medco framework review - cilex review consultation.pdf · medco framework review - call for...

MedCo Framework Review Call for Evidence

This Call for Evidence begins on Thursday 16 July 2015 This Call for Evidence ends on Friday 4 September 2015

MedCo Framework Review Call for Evidence

A Call for Evidence produced by the Ministry of Justice. It is also available at https://www.gov.uk/government/consultationsmedco-framework-review-call-for-evidence/

About this Call for Evidence

To: All interested stakeholders particularly all users of the MedCo Portal including Medical Experts, Medical Reporting Organisations, claimant solicitors, Claims Management Companies and the insurance industry.

Duration: From 16/07/15 to 04/09/15

Enquiries (including requests for the paper in an alternative format) to:

Scott Tubbritt Whiplash Reform Team Ministry of Justice 4.37, 4th Floor, 102 Petty France, London, SW1H 9AJ.

Tel: 0203 334 3157

E-mail: [email protected]

How to respond: Please send your response by 4 September 2015 to:


Tel: 0203 334 3157


Additional ways to feed in your views:

A number of stakeholder meetings relating to this Call for Evidence will also be taking place in August. To register your interest in attending one of these sessions please reply by email to [email protected] by Friday 31 July 2015.

Response paper: A response to this Call for Evidence is due to be published in the autumn at: https://www.gov.uk/government/consultationsmedco-framework-review-call-for-evidence/

MedCo Framework Review - Call for Evidence

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Contents

Ministerial Foreword 3 Executive summary 5 Introduction 9 Scope of the review 11 Guide questionairre 17 About you 25 Contact details/How to respond 26


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Foreword

The Government is committed to the introduction of greater independence in the way that medical evidence in support of whiplash claims is obtained. The implementation of a system of independent, randomly allocated medical reporting through the establishment of MedCo Registration Solutions (MedCo) and its IT Portal is a vital component in achieving this aim.

This new system went live on 6 April 2015 and means that medical reports used in support of whiplash claims must now be obtained from

the MedCo Portal. I am firmly of the view that, if given the opportunity to operate as intended, this system will succeed in delivering greater independence whilst maintaining consumer choice. Use of the MedCo portal allows competition and movement in the market as well as breaking the potentially unhealthy links between those who commission medical reports and those who write them. Its implementation through the establishment of MedCo, an industry led and paid for ‘not for profit’ company, is an important measure to tackle conflicts of interest in the market.

On 2 March 2015 - as part of the implementation process and prior to the MedCo Portal becoming operational - the MoJ set out its intention to monitor and review the impact of the new MedCo Portal when there was six months’ worth of useable data. Aspects of the new system to be reviewed include the qualifying criteria for Medical Reporting Organisations (MROs), the declaration of financial links document and the ‘offer’ (the number and mix of MROs) presented following a search on MedCo.

The Government is aware that the personal injury sector is fast moving and contains many innovative organisations and individuals. It has however become apparent that a number of new business practices have developed in this sector with the potential to undermine both the Government’s policy objectives and public confidence in MedCo.

With this in mind we have decided that it would be appropriate to begin the review process now in order to gather evidence from stakeholders on both the areas we have already committed to review and on the behaviours currently being exhibited by a number of organisations operating in this sector. I am therefore launching this Call for Evidence to seek stakeholder views on these and other areas related to the operation of the MedCo portal. Submissions received from stakeholders will be considered alongside Management Information collated by MedCo, and we will publish our findings along with details of changes to the system - if any - in the autumn.

EDWARD FAULKS QC MINISTER OF STATE FOR JUSTICE


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Executive summary

1. In February 2012 at the Prime Minister’s insurance summit, the Government committed to reducing the costs of motor insurance premiums for motorists. On 1 April 2013 measures to tackle the area of civil litigation funding and costs were implemented through provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and other related reforms. These reforms both restored balance and removed unnecessary costs from the system. Figures published by the Association of British Insurers on 19 June 2015 show that the average comprehensive private motor insurance premium is currently £360, 13% lower than at the start of 20121.

2. The whiplash reform programme was published on 23 October 2013 and contained further measures to complement and build on the earlier reforms. The reforms aimed to introduce greater independence, make sure that costs of medical reports are proportionate, and improve standards in medical reporting as well as reducing the number of speculative and fraudulent claims made each year.

