Addressing the rehab paradox

The NHS is very pro-rehabilitation. Visit their website and search for the term ‘rehabilitation’ and over 2,000 items are returned in the results list.

To quote from NHS England’s publication ‘Commissioning Guidance for Rehabilitation’ rehabilitation “underpins all conditions”.

Yet when it comes to clinical negligence claims, NHS Resolution, the body which deals with claims against the NHS, doesn’t seem to share the NHS’ enthusiasm.

For me, as a practitioner who deals with both accident claims and clinical negligence claims, I am seeing a disparity between the amount of rehabilitation available to those who have suffered their injury as a result of an accident (for example a road traffic accident or an accident at work) and those who have suffered their injury as a result of clinical negligence and I feel this disparity is unjust.

I appreciate this isn’t a new topic and my frustrations will no doubt be the shared experience of many practitioners, for many years now. However, I feel this disparity is increasing as time progresses and it must not be overlooked.

The NHS defines rehabilitation as “a process of assessment, treatment and management by which the individual (and their family/carers) are supported to achieve their maximum potential for physical, cognitive, social and psychological function, participation in society and quality of living”.

The emphasis on ‘maximum’ is my own because the reality is that whether anyone can achieve their maximum potential will depend upon a number of factors including the availability of provision in any particular area.

I recall a client who made fantastic progress while an in-patient at a rehabilitation unit who then endured a 15-week wait for neuro-physiotherapy once discharged into the community. During this time he started to deteriorate significantly, both physically and mentally.

Early intervention: Insurers get it

From the perspective of any compensation claim there is a benefit to the paying party if a claimant can achieve their maximum functional potential through rehabilitation.

An injured party’s reliance on equipment; their ability to work; their need for care can all be improved with rehabilitation and the earlier they receive rehabilitation, the better.

The effectiveness of early rehabilitation is supported by insurance companies involved in the personal injury sector, which are prepared to fund it, often while liability is still being investigated.

After all, while many major insurers have charitable interests, at the end of the day they are businesses driven by profits and the interests of shareholders.

Nevertheless, the more enlightened insurers recognise that, especially in respect of catastrophic claims, spending on rehabilitation in the short term will equate to savings in the longer term.

Therefore, upon taking instructions from a client who is injured in a road traffic accident I can offer a glimmer of immediate hope.

I can tell them about the Serious Injury Guide and explain that one of the overriding aims of the Guide is to help claimants access rehabilitation.

If the particular defendant is not a signatory to the Guide then I can talk about the Rehabilitation Code 2015 which enshrines similar aims and the fact that increasingly, in the world of personal injury law, insurers and solicitors are taking a collaborative approach when it comes to catastrophic claims, including the provision of early rehabilitation and that insurers who aren’t official signatories to the Code may well agree to act in the spirit of the Code.

NHS Resolution doesn't get it

Sadly, the same hope cannot be extended to the client who has been injured as a result of clinical negligence. The Serious Injury Guide does not cover clinical negligence cases and there is no parallel agreement in place to cover such claims.

My personal experience, and no doubt that of other medical negligence practitioners, is that requests for early rehabilitation either go unanswered or are refused pending investigation into liability.

Therefore, to the newly injured facing a potential clinical negligence claim, I can only say that there is an expectation under the relevant pre-action protocol for the parties to consider rehabilitation but that in my experience NHS Resolution (and also those bodies who insure private doctors) will not be willing to engage in any form of rehabilitation until liability has been established.

This can often mean a delay of in excess of a year, sometimes two, during which time their rehabilitation will be limited to that which is available solely on the NHS.

Such rehabilitation is often limited to a prescribed number of sessions. There is also then the question of how comfortable a claimant is going to be undergoing rehabilitation provided by the very body that has harmed them.

The likelihood is that they are not going to reach their maximum potential, especially compared to their personal injury counterpart, and that the possibility for longer term improvement may also be curtailed.

Of course, the NHS and NHS Resolution are separate bodies but in reality, they are intrinsically linked.

Given the importance the NHS places on rehabilitation it strikes me as profoundly contradictory that NHS Resolution doesn’t ostensibly practice what the NHS preaches and does not have an aim to improve the long-term recovery of those injured by way of clinical negligence, through early rehabilitation.

Under the ‘Resolution’ section in their Business Plan for 2019/2020 NHS Resolution aims to reduce litigation and unnecessary costs but, frustratingly, there is no mention of the impact rehabilitation could have on these goals.

I don’t have an answer to the question why NHS Resolution simply won’t engage in discussions to fund early rehabilitation. I suspect the reasons may differ depending upon who you speak to.

I think it is important to remember, as we reap the benefits of working under the umbrella of the Serious Injury Guide, that the current status quo was achieved through a lot of hard work on the part of both sides (claimant and defendant) and that the development of good working relationships built on trust and transparency didn’t happen overnight.

I would like to see the same happen for clinical negligence. Whether any such Guide would be as broad as the one for personal injury claims would be a matter for discussion/negotiation between the various parties but surely if it has been done before it can be done again?

What can be done?

So, what can we as practitioners do to try and help not only our current clients but also those who suffer from clinical negligence in the future?

Well, first, we must never stop asking for the rehabilitation our clients need. We shouldn’t presume that NHS Resolution will always say no.

We should press for rehabilitation under the pre-action protocol for clinical disputes and the Rehabilitation Code and seek a definitive response to the request.

If the answer is no, then maintain a dialogue. Provide updates on your client’s progress; flag the ongoing difficulties that could be addressed by rehabilitation.

The dialogue may be met with silence but perhaps the building blocks for a relationship of trust and transparency can start to be laid.

Second, in the absence of any agreed rehabilitation plan, make sure clients are signposted to relevant charities and organisations which may be able to provide additional support or further signposting to allow them access to interim rehabilitation support.

Third, as soon as evidence on breach and causation is available then proceedings should be issued and an urgent interim payment should of course be sought.

Finally, as an industry we must not become complacent about a state of affairs which has been static for too long. We must keep pushing this issue in the hope that change can be made.

Victoria Oliver is an associate solicitor in Bolt Burdon Kemp’s spinal injuries team boltburdonkemp.co.uk