The MedCo portal system of commissioning medical reports needs to be transparent and uncomplicated, and eliminate any incentives that encourage those acting for claimants to ‘game’ the process, Kennedys has told the government.

As part of this, the government needs to ensure there is robust auditing of medical reporting organisations (MROs) in tandem with openly available management information of which law firms are instructing which experts. 

Such measures should help ensure MedCo achieves its goal of breaking the financial links between solicitors and experts/MROs and, as importantly, provide a source of good-quality experts for claimants. 

In our response to the Ministry of Justice’s call for evidence on the operation of MedCo, we have said: “Unfortunately, it may always be difficult to prevent a minority of organisations or individuals from developing unhealthy practices around what they see as an opportunity to exploit a situation and generate revenue. 

“This has been proven again and again in the context of whiplash claims. The low-value, high-volume nature of these claims has attracted bad behaviours – hence the ongoing need for robust and flexible regulation and policing.” 

Our response predicts that the market will continue to adapt to the introduction of additional safeguards, not least because of the adoption of alternative business structures that can be used to cloud the nature of relationships between different organisations in the supply chain. This is why proper audit procedures and the capture and application of meaningful performance data are vital to the success of MedCo. 

Different payment levels depending on the size of MRO and nature of medical expert also risk over-complicating the process and creating incentives that can ultimately affect the quality of report. 

Niall Edwards, partner and head of Kennedys’ motor practice, says:

“Until we have proper audit procedures in place and good management information, the danger is that unhealthy behaviours will go unaddressed. It is vital to consider MedCo’s operation against a background of an ongoing desire by claimant firms to maximise the reward for agencies linked to the claims process. 

“There is a growing tendency to plead psychological damage in the claim notification form with an indication that agents will be appointed to assess and provide treatment in the absence of a seven-day response. In practice, treatment is often underway – effectively ambushing the defendant and denying an opportunity to respond in a meaningful or fair way and, at the same time, generating an additional level of costs. 

“Like any system, the more complicated it is, the greater the risk that ways will be found to undermine its objectives and create undesirable effects. MedCo needs to be kept simple and have a mirrored auditing procedure in place.”

Among the other practical recommendations in our response are:

  • MROs should be required, when renewing their MedCo registration, to provide information about the number of instructions received from particular firms; law firms should have to keep similar records of who they have instructed;
  • Claimants should have a choice of three MROs, rather than the current seven, which muddies the selection process too much. The smaller the number of MROs, the easier it is to track the activity between them and claimant firms;
  • Accredited experts should be registered members of no more than one Tier 1 MRO and one Tier 2 MRO to keep the system sufficiently transparent;
  • In the desire for additional simplicity, the MoJ should keep in mind the prospect of consolidating Tier 1 and Tier 2 MROs into one tier of MRO only, ensuring the application of robust criteria across the board; such a consideration should follow after at least one year’s of proper management information has been generated; and
  • The practice of carrying out multiple searches but then only proceeding when certain experts appear needs to be curtailed.

Niall Edwards concludes:

“By taking action now, the Ministry of Justice has shown its intention to ensure MedCo is fit for purpose, and that there is scope to minimise the risk of unhealthy activity.”