A clearer way forward for medical reporting and whiplash reforms?

Yesterday the Ministry of Justice published results of its consultation, which ran for a month in April/May, on medical reporting within the package of whiplash and small claims track reforms due to be implemented in April next year for road traffic cases. This latest document sets out the government’s policy choices but is, as seems par for the course in this area, very light on detail.

Given that the thrust of the proposals is much as was outlined in the consultation in the spring, it’s regrettable that the MoJ announcement of the measures has come in early September rather than in July as had been originally been expected. That delay of a couple of months surely puts further pressure on the timetable to deliver these reforms, given that the April 2020 implementation looks to be inflexible (with 1 April 2020 mentioned in the body of the Civil Liability Act 2018).

The main measures confirmed by in MoJ’s post-consultation response and the broad levels of stakeholder support are set out below.

·         to expand the MedCo system beyond soft-tissue injury claims to all road traffic injury claims valued under £5,000 around 75% in favour
·         to extend the fixed £180 cost for medical reports to non-soft tissue claims, with only GPs and A&E consultants (AECs) reporting on those injuries around 66% in favour
·         to develop guidance, selection criteria and service level agreements to enable claimants in person to commission medical reports via MedCo firm levels of support for this approach (the summary on the left covers several discrete questions)

The important statutory underpinning here is section 6 of the 2018 Act, headed “Rules against settlement before medical report” and which introduces the statutory ban on so-called ‘pre-medical offers’. This provision makes it a regulatory offence for insurers and solicitors to settle whiplash claims without medical evidence (much in the same way that referral fees were banned in 2013 by making such payments a regulatory offence). It therefore follows that the process for commissioning and delivering medical reports in these claims must be specified.

That specification is part of the implementation of the wider whiplash and small claims reforms which, with the enabling 2018 Act now in place, will be achieved by a range of Civil Procedure Rules and pre-action protocols.

There are few clues to the detail of this secondary legislation in yesterday’s material from the MoJ. It refers in several places to the necessary detail being developed by MoJ working with MedCo, MIB group and the Civil Procedure Rule Committee. For example, the Ministry identifies the need for “consistency for obtaining medical evidence in support of all claims of this nature irrespective of whether the claimant has legal representation” but adds only that this aspect “will be taken forward and implemented as part of the ongoing work to draft revised Civil Procedure Rules (CPR) and a new pre-action protocol.”

That this is the approach is understandable, but surely the hope must be that the work proceeds quickly and its outputs are shared quickly with stakeholders so that they can plan properly, given that implementation is now less than seven months away?

There are some fairly positive signs emerging, with MIB group having arranged an informative series of stakeholder presentations on the development of the new portal earlier in the summer. The next round of these will take place over September and further reports will be provided on this blog.

A final point to note is that nowhere in the new MoJ material is there any reference to increasing the small claims track (SCT) limit for EL/PL claims (to £2,000) at the same time as the package of whiplash and small claims reforms in motor. Perhaps it may be that this strand of the government’s original ideas is quietly falling of the reform agenda?

The first indication of that possibility was very probably the decision to restrict the new small claims portal to motor claims only. A further indication of insurers’ acceptance of it seems clear from an article in Insurance Post this week quoting James Dalton of ABI: “Insurers remain committed to making these reforms [ie for motor claims] a reality. But to do so, we need to be pragmatic, focused and ready to make tough compromises. By not pursuing an increased SCT limit for EL/PL claims, insurers are playing our part to help make the RTA reforms a reality.”

Alistair Kinley, Director of  Policy and Government Affairs, BLM

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