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The MedCo Expert Audit - Dr Mark Burgin

10/05/21. Dr Mark Burgin reflects on the audit process for DMEs who are going to accept instructions from unrepresented claimants (UC) and what can be learned.

MedCo says that it has been intending to audit experts for some years, finally with unrepresented claimants (UC) and the pandemic the process has started. Experts will require special skills for dealing with what are effectively litigants in person. Increasing use of virtual contacts means that visiting each of the experts in person has been deferred. The audit process comprises of two parts, the first is written evidence of compliance and the second is a virtual desktop audit review which takes about 3.5 hours.

The audits are carried out by independent MedCo auditors who assess 5 basic areas (rules) and give a percentage score out of 100%. Rule one is that the doctor should be a fit and proper person, rule 3 is compliance with GDPR. Rule 4 is training for dealing with UC, rule 5 is accessibility and rule 6 is information for the UC. Rule 2 – Audits and Accreditation was not scored. It is worth noting that the process is ‘evidence based’ so oral explanations appear to have much lower weight than written evidence. MedCo appears to be working out what documents are required as they go so it is likely that each round of audits will require more evidence.

Their approach has clearly been influenced by the difficulties that they had with MROs and they give clear advice as to the conduct expected. Audit Guide date 10 March 2021 states that the DME cannot ask the auditor for advice, the DME must demonstrate its compliance and any information after the audit will not be accepted. This sounds harsh but is designed to ensure the audit is independent and the auditor does not get drawn into helping experts. It may assist the auditors to explain what evidence is available but arguing will not help the expert’s case.

Preparation

Although the areas the auditor will consider are in the Audit guide the documents that are required are not set out in detail. The DME must therefore guess what evidence that they should provide or risk being failed. It is important to gather all the evidence that might be relevant, in general less than 30 items are likely to be insufficient. Some evidence will be easily available such as DBS checks, evidence of appraisal, insurance. ICO, GMC and venues audit. Some evidence will need to be written specially for the process such as job descriptions, data protection and complaints processes.

Preparation will become easier as MedCo responds to early audits. There are a number of issues that may be challenging such as having an ethical trading policy, having a training process and an information sheet. In future these requirements may be better resolved by centralised processes than by each DME writing their own. I do not recommend just ‘having a go’ as it is better to have prepared as fully as possible to get the most out of the process. Even if the ethical trading policy is too basic it is better to have tried so that the feedback is more useful.

Psychologically the best preparation is to approach the audit as a dry run and expect to fail. Avoid asking questions because the auditor is not allowed to help you. Do not argue because this can lead to penalties and the assumption that the expert does not have the relevant expertise to deal with conflict. Trying to game the system is unlikely to work and may lead to a closer inspection of the evidence provided looking for inconsistencies. The best approach is to make a to do list and when the audit interview ends relax because you have done all that you can do.

Virtual Desktop Audit Review

The meeting is based around 24 questions which the auditor asks and are answered orally and through provision of documents. They appear to have been written by MedCo and sometimes miss the point.

Question one – fit and proper person’s criteria is largely the same as the GMC’s and being registered is good evidence. Better evidence is if the doctor is licenced to practice as this means that they undergo regular appraisal. The 360-degree audit in the appraisal process and the annual GMC appraiser’s report would be good evidence. The FPPR process (self-declaration) is not appropriate and should not be used. References will give less information than the 360-degree audit and if required by MedCo should be requested by MedCo. REV11 forms are alternative feedback forms that are obtained annually and cover the same ground.

Question two – staff who interact with UC fit and proper? References may be unreasonable if the staff are longstanding employees. Evidence of lack of problems and compliments to the staff can be in a summary document.

Question three – DBS checks for anyone? DBS checks are likely to be necessary for staff who are dealing with claimants ‘key staff’. The advice is not clear yet whether DBS is required yet for all staff.

Question four – Accreditation training for UC? MedCo will not approve for UC until the expert has sat the training. Should include documents for all the MedCo training both initial training and the ongoing training as well as a separate certificate on the module for training for UC.

Question five – compliance with ICO, DPA and information security risks? Have you read ICO’s guide for data protection? Implemented GPDR, DP impact Privacy assessment? These are all on the ICO website and broken down into parts which you can work through. ICO checklist is an online test that can be downloaded as evidence of ICO compliance.

Question six – records of data processing? The expert needs to be the data controller and have the correct documentation. There is a need to retain data until the end of the claim, but experts are not told so there is a balance when to delete records? In practice retaining for 5 years will not catch all the cases but is a reasonable compromise.

Question seven – staff training on ICO? Evidence that training has occurred could be dates and logs, the teaching materials, the feedback from the staff or a signature on a document.

Question eight – timeliness? How quickly the expert responds to questions is monitored by the MROs and should be part of the portal process.

