Month: July 2016

My medical records, not yours

My medical records, not yours

“A good blog should be like a woman’s skirt; long enough to cover the subject and short enough to create interest.”
– A Facebook poster (knowingly misquoting Winston Churchill)

There are roughly 57,000,000 adults in the UK.  There are approximately 14,000 adults who are medically retired former police officers with injury awards.

There is no lawful authority to treat 0.000246% of the population any differently.  The Data Protection Act nor the GMC guidance do not have an exception saying their requirements don’t apply to those with an injury award.

Confidentiality and medical records

  • A doctor should gain a patient’s consent before disclosing information to a third party (and that includes a worker who is being examined only for a medical report)
  • The legal right to see a report in advance and withhold consent only applies to reports from a doctor who is treating them, but the GMC guidance makes it clear that this should apply to all medical reports
  • Before an employer asks an employee to go for a medical examination for any purpose they should notify the employee what the examination will entail and what the purpose is. The employee should be given the opportunity of challenging any such request if they feel it is unwarranted.
  • The doctor should confirm that the patient is aware of the implications of the examination and has consented. They should also advise them that they have the right to withdraw consent at any time.
  • There is no need for the full medical record, nor should information on any other conditions be disclosed unless directly relevant. If the employee is concerned over this they should raise it with the doctor and, if necessary, remind them of the GMC advice

The Law of Laws …

The Law of Laws …

“I am the law and you’d better believe it!” – Judge Dredd: 2000 AD prog 40.

We haven’t discussed for a while the landmark decision in the appeal of Metropolitan Police Authority (Appellant) – and – Belinda Laws (Respondent)- and – Police Medical Appeals (Additional Party).

A timely revisit of the basic principles has been provided to us by the Lake Jackson legal team involved in both the first judicial review and the appeal.

It’s important to remember that this opinion relates to the duty of the SMP, when the decision to revise the injury award has been passed to the medical authority – in other words the police pension authority has already considered, that there has been an alteration (“shall” so are referring the question of degree of disablement to the SMP: Regulation 30(2)(d)).

Police Authority v Laws is the leading authority on the correct application of injury award reviews under Regulation 37 of the 2006 Police (Injury Benefit) Regulations 2006. The leading judgement was given by Lord Justice Laws.

In the course of his judgement Laws LJ approved the decision of Burton J in MPA –v- Turner. 

The correct interpretation of Laws is that the Regulation 37 duty of the SMP (or logically the PMAB on appeal) is primarily a comparative exercise.

The SMP must consider the pensioner’s current degree of disablement [Regulation 30(2)(d)] at the date of grant or last review and then compare it with the pensioner’s current degree of disablement.

A revision of the pension, upwards or downwards, is only permissible where there has been a substantially alteration (paragraph 18 Metropolitan Police Authority v Laws 2010) in the degree of the pensioner’s disablement.

This may be occasioned by some substantial improvement or substantial deterioration in his/her medical condition or because of external factors such as the availability of a job or jobs which were not available previously but which are now available to the pensioner either because of the advances in medicine;  e.g. a very ergonomically friendly chair which allows those with chronic back complaints to sit and work at a desk for longer periods and/or changes in the employment market [‘The law degree point in Laws’] such as for example the greater availability of jobs in the private sector for officers with Counter-Terrorism training and experience. 

The right question for the SMP is not “what jobs can this person do today” because that would be a re-assessment of the degree of disablement and not a review.

Further the SMP is forbidden from calculating any quantification on the present degree of disablement unless the SMP has first concluded that there is a substantial alteration in the former officer’s degree of disablement even though HR used to instruct an SMP and often send them a list of suitable jobs before the examination had even taken place. 

‘Degree of disablement’ is defined under Regulation 7(5) as loss of earning capacity. Thus any earnings (or salary) in itself cannot be used to calculate a new degree of disablement and then be used to compare against the previous assessment to prove substantial alteration. 

This is consistent with the purpose of the statutory scheme as outlined by Cox J at first instance in Laws. The scheme recognises that police officers undertake an inherently dangerous job and the purpose of the scheme is to compensate officers for the loss of their careers and any loss of earning capacity going forward past compulsory retirement age and beyond.

Thus the earnings comparator is usually police pay whilst the ex officer is still within CRA. Afterwards the comparator becomes more subjective but the equation is usually the earning capacity of an injured officer as against that of an uninjured officer.

Another heresy is that an ex officer has no earning capacity at state retirement age. It is in any event inconsistent with state retirement being gradually increased to age of 70.

