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9 June 2005:
BICMA conference on rehabilitation
BICMA conference on rehabilitation
On 13th May this year a conference, the first of its kind, was held at the Belfast Law Society on how claim handling practices could improve outcomes for people injured in accidents to the advantage of all concerned. It was run by the Bodily Injury Claims Management Association (BICMA), which has seen great benefits achieved in England and Wales, at the request of practitioners considering the way forward for personal injury claims.
Chaired by Robin de Wilde QC, the conference was attended by 65 people, mainly solicitors (both plaintiff and defendant) and insurers. In introducing the day’s debate he said that the presenters had come to offer the experience they had had in England and Wales in the hope that it could be utilised or adapted to help accident victims in Northern Ireland. The exchange was likely to be mutually beneficial. All concerned shared the objective of getting the injured person back to the fullest quality of life as soon as possible. The practicalities surrounding that objective were likely to require a radical rethink about the way things were done.
Norman Cottington, President of BICMA and Managing Director of TICCS The Injury Care Clinics, spoke of the historical development and changing philosophy. He outlined the Rehabilitation Code, its adjunct the Practitioners Guide, the concept of needs assessment outside the litigation process and the success of the Code in England and Wales. He explained how case managers are used to provide the assessment independently and simultaneously to both sides as a trigger for early intervention. He suggested that the real test of the initiative would be whether anyone did things differently the next Monday morning.
Keith Popperwell, consultant with Silverbeck Rymer, described the defendant’s experience in England and Wales and pointed up some areas for enquiry on the obligations of the NHS and local authorities. He saw great advantage to both sides in an insurer offering to fund an early joint report (which would not be admissible in the proceedings under the Code) assessing immediate needs. The advantage to all was even greater when insurer funded the “fixing” of those needs. It was no secret that insurers had a financial interest in plaintiffs getting better, being more independent, and getting back to work. It was a “win-win”.
Gerry Lee, Principal - P R Hanna Solicitors, said that it was of paramount
importance that insurers accept the role of the properly experienced
solicitor and acknowledge their "worth" in the process. Only then could
good relations be achieved, based on mutual trust and respect, that
enables swift and early co-operation that is so necessary for the
achievement of effective rehabilitation for plaintiffs. Gerry is the
Northern Ireland regional co-ordinator for MASS, the Motor Accident
Solicitors Society.
John Caldwell, Senior Partner - Caldwell Warner Solicitors, who provided administration support for the conference, shared these views. He expressed the hope that ways could be found to encourage these developments and was convinced that practitioners could work together with good will on both sides. He identified rehabilitation as the area of common interest for both plaintiff and insurer.
Janet Tilley, Joint Managing Partner - Colemans-ctts Solicitors, said that her starting point in acting for a plaintiff was the principle of Restutio in integrum – putting the plaintiff back in the position they had before the accident.
“We cannot say we have achieved justice for plaintiffs if all we do is to get money for them”, she said. Traditional claim-handling practices perpetuated disability. The “damages first” approach meant that by the time the money was there the opportunity for meaningful rehabilitation had often been irretrievably lost. Motivation and self-worth could start to diminish at a very early stage in the process.
She also explained the Civil Justice Council’s role and the effect of the recent changes to the English Personal Injury Protocol. The evolutionary shift from adversarial to consensual claim handling was coming and she advocated getting ahead of the game.
Rosie Corless, Chair - Case Managers Society UK (CMSUK) and Rehabilitation Manager QBE Insurance, explained the role of the case manager in assessing, facilitating, planning and advocating for the health and social needs of the injured person. She went on to set out CMSUK’s role as a professional body run by and for case managers, setting standards and providing education, enabling industry to engage their services with confidence. She also took the meeting through a number of case studies demonstrating the very considerable achievements that a collaborative approach could deliver whilst stressing that dramatic success cannot be guaranteed in every case.
Mr Justice Deeney – concurred with the view that the principle of Restutio in integrum was key to genuinely effective ways of dealing with injured victims. Focus only on the question of damages neglected the entitlement of the plaintiff to have his/her life back as far as that was possible.
He recognised that the trial will always be an adversarial process but considered that this does not require the whole process of litigation to be uncooperative. He noted with approval the increasing interest of the English judiciary in encouraging co-operation between the parties on the question of rehabilitation.
The presentations gave rise to lively debate. What was envisaged was clearly not a minor adaptation but a significant cultural shift. Nonetheless, progress was likely to be achieved on an individual case basis by forward-looking practitioners.
Amongst the many points to emerge was the benefit of early realistic decisions on liability by insurers and an early discussion along the lines of “What can we do to help?”
Insurers and plaintiff solicitors needed to establish how to make rehabilitation work so that everyone gained.
There was recognised a potential issue in relation to fixed costs. However, in broad terms it would be fair to say that consensual claim-handling practices not only obtained better overall outcomes for plaintiffs, but also earlier settlement so that each case delivered its legal fee earnings in a shorter time span than traditional practices.
There was no Personal Injury Claims Protocol yet in Northern Ireland but in the interim the Code and/or the BICMA Agreement or variations of them could deliver the same benefits. It was suggested that BICMA would set up a separate register to identify supporters of the Code in Northern Ireland. This, like the existing one, would be on the BICMA website www.bicma.org.uk and would show contact names as well as firms and companies.
By the end of the conference the general consensus was that a convincing case for change had been made and that the main challenges were –
resource – how will market forces deliver case management and rehab provision?
traditional barriers – distrust and adversarial habits
education – practitioners getting to grips with the practical requirements, and,
how to adapt the principles to the special environment of Northern Ireland.
There was also very positive feedback after the event and considerable support for a further conference including more material from case managers and rehabilitation providers.
A similar conference is planned in Edinburgh later in the year
Copies of the conference pack including the presentation slides are available from BICMA at a cost of £35.00 - cheque payable to BICMA - write to:-
Shirley Weedon,
BICMA,
205 High Street,
West Wickam,
BR4 0PH
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