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1 To: Unite the Union response to the MINISTRY OF JUSTICE consultation document: Whiplash reform programme: Consultation on independence in medical reporting and expert accreditation Introduction 1. This submission is submitted by Unite the Union. Unite is the UK s largest trade union with 1.4 million members across the private and public sectors. Our members work in a range of industries, including the manufacturing and transport sectors, financial services, print, media, construction, local government, education, health and not for profit sectors. 2. The provision of legal services is a core Union benefit for our members. Unite has provided its legal service not in pursuit of profit, but in pursuit of fair compensation for injured workers and their families and for a wider goal of accident and disease prevention and health and safety. Prevention is a higher priority. Defendants and insurers will agree that Unite has had a responsible approach to litigation. 3. We note the limited nature of this consultation in the context of it being the Government s second tranche of reforms to improve the system for dealing with low-value whiplash claims. We agree with the aim of creating an improved system which will deter unnecessary or speculative claims and ensure the genuinely injured can get the help they need. Although we strongly believe that the reforms from 2010 have not retained access to 1

2 justice at an appropriate level in a civilised society, the current proposals, developed correctly, are unlikely to cause additional damage. 4. Specifically, we note the 3 proposals in the consultation relation to: the accreditation scheme for medical experts; the establishment of a new central independent IT hub through which suitable medical experts or medical reporting organisations can be sourced ; and the Government s support for the recent industry data sharing agreement relating to data on claimants patterns of behaviour [and that] representatives will be required to undertake a search on potential claimants recent claims history, making them better placed to make a judgement on whether to proceed. Responses to questions Proposal 1: Independence in the Commissioning of Reports Question 1: Do you agree that the proposed amendments to paragraphs 7.1A(1) and 7.32A of the Pre-Action Protocol and miscellaneous amendments to the CPR in annex C are sufficient to ensure that claimant representatives comply with the requirement to commission an initial fixed costs medical report from an accredited expert via the MedCo Portal? Comments : Although Unite agrees that the proposed amendments to the Protocol and Rules are sufficient to ensure that claimant representatives comply with the requirement to commission an initial medical report at a fixed cost (as the current draft Protocol and Rules to come into effect in October 2014 already stipulate) from an accredited expert (as proposed in this consultation), and Unite panel law firms can be relied on to follow such procedure, care must be taken to ensure that the accreditation of experts and the access to suitable experts is maintained. This includes the independence and integrity of the organisation that operates MedCo and the portal. The consultation paper notes there is no Government funding available to cover the start up costs for this system. The Association of British Insurers (ABI) have 2

3 agreed to fund and build the IT system required to support this new service and are working closely with the Motor Insurance Bureau to develop a suitable IT solution. From the outset shared stakeholder involvement and/or independent oversight is crucial. It is also noted that although the seed funding for the system will be provided by the ABI, funding must be provided by the accredited medical experts. Further, whilst operationally the MIB is to be involved in developing the IT solution, the oversight by others must be established at this time, and before further development takes place. It is recognised that Claims Portal Ltd provides a model. However, Unite is concerned that user pays has yet to be established in relation to the claims portal in spite of the Joint Venture Agreement clearly pointing out the problem of funding by one party 1. Question 2: It is anticipated that access to the MedCo portal will be available to litigants in person. Do you have any views on whether use of the MedCo portal should be mandatory for litigants in person? Comments : Unite notes that the effect of the policy intent, supported by Unite, of discouraging pre-medical offers to settle (re-affirmed on page 5 of this consultation paper), to date has been disappointing to say the least. To allow litigants in person to deal directly with an insurer (a process that Unite does not support), relying on a report from an unaccredited expert, is liable to facilitate greater opportunity for fraud and incompetent settlement. Question 3: The results of a search in the MedCo portal can be displayed in different ways. Do you have any views on whether the MedCo search results should offer commissioning practitioners a choice of named medical experts and/or medical reporting organisations? 1 Paragraph 2.7 reads: The parties agree that in principle the cost and management of the Portal should have been financed by claimants representatives and compensators in proportion to use by those users, but this was not practicable when setting up the Portal. The parties will therefore work towards achieving this objective (without materially increasing cost to Current Funders) as soon as is reasonably practicable and to ensure that decision making shall then be afforded equally to the directors of A and B. 3

