Reducing the number and costs of whiplash claims Chartered Society of Physiotherapy Consultation response

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1 Reducing the number and costs of whiplash claims Chartered Society of Physiotherapy Consultation response To: By Scott Tubbritt Ministry of Justice 102 Petty France London SW1H 9AJ The Chartered Society of Physiotherapy (CSP) is the professional, educational and trade union body for the UK s 51,000 chartered physiotherapists, physiotherapy students and support workers. The CSP welcomes the opportunity to respond to the consultation on reducing the number and cost of whiplash claims. Physiotherapists are involved with the recognition and management of whiplash injury at all levels and as such, are able to contribute key knowledge and ideas which will assist the Government in achieving its stated aims. Our response is focussed on the areas of scientific knowledge in which we feel we can most effectively contribute to the debate. We would be pleased to supply additional information on any of the points raised in our response at a later stage. The contribution of physiotherapy to the whiplash injury debate The assessment and management of soft tissue and neuromusculoskeletal (NMS) injuries is at the heart of physiotherapy expertise. Physiotherapists have made significant advances in the field of whiplash injury research, both challenging current practice and thinking, as well as suggesting new ways to approach this complex problem. In the last decade, physiotherapists have become world leaders in the field of whiplash injury research, contributing seminal peer reviewed scientific papers which answer many of the questions raised in the consultation document. Physiotherapists have delivered much of the novel research which the consultation paper refers to. It also provides new and innovative ways to address this complex and costly issue. This response addresses the key points raised in the consultation document and links them to the emerging evidence base. In addition this response makes a case for the inclusion of Physiotherapists on the proposed Medical Assessment Panels. 1

2 1. Introduction 1.1 Physiotherapists have specialist training in soft tissue injuries and NMS conditions. As such, they are regularly called upon to recognise and manage whiplash associated disorder (WAD). 1.2 Physiotherapists are qualified allied healthcare professionals (AHPs) and emerging as world leaders in the field of WAD research. 1.3 The most recent epidemiological evidence suggests that approximately 50% of individuals with WAD will report neck pain symptoms one year after their injuries. (1) There is also preliminary evidence that the prevailing compensation system is prognostic for recovery in WAD. (1) 1.4 Physiotherapists are at the cutting edge of research focused on identifying (at an earlier stage) why some individuals may to go on to suffer long term symptoms following a whiplash injury. (2) This means that resources can be targeted to the most appropriate patient groups (i.e. away from the fraudulent claims). 1.5 Specialist clinicians and researchers in the physiotherapy field are providing training and guidance on the latest research and changes in practice, in line with the emerging evidence base as described below. 1.6 Physiotherapy has a national network of specialist musculoskeletal clinicians who are responding to contemporary evidence on whiplash injury management with numbers providing expert opinion for the courts and/or providing rehabilitative treatment of claimants in personal injury cases. 1.7 The CSP has developed Clinical guidelines for the physiotherapy management of Whiplash Associated Disorder (3) which demonstrate the robust and thorough manner in which physiotherapists assess and apply evidence based practice to the diagnosis and management of WAD. 2. Better medical evidence Question 1: Do you agree that, in future, medical reports for whiplash injury claims should be supplied by independent medical panels, using a standard report form, and should be available equally to claimants, insurers, and (for contested claims) the courts? 2.1 The CSP is content with the proposal to introduce independent medical panels which will provide independent reports for whiplash injury claims. However, based on the evidence provided herewith, we believe that they should be inclusive of Allied Health Professionals (AHPs) and referred to as Independent assessment panels. This inclusion has potential cost saving implications for the proposed model. 2.2 Physiotherapists are already recognised as independent medical experts under the Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. 2.3 We would support the use of a standardised report form. However, this should make provision for the flexibility needed by the healthcare professional carrying out the assessment to use their clinical judgment. 2

