David Marshall, Partner
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It is widely accepted that early intervention and rehabilitation to lead to better medical and vocational outcomes for accident victims. The UK does not appear to compare well with other industrialised countries. The ABI have recently produced a paper which identifies a massive ‘rehabilitation gap’. Even after excluding very minor injuries, extreme chronic conditions and fatalities as being cases where rehabilitation is unlikely to produce any real benefit, claimants actually receive rehabilitation in only a very small percentage of the remaining cases which do have rehabilitation potential.
The barriers to rehabilitation include a lack of joined up government thinking, a medical culture which emphasises excellent acute care at the expense of rehabilitation medicine, and a lack of facilities and resources. It is also said that there is a problem with our adversarial litigation system.
Old attitudes may be entrenched on both sides of the divide and also within society as a whole. The idea of making people better so far as possible and reintegrating them back into society ought to be an obvious goal, but traditionally lump sum compensation has instead been the principal end. Those who can afford private treatment and a small number NHS patients are the lucky few who might access rehabilitation services early on. Those who win their compensation claims are also able to spend money that was allotted to them on rehabilitation. But often, especially if liability is disputed, this might be years after the event and, whilst it is never too late, all the evidence is that early intervention maximises the benefits of rehabilitation. The purpose of the tort system is to put the accident victim so far as is possible back in the position he or she would have been in but for the accident. The restoration of a claimant’s function so far as is possible is entirely consistent with this. Compensation for pain and suffering, the remaining deficit and financial loss would still be paid, although it may well be less to reflect the enhanced function achieved by rehabilitation.
For insurers, there is little hard evidence that rehabilitation reduces claim costs. But it would certainly seem intuitively to be right that in any substantial claim getting treatment done earlier on and returning the claimant to work (more quickly, or at all) must reduce future loss claims.
For many claimants and their lawyers, there is a fear of being shortchanged by the insurance industry. Quite understandably, some claimants can be suspicious that the rehabilitation provider is out to trick them out of the compensation that is due by being in the pocket of insurers and playing down the real impact of their injuries. That is why the Rehabilitation Code, jointly prepared by APIL and FOIL, with its promise of independence and the status of the immediate needs assessment outside the litigation process is so important.
Some scepticism is healthy. However, it is important that claimant lawyers move with the times and take advantage of new opportunities. It is often said that claimant lawyers are not interested in rehabilitation, because it will reduce the damages and that will reduce the legal costs paid. This does not in fact follow. We do not have a contingency fee system in this country, so claimant lawyers do not get a slice of the damages. They are paid for work properly done to progress the case. Doing a good job in helping a client to be rehabilitated has to be paid for just as much as work done in litigating for compensation. And, so far as the claimant is concerned, claimant lawyers who deal with injured people day in and day out know that the paucity of general damages are such that additional pain and suffering often leads only to a paltry extra money award. If claimants did want to make a calculation to ‘compare’ extra damages against better health (which of course most do not), they would be far better off with some functional improvement. It is the role of claimant lawyers to advocate the benefits to our clients and then to act as advocates within both the litigation and rehabilitation processes to ensure the best possible outcome for the injured person.
To enable us to do so, we need to understand what is available, what it will cost and who will pay for it. The current rehabilitation landscape is very confusing. It is quite clear that rehabilitation means different things to different people and certainly means different things for different types of case. The interventions have to be individualised and client- centered. APIL is looking to map out this landscape to provide signposts to our members so that they can feel confident in their advice to their clients. We have begun our ‘Think Rehab’ campaign with a series of meetings with interested groups and intend to prepare and roll out a Best Practice programme over the coming months so as provide our members with the best possible information and assistance. The goal is greater claimant and claimant lawyer confidence in the rehabilitation process leading to greater uptake for the benefit of all.
For further information email David Marshall or call 020 7940 4000.