3. The first phase of the reform programme was implemented on 1 October 2014 via changes to the Civil Procedure Rules (CPR) and the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. The key phase one reforms were:

a. fixed costs for medical reports;

b. an expectation that there will usually only be one such report (except in exceptional circumstances);

c. prohibiting the reporting expert from also treating the claimant;

d. discouraging pre-medical offers to settle; and

e. allowing defendants to give their account of the accident to the medical expert where appropriate.

4. The second phase of reforms are being implemented throughout 2015/16. The MedCo Registration Solutions (MedCo) Portal became operational on 6 April 2015 for the sourcing of all medical reports in support of low-value road traffic accident (RTA) related whiplash cases. From 1 June 2015 all claimant lawyers have to undertake a ‘previous claims’ check on potential clients before starting a claim. From 1 January 2016 all medical experts who provide initial medico-legal reports for road traffic accident soft tissue injury claims must be accredited or they will be removed from the MedCo Portal.

1 The Government has not verified these figures.


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5. MedCo, its portal and the framing rules implementing the scheme were designed in consultation with stakeholders from across the industry. A core group of stakeholders worked closely with MoJ to develop the reforms and a number of consultation exercises and surveys ensured input from the wider group of stakeholders.

6. Users of the system seeking a medical report have a choice of either searching for a Medical Reporting Organisation (MRO) or for a direct medical expert to instruct. If the user requests a direct medical expert they are offered seven from which to choose. For each search for an MRO on MedCo a user is offered a randomly generated choice of one large high volume national provider and six smaller MROs.

7. The MedCo system brings independence to the market through the use of randomisation and filters which are applied to the search process. All users of MedCo are required to declare any direct financial links as part of a user agreement, and all search returns are filtered to ensure that MROs or experts with direct links to the searching organisation are removed from the search returns. In addition, the system operates to avoid any individual expert or MRO never being offered to users completing a search.

8. The decisions relating to the final qualifying criteria for MROs were made by the Secretary for State for Justice following consideration of the views of members of the core stakeholder group and two surveys hosted on the MedCo website in late 2014 and early 2015. The decision on the number and mix of MROs presented following a search (the ‘offer’) was taken and informed by illustrative scenario analysis of the possible impacts that different mixes of MROs might have on existing MRO market share, whilst also considering the overall objectives to the reforms.

9. The assumptions underpinning the analysis were based on feedback from members of the core group and a survey carried out in late 2014. The aim was to balance the potential impacts on MROs with seeking to achieve the Government’s overall policy objectives. Details of these decisions were published on the MedCo website in March 2015, with a commitment to reviewing them once there was six months’ worth of usable data to examine.

10. Since MedCo became operational the system is working in terms of users being able to identify an individual expert or MRO to instruct. However, issues have emerged that have the potential to undermine the Government’s policy objectives and public confidence in MedCo.

11. The Government is therefore launching this Call for Evidence to seek stakeholder views and evidence on the operation of MedCo. The evidence will be used alongside management information from MedCo and other data available to assess whether changes are needed to how MedCo works. In particular, we are seeking evidence in relation to the qualifying criteria for MROs, the ‘offer’ and the statement of ‘direct financial links’. This review is starting earlier than originally


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planned, in order to provide stakeholders with the opportunity to provide evidence relevant to the system and how organisations are operating within it.

12. Decisions on whether further changes need to be made to the way the portal operates will be taken and published following a detailed analysis of the evidence and data submitted by respondents.


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Introduction

This paper sets out a Call for Evidence relating to the operation of the MedCo Portal. The purpose of the paper is to set out the issues on which the Government is seeking evidence from stakeholders. Guide questions are provided to assist stakeholders in identifying evidence relevant to those parts of the system that are under review. It would assist the analysis of the evidence provided if respondents could follow the guide questions wherever possible.

There is an opportunity to provide comments on other issues related to these reforms in response to the final question included in this paper.

This Call for Evidence is aimed at anyone that uses the MedCo Portal as well as all other interested stakeholders in England and Wales.

Copies of the Call for Evidence are being sent to:

Medco Registration Solutions

House of Commons Transport Committee

Motor Insurance Bureau

The Law Society

Personal Injury Bar Association

Forum of Insurance Lawyers

Motor Accident Solicitors Society

Association of Personal Injury Lawyers

British Medical Association

Chartered Society of Physiotherapy

Association of Medical Reporting Organisations

British Insurance Brokers Association

Royal Colleges of General Practitioners

Institute of Expert Witnesses

British Orthopaedic Association

Association of District Judges


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Council of HM Circuit Judges

Civil Justice Council

Civil Procedure Rule Committee

However, this list is not meant to be exhaustive or exclusive and responses are welcomed from anyone with an interest in or views on the subject covered by this paper.


