In a Personal Injury claim, people concentrate (quite rightly) on the injury itself. Early treatment of the injury is essential as this will give an injured person the best chance of recovery. Should that treatment be provided by the NHS or Privately?
The primary objective of the personal injury claims process is to restore an injured person (as much as possible) to the position they were before the accident. It is not possible to remove the injury and resultant pain and consequences. The process can only seek to award compensation.
Compensation awarded to an injured person is split into two categories:
- General Damages
- Special Damages
General Damages refers to the compensation received for the injury itself and takes into account pain, suffering and loss of amenity.
Special Damages refers to compensation received for past and future financial losses incurred or to be incurred as a direct result of the accident and for no other reason. Medical treatment comes within the ambit of Special Damages. Should that treatment be provided by the NHS or obtained privately?
Provided the injury suffered has been as a result of someone’s fault, the claimant has a choice. If the claimant chooses to receive treatment privately, the expense of that treatment can be recovered as part of the personal injury claim even though the same treatment may be available free of charge or on the NHS. The law recognises that right.
Receiving treatment (including care) privately provides a claimant with certainty and choice:
- Reduced waiting times
- Freedom to choose when and where the treatment is to take place
- If surgery is required – freedom to choose which surgeon
- If therapy required – greater and quicker access.
Although a claimant is entitled to seek treatment on a private basis, the expense of such treatment still has to be reasonable if it is to be recovered. Using a broad brush approach if the treatment is recommended by a medical expert (e.g. physiotherapy) then it is likely to be considered reasonable. If it has not, then a court is unlikely to consider it to be reasonable and therefore unrecoverable.
Rehabilitation via the ‘Rehabilitation Code 2015’ is outside of this topic.
What about a claimant’s duty to mitigate their loss? Doesn’t this effect a claimant’s ability to choose? If the treatment is available and free on the NHS surely a claimant has a duty to mitigate their loss and use the NHS rather than incur the expense of receiving the treatment privately? NO! If treatment and its expense is reasonable, then a claimant can choose to receive the treatment privately over receiving it on the NHS.
It’s your choice.