Faster and free - Your clients’ right to medical records under GDPR?

The introduction of the General Data Protection Regulation (GDPR) back in May generated a lot of uncertainty and work for businesses but created clear benefits for us all as individual “data subjects”. One up-side that went largely unnoticed is the right for clinical negligence claimants to have free access to their medical records.

Before this summer, even just the mention of GDPR might be met with groans from colleagues tired of hearing about this important but inevitably complex piece of legislation that all of us in any sort of business had to get our heads around, to some extent.

However, one specific aspect that has been of particular interest to all of us who work on behalf of people who have been harmed by medical malpractice, is the impact that the Regulation has had on accessing a client’s medical records.

The right to see the information that medical professionals have recorded about us isn’t new, of course. Such rights were certainly codified under GDPR’s predecessor the Data Protection Act in 1998 and, to a limited extent, the Access to Medical Reports Act back in 1988.

Two key aspects of GDPR have already had a significant impact on how such matters are progressed. First, the regulation has reduced the amount of time that an organisation has to respond to a subject access request (SAR) from 40 to 30 calendar days, speeding up the process of assessing a claim which should be ultimately beneficial for all parties.

Second, and perhaps more important, has been GDPRs provision that organisations are no longer permitted to charge an administration fee for responding to a SAR, in most instances. As well as making it easier for prospective clinical negligence clients to get hold of their medical records before a specialist solicitor assesses the merits of their case, this also has the effect of speeding up the claims process. 

These implications of GDPR are not entirely uncontentious and there has been some resistance, particularly for some smaller medical organisations such as GP surgeries, claiming to be overwhelmed by the demand to review large, historic medical files in order to redact data about any third parties who may not have consented to the release of any information about them.

There remains some uncertainty around precisely where such responsibilities fall but, on the whole, GDPR appears to have supplied a rare improvement for claimants trying to assert their legal rights in what are often the most difficult of circumstances.

While surveying its members on the impact of such requests, the BMA has produced some useful guidance for the medical profession about GDPR, particularly its FAQs related to SARs.

Like all legislation, there are clearly some wrinkles that still need to be ironed out. Nonetheless, anything that speeds up the lengthy process of seeking redress for injury caused by clinical negligence can only be a good thing, for all parties involved.

Here today, gone tomorrow

Following last month’s news of the collapse of CBL Insurance and the subsequent failure of Denmark’s Alpha Insurance, Head of Sales Andy Talbot, considers where the next legal expenses underwriting failure may occur.

In 2016, it was AU Insurance Services. Last summer, it was Elite Insurance Company. Already in 2018, New Zealand’s CBL Insurance Limited has collapsed leaving Alpha Insurance A/S in solvent liquidation and run-off.

Often, it seems, these failures impacting the legal expenses sector get associated with the ATE market, somehow remote from the majority of brokers. But most legal expenses underwriters, wherever they are based, will have feet in both ATE and BTE camps.

Alpha is a case in point, having underwritten numerous motor legal protection and other policies for brokers around the country, as well as some ATE business.

The precise causes and circumstances of these failures (and the several others that have occurred in between them) may be very different, but they have all left brokers, other intermediaries and their clients in the lurch.

In most cases, clients are unlikely to be impacted if a change of underwriter is forced on their insurance provider. Some consolation for brokers who have to go back to the market, find a new underwriter or product and undertake all the subsequent work that such failures inevitably trigger. 

What is troubling is the frequency with which such failures seem to be occurring.

The legal expenses insurance market has not been an easy one in recent years. Increased regulation, LASPO, numerous other legislative changes and even the succession of IPT rate increases have all put pressure on smaller LEI providers.

Some underwriters have also been more vulnerable to the impact of continued uncertainty over EEA passporting rules, resulting from the Brexit vote, and there are likely to be more legislative changes to come. Proposals to change the way “whiplash” claims are handled and raise small claims court limits could seriously undermine the business models of some LEI providers and trouble their underwriters.

