A few words go a long way
Last week was an interesting one in the world of whiplash claims. Firstly, the MoJ backtracked on part of its reforms of medical reporting in whiplash cases. Bowing to the threat of a judicial review, the MoJ commissioned a change to the rules that were themselves only introduced at the beginning of October. And on top of that, in the House of Lords, Lord Hunt of Wirral attempted to amend the Social Action, Responsibility and Heroism Bill so as to introduce a new clause that sought to provide that damages in certain low value road traffic accident cases would be denied and replaced with treatment.
Amendment to the Rules
Before the introduction of the first phase of the whiplash panel rules in October this year, the same organisation would regularly arrange the claimant’s treatment and commission the medical report. However the introduction of the new rules establishing the first stage of the new independence processes on 1 October 2014 put a stop to this practice as the pre-action protocol stated that the reporting expert could not be associated to:
any person whose business is linked to that expert or to any intermediary who commissions either the expert's report or any proposed medical treatment”
This meant that a company had to decide whether to arrange the claimant’s treatment or commission the medical report, but that they could not do both. As we see it, the change to the protocol introduced last week means that they can now go back to operating in a similar way to their processes before 1 October, as the new rule redefines what is meant by associated (the emphasis below is added by us) in the following way:
‘associate' means, in respect of a medical expert, a colleague, partner, director, employer or employee in the same practice and 'associated with' has the equivalent meaning”
As we see it, the rules as they there were originally introduced meant that the parties could have at least some confidence in the system of the commissioning of treatment which would not have been from the writer of the medical report or a linked business, although it remains the case that proper confidence can only come if there is independence between the treatment provider and the claimant’s solicitor, as well as the writer of the medical report. It was rare pre 1 October for both a claimant’s treatment as well as the medical report to be provided by the same practice, so the new definition which we have ended up with through the rule amendment is unlikely to have any real impact.
The introduction of MedCo early next year means that this state of affairs will only be temporary, as MedCo seeks to randomly select the medical expert who produces the report in whiplash claims. But might there be a second challenge to the next phase of the reforms? Certainly those on the claimant side were as vociferous in their opposition to random allocation of experts and MROs as they were silent in their objection to the definition of ‘associate’ and yet judicial review was ultimately threatened. Perhaps the MoJ’s change of stance demonstrated by this latest rule change, might only serve to encourage those who are opposed to reforms in this area.
Rehabilitation rather than Compensation
Lord Hunt attempted last week to introduce Clause 7A entitled “Road traffic accident: damages” to the SARAH Bill. The clause sought to restrict damages in RTA cases where the disability was assessed at less than 15% and so affecting the vast majority of whiplash claims so that:
the court may not award damages in respect of personal injury if the person alleged to have been negligent or in breach of statutory duty has demonstrated a generally responsible approach by either funding treatment or agreeing to fund treatment for the claimant’s injuries”
The government’s efforts at moving the SARAH Bill through the Lords have generally been met with disapprobation and a similar response was given to Lord Hunt’s amendment with its suggested new clause and he agreed to withdraw it in response. The view expressed was that more work needs to be done in this area, so more of a “not yet” than a “no”.
Whether a future Conservative government will be interested in this type of reform remains to be seen, but it will be said in reply to any such proposal that enough time needs to be allowed first to see whether the reforms brought about by LASPO, the portal changes, as well as the incoming Criminal Justice and Courts Bill and the move towards greater independence of medical reports, produce a meaningful effect on the claims environment.
We expect there to soon be an announcement as to the operation of MedCo and we will let you know once that announcement has been made.
For further information please contact Nigel Teasdale, Partner, on +44 (0)1772 554264.
Read about the change to the pre-action protocol.
Read more about the whiplash reforms on our dedicated insurance website In touch
Follow progress of the Social Action Responsibility and Heroism Bill
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.