by By John van der Luit-Drummond
An expert would probably have to be buried under an unscalable mountain of medico-legal reports not to know of the sweeping changes that are to affect the
expert witness landscape.
The government’s whiplash reform programme, designed to guarantee the independent diagnosis of soft tissue injuries and tackle the UK’s ‘compensation culture’, came into force on 6 April 2015 with a new system to facilitate the sourcing of medical reports.
MedCo, a non-profit making organisation, was born out of government policy. Comprised of an independent chair and eight board members drawn from the insurance, medical, and claimant sectors, MedCo has brought the Ministry of Justice’s (MoJ) Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTAs) to life.
Its aim is to break any real or perceived financial links between commissioners of reports and experts and weed out unmeritorious claims. From April, experts,
medical reporting organisations (MROs), and law firms have been required to register with MedCo so as to continue to provide or commission reports.
Experts are required to pay an annual registration fee of £150. Agencies are split into two categories, tier-one and tier-two, with the larger industry players paying a £75,000 annual fee, while small MROs pay £15,000. MROs that apply for tier-one status must have the ability to process at least 40,000 reports per year.
Victims of RTAs who bring low-value whiplash claims must now choose their medical expert from a randomly-generated list emanating from MedCo’s online portal. This list consists of seven individual experts, or one tier-one and six tier-two MROs.
The implementation of MedCo undeniably represents a sea-change in the method of selecting medical experts in litigation. Likewise, the mandatory accreditation of expert witnesses, both direct medical experts (DMEs) and indirect medical experts (IMEs), has been introduced for the first time.
A DME is an expert that has registered themselves on the MedCo portal and can either take instructions directly from parties or through MRO’s with which they are registered. An IME is an expert that has only been registered by an MRO and can only be instructed by the agency that has registered them.
As with any new policy, however, teething issues and controversy are practically guaranteed, and those affecting MedCo have been well documented in the
legal trade press.
In March, a group of northern-based claimant solicitors firms and their MROs threw a spanner into the works by launching a judicial review against the introduction of MedCo. The firms claimed that ministers failed to properly consult on its programme of reform and that its implementation was unfair on claimants who are now unable to consult with their solicitor over a choice of expert.
In addition, one of the country’s largest MROs launched a separate judicial review in May. Speed Medical – a tier-one MRO – is to argue in the High Court that MedCo’s system of allocating agencies is unnecessary, ineffective, and anti-competitive.
Concern was also raised after it was noted how a number of tier-one MROs had innovatively created multiple tier-two agencies in order to increase their chances of receiving instructions.
The MoJ said such behaviour was not permitted as it had the potential to ‘put at risk the chances of existing MROs to compete for selection’, and also ran contrary to the policy objective of providing users with a range of seven ‘different’ MROs to choose from. The ministry also told Medco to crack down on such tier-one organisations through the use of an auditing process.
As a consequence of these issues, the minister of state for civil justice, Lord Faulks QC, announced in July that the government was to bring forward a planned
review of MedCo, which had previously only been expected once six months’ worth of data was available to analyse.
The minister said the public call for evidence would form a key part of the review process and that the MoJ would ‘specifically seek evidence on whether th MedCo IT portal meets the government’s objectives’. The evidence provided would then be analysed to see whether changes need to be made to the portal or to the rules underpinning it.
In September, MedCo finally showed its teeth by suspending a number of MROs for failing to provide proof of the required financial bond – £100,000 for tier-one and £20,000 for tier-two – to demonstrate the MRO has sufficient funds to pay medical experts – and warning law firms for breaches of its user agreement.
‘We are getting reports about concerns in the system, such as solicitors putting pressure on experts to change findings, to which we have issued warning notices and achieved positive results with people changing their behaviour accordingly. There will always be people who try to work around a new system. We are aware of these behaviours and are working to address issues of non-compliance,’ says MedCo’s independent chair, Lorraine Rogerson.
Pressed on whether or not the government’s review of MedCo after only three months of data was coming too soon, Rogerson says it is still too early to say whether or not the portal was working effectively. However, the former civil servant adds she is ‘encouraged’ at how the system had developed so far and that with ‘right resources and continued focus and determination’ she is sure it could do more.
‘It has really only just got off the ground,’ she admits. ‘But at a granular level we can see that the changes we have made are already casting a light on the sector.’ It has done what it was meant to do and has thrown up issues of policy for the MoJ to review.’