Brokers have good reason to be cautious. Alpha Insurance is only the latest underwriter to exit the legal expenses market. It is highly unlikely to be the last.

How and when the next legal expenses underwriter will leave the market is inevitably hard to predict, but brokers owe it to themselves at least, to minimise the risk of finding themselves in a similar situation over the coming months.

Very few law firms will have the knowledge of insurance markets that most brokers do, so it may be hard for them to understand and calculate the risk. Brokers, on the other hand, should be much more adept at asking the right sort of questions, not just of their immediate provider but the ultimate underwriter too.

Who is this policy underwritten by? Where are they based? Who regulates them and what sort of scrutiny do they come under? Are they independently rated by a credible agency? How much experience do they have writing this sort of business?

Thankfully, it seems that Alpha’s departure and run-off will, like Elite’s before it, be orderly. The underwriter appears solvent and seems capable of meeting its obligations.

Next time, we may not be so lucky.

Why do you need High Net Worth cover?

Most High Net Worth clients are looking for that bit extra from their insurance.
At ARAG we offer comprehensive bespoke cover, higher limits of indemnity, backed by high quality legal advice and partner-led claims handling from solicitors who are experts in their field.

We provide enhanced family, home emergency and motor breakdown products, ensuring our cover is the perfect choice for your client’s needs.

 In summary, we offer:

• 24/7 HNW legal advice line
• flexible, tailored cover 
• pre-vetted, HNW preferred solicitors
• excellent customer service 
• account management
• award winning products & services

Why choose ARAG?

• Faster initial responses to claims notification and quicker initial assessment of claim 
  - 2 day service standard
• Claim handled by ARAG Senior Claims Handler
• Solicitor will be specialist in claim area
• Partner led claims handling at solicitors
• Enhanced service standards  with solicitor throughout claim

For more information please call us on 0117 307 2278.

It’s been a busy couple of weeks for our ATE Sales team – Mike Knight, ATE Sales Manager

First up was AvMA’s Annual Clinical Negligence Conference followed, a week later, by the APIL Advanced Brain and Spinal Cord Conference. Both exhibitions are regularly in our events calendar as they provide an invaluable opportunity for us to connect with new prospects and re-connect with our current partners. 

Both events were extremely busy for us, so apologies to anyone who didn’t get the chance to speak to us on our stands, please do contact us below if you would like a chat! Even though each event has a different demographic of delegates, our message is always the same.

For more than a decade, ARAG has led the way in delivering innovative after-the-event insurance solutions to law firms throughout the country. Many will talk of ‘access to justice’, but ARAG is still driven by its founding principle, more than 80 years old, that “…every person should be able to assert their legal rights, not just those who can afford it.”

Nowhere is this principle more important than in our mission to ensure justice continues to be accessible to those who have sustained severe and sometimes catastrophic injuries. At a time when claimant firms and their clients have been confronted with successive challenges, seemingly perpetual reform and shifting regulatory and market conditions, ARAG has stood firm, developing and adapting products to satisfy increasingly demanding requirements, especially in the personal injury and clinical negligence sectors.

The design of our Recourse range of after-the-event solutions has always focused on simplicity. Products that a solicitor can easily explain and a client can readily understand; products free from complex underwriting mechanisms and onerous conditions; products, put simply, that work.

As a result, we are regularly shortlisted for a string of awards, from Personal Injury Insurance Provider of the Year to Legal Expenses Team of the Year, ARAG has been recognised as the outstanding provider of legal expenses insurance solutions for law firms and their clients.

I always enjoy attending events like those put on by AvMA and APIL as they offer a perfect mix of business and networking. Then again, maybe that’s why I have now decided to take on the challenge of Dry July!

