Month: March 2016

Access to Medical Records

iodpa caselaw, medical records, police injury award, Regulation 37, Review, selected medical practitioner
Access to Medical Records

One of the most sacred principles of law is, that a written instrument must be construed upon the face of it, and that no parol evidence can be used for the purpose of inserting any words not therein contained.

– Sir R. Malins, V.-C, Inre Sayer’s Trusts (1868), L. R. 6 Eq. Ca. 321.

Let’s get one thing straight here, before we begin. For the benefit of any HR managers who do us the honour of reading our well-meant attempts to help steer them along lawful paths, and for the benefit of one Nicholas Wirz who appears to be attempting the opposite:

The Regulations are law, and it is not up to anyone to try to place upon them a meaning which is not there.  OK, that said, let’s get back onto the main topic.

There is a lot of sensitive personal detail in everyone’s medical records. For example there will be references to third parties such as family members, or notes about relationship problems or the termination of a pregnancy. The sort of information which is meant to be seen only by one’s own doctor. It is confidential.

Disabled former officers may not appreciate the implications if they agree to the release of their full medical records to an Occupational Health Department or to a SMP.  People do not tell things to a GP in confidence only for every little bit of information they give to end up being read by employees of a police force. Some doctors argue that if patients feel their entire records are routinely viewed by outsiders patients may decide not to reveal certain conditions to their GP.

We have a right to expect medical confidentiality so why should anyone be conned, coerced, bullied, or baffled into signing away that right?  But this is what happens to disabled former officers who mistakenly give in to vapid threats and sign away their rights, consenting to full disclosure of all medical records since birth.

Not even the Department of Work and Pensions has the power to routinely demand full medical records.  The DWP can only request reports as stated in this link DWP Medical (factual) Reports.

DWP and their assessment providers only request a report where it is needed and not in every case. The medical report you provide will then be considered when producing an assessment report.

NHS GPs are under a statutory obligation to provide certain information to a healthcare professional working on behalf of the DWP, in respect of patients that they have issued or refused to issue a statement, including a requirement to complete IB113/ESA113 reports.  This is implicitly defined in a parliamentary instrument, also known as secondary legislation, namely The Employment and Support Allowance Regulations 2013.  This Regulation refers to evidence provided in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement).

There is no legislation that permits the same disclosure to a police pension authority.  An injury award is not a benefit that has to be reapplied for – it is an entitlement for life and is in effect compensation for work-related injuries.

But despite this, every time a force attempts to review an injury on duty award, without fail they will send out a consent form demanding access to all your medical history.

We believe that, in some forces, this is no more than a ploy to replace records which have been lost or destroyed.

We also believe that any demand for access to medical records so as to process a review of degree of disablement is unenforceable.

We know of instances where former officers have made a request under the terms of the Data Protection Act for copies of all information relating to them held by their former force. They have been told, shockingly, that their occupational health file and other medical records have been destroyed, in line with the force’s retention policy.

‘Destroyed’ is, we suspect with good reason, to be a euphemism for ‘lost’.  All psychiatric/ surgical/ general-medicine consultant reports and other documents of some individuals have been lost by the force since their retirement.  When they joined, full medical records were made available to the force medical officer and if they have since lost them, why would anyone trust them to be responsible with them a second time?  Once bitten, twice shy.

More than this, why do they insist they have a right to any medical records?

You may be surprised to hear that there is nothing that permits them to have any; not partial, not full. None. Zero. Zip. Zilch. Nada.

Long ago and before the all-out corruption of the Regulations practiced by certain forces there was a time when, if a force medical officer had questions about a significant change in an IOD pensioner’s medical condition, they would order a bespoke report from individual’s own GP or specialist.

But Nicholas Wirz, Principal Solicitor of Northumbria Police wishes to change all this.  Amazingly, he thinks GPs are biased and advises SMPs to ignore the opinion of the pensioner’s own doctor.

This is an excerpt from Wirz’s January 2014 SMP training indoctrination course:

This can often be the case with reports produced by a treating physician in support of their patient. The patient may have a very strong desire to achieve a particular outcome (eg medical retirement; an injury award – or larger award; being found not permanently disabled if young in service etc). Applying the facts to the correct legal test may not support a conclusion supportive of the officer/pensioner. This places the treating physician in an invidious position.

