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Whiplash consultation: the key theme from the Ministry of Justice Open Forum

At the open forum hosted by the MoJ, members of the claimant solicitor community suggested that the current system of expert reporting in whiplash cases worked well and that there was simply no need to question independence of experts.  Where was the evidence that experts weren’t independent they argued?  At worst, there was a perception issue suggested one attendee.

This is the most significant area of the proposed reforms. Without securing the independence of the medical experts the value of the proposed package of reforms will essentially be lost, and the opportunity now available to the MoJ will have been passed up, and the substantial weaknesses in the current system which give insurers little or no confidence in the objectivity in the conclusions of the report will continue. With respect, this should not be allowed to happen.

Independence of the expert was one of the key drivers for the work of the Transport Select Committee.  At paragraph 12 of its response to the TSC’s report and its own consultation, the government stated that it wished to "..address the links which may impair the independence of medical examiners, so that they are not paid by those who favour a certain outcome in their diagnosis and so that they do not have other financial interests in the outcome of the claim”.  The government’s own analysis of the consultation responses confirmed that 58% of respondents supported the government’s proposals for independent medical panels, including 69% of medical stakeholders. Those views continue to remain relevant now.

It can only be to the benefit of the claims process as a whole for the expert to not only be independent but also seen to be independent.  The lack of visibility around what percentage of a fee is paid to an MRO and what amount is paid to the expert is also an issue.

Without independence being secured, the situation will remain as now where in our view we have a situation where because of the operation of vested interests, in the vast majority of claims submitted to a medical expert a diagnosis of whiplash is given, and a significant period of relevant symptoms is attributed. As defendant lawyers we do not have statistics to verify this belief, but anecdotal evidence is widespread including from a number of reported judgments showing failures of objectivity in report writing by experts. If any party argues to the contrary against this proposition, then we would expect them to be able to support their position with their own statistics (for instance claimant representatives, if they do not accept the proposition we advance here, should be able to show significant numbers of claims referred to medical examiners where a diagnosis of whiplash was not established, if that is indeed the case). In the absence of any such evidence from claimant representatives then conclusions can fairly be drawn.

In furtherance of the aim of independence, we believe that the rules should be drafted in a way that makes it clear that there cannot be any direct or indirect financial link between the person producing the report and the claimant or anyone acting on his or her behalf.  As the rules are presently drafted that caveat only seems to apply to reports obtained via an intermediary.  There should be no direct or indirect financial link between the expert and the claimant in the case of all reports, irrespective of how they might be obtained, and the duty should also be on the expert to verify compliance when signing the report.

For the MoJ’s proposals to be effective the key will be for there to be a robust system of accreditation, audit, and sanction where appropriate, and we do not believe that the MoJ’s proposals for the new processes can be properly considered to have been finalised until the proposals governing those areas have been released by the working party.

Assuming that the rules around accreditation and oversight are robust, we do not see any reason why the MoJ’s proposals such as commissioning reports on a rota basis from intermediaries could not form the basis of a workable solution to this most important of issues of securing independence.

For further information, please contact Marcus Davies, Professional Support Executive on 0161 603 5146.

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.