The idea of going alcohol free during a summer month of BBQ’s, sporting events and corporate entertaining is not going to be easy but it is for a great cause and a charity close to our hearts at ARAG; FOCUS. The motivation to stay off the alcohol and enjoy a range of non-alcoholic beverages throughout the month comes from the knowledge that any donations received will enable the charity to invest in projects that make hospitals better. Their aim is to create a comfortable and positive environment for all their patients and staff, investing in improvements to buildings, state of the art equipment and extra care over and above that provided by the NHS. If you would like to show your support, please click here. 

Going forward, we are supporting the St John’s Chamber and AvMA Charity Dinner in Bristol on the 21^st September and exhibiting at the APIL Clinical Negligence Conference in Brighton on the 5^th and 6^th of October – I hope to see you there!

Contact details:

Mike Knight, ATE Account Manager

Email: mike.knight@arag.co.uk

Mail: 9 Whiteladies Road, Clifton, Bristol, BS8 1NN

Mobile: 07795 636391

Insurance should be a matter of conscience

Lord Chancellor Liz Truss certainly set the front pages alight when she announced that insurers would have to pay more compensation to seriously injured accident victims. Headlines predictably followed the ABI line and screamed about rises in premiums. A few days earlier, there had been almost no mention of the Ministry of Justice’s (MoJ’s) decision to ‘fix’ whiplash claims and raise the small claims court limit so high that legal representation would be either unavailable or unaffordable in a large proportion of cases.

Some of the details are still a little sketchy but if we have the motor accident threshold set at £5,000, some 90% of road accident injury claims will be ‘small’ claims where legal costs cannot be recovered and around 80% of these will have the whiplash component standardised, with a cap on fees for medical reports. Motor ATE is the most affected in terms of sales potential but BTE premiums will progressively have to rise to pay for irrecoverable costs. The insurance principle of many people paying the claims of a few becomes more difficult to apply if fewer motorists are willing to stump up the extra, taking typical add-on premiums to between £35 and £50.

In respect of clinical negligence and accident cases, are these insurers bemoaning having to pay damages in full the same ones who promised whiplash reforms would actually cut motor premiums? Are they really so callous about the most vulnerable people in society having their life-long care funded adequately – those children who have been injured at birth or motorists maimed and brain-damaged through no fault of their own? The fuss about correcting a long overdue adjustment to the Ogden Tables is shameful: changes are long overdue.

Changes to serious injury rates were talked about over a period of years, with consultation concluded nearly five years ago, while the whiplash consultation was concertinaed into just 6 weeks, over Christmas 2016.

It looks to us like a story is being spun about higher premiums while the victims have no voice. This mood is wrong and reflects badly on society in general. Many insurers’ websites have promises about their social conscience and about treating people fairly. Fine words but little evidence to substantiate them. At ARAG, we are justified in taking the high moral ground. We stand by our mantra, defined by our founder, Heinrich Fassbender, in 1935: “To enable everybody, not just those who can afford it, to assert their rights. We remain committed to equal opportunities for all.”

Which way for ATE and BTE?

We will shortly announce positive results for our trading and profitability over 2016, a new balance to our ATE and BTE exposure, and strategies to both consolidate existing business and build new areas of expertise.
It is clear that the legal framework favours BTE at the expense of ATE solutions. The future ATE focus will be on EL, PL and non-personal injury cases. We are also more clearly identifying good schemes – we now have three full time auditors visiting law firms around the country – with special attention to clinical negligence cases.
On the BTE side, we have to ensure we are not giving away too much for free:
‘extras’ in home emergency, helpline and online services all come at a cost to us and we must ensure our commitment to quality products and service cannot be compromised by concerns over competitiveness of premiums. At the same time, our London office has opened many new doors for commercial BTE schemes because so many businesses fear ever more complex employment tribunal claims.
In all our dealings, we remain committed to ensuring that customers receive excellent value and service, knowing, at all times, that the cover is fi t for their purpose. Management information such as the monitoring of claims declinature and complaints enables powerful root cause analysis that constantly shapes our future policies. This allows us to repeatedly improve the customer experience to maintain ARAG’s reputation for making affordable access to justice available to everyone. 

