Jill Greenfield campaigns to recoup NHS expenses from defendant insurers
As NHS Commissioners increasingly struggle to balance the books, many would be dismayed to learn that, when their hospitals treat accident victims, they're often unwittingly cushioning the costs of the insurance industry.
The NHS provides world-class emergency care. But, particularly when victims of road traffic accidents and accidents at work suffer severe neurological injury, the cost of moving patients on and providing long-term in-and-out patient rehabilitation is beyond NHS resources.
This is precisely when defendant insurers should step in and pay for appropriate private care, but many drag their feet, preferring to keep a patient within the NHS, receiving cheaper but not necessarily appropriate care.
Since the foundation of the NHS in 1946, there's always been debate whether the health service should fund victims of accidents where insurers are involved. Section 2(4) of the Law Reform (Personal Injury) Act 1948 states that everyone may seek NHS care but accident victims can elect to have their care paid for privately.
Currently, in these cases, defendant insurers pay back some of the treatment costs to the government via the Compensation Recovery Unit. But because of imposed tariffs, these payments are significantly lower than the real costs, meaning insurers only pay a small percentage while the NHS bears the brunt.
The NHS is often the right place for a patient at a certain time. But injured victims are pressurised to accept local authority funding and NHS care with defendant insurers providing a "top up", rather than paying the full amount for private care. There is no reason for this. Top ups are only relevant where there are significant issues on liability and significant discounts for the claimant's own negligence in relation to an accident.
I currently have two clients who were hit by cars and suffered serious brain injury. One, Neil, initially received excellent emergency care in a London hospital. What he needed next was to be in a rehabilitation unit, but there were no beds available. He ended up on an extremely busy general ward where his behaviour deteriorated and he was in danger of being sectioned.
I intervened early and demanded interim funding from the insurer to get private carers onto the ward to work with Neil. They sat with him 24 hours a day, helping him deal with his frustrations and ensuring treatment progressed at his pace.
His initial assessment on the general ward deemed him too volatile to benefit from the rehabilitation unit and was leading to the possibility of a locked unit. Assessment after the carers had calmed down the situation proved far more positive and he was accepted for rehabilitation.
He is now back in the community, living in a flat and while he still requires major support from support workers and therapists, he has a sense of his own identity. We achieved this via the Rehabilitation Code, by which both claimants' solicitors and defendant insurers/solicitors must agree to consider early what rehabilitation they are prepared to pay for.
Defendant insurers hold the purse strings here and it is up to the claimant's solicitors to ensure that fund is accessed for clients and, where necessary, to push for the right private care that a patient desperately needs.
My other client was already on a rehabilitation ward when I met her. The NHS hospital suggested that she should go from there to a care home because there was little hope of improvement. The defendant insurers strongly pressured me to agree since they wanted the local CCG to fund the care home. Being stubborn, I involved a case manager early and arranged an assessment by a private neurologist/rehabilitation expert.
Clearly, recovery was going to be a long process, but my client – a mother of two - proved to have real potential. I wanted to do everything possible for her. The defendant insurers refused to engage under the Rehabilitation Code, but I negotiated interim payments to pay for private care in a neurological unit, including therapies and support workers. Remarkably, this woman can now communicate, sit up in bed, have a discussion, laugh and smile in such a way that encourages her team to continue their good work.
If her legal team had bowed to pressure from the defendant insurers in those early days, she would likely now be sitting in a care home, with no support. We simply would not accept that she had been written off. This is why we take on these cases, and we have to be tough. Some defendant insurers accept that in cases of severe brain injury, rehabilitation can recover some happiness and appreciate the need to improve quality of life, others see only figures.
The cynical view is that unless you can get someone back to work, what is the point? A care regime can cost in excess of £100,000 per year and CCGs simply cannot afford to deal with the volume of cases and understandably feel that the money would be better spent elsewhere.
Case managers are under increasing pressure from insurers to accept CCG funding and NHS care. Most of them understand the principle that the client's family can elect on their client's behalf for private care, but occasionally I have to remind them and defendant insurers that clients have the right to get what they need, rather than what is available via the various streams of public money.
One of the rehabilitation therapies we push for is horse riding, which can bring incredible results. I had a brain-injured client who loved it. Unfortunately, the minute he got off the horse, he forgot he'd been on it. The defendant insurer argued that paying for horse riding therefore had no long term benefit. I refused to accept that and, 20 years on, my client is still riding his horse, and still loving it.