An increase in fees for medical reports and a ban on lawyers instructing medical experts before the defendant’s liability decision are among reforms put out for consultation today.
The Ministry of Justice (MoJ) has also proposed a change to the medical expert ‘offer’ for claimants and a reduction in the capacity required to become a tier 1 medical reporting organisation (MRO).
Now was an “appropriate time” to consult on a number of medico-legal reporting issues in relation to road traffic accidents, the MoJ said, in light of the Official Injury Claim (OIC) portal going live in May 2021 and the impact of the pandemic.
The number of claims issued through the OIC and the Claims Portal is now around 32,000 a month, compared to 56,000 registered on the Claims Portal pre-pandemic.
There are currently 10 tier 1 and 28 tier 2 MROs authorised and operational on MedCo, a reduction of one and 12 respectively since 2020. Of these, eight tier 1 and 18 tier 2 MROs also provide medical reports to unrepresented claimants making claims via the OIC.
There are 86 indirect and 414 direct medical experts (DMEs) on MedCo.
Medical reporting fees were set in 2014, with MedCo set up a year later. The MoJ said the fact 38 MROs were still in the market indicated that the £180 fixed fee for the initial report “does still cover the level of work required”.
“However, it is likely that reduced volumes of claims and outside factors such as inflation and its subsequent impact on the cost of living means that the margins for MROs and DMEs have been reduced.”
It proposed increasing the initial report fee 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.
The MoJ said it would take into account “overall financial impact” of the increases in terms of the cost to compensators before deciding to press ahead with this.
The lower level of claims meant the MoJ proposed reducing the qualifying criteria 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 it was not convinced that the requirement to have contracted medical experts in 80% of postcodes should be amended downwards.
The current ‘offer’ for represented claimants is two tier 1 and five tier 2 MROs or seven DMEs. The consultation proposed adding a further tier 2 MRO to the offer, with no other changes.
The MoJ said it wanted to bring 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, would upload the report onto the OIC.
This would allow the OIC to monitor the length of the report process, with the MoJ saying high-level evidence indicating that represented claimants took longer to disclose reports. This has been a longstanding criticism from defendants.
The MoJ also wanted to address medical reports not referencing the defendant’s version of events and not detailing the cause and the impact on amenity of non-whiplash injuries, especially in light of the Court of Appeal ruling on so-called mixed injuries.
There were also “indications that some claimant representatives are issuing instructions to medical report providers prior to the receipt of liability/causation decisions from the at-fault compensator” – something the OIC prevents unrepresented claimants from doing.
This can “impact on the quality of the evidence produced, the time taken to finalise the evidence and the final outcome for the claimant”.
The options to tackle this ranged from “ensuring better knowledge by professional user claims handlers” to “aligning the medical reporting process to ensure that both unrepresented and represented claimants followed the same user journey”.
The MoJ outlined concerns that DMEs were increasingly using administration agencies (AAs), especially since the OIC’s launch. While some just offered secretarial support, others “may be effectively operating as unauthorised MROs”.
MedCo has identified practices indicating this, such as payments being made to the AA rather than directly to the DME, AAs performing specified MRO activities, and instructions being received centrally by an AA and then allocated to DMEs.
The consultation put forward four options, ranging from just monitoring the issue for now to requiring all AAs to register on, and be audited by, MedCo.
Matthew Maxwell Scott, executive director of the Association of Consumer Support Organisations, said it was not clear why the MoJ had delayed publication of the consultation, which was due this time last year.
“It’s clear that the functioning of the MedCo framework needs review to ensure that medical reporting firms can continue to operate.
“We urge the MoJ to update fixed fees and disbursements, court fees and damages on a regular basis to reflect soaring inflation and sustain those who work on behalf of consumers in the civil justice system. To date, government policy here has been piecemeal at best.
“Nobody is asking for special favours, just fairness. If practitioners exit the market, consumers risk being left with nobody to turn to if they need help to navigate a complex legal process.”