertaking my ongoing clinical role as an OT. Since 2008, I have also worked as an expert witness.
In the thirty-four years since I qualified, I have gained a wealth of experience of undertaking functional assessments of people with a wide range of physical, cognitive and psychological issues. Assessing people from all backgrounds and in a wide variety of home environments from houseboats and caravans to grand manor houses and all things in between.
How Does My Experience Qualify Me to Comment on Care?
Extensive experience of undertaking functional assessments in clients’ home settings has provided me with a broad knowledge base which I am able to draw upon when preparing care reports for Court. I view my role as painting a picture for the Court of what life was like for the client before the index event, what has changed and what needs to be addressed to improve that person’s quality of life and increase their independence wherever possible.
Whilst training to be an occupational therapist, the importance of a holistic approach was emphasised repeatedly so that it became second nature to me and this has served me well. I now realise that our training back in the 1980’s was ahead of its’ time in many ways as we learned how important it is for physical and mental health/wellbeing to be meaningfully occupied, to have goals and aspirations and to feel that you are making a contribution to society.
Within the budgetary and time constraints of working within statutory services, it has been challenging to adhere to the principle of holistic assessment and treatment at times but within the private sector and particularly whilst working as an expert witness, the ability to look at all aspects of an individual’s life has come into its own.
What is The Role of the OT Expert Witness?
The role of the occupational therapy expert witness is to provide information, clarification, opinion and impartial advice to the Court to enable them to come up with a fair and reasonable conclusion to all parties involved in a case.
Most cases that an occupational therapy expert witness participates in are ones of personal injury claims or medical neglect. The OT expert witness is often instructed on by a client's solicitor but they may also be instructed by the defendant’s insurer.
Many of the cases arise from road traffic accidents or work-related accidents and involve a wide range of injuries including traumatic brain injuries, spinal injuries and orthopaedic injuries. Needless to say, every case is different and in addition to the physical effects of the index accident, there may be many other factors such as psychological sequalae which are impact ing upon the Claimant’s daily life.
The job of the OT expert is to contrast the pre and post-accident situation. Was the Claimant independent in all areas of life before or did they have any preexisting conditions that might have affected their functional ability in the future in any event? Were they in employment and what career plans did they have? Were they responsible for child care tasks, solely or shared with a partner? Did they undertake the household cleaning, laundry, shopping etc? What did they do in their spare time, hobbies and interests? Did they drive or use public transport? The list goes on but in summary the care report needs to contain detailed information about the Claimant’s lifestyle, the tasks they undertook, what was important to them before the accident and what is important to them now. The occupation therapist is asked to supply expert opinions to assist the court on the claimant's functional situation and to help quantify the financial compensation.
Usually a solicitor will instruct an occupational therapy expert witness to provide a report to assist the Court by undertaking and documenting a comprehensive assessment of the Claimant’s functional status. In addition, the OT will quantify the needs arising from any temporary or permanent impairment of function and consequent loss of independence.
The loss incurred is then given a monetary value or ‘quantum’ to reflect the costs of rehabilitation, care, equipment and services required by the Claimant to mitigate their losses.
Occupational therapy expert witnesses have various areas of expertise, including:
• Care: mainly commenting on past and future care costs.
• Equipment: commenting on equipment and adaptation needs
• Rehabilitation: commenting on past and future therapy needs.
• Vocational/functional capacity: commenting on work-related skills and abilities
• Loss of service: commenting on ability/support requirements in order for the claimant to resume roles and responsibilities.
It is the broad range and depth of knowledge required which makes the task of writing a care report particularly challenging and interesting. In addition to commenting upon the issue of care, my experience as an OT enables me to comment on equipment and adaptations reasonably required as a result of the index event. My role requires me to put people back in as far as possible to their pre-accident position. This may involve the provision of care, specialist equipment, adapting the environment or adapting the way a task is carried out. Every claimant is different and therefore this often results in researching a wide range of topics from fishing equipment for people with the use of one hand only to snow-boarding for amputees to running for the visually impaired, amongst many other interesting topics.
I have found that attention to detail is key. A good report should clearly evoke a real sense of the Claimant’s personality, their lifestyle, the issues posed by their injuries, their interests and what is important to them. The narrative needs to be clear and the reasons for making my recommendations need to be set out logically so that anyone reading the report can easily follow and understand it.
In order to produce a good report, it is often necessary to write and re-write it and only send the report out when I am entirely happy with the contents. It is always uppermost in my mind that one day, I may have to stand in court and answer questions. Even if the case does not culminate in a Court appearance, I will almost certainly be questioned on my report by Counsel at a case conference and by the opposing care expert.
