May 1, 2019

MoJ consults on whiplash medical reports

The Government's response to the consultation was published on 5 September 2019 and our summary can be found here.

The Ministry of Justice (MoJ) has launched a consultation into the "Future Provision of Medical Reports in Road Traffic Accident related personal injury claims". The consultation is an encouraging sign that preparations are beginning to be made ahead of the intended implementation date of the whiplash reforms in April 2020.

The Civil Liability Act 2018, which introduces the whiplash reforms, requires that all whiplash claims are supported by a medical report. With the number of unrepresented claimants set to increase following the rise in the small claims track (SCT) for RTAs to £5,000, a new online portal to manage these claims is planned.

To assist with its creation, the MoJ is seeking views on the provision of medical reports for unrepresented claimants through the new platform. At present, claimants' legal representatives obtain medical reports through the MedCo process, and it is not proposed that this will change for claimants with legal representation, although the claim will be registered on the new platform.

The MoJ is seeking the opinions of medical experts, medical reporting organisations (MROs), the legal profession and insurers on:

  • Expanding MedCo, so that initial medical reports for all RTA related PI claims under the revised small claims track limit are sourced via a single system;
  • Whether to broaden the types of medical experts registered on MedCo;
  • Whether to expand the existing fixed recoverable costs regime for medical reports; and
  • The procedure for unrepresented claimants to obtain any required medical evidence.

Expanding MedCo for all RTA related PI claims under the small claims track limit

According to the MOJ, the majority of claims which will be dealt with on the increased SCT are soft tissue injury claims and already within MedCo's remit. However, the MoJ also estimates that around 5% of the claims on the new SCT will not be soft tissue injury claims and therefore not currently dealt with by MedCo. The MOJ proposes that MedCo should be extended to these claims.

The MOJ has also considered other solutions, such as permitting a claimant to identify and appoint their own expert or MRO. The MOJ's view is that this would create a greater burden for the claimant and result in increased costs and potential delays. According to the MoJ the "overriding difficulty with these alternative solutions come from placing the onus on the unrepresented claimant to identify and obtain the required report".

According to the government, extending MedCo will be consistent with the overreaching principle of ensuring that the new claims process is accessible and straightforward for unrepresented claimants. A one-stop system for all RTA PI claims on the new SCT is also likely to provide consistency and independence in obtaining medical reports, which will be welcomed by insurers.

Whether to broaden the types of medical experts registered on MedCo

The increase in the SCT limit for RTA PI claims will not only cover whiplash and other soft tissue injury claims, but also other non-soft tissue injuries for which damages are unlikely to exceed the £5,000 limit. Such injuries may include for example minor types of fractures, tinnitus, dental and minor psychological injuries.

Presently, doctors, consultants and surgeons registered with the General Medical Council and physiotherapists registered with the Health and Care Professions Council can be accredited by MedCo to provide medical reports for soft tissue injury claims.

In light of other non-tissue injuries, it may become necessary for other medical experts, such as dentists, ear nose and throat specialists and psychologists to become accredited by MedCo, and respondents are asked for their views on this. If additional experts are added, the question is if they should be required to have the same level of MedCo accreditation, and if this could be rolled out before April 2020. The government's view is that additional experts should be MedCo accredited.

However, it is recognised that the accreditation process should be tailored effectively to the new experts. The MOJ considers this would save money and time and would be achievable within the proposed timeframe. Whether this will be possible ahead of the intended April 2020 implementation date remains to be seen.

Another option is to not add new experts, but permit already MedCo accredited experts to write medical reports for both soft-tissue and non-soft tissue injuries, recommending an extra specialist report if necessary. The MOJ considers there are already a sufficient number of skilled MedCo experts who could do this. The difficulty would lie in obtaining a specialist report, which may be outside MedCo's remit. Respondents are asked whether additional specialists should only be allowed to provide reports for claims relating to their specialisms, or to become fully accredited.

Osteopaths and chiropractors have also been asked to provide MedCo medical reports. The government considered "there are a number of issues related to such a request" and seeks the views of respondents on such practitioners' suitability to provide reports.

There is a need to ensure the medical report system is self-contained and able to respond to the majority of users' requirements. However there is a danger that the process may become unwieldy and could lead to claims inflation if extended to many different types of experts, particularly as the majority of cases should only require a single expert.

Fixed costs medical reports

The consultation seeks respondents' views on whether fixed costs should be extended to all initial medical reports for all RTA related PI claims being dealt with on the small claims track. It also seeks views on whether fixed costs should be extended to all initial reports for claims on the increased small claims track, if additional experts are added to MedCo.

A fixed cost of £180 (+VAT) for initial medical reports in soft tissue injury claims were introduced in 2014, covering both payment of the medical expert and the cost of the medical examination. Some secondary specialist reports by physiotherapists and GPs are also subject to fixed costs, but there are no FRC in place for reports by other experts, such as dentists or psychologists.

With all RTA PI claimants on the increased SCT required to get a MedCo medical report, the MoJ is also questioning whether fixed costs should be expanded. One possibility is to apply the same fixed costs as now to all initial reports for RTA PI claims on the small claims track. According to the MoJ, this will provide clarity and certainty for at-fault compensators paying for the reports where full or partial liability is admitted, and allow them to reflect this cost in their motor insurance premiums.

However, the government is also aware it might be difficult to find experts who will provide these reports if the cost is fixed and does not take into account the amount of work going into the report. It is also proposed that medical report providers should decide whether to opt-in to provide medical reports for unrepresented claimants and are asked whether they will opt-in to provide these reports for £180 (+VAT) rate.

Whether to vary the applicable fixed costs rate for different  disciplines is  particularly relevant if it is decided that additional specialists should be added to MedCo. This would entail differentiating between a normal initial report relating to standard injuries, and a more detailed specialist report recommended after the first examination. The MoJ highlights that there is no intention to apply fixed costs to additional specialist reports, which has the potential to add complexity and expense to the process.

Options for obtaining medical reports for unrepresented claimants

The MOJ proposes to "retain the current MedCo model of providing a randomised list of medical report providers, but with proportionate and necessary changes to meet the specific requirements of unrepresented claimants". One of the potential issues highlighted by the consultation paper is unrepresented claimants getting confused or overwhelmed by the available choice.

According to the government, these concerns can be alleviated by considered development of the platform and by making guidance and support materials available. Users "choices and decision points" will also be highlighted and explained as they progress through the system. Standardised service level agreements may also be developed to ensure users of the quality of the service they are receiving, and respondents are asked for their views on this.

It is also proposed that the qualifying criteria for MROs should be updated, and respondents are asked what changes should be made. However, an audit released by MedCo in December 2018, showed that only 3% of MROs received a 'green' rating, indicating the relevant criteria were wholly or substantially complied with. If claimants are to deal directly with MROs, these problems need to be resolved.

The MoJ rejected a proposal of a tender exercise where a small number of MROs would be selected to provide medical reports for unrepresented claimants. It considers a randomised list of medical report providers for unrepresented claimants will ensure "consistency of approach for both represented and unrepresented claimants, and will also ensure that the market remains competitive and that unrepresented claimants can benefit from a wide-range of MROs". Indeed this will be an important safeguard for possible referral relationships if CMCs begin to operate in this area.  

Whilst it is to be welcomed that work has commenced concerning how unrepresented claimants will obtain medical reports in the portal, answers to other important questions remain outstanding; such as whether rehabilitation requirements will also be dealt with in the portal and how claims for special damages such as vehicle damage and credit hire will also be dealt with. We look forward to how these issues will be developed. The consultation closes on 17 May 2019.