From the weakest necks to the weakest fortitude ….. ? Don Clarke, Partner at Keoghs...

Evolving from a specific response to stakeholders into much broader feedback to both stakeholders and the Transport Select Committee (TSC), the Ministry of Justice’s (MoJ) long awaited response to the Whiplash and Small Claims Track (SCT) consultation was finally published on 23rd October 2013.

Whilst quite robust on what was, and what was not in scope going forward, the paper was light on detail and substance. Whilst such design must be awaited, for now the clear priority for the MoJ is the move “at pace” to create an independent and accredited medical panel for the provision of road traffic accident (RTA) soft tissue injuries. The MoJ has itself, been careful not to limit this to “whiplash” injuries alone. It clearly recognises the threat that injuries that were once whiplash could simply manifest themselves as either shoulder or back symptoms.

Importantly, the Government also wishes to address the links which may impair the independence of medical examiners so that they are not paid by those who favour a certain outcome. This is a crucial nuance to the debate and it will be interesting to see how those who own both law firm and medical agency will respond.

In terms of “independence”, it will be of interest to see how the MoJ proposes to tackle this. Primary legislation in the form of the Legal Services Act 2007 made specific provision for “Alternative Business Structures” - these are entirely legitimate business entities and allow for law firms to exist within a diverse business offering ancillary services to clients.

From my perspective, a key issue in this review is the breadth or scope that the MoJ is willing to incorporate within any reform. It is crucial that this is not limited to GP or orthopaedic reports. At Keoghs, we have seen a significant increase in the submission of both psychiatric and rehabilitation reports since the reduction in the RTA portal fee. These are connected with modest whiplash claims at the lower end of the portal value band. Certain law firms are now submitting psychiatric evidence on an increasing number of cases whilst rehabilitation has also increased from some law firms.

So, are certain claimant law firms suddenly alive to these disciplines or have we, in the last few months, gone from the weakest necks to the weakest fortitude?

In most cases the psychiatric report adds next to nothing to the case in hand and often the rehabilitation is little more than rudimentary. Perhaps I am being too cynical, but often these services are provided by an organisation within the same ABS wrapper, so what exactly is driving this change in practice?

I would urge the MoJ to continue on its path to reform RTA medicals, to deliver a truly independent and transparent process that does not layer cost through disbursements, to extend its scope and be prescriptive about what medical can be obtained and when. Also, fees should be fixed and set in the CPR.

All this must be delivered by the end of next year and it is for all stakeholders to come to together and support the MoJ in this ambition.