Medical Treatment and Rehabilitation

What is the purpose of Rehabilitation?

The main purpose of rehabilitation is to restore an injured person to a productive and independent lifestyle as soon as possible through the use of medical, functional and vocational therapies. Ideally rehabilitation should be tailored to the individual and delivered by a professional team working together. For example in a situation of limb loss or permanent effects on mobility, consideration will be given to the involvement of:

• The orthopaedic surgeon
• A prosthetisist/orthotist to assist in the design and production of equipment.
• A physiotherapist with specialist knowledge on the short and long term rehabilitation goals, exercise   equipment and fitness needs of the individual.
• An occupational therapist to assess the domestic, housing and work environmental needs of the individual
• A clinical psychologist to assist the individual and their family in coming to terms with what has occurred

Some cases might warrant other specialists, for example to deal with pain management and psychiatric problems stemming from a serious injury. Each specialist would work with the patient towards maximising recovery and a return to active living.

The role of rehabilitation in a legal claim

In the olden days lawyers acting for people who had been injured focussed on providing assistance through the formal litigation process. This provided for lump sum compensation at the conclusion of the claim. Although lawyers were able to make applications to the court for interim payments to finance the cost of treatment, therapies and other expenses these were often resisted by insurers. In the vast majority of personal injury cases time was spent by lawyers for the injured party and the other side’s insurer focussed on the issue of “blame” and the level of the final award of compensation rather than the question of how a claimant could be assisted towards a better recovery. With more complex legal claims lasting several years by the time the claimants got their final damages award opportunities for early rehabilitation were greatly reduced. By that time the injured person might have suffered job loss, relationship breakdown, poor mobility and pain, depression and a loss of amenity affecting many other aspects of their life such as sport/leisure. The inevitable effect on a legal claim where the injured person’s life had started to “break down” was that it became more difficult to effect an optimal recovery and the damages paid out by the insurer we consequently higher.

The Rehabilitation Code

As of the 1st of April 2005, the Personal Injury Protocol which is the procedure that all parties are required to follow in a claim for personal injury compensation,
introduced referral to The Rehabilitation Code (code of Best Practice on Rehabilitation, Early Intervention and Medical Treatment in Personal Injury Claims)
to promote the use of rehabilitation and early intervention in the claims process so that the injured person might make the best and quickest possible medical, social and psychological recovery.

The Protocol requires that both the Claimant’s Solicitor and the Defendant (in most cases the insurer of the party responsible for causing the injury) should consider as early as possible, whether the injured person could benefit from rehabilitation. The obvious potential benefit to an insurer of embracing a request for rehabilitation
assistance, is that the overall damages paid to the claimant will be less. As far as the injured person is concerned their priority is to get better and get on with their life rather than receive extra compensation. The potential is a “win-win” situation for all.

Main Purpose of the Code

The Code recognises that:

• in many claims for compensation for personal injuries, the claimant’s current medical situation and long term prognosis, may be improved by appropriate medical treatment, including surgery as well as non-medical treatment such as physiotherapy, counselling, occupational therapy, and other therapies being given at the earliest opportunity rather than waiting until the claim is settled.
• a claimant’s quality of life can be immediately improved by undertaking what might be basic home adaptations and/or by the provision of aids and equipment again to be provided as early as practicable rather than at the conclusion of the claim. In the case of limb loss where the claimant was struggling to find the right prosthesis through NHS services this might include a referral to a prosthetitist for private treatment.
• there may be employment issues that have to be addressed, to enable the claimant to keep his existing job; or to obtain alternative suitable employment with the same employer or to retrain for new employment. In a nutshell it is a well-established principle that rehabilitation at an early intervention should pay dividends in the longer term. The more focussed the rehabilitation programme the more likely an optimised outcome.

Duties under the Code of the Claimant’s Lawyer

The main duty of the claimant’s lawyer when instructed on a personal injury claim is at the “earliest practical stage” to:

• Consult and consider with the claimant and/or his family the benefits of early intervention by way of rehabilitation or medical treatment.
• Provide sufficient information to the insurer so as to enable them to make a decision in terms of whether they would be prepared to agree to either fund the cost of an assessment report or the recommended course of treatment.

Duties of the Insurer under the Code

• The insurer has a reciprocal duty to consider from the “earliest practical stage” whether there would be any benefit to the claimant in either the immediate, medium or longer term from the early intervention of rehabilitation treatment.

What should happen under the Code?

Where the parties agree to consider rehabilitation the Code states that:

• An independent assessment report should be commissioned.
• The assessment report can either be prepared by the claimant’s treating physician or surgeon or through an agency.
• The report obtained is outside the litigation process the reason being that the assessment will deal with the injuries sustained and the type of treatment recommended and the likely cost only.
• The report will be sent to both parties.
• The Code places a duty on the insurer to “consider the recommendations made and the extent to which funds will be made available to implement either some or all the recommendations”.

The code sets out a specific process that lawyers and insurers can follow. However as rehabilitation has become more the norm than the exception the process of obtaining a detailed rehabilitation report can be shortcut by the parties working together to ensure that treatments and therapies that will obviously benefit the claimant are made available quickly and are delivered by specialist providers. Where the costs involved are significant or the treatment in anyway controversial medical or other expert evidence to support the request will be required. The more serious the injury the more likely that a specialist rehab report would be obtained which would attempt to identify all the client’s needs, how they interrelate and a programme for implementation.

Whilst some insurers have been slow off the mark others have fully embraced the Code so that large interim payments can be paid to a claimant to fund treatments without the claimant needing to make applications to court.

Who pays for Rehabilitation?

The NHS is often the first port of call for any healthcare treatment. It provides an extensive range of treatment for the majority of the UK population. It may be that the recommendations made in an assessment report can be appropriately referred to a GP or treating consultant for further action. However it is important to be realistic about NHS resources which often differ between areas. Where time is “of the essence” the last thing needed is to languish on an NHS waiting list. Sensible insurers recognise this also and there is often a willingness to pay for private treatment to ensure that it is accessed speedily and at a time when it is likely to be of most benefit.Whatever the case it is always important to ensure that private rehabilitation care does not conflict with NHS treatment. Currently the British Society for Rehabilitation Medicine is very much involved in establishing a suitable interface between NHS rehabilitation provision and the medico-legal process. The idea is that the claimant’s lawyer will put to a claimant’s treating NHS specialist details of any recommendations made by medical or other experts reports obtained during the course of a legal claim. This is to ensure that the treatment received by the claimant remains consistent.

Does the Code Work?

This is a difficult question, particularly because:

• The Code is not compulsory
• To be effective it does require the parties to cooperate.
• Although the Code does recognise that a rehabilitation assessment can be done where the question of blame for the accident or injury is still being investigated in reality however, it is highly unlikely that insurers would be prepared to fund the cost of an assessment report or course of treatment until after the question of blame has been determined.

The introduction of formal referral to the Code into the Personal Injury Protocol is a substantial step forward in the hotlistic management of claims for personal injury compensation. It has emphasised the importance of early rehabilitation and provided claimant lawyers with the tools to seek treatment on behalf of their clients and be proactive about it. In the future we are more likely to see insurers investing in rehabilitation services in the interest of saving money for themselves. It is hoped that over time the emphasis on rehabilitation will lead to many injured people getting back on track to a full and active life.

Sally Moore is a Partner and Head of the Personal Injuries Department at Leigh, Day & Co.