Posted 7th October 2010
Essential Information and Debate - Summary by John Ainscough, Director John Ainscough Associates, and CMSUK Events and Education Committee member.
The whole process behind the organisation of this day started with discussions in the CMSUK education committee over a year ago so it was very pleasing for us to get to this point of fruition in what seemed to be a very successful study day.
One of the main aims behind the day was to give delegates a clearer understanding of their role as a case manager in relationship to the personal injury claims process. We also wanted to have the opportunity for both a claimants and defendants solicitor to provide their own perspectives on the role of the case manager and at the same time provide an opportunity for discussion and debate about the issues that arose.
Within the case management community there appears to be an awareness of some confusion existing amongst stakeholders who are involved in personal injury claims and rehabilitation about the world of case management and personal injury litigation. Our intention of the study day was to create an opportunity for people to put their cards on the table and generate some robust discussion and debate about grey areas that exist.
At the same time as doing this we also wanted to provide an opportunity for some straightforward and clear guidance to be delivered on varying aspects of the litigation process and the priorities from both a claimants and defendants perspective.
From the feedback that we received at the end of the day it seems clear that there is a need within the case management world for much more education on the litigation process and the interface with case management. Is this something that we need to look at more within CMSUK in relation to future study days and training events?
We had three main speakers presenting during the morning: Colin Ettinger, Partner, Irwin Mitchell Solicitors; Charles Ashmore, Partner, Greenwoods Solicitors; and Teresa Shaw, Case Manager & Clinical Director Proclaim CARE Ltd & CMSUK Director. The day was chaired by Carole Chantler, Chair of CMSUK.
A detailed brief was provided to each of our speakers prior to the event but I think that the particular topics we wanted to explore seemed so vast that it was almost impossible for all of our speakers to cover everything that we would have liked too. For example, we asked each of our speakers to include an element of case management records and this was a big topic for discussion. Throughout the day it became clear that this could easily form the basis of a whole study day in itself. This was also apparent with other topics that were touched upon throughout the day.
The title for the day stated that we wanted to provide essential information but also create the opportunity for debate. It was with this in mind that we created a programme with a couple of substantial question and answer sessions and also the opportunity for smaller group discussions. Unfortunately the smaller group discussions were somewhat hampered by restrictions of the venue. However, the overall purpose of structuring the study day in this way was to create the opportunity for informal debate about the topics raised by the speakers during the morning. Whilst our intention at CMSUK was to provide education and training we also had a sense that we might come away from the day with more questions than answers and indeed the positive feedback that we received would seem to reflect this.
We wanted to see the study day as the start of a process for ongoing discussion and debate about the interface of case management with the litigation process rather than seeing it as a self-contained day, hence the idea to have a working party formed from some of the delegates present so that we can keep looking at the issues raised and how best to take them forward.
The question and answer sessions following the speaker's presentations in the morning worked particularly well and provided a good opportunity to open up and expand on some of the themes raised.. We heard a frank and robust exchange, in particular between the two solicitors, the benefit of which was about getting a clearer sense of where claimants and defendants solicitors agree on issues in relation to case management, and were they differ. It was useful to have created a forum in which some of the cards could be put on the table. This was a necessary process so that as case management professionals we can understand and present our case to other agents about where we need to stand in relationship to the points of views raised.
Colin Ettinger gave an outline of the approach that his own firm would like to adopt in relation to using case managers within the claims management process. He began outlining standards that case management companies would be expected to meet and in particular focused on PAS150 Providing Rehabilitation Services Code of Practice. Colin also referred to accreditation by CARF and seemed to be pointing to the fact that claimants solicitors will want to make sure that good case managers and their companies are adhering to specific practice standards and guidance.
In relation to standards Charles Ashmore commented that it would be good to see case managers coming under the regulation of a single body with the profession adopting appropriate training. He thought that the single most important aspects of this training should be to:
All three speakers made reference to the case of Wright -v- Sullivan. There was also a question in relation to this case during the Q&A session which generated much debate.
There was obvious disagreement between the claimant and defendant perspective, as put forward by our speakers, as to how the judgement in Wright -v- Sullivan should best be viewed. Colin explained that he thought it was a very good judgement in terms of its reference to the inappropriateness of the joint instruction of the case manager whilst Charles said he thought it was a rather unfortunate judgement and that the case had made unhelpful generalities about the role of the case manager. Charles also thought that the judgement was open to abuse by some claimant lawyers. However, there didn't seem to be any disagreement about the fact that the case managers sole duty of care is to the injured client and that much like any medical or therapy practitioners it was only appropriate that the case manager should be instructed directly by the claimant and that a joint instruction was not possible. Charles suggested that with the phrase ‘joint instruction' it was possible to get too hung up on terminology but he said that from his perspective it was more important that everybody within the litigation context was working together and that there was good communication, cooperation, and provision of information.
