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Cilex Journal – August 2013

Awareness and use of the Rehabilitation Code has come a long way since it was launched in 2000, but there is still room for improvement in how it operates, reports Mark Smulian

Some things take a while to catch on and become well-regarded parts of the professional landscape.

When the Rehabilitation Code was launched in 2000, lawyers and insurers stayed away in droves and a survey the next year by the International Underwriting Association (IUA) and the Association of British Insurers (ABI) found "hardly any practitioners used the code and many, especially claimant lawyers, were unaware of its existence".

The code is designed to ensure that lawyers acting for injured people can secure appropriate rehabilitation with which insurers will also be happy.

Rehabilitation can lead to a quicker recovery for the victim and so lessen the costs to the insurer, so should be a 'win-win'.

A further survey in 2006 found knowledge had increased somewhat, but only among insurers.

Diminished confrontation

Now the code has come into its own, with the third survey having found it is "a fully established part of the claims process", according to the IUA-ABI rehabilitation working party.

The code is used at least some of the time by 97% of claims handlers surveyed, 93% of claimant lawyers and 88% of insurance lawyers.

Nearly two-thirds of practitioners were 'totally' or 'very' satisfied with its wording, and the survey report concluded that no changes were required.

Use of rehabilitation had also increased, with 81% of all those surveyed thinking this had increased at least slightly, while 51% of insurers said its use had increased substantially.

Among insurers, however, there did remain concerns about the quality of case managers and other care providers.

Even so, confrontation over the choice of care provider had diminished, with most insurers saying this was now rarely a matter of contention.

Working party chair Mark Baylis says: "There has been a sea of change since the early days.

The Rehabilitation Code is now a normal, well-recognised part of handling personal injury claims. This is a massive achievement by the insurance industry and also by the organisations representing personal injury lawyers who have put so much effort into developing the code."

An array of other interested bodies has also endorsed the code, including the Association of Personal Injury Lawyers, the Bodily Injury Claims Management Association, the Case Management Society of the UK, the Forum of Insurance Lawyers and the Motor Accident Solicitors Society.

The code states: "The aim is to promote the use of rehabilitation and early intervention in the compensation process so that the injured person makes the best and quickest possible medical, social and psychological recovery."

This applies "whatever the severity of the injuries sustained" to ensure that the claimant's need for rehabilitation is assessed and addressed as a priority, "and that the process of so doing is pursued on a collaborative basis by the claimant's lawyer and the compensator".

Where rehabilitation is likely to be of benefit, "the earliest possible notification to the compensator of the claim and of the need for rehabilitation will be expected".

Not an extra

While there is little dissent among either lawyers or care providers about the wording and intentions of the code, there are some mixed views on how it works in practice.

One particularly trenchant view of the failings of both insurers and lawyers in respect of the code comes from Wilson Carswell, medical director of Moving Minds, which provides psychological rehabilitation, mainly to victims of road accidents.

"We are probably not getting as many of those people that should be in rehab as we ought to," he says.

"That is caused by insurers and lawyers who see rehab as something different when in fact it is an integral part of the treatment. If someone had a hip operation, for example, they would need physiotherapy to ensure the use of their legs. So with rehab for any injury, it's not an extra."

Mr Carswell puts this down to "ignorance among lawyers and insurers and to them not reading National Institute for Clinical Excellence guidelines, which are simply set out in relation to personal injury".

Worse, Mr Carswell says an average of 20 months passes between people being sent to Moving Minds' therapists and the event that caused their initial injury,

"That is far too long," he says. "If a GP left someone waiting for treatment for 20 months, they would be up before the General Medical Council for negligence. The same should apply for people needing rehab."

Mr Carswell likens the situation of accident victims during this hiatus before entering rehabilitation to that of a rugby ball. "If it's in a scrum it's out of play, but only for a few seconds; these people are out of play in their treatment."

Heather Batey, operations director of Reach Personal Injury, which works in the rehabilitation of brain injuries, is happy with the code and thinks it has led to a wider appreciation among lawyers and insurers about what therapists do, and how and why they do it.

She says: "The fact that this survey shows there is overwhelming agreement that the rehab code and the practices therein are valued by all involved parties is fantastic progress.

"This process has ensured that claimants with deserving injuries should be able to access appropriate rehabilitation at the most beneficial time, which is as soon after injury as possible."

Ms Batey has seen a noticeable change in referral sources in the 19 years since Reach began to provide home-based rehabilitation for brain injury claimants.

These originally came from claimant lawyers, but now some 80% of referrals are on a joint instruction basis, as provided for under the code. "This is progress indeed as it means that all parties have the ability to receive up-to-date rehabilitation information about the claimant, enabling a more informed and clinically driven decision-making process in respect of the way forward."