Report No. 3 The Rehabilitation Working Party's Report on the use of rehabilitation in personal injury claims: constraints against effective rehabilitation, a provider's view.

In considering this most welcome Report, reach draws on over 7 years experience as a provider of rehabilitation for severe traumatic brain injury and hundreds of contacts with claims managers, claimant and defendant solicitors. It is hoped that this contribution will assist what will no doubt be a most vigorous and fruitful debate following the publication of the Report.

1. Hard evidence on cost-effectiveness
First it is important to differentiate between different types of bodily injury and different types of resulting problems. Our experience, of course, covers only severe traumatic brain injury and the references below are all to this area. Nevertheless, it seems highly likely that the conclusions apply very widely to the full range of bodily injuries.

So far as "hard evidence", is concerned it all depends what is meant by this term. Presumably it refers to the absence to date of the ideal research design (widely used in medicine to test a new drug) - a controlled randomly assessed trial, whereby victims of traumatic brain injury are randomly assigned either to a rehabilitation group or to some form of controlled group which does not receive rehabilitation, with the outcomes assessed independently by experts ignorant of group membership. Because such a trial would inevitably take many years, there are probably insuperable practical obstacles against it being carried out by the private sector. The current state of play in the public sector (a significant proportion of severe traumatic brain injury cases fall outside the remit of insurers) is that the NHS contracts with private sector rehabilitation providers and seems broadly convinced of the desirability of doing so. Both insurers and the NHS are on good ground concerning the cost-effectiveness of rehabilitation for severe traumatic brain injury (it is for the providers of rehabilitation for other types of injury to set out the available cost-effective evidence: however, it would be very surprising indeed if it were not powerful).

We covered the outcomes of research reports to date on rehabilitation for severe traumatic brain injury in our first newsletter and discussed cost-effectiveness in our second. Briefly: residential rehabilitation reduces long term care costs by about one third to one half and gets back to some form of work at least a quarter of the victims; outcomes achieved by reach (home-based rehabilitation as compared to the majority use of the residential variety) are somewhat better and so are even more encouraging. However, much remains to be done in the way of data collection, particularly as to the levels of final settlements awarded as compared to the initial perceived likelihood. Here, the comparison would be between rehabilitation and non-rehabilitation cases. This would be the acid test for insurers but would require the disclosure of highly confidential information. Nevertheless, at a practical working level, it is safe to say in general terms that rehabilitation works considerably better than doing nothing and instead of leaving the final result to the litigation process. It works both for insurers in reducing their total costs and for claimants in giving them a better future life. Additional data would be useful, but are unlikely to change that broad conclusion. This is in itself a précis of a statement by the editors of Post Magazine.

2. Continuing mistrust between claimant lawyers and insurers.
In our experience, and borne out by the report, matters are improving here, nevertheless much remains to be done. Joint instructions help considerably, but nevertheless claimant lawyers and insurers may quite honourably, from time to time, pursue different objectives. If rehabilitation is begun as soon after the injury as possible, the claimant himself has a much stronger interest in pursuing rehabilitation than when it is raised as a possibility much later (a rough distinction is between the first two years after injury as compared with five years plus after injury). In the latter case the pursuit of the largest possible award is at the centre of the claimant's life. The above remarks tend to apply much more to adult claimants than to children and adolescents. In our experience the family of the latter more readily retain optimism and hope for the future than do the former as the years pass.

As the Report points out defendant lawyers tend to become involved relatively late after the injury has occurred. When they do so, they may join claimant lawyers in pursuing their own professional objectives. The Report is right to raise this issue as a potential difficulty, as well as a potential force for good. Much effort has already been expended in seeking to persuade both claimant and defendant lawyers to regard rehabilitation as being in everyone's best interest; clearly, this is a continuing task.

Overall, considering the legal sector, our experience over the past seven years is that there has been a sea change among both claimant and defendant lawyers which has paralleled that in the insurance sector, with the latter making the running.

3. Inertia and lack of awareness among insurers.
It is a truism that despite much recent consolidation the insurance industry is both huge and experiences rapid changes in personnel, including claims managers. Despite everyone's best efforts it is simply very difficult to keep abreast of the changes and to ensure that information as to rehabilitation reaches the right quarters. It is also difficult for people long used to the traditional adversarial approach to change their attitudes and much time is needed for them to do so. Senior insurers may wish to become aware of and draw on, a considerable body of knowledge in social and organisational psychology as to how to bring about change in entrenched attitudes and practices in large organisations.

The magazines which are aimed at the insurance industry, such as Post Magazine and Insurance Times, played a very important part both in disseminating information and in promoting attitude change, particularly via the Post Magazine's Rehabilitation First Campaign. There is every reason to expect that inertia and resistance to change, where it still exists, will be overcome. One can be reasonably confident that whereas it was much more in evidence three years ago than it is now, in three years hence it will be diminished.

4. Private case managers
"Private sector case managers have a pivotal role to play in promoting rehabilitation by the insurance industry" [the quality of their service is variable] cited from the Executive Summary of the Report. reach agrees with both aspects of the summary statement. Lower levels of case management quality may be associated both with too close a linkage with a particular claimant firm and with a case management firm also providing care and care management. The former point is reasonably self-evident; the latter needs a little explanation.

Rehabilitation is aimed at increasing independent living and hence decreasing the level of care needed.If a case management organisation also provides care, there is an obvious conflict of interest and the more effective the rehabilitation, the less the need for care. It is therefore crucial that those who (among other responsibilities) advise on rehabilitation (the case management organisation) should not also provide either care or rehabilitation.

5. Who should have rehabilitation and how much?
As the Report points out it is a poor use of resources to give a disproportionate level of treatment to someone with a minor level of injury. reach goes further: we recommend rehabilitation for a severe traumatic brain injury only when it is likely to produce a significant improvement in either or both independent living and the ability to return to work. We have sought to identify, drawing on both research data and clinical experience, those who will benefit from rehabilitation in the above terms. The key variables (among adult claimants) include age, the time since injury (here we have the key need for early rehabilitation), the pre-injury level of achievement (employment etc.), the levels of psychological and functional deficits and the remaining strengths in these two areas. As discussed in newsletter No. 2, the family of the claimant (particularly the main carer) is also of vital importance. Concerning the main carer, reach considers the following to influence the outcome of rehabilitation: age, current demands from other family members, the current burden of caring for the claimant, level of distress in response to the claimant's specific problems, levels of anxiety and depression, the relationship with the claimant and the probability of the carer co-operating with rehabilitation.

Motivational variables pertaining to both the claimant and the main carer are also assessed. All of these factors are combined to yield a rehabilitation prediction - the probability of an improvement in independent living and in return to work in response to a specified period of rehabilitation at a given cost.

6. A final comment on the Report
We are sure that other rehabilitation providers join us in feeling a deep sense of gratitude for the Report. It's production would have been nearly unimaginable only three years ago and is a measure of how far the British insurance industry has come in accepting and using rehabilitation to a point at which it is well on the way to becoming routine. The Report is a milestone in both indicating progress and in pointing out where further development lies - not least in the need for a unity of approach between insurers and claimant and defendant lawyers.

Philip Feldman and Heather Batey - reach personal injury services limited