NAMF and the Finality of the SMP Report

“The purpose of the boards is to consider appeals from police officers or former police officers who are dissatisfied with a decision made by a medical practitioner, selected by the police authority, in relation to their qualifying for ill-health and injury benefits”

― Contract Between the Secretary of State for the Home Department and Health Management Ltd FOR THE PROVISION OF REGIONAL BOARDS OF MEDICAL REFEREES FOR POLICE MEDICAL APPEALS IN GREAT BRITAIN

When the question of the degree of disablement is passed to the Selected Medical Practitioner (SMP) the Regulations are quite clear that it is only the SMP  that is able to give a decision:

Reference of medical questions

H1(2) of the 1987 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations shall be binding for the purposes of these Regulations

[….]

The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to regulations 31 and 32, be final.

(7) A copy of any such report shall be supplied to the person who is the subject of that report.

There is no ambiguity that the question, once answered by the SMP as the medical authority, is anything other than final.

The judiciary agrees with this.

Haworth v PMAB

presumption of finality in respect of the decisions of the material medical authority

Pollard V PMAB

The decision of the SMP on the issues referred to him are final, subject to appeal or a review or reference back (see regulation 30(6))

Crudace V PMAB

The SMP is obliged to produce a report with reasons to explain the basis for his decision on both entitlement and on quantum. Under regulation 30(6) the decision is final subject to any appeal under regulation 31 or a reconsideration under regulation 32(2).

So why does the National Attendance Management Forum (NAMF) state in their non-statutory and misleading ‘guidance’ that the report made by SMP  as the medical authority is not final?  That they proclaim it is the Director of Human Resources as the delegated police pension authority (PPA) that is the ultimate adjudicator, and the SMP report is just an exercisable Pollice Verso – the thumbs down decree of death made by a Caesar upon a fallen gladiator.

Here is the offending paragraph from the NAMF ‘guidance’:

Section 3.6.5

The SMP’s role is to measure degree of disablement using admissible evidence.  On receipt of his decision it is for the PPA to decide whether any identified change in the degree of disablement represents a substantial alteration and if so they shall revise the IOD pension accordingly’

NAMF agrees that the SMP – as the medical authority – gives a decision.  But that is all it gets right.  Remember this is the decision that the Regulations clearly state has to be referred by the PPA to a suitably qualified medical practitioner.

NAMF now goes off into Alice’s Wonderland territory by continuing that a non-medical HR senior manager now determines the ‘determination’ of the degree of disablement by declaring whether he thinks its substantial (or not).

Reading the finality quotes from case law and from the Regulations, there isn’t any allowance or interpretation to permit the medical authority’s decision being over-ruled or quantified by the delegated PPA … quite the opposite.  The high court has determined that the SMP not only considers any alteration on a review but he alone determines whether it is substantial or not – not the Director of HR.

Simpson V PMAB

The only duty on a medical authority when conducting a Regulation 37(1) review is to decide whether, since the award or last review – whichever is the latest – there has been a change in the degree of disablement; whether, in the language of the regulation, there has been a substantial alteration.

One of the many troubling consequences of NAMF ‘guidance’ is that it fails to grasp that Regulation 37 is only a gateway into reviewing the degree of disablement via Regulation 30-2(d).  Their recalcitrant proclamation that a delegated PPA can basically override the medical authority not only has implications at review – it reflects by corrupting the root power that enables a  revision of the degree of disablement; in other words Regulation 30 itself.

NAMF has ignorantly misconstrued, and taken out of context, the wording of Regulation 37 by manipulating the sentence ‘[…]and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly’, and omitting that the consideration IS the referral to the medical authority under Regulation 30’s ‘Reference of Medical Questions’.  It does not permit a dictatorial decree, in the style of Alan Sugar, by the PPA himself.

Imagine this scenario that is perversely permitted under the NAMF ‘guidance’:

• The SMP answers the relevant questions from Regulation 30 that the appellant has an injury and is disabled from performing the ordinary duties of a member of the police force.
• The disablement is likely to permanent.
• That the condition is the result of of an injury the execution of duty
• and that the earning capacity has been affected at 40%.
• * Non-regulatory & unlawful. The PPA now decides that the degree of disablement shouldn’t be 40% – it should be 20%

Or on review:

• The medical authority determines there has been substantial change to the degree of disablement and revises the award from a band 2 to a band 3
• *Non-regulatory & unlawful.  The PPA now decides that the degree of disablement does not construe substantial change and orders the award to remain at a band 2.

Can you just imagine how a Director of HR would defend such an horrendous intervention at a PMAB panel or Judicial Review?

Let us emphasise our message to the nth degree that, despite NAMF’s ‘guidance’,  the PPA does not have the final decision regarding determination of the degree of disablement.  This blog  post started off with a quote from the contract between the Home Office and the company selected to administer police medical appeal boards.  The framework mentioned in paragraph 1.3 is that the PMAB considers appeals on the decisions made by the medical practitioner, selected by the pension authority.  Note the distinction between ‘decision made’ and ‘selected by’.

There has obviously been no mention ever, in any judicial review, of the delegated police pension authority having the ultimate decision.  An example being the following Judicial Review .

SOUTH WALES POLICE AUTHORITY (CLAIMANT) -v- THE MEDICAL REFEREE (DR DAVID ANTON) Dr Davies, as the Selected Medical Practitioner, answered the relevant questions from H1(2), in his certificate of 10th January 2002, that Mr Crocker was suffering from “psychotic illness”, and was disabled from performing the ordinary duties of a member of the police force. The disablement was likely to be permanent. He said that the matter should be considered in two years’ time. He said that the condition was the result of an injury received in the execution of duty and that the earning capacity had been affected at 40 per cent.

Of course not, because it is not permitted.  The decision of the medical authority, whether incorrect or not, is final and binding to the PPA.  It can only be appealed by the former officer or taken to Judicial Review by the PPA.

Blindly following NAMF ‘guidance’ is no better than saying we’re ‘just following orders’ and is not a justification for morally questionable actions that a Force  invoke when questioned about the rightness or necessity of such actions.  Just saying ‘we are following NAMF guidance’ does not absolve the HR managers from using their own brains and reading the Regulations and understanding the case law.

Just following orders didn’t work for the Nazis in Nuremberg.