Question nine – external customer service accreditation? Having level 1, 2, 3 customer service training was not sufficient. It is not clear what evidence would be appropriate for this and whether that would be reasonable in a small medical legal practice. The evidence of using a problem-solving approach to help the UC would be better than formal training.

Question ten – walkthrough of work undertaken. This is a management technique where the system is analysed for possible problems. A reasonable approach would be description of the way that each issue would be dealt with in a document that can be referred to.

Question eleven – planned operating hours. Most DMEs prefer the contacts to be with their office manager during working hours but have systems that flexibly deal with out of hours requests. The risk of giving fixed hours is that they encourage contacts at inconvenient times or put people off contacting something that is urgent. Most DMEs do not advertise their out of hours availability as a reasonable professional balance between these issues.

Question twelve – sample scripts for staff to use? This sounds like a silly question for professionals who use their own judgement. The use of scripts would only make sense in a call centre situation where there is a high turnover of staff.

Question thirteen – have you got the right communication skills? For an expert whose career depends upon having the right communication skills this question does not appear to make much sense. Evidence of a recent clinical skills assessment might help if available but most experts will not have this. MROs are often run by individuals who do not have as extensive experience but DMEs are assessed as part of the 360 degree appraisal process.

Question fourteen –ownership of the business and expertise – have you anticipated needs? This question appears to be about management of the business. It is a fair question, DMEs are doctors not managers and may even be employed by a larger organisation. The best evidence of that the DME has the right expertise is their compliance with the MedCo audit process and the documentation.

Question fifteen – how do you approach the customer service functions? This appears to be a question better asked to MROs than DMEs but can be dealt with by 360 degree appraisal results based upon legal questionnaires and claimant’s feedback. Again the documentation taken as a whole can indicate whether customer service has been considered.

Question sixteen – channels of communication? The appointment letter will contain the postal address, telephone, email and a website but the UC will not have these unless they are provided on the portal. This is a catch 22 situation because it is the portal not the expert that is first contact. It is no use to the UC to say that there were many channels of communication if that information has not been provided.

Question seventeen – expert in soft tissue and non soft tissue? Only DMEs that are generalists are allowed to assess UCs so this question seems not to make sense. By definition generalists are able to deal with both physical and psychological injuries. A curriculum vitae would provide evidence of the breadth of the experts experience.

Question eighteen – explain the expert’s role? The appointment letter and the questionnaire are both helpful in both telling the UC what the questions will be asked and what is expected. A FAQs leaflet and a physical treatments leaflet (see my website) might be useful. As many claimants do not have the time to read these documents the expert may have to give the advice orally.

Question nineteen – complaints and dispute resolution? Having a document that deals with this is best approach.

Other questions appeared to dig deeper into the above questions (or perhaps I did not understand them). There were no questions that dealt with UCs asking for legal advice or making excessive contacts with the DME. These problems are common experience of those working with Litigants in Person but not those drafting the questions. The questions largely appeared to be a rehash of those asked to MROs rather than tailored to the DME. This may be due to a lack of diversity on the MedCo Audit Committee.

Post audit

The Initial Findings meeting is not arranged in every case and I suspect that it is mainly for cases where the expert was badly behaved. The audit report includes the numbers and the key findings but does not give detailed advice. The feedback in the audit report is a summary and is generally useful. It can however suggest that the expert should collect weak evidence such as the FPPR form or list the information available after the UC has contacted the DME. The MedCo Audit Committee decision may include specific steps to be taken to pass the audit.

There is a need for a list of required documentation and the MedCo Audit Committee will be working on this issue based on the feedback from the audits. This will allow experts to provide the required information in a timelier and less time consuming way. Although a total of 23 hours was spent on this MedCo audit only about 8 hours would be necessary when better documentation is available. This would reduce to about 4 hours for audits following a successful audit.

Overall the process was not unpleasant, the auditor was skilled and intelligent and the opinions were fair and independent. I will not know if I have passed until the MedCo Audit Committee have considered this audit and reached a decision. I will still need to pass the unrepresented claimant’s training module and the system will have to start on 01/05/2021 before I can take instructions. There is walk through video for UC on the website which is worth watching, few UC will be able to negotiate through the system without a representative.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted for audits on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

Fit and proper persons requirement (FPPR)https://www.nhsemployers.org/case-studies-and-resources/2020/11/model-declaration-forms-guidance-for-employers

ICO checklisthttps://ico.org.uk/for-organisations/data-protection-advice-for-small-organisations/checklists/data-protection-self-assessment/controllers-checklist/

ICO’s guide for data protectionhttps://ico.org.uk/for-organisations/data-protection-advice-for-small-organisations/

Physical Treatmentshttp://www.drmarkburgin.co.uk/Physical%20Treatments.pdf

Claims Portalhttps://www.claimsportal.org.uk/claimant-representative/introduction-to-the-process/introduction-to-the-process/

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