The Pre-Action Protocol for Personal Injury Claims requires parties to a personal injury claim to consider, as early as possible, whether the claimant has needs that could be met by rehabilitation, treatment or other measures.
The Protocol encourages parties to a personal injury claim to follow the Rehabilitation Code in considering how to identify the needs of the claimant and address the cost of providing for the claimant’s needs.
What is the Rehabilitation Code?
The Rehabilitation Code is published by the Rehabilitation Working Party which consists of representatives from the International Underwriting Association of London, the Association of British Insurers, Lloyd’s primary insurers, legal groups, care providers and the NHS.
The latest version of the Code was published in 2015. It aims to promote the use of rehabilitation and early investigation to ensure an injured person makes the best and quickest recovery. The Code encourages claimant representatives and ‘compensators’ (insurers and loss adjusters) to work together to achieve this.
Claimant solicitor’s duties
The Code requires the solicitor of a claimant to consult closely with the claimant and his/her family in carrying out their duties. These include:
- acting in the best interests of their client beyond just securing reasonable financial compensation;
- considering whether early intervention, rehabilitation or medical treatment may improve the claimant’s present and/ or long term well being (advice from a medical expert may need for aids, adaptations or adjustments to employment to enable him to remain in work and communicate such needs to the compensators;
- providing compensators with sufficient information to enable them to assess the need for rehabilitation assistance, including giving details on the functional impact of the claimant’s injuries.
- discussing a compensator’s suggestion for rehabilitation, early intervention or medical treatment with the claimant and/ or his family and responding to the compensator within 21 days
- considering the appointment of a case manager where appropriate.
The Code encourages compensators to:
- consider as early as practicable whether the claimant would benefit from additional medical or rehabilitative treatment (para 3.1)
- if the claimant may have rehabilitative needs, contact their representative as soon as possible to seek to work collaboratively in relation to those needs (para 3.2)
- consider as soon as practicable whether early intervention, rehabilitation or medical treatment is likely to benefit the claimant;
- if intervention, rehabilitation or medical treatment is felt to be beneficial, to inform the claimant’s solicitor of this as soon as is practicable;
- respond to any request to consider rehabilitation within 21 days, confirming the request or outlining reasons for rejecting it.
Where the need for intervention, rehabilitation or treatment has not already been identified, the Code encourages an assessment of the claimant’s needs by an appropriately qualified person.
The claimant’s solicitor and the compensator should both consider the choice of assessor and object to any suggested assessor within 21 days of nomination. The parties are also expected to agree the method of providing instructions to the assessor.
In simple cases the assessment may be carried out by the assessor conducting a telephone interview with the claimant. In more complex cases the assessor will probably have to meet with the claimant. The assessment should occur within 21 days of referral letter.
The assessor’s report
Normally the assessor’s report will cover the claimant’s injuries, current disability or incapacity, any other relevant medical conditions and their domestic and employment circumstances. It will also outline the injuries or disability in respect of which early intervention or rehabilitation is suggested and the type of intervention or treatment recommended, including its likely cost and likely outcome.
The report should not deal with liability and should be sent to both parties simultaneously. They then have the opportunity to ask the assessor questions about the report.
Neither party is entitled to disclose the report, or any correspondence relating to it, in any subsequent litigation unless the parties agree to its disclosure.
The compensator is expected to pay for the report within 28 days of receiving it.
Recommendations of the assessor
The compensator should consider any recommendations made by the assessor and make available funds to enable any reasonable recommendations to be implemented.
The compensator is not required to pay for any treatment or intervention which is unreasonable in its nature or in terms of its content or cost or when other adequate and timely treatment or intervention is available. The claimant is not required to undergo any unreasonable treatment or intervention.
The compensator should inform the claimant’s solicitor whether it accepts or refuses to meet the cost of any such recommendations within 21 days of the date of the report.
If the compensator provides funds for such purposes it cannot, if court proceedings are subsequently commenced, dispute the reasonableness or cost of the treatment. If the claimant commences court proceedings and subsequently loses or discontinues his claim or if a finding of contributory negligence is made or agreed, the compensator cannot seek to recover any funds paid for this purpose from the claimant.