Institutional Oppression

Institutional Oppression

“I have recently been looking into the area of ‘injured on duty’ (IOD) police officer pension enhancements and found that a significant part of my budget is consumed every year on these payments which generate no benefit to the people of Avon & Somerset. ”
– Sue Mountstevens Avon & Somerset PCC 14th August 2013

Over the past week or so, the two recent blog posts have focused on how badly and vindictively those injured on duty are treated compared to other samples of the populace and similar schemes.  This post is the apogee of a trilogy.

Trilogy is such a suitable word as it originates from the Greek word trilogia, meaning a series of three related tragedies performed at Athens at the festival of Dionysus, the god of ritual madness (among other things).

It’s both tragic and madness that police pension authorities administer injury awards with such intermingling of corruption and disdain.

  • Why do some forces think it acceptable  to threaten to remove or suspend awards when such an action is patently unlawful? viz. Merseyside, Avon & Somerset, Northumbria, Cambridgeshire and Nottinghamshire et al.
  • Why do police pension authorities deliberately pervert, or fundamentally not understand, the Regulations? In every Judicial Review Mr David Lock, Q.C. destroys the barrister used by police forces (usually Mr Timothy Pitt-Payne, Q.C) and always proves that their assertions are wrong.
  • Why do police forces still think it is OK to reduce someones banding purely and unlawfully based on earnings and without any decision by a medical authority?  viz. Merseyside et al.
  • Why bully and bluster to unlawfully scare disabled former officers to disclose medical records from birth in order to unlawfully try to apportion a previous and final decision? viz. Merseyside, Avon & Somerset, Northumbria, Cambridgeshire and Nottinghamshire et al.
  • Why do they think it permissable for legal services to use their position to dissuade any appeal of an unlawful reduction with the threatened penalty of being liable to pay £6500 costs? viz. Merseyside, Northumbria et al.
  • Why should a retired former officer have to justify the final last decision of their lifetime injury award every two years AND then be subject to spending the next five years of their lives in a never-ending appeal process trying to correct the wrongs that should've never occurred? viz.  All police pension authorities with mass review programs
  • Why are those with IOD awards so despised to be treated in such a dehumanising way? viz.  Most police pension authorities
  • What drives the perverse jealously, that an injury award is something for nothing, that is directed against IODs? viz.  Most police pension authorities

Walk a day in my shoes:

 Not because I want you to feel what it means to be disabled but because I want you to understand how it feels to be excluded

All that is described above can be summed up by a single phrase:

Institutional Oppression.

 

“Institutional Oppression is the systematic mistreatment of people within a social identity group, supported and enforced by the society and its institutions, solely based on the person’s membership in the social identity group   … The barriers are only invisible to those “seemingly” unaffected by it.
The practice of institutionalised oppression is based on the belief in inherent superiority or inferiority. Institutionalised oppression is a matter of result regardless of intent”

Any oppressive system has at its core the idea that one group is somehow better than another, and in some measure has the right to control the other group.  The dominant group considers itself more resilient, harder working, stronger, more capable, more noble, more deserving, more advanced, superior, and so on.

It starts as soon as someone is on long-term sick leave.

As soon as a high-functioning police officer is injured and unable to perform their full-duties then that person becomes a victim of institutional oppression. The dominant group, the senior management team, sees that the injured officer now has the opposite qualities to them, ones now attributed to the lesser group – vulnerable, lazy, weak, incompetent, worthless, less deserving, abnormal, inferior, and so on.

It needs to be said that the institutional oppression described here is narrower, more esoteric and less obviously damaging to society as a whole to when a woman makes two thirds of what a man makes in the same job, or when black young men are disproportionately stopped and searched – this is institutionalised sexism and racism respectively.  But ultimately all are on the same spectrum even with the acknowledgement that  receiving an injury award compared to not receiving any compensation for injuries received is firmly “privileged checked”.

Remember though that this is the police. High ethical standards are demanded from the upholders of the law and the Queen’s peace.  How evidently easily can the senior members turn on it’s supposed own without such behaviour affecting their conscience.  Just in an attempt to improve their financial commitments.

The so-called police “family” is a myth.  Once injured a target is painted on your back.

Why else did Mounstevens think it perfectly acceptable to declare that those injured on duty are of no benefit to society?  The answer is because of the core of institutional oppression that permeates the police service against those who have gone from being fit and high-achieving to being medically retired.

This view is endemic and is sadly not just the opinion of a rogue PCC.