Transport Select Committee Delivers a Refreshingly Balanced Report

The Transport Select Committee’s (TSC) third report on the cost of motor insurance focuses on the impact of whiplash claims on premiums. The report provides recommendations to the Ministry of Justice after considering evidence from a wide range of interests. ARAG admires the thorough approach of the TSC and endorses many of the report findings. Provided that the Government responds positively, the recommendations should ensure that individuals who have suffered an injury, including whiplash, as a result of a motor accident which was not their fault, will retain access to justice through the small claims procedure.

The UK is not the Whiplash capital of the world

The TSC considered medical evidence about the characteristics and effect of whiplash injuries, accreditation of medical experts, the volume of claims and to what extent whiplash claims are exaggerated or fraudulent. They concluded that 58% of traffic accidents result in whiplash injuries, affecting nearly 477,000 individuals in the last year.  This number represents the lowest number since at least 2007-8. The TSC urged the Government to analyse earlier accident statistics and the ABI to provide better data. The committee was not persuaded that the Government’s claim about the UK being the “whiplash capital of the world” could be established from evidence available.

The report expressed surprise that the Government had brought forward measures to reduce fraudulent or exaggerated whiplash claims without having even an estimate of the scale of the problem. ARAG has offices in 15 countries and our evidence supported the TSC’s view. Maybe the Government’s position would have been different had representatives from the legal profession been invited to the PM’s exclusive summit with motor insurers which took place on 14^th February? The TSC was disappointed to hear about lack of engagement with the legal profession.

Medical Reports

The Committee supported Government proposals for accreditation of medical practitioners (including physiotherapists) and suggested that the Government consider a random audit of medical reports. The Committee felt, that claimants should show some additional evidence to support their claim, whether from a visit to the GP or A&E soon after the accident, or evidence of the impact of the injury on their life. As ARAG deplores exaggerated and fraudulent claims we believe this to be perfectly reasonable.

Reducing the limitation period

As injury symptoms emerge relatively quickly the Committee recommended the Government explain why they were unresponsive to changing the limitation period for road traffic claims below £10,000 from three years to one.

The small claims threshold

ARAG provided comprehensive statements about the negative impact that increasing the small claims track threshold to £5,000 is likely to have on access to justice for motor accident victims. We realise that least well off drivers can be tempted to decline BTE legal expenses cover in order to reduce their premium. The committee was impressed by our argument that expecting individuals to have the capacity, confidence or appetite to instigate claims through the portal is unrealistic. They believed “that access to justice is likely to be impaired, particularly for people who do not feel confident to represent themselves in what will seem to some to be a complex and intimidating process”. They further noted that “insurers will use legal professionals to contest claim, which will add to this problem”.

Our evidence also raised concern about small claims track procedures having the potential to increase the risk of fraud. The TSC noted that procedural implications “could prove counter-productive in efforts to discourage fraudulent and exaggerated claims.” 

The committee recommended no change to the small claims threshold until the MOJ had assessed the impact of the Portal.

In conclusion

The TSC asserted that genuine claimants should not be demonised. Again the Committee expressed surprise that the Government had only listened to the insurers’ perspective and found this disappointing in the light of the Government’s own view that the insurers had encouraged unnecessary and excessive claims with their own business models. Insurers were further criticised for making offers in advance of receiving a medical report and for settling claims where fraud or exaggeration was suspected.

The TSC recommended that the Government explain how it will monitor whether or not motor insurers honour their commitment to ensure savings that result from legal reforms are passed through to consumers in the form of lower premiums. Fully recognising the dysfunctional and opaque nature of the motor insurance market the Committee called on insurers to be more transparent about financial and other links in the service chain.

