Ministry of Justice (MoJ)

6. Mrs A complains about the MoJ’s oversight of MedCo, as she says it used a medical expert (ME) who had a poor service record, behaved inappropriately, and should not have been used. As a result of this, she feels the advice the ME provided for her case was wrong and resulted in her getting far less compensation than what she should have received.

7. Mrs A also complains about MedCo’s implementation of the Victim’s Code.

8. As an outcome of her complaint, she would like the MoJ to acknowledge its failing, revisit her case and use a suitable medical expert, introduce service improvements, and compensate her.

Complaint background

9. In 2018, Mrs A was involved in a road traffic accident in which she sustained a head injury. She subsequently made a personal injury claim.

10. As part of that process, MedCo, the system and organisation used in medical injury cases, arranged for a medical expert to assess Mrs A’s injuries. The medical expert diagnosed that Mrs A had suffered a soft tissue injury to her neck, commonly known as whiplash.

11. According to Mrs A, some years later she was diagnosed with a brain injury which she says was caused by the original accident. She complained to MedCo that the original diagnosis had been incorrect. She later discovered that the medical expert who assessed her had since been removed from the General Medical Council’s register for unprofessional conduct relating to incidents in 2006 and 2007. She said this supported her view that the original diagnosis was flawed.

12. MedCo did not uphold her complaint. It explained that it was not a regulator and had no legislative basis or statutory powers. It said the medical expert was no longer on MedCo’s approved list, so there was nothing further it could do.

13. Mrs A complained to the Ministry of Justice (MoJ) as the government department with overall responsibility for overseeing the work of MedCo. The MoJ responded and said it did not comment on individual cases. Nor did it regulate medical experts (although it signposted Mrs A to the relevant regulatory bodies for medical practitioners).

14. Mrs A complains to us that the MoJ should have done more to ensure that the medical expert who examined her was suitable. She also raised concerns about the overall framework of the MoJ’s oversight responsibilities.

17. To help put this complaint, and our decision, into contact it may help to say more about the MedCo system and the MoJ’s role in it.

18. MedCo is the system used to facilitate the sourcing of medical report providers in claims brought under the Ministry of Justice RTA Small Claims Pre-Action Protocol or the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. Introduced in April 2015, it is part of a package of reforms to tackle the increase in claims for compensation and the significant impact it was having on the motor insurance premiums paid by individuals, families and businesses.

19. Its role is to • Implement Government Policy • Ensure independence of medical reporting via fair search and selection • Ensure the quality of medical legal report • Provide accreditation for medical experts

20. All commissioners of medical reports, along with medical experts and MRO providers must register with MedCo.

21. The Ministry of Justice RTA Small Claims Pre-Action Protocol applies to some road traffic accident claims. It covers claims where the person has suffered personal injury, including whiplash, and the value of the injury claim is no more than £5,000. The total value of the claim must also be no more than £10,000. These claims would usually be dealt with as small claims if they went to court. The Protocol sets out what both sides should do before court proceedings begin. Its aim is to help the parties settle the claim fairly, where possible, and to explain what should happen if they cannot agree and the claimant wants to start court proceedings.

22. The MoJ Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents also sets out what the court expects the parties to do before starting court proceedings. It applies to lower-value personal injury claims arising from road traffic accidents. Its purpose is to allow damages and costs to be paid through the Protocol process, without the claimant needing to start court proceedings, where possible. It also aims to make sure damages are paid within a reasonable time and that the claimant’s legal representative receives the fixed costs allowed at each stage.

23. For soft tissue injury claims, the Protocol also aims to control the use and cost of medical reports. In most cases, only one medical report is obtained. The medical expert should usually be independent of any treatment provider, and offers should usually be made only after a fixed-cost medical report has been obtained and shared.

Mrs A’s concerns about the medical expert

24. We are unable to help Mrs A with this case. Although the MoJ may have oversight of the MedCo system, that does not mean it decides who should be on MedCo’s list of approved medical experts or that it can intervene in individual expert appointments. Even if the MoJ had such authority, we would not have expected it to take action in this instance.

25. The evidence shows that, at the time of Mrs A’s assessment, the medical expert was still on the GMC register. The fact they were later removed from that register does not mean it was unreasonable for MedCo to use them at the time, and it does not retrospectively show that the assessment or diagnosis was unsuitable. If Mrs A disagrees with the diagnosis provided, she would need to seek independent legal advice on whether she can challenge it through the court process. Neither the MoJ nor we can help her with this.

26. Mrs A has said her complaint about the MoJ is wider than this issue and that she has concerns about the whole framework of the MoJ’s oversight of MedCo. This is not something we can help her with. We are not a regulator and have no say in the day-to-day running of the Ministry of Justice. If Mrs A has concerns about the framework, or about any other MoJ policy, we would suggest that she approach her MP to raise the issue in Parliament.

27. Since making her complaint to us, Mrs A has said she believes the MoJ has failed in its responsibilities to her as a victim of crime. However, we have not looked in detail at this issue. This is because, under our process, we usually expect concerns to be raised with the organisation concerned, and a final response received, before they are raised with us. We have seen no evidence that Mrs A has done this. She would need to do so before we could consider this matter further.

28. Before raising concerns with the MoJ about the Victims’ Code, we would suggest that Mrs A familiarises herself with the Code. The Code of Practice for Victims of Crime places a statutory obligation on criminal justice agencies to provide a standard of service to victims of crime, but it does not apply to all organisations. It also explains which organisation is responsible for carrying out each duty, and in what circumstances. It may therefore help Mrs A to explain to the MoJ which specific duty she believes it failed to carry out in her case.

1. We are sorry to hear about the difficult time Mrs A has had. We can appreciate that her head injury would have been life changing and her journey to get compensation has evidently been distressing for her.

2. We have carefully considered Mrs A’s complaint about the Ministry of Justice (MoJ). The MoJ is a government department that is responsible for the Justice system, which includes the medical claims system. To reach this decision, we reviewed the information Mrs A provided.

3. Having done this, we have decided not to consider her complaint further. Regarding her complaint about the MoJ’s oversight of MedCo, who source medical reports for the MoJ, we found it had not done anything wrong here and its response was reasonable.

4. Also, Mrs A raised issues relating to matters about the Victim’s Code. The Victim’s Code sets out the standard of service that criminal justice agencies, like the MoJ, should provide to victims of crime of their relatives. We have decided this issue should be addressed in Court.

5. In this report, we hope to make our reasons for our decision clear and to reassured Mrs A we have thoroughly considered her concerns.