Merseyside and Northumbria scare off those who want to appeal  as they make it clear they will do everything in their power to make sure the appellant will have to pay the PMAB costs.  Not only that but some IODs who had been unlawfully reduced have also been threatened with the prospect of being chased to Judicial Review if they have the ‘audacity’ to win the PMAB.

This creates  a perverse incentive for those disabled former officers, who having had ill-treatment and injustice foisted upon them, to avoid an appeal and acquiesce rather than run the risk of failing to convince the PMAB.

Or how about the selected medical practitioner that has taken it upon himself to bar any serving officer he sees, or the accompanying  federation representative, from taking contemporaneous notes during the ill-health retirement assessment?  Failure to comply ends the application.

Let us also mention another SMP who is guilty of  malice and malfeasance. When reviewing a retired officer this so-called doctor does not permit the spouse to talk AT ALL during the review and puts it as a prior imperative that she demands that the former officer shall not have an accompanying friend who has any knowledge of the Regulations.

The orthodoxy of some Federation representatives is not helping.  There are important exceptions and we are thankful for all those fed reps who still understand the significance of challenging wrong wherever it raises its ugly head.  Nevertheless within the past few months an IOD turned to a single fed rep for help and the response was “its people like you who make it impossible to get an injury award nowadays”.

Was this an isolated instance or an example of a global problem?  Does this fed rep really think that if people like Mounstevens are allowed to carry out their delinquency then all would be good in the land of injury awards?

Not on his life.  This is a battle on two fronts – it is a task of Hercules to prise an injury award from police forces in the current climate and police forces are simultaneously unlawfully trying to reduce their financial burden at the same time by mass review programs.  The correlation between the two fronts are that they are wilfully and menacingly ignoring the requirements of the Regulations.  But correlation does not equal causation.

Imagine if police pension authorities were not held to account in relation to reviews.  In this dystopia only the deluded would think awards would be given out like smarties.  But let us give the misguided fed rep that just for a second.  In this frightening world the injury award would be taken away six months later as there would be nothing to stop the police pension authority from doing whatever devious and unlawful act it wanted to do to protect it’s financial bottom-line.

All these elements of corruption have been occurring behind closed doors for years.

Enough is enough.

Fighting back will be a long, difficult process, and will take more than isolated individuals in silos questioning  whatever injustice is carried out against them. But this is one necessary activity, among many others we all need to try.

This is the start and the  strength of voice will build momentum to change the oppressive culture. Let’s not allow realism to turn to despair, meanwhile.

The stakes are too high.

 

 

Both are Injury Benefit Schemes – So why the Difference?

Both are Injury Benefit Schemes – So why the Difference?

“The fight is won or lost far away from the witnesses, behind the lines, in the gym, and out there on the road; long before I dance under those lights.”
Muhammad Ali

Some police pension authorities still have their head in the sand and refuse to admit there is a problem with how they administer police injury awards.

Let us look at the difference between how the police and the fire service treat those injured on duty.

“Harry Potter or Dr.Who”, “Babies or cats”, “chicken or turkey”, “White Rat or Brown Rat”, “or even “Jesus or Hitler”.  Harry Hill happily arranges ‘fights’ that attempt to determine which of two people or things from a scene are “best”.

Our irreverent fight is between the “Police Injury Benefit Regulations or the The Firefighters’ Compensation Scheme”.  Because we can’t get actors to dress up in costumes and fight this out on stage, we’ll decide this by pitting the number of Pension Ombudsman decisions that have been handed down for each scheme.

The twist in this exercise of silliness is that the big guys lose.  The rules are the smaller the number of complaints judged by the pension ombudsman the better the scheme is administered.

And onto the weigh-in.  In the left corner we have the Firefighters’ Compensation Scheme.  In the right corner, the Police Injury Benefit Regulations.

The Firefighters’
Compensation Scheme
(England) Order 2006
The Police (Injury Benefit) Regulations 2006
Part 8.—(4)Where it is necessary to determine the degree of a person’s disablement, it shall be determined by reference to the degree to which his earning capacity has been affected as a result of a qualifying injury  vs 7.—(5) Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a member of a police force:
PART 9
1.—(1) Where a person is in receipt of an injury pension, the fire and rescue authority shall, at such intervals as they think fit, consider whether the degree of his disablement has substantially altered; if they find that it has, the pension shall be reassessed accordingly.
 vs 37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; 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.

Which is better? There’s only one way to find out: FIGHT!