Explicitly reaching a conclusion their patient does not desire risks destroying that particular doctor/patient relationship. A common occurrence is for the treating physician to “fudge” the issue. SMPs need to be alert to this and be able to argue why a particular report has not been accepted. Usually this will require an analysis of the correct test and where the report fails to appreciate this.

Wirz proclaims in his guidance to SMPs that all doctors will only tell their patients things that they want to hear, and that physicians commonly fudge the issue.  In other words, his view is that only the SMPs he ‘trains’ are the sole beacon of righteousness in a world full of misguided and fudge-prone doctors.

Hang on a moment. Back up a little and think about this goose and gander situation. What is sauce for one is sauce for the other. If it is OK for Wirz to say that all GPs and specialists can’t be trusted to be unbiased and impartial when writing a formal report on their patient’s condition, then surely it is OK for us to similarly point at all SMPs and say they can’t be trusted to be free of bias and partiality.

Who would you trust most to be truthful and impartial? Your hard working GP, trusted by parliament to issue medical reports to the DWP, embedded in the local community, with years of accumulated trust and confidence stored in their account, or a hired hand, a doctor who comes via his own private limited company with a contract through another private limited company to supply ‘medical services’ to a police force?

This post from February 2015 displays clearly how SMPs inplementing Wirz’s doctrine collude together to persuade themselves that GPs are not to be trusted and that any failure to disclose full medical records is an attempt to conceal from them facts that they can unlawfully use to reapportion or revisit causation – page 2 of the pdf is truly shocking: When SMPs Attack

Wirz continues with his claim that the SMP must demand full access to medical records, despite the fact (conceded in his own words) that the Regulations do not speak of medical records – only medical examination. It seems that in his delusional world a medical examination does not count if the SMP is not able to have prior sight of whatever medical records he demands.

So, if you are unfortunate enough to be knocked down by a number nine bus, does the doctor who arrives by helicopter to treat you at the scene first demand that your full medical records are made available? Why should a SMP need to see that you had measles when you were eight years old, or indeed any medical record which pre-dates the time of the last final decision on degree of disablement? In either scenario, a traffic accident or a review, what the doctor sees before them is what the doctor gets. Sure, they can ask for information, and the individual can chose whether to give it, but there is no way that any doctor can demand information.

Come off it Wirz. A SMP has no need of a full medical history to determine whether there has been any alteration in degree of disablement. If he needs an expert opinion, then he has only to ask the individual’s own GP or specialist for a report.

Wirz offers these words of wisdom to SMPs:

An officer/pensioner who elects not to take a step the SMP considers necessary risks the process being concluded by management: on the grounds that the election amounts to a failure:

“..to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision.”

Where the PPA reaches this conclusion it,:

“.may make its determination on such evidence and medical advice as they in their discretion think necessary.”

Even though the Regulations refer to medical examination and interviews, the provisions have no meaning unless included in those terms are the necessary preparatory steps before those events can take place. A medical examination would be largely meaningless without, eg, prior sight of the relevant medical records. If the SMP considers a step “necessary” then the SMP should direct the officer/pensioner to take it.

This orthodoxy from the book of Wirz is fed SMPs, who foolishly emboldened with the utter tripe that is Wirz’s speciality dish of every day, are now routinely demanding full medical notes from birth.

The trouble for Wirz is that there is in fact no onus on the pensioner to prove that their medical condition has or has not changed.  The last final decision is a given and is the starting point from which the SMP must make the assessment. When a police pension authority tasks a SMP to determine whether there has been any alteration in degree of disablement, the burden of proof rests solely on the police pension authority, via the SMP.

The SMP can’t begin the task by assuming there is substantial change and then asking the pensioner to prove, by submitting medical records, why there hasn’t been. That would be coming at the task from the wrong direction. It would be illogical.

Wirz has taken the words contained in the Police Injury benefit Regulations and has performed with them nothing less than reverse alchemy, turning gold into manure.

The literal rule of statutory interpretation should be the first rule applied by anyone referring to the Regulations. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without seeking to put a gloss on the words or seek to make sense of the statute.

The Regulations state that the pensioner can face only a medical examination. They contain nothing about SMPs trawling through medical records. It is wrong for Wirz to try to insinuate that the provision has no meaning unless full medical records are released.