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Scope of the Review and questions for respondents

1. The MedCo Portal was introduced as part of the implementation of phase 2 of the Government’s whiplash reform programme. The programme’s objectives were:

To enhance the independence of medical reporting in respect of whiplash claims and increase confidence in the reports provided. The MedCo Portal has been designed to achieve this by the:

introduction of the requirement for all users to sign a declaration of financial links;

use of randomly generated search results on the MedCo Portal;

introduction (in January 2016) of a new robust accreditation scheme for medical experts who provide medical reports in whiplash claims; and

formulation of MedCo as an independent, industry led, not for profit company to manage the system and to ensure compliance with the Government’s policy objectives.

To ensure that all medical reports meet required minimum standards through the introduction of robust accreditation requirements for experts providing medical reports in support of whiplash claims.

2. The objectives of this Call for Evidence are to obtain evidence:

as to whether the current operation of the MedCo Portal meets the Government’s objective of enhancing the independence of medical reporting;

relating to the effectiveness of the qualifying criteria for MROs, which are intended to ensure that MROs are robust well run organisations with the opportunity to compete at the right level within the MedCo system;

relating to the mix and number of MROs that appear in the search results, in light of the Government’s objective to minimise undue impact on the market whilst ensuring the choice provided is not so wide as to negate the objective of introducing independence;

on whether the financial links declaration, which is part of the current MedCo user agreement, achieves the Government’s intention of enhancing independence, including whether the current definitions need to be extended to address other types of unhealthy relationships between organisations operating in this sector; and

on the experience of MedCo users with a view to improving the service offered to users.


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3. Until accreditation of all experts who provide initial medical reports in whiplash claims becomes mandatory on 1 January 2016 and sufficient data has been obtained after that date, it would be inappropriate to undertake a review of whether the Government’s objective of improving the standard of medical reports is being achieved.

The qualifying criteria for MROs

4. The qualifying criteria for MROs2 were developed with substantial input from the MoJ’s Core Group of stakeholders and were finalised following the completion and analysis of a detailed survey of the wider stakeholder community in February 2015. The qualifying criteria set out both the minimum qualifying criteria for all MROs that wish to register on MedCo and additional criteria for MROs classified as having high claims capacity and national coverage.

5. The Government is committed to minimising – where possible – the impact on the market from the whiplash reform programme whilst also seeking to deliver the key public policy objectives.

2 http://www.medco.org.uk/media/1017/finalised-qualifying-criteria-for-mros-revised.pdf

Guide Questions 1: Are the qualifying criteria2 for all MROs and the additional criteria for high volume providers appropriate to ensure that the data suppliers registered on MedCo have sufficiently robust systems, procedures and financial protections in place?

i. If you agree, please explain why and provide evidence to support your argument.

ii. If you disagree, please explain why and provide evidence to support your argument as to what changes to the criteria would be necessary to achieve the aim.

2: Are there any aspects of the current qualifying criteria which you feel would benefit from further guidance or clarification? If yes, please provide details of the criteria and any supporting evidence/suggestions for improvement. 3: There have been specific questions raised by stakeholders about the definition and scope of national coverage and we would be interested in stakeholder views on how ‘national coverage’ could be defined - for example should it be a minimum of x% of postcodes.

i. If you have views on this aspect of the system please explain how/why the definition could be improved.

ii. We would also be interested in your views and suggestions on what proportion of postcodes a ‘national’ MRO should be able to service; or whether an alternative such as ‘regional coverage’ should be considered.


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The ‘offer’

6. The ‘offer’ sets the number and mix of MROs that are presented to a user from each search of MedCo. To help inform the decision on the offer MoJ analysts undertook a programme of illustrative scenario analysis of the possible impacts that different ‘offers’ might have. This analysis used a number of assumptions in order to underpin it, based on stakeholder surveys, the MoJ’s core stakeholder group and members of the newly formed MedCo Board.

7. The overall aim of the decision on the offer was to balance - as far as was practical - the potential impacts on the market with achieving the Government’s overall policy objective of enhancing the independence of medical reporting in support of whiplash claims.

8. Further issues of relevance to the offer have emerged since MedCo has become operational. Concerns have arisen relating to market behaviours which have the potential to undermine both the Government’s policy objectives and public confidence in MedCo. Examples include:

a. established high volume MROs registering multiple new smaller MROs; such actions have the potential to put at risk the chances of existing MROs competing for selection and also runs contrary to the policy objective of providing users with a range of seven different - i.e. unconnected – MROs to choose from;

b. a significant number of small MROs - where each MRO is a separate corporate entity - are sharing a number of centralised services and resources as part of a collective entity.