It seems to us that after not being listened to for so long, and even worse being “blamed” for mischiefs in the legal system, the position of claimants has at last been appreciated. We are delighted to see that our submission to the TSC has influenced their report. In particular retaining the small claims threshold at £1,000 will ensure ATE remains a possibility for claimants who have not taken out BTE legal expenses.

 

 

 

ARAG ATE policy safeguards claimant

On the 18th January 2013, the High Court overturned an earlier judgment that an ARAG ATE policy was not good enough security for costs.

The bespoke wording expressly stated that the policy would only be void should there be fraudulent non-disclosure (and not for innocent or negligent non-disclosure), and even if there was, the cancellation provisions expressly stated that ARAG would be liable for costs up to the date of cancellation, so minimising any risk to the defendants costs.

The case was not the type to have an adverse verdict at trial, as it centred on technical issues rather than contentious facts, and so there was no commercial reason why the claimant would wish to jeopardise the policy by not complying with its terms. Quite simply, the policy was for the claimant’s own protection.

This case clearly shows that defendants will use the ATE policy as a way of making life difficult for the claimant, but fortunately in this case, the claimant had an ARAG policy that provided the safeguard for the claimant should they lose, and likewise for the defendant.

Permission to appeal has not been granted as yet, and the claimant was awarded the costs of the application.

Big news for small businesses

The banking world has been in the dog house for a while now but a new initiative from the Financial Services Authority (FSA) looks to keep them there for a bit longer. Another mis-selling scandal has emerged in relation to the sale of interest rate swap products to small businesses.

According to an article in the Independent interest rate swaps are “complicated derivatives that have been sold as protection - or to act as a hedge - against a rise in interest rates”. The FSA have identified that more than 90% of the products were mis-sold to the small business sector accumulating to an estimated “total [of] as much as £1.5 billion across the sector”.

As a result of the mis-sold product many small businesses are left with hefty bills, however the FSA has set out a framework for the banks to provide compensation. As quoted in the Telegraph, Vince Cable sets out that “the immediate priority is to ensure small businesses are not driven out of business by banks pursuing liabilities for swaps that they mis-sold”.

With this in mind, ARAG can provide your small business customers with the means to pursue the compensation that they are entitled to with the support of Recourse After-the-Event insurance.

LASPO – Insolvency cases exempt from reforms

Further news to the LASPO Bill, which was given Royal Assent last month; with the recoverability of success fees and ATE insurance premiums being unavailable with effect from April 2013, insolvency cases will now be exempt from no-win, no-fee reforms until April 2015.

LASPO is still progressing but there are still big issues and small yet significant concessions that bring into question how it will be implemented as early as spring 2013. As discussed in a Legal Futures article, problems with QOCS still exist, the government is “seeking further advice from the Civil Justice Council” with speculation that there may be some issues making the “qualifications work”. QOCS is an important aspect to get right as claimants are intended to be protected from defendants’ costs in most circumstances, even when they lose.

On the concessions side, Mesothelioma cases were excluded during the ‘ping pong’ stage between the Houses until an impact review has been undertaken. The latest exemption from the April 2013 date brings us to the insolvency cases.

As reported in Law Society Gazette, Justice Minister Jonathan Djanogly made a written statement to the House of Commons, “Insolvency cases bring substantial revenue to the taxpayer, as well as other creditors, and encourage good business practice which can be seen as an important part of the growth agenda with wider benefits for the economy. These features merit a delayed implementation to allow time for those involved to adjust and implement such alternative arrangements as they consider will allow these cases to continue to be pursued.”

The Law Society Chief has welcomed the latest decision asking that “this logic applied to other types of cases, where a similar implementation delay, until 2015, would help to avoid unwelcome impacts on ordinary people’s right to secure legal redress.”

The LASPO rollercoaster continues, be sure to check back soon for more news!