Medical records are no small thing.  They are intrinsically confidential and a SMP has the same obligations under their regulator (the GMC) and by statute to act impartially and ethically as do the treating clinicians that so often are (according to Wirz) so eager to ‘fudge’ their reports.

The Regulations do not prescribe exactly how a police pension authority or a duly qualified medical practitioner acting on behalf of a police pension authority should set about any consideration but, using the literal rule, if the Regulations required the submission of ANY medical records it would explicitly state as such.   Of course, there is no such mention.

Moreover, any actions taken by a police pension authority or anyone acting on its behalf must comply with the Data Protection Act, the Human Rights Act and all relevant parts of administrative law.  This includes Data Protection Act 1998 – Schedule 1, Part 1, Principle 5. Wherein it is stated that,

‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes’. 

We may well ask then, why do forces think they can hold on to sensitive personal information, including medical records, which has been processed at some point for some purpose, and has then remained unused for years?

And what is the situation should an individual refuse to accede to a demand that access is given to medical records held by their GP?

The Regulations say this:

Refusal to be medically examined

33.If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then—

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

 (b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.

From this Regulation it is clear that a police pension authority, after a suitable interval and after consideration of the possibility of alteration to the medical condition, has the right to request an individual to subject himself to a medical examination or interview, but has no power to command it.

Note well  – there is no penalty for wilful or negligent non-cooperation. If the police pension authority decides to continue in the face of willfull or negligent non-cooperation then it is permitted to make a decision on such evidence as is available.

Any such decision would need to be rational – that is based on facts, and not punitive. There is no power for a police pension authority to reduce or suspend any injury pension in such circumstances. Such action would be unlawful.

There is nothing that expressively permits a police pension authority or SMP the right to demand that an individual agrees to allowing access to any medical records.

Since the appeal case of Belinda Laws in 2010, those subjected to a review have generally allowed the release of partial notes since the last decision.  Despite pressure from their HR department  those in the know have refused consent for the SMP to access full medical records and only agree to release of those from the time of the last review.

But if you consider that the Regulations do not refer to any medical records at all, then arguably no medical records need be disclosed at all.

This is not wilful, nor is it negligent. Rather, this is a considered and advised decision based on compelling legal knowledge that the Regulations do not permit the SMP to have sight of such records.

It may not be ideal, but that’s the law. We don’t advocate non-cooperation as a tactic, but we do suggest that disabled former officers should be very selective about what medical information, or any other personal information, they chose to divulge to the police pension authority or the SMP. Just because someone asks you for information does not mean they are entitled to it, or that you are obliged to give it.

As former Police Officers there were many times we would have liked to have had access to additional personal information on individuals but the law prohibited it.  This was to protect miscarriages of justice and to protect an individual’s rights to privacy.

When in doubt about why any information is requested, or what use will be made of it, the question to ask the SMP is for them to quote the Act and Section of any legislation which they think grants them permission to obtain sensitive personal information.

It is clear that Wirz, just like Grima ‘Wormtongue’ in the Lord of the Rings, uses words formed as his twisted corruption of the Regulations to manipulate people to nefarious ends. Fooling people by using devious and unscrupulous tactics to obtain irrelevant information is unethical and immoral, and it is certainly harmful to health.

The current Regulations do not serve the purposes suggested by Wirz and can only be interpreted literally and thus it would appear that individuals such as the SMPs who follow the book of Wirz are willing to operate outside the law to achieve their goals.

Unless you want to be reviewed or are currently applying for an award in the first instance you have the option to say no – tell them consent to any medical records is refused and revoked.  Even if you are applying for an award or need to evidence substantial worsening of your medical condition at a review and wish to clearly evidence your index injury, think very, very carefully about disclosing information prior to your injury occurring. Any disclosure has to be relevant to the matter in hand.  A recent, pertinent expert specialist clinical report carries more weight than you suffering from measles at 3 years of age.

No doubt there could be a backlash from the more idiotic of the pension authorities.  You may receive threatening letters from SMPs, Directors of HR and staff officers or even the Chief Constable demanding that you do what they say.  ‘Who are you go argue with us?’,you’ll hear them shout.  But remember these people have never taken the time to read and understand the Regulations and the case-law built around them.

