Clinical Negligence

Publish date

18 February 2016

Answering frequently asked questions about the Rehabilitation Code

What is the Rehabilitation Code and what is its purpose?

The Rehab Code (the Code) has been around for a number of years but at the end of 2015 it was updated.

The Code’s purpose is to “help the injured claimant make the best and quickest possible medical, social, vocational and psychological recovery.” The aim is to encourage parties to collaborate and get injured people some treatment early on in the compensation process which is paid for by the party being sued.

It is well established that the earlier an injured person gets treatment the better chance they have of making a full, or fuller, recovery. Whilst the NHS can be a fantastic source of treatment there are financial constraints which make it difficult for them to provide the intensive rehab that some people need. Therefore the best option for many is private treatment, but this comes at a high financial cost.

Use of the Code can help both sides. For example let’s suppose Mr Smith is injured in a road traffic accident as a result of Mr Franks negligent driving. Mr Franks insurers will be asked to pay for Mr Smith’s treatment. There are benefits to both Mr Smith and Mr Frank’s insurers:

  • Mr Smith will get the treatment he needs to get better quicker.
  • Whilst Mr Frank’s insurers will have to pay for that treatment the fact Mr Smith gets better quicker means that he will get back to work quicker and need less help with his personal tasks and household chores. Therefore the overall amount of compensation that the insurer has to pay out will be reduced because they have paid for rehab.

What does the Rehabilitation Code set out?

The Code starts by setting out what obligations the injured person’s solicitor (the Claimant’s Solicitor) and the person acting on behalf of the individual deemed to be at fault (the Compensator) have.  E.g. Mr Smith will have be the Claimant’s Solicitor and Mr Franks will be the Compensator.

Simply the Claimant’s Solicitor must give the Compensator as much information as possible about the injuries sustained by their client and the impact that those injuries are having on their life. The Claimant’s Solicitor should also highlight any needs that they consider their client has as a result of their injuries. The Compensator should then consider whether the Claimant could benefit from further treatment and if so contact the Claimant’s Solicitor to work collaboratively to put that treatment/rehab in place.

The Code is split out into various sections to take account of what the requirements are for catastrophic injuries (e.g. brain injury, spinal injury, amputation etc.) and injuries which are deemed to be less severe and where the value of the claim is likely to be less than £25,000 (e.g. simple fractures, soft tissue injuries etc.). However, the Code recognises that less severe injuries can still be life changing for some people and so the guidance should always be considered on a case by cases basis. The Code anticipates that for some less severe injuries the most appropriate approach for rehab might be the same as described for the catastrophically injured.

There are ten markers referred to in the Code which should be taken into account when assessing someone’s rehab needs. These are:

1. Age

2. Pre-existing physical and psycho-social comorbidities

3. Return to work/education issues

4. Dependants living at home

5. Geographical location

6. Mental capacity

7. Activities of daily living in the short-term and long-term

8. Realistic goals, aspirations, attainments

9. Fatalities/those who witness major incidence of trauma within the same accident

10. Length of time post accident

How will the Rehab Code help someone with a brain injury?

Where someone has suffered a serious injury, such as a traumatic brain injury, the Code states that the need for and type of rehab must be assessed by a rehab professional or Case Manager. They will carry out an Immediate Needs Assessment (INA) and produce a full report setting out their recommendations. The Claimant’s Solicitor and the Compensator should try to agree the identity of the individual/organisation that will carry out the INA.

The INA will normally be paid for by the Compensator. Once the report is available the Compensator should then consider whether they will fund any or all of the recommendations. The Code states that the Compensator will usually only consider rehab that addresses injuries for which they are liable but does suggested that treatment for other conditions should be considered if they have been exacerbated by the accident or are impeding recovery.

Therefore the Code can potentially give someone with a brain injury quick access to fully funded private rehab or specialist equipment that they might otherwise have had to wait for on the NHS. It may also give them access to treatments/equipment that are not currently available on the NHS.

What happens if liability/fault for my accident has not been agreed?

Where the parties have not yet agreed who was responsible for an accident they can still agree to use the Code and ensure that an injured person get the rehab that they need. The Code urges compensators to consider rehab at an early stage where there is a possibility or likelihood of at least a partial admission of fault later on

Our team is dedicated to helping our clients obtain the right compensation for their injury but also to secure early rehab wherever possible. We have seen client’s benefit from early rehabilitation and we will do whatever we can to help you, or your loved one, get the treatment that is often desperately needed.

If you have any questions about this topic, please get in touch

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