Accrediting experts is only one ingredient: and raising the small-claims limit would be to add the icing before it’s cooked.
John Hyde was right to question the impact of medical experts being quality controlled (Whiplash panels won’t change a thing). I agree, as in isolation the impact will likely be modest in the short term. But, as Mary Berry will testify, to avoid a soggy bottom your cake must have the right balance of ingredients brought together in the right way at the right time. The accreditation of experts is just one ingredient in the mix alongside banning referral fees, reducing fast-track costs and the legal aid reforms.
Increasing the small-claims limit at the same time, which John Hyde seems to favour, would be like icing your cake before it has had the chance to cook. Let’s get the current reforms in place and understand their impact (if any) before increasing the small-claims limit.
Achieving a more balanced personal injury market is not just government’s responsibility. The SRA, Association of Personal Injury Lawyers, Motor Accident Solicitors Society and the Association of British Insurers must all take some responsibility for curbing bad behaviour. For example, commission fees have apparently been banned but we are seeing ingenious schemes constructed where more entrepreneurial firms tip-toe through the LASPO small print to maintain their so-called ‘whip-cash machine’. This simply maintains the crash-equals-cash culture. If accreditation of experts contributes to increasing professionalism in the market then it will be helpful to the wider objective.
The introduction of lower fees for claimant solicitors has removed many firms from the whiplash market and stimulated the introduction of damages-based payments. Putting aside the access to justice rights and wrongs of CFAs and DBAs, surely it’s no bad thing that consumers should have an interest in the costs being incurred on their behalf and make informed judgments about where they turn for advice. “Free” legal services are not good for the profession.
John Hyde questioned the costs and funding of accreditation. The cost of accreditation should be modest and of little consequence to the market. A far larger cost, and of greater impact, will be the cost of the assessment itself. Not so long ago, whiplash injuries were assessed by jointly approved consultant orthopaedic surgeons. In the drive to save money and time, they were dropped in favour of general practitioners (GPs), whose reports have become of questionable value (to both sides). The introduction of pricing agreements has driven process efficiency at the expense of quality. To improve quality of the assessment GPs will need more time, not just more training, and that will really cost. Bring in a ban on pre-med offers as well and we will increase both the volume and the cost of medical reports – now that starts to sound very expensive or lucrative depending upon where you sit.
It is unfair to criticise GPs. They are simply servants of a broken process working within a system they have not designed. We do not need more skilled doctors, in fact we may not need doctors at all.
Following the trickle-down logic, why not introduce physiotherapists to replace GPs for assessing simple injuries? This reduces costs and, arguably, will improve quality immediately (given that physiotherapists are already skilled in diagnosing and treating whiplash.) Unlike GPs, they routinely physically assess soft tissue injuries, range of motion, impairment and levels of pain, a totally different level of detail when compared to a 10-minute self-report of symptoms with a GP.
The root cause of the compensation culture and whiplash as the “fraud of choice”, is a system that rewards injury victims with cash, not care. As long as minor whiplash injuries are primarily compensated with cash payments they will remain subject to opportunistic claims and disputed medical evidence. To tackle the problem we need to replace cash compensation with a care-based model.
For minor injuries the victim should have free access to whiplash treatment for the first six weeks post-accident along with recovery of out-of-pocket expenses. Only if the injury fails to respond to treatment or the injury requires more than a pre-defined cost of care, should we start to entertain financial compensation. This single step would remove fraud and the wider belief that whiplash equals £1,500, and the no-questions-asked trend.
Andrew Pemberton, director, Argent Rehabilitation