If you are in any doubt then ask the police pension authority the question:

As nothing can be more mischievous than the attempt to wrest words from their proper and legal meaning, will you please explain to me how can a medical examination be interpreted as giving you, yet again, authority to demand access to full or partial medical notes?

 

Treatment of officers with Mental Health issues

iodpa police injury award, Uncategorized
Treatment of officers with Mental Health issues

Please read this new post from the unconnected ‘Good Cop Down‘ blog.

Treatment of officers with Mental Health issues

by julian180748

Since starting this blog, I am still concerned at the lip service paid by police forces regarding the treatment of officers with mental health issues. I have been supporting police officers as a me…

Source: Treatment of officers with Mental Health issues

Bogeymen

iodpa NAMF, National Attendance Management Forum, police injury award, selected medical practitioner, smp
Bogeymen

“If there is anything more annoying in the world than having people talk about you, it is certainly having no one talk about you.”
― Oscar Wilde

A bogeyman (also spelled bogieman, boogeyman, or boogie man) is a monstrous imaginary figure. But it seems that some HR Departments believe he is real and even now stalks the land in human form.

The bogeyman of legend and fairy tale has no specific appearance. Children are told stories of shadowy shapes that flit into the corner of one’s eye and then disappear. The bogeyman might live under the bed, or in the wardrobe, or might be lurking in the dark overgrown bushes at the bottom of the garden. No matter where he hides, he is out to get you, so beware. Hurry home, children, dive into bed and pull up the covers so he can’t seize you by the toes and drag you off to his lair.

HR managers give the bogeyman more corporeal form and substance. They seem to think that the bogeyman appears in the borrowed shape of disabled former police officers. A guise quite at odds with the spirit of the legends and, as a modern take on a traditional myth, is really very inventive and clearly the product of a disturbed mind.

The etymology of the word “bogeyman” is uncertain, as is when it first appeared in the English language. Some sources date it to the 16th century, while others to around 1836, as a term for the Devil.

The Devil is now, according to the rumour mill being circulated by some police forces, stalking and abusing, not children, but stoical adult medical practitioners who work for police forces.  By these accounts one force in particular is telling people, ‘that a doctor has been subject to stalking and that threats have been made against FMAs [Force Medical Advisors] by a campaign group’.

We at IODPA are extremely shocked and concerned at this revelation.  Apparently there is a militant and anarchist campaign group out there that is actively seeking out and physically targeting force medical advisors (selected medical practitioners were not mentioned).   The force spreading this malicious and unsubstantiated gossip mentions FMAs, plural – as in more than one single incidence.  The source of this fairy tale we suspect to emanate from the National Attendance Management Forum, which is where HR managers and others gather together, safety in numbers, to exchange gossip and misinformation.

The unsubstantiated Chinese whispers we have heard are that the stalking typically involves a sped-up chase scene involving a crew of scantily-clad injured persons hobbling with their canes and struggling with their mental illness, with a doctor being the one chased, due to silly predicaments that he himself caused.  A take-off on the stereotypical Keystone Kops chase scenes.

In all seriousness, we are in IODPA a cooperative made up solely of responsible, adult, medically retired police officers, who were all injured in the execution of their duty.  It is generally known that it takes a high standard of character to be recruited into the police and that police work can be dangerous. Our members were all injured through no fault of their own and are now disabled members of the public with a strong core of moral code.  We have been subjected to unlawful behaviour by police pension authorities but we will never reciprocate like with like. Injustice cannot be overcome with injustice.

The injuries of our members range from physical to psychological.  Quite often the physical injuries have psychological repercussions.  The psychological injuries are often extremely severe.

Perhaps IODPA is being too precious, but we hope that the Devil that these forces believe is stalking doctors is not meant to be a reference to us.

We therefore challenge any FMA, SMP or HR person to produce concrete proof of these allegations. If any person has been stalked, tell us who, when and where. If there was evidence of harassment, abuse and threats then any competent and  independent person would expect there to be a criminal investigation and a prosecution.  It speaks volumes that there has been no such thing.  All police forces should be above the childish playground behaviour of spreading rumours.

In the meantime, we will take these bogeyman tales as no more than a foul ploy to divert attention away from the very real, and evidenced accounts of harassment and, yes, stalking, of disabled former police officers by police forces.