4 Comments: Unite considers that freedom of choice of experts is essential to the process. This should include choice of medical reporting organisations. In this context accreditation is as much about ensuring that those who produce unworthy reports are denied it as encouraging those that are accreditated to produce worthy evidence. There are also practical considerations to factor in. For example to make sure that experts are identified in an appropriate geographical location for the claimant. Another important point is in relation to efficiency and expediency. This process should not be allowed to delay claims. Recoverable costs are too low already. Currently, through MROs and in other ways, service level agreements and working methods are often in place to improve the delivery of suitable reports. Such arrangements should not be disturbed. Proposal 2: Accreditation for experts writing reports Question 4: Do you agree that the proposed amendments to paragraphs 1.1(A1), and 1.1(10A) of the pre action protocol, rules 45.19, 45.29I of Part 45 and miscellaneous amendments to the CPR in annex C are sufficient to ensure that only accredited medical experts are instructed to provide fixed cost medical reports in whiplash cases? Do you agree that the transitional provisions in paragraph 4.7 are appropriate? Question 5: The Government is working closely with stakeholder representatives to develop a proportionate accreditation process; we would welcome any views or suggestions relating to standards, criteria or training. Comments : Unite wishes to encourage continued close working with stakeholders in developing the accreditation process. In this context we refer to the comments made above that: Accreditation is as much about ensuring that those who produce unworthy reports are denied accreditation and encouraging those that are accredited to produce worthy evidence; and 4

5 Currently, through MROs and in other ways service level agreements and working methods are often in place to improve the delivery of suitable reports. Such arrangements should not be disturbed. Further, criteria for continued accreditation should include monitoring by reference to the rules, such as compliance with the requirements of 7.1A of the amended CPR and CPR 7.4 and 7.8, as well as comments from the judiciary at any hearings. Proposal 3: Data sharing to fight fraudulent claims Question 6: Do you agree that the proposed new paragraph 6.3A in the Pre-Action Protocol is sufficient to ensure that claimant representatives undertake a previous claims data search prior to accepting new claims? Comments : It is noted that the proposed provisions apply to RTA Low Value Personal Injury Protocol matters and that the requirement is to confirm that the claimant representative has searched the existing askcuepi database. Unite further notes that these provisions have been pushed for by MASS and APIL, among others. It is not for us to say whether and how the proposals comply with data protection legislation and human rights obligations, but clearly such considerations are paramount. Whilst we are keen to stamp out fraud and have heard of a potential claimant being shown to have made 37 previous claims, we note that there are substantially more legitimate claims than not and any anti-fraud measures should be proportionate and not discourage those with legitimate claims. Unite sees little evidence of fraud in claims supported by the union and makes clear the cost and other consequences of fraud to members who do make claims. In addition, as a further aid to fraud detection, we would propose that a similar obligation should be placed on insurers to confirm, by inserting the unique reference number generated by the search on the CRU report, they have conducted such a search. Question 7: Do you consider that the amendments contained in this consultation will impact on people with protected equality characteristics? If so, please give details. 5

6 Question 8: We would welcome any further comments you may have in relation to the amendments covered by this consultation. Comments : Please refer to the comments above, some of which expand on the questions posed and in particular: regarding control of and funding for MedCo and the portal further action to deter pre-med offers that accreditation should be extensive at the outset, whilst taking steps to remove those who fail to produce adequate reports current efficiencies should be maintained requiring insurers to confirm they have searched askcuepi. We will be happy to explain or add further to this process. 30/09/2014 This response is submitted by: Howard Beckett Director of Legal, Affiliated Services & Membership, Unite the Union For further information and clarifications please contact: 6

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