9. The system was neither designed nor intended to permit these types of behaviours or business models. The Government is fully supportive of MedCo, and is clear that it has - through the application of the qualifying criteria, its user agreements and ethics policy - the requisite tools to address the current issues arising. Additional actions arising from the analysis of the responses to this review may also be undertaken by MoJ to strengthen the framework within which MedCo operates.

10. The results of the current programme of MedCo audits of MROs will be included in the analysis carried out by the MoJ on the ‘offer’. Usage data supplied by MedCo will also be used to inform any further decisions taken. However, we would also like to receive evidence from stakeholders on monthly report volumes covering both the pre and post MedCo periods.


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Statement of direct financial links

11. Since December 2012 the Government has repeatedly made clear its commitment to address links which may impair the independence of medical examiners. Such links can include incentives arising out of long-term relationships which have been established between those commissioning medical reports and particular MROs and experts whom they regularly instruct.

12. All users of MedCo must now sign a declaration of direct financial links3. The aim of this declaration is to remove the potential conflicts of interest and enhance the independence of medical reporting. The declaration currently covers direct financial links between those commissioning medical reports and those carrying them out. It does not currently cover financial links with other types of organisation such as MRO to MRO or other types of such as ownership by close family members.

3 http://www.medco.org.uk/media/1056/declaration-of-links-final.pdf

Guide Questions 4. If you are a MRO, please provide evidence of the volume of reports you have been handling on a monthly basis since April 2014, i.e. before and after the introduction of MedCo on 6 April 2015. 5. What factors/data (if any) should the MoJ take account of when consideration is given to the number and type of MROs presented to users following a search? Please provide details of the relevant factors you believe should be considered and why. 6. If you are a MedCo user (e.g. claimant solicitor), how many different MROs/experts did you typically instruct before the introduction of MedCo? Please provide details of the number and type of MRO/expert you commonly instructed to provide medical reports in a typical year and please specify whether they are MROs or experts. 7. If you are seeking a medical report, what is your principal consideration when deciding which MRO/expert to select from the options provided in the search return? For example describe the factors that affect your choice such as, whether you have used them before, standard terms and conditions or location in relation to claimant? 8. What changes, if any, should be made to the current offer of one high volume national and six low volume MROs? Please explain and/or supply evidence to support your view.


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13. As such, the MoJ would be would be interested in the views of respondents on whether the statement of direct financial links – as currently written - should be extended to cover other types of link such as direct family members or MRO to MRO.

General questions on the operation of MedCo

14. As set out above the MedCo Portal has been designed to meet the Government’s public policy objectives of removing conflicts of interest from the medical reporting system, and providing a more robust evidence base for those who are genuinely injured. We would, however, welcome submissions from respondents concerning potential areas for further reform.

15. There is some evidence that claims numbers are beginning to decline, but this does not mean it would be right or appropriate not to address other areas of concern. The market response to this current package of reforms indicates that further work may be necessary to complete the task of eradicating perverse and unhealthy behaviours from this sector.

Guide Questions 9. Do you feel that the current declaration meets the Government’s objectives of enhancing independence in medical reporting through the breaking of unhealthy relationships between organisations operating in the personal injury sector?

i. If yes, please explain with evidence why the current declaration is sufficient and should not be extended.

ii. If no, please explain with evidence how it should be extended and why.

Guide Questions 10. Do you have any other views or evidence relating to whether the MedCo IT Portal is currently achieving the Government’s stated policy objective to tackle dysfunctional behaviour in the personal injury sector? What (if any) further suggestions for reform would assist the operation of the MedCo portal, in particular, to address the behaviours exhibited by some MROs since the MedCo portal was introduced? 11. Do you have any other feedback in relation to the operation of MedCo that you think should be considered as part of this Call for Evidence?


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Guide Questionnaire

We would welcome submissions of evidence relevant to this Call for Evidence, please use the following guide questions to inform your response to this Call for Evidence. Please note it is important that your responses relate to the topics indicated below and that you provide evidence in support of your submissions.

Respondents may submit their replies using the following questionnaire, or alternatively you may submit your responses and/or evidence via the following routes:

online at: http://survey.euro.confirmit.com/wix/p1845064200.aspx

email to: [email protected]; or

post to: Whiplash Reform Team, 4.37, 102 Petty France, London SW1H 9AJ.

