The government has rejected the arguments of compensators and their lawyers that increasing the fees for medical reports for road traffic accidents would erode the savings from the whiplash reforms.
The Ministry of Justice (MoJ) announced yesterday that it would press ahead with all the changes to medico-legal reporting that it put out for consultation in July 2023.
As well as an increase in fees for medical reports, this includes a ban on lawyers instructing medical experts before the defendant’s liability decision.
The consultation attracted 49 responses, 30 of which were from medical reporting organisations (MRO), medical experts or those who represent them.
Medical reporting fees were set in 2014, with £180 fixed fee for the initial report. The MoJ proposed increasing this to £210 and all the other fixed fees too, such as consultant orthopaedic surgeon (from £420 to £500) and accident and emergency consultant (£360 to £430), with costs for obtaining medical records increasing from £30 to £35, and costs from the records holder up from £80 to £95.
In the consultation response, the MoJ acknowledged “the concerns held by several respondents who commented that the fee increase ought to be higher”, but said the service producer price index was the “appropriate” one to use to uprate the fees, with no solid evidence supplied to justify a higher increase.
Compensators, defendant solicitors and defendant representative bodies “generally warned of potential savings being eroded by any increase”. But overall, the MoJ said, “evidence or responses… did not persuade that an inflationary increase to [fee] levels would have a significant impact on savings”.
Given the time since the figures consulted on were calculated, the MoJ will publish revised figures next year as part of “short, targeted consultation” on the required secondary legislative changes flowing from the consultation. It did not say when in 2025, however.
The lower level of claims since the whiplash reforms were implemented in 2021 meant the MoJ is to reduce the qualifying criteria (QC) to be a national, tier 1 MRO from 40,000 medical reports a year and 225 active experts on their panel to 28,000 and 175 respectively. But they will still need to have contracted medical experts in 80% of postcodes.
The current ‘offer’ for represented claimants is two tier 1 and five tier 2 MROs or seven direct medical experts (DMEs). A further tier 2 MRO will be added to the offer “to ensure effective and lawful competition both between and across the tiers”.
The current offer for unrepresented claimants will remain unchanged.
The consultation outlined concerns that DMEs were increasingly using administration agencies, which in some cases “may be effectively operating as unauthorised MROs”.
It suggested various ways to tackle this and the MoJ has plumped for mandatory audits by MedCo against agreed qualifying criteria.
Only just over half of respondents agreed that the claimant should wait for the defendant to make their liability/causation decision before obtaining a medical report.
While this could delay some cases, the MoJ said, defendants only had 30 days to make a decision, and data provided by Official Injury Claim (OIC) portal showed that most liability decisions were made well before. This meant any delays would be “minimal” while enabling better-quality instructions for the expert.
The MoJ will also push ahead with bringing the OIC medical report process for represented and unrepresented claimants in line so that the former have to source their reports through the portal as well, rather than go through MedCo. The report provider, rather than the solicitor, will upload the report onto the OIC.
The response said: “Some claimant representative respondents opposed to the change raised concerns that such an alignment of processes would mean they would be forced to disclose their medical report before they had fact checked the report or were ready to disclose.
“This is not a correct assumption however, and claimants would retain the ability to check and disclose their report at a time of their choosing. The system would, however, notify the defendant insurer that a report had been completed and uploaded onto OIC.”
However, given some of the concerns, the decision that medical reports cannot be obtained until a liability decision has been made, will be implemented first.
“In addition, further work will be undertaken with all stakeholders to explore the development of an aligned process that is suitable for both unrepresented and represented claimants. Once this is complete MoJ will consider the next steps regarding implementing the agreed changes.”
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations (ACSO), bemoaned the failure to specify when the increased fees would be implemented.
“The number of medical reporting organisations has dropped precipitously in recent years, both as a result of fewer claims following the implementation of the Civil Liability Act but also because of the commercial challenges of operating in an environment where fees were fixed more than a decade ago.
“So while any inflationary increase in fees will be welcome when it comes in terms of ensuring the sustainability of the market and therefore the availability of medical examinations for injured people, it’s entirely unclear why this is taking so long.”
Andrew Wild, head of legal at First4InjuryClaims, added: “It beggars belief that the MoJ has taken 14 months to respond and yet still can’t give a date as to when fixed costs will be uprated in line with inflation…
“There has not been an increase since 2014 so any progress, however slow, must be welcomed, but I hope it will be sooner rather than later.
“The OIC has previously said that medical reports not being uploaded to the portal in the volumes expected is thought to be the main reason for settlement delays, so anything that may speed up that process, which currently stands at more than 320 days, should be a priority.”
Comments