A Guide to the New 2015 Rehabilitation Code

Article

01 December, 2015

The 2015 Rehabilitation Code is operational from Tuesday 1st December 2015. A copy of the Code can be found here.

The Code is voluntary BUT the personal injury pre-action protocol provides that its use should be considered for all types of PI claims.

The Code is intended to promote collaborative use of rehabilitation and early intervention in the compensation process.

Although the principles are the same throughout, the Code recognises significant differences between the handling of lower value injuries (<£25k) and medium or catastrophic injuries.

The Code is also now accompanied by a Guide for Case Managers. According to the Code it is envisaged that Case Managers will have an essential role to play in assessing the needs of claimant's and then overseeing treatment.

The 2015 Rehabilitation Code important features are:

  1. The claimant is put at the centre of the process, and the need for rehabilitation is addressed as a priority.
  2. Rehabilitation needs are assessed by independent professionals with appropriate qualifications, skills and experience.
  3. The parties may consider whether joint instruction of rehabilitation assessor and provider would assist collaborative working and ultimately be in the claimant's best interests.
  4. The claimant has the final say in choice of case manager, and is not obliged to undergo treatment or intervention that is considered unreasonable.
  5. The case manager should seek proactively to co-operate with treating NHS clinicians.
  6. The compensator will pay for any agreed assessment of rehabilitation needs, and must justify a refusal to follow any of the rehabilitation recommendations.
  7. Initial assessment (including the Triage Report for lower value injuries) is outside the litigation process.
  8. Where rehabilitation has been provided under the Code, the compensator will not seek to recoup its cost if the claim later fails unless fraud or fundamental dishonesty can be proven.
  9. The Code recognises that lower value claims (< £25k) are different, and that there will sometimes be a medical need for claimant solicitors to arrange treatment before getting agreement from the compensator. In these circumstances, the compensator is not obliged to pay for treatment that is unnecessary, disproportionate or unduly expensive.
  10. In the interests of streamlining the process, the majority of lower value claims will require a Triage Report only.
  11. It is the intention that the parties adopt the principles of the Code throughout the rehabilitation process.
  12. Every claim will be subject to ten "markers" which should be taken into account when assessing rehabilitation needs, i.e. age, dependants, return to work issues, mental capacity, geographic location etc.

Relevant Time Scales:

Claimant solicitor

It is the duty of every claimant solicitor to consider the need for rehabilitation from the earliest practicable stage in consultation with the claimant/their family and, where appropriate, treating physicians.

Give the earliest possible notification to compensator of the claim and need for rehabilitation.

Where the need for rehabilitation is identified by the compensator, consider this immediately with the claimant and/or their family.

Compensator

Should also consider and communicate at earliest practicable stage whether the claimant will benefit from rehabilitation.

Where the need for rehabilitation is notified by the claimant solicitor, the compensator will respond within 21 days.

Both parties

Consider choice of assessor and object to any suggested assessor within 21 days of nomination.

Immediate Needs Assessor

Assessment to occur within 21 days of referral letter (but see below for smaller injuries).

Provide report simultaneously to parties.

Compensator

Pay for report within 28 days of receipt.

Respond substantively to recommendations to the claimant solicitor within 21 days of receipt of report.

Lower value injuries (<£25k)

As above, save that in the interests of speeding up the process, there will sometimes be a medical need for the claimant and/or their solicitor arrange treatment before the compensator has had time to approve it. In these circumstances, the compensator is not obliged to pay for treatment that is unnecessary, disproportionate or unduly expensive.

The claimant solicitor should communicate any rehabilitation needs to the compensator as soon as practical using the Claims Notification Form in the MoJ Portal.

The Triage Report, which will normally form the basis of treatment, should be made available simultaneously to both parties.

The compensator will respond to the report within 15 working days and pay for it within 28 days of receipt.

Key Points for Defendants:

  • The defendant is not obliged to pay for treatment that is unnecessary, disproportionate or unduly expensive.
  • The person or organisation that prepares the Triage Report and, if appropriate, Assessment and Discharge Reports should be entirely independent of the person or organisation that provided any medico legal to the claimant.
  • Claimant solicitors can only instruct persons or organisations whom they have a direct or indirect business connection with if the defendant agrees. The solicitor will be expected to reveal to the other party the existence and nature of such a business connection before instructing the connected organisation.

For further information please contact Sarah Wilkinson on 01254 222440 or email Sarah Wilkinson

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