3 2.4 The CSP would urge the Ministry of Justice and the Department of Health to ensure that physiotherapists and physiotherapy researchers are involved in the design of the standardised report form to ensure that this is fit for purpose. Question 2: If not, how would you address the problems listed at paragraphs in the consultation document? 2.5 A key issue is the challenge of diagnosis (paragraphs 37 & 38 in the consultation document). Physiotherapists are involved in academic and clinical research focused in this area. International collaborators within physiotherapy research have recently published key papers which challenge current thinking on the classification (4) and diagnosis of whiplash injury. (5) These findings have specific implications for those involved in diagnosis, prognosis and rehabilitation and, as well as highlighting the biopsychosocial nature of WAD, also demonstrate the need for more research in this area. (6) Question 3: Which model should be used for the independent medical panels Accreditation, national call-off contract or some other variant? 2.6 Both models described in the consultation document appear to be inclusive only of medical doctors and medical organisations. Given our response to question one (above), we would support an accreditation scheme inclusive of physiotherapists. 2.7 With the benefit of the emerging research, skilled physiotherapists are able to undertake assessments which go beyond the commonly used and outdated Quebec Task Force classification. Using new and evidence-based approaches to examination, physiotherapists are able to identify subtle objective measures of genuine whiplash associated disorders. (4) This may in addition, provide methods of filtering out fraudulent claims. In addition, we would highlight that physiotherapists are able to assess the psychological and social factors that are also important in the (7, 8) diagnostic and prognostic process for WAD. 2.8 This addresses some of the issues raised in paragraph 44 of the consultation document. Physiotherapy input will provide knowledge and interpretation of the emerging research (detailed below) and has potential cost saving implications for the process. Question 4: Do you consider that an element of peer review should be built into every assessment, or only for a sample of assessments for audit purposes? 2.9 The CSP would support the inclusion of peer review being built in to a sample of assessments for audit purposes. Question 5: How should costs be dealt with and apportioned? 2.10 The CSP does not take a view on how costs should be apportioned. Supporting evidence for the inclusion of physiotherapists in the proposed independent assessment panels. 3

4 2.11 Physiotherapy research has also identified measurable traits of whiplash which (2, 9, 10) may help to differentiate between fraudulent and genuine claims. This important work, though in its early stages, may provide innovative ways of approaching both assessment and management/rehabilitation of whiplash injury Physiotherapy led research into predictive models for prognosis have suggested effective ways to identify those patients at risk of poor recovery in the first few weeks following the injury. This approach takes into account; pain levels, sensory and psychological changes (11) and would provide prognostic guidance for assessment panels. 3. Better incentives to challenge fraudulent or exaggerated claims Question 6: Should the Small Claims track threshold be increased to 5,000 for RTA related whiplash claims, be increased to 5,000 for all RTA PI claims or not changed? 3.1 Measures which allow insurers to challenge fraudulent or exaggerated claims in a less costly way are logical. The caveat is that contemporary science should be incorporated into the decision making of experts in this field. 3.2 However, the CSP does not believe the small claims threshold (SCT) should be increased, as this is likely to result in fewer genuinely injured patients having quick access to expert legal representation and thus rehabilitation treatment. This is because raising the SCT will mean injured parties will not have access to a solicitor unless they are willing to personally fund the legal fees. Not having a solicitor could mean genuinely injured parties will not have advice on accessing rehabilitation if this is not provided by the NHS, meaning that they will have to fund treatment up front and reclaim costs at a later date. Question 7: Will there be an impact on the RTA Protocol and could this be mitigated? 3.3 The CSP has nothing to add on this point. 4. Further action Question 8: What more should the Government consider doing to reduce the cost of exaggerated and/or fraudulent whiplash claims? 4.1 The CSP is committed to working with the Ministry of Justice and Department of Health to achieve the aims of this consultation. We recommend that accredited specialist physiotherapists should be incorporated into the independent assessment panels and that physiotherapy research should be incorporated into the model of thinking for the proposed changes. 4.2 WAD is currently an area subject to ongoing scientific research. The emerging research presented in this response adds vital understanding into this field. We believe it is imperative that Government action in this area includes physiotherapy led science and clinical skills. 4

