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20 November 2006:
Moving Forward - article by Norman Cottington for Legal & Medical
Rehabilitation – Moving Forward
It is no surprise to me that many claims practitioners remain confused as to the process by which they should introduce rehabilitation to injured claimants. Apart from The Rehabilitation Code, APIL have produced their own best practice guide on the subject, whilst FOIL and MASS have working parties producing guidance for their members. The ABI has recently produced their own proposed best practice model for responding to injuries and illness. Meantime the providers in each discipline have either produced, or are looking to produce, their own quality standards, which inevitably differ and confuse. There is a huge push at the present time towards government regulation of rehabilitation providers which, if it happens, is likely to be some years away. The most pressing real-life barrier today in getting rehabilitation under way in any particular matter is the choice of provider, the first and most significant of which is the Case Manager.
The Court of Appeal in Wright – v – Sullivan helped to clarify matters to some extent. The two main issues for the Court were as to:-
1) Is the case manager a witness of fact or an expert witness for the purpose of the civil procedure rules?
2) If she/he is a witness of fact, does she/he still owe the Court the special duty that goes with the role of the expert witness?
On the first question, the Court of Appeal found that the case manager is a witness of fact – what did she/he do and why? 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.
On the second question, the answer was that the 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.
The question then arises as to who should choose the case manager and what criteria should be used in making that choice. Given that Wright – v – Sullivan made it clear that the case manager’s duty is to the client and that, particularly in traumatic cases, the case manager’s role can be an intrusive one, it follows that it must be wrong to impose an unknown provider. Most solicitors will be able to recommend a case manager to their client, being a person or agency in whom, based on previous experience, they have confidence. Insurers equally have preferred providers, being those in whom they have similar confidence and with whom they may have agreed terms of business, but of whom the individual solicitor may have little or no experience and therefore unable to provide a personal recommendation to the client.
Much the same issues arise in relation to the choice of any other type of provider - physio, counselling, home adaptation etc.
Unfortunately, these disputes as to the choice of provider and/or as to the merit and/or funding of recommended provisions can create delays that are detrimental to the rehabilitation of the individual client.
BICMA (Bodily Injury Claims Management Association) which draws representatives from all sides of the personal injury world together, has looked to provide a solution.
CMC/BICMA/NMH SCHEME
BICMA wishes to promote proportionate resolution of such disputes through telephone mediation. The service will be neutral and national, offering readily accessible mediation at an affordable fee.
Following discussions with the DCA, HMCS and the Civil Mediation Council (CMC), BICMA is pleased to announce that it has resolved to fund a pilot scheme under the National Mediation Helpline (NMH)’s auspices, to see whether telephone mediation offers a viable and effective option for the resolution of rehabilitation disputes. If it does, then this may provide the basis for a scheme of much broader ambit in bodily injury claims.
BICMA will fund and promote the pilot scheme across the industry. It will also monitor, on an anonymous basis, the use of the pilot.
BICMA will of course work closely with the DCA, HMCS and NMH, as well as liaising with the CMC, during the establishment and life of the pilot. It will entrust the running of the pilot to the NMH and its service provider and will not seek to interfere with operational matters, but will provide such support and assistance as is reasonably necessary. BICMA will publicise this scheme with the DCA and CMC.
The pilot scheme has an operational date of 1st December 2006.
The life of the pilot will be for 25 funded telephone mediations. It is not possible accurately to estimate the period of the pilot. The best estimate is six months.
More details are available from the Secretary of the Civil Mediation Council, Jonathan Dingle, and the website is secretary@civilmediation.org, or from the National Mediation Helpline, 0845 6030 809 at www.nationalmediationhelpline.com.
BICMA hopes and believes that this will offer a quick and inexpensive opportunity to resolve disputes arising from the rehabilitation process.
BICMA Quality Standards for Providers of Rehabilitation
The provision of rehabilitation involves many disciplines of which most are already regulated by their own professional bodies. To provide one individual body capable of regulating all of these disciplines will prove difficult at best, but in the meantime there is a need to provide purchasers with an assurance as to the quality and/or standard of service that they can expect from their chosen provider. With this in mind, BICMA proposes a generic document setting out minimum standards to be expected from practitioners involved in the rehabilitation process, to include all disciplines, both medical and other.
Agreement to these standards would constitute a commitment:
1) Any person involved in providing the service shall be appropriately qualified, shall be a member of their appropriate professional body and shall act in accordance with the standards of practice of that professional body.
2) There shall be, in respect of any such service as is provided, appropriate and proper professional indemnity and liability insurance.
3) The duty of the provider of any service is to the injured party, who is at all times the client, and that duty shall be independent of any claim or litigation.
4) The services and/or recommendations provided shall be appropriate, timely, reasonable and not influenced by the source of instruction.
5) In the provision of any services, account should be taken of the provision of such services within the National Health Service and/or the relevant Social Services provisions.
6) Their terms of business and transactions, including any credit arrangements, be open and available to inspection by any legitimate interest.
By adhering to these quality standards and conditions, the provider will demonstrate both independence and the commitment to deliver a quality service and despite no provision for regulation, should the provider be found to be in breach then he would in effect be in breach of the terms of his contract with the instructing party.
It is not intended that these standards should go in place of any eventual regulation that may be considered necessary and/or appropriate, but that they provide some assurances of the quality of provision of services in the shorter term.
Providers wishing publicly to adhere to these standards will have the opportunity of signing an appropriate document to be held by BICMA, who will provide a register for them. Providers would be invited to declare themselves as signatories on their letterhead and/or marketing material.
Instructing a provider who agrees to adhere to BICMA’s quality standards will provider the purchaser with an assurance of the provider’s independence and commitment to delivery of a quality service.
Copies of the BICMA quality standards can be made available in either e-mail or hard copy form on request to info@bicma.org, or you can click here to download a copy.
Last year I presented an article entitled “Rehabilitation – the barriers”. The barriers still exist but there are increasing efforts to overcome them.
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