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?