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2 June 2006:
BICMA review of Wright -v- Sullivan
The implications of Wright -v- Sullivan for the role of Case Manager and the rehabilitation process
It’s nearly a year since the case of Wright -v- Sullivan reached the Court of Appeal. The decision has raised various matters for cerebral activity by those involved in the handling of matters arising from injury where there is a claim for damages.
What really is the role of the “Clinical Case Manager”?
Can that role ever be compatible with that of expert witness?
Is there really an advantage to all concerned by collaborating (even when the claimant’s advisers are experienced and knowledgeable)?
How can we reconcile the conflict of litigation with the collaboration of rehabilitation?
Could the Code of Best Practice be improved to help with these aspects?
What happened in Wright -v- Sullivan?
The identity of a reputable Case Manager had been agreed. The insurers perceived that the usual co-operation and disclosure would enable them to participate in the process of determining how to achieve the most effective rehabilitation. Such is the laudable state of play between many of the grown-ups in the arena of personal injury claims. They were rudely awakened from this happy reverie when the claimant “objected vehemently” to the suggestion of “joint instruction”.
Part of the problem, of course, arises from our everyday use of the word “instruct”. We routinely “instruct” various experts and service providers, including clinicians, without giving great thought to the unconscious implication that we are thereby entitled to direct them in some or all relevant aspects of the task we have given them. Only when we consider that implication is it apparent that there are situations in which we can appoint a particular class of individual with no greater direction than to do or recommend what they consider best for someone else.
Another part of the problem arises from the inhibiting effect on the parties where instruction is “joint” – an effect not immediately appreciated by all when Lord Woolf adopted it as a cornerstone of reform. The moment an expert or any other person is jointly instructed, neither party can discuss the case with that person, without bringing the other side into the debate. Questions asked of a jointly instructed witness have to be shown to one\'s opponent and any interview must be held with both sides present. This concept was a significant step towards the “cards-on-the-table” aspiration of the Winn Committee in the 1960’s but meant litigants foregoing the opportunity to trade on each other’s ignorance.
At all events the insurers in Wright felt (with at least some justification) that they were being held at arm’s length from the process. The court later commented that, “The claimant’s advisers did their client no favours by…… permitting suspicions to fester…”
Insurers’ chance to air their grievance came when the claimant sought an interim payment. They sought an order that the interim award be made conditional upon the claimant playing ball. Specifically, by the close of arguments on the appeal, this amounted to immediate disclosure of “the substance of all communications between the representatives of either party and their expert witnesses and the Case Manager in relation to matters relevant to likely issues in the claim”.
Normally, these would be the subject of litigation privilege. The question of access to the Case Manager for the purpose of contributing suggestions had by then been resolved. Reading between the lines, insurers’ original objectives related to both the rehab and the contest. Best rehab outcome for the claimant would mitigate the damages. But real-time information would also enable them to exert pressure to minimise cost, aiding their resistance to any objectionable items of claim. By the end of the hearing their real focus was the litigation.
They failed because the legitimate purpose of the Civil Procedure Rules is the control of litigation and this is the objective that must hold sway if the parties do not trust each other not to use best practice in rehabilitation to gain a litigation advantage.
There were two really quite narrow issues for the court –
1. is the Case Manager a witness of fact or an expert witness for the purposes of the Civil Procedure Rules?
2. if s/he is a witness of fact, does s/he still owe the court the special duty that goes with the role of expert witness?
On the first question the Court of Appeal found, unsurprisingly, that the Case Manager is a witness of fact – what did s/he do and why? What this demonstrates is the legitimate legal need for a clear distinction between roles that in real life overlap – the view of a professional explaining why they did what they did is bound to carry the kind of weight one normally associates with the evidence of an “expert”, but the framework of rules has to deliver fair play on how evidence is treated in the adversarial forum.
The implication from a practical point of view was that the insurers could not enforce the requirement they sought. The Case Manager’s communications are not privileged, since their dominant purpose is not for the litigation (Waugh -v- British Rail) and will need to be disclosed in the fullness of time. CPR 32.10 deals with disclosure of statements/summaries for witnesses of fact. However, in reality that disclosure is seldom required in time to enable the kind of involvement hoped for by the insurers in this case.
