Summary of key points
The key area of interest for insurers was to understand what increase, if any, there would be on the level of fixed fees for medico-legal reports. The MOJ's response is to adopt the Services Producer Price Index (SPPI) as an inflationary measure. At the time of issuing the consultation that would have taken the headline rate for soft tissue initial reports from £180 to £210. The figures will be uplifted slightly given the passage of time and that implementation will most likely be in or around April 2025.
There are three other points of note. Firstly the MOJ's desire to tackle so-called "admin agencies" who at one end of the market simply provide an administrative service for direct experts, but at the other extreme go well beyond this remit and operate beyond the scope of traditional MROs. Concern has been expressed in some areas that they go as far as writing responses to P35 questions. The MOJ's desire to "regulate" those agencies is to be applauded even if the detail is yet to be worked through with MedCo.
The second point is the MOJ has decided to amend the Civil Procedure Rules so that the claimant must wait for the liability decision before obtaining a medical report. The MOJ believes this will improve the quality of medical reports by ensuring that the instructions to experts are comprehensive and include all relevant information to be considered during the medical examination process, to enable better decisions on causation.
The final point we would draw to people's attention was the proposal to match the process for obtaining medical reports by solicitors with the process for unrepresented claimants. As well as standardising the process, that would give much greater transparency when dealing with represented claims as the system would notify the defendant insurer that a report had been completed and uploaded onto the OIC portal (although disclosure of the report would still rest with the claimant's solicitors). The MOJ has parked that for now to see what impact the above change to the reporting process makes, but hopefully it is a line of travel that will be picked up in the future.
The remainder of the response is more around the process for experts and MROs and of less concern to compensators. The outcomes do however serve as a reminder that MedCo and the MOJ are closely aligned and reflects the MOJ's commitment to improving the quality of medico-legal reports. The increase in cost will have something of an inflationary impact, but if there is a commensurate increase in quality it may be a price worth paying.
The detail
We have set out more detail below and the response has been split into sections, like the consultation itself:-
Changes to MedCo qualifying criteria:
The consultation questions suggested updating the qualifying criteria for Medical Reporting Organisations (MROs), including reducing the required report capacity for tier 1 MROs from 40,000 to 28,000 per year and reducing the number of active experts from 225 to 175. The suggestions were agreed with by the majority of respondents, and will be adopted going forward. The reason why the criteria has been loosened in terms of numbers is due to the falling claims numbers in the low value arena.
Amended Direct Medical Expert (DME) rules:
The consultation moved on to the suggestion of Implementing some small changes to the DME rules, including minor tweaks to the text around the role of the audit committee (DME's now being subject to an audit interview) and checking of standards generally. The vast majority of the respondents agreed with the proposed changes.
Review of MedCo ‘offer’:
The MedCo 'offer' is the process for generating the number and mix of MRO's or DME's to authorised users when they conduct a search for a report provider.
The proposal was to change the ‘offer’ for represented claimants to include two tier 1 MROs, six tier 2 MROs (up from 5), and seven DMEs. The offer for unrepresented claimants will remain unchanged. Whilst not a significant change, the increase came in tier 2 MRO's as opposed to tier 1 – most of the objections to the changes appears to have come from the tier 1 operations, saying it may lead to firms either exiting the market or dropping down to tier 2 status, saying that the revised offer was anti-competitive.
The MOJ with MedCo will monitor what effect the changes make to the market once they are implemented in 2025. 31 out of 38 respondents agreed that no changes should be made for unrepresented Claimants.
Use of administration agencies (AA's) by DMEs:
The use of Administration Agencies became popular from 2019 onwards, with the number of DME's using their services increasing since the whiplash reforms in May 2021. At this time rule changes were introduced requiring DME's to be audited when providing medical reports to unrepresented claimants. AA's are being used to support DME's in producing both MedCo and non-MedCo reports. Despite this, there is no audit or monitoring process for AA's as things stand.
It was therefore unsurprising that there was a proposal to develop a range of qualifying criteria for different types of administration agencies. The vast majority of respondents, 29 out of 35, agreed that AA's should be assessed and audited by MedCo, some saying that they should be held to the same standards as MRO's.
Review of Fixed Cost Medical Reports (FCMR):
Unsurprisingly, most of the calls to increase the cost of fixed cost medicals came from MRO's and the Claimant sector, as the fees had not been touched since 2014. Some of course said the increase should be higher! Most of the arguments against came from the Defendant sector.
The MOJ decided to proceed with their proposal to increase the fixed cost medical report levels using the Services Producer Price Index (SPPI) as an inflationary measure, around 18.3% at the time of the consultation. This introduces the following changes although these will be uplifted further for inflation to the point of implementation:-
First report from a medical expert: £180 to £210
Consultant Orthopaedic Surgeon report: £420 to £500
A&E Consultant report: £360 to £430
GP report: £180 to £210
Physiotherapist report: £180 to £210
Obtaining medical records: £30-£80 to £35-£95
Addendum report on medical records: £50 to £59
Answers to questions under Part 35: £80 to £95
The above increases were proposed in the initial consultation in July 2023, but will not be implemented until April 2025. The MOJ has said the figures will be further uplifted by a small amount to allow for the passage of time since the initial consultation, some 21 months. The first medical/GP/physio fee is likely to increase to £215 or thereabouts.
Medical report process: Represented claimant's must wait for liability decision before proceeding with the medical examination.
The consultation came to the conclusion that there should steps taken to refine the MedCo Accreditation process and training to improve compliance with the relevant pre-action protocols and improve the quality of medical reports, which were often lacking on causation.
On the slightly separate question of amending the RTA Small Claims Pre-Action Protocol to ensure represented claimants must receive the defendant’s response on liability before instructing a medical expert, there was quite a difference of opinion: of 43 responses, only 25 agreeing with the proposal. The Claimant side of the fence pointed to delays that would be caused and the detrimental position for Claimants requiring rehabilitation treatment.
The MOJ came to the view based on the consultation responses, including ours where we called for this to be put into the PAP, that the delay would be minimal and the benefits outweighed such delay to the process. There should be fewer amended medical reports going forward and the delay to the Claimant was not significant.
Finally, the decision on whether to align the represented and unrepresented routes fully has not been taken as of yet, the MOJ choosing to wait and see how the change to the represented path develops first. The MOJ will explore this more fully with all parties in due course.
MedCo's role
It is important to note that whilst some of the above steps rest with the MOJ to take forwards with the CPRC, there is a lot where the MOJ will need MedCo to implement changes to the qualifying criteria, audit, training and accreditation processes, as well as changes to the offer. It is now back to MedCo to try and work through those elements.