The fact is, members of our association have been stalked.  There are instances where people with IOD awards have been put unlawfully under surveillance. We can never forget the case of the West Midlands consultant psychiatrist, Dr Nicholas Cooling, who personally hired a team of private detectives to stake out and video an injured police officer.  The GMC suspended him over that little lapse of ethics.

Another tale of harassment concerns a former South Wales officer whose police career ended after he was severely traumatised following the 2002 clash between Cardiff City and Leeds United fans, and who won a victory in 2009 against South Wales Police, which had kept him under surveillance for months.  The Police Medical Appeal Board (PMAB) was highly critical of South Wales Police, which had claimed he was not entitled to an injury award. The Appeal Board adjudication said video evidence of him was irrelevant. Material disclosed subsequently showed that 11 officers from South Wales Police and the neighbouring Dyfed-Powys force were used to spy on him for months in an operation estimated to have cost more than £100,000.

There have been too may instances to list here where a person with an IOD award has been abused and harassed over a course of years not just by a SMP but also by the bullying machinations of a zealous and uncaring HR department.

We will mention one incident, which concerns a very ill retired former officer who was summoned to be reviewed. Two friends drove him to the appointment at the force’s occupational health offices, and waited for him in the car-park.  When the review was under way a uniformed police officer with their epaulettes removed came out of the building and blatantly took photographs of the waiting vehicle and the occupants.   Here was no RIPA authority, nothing that allowed this intrusion into civil liberty.  Not prepared to be taken at a disadvantage, the occupants themselves took a picture or two of the uniformed officer taking pictures.  Then a doctor came out of the building, walked up to the car and spoke to those within saying, ‘Do you want a close up?’

We know of another incident where a person with complex psychological issues was forced to undergo a review just because he was a band four.  Despite his condition down-turning and his clinicians warning the force and evidencing his severe deterioration during the months of delay cause by the police pension authority, the force in question kept up their sanctimonious fishing trip.  This sorry episode was reported in this blog post.

Driven to the realms beyond madness he told his crisis clinician during a mental health crisis team counselling session that he wanted to kill those who he saw were harming him.  This clinician took the threats seriously and was duty bound to escalate his concerns to the relevant authorities.  There are always two sides to every story.

The shameful outcome of this shameful event is the force ‘deferred‘ the review (a made up thing that does not exist in the Regulations), saying the former officer is too ill and that he should be reviewed again in 3 months, ‘when he is better’.

A review isn’t a benign thing.  It damages people.  And if they are damaged already they become more and more unstable.  IODPA does not condone unlawful behaviour.  That said, we can understand why someone with complex PTSD isn’t always in control of their own responses.

When a force proclaims that a campaign group is physically threatening Doctors, and it uses this as an excuse to withhold information, it tarnishes everyone.  This circus show encourages guilt by association, and seeks to demonise all disabled former officers. We say, you hypocrites, first take the plank out of your own eye, and then you will see clearly there is no speck in our brother’s eye.

IODPA only asks for fairness, respect and the fundamental and lawful following of the Regulations.

Those injured former officers who contribute to this association are all law abiding citizens.

If only those that administer the police injury award scheme were as conscientious as we are.

 

Duress by Denying Appeal

iodpa caselaw, pmab, police injury award, Regulation 33, Regulation 37, Review
Duress by Denying Appeal

As long as we can get redress in the courts, as long as the laws shall be honestly administered, as long as honesty and intelligence sit upon the bench, as long as intelligence sits in the chairs of jurors, this country will stand, the law will be enforced, and the law will be respected. -Robert Green Ingersoll

Police Medical Appeal Boards (PMABs), for all their faults, have an important function in the administration of police injury awards.

Quite often SMPs come to an erroneous decision and make glaring errors in their final report.  You only need to look at the legion of Pension Ombudsman determinations and high court judgements. There are many possible reasons why SMPs make errors. Commonly, they fail to assess the medical evidence properly, and may be misled by irrelevant, prejudicial or fabricated evidence fed to him by a HR minion.  The SMP may be following Home Office or  NAMF guidance which has no lawful authority, and in doing so contravenes the Regulations and the case-law that exists to dictate the narrow remit of his lawful duty.

PMABs provide a forum in which retired officers may have these concerns addressed. They serve an important institutional function. They should provide legitimacy to the system as a whole by maintaining consistency in decisions and their function is to prevent miscarriages of the Regulations.