Rogerson adds her belief that potential for MedCo is only just starting to emerge: ‘This is the early stage of bringing a form of regulation to an unregulated
environment. It is a new approach. Once you start, the full extent of the work required to alter behaviours becomes clear. It has thrown a lot of people from right across the sector together and asked them to get on with regulating the sector. Working groups on audits, operations and accreditation are making progress, with all represented parties working together to ensure all our processes are effective and robust.’
Mandatory training and accreditation
Mandatory training, accreditation, and reaccreditation of experts will commence from January 2016 to ensure reports meet MedCo’s minimum quality standards.
All current experts will be allowed to register with MedCo before gaining accreditation, but any expert who is unable or unwilling to be accredited will have their details removed from the system and will only be allowed to re-register upon gaining accreditation. ‘Medical Professionals need training and assessment to understand how to carry out this role as a medical expert. The GMC recognises in Good Medical Practice that this is role does differ from being a medical professional. With Medco now introducing mandatory training and accreditation they are making a statement that there is now no place for the amateur expert in RTA Whiplash cases. In the past there was nothing stopping a medical professional offering their services as an expert with no training or understanding of the role. This initiative will ensure that there is a benchmark standard set for anyone wanting to undertake this work and we should see an improved standard of medical reports produced. Also following Jones v Kaney there is an increased possibility of experts being sued for negligence and breach of contract.’ observes Mark Solon, managing director of Bond Solon and solicitor.
OPIL (online personal injury learning) Bond Solon has been approved by MedCo as one of its mandatory accredited training programmes. Its structured web-learning package consists of nine modules covering both clinical and legal content. The programme is to offer experts a user friendly, interactive learning experience focused on their objectives accessible over all devices, computers, tablets, and smartphones. Experts will be able to work through the programme in their own time, and at their own pace, anywhere in the world.
‘Bond Solon is a training company that has led the training for experts for over twenty years,’ adds Solon. ‘We have no vested interest in for example medical reporting agencies. We have developed a really first class training and assessment program for Medco and the whiplash. There are over 50 video interviews with leading clinical, engineering and legal experts that enhance the understanding of the technical self-study materials and abstracts. With on-going updates and discussion forums this is far more than just a training programme it is a resource site for any expert who produces whiplash reports.’
Is there the possibility of MedCo’s remit expanding beyond soft tissue to other areas of expertise? Solon believes so: ‘Clearly if the new whiplash scheme works, there are many other areas in the law where the same principles could apply.
‘The idea of accreditation for experts has been around for many years but has never really taken off. This has been primarily down to the expert market and areas of expertise being so broad. Organising discrete areas of litigation seems far more manageable and can allow for mandatory training and accreditation to be applied to specific areas of expertise. I am sure this that we will see other expert disciplines following this model in the future.’
Akhtar Khan, a consultant orthopaedic surgeon and a medical legal expert, also notes that the ‘potentially complex accreditation process’ is being implemented
to provide first reports but not second.
‘It would seem reasonable to suggest the accreditation process should be encompassing all experts,’ he continues. ‘This is not to question the existing knowledge of consultants but to ensure they are familiar with the literature that has been used when the first report was compiled and to ensure that they are then expanding on the existing report based on their clinical expertise that has required the need for a re-instruction.’
Khan adds: ‘It would seem appropriate that even reinstructions should also be randomised and this may reduce the need for defendants instructing their own expert.’
Of course, whether the reforms live up to government and industry expectations, and can be extended to other expert witness types, remains to be seen. Experts would do well to watch this space in the months to come
Article kindly supplied by
John van der Luit-Drummond is deputy editor
of Solicitors Journal
OPIL Bond Solon, MedCo Approved Accredited
• 50 recorded interviews with subject matter experts;
• 300 cited references;
• Self-study reading materials;
• Assessment at the end of each module;
• On-going updates with the latest research papers;
• Discussion forums;
• Contributions from over 30 leading soft tissue specialists, engineers and lawyers from across the UK and internationally including Arthur Croft, Michael Freeman, Michael Foy, Phillip Fagg, Matthew Avery and Jim Lennard; and
•All experts will be automatically enrolled on the Bond Solon National Register of Certified Expert Witness.