Immediately a Solicitor agrees to act for an injured client, Rehabilitation investigation should be at the top of the Solicitors “things to do” list.
Rehabilitation is a cost effective measure for both the accident Victim and the Insurer, which enhances levels of productivity and independence. By far the best rehabilitation is early intervention and a combination of measures to work around the victim’s impairments. Account should be taken of the individual’s wishes, the resources available and the individual environmental barriers. Whether the Rehabilitation has been successful may be best judged by the injured Victims subjective well-being at the end of the course of rehabilitation.
Under the Rehabilitation Code of 2007, Insurers and Victim’s Solicitors are encouraged to work together to address the Victim’s needs through early exchange of information and notably even before agreement on liability for the accident.
Under the Code, the Insurers should pay for an agreed assessment and would then have to justify a refusal to follow the assessor’s recommendations for action/treatment. To be clear, if the legal claim fails the Insurer will not seek to recoup its cost.
The British Society of Rehabilitation Medicine is a learned Society representing Doctors who practise in Rehabilitation Medicine and is therefore a very helpful source of information, as is their Guide to Best Practice at the Interface Between Rehabilitation and the Medico-Legal Process.
Assessment of Rehabilitation Needs
A decision to seek separate Assessment of Rehabilitation Needs should, however, only be made after consultation with the treating Clinical Specialist, usually the NHS. In the same vein recommendations made by the Assessor should be similarly referred back to this Specialist for approval. The Claimant can then make an informed decision whether to proceed with the recommended treatment and, if so under the NHS or on a private basis.
It is a long established principle by Section 2 (4) of the Law Reform (Personal Injury) Act 1948 that in any argument as to the reasonableness of the cost of private medical treatment (within a claim for damages for personal injury), the availability of NHS treatment shall be disregarded. It is certainly wise anyway for the NHS to be kept informed and reciprocally for the Lawyer to remain aware of the NHS Discharge Planning Documents including those relating to Statutory Services which will be provided.
In a case where the NHS disagrees with the proposals of the Assessor, the ultimate decision, of course, remains with the accident victim, but it is desirable that the NHS specialist consults, for example, with the Private Specialist to see if a compromise can be reached in the victim’s best interests.
One other concern often raised over Rehabilitation services is the “Postcode Lottery” Syndrome. It is only in a small number of very serious cases that the NHS will transfer patients out of the area for optimum treatment. It remains to be seen whether a challenge based on the Common Law of Negligence or the Human Rights Act 1998 is successful in compelling the NHS to provide optimal Rehabilitation but any reluctance upon the NHS’ part to interfere with the planned allocation of resources to create logistical problems, or to open the flood gates, may be major defensive barriers to such a challenge. In certain circumstances the expense of defending a challenge may however cost the Authority more than the actual cost of providing the treatment, so it may be worthwhile taking such wider considerations into account.