Respondents are encouraged to indicate in their responses if they are responding as an individual or on behalf of their firm/organisation. Responses received which cover topics unrelated to these areas will be read, but may not be considered in the final report or recommendations.

Guide Questions:

1: Are the qualifying criteria for all MROs and the additional criteria for high volume providers appropriate to ensure that the data suppliers registered on MedCo have sufficiently robust systems, procedures and financial protections in place?

i. If you agree, please explain why and provide evidence to support your argument.


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ii. If you disagree, please explain why and provide evidence to support your argument as to what changes to the criteria would be necessary to achieve the aim.

2: Are there any aspects of the current qualifying criteria which you feel would benefit from further guidance or clarification? If yes, please provide details of the criteria and any supporting evidence/suggestions for improvement.


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3: There have been specific questions raised by stakeholders about the definition and scope of national coverage and we would be interested in stakeholder views on how ‘national coverage’ could be defined - for example should it be a minimum of x% of postcodes.

i. If you have views on this aspect of the system please explain how/why the definition could be improved.

ii. We would also be interested in your views and suggestions on what proportion of postcodes a ‘national’ MRO should be able to service; or whether an alternative such as ‘regional coverage’ should be considered.


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4. If you are a MRO, please provide evidence of the volume of reports you have been handling on a monthly basis since April 2014, i.e. before and after the introduction of MedCo on 6 April 2015.

5. What factors/data (if any) should the MoJ take account of when consideration is given to the number and type of MROs presented to users following a search? Please provide details of the relevant factors you believe should be considered and why.


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6. If you are a MedCo user (e.g. claimant solicitor), how many different MROs/experts did you typically instruct before the introduction of MedCo? Please provide details of the number and type of MRO/expert you commonly instructed to provide medical reports in a typical year and please specify whether they are MROs or experts.

7. If you are seeking a medical report, what is your principal consideration when deciding which MRO/expert to select from the options provided in the search return? For example describe the factors that affect your choice such as, whether you have used them before, standard terms and conditions or location in relation to claimant?


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8. What changes, if any, should be made to the current offer of one high volume national and six low volume MROs? Please explain and/or supply evidence to support your view.

9. Do you feel that the current declaration meets the Government’s objectives of enhancing independence in medical reporting through the breaking of unhealthy relationships between organisations operating in the personal injury sector?

i. If yes, please explain with evidence why the current declaration is sufficient and should not be extended.


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ii. If no, please explain with evidence how it should be extended and why.

10. Do you have any other views or evidence relating to whether the MedCo Portal is currently achieving the Government’s stated policy objective to tackle dysfunctional behaviour in the personal injury sector? What (if any) further suggestions for reform would assist the operation of the MedCo portal, in particular, to address the behaviours exhibited by some MROs since the MedCo portal was introduced?


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11. Do you have any other feedback in relation to the operation of MedCo that you think should be considered as part of this Call for Evidence?


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About you

Please use this section to tell us about yourself

Full name

Job title

Date

Company name/organisation (if applicable):

Industry sector (MRO, Lawyer, Insurer; direct expert etc.)

Address

Region4

Postcode

If you would like us to acknowledge receipt of your response, please tick this box

(please tick box)

Address to which the acknowledgement should be sent, if different from above

Please indicate if you are responding as an individual or as a representative of a group or organisation, please tell us the name of the group/organisation and give a summary of the people or organisations that you represent.

4 Please indicate which region(s) your firm or organisation covers from the list found here: http://www.ons.gov.uk/ons/guide-method/geography/beginner-s-guide/maps/regions-and-their-constituent-counties---unitary-authorities-as-at-2011.pdf


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Contact details/How to respond

Please send your response by Friday 4 September to:


Tel: 0203 334 3157

E-mail: [email protected] Complaints or comments If you have any complaints or comments about the Call for Evidence process you should contact the Ministry of Justice at the above address.

Extra copies Alternative format versions and further paper copies of this Call for Evidence can be obtained from this address:


Tel: 0203 334 3157


It is also available on-line at https://www.gov.uk/government/consultationsmedco-framework-review-call-for-evidence/.

Publication of response A paper summarising the responses to this Call for Evidence will be published in the autumn. The response paper will be available on-line at:

https://www.gov.uk/government/consultationsmedco-framework-review-call-for-evidence/.

Representative groups Representative groups are asked to give a summary of the people and organisations they represent when they respond.

Confidentiality Information provided in response to this Call for Evidence, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004).


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If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Ministry.

The Ministry will process your personal data in accordance with the DPA and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.

© Crown copyright 2015

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