Nevertheless, Police pension authorities seem eager to neglect their duty to act fairly.  They are knowingly interfering in the access to PMABs by declaring fictional restrictions, and to achieve this they will resort to nefarious threats that are well outside the sanction of natural justice in order to scare people away from their important right to appeal.

Just look at Nicholas Wirz, Principal Solicitor to Northumbria Police:

Crudace. Paragraph 49

On 2nd July 2009 the Police Authority solicitor, Mr Nicholas Wirz, sent Mr Crudace a letter which in effect threatened the Claimant with a £6,200 adverse costs award if he persisted with his appeal …

…45 of the 70 former officers who were the subject of decisions on 20th February 2009 lodged notices of appeal. Mr Wirz sent a letter in similar terms to each of them. The letter has been the subject of criticism by Mr Lock QC and was also the subject of a complaint to Mr Wirz’s professional body

Recently IODPA has seen more examples of threats such as above.  A former officer has recently been told by a Northern force that the SMP requires, ‘full medical records to understand the baseline from which he has to assess whether there has been any significant change’.   Failure to do as demanded is threatened with the punitive reduction to a level of 0% degree of disablement.  Kafkaesque in it sinisterness, the author of this letter then proves his point by attaching a copy of the new ‘financial statement’ based on a 0% degree of disablement/Band 1 award. This is not far removed from the Medieval practice of showing the instruments of torture to the prisoner.

Forget lawful process; forget evidence of substantial change and the other requirements of the Regulations, this is simply: ‘Do as we say, or else’

In the spirit of the times, the threats are becoming more and more forceful.

Regularly appearing now is the threat that if, at a review, full medical records are not disclosed then not only will the police pension authority automatically reduce the pensioner to 0% without lawful authority, they also proclaim, astoundingly, that there is no avenue to appeal at PMAB.

This quote can be found in the new consent form sent out by Avon & Somerset.  Forget Kafkaesque; we need a new expression of surreal distortion and sense of impending danger – the Avon and Somerset threat is Wirzesque in it’s intimidating menace.

The former officer has to under-sign this statement:

I understand that at any time in the Procedure I may elect to withdraw my consent to attend a medical consultation or for medical information about me to be disclosed. […] I understand that in these circumstances the Pension Authority may decide the issue of Permanent Disability and that I will not enjoy a right of appeal to a Medical Appeal Board

The HR minion who sent this letter is referring to the refusal of consent of full medical records. There is no space in the form to specify a date range therefore they are asking for full medical records, from birth, or nothing.  Then they threaten to reconsider the issue of Permanent Disability  and continue to say the entitlement of a PMAB is forfeit.

There is no explicit mention of it, but the HR minion is of course referring to Regulation 33 (refusal to be medically examined).  What the minion fails to acknowledge is that consent to the pension authority is different and distinctly separate to the consent to a PMAB.  Also the minion neglects to inform the would-be signer that Regulation 33 is concerned with ‘wilful or negligent’ refusal to be medically examined.

It is true to say if consent to a medical examination and access to relevant medical records required by a PMAB (when the appeal process has commenced) is not granted then the appeal is withdrawn – but this is an entirely different matter to the disclosing of full medical records from birth to the pension authority.

Let us examine this further.  What if the person reviewed has good reason not to disclose full medical records to the pension authority? – this is neither wilful nor negligent failure.  In this theoretical example, just say the pension authority punishes the disabled former officer by unlawfully totally removing the injury award by declaring that there is no permanent disability.

Regulation 33 does not speak of punitive measures.  It also does not allow a gateway into anything other than Regulation 30-2(d), the degree of disablement – the sole question allowed in a Regulation 37 review.  There is no power for Regulation 33 to reconsider Regulation 30-2(b), in other words the permanency of disablement.

There is also no power for the pension authority to block access to a PMAB.  If the medical consent is subsequently granted to the PMAB then the appeal board will hear it.  Remember, the appellant may have a valid reason to deny full medical records to the pension authority but may be extremely willing to allow the PMAB panel to see the same.

The pension authority has no jurisdiction to block access to a legal appeal process.

Plain and simple it is a dirty threat that the pension authority has no power to enforce.  A rather sick bluff used against vulnerable individuals.

