Rehabilitation Code: Are You Using Rehabilitation Effectively For Your Clients?

Originally drafted as a collaborative effort between personal injury lawyers and insurers,the Rehabilitation Code was first introduced in 1999, updated in 2007 and more recently in 2015.   It promotes the use of rehabilitation and early intervention in the claims process, allowing the claimant makes the best and quickest possible medical, psychological and social recovery.

The Rehabilitation Code, although not mandatory, is incorporated into the Pre-Action Protocol for Personal Injury Claims.  The purpose of this process is to restore the individual as much as possible to the position they were in before the accident.

The Rehabilitation Code now includes a separate process for claims below £25,000 in line with the CPR rules definition of low value.  It identifies that the claimant and their rehabilitation should be at the forefront of any personal injury claim regardless of its value.  As well as for catastrophic injuries, rehabilitation is there for lower value cases where treatment is needed, which may not be more than just a course of therapy.

As the claimant’s legal representative, your obligation is always to act in the best interests of your client and this extends beyond securing reasonable financial compensation in that it includes considering, as soon as practicable, whether additional medical or rehabilitative intervention would improve the claimant’s present and/or longer-term physical and mental well-being.

This is most important in the early stages but the duty continues throughout the life of the case.

With regard to the lower value injuries this early consideration is covered in Section C of the CNF which requires disclosure of any professional treatment recommendations, treatment already received and ongoing rehabilitation needs.  The compensator should provide a response to the rehabilitation issue within 15 business days.  The claimant may start treatment prior to this response but will do so at their own risk as to recovering the cost.

Those firms used to dealing with pro-active rehabilitation in the form of obtaining Triage Reports as a route to treatment under the Rehabilitation Code will be well used to the arguments raised by insurers including refusal to pay for the Triage Report Fee, challenges raised concerning the justification of treatment and the rates charged and sometimes a total misunderstanding of the psychological situation.

Insurers frequently attempt to reduce reasonable fees, increasingly at the settlement stage of the process, saying that they could have obtained treatment at a cheaper cost from their own preferred suppliers, even if thRehabilitation Code: Are You Using Rehabilitation Effectively For Your Clients?is has not been previously offered to the claimant.  This can result in delays in the settlement of your client’s claim which is something that can deter fee earners from using pro-active rehabilitation in this way.  As understandable as this may be, it actually doesn’t need to be that way.  Many fee earners can feel uncomfortable and out of their depth when faced with challenges over psychological treatment in particular.

The new Rehabilitation Code seeks to address some of these issues.

Prior to the updated version of the Rehabilitation Code, the need for possible treatment was to be assessed by a suitably qualified person.  The Code now advocates the obtaining of an initial Triage Report to be carried out over the telephone by an appropriately qualified and experienced person to establish the type of treatment needed.  This Report will identify whether further reports are required and if so a subsequent Assessment Report and Discharge Report should be obtained.

It would therefore appear that Psychological injuries can also be addressed in this way by obtaining a Psychological Triage Report, which is an more in-depth Triage Report dealing with the psychological impact of an injury.

The Triage Report is wholly outside the litigation process while further reports are part of the claimant’s medical records.

The  Rehabilitation Code indicates that the compensator will normally pay for the Triage Report within 28 days of receipt.  The same applies to payment for the Assessment and Discharge Reports.  Historically some insurers have refused to pay for the Triage Report indicating it is a duplication of the Assessment Fee.  This is not the case under the Rehabilitation Code and certainly this argument will cease to exist in light of the new changes.

It is advocated that parties should work together to ensure a collaborative approach to rehabilitation.  Where treatment has been organised prior to notification to or approval by the compensator the final invoice will also need to be accompanied by a discharge summary.

Under the new Rehabilitation Code, the compensator will not be required to pay for treatment that is unreasonable in nature, content or cost, therefore it is key to ensure that the rehabilitation provider’s costs are not excessive and are within reasonable market rates.

The Rehabilitation Code also advocates independence from the medico-legal process, something which has previously been argued is a conflict of interest and has become an issue since the Jackson reforms.

The new Rehabilitation Code should therefore help to alleviate the issues on recovery and justification of fees.

For those firms who are not using pro-active rehabilitation, this is something for you to consider when dealing with your obligation to act in the best interest of your clients.  Pro-active rehabilitation ensures your client obtains assessment and treatment quickly and the Rehabilitation Code now advocating that a Triage Report should be obtained will make this easier for you to identify your client’s treatment needs early on.

Using pro-active rehabilitation should also reduce the life-cycle of your client’s case as there will not be any delay in waiting for treatment to commence.  And if dealt with correctly, this should not result in delays at the time of settlement.  This can be crucial where claimants are suffering psychological injuries which have not been properly identified and treated.

MASS can now provide in-house training for firms not using pro-active rehabilitation to show you how to utilise pro-active rehabilitation effectively in your practice, together with the many benefits to you and your clients in using this in accordance with the Rehabilitation Code 2015.  Training will also be of benefit to firms currently using pro-active rehabilitation in the challenges faced on fee rates and justification and how to overcome them in both physical and psychological rehabilitation.  In addition, we offer a course specifically dealing with clarifying and demystifying the issues surrounding psychological injury and rehabilitation.

Terry Wilson
MASS Trainer

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