New Rehabilitation Code 2015 from 1 December 2015
The Rehabilitation Code has now been revised and the new version is operational from 1 December 2015.
Following the Jackson reforms a working party was set up to review the Rehabilitation Code. Issues which were considered included whether:
- the code should be split into three different areas (low, mid-range and high value)
- the code should include better liaison with the NHS
- there should be new guidance to assist parties on what they should expect from each medical discipline when commissioning case managers
In the new code the above issues considered by the working group have all been addressed to varying degrees:
- there is now a separate section for lower-value claims, defined as claims with a value of £25,000 or below
- in more serious cases, rehabilitation case managers are encouraged to work proactively with treating NHS clinicians.
- a Case Management Guide has been published alongside the 2015 Code.
Purpose of the Rehabilitation Code
The purpose of the Rehabilitation Code is to provide a framework for personal injury and clinical negligence claims within which claimant representatives and compensators can work together. This is with the aim of helping the injured claimant make the quickest possible recovery to restore them to the position they were pre-accident as much as possible. The claimant's need for rehabilitation is addressed as a priority. The Code is voluntary, however all the relevant pre-action protocols refer to the Code.
Claimant solicitor obligations
These are set out in detail in part 2 of the 2015 Code. They largely resemble the obligations as set out in the 2007 Code, with some expansion.
Claimant's solicitors (or any claimant representative) must eg:
- act in the best interest of their client, over and above securing financial compensation for them
- have an initial discussion with the claimant about their needs in relation to employment communicate needs to the compensator by telephone or email as soon as possible
- provide detailed and adequate information to the compensator about the rehabilitation need and likely continuing disability. These details should be communicated within 21 days of becoming aware of them once the compensator is known
- consider appointment of a case manager where appropriate
The compensator's obligations are set out in part 3 of the Code. This section has been streamlined in the 2015 Code.
Compensators (which include any person acting on behalf of the compensator) must eg:
- consider as early as practicable whether the claimant would benefit from additional medical or rehabilitative treatment (para 3.1)
- if the claimant may have rehabilitative needs, contact their representative as soon as possible to seek to work collaboratively in relation to those needs (para 3.2)
- respond to any request to consider rehabilitation within 21 days, confirming the request or setting out reasons for rejecting it (para 3.3)
Nothing in the Code modifies the obligations of the compensator to comply with the relevant pre-action protocol.
The remainder of the 2015 Code has been significantly expanded and divided up between 'lower-value injuries' and 'medium, severe and catastrophic injuries'.
Lower-value injuries now have their own assessment process, contained with part 4 of the 2015 Code. They have the same definition as in the pre-action protocols for low-value injuries ie injuries valued at £25,000 or less. Different considerations apply for soft tissue injury cases compared to other low-value claims.
Claimant solicitors should consider whether there is a need for early rehabilitation and this should be recorded in part C of the Claim Notification Form (CNF). For soft tissue injury claims, in particular, it is recognised that there is not always a rehabilitation requirement
Parties should usually obtain an initial triage report (TR), followed by a subsequent assessment report (AR) and a discharge report (DR), but it is envisaged that often a TR will be sufficient. The TR will usually be conducted by telephone interview within seven days of the referral and will be very simple eg an email. They should be published simultaneously or made available to the other side immediately. TRs can only be relied upon in subsequent litigation by agreement in writing by both parties.
Report requirements are set out in part 5 of the 2015 Code. Reports should be concise and proportionate to the severity of the injuries and likely value of the claim. The TR should consider the ten markers set out in the glossary and the headings set out in para 5.2. It should not contain a diagnosis or a prognosis or deal with legal liability.
Usual AR headings are set out in para 5.5 and DR headings at para 5.6. Notes and reports created subsequent to the TR will be subject to the usual rules of disclosure.
The compensator will usually pay for reports within 28 days.
Recommendations are covered in part 6 of the 2015 Code. They cover things like:
- the claimant is under no obligation to undergo intervention, medical or investigation treatment
- the compensator should respond with 15 business days of the TR being disclosed (using the portal response form if relevant)
- the compensator cannot dispute the reasonableness of any costs of treatment they have funded in legal proceedings related to the claim. If the claim later fails, is discontinued or there is contributory negligence it is not within the Code to seek recovery of those costs unless it can be proven that there has been fraud or fundamental dishonesty by the claimant
Medium, severe and catastrophic injuries
Medium, severe and catastrophic injuries are now specifically covered in parts 7 to 9 of the 2015 Code and are broken down to Assessment Process, Immediate Needs Assessment (INA) Report and Recommendations.
As expected with these types of claims the process is more complex with a more comprehensive reporting process. Case managers are involved and there is emphasis on early and ongoing communication. The assessment should reveal information and analysis which maximises the claimant's recovery and mitigates loss
Immediate needs assessment (INA) report
INAs are covered in part 8 of the 2015 Code. Case managers should carry out the assessment in an appropriate way to the circumstances of the case eg in complex or catastrophic cases a face to face interview may be more appropriate to a telephone interview
INA reports do not contain diagnoses or prognoses, but they should set out clinically justifiable recommendations for further medical investigation, compliant with NICE guidelines and, where possible, aligned to the NHS Rehabilitation prescription or discharge report or similar. in most cases the INA will be conducted and the report provided within 21 days of the referral. The assessment should be conducted entirely outside the litigation process, unless parties agree otherwise in writing.
Recommendations are set out in part 9 of the 2015 Code and resemble the recommendations for the lower-value injuries eg the compensator does not need to pay for any treatment that is unreasonable and the claimant is under no obligation to undergo any treatment. Compensators should respond within 21 days of receiving the report. Compensators will not dispute the reasonableness or cost of treatment if it has been undertaken by the claimant and was agreed in advance. Where a dispute arises, general interim payments are recommended to ensure continuity of services on the understanding that recovery of sums is not guaranteed
Case managers are referred to throughout the 2015 Code and they are defined as a suitably qualified rehabilitation case manager (para 1.4). Methods for selecting case managers are contained in paragraphs 7.3 and 7.4. The case manager should, before undertaking an INA, attempt to liaise with NHS clinicians and others involved in the claimant's treatment, and to work collaboratively with them, provided this does not unduly delay the process. They should obtain the claimant's relevant medical records where possible.
The case manager must be suitably qualified and experienced and they must comply with appropriate clinical governance. With the most severe life-changing injuries, a case manager should normally be registered with a relevant professional body.
A fundamental part of the case manager's role is to make immediate contact with the treating clinical lead to assess whether any proposed rehabilitation plan is appropriate (para 7.3).
In addition, as mentioned above, a guide for case managers and those who commission them has been published alongside the 2015 Code. It is designed to supplement the code.
Subscribers to LexisPSL Personal Injury can find our full Practice Note on the Rehabilitation Code 2015 here. Click here for a free trial to access if you are not a subscriber.