PO police v fire

The Regulations are near-enough identical but the maladministration  reported within the Firefighters compensation scheme seems dramatically smaller.  These numbers of 10 (firefighters) and 41 (police) relate to those Pension Ombudsman decisions concerned only with injury benefit matters.

As of 2015 the Home Office reports 44,000 full time equivalent firefighters compared to 127,000 police officers.

There are 2.27 complaints to the Pension Ombudsman for every ten thousand firefighters.  If there were 127,000 firefighters then the expected number of complaints would only be 28.86 – still lower than the 41 police decisions.

For every ten thousand police officers, there are 3.23 complaints to the Pension Ombudsman.

Yes, this is all unscientific, rather flawed and just a bit lighthearted.   There are other variables at play here that may account for some of the differences.  Is there proportionally more or fewer firefighters than police officers with injury awards?  Maybe the Fire Brigades Union is proactive and militant enough to be able to stop maladministration before the rot takes hold.  We haven’t got the answers.

But still taking all the variables into account, the majority of Pension Ombudsman police decisions are solely concerned with unlawful reviews.  There are no complaints to the Pension Ombudsman from firefighters with disputes over the firefighter being unlawfully reviewed and reduced even though the ‘power to  review’ regulation between the two schemes is, for all purposes, identical.

Something is amiss.  Same power;  different public bodies;  different application.  The fire service avoids maladministration but the police pension authorities are attracted to it like moths to a flame.

Attitude is an important factor here.  The Fire Service obviously does not have the overarching core power as law enforcers, their objective is to save lives not to uphold the peace.  So does the absence of such make the whole fire service more egalitarian?  Is the institution geared to being more of an equaliser and leveller between those who make the decisions within the fire service and those who are decided upon?

Serious  mismanagement and possible corruption can occur anywhere and it’s unfeasible to think the Fire Service is immune to it.  But the point being such behaviour can be magnified exponentially if the organisation has the capacity to justify restriction of individual liberties in order to protect the general welfare.

Corruption within the higher echelons in the police service depends on power and testosterone. Power and testosterone breeds arrogance.  Although senior civilians in the police can make pro-social decisions to indirectly benefit the public good they can also abuse their power by invoking anti-social decisions.  With no warranted power they can’t project their ‘might’ onto the general public, so they direct it inwardly towards the ‘plebs’.

A phenomenon clearly evidenced when the actions of HR managers, legal services, selected medical practitioners and force medical officers are criticality examined and labeled as maladministration by the Pension Ombudsman.

Pause to imagine a Fire service Senior Divisional Officer writing, on matters he is ignorant,  to a retired injured on-duty firefighter threatening to remove the award on made-up non-compliance of failing to fill-in an invented questionnaire.

Totally inconceivable.

This is exactly what happens in the Police.  Chief Superintendent Chris Markey from Merseyside Police believes his rank gives him the authority to threaten a member of the public to do something that person is not obliged by any legislation to actually do.  This is the underlying reason why the Pension Ombudsman hears more complaints about the police.  It is fair to say that power has not corrupted senior officers of the Fire Service to the same magnitude as the police.

Police pension authorities and their delegates should be responsible for what they do, just like everyone else.

Injury awards and how the police treat medically retired officers are examples of how those who run the police service are flouting the rules that are there to protect us all. This should send a strong message to the senior management that they cannot make the rules up as they go along. They are not above the law.

 

Project Fear

Project Fear

“never to admit a fault or wrong; never to accept blame; concentrate on one enemy at a time; blame that enemy for everything that goes wrong; take advantage of every opportunity to raise a political whirlwind”
– page 219 Analysis of the Personality of Adolph Hitler: With Predictions of His Future Behaviour and Suggestions for Dealing with Him Now and After Germany’s Surrender, by Henry A. Murray, October 1943

Merseyside’s Project Fear has evolved into Project Threat.  We’ve tried to point them onto a righteous path but they  still do not understand that they cannot threaten to remove an injury award just on the basis of whether or not a questionnaire is completed.

Let us be quite clear for the umpteenth time.  There is no power to punitively revoke an injury award.

Regulation 33 of the Police (Injury) Benefit Regulations states that if there is a negligent or wilful refusal to be medically examined then a decision can be made on the available evidence.   It does not say an award can be taken away as punishment.  In any case this  does NOT apply  to Regulation 37(1) — Reassessment of injury pension — so far as it relates to the statutory duty  placed upon a police pension authority to ‘consider’ whether there has been substantial alteration after a suitable interval.