ARAG shortlisted at the 2011 Personal Injury Awards

ARAG is pleased to announce that we have been shortlisted at this year’s Personal Injury Awards in the ‘Insurance Provider of the Year’ category. Having previously won this award in 2009 we are keeping our fingers crossed for 24 November when the awards will be held at The Riverbank Park Plaza in London.

ARAG’s existing After-the-Event (ATE) product is known for offering flexibility and quality to ensure that customers’ needs are met and hopefully exceeded. In addition to this, ARAG also look for and implement innovative ideas and in 2011 we created and launched a new product – Recourse Options.

Our original product Recourse provides a standard limit of indemnity covering third party costs and disbursements, whereas Recourse Options is tailored to the specific indemnity required to cover third party costs, disbursements and own sides costs in non-injury cases. Some of the key features include:

• Limits of indemnity to meet the specific risk


• Cover by an A-rated insurer


• Contingent premium – the premium is deferred until conclusion and only payable upon a successful conclusion


• Top-up cover to a Before-the-Event policy


• Cover for cases conducted under a partial or full CFA


• Premium shortfall cover


• Bespoke staged premiums

These are backed by a passionate team and a bespoke approach which allows them to be set up as scheme arrangements or one-off cases.

There is also an easy-to-use online policy application and administration system designed to make life easier for our solicitor partners. This is currently in the process of being developed to enable solicitors to update cases from their own system rather than having to log in to gATEway as well as increasing its scope to offer post-issue schedules for RTA cases.

If you would like more information on ARAG’s ATE products please visit: http://www.arag.co.uk/index.asp?m=93&s=159&t=After%2Dthe%2DEvent+Legal+Insurance

The importance of Before-the-Event Legal Expenses Insurance

The publication of the In Case of Emergency Report by Consumer Focus caused a few ripples in the ARAG office when it was released last month, due primarily to its negative and often inaccurate account of Before-the-Event Legal Expenses Insurance (BTE LEI). Now, a couple of weeks later, we have had time to read through it and digest the findings only to discover that our initial concerns were confirmed.

As you may know ARAG is fighting the proposed civil litigation reforms as we believe that removing the recoverability of After-the-Event (ATE) insurance premiums will significantly reduce access to justice. The Consumer Focus Report also mentions the reforms but points to BTE LEI as a contender to fill the gap left behind. Yet, the Report itself is likely to cause more damage to access to justice by focusing on the negative aspects of their findings into the BTE LEI market and describing it as an “unnecessarily complex and shadowy market”.

These are the kind of statements that create the headlines, not the fact that 64% of respondents were able to give an explanation of BTE LEI (showing relatively high product knowledge) and 48% and 16% respectively were either satisfied or very satisfied.

Below are just a few examples where we have spotted some inaccuracies in the Report:

• Accepting that knowledge of any product or service is likely to be low amongst those that do not purchase it, the fact that overall 64% of respondents were able to give an explanation of LEI is testimony that it is well understood.


• Some favourable findings concerning BTE LEI policy information were excluded from the Report. The Report states that just 4% of respondents claim they received nothing when purchasing LEI. This along with an impressive response of 70% finding their policy information reasonably clear or very clear illustrates that considerable effort is made to treating customers fairly.


• It confirms that just 15% of respondents would not know what to do to make a claim. We would contest that this compares favourably to any other form of insurance product. Furthermore, excluded from the Research are details of those groups who have a greater than average 64% response on knowing what to do to claim.


• The Research comments that most people find the process of claiming straightforward, yet the Report fails to mention this preferring to highlight the fact that it is concerning that less than half of those surveyed (who had a successful claim) were satisfied with the process for making a claim.

ARAG is not afraid to accept criticism where it is due but the findings in this report seem to have been unnecessarily skewed in order to paint an unbalanced picture.

In principle we are not against such a Report and in fact commend the objectives set out. Some of the findings as they stand are very useful and will inform some of our decision making in the future, for instance improving product information and understanding. However, the Report as it stands does more damage than good.