What does a duly qualified medical practitioner (selected medical practitioner or ‘SMP’) bring to the table? Firstly it is peremptory that any final decision made under Police Injury Benefit Regulations 2006 is a medical decision. It is not a legal question or an occupational assessment – it is a medical question and therefore can only be answered by a medical doctor. ‘Suitably qualified’ has no specific definition under the regulations other than the implied possession of medical degree so a general practitioner or a surgeon could perform the task. However it is the praxis of police pension authorities to have interpreted the suitable qualification as being a member of the Faculty of Occupational Medicine.
This hugely narrows the pool of suitable potential SMPs. Forces are deliberately hiring a specific type of medical professional. Quite often the SMP belongs to an umbrella limited company that contracts the occupational health doctors back to several forces in a consortium pact. This insular arrangement is amplified by use of the NAMF’s white list of approved providers. An otherwise excellent medical practitioner is barred from working as a SMP if not a member of this closed club, further adding to the erosion of the independence of SMPs.
But what is the remit of a SMP? Firstly the SMP is bound by the ethics of the GMC guidance which determines how its members are allowed to act in such positions (Confidentiality_disclosing_info_2009.pdf.) The GMC guidelines dictate that any person the doctor has access to in such an event is still their ‘patient’ and it is irrelevant whether they are giving therapeutic treatment or not – as their patient, the well-being of the person is their first concern. In partnership with their medical duty, there is the legal duty of the SMP to abide by the statutory instrument enacted by the regulations. So the SMP assesses the disability and it’s effect on earning capacity together with factors such as rank and length of service. The SMP then makes the award which falls into four bands (Band one is the least). The bands are simplified into 4 to make it easier for a medical expert (not a HR manager) to decide a suitable degree of disability. When some SMPs use rounding to 2 decimal places in order to put an IOD retiree into a lower threshold (49.95%), they clearly haven’t taken the ‘decision in the round’. This was talked about in the post concerning the PAEM & Bad maths. As mentioned, although the SMP is employed by the Police Authority/Commissioner/Force, the function should be an independent one.
On the original decision (when the award is first given) the SMP may ask for full medical records as well as accompanying report from specialists. There is no given power that enables the SMP to demand things – indeed no legal powers are inferred on the role of the SMP – he/she can ask but accordingly there is no obligation to acquiesce. They are not coroners with common law or statute powers – the statutory role is to answer a question – the referred question; they are not empowered in anyway to act other than as a doctor. Of course, the SMP is entitled to make an informed judgement on the available evidence and non-cooperation does allow the SMP to infer something. The final decision is the SMP’s alone to make. The procedure should be an evidenced based approached. In injury cases in particular it is important that the SMP should satisfy him or herself that the evidence presented about the circumstances surrounding the injury and the disablement in question is not accepted uncritically from either party. It is for the SMP to test and weigh the evidence given in the light of the other evidence provided and in the light of his or her own medical knowledge and reasoning. In deciding whether a statement put to him or her as a matter of fact is to be accepted as such, after having duly tested and weighed it, the SMP should apply the balance of probabilities and not a higher evidential test.
Such questions the SMP considers are (but not exclusive of):
- The Regulations specify that whether the injury includes any injury or disease, whether of body or mind
- That disablement is deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement
- It is necessary to establish a direct causal link between the permanent disablement and service as a police officer:
- In cases where the permanent disablement through injury was the result of a single, significant incident the question will be a relatively simple one – was the injury received in the execution of duty
- An injury does not have to be received though a single, significant incident; where no single moment of injury can be identified. The question for the SMP is whether the permanent disablement through injury was caused by, or received in, the execution of duty as opposed to domestic or other circumstances not related to police duty – bearing in mind the following points:
- police duty should not be given a narrow meaning; it relates to all aspects of the officer’s work;
- the Court of Appeal has held that stress-related illness through exposure to police disciplinary proceedings does not count as an injury received in the execution of duty;
- police duty does not extend to a sporting activity for the police while not carried out on duty, unless where the injury was due to the officer being known to be a constable.
- There may be an issue as to whether there was a single injury or more than one injury which contributed to the disablement. This can affect the calculation of degree or disablement where a relevant injury was not received in the execution of duty. Where this is relevant the SMP’s findings as to whether there is one injury or more than injury should be clearly stated (apportionment).
If the decision is not accepted it can be challenged within 28 days and an appeal lodge with the Police Medical Appeals Board. This a panel of 3 medical specialists on a Home Office list. Before Laws V PMAB historically a PMAB panel rubber-stamped the decision of the SMP using the HO guidance 46/2004 – an example of Home Office officials keeping the bien pensant stance and ensuring the Home Office guidance is followed to the letter (despite the subsequent withdrawal due to the guidance being unlawful).
The role of the SMP in a review situation is the sole question of substantial alteration of the degree of disablement (earning capacity not physical disability) since the last final decision. Has the medical condition substantial improved or substantial deteriorated? Is there jobs available to the individual that were not available at the last final decision?
A review therefore should be a benign event. As circumstance dictate (and not routinely), the submission of medical records, partially disclosed of dates between the last decision and the date of the review. A quick face to face meeting IF and ONLY if there are points in the medical notes that need clarifying. If there is no evidence of change then the person should not even be put in front of a SMP. That’s it. Nothing more. If the SMP acts like a Gestapo officer, forensically examining medical history and interrogating the retiree for close to 2 hours during a review then it is obvious that there is an agenda. How will other IODs react when they get called? Defensively, no doubt. Where’s the motivation to engage in a demeaning and unlawful process.
There is no excuse for any review to last from May 2014 and still be continuing in mid-March 2015. That suggests that the police pension authority and the SMP are considering facts that are beyond their legal duty. Rather like Avon & Somerset’s current reviews…