Just like the Home Office circular 46/2004 proclaiming that people over 65 have no earning capacity, the issue of consent to full medical records and threats to invoke punitive reductions of injury awards is hollow and unlawful and will be demolished by means of Judicial Review.

Deliberately scaring disabled former officers by exposing them to unlawful threats and frightening them into compliance is now firmly embedded into the PPAs’ toolkit to undermine the Police Injury Benefit Regulations.

It is just heartbreaking that police pension authorities are on such a self-destructive path.

 

 

Neither too little, nor too much

iodpa police injury award, Regulation 37, Review, Review
Neither too little, nor too much

Hold it. You know what I’d like to see? I’d like to see the three bears eat the three little pigs, and then the bears join up with the big bad wolf and eat Goldilocks and Little Red Riding Hood all who attend NAMF!

Tell me a story like that, OK? ― Bill Watterson, The Complete Calvin and Hobbes (misquoted)

A question … what does ‘neither too little, nor too much’ actually mean?

The term derives from the fairytale about a little girl named Goldilocks and her encounter with three bears. The nightmarish  modern versions recount a Director of HR who, every 2 years, breaks and enters a home and keeps sampling the possessions of the medically retired mother bear with an injury award, the father and the child, choosing, for example, an injury award which is not too low, not too high, but just right.

The term has now been adopted into a phenomenon often referred to as the Goldilocks principle and the Goldilocks effect.  Often Directors of HR put the term into their garbled ‘guidance’ when they write to the poor mother mentioned above.

Julian Kern, one such Director of Resources (and Chief Finance Officer!), keeps using it in his letters and his minions keep typing it out in their ‘guidance’.

The purpose of a review is to ensure that the pensioner is receiving the correct injury pension, neither too little nor too much

Another question … what has the Goldilocks principle got to do with reviews of injury awards?

Answer … absolutely nothing.

A review can only look to see if there has been any substantial alteration…has the degree of disablement caused by the IOD injury substantially worsened or substantially improved since the previous review or retirement, whatever was last. If there is substantial change, your pension will be altered accordingly. Up or down.

  • If the award was too little and there has been no change, then it stays the same.
  • If the award was just right and there has been no change, then it stays the same.
  • If the award was too much and there has been no change, then it stays the same.

Or in words our Director of HR might understand; if mummy bear’s porridge was too hot before and it is still too hot now, you can’t add cold milk to make it ‘just right’.  If daddy bear’s porridge was too cold before and it is still too cold now, you can’t heat it in the microwave to make it ‘just right’.

Laws Appeal, paragraph 19

It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion

The level of the award is a given. It is decided once, when the award is originally granted, and there is no legal way for a police pension authority to adjust an award up or down because it is seen by an ignorant functionary to be, ‘too little or too much’. Quite the opposite – the result of all reviews is to provide a high level of certainty in the assessment of police injury pensions and not to waver as the wind blows.

What can’t be done in a review is any calculation to determine the current degree of disablement to enable the SMP,  or more often than not a HR minion, to compare this figure with that of the last decision.

Simpson, Paragraph 28

…the SMP and the PMAB cannot conduct a fresh review of the uninjured earning capacity and the actual earning capacity of the former officer and then, comparing the outcome of that assessment with the previously determined degree of disablement, conclude that there has been an alteration in the former officer’s degree of disablement

Simpson, Paragraph 31

The Court of Appeal in Laws expressly approved the decision in Turner. Rejecting the submission made by Mr Pitt-Payne for the police authority to the effect that the starting point for the Board or the SMP is to consider the pensioner’s current degree of disablement and compare it with the previous assessment

So a calculation of any sort is unlawful.  If at a review the SMP pulls 3 jobs out of their rear end then they have contravened Simpson, Laws and the Regulations.

In both the Turner and Laws cases, it was accepted that the degree of a pensioner’s disablement could alter by virtue of his earning capacity improving either by some improvement in his medical condition or because a new job had become available, which the pensioner would be able to undertake, which was not available at the time of the last final decision.

Is it unlawful to use a review to perform any calculation to use as a comparison tool? Does Ursus Horribilis defecate in a deciduous forest biome?

So the Goldilocks principle is pure bear excrement. The only questions the SMP can answer are:

  •  Has there been any change in the disabling condition since the last review or decision? 

and

  • Are there now jobs available to which could be undertaken, but which had not previously been available?