How far do the latest MoJ proposals on independence of medical reports go?
8 September 2014
Late last week we saw more detail on the MoJ’s on-going reform of the processes under which whiplash claims are handled. As before with these measures, the proposed changes should be of interest to those involved in the handling of all types of injury claims, on the basis that what happens in whiplash today, can easily be followed in other claims types tomorrow.
The changes which are coming in as part of the first phase are already announced and will be being introduced for new CNFs submitted on or after 1 October. They take initial steps to secure some independence as the medical expert producing the report will no longer be able to be someone who has already treated the claimant, nor will the expert be able to recommend treatment from him/herself. There will be a presumption that only one report will be required, and the costs of that report as a “fixed cost medical report” will indeed be fixed. The defendant will also be able to submit its version of the accident when required which will then be placed before the medical expert. And there is the discouragement to making pre-med offers. We knew about all of those aspects already and they are on their way in.
The second phase was being brought forward separately as it was not ready at the same time as phase 1 was being brought forward. We now have the government’s further plans on the important aspects of independence in medical reporting in this type of claim, and on expert accreditation. They are in the form of a short consultation which is open until 1 October and to which we will be responding, with a series of open meetings run by the MoJ in week commencing 15 September to discuss the proposed reforms, invitations to which should be requested from email@example.com by 11 September. They speak of implementation of phase 2 “early in the new year”. They will not want to run the start date too close to the General Election in May.
It is important to note that the government remains committed to independence and to removing what it sees as “conflicts of interest” for report writers currently. They say they have decided upon a system which breaks direct financial links between the “commissioning organisation” which is presumably a reference to the claimant law firm on the one hand, and the medical expert or MRO on the other. So far, so good.
New IT hub – “MedCo”
The MoJ say it will achieve this disconnect by the introduction of “a new independent IT hub”, which will supply a list of appropriate experts or MROs to the lawyers “from which they may obtain” a report. The search reports will be filtered to exclude any MRO or expert with whom the law firm has a direct financial link. But there is no direct mention of “random allocation” of new cases to experts or to the MROs they work with as was raised by the MoJ when phase 1 was introduced. The Ministry seems undecided how new instructions will reach doctors, and whether in fact claimant lawyers will be free to choose experts or MROs as long as they do not use one with whom they have direct financial links. One of the consultation questions in fact asks whether MedCo search results should offer any choice of named expert or MRO, or presumably only one name. Insurers may wish to respond with views, as if the government back away from random allocation then a point of principle is lost and room for abuses creeps back in, as the MoJ had previously recognised.
The Minister makes it clear that lawyers will still be able to own MROs, who in turn can source instructions from other lawyers. This is no doubt to head off threats of JR from certain MRO-owning lawyers and any delay to the processes that might be caused as a result.
It is clear now that government do not see the IT hub as replacing MROs, who will be able to continue to operate alongside it.
Control over MedCo
The MoJ say they are looking with representatives from all interested sectors at developing some independent governance around the new system, and it seems that the hub’s initial name “MedCo” will only be temporary as a more suitable name will be chosen. The ABI on behalf of insurers have agreed to fund and build the IT system with an IT solution to arrive via the MIB. All of this seems realistic and logical to us. MASS currently seem to be misinterpreting this as control over the process by the ABI because they seem to think that ABI will have control over “structure and operation” without noting the planned independent governance. Beyond these initial costs, the system will be self-financing through accreditation fees charged to experts.
The MoJ propose that MedCo will be in charge of this too. There is of course on-going work on accreditation criteria and processes under MoJ auspices, but that part of the new processes will not be complete before the system goes live. The MoJ therefore plan to allow all experts currently writing reports to register, after which they will have a fixed period (we do not yet know how long) to gain accreditation, and if they do not, they will be removed from the register.
IT is being developed to give focus to peer reviews, and there will be random auditing and feedback taken. Sanctions including restrictions or conditions applied to registration can be applied, or removal from the register imposed where needed. Detail around all of this is not yet available.
Taking a leaf out of the TSC’s book, the MoJ support the agreement reached between both sides reached last April. The Pre-Action Protocol is intended as a result to be amended to introduce a requirement that before any CNF is sent, the claimant’s lawyer must carry out a search of askCUEPI in relation to their client to find out data on previous injury claims made over the previous 5 years, and so, according to the Minister, “putting them in a better position to make a judgment as to whether they wish to accept the potential client’s instructions”. Claimant lawyers will say that with this sort of access, claimants with uncertain claims histories will not easily be able to find a lawyer to represent them so any such potentially fraudulent claim is less likely to be brought.
The MoJ say that search data will be maintained, so that patterns of behaviour can be looked at by the IFB.
Pre-meds and beyond
There was not expected to be anything further in the government’s announcement on pre-meds in direct terms and indeed there is none. For insurers who are reviewing the position generally there is some comfort here around the MoJ being serious about independence, and them wanting to be as strong on the point as they feel able to be where there is only 8 months left before the election to get the new processes up and running. We see that insurers will want to respond to the consultation in support of the moves towards genuine independence, and with the hope of securing random allocation of instructions. As always, we will be pleased to support that process.
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.