On the second question, hardly less surprising, the answer was that Case Manager’s duty is to the client. CPR Part 35 and its Practice Direction is not applicable to the Case Manager’s evidence. The less divided the Case Manager’s loyalties the better from everyone’s point of view.
What, then, are the learning points?
What really is the role of the “Case Manager”?
Whatever debate there may be on the detail, the role will include the investigation, recommendation and implementation of an effective rehab plan and acting as an advocate for the client. The Case Managers Society UK and the British Association of Brain Injury Case Managers are both very clear that the professional duty is owed to the client. It is noteworthy that the judgement contains more than one reference to the Case Manager “making decisions”, notwithstanding detailed quotes from BABICM guidelines including – “Case managers should be able to demonstrate that the case management plan…has been devised and developed in conjunction with the client and other interested parties”. This describes a collaborative, not an isolated activity. A crucial area for debate is how, if at all, the Case Manager should become involved in considering the sustainability of a rehab regime when funding may turn on split liability or local authority provision. Can the role of advocate for the client extend to these real life aspects of the litigation?
Can that role ever be compatible with that of expert witness?
It is difficult to see how it could and few now would argue the contrary in relation to an individual case.
Some suggest that the roles are so incompatible that the same individual cannot perform the role of expert witness in any claim without casting doubt on their credentials as an independent case manager in any other claim. Others argue that the standards and requirements of the Case Management professional bodies, and the requirements in CPR concerning the expert witness’ duty to the court, ensure that either role is conducted in accordance with its specific duties. The problem lies in identifying abuse and applying effective sanctions. Dyson LJ is on record as saying that the Court needs to be made aware of abuses. In practice it is difficult to see, other than in exceptional cases, how such matters can be escalated.
Is there really an advantage to all concerned by collaborating (even when the claimant’s advisers are experienced and knowledgeable)?
It depends on who is involved – the “two heads are better than one” versus the “too many cooks” argument. Most who have spent significant time in the field welcome input in an area where innovation and lateral thinking can make life better for the injured person. As with mediation, which took a long time to “catch on”, the benefits are only obvious when you try it. Research by the IUA/ABI Rehabilitation Working Party has demonstrated widespread support for the Rehabilitation Code and its focus on the benefits of collaboration.
How can we reconcile the conflict of litigation with the collaboration of rehabilitation?
If the solution was obvious we should have found it by now. What we can say is that everyone benefits from adopting as a starting point the concept that the interests of the litigants both conflict and overlap. This implies that best outcomes are obtained by striking the right balance in each case between the collaborative and the adversarial. Not every activity in handling a claim needs to be a battle. Trading advantages where mutually beneficial makes sense but is possible realistically only when the handling practitioners have established that they can trust each other. How do players who for generations have treated each other with malevolence and cynicism establish trust? Tricky! And, in one correspondent’s view, only possible between individuals, one step at a time, and based on intelligent acknowledgement of each others’ interests and objectives. The new improved versions of the Pre Action Protocols, effective 6th April 2006, make plainer than ever the obligation resting on the parties to deal constructively with the issues arising from distrust rather than simply battening down the hatches and proceeding to trial. The Bodily Injury Claims Management Association (BICMA) is currently involved in an broadly-based initiative in which mediation or independent neutral evaluation should replace litigation in the resolution of rehab-related issues.
Could the Code of Best Practice be improved to help with these aspects?
Even after its revision in 2003 the Code still limits its material effect to keeping the “immediate needs assessment” off the judge’s bench. This is supposed to (and often does) set the scene for co-operation between the parties. However, the world has moved on and the principles of consensual collaboration can be better served by a broader concept of the relationship between the rehab activity and the litigation. How such a concept could be framed should be the subject of debate but must include both the commitment and the entitlement to participate constructively in the development of the rehab plan
The short answer meantime is that best rehab depends on trust and collaboration, that these factors cannot be created by legal process, and that we neglect these obvious features of the game at our peril.
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