When mentoring other OT expert witnesses, I always emphasise the need to ensure that the opinions within a report tie up with the analysis and the evidence, to keep focussed on the original instructions from the solicitor and not to go off at a tangent. In addition, the OT expert witness needs to make to remember the difference between fact, opinion and allegations.
The Litigation Process
The OT expert witness must be prepared to meet deadlines imposed by the Court throughout the lifetime of each case in which they are instructed. In some cases, this time commitment may span over many years and the expert needs to be prepared to commit to the longevity of the case. Once costs have been submitted and accepted by the instructing solicitor and the instruction is agreed, the named occupational therapist will be treated as an expert witness and will be subject to the obligations set out in the Civil Procedure Rules (CPR).
Once instructed, the OT expert witness will then be sent related and relevant documentation to read, usually referred to as a ‘bundle’. The bundle may include medical notes and reports from other experts, and statements from witnesses of fact and other profes sionals involved in the care of the Claimant.
It is most common for expert witnesses to be asked to:
• Read the bundle and make note of salient issues.
• Visit the Claimant to undertake a comprehensive assessment of occupational performance
• Provide a full and detailed report on the lifelong needs arising from the Claimant’s injuries, cross-referencing other information provided in the bundle as required.
Following submission of the care report, the expert witness may be asked to carry out further work, including:
• Revisiting the Claimant and providing an update report.
• Attending case conferences with the instructing party, either in person or by telephone. The conference may also include Counsel, other medical experts and the client.
• Taking part in a meeting between Claimantinstructed and Defendant-instructed care experts, usually by telephone. The aim is to provide a joint statement highlighting areas of agreement and disagreement between the care experts.
• Responding formally to questions from either party concerning their report.
• Attending Court and giving oral evidence.
Avoidance of Conflict of Interests
As with all expert witnesses, the occupational therapist’s role is to provide impartial, professional advice, clarification, opinion and information to assist the Court to reach a fair and reasonable conclusion.
To avoid potential or actual conflict, the expert witness should not have had any previous clinical or other contact with the Claimant, or act as the Claimant’s treating professional or clinical case manager during the litigation. If they do, it is likely that their evidence will not be accepted as they will not be considered an independent (and impartial) expert. Very occasionally an occupational therapist working clinically with a Claimant may also become the expert witness, where it is agreed that the practitioner is the only individual who could usefully fulfil both roles. However, this situation would be very unusual. There may be exceptional circumstances where this is unavoidable, in which case the Court, through the instructing solicitor, must be notified of a potential conflict and clear guidance must be sought.
An occupational therapist who has undertaken an expert role is free to take on any clinical or case management role once this litigation has been settled.
Over Arching Principles
The principles that govern the assessment of damages are well established. The purpose of an award of damages in personal injury claims is, so far as is possible, to put the Claimant in the position they would have been in had they not been injured.
This is summarised in Heil v Rankin et al  2 QB 272. Lord Woolf MR, giving the judgment of the Court of Appeal, said as follows at paragraphs 22, 23 and 27:
… the aim of an award of damages for personal injuries is to provide compensation. The principle is that ‘full compensation’ should be provided… the compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the Defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.
Although the issue of ‘reasonableness’ in determining quantum is ultimately a matter for the presiding Judge, an expert should understand and appreciate this basic principle of damages when making recommendations to meet needs and calculating corresponding costs. If the expert makes recommendations that are unreasonably extravagant, or indeed parsimonious, their credibility, objectivity and impartiality could be questioned by the Judge.
The issue of proportionality is relevant to all experts in practice as they need to be aware of the relationship between the cost of producing their evidence and the cost of the case. If a Court considers that the overall cost involved in establishing or defending the case is disproportionate to the amount involved, the costs will be cut regardless of whether it was reason able to incur such.
I am regularly approached by OT colleagues who are interested in becoming an expert witness. I always advise that in addition to the obvious requirement of extensive clinical experience, they need to be passionate about report writing because the reports can be very lengthy and arduous at times. Dogged determination is needed to present a thorough, well-reasoned report, taking into account all of the available medical/psychiatric/psychological evidence. A love of presenting an argument on paper and orally is essential. If you have those qualities, I would highly recommend working as a care expert.
Deanne Barrow Dip RCOT
Deanne qualified as an occupational therapist in 1985. Since that time she has worked extensively in acute hospital and community settings taking sole responsibility for the management of a significant number of complex cases.