Today’s MoJ announcement should see MedCo act
With the MoJ seeing evidence of a number of different models that undermine the government’s policy objectives and public confidence in MedCo, they have today issued a statement reiterating the government’s commitment to the process of reform and stating that action will be taken to address these issues. MedCo director and DWF Head of Motor Nigel Teasdale looks at the MoJ announcement and the lead up to it.
Having decided not to adopt a true 'cab rank' approach to the allocation of experts, the configuration of the search offer, announced by the MoJ back in March, together with the number of registered MROs, was always going to be critical both to the success or failure of the reforms to bring independence into the expert supply chain and to MedCo itself. As well as being able to choose from seven direct experts, the MoJ decided that MedCo users would also be able to select from two tiers of MROs and that the larger “Tier 1” MROs would appear less frequently than the smaller “Tier 2” companies.
As has been widely reported, the way that the search offer has been configured has led to a number of MROs registering with MedCo as multiple entities, with more than one MRO, large enough to already register as two Tier 1 MROs, also registering ten times in Tier 2, so as to give it a better chance of featuring in any search. MedCo has also seen the emergence of what the MoJ are referring to as the “Qualitas model”, with seemingly unconnected medical experts/MROs sharing instructions between them.
The MoJ sees these practices as an attempt to undermine the government’s policy objectives and public confidence in MedCo, leading them to issue a statement today reiterating the government’s commitment to the process of reform and stating that action will be taken to address these issues. MedCo director and DWF Head of Motor Nigel Teasdale looks at the MoJ announcement and the lead up to it.
High stakes leads to questionable behaviours
The fierce level of competition in the claimant personal injury market and the rise of the ABS model has led to claimant law firms acting where they can in order to maintain market share and profit levels. Businesses have become very adept at responding to changes in market conditions and environments. Against that background, it was not surprising that the MoJ’s decision to break the financial ties between claimant law firms and the experts they chose to instruct and instead implement a system of randomly allocated experts, has been met with challenge, both overtly and covertly.
Most directly, two claims for Judicial Review have been brought against the MoJ. The first was from a group of claimant firms who also themselves owned MROs, whose challenge goes to the very need for reform in the first place. The second was from Speed Medical who argue that the search offer prevents competition as the number of instructions they could receive as a Tier 1 MRO is inversely proportionate to the total number of Tier 1 MROs registered with MedCo. So for example if there are fifteen Tier 1 MROs, the best they will do is have a chance of securing 1 in 15 instructions.
Challenging the reforms in a less obvious way, MROs began to register multiple new entities with MedCo, thus side stepping the issue at the heart of the Speed Medical JR and increasing their chances of appearing in any search.
The response to this behaviour which came today from the MoJ was that these actions reduce the chance of users being presented with seven different (i.e. unconnected) MROs to choose from and ironically decrease the chances of MROs appearing who were playing by the rules, so restricting competition.
Potentially more worrying, the introduction of the search offer has led to the emergence of what the MoJ are referring to as the ‘Qualitas model’, where seemingly unconnected medical experts/MROs share instructions. The MoJ say that this model undermines the aims of the reforms, as it has the potential to subvert the rules on financial independence, amongst other things.
MedCo has the tools to act
In their statement the MoJ have made it clear that “The system was neither designed nor intended to permit this type of behaviour”. One must not lose sight of the fact that the policy, including the qualifying criteria for MROs and the search offering, was set by the MOJ with MedCo simply responsible for implementation. The MoJ also point out in their statement that MedCo is capable of addressing these issues through:
the application of the MOJ’s qualifying criteria;
compliance with the user/data contributor agreements signed by MROs when they initially registered with MedCo;
compliance with MedCo’s ethics policy, which amongst other things provides that registered businesses must act with integrity.
We can now expect to see MedCo carry out a series of audits of registered MROs, to ensure compliance with the qualifying criteria and agreements, and it may be that this will lead to the suspension of some MROs from MedCo.
In our view it is ironic but perhaps unsurprising that reforms introduced to address questionable behaviours in the commissioning of medical evidence have resulted in behaviours within the new processes that are themselves questionable. It is good to see the new government standing behind the reforms that were introduced during the last parliament, although that would perhaps be expected in view of the continued involvement of some of the same MoJ ministers in the new government.
It is also good to see the MoJ confirming that they will conduct a review of how the system is operating, with a view to making any necessary adjustments, which presumably could include the configuration of the search offer itself and/or the qualifying criteria for MROs.
What of the Judicial Reviews?
The two Judicial Review applications remain outstanding. The first application in Manchester High Court involving the likes of Winns, JMW and Express Solicitors looks likely to be listed for a hearing in July. The second review from Speed Medical was initially dismissed on the papers as being without merit, but it has now been listed for an oral hearing later this month for permission to proceed. One would hope by the end of summer MedCo will be able to proceed without the threat of Judicial Review hanging over it.
Other MedCo developments
Work continues in the development of the accreditation process. Recent news that Titus Oyewole Odedun, a well-known orthopaedic expert in the field has been struck off the medical register as a result of making false statements on his CV, means that it is just as important as ever to make sure that the accreditation process is robust and designed in a way that ensures compliance with the new process. We expect this year that there will be headlines featuring other experts being less than honest in their dealings and it would increasingly appear that Part 35 of the Civil Procedure Rules, which governs experts and seeks to ensure their independence, and in particular CPR r.35.3 is no longer capable of ensuring that experts conduct themselves in the correct way.
We will keep you updated with all developments that follow the MoJ’s announcement and regarding the development of MedCo generally.
For further information please contact Nigel Teasdale, Partner
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.