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22 December 2003:
Notice about Rehab
There has been increasing debate recently surrounding accusations of "adversarial rehab". Problems can arise where practitioners (insurers, defence and claimant lawyers) do not "play the game" in the spirit of the Code. The kind of approach which causes difficulty, for example, follows agreement on an immediate needs assessment under the Rehab Code, after which there is a failure to implement the report’s recommendations. The suggestion is that the report served only to enable an early Part 36 offer. Also, some practitioners, whilst in favour of rehab, will only support it if they have sole control. Such practices do not help anyone in the long run - they throw away the benefits of the consensual approach and perpetuate disability.
Much of the discussion concerns disagreement about how widespread the mischief is. That is to say, almost everyone accepts that there are practitioners (insurers, defence and claimant lawyers) who abuse the Code’s voluntary basis, but there is a wide range of views as to the size of the problem.
Without entering into the "size matters" polemic, BICMA considers that, although a great deal of excellent outcomes are achieved through the Code, the problems are at least sufficiently significant to justify putting some effort into devising Model Agreements designed to put rehab on a more solid and committed footing. Where the parties have established the levels of mutual trust necessary to make it work the Code is fine. Otherwise the Model Agreements, starting with one specifically for immediate needs assessments, will provide a clear and contractual basis for the understanding between the parties including the assurance that reasonable recommendations will be implemented. There would be, for example, a requirement to express in writing reasons for not agreeing recommendations.
Regardless of the current debate, BICMA sees the Agreements as one of the next ways forward. It strongly supports also further enhancement of the Code and the IUA/ABI Rehab Working Party’s proposal for inclusion of reference to the Code in the Personal Injury Pre-Action Protocol.
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