5 5. Impact assessments Question 9: Do you agree with the accompanying equality screening? If not, please explain why. 5.1 The CSP supports the proposed accompanying equality screening. Question 10: Can you identify ways in which the procedure under current arrangements impacts on people with protected characteristics? If so, please provide evidence of impact. 5.2 The CSP has nothing to add on this point. Question 11: Do you consider that the introduction of independent medical panels to assess whiplash injuries will impact on people with protected characteristics? If so, please give details. 5.3 The CSP supports inclusivity in any format. Panel diversity is likely to have a positive impact upon people with protected characteristics. Question 12: Do you consider that an increase in the small claims limit for Whiplash/RTA personal injury claims from 1,000 to 5,000 will affect people with protected equality characteristics? If so, please give details. 5.4 The CSP has nothing to add on this point. 6. Conclusion 6.1 The CSP welcomes this review of whiplash injuries in England and Wales and is pleased to contribute to key areas of discussion in the consultation document based on experience and evidence in this field. 6.2 Physiotherapists are emerging as world leaders in the research and clinical management of whiplash injuries, and as reliable and efficient expert witnesses. 6.3 The CSP argues that the proposed Independent Medical Assessment Panels be inclusive of physiotherapists and be referred to as Independent Assessment Panels. 6.4 The CSP is keen to continue to work with the Ministry of Justice and the Department of Health to facilitate the Government s aim to reduce the number and costs of whiplash claims. Natalie Beswetherick Director of Physiotherapy Practice Chartered Society of Physiotherapy 1 March

6 For further information on anything contained in this response or any aspect of the Chartered Society of Physiotherapy s work, please contact: Donna Castle Head of Public Affairs and Policy Chartered Society of Physiotherapy 14 Bedford Row, London, WC1R 4ED Telephone: Website: References: 1. Carroll LJ, Holm LW, Hogg-Johnson s, et al. Course and prognostic factors for neck pain in whiplash-associated disorders (WAD): results of The Bone and Joint Decade Task Force on Neck Pain and Its Associated Disorders... Reprinted from Carroll LJ et al. Course and prognostic factors for neck pain in whiplash-associated disorders (WAD): results of the Bone and Joint Decade Task Force on Neck Pain and Its Associated Disorders. Spine 2008;33:S83-S92. Journal of Manipulative & Physiological Therapeutics. 2009;32(2S):S Jull G, Soderlund A, Stemper B, et al. Toward optimal early management after whiplash injury to lessen the rate of transition to chronicity: discussion paper 5. Spine (Phila Pa 1976) Oct 20;36(25 Suppl):S Moore A, Jackson A, Jordan J, et al. Clinical guidelines for the physiotherapy management of whiplash associated disorder. London: The Chartered Society of Physiotherapy; Available from: 4. Sterling M. A proposed new classification system for whiplash associated disorders -- implications for assessment and management. Manual Therapy. 2004;9(2): Elliott JM. Are there implications for morphological changes in neck muscles after whiplash injury? Spine (Phila Pa 1976) Dec 1;36(25 Suppl):S Sterling M. Does knowledge of predictors of recovery and nonrecovery assist outcomes after whiplash injury? Spine (Phila Pa 1976) Dec 1;36(25 Suppl):S Williamson E, Williams M, Gates S, et al. A systematic literature review of psychological factors and the development of late whiplash syndrome. Pain Mar;135(1-2): Walton DM, Macdermid JC, Giorgianni AA, et al. Risk Factors for Persistent Problems Following Acute Whiplash Injury: Update of a Systematic Review and Meta-analysis. J Orthop Sports Phys Ther. 2013;43(2): Treleaven J, Jull G, Grip H. Head eye co-ordination and gaze stability in subjects with persistent whiplash associated disorders. Manual Therapy. 2011;16(3): Jull GA, O'Leary SP, Falla DL. Clinical assessment of the deep cervical flexor muscles: the craniocervical flexion test. Journal of Manipulative & Physiological Therapeutics. 2008;31(7): Sterling M. Physical and psychological aspects of whiplash: important considerations for primary care assessment, part 2--case studies. Manual Therapy. 2009;14(1):e

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