Are changes to RTA medical reports an accident waiting to happen?

The government is pressing ahead with the second stage of its ‘whiplash reform programme’, continuing its crusade to curb the perceived compensation culture in which the UK bears the title of whiplash capital of Europe.

Mandatory accreditation

The changes alter the way that medical reports in soft tissue injury claims, brought under the pre-action protocol for low-value personal injury claims in road traffic accidents, are commissioned.

They establish a single online hub through which experts are randomly allocated to solicitors or insurers and introduce mandatory accreditation – the latter of which is seen by some as the first move towards regulation of expert witnesses.

The reforms follow a four-week consultation that ended in 1 October 2014, to which the Ministry of Justice received 69 responses – 28 from the defendant side, 22 from the claimant side, 13 from the medical sector and six from others.

Introducing the reforms, Justice Minister Lord Faulks said they will “create an improved system which will deter unnecessary or speculative claims and ensure the genuinely injured can get the help they need”.

They follow the initial stage of reforms, that included the introduction of a fixed fee for medical reports, limiting medical evidence to a single report in most cases, prohibiting the reporting expert from also being the treating physician, and discouraging pre-medical offers to settle.

From 6 April, all expert reports in whiplash claims will be commissioned through online portal MedCo (www.medco.org.uk). Medics and medical reporting organisations (MROs) looking to provide reports must be signed up by then and can start registering on the site now. Registration is free, but fees will be charged for the mandatory accreditation.

According to MedCo’s website, those seeking reports will be able to search for either individual experts or MROs, and the system will return a selection of ‘randomly generated’ results from which they choose. Those commissioning reports will no longer be able to approach them directly or select a particular expert.

Breaking links

The government said the new allocating system is intended to ensure independence in the commissioning process, breaking any direct links between those commissioning and the medical experts or any intermediary organisation, and removing any real or perceived financial interest.

In its consultation response, the MoJ said it is aware that the reforms may “impact on certain longstanding relationships between claimant representatives and the organisations or experts they use to source medical reports”.

But it said: “We consider that the impact of the introduction of a random allocation process is justified when set against the strong public interest in removing financial or other conflicts of interest from the system, and providing a more robust evidence base for those who are genuinely injured.”

Mandatory accreditation and reaccreditation of experts will come in from January 2016 to ensure reports meet minimum quality standards.

The MoJ has said that all current experts will be allowed to register initially with MedCo before gaining accreditation. Any medic who is unable or unwilling to be accredited will have their details removed from the system and will only be able to re-register once they have gained accreditation.

Peer review and audit will be built into the process with a random selection of reports reviewed and feedback given by other users. Failure to meet the required standards may result in restrictions or conditions being applied to a registration or removal from the list.

The government says it is working with stakeholders to develop appropriate accreditation criteria and processes.

Accreditation will be also operated by MedCo. The MedCo Registration Solutions is described on its website as an ‘independent’, ‘non-profit making’ organisation with an independent chair and eight board members drawn from the insurance, medical and claimant sector.

The government said the scheme must be owned and established by those operating in the personal injury sector. No government cash is available to fund the start-up of the scheme; the costs have been met by the ABI. It is intended that the running costs will be covered by the experts’ accreditation fees.

The third trunk of the reforms is the introduction of an industry data-sharing agreement relating to data on claimants’ patterns of behaviour. Representatives will be required to carry out a search on a potential claimant’s recent claims history, in a bid to tackle fraudulent or unnecessary claims.

The reforms have received a mixed response. The Law Society expressed concern that random allocation of experts was a ‘blunt tool’ for addressing the issue of cross-referral of report requests.

Solicitors have suggested the move will increase cost and complexity and remove any control from the claimant over the medic instructed. They have also warned that lawyers could be driven out of the system altogether as the portal will be used for third-party capture.

A group of seven personal injury firms, backed by five MROs, is even preparing a judicial review challenge to the change, claiming that it will impede a claimant’s ability to prepare their own case and ultimately deny access to justice to those with personal injury claims. Concerns have also been raised that the process is too much in the hands of the insurers.

Dividing opinion

Experts themselves are divided over the necessity and impact of the changes. In addition to breaking up established relationships between solicitors and experts, Scot Darling, chief medical officer and clinical lead at Premex Group, one of the country’s largest MROs, says it will also break down the relationships between insurers and experts.

He warns that the change is anti-competitive and will not allow “choice in favour of quality”. “Potentially, better providers will not be given the opportunity to deliver at the same levels as they have done up to now, as other poorer quality providers will be able to get instructions,” he warned.

“Larger providers have become that due to the quality of service that they provide, making them successful.”

Darling suggests they should be afforded a proportionate weighting in the allocation process. He proposes a system that allows a greater chance of nomination for bigger providers by their having their name more frequently generated by the ‘wheel of fortune’.

“This should maintain these higher service levels, which should benefit all stakeholders in the industry equally and fairly,” said Darling.

This two-tier allocation, which MedCo and the government are understood to be considering, is precisely what other providers and individual doctors, who welcome the original reform, fear may happen.

David Pearce, GP, former chairman of the Association of Medical Reporting Agencies and chief technology officer at iSaaS Technology, thinks the change is not an “ideal solution”, but is “a step forward in fragmenting what has become an industry” with powerful agencies taking most of the money while doctors get paid about 20 per cent of the £180 report fee.

Dr Rowland Whale, chairman of the Association of Personal Injury Reporting Experts (Aspirex), has similar fears. The big problem, he says, has been the ‘stranglehold’ that big MROs, working closely with instructing solicitors, have on the flow of work to experts.

He sees the benefit in trying to safeguard the independence of experts and thinks random allocation would be a good thing to create a level playing field, “provided it works as intended”.

But, he says, it would be worrying if “vested interests pervert the process”. A two-tier allocation system, believes Whale, would be “catastrophic for individual experts”.

Accreditation, as a first step to wider regulation, appears less contentious. Most experts seem to be in favour of an accreditation process that weeds out bad eggs, even those who do not accept there is a problem with poor quality reports prepared by hired guns. But, as with everything, regulation is welcomed on the proviso that it is balanced and independent.

The final details of the scheme are still being confirmed and will doubtless prompt further debate as the government maintains its focus on the sector in the run-up to the election. SJ

Mark Solon is managing director of Bond Solon