Only after the police pension authority having considered whether the degree of the pensioners disablement has altered, and a suitable interval has occurred, it MUST then and only then refer the statutory medical question under Regulation 30 (2) (d) –  degree of disablement -to an SMP and, a result, it is only then that Regulation 33 can feasible ever apply.

This is an extract from a threatening letter being sent out to disabled former police officers written by Chief Superintendent Chris Markey, who evidently has never read the Regulations in his life.

remove award

The obvious reply to such a threat is to ask ‘under what power will you use to suspend my injury award?’.    Chief Superintendent Markey would not be able to answer this without either by telling the truth and admitting there is no power or without lying by saying there is and the Regulations permit him to do this (which if you are still in doubt – they don’t). Why would a senior officer debase himself this way?  Would he tell an untruth in a criminal investigation to get what he wants?

The questionnaire is a work of pure villainy.

Mersyeside-questionnaire

Such guff deserves an appropriate response:

Dear Chief SuperNintendo Markey

I recently received a letter from you. Every two years or so I get one. This one suggested that there was an urgent requirement to address the problem of my lack of a questionnaire.

I am sorry, but after all these years my medical condition has not changed, and now I have run out of patience. I understand your need to ensure that people who have an injury award should be considered if there has been substantial change to see if the correct band is being paid, but as someone who never receives a nice and pleasant letter from you just asking ‘how I am and can you help’, I think it’s time you cut me some slack.

I think this and the tone of your letter, and threats of taking my award away, and suggestion that in some way I am a liar is what finally got my goat (I do not actually have a goat either. This is an expression in common usage, although even if I did have a goat I do not believe this amounts to substantial change.)

The questionnaire that you demand of me is rather confusing.  You first ask what my injury is.  Don’t you know?  This seems rather strange.  If you need me to explain it then something is amiss already.

If I answer NO to question 2 and declare that there has been no change then is this farce then over?  Surely you can’t send me to see a SMP if there there  has been no change.  The ‘review’ for all it’s purposes is in effect over.  Or won’t you believe me?

You then ask me to declare medical interventions.  Have you not heard of Chatham House rules? or more colloquially:  What is said to my doctor stays with my doctor.  Putting confidential medical information on a questionnaire that can be read by all and sundry does not seem to the correct way to process personal and confidential information.  The Data Protection Act can be very serious when it comes to medical information.

Throughout the questionnaire you jump from reference to  reference.   Does “your condition” reference back to the “medical condition” referred to at question 1?  Are you surreptitiously trying to determine apportionment in a review!?  Don’t you know you can only consider the degree of disablement.  I hope you aren’t already trying to declare that an unrelated medical condition has overtaken the index injury – in a tatty questionnaire.  Oooh! you are awful!

You then jump to the term “disability”.  Does that phrase simply refer back to the “medical condition” or is it meant to encompass something broader?  If so, what?  You are like a jumping bean, all over the place.

Out of interest have you ever seen the ESA50 form used by the government?  This is to do with applying and reapply for a benefit.  As you know an injury award isn’t a benefit – it is an award for life and the last decision made by the medical authority is final.  But the point is in the ESA50 they don’t just use YES/NO like you’ve done.  They have a ‘it varies’ option.  This is much nicer.  Can I suggest you add it for next time?

I am very puzzled with precisely what way my current ability to drive or ride a motor vehicle or use sporting equipment is relevant to the questions falling for consideration under the Regulations?  I would love it if you could explain this to me.

In like terms, please clarify the relevance of any current annual salary  to the relevant issue for consideration under the Regulations?

At this point I need you to post to me the last questionnaire I filled in and sent you. I can’t remember ever doing this but I may be mistaken.

I would like to see the answers I put. You must have a copy – how else can you compare what I’ve written then to what I might write now?  I do hope you have a copy.  Otherwise this might all be a fresh assessment. And that will be a very naughty thing to do.

Is the question of salary limited to income earned from employment or self-employment or is it meant to encompass income from any source (such as investments)?  This puzzles me. I’ve read and reread the Regulations and can’t see anywhere, anything that gives you authority to be entitled to that information, and how it touches upon the relevant statutory question.

My Great Aunt Bessy died last year (god bless her) and she bequeathed me her house.  I now rent this out.  I can’t see how this affects my capacity to earn.  Sure the rental income is income, but it isn’t earned income.  Could you please help me out with this sticky problem?

As you can see Chief SuperNintendo Markey I do have loads of questions.  I herewith give you 21 days to reply.  If you fail to reply I may take action to suspend any doubt that you are an idiot.

This is not an action that I would usually wish to take

Yours Sincerely and with love

XX