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Rehabilitation – the most challenging but rewarding aspect of injury litigation?

Why personal injury practitioners should engage with the revised Rehabilitation Code, and why rehabilitation in clinical negligence litigation should take centre stage, By Amanda Stevens, Group Head of Legal Practice.

If someone you knew suffered an accident, I wonder what advice you would give? Would it be to find the best lawyer and make sure they got the maximum compensation? Whilst important considerations, my advice would be find a lawyer who really understands rehabilitation and how to access it early, as well as being a robust litigator. After all, the biggest preoccupation of my clients down the years has been how to get their life back on track as quickly as possible – money alone can’t do that.

The first Rehabilitation Code was introduced in 1999, and unsurprisingly did not result in huge changes straight away. That era was fraught with numerous costs wars. Rehabilitation initiatives require a certain degree of trust. But champions of rehabilitation continued to push ahead. A major boost was inclusion of rehabilitation as a necessary process within the court Pre-action Protocol for Personal Injury claims. There is now widespread uptake, although some commentators place that at about 50% of all claims, so there is still a way to go.

The 2015 Rehabilitation Code

During last year, I chaired the working party which reviewed and substantially rewrote the Code. We have tried to make it more user-friendly. A one-page summary document was produced for busy practitioners, together with a workflow document showing recommended timescales for each stage of the process. All the documentation can be accessed at www.Iua.co.uk/IUA_Member/Publications/Rehabilitation_Code.aspx.

The Code is not intended to be a straightjacket, but a guide to good practice. Different organisations will place their own interpretation upon it. Training has not been rolled out in a coherent manner, despite fantastic efforts in some quarters. APIL has produced a revised Best Practice Guide which is available by contacting them via www.apil.org.uk. Previous editions have been extremely popular.

The Code sets out two separate work streams, depending upon injury severity with an eye to proportionate cost alongside good clinical practice. Ten markers are listed, which may justify greater support than indicated by injury severity alone. The importance of goal setting is highlighted to maintain clear focus through the rehabilitation journey.

It is important to remember that a full liability decision is not required before any rehabilitation intervention can take place. If there is likely to be at least a partial admission, rehabilitation can be commenced straight away. Clinical evidence demonstrates earlier interventions increase the likelihood of more successful outcomes.

Money provided for rehabilitation can never be recouped unless it can be proved that there has been fraud or fundamental dishonesty.

Protracted investigations before liability admissions appear to be the blocker, but I would like to see rehabilitation in clinical negligence litigation to take centre stage

Previously anxiety around this delayed some claimants from engaging rehabilitation, when they were in a precarious financial state post-accident. Equally, there are now inbuilt safeguards for compensators, allowing them to offset some rehabilitation expenses against other heads of loss where rehabilitation has been unauthorised in advance and considered unreasonable.

What next?

At the end of July, I chaired the first meeting of the 2015 Code Review Group. We are keen to understand any practical difficulties with implementation so that we can make adjustments. A research questionnaire will be distributed to representative groups who use the Code. We are aware that many clinicians still do not understand what it is all about and this is not helping the injured persons’ journey to optimal recovery. We are exploring ways to work more closely with rehabilitation doctors. A Clinical Best Practice Guide is being produced by the British Society of Rehabilitation Medicine and the Vocational Rehabilitation Association, which will sit alongside the Code.

Some organisations are significantly better at rehabilitation than others. It remains a challenge to persuade them to invest in more training and process around rehabilitation. However, many can vouch for the cost effectiveness of early rehabilitation as well as more subjective qualitative improvements in outcome.

I will finish with two personal observations. As a former hospital manager, one of my greatest frustrations is the lack of anything like early engagement with rehabilitation in most clinical negligence claims. Protracted investigations before liability admissions appear to be the blocker, but I would like to see rehabilitation in clinical negligence litigation take centre stage.

Finally, I would like to encourage everyone who has not fully embraced the Code, to take time to read it and think again. I can honestly say that my cases where there has been effective rehabilitation have given the greatest personal satisfaction, far beyond the size of the settlement sum – for an injured client to regain quality in their day-to-day living is the most important thing.

This article was originally featured in the Modern Claims Magazine – Issue 20.

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