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Can a personal injury claim get you access to more advanced treatment than the NHS provide?

Posted on 1st August 2018

We recently celebrated the achievements of our National Health Service, which turned 70 years on 5th July 2018. We have a brilliant NHS which plays a vital role in our society. However, there is no doubt that the NHS’s resources are very limited to meet the increasing demand for care and there are often lengthy waiting time to see a specialist.

I am often instructed by clients after an accident who have already had emergency treatment at the A&E department but subsequently wait for outpatient appointments due to ongoing symptoms. This wait on the NHS can, unfortunately, have a negative effect on the wellbeing of a client and at times can prevent a client from returning to work as early as they would like, which in turn has an effect on the client’s finances and their family.

A solicitor’s obligation to the Rehabilitation Code.

As a Solicitor instructed in a Personal Injury Claim, I have an obligation under the Rehabilitation Code to consider at the very outset of a claim as to whether a client requires treatment and/or rehabilitation. A client may have an immediate need for aids such as a mobility scooter or adaptations to their home such as a stairlift. It is very important to assess these needs as early as possible to ensure a client gets back to the position they were prior to the accident as much as possible.

The Rehabilitation Code was introduced in 1999 within the framework of Personal Injury claims. The objective of the Rehabilitation Code, whilst voluntary, was to promote the use of rehabilitation and undertake an early investigation to ensure that an injured person makes the quickest possible recovery.

Identifying the treatment needs of our client

This obligation to consider a client’s rehabilitation needs is not taken lightly. The Pre-action Protocol of Personal Injury claims encourages both Solicitors and Insurers to follow the Rehabilitation Code to identify at the earliest opportunity the medical and rehabilitation needs of the Claimant and the likely costs involved.

During initial consultations with a client, their need for rehabilitation should be addressed as a priority. In a spinal injury claim, this could be anything from physiotherapy treatment to more invasive treatment such as steroid injections or possible surgery. Due to the impact of the accident on a client, they may require Psychological therapies such as Cognitive Behavioural Therapy. The Claimant may require adjustments e.g. a standing workstation to enable them to continue in employment or even require assistance to find suitable alternative employment.

A Solicitor is expected to inform the Insurers of their client’s medical or rehabilitation needs as soon as practicable to avoid any delays to the client’s treatment and recovery.

Getting a qualified expert to assess

A Solicitor will not make able to make decisions about the Claimant’s need for treatment or rehabilitation. The Rehabilitation Code encourages an assessment by an appropriately qualified person. This could be an individual or a company and the parties are encouraged to agree on the identity of the person or organisation who will carry out the assessment of the Claimant as early as possible.

The assessment of the client’s needs may be carried out by a telephone interview. A face to face meeting is more common in more complex cases. The assessment will usually take place within 14 days of the referral.

The assessor will make contact with the client and thereafter produce a report which will include various details including the client’s injuries and details of their current symptoms. The report will also include details of the client’s employment and living conditions and refer to relevant medical conditions. The assessor will make recommendations of the type of intervention or treatment required and provide a breakdown of the likely cost involved. In serious spinal or Brain injury claims, the Assessor may appoint a Case Manager, who is often a qualified therapist such as a nurse, physiotherapist or occupational therapist. The Case Manager will make contact with the clients treating NHS doctors to assess whether a treatment plan is already in place and to work collaboratively with the doctors to ensure the client receives the rehabilitation they need as quickly as possible.

The Case Manager

This is very helpful to the client and their family as the Case Manager will obtain the client’s medical records and take the lead in arranging any treatment required by the client rather than the client having to consult their GP and wait for the medical appointments on the NHS.

The Assessor’s report will be sent to both the Solicitor and Insurer simultaneously. Once the report is sent to the Insurer they will have a period of 21 days to confirm whether they are prepared to pay for the cost of any recommendations in the report. The Insurer will then be required to make payment so that the treatment can be implemented as quickly as possible.

Reducing the time to receive treatment with a personal injury claim

The Rehabilitation Code allows the client to obtain treatment or intervention without having to wait long NHS lists and access advanced treatment which the NHS may not be able to offer.

There are circumstances where the Insurer may not agree to pay for any recommendations that are unreasonable due to the type of treatment recommended or the costs involved, in particular when other adequate treatment or intervention is available. The Claimant is also not required to undergo any treatment that is unreasonable e.g. the Claimant may decide to opt for conservative treatment and not proceed with injections or surgery.

It is also useful to know that where liability for the accident is under investigation and the Insurer has agreed to engage in the Rehabilitation Code and pay for treatment, the Insurer later cannot dispute the cost if liability is subsequently denied. It is always reassuring for my clients to know that where Court proceedings are initiated on behalf of my client but the claim is subsequently lost at trial or the claim is discontinued, the Insurer in these circumstances will not be able to pursue the client for recovery of the sums paid.

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