I think it's worth noting that whilst the word ‘instruction' was used regularly throughout the day in relation to the appointment of case managers, the CMSUK standards make it clear that it is perhaps best for the word ‘referral' to be adopted instead.
As the aim of the day was about exploring the interface of case management with the claims process it seemed obvious that the issue of the case manager's involvement with the litigation process should come up for question. On the one hand Teresa Shaw made it quite clear that the case manager should remain outside of the litigation process but from some of the later discussion and debate the question was raised as to whether in reality it was practical for the case manager to somehow artificially separate out what they do from what goes on within the litigation.
Colin quoted an example of the need for a case manager to sometimes be closely involved with the litigation process. He talked about a case recently were both care experts in the case had huge differences of opinion about the package that the case manager had in place at present. He suggested how important it was for the solicitor to be able to go back to the case manager and advise them of this and get their views on what actually had been provided. However, from Charles point of view it seemed that he didn't necessarily disagree with this approach but he made the point about insurers wanting these sorts of conversations to be disclosable to defendants. As you can imagine this led on to further exchanges about privileged information within the litigation and case management documentation.
The question as to whether, and indeed how, case managers might get drawn into the litigation process seemed to raise quite a difference of opinion. Whilst Charles explained how case managers can sometimes become unwittingly involved in litigation, by giving opinions to only one side and not the other, Colin wanted to point out that the case manager should definitely become involved with the client's claim and indeed be supportive of the need to maximise damages in order to ensure that the best possible rehabilitation services could be provided. Quite how this might look in practice with individual solicitors and their firms could be open for much more discussion and debate. Colin's view was that it was probably not possible for case managers to avoid becoming involved in the litigation process whilst Charles explained that he thought rehabilitation and litigation were not comfortable bedfellows and that from his point of view they should be kept as far apart as possible.
This whole area and question of the case manager being ‘outside of the litigation process' needs much more in-depth discussion and clarification. It is a complex area with many differing points of view that are relevant to our practice but I think the study day demonstrated a need to more clearly understand exactly what it might mean for the case managers practice to remain outside of the litigation process.
All three speakers spoke on the issue of case management records and agreed that this was a huge area for discussion and a probably could take up a whole study day in itself. Charles explained that he thought this was a particular bone of contention for insurers. His view was that case management records and care records should in effect be treated the same as medical records and case managers should not be encouraged to keep two sets of records, one that might be related to the litigation for example and one more focused on rehabilitation. We did receive some feedback which suggested some degree of confusion around this particular area in relation to information that the case manager receives that could be considered to be legally privileged. Is further training required!
The issue of case managers as a witness of fact as opposed to being an expert was brought up in some of the presentations and we did receive some feedback suggesting that it would have been useful if we could have gone into this topic a little more slowly and in detail throughout the day. Does this point to the need for more straightforward training sessions in relation to these issues?
Whilst Colin was presenting as positive a picture as possible about the litigation process and how litigators and insurers should be supportive of the case manager's intervention he was also wanting to point out that there are problems. For example, that there was a massive difference between both sides in litigation saying that from a defendant's perspective they really wanted to keep costs to an absolute minimum in any case, this being their prime focus, whilst the claimants legal team have the focus of really trying to maximise damages. Charles did agree that insurers wanted to try and keep costs to a minimum but he focused on the use of rehabilitation as a means to maximise the recovery of the client thus helping to keep costs down into the future.
It was useful for both a claimants and defendants solicitor to be providing their views on case management and how they saw the role of the case manager, surely in the future it is much more important that we as a profession are attending legal and insurance professionals conferences in order to educate them more clearly about rehabilitation, our role and our duty of care. In effect, we as a profession need to continue to develop clarity and confidence about our role and duties within this grey area of the interface between our practice and the litigation process.
As the personal injury claims process is still an adversarial process in this country perhaps it will never be possible for case managers to be completely free from the subtle, and perhaps sometimes not so subtle, influences from either side in a litigation. This is something that as a profession we will have to learn to live with at this time which means that we need to be very firm in our commitment and development of standards around our duty of care to the client and have an extremely clear understanding of exactly what this means in our day-to-day practice of providing case management in the midst of the litigation process.images/tmp246B.JPG