Just Vulnerable or Permanently Disabled?

“Remember that all through history, there have been tyrants and murderers, and for a time, they seem invincible. But in the end, they always fall. Always.”
― Mahatma Gandhi, The Story of My Experiments With Truth

As certain forces continue on their hell-bent course of denying ill or injured officers their pension rights a pattern is developing.  Some Selected Medical Practitioners (SMPs) are labelling applicants with diagnosed PTSD or similar mental illness as ‘only’ having a ‘vulnerability’

Retirement on an ill health pension needs a SMP to decide that an illness or injury is likely to permanently disable the individual from working as a police officer. Some forces want to save the cash, so will go to extraordinary lengths to avoid the need to pay award an ill health pension.

To back up their assertion that medical retirement is inappropriate where the illness or injury is PTSD, as they say that condition is not permanent, SMPs are citing two High Court decisions, which they claim justify their view.

Today, more often than not, when the critical question delegated to SMPs, ‘Is this serving officer permanently disabled?’ the decision given is a rubber-stamped answer like this:

So when an application for ill-health retirement (IHR) is refused why are SMPs using the ‘vulnerable’ label?

The short answer is that it’s because they are relying on two cases, one concerning Northumbria and the other concerning Derbyshire. These are both force areas well known for their aggressive, acrimonious and antagonistic attempts to deny retired and serving officers their pension rights.

The cases are R (Northumbria Police Authority) v Broome [2006] ICR 555
and
R (Sidwell) v Police Medical Appeal Board v The Chief Constable of the Derbyshire Constabulary [2015] EWHC 122 (Admin).

By focusing on these two high court decisions some SMPs are attempting to imply things often not relevant to the circumstances. They use the cases as a rejection crib-sheet. It is rather like someone who claims that eating a certain wonder food prevents cancer, but neglects to mention that you would need to eat six pounds of it each day, for ever, for it to have any effect. They thus tell only part of the truth.

These SMPs are selective in their presentation of supporting case law. They fail to point to the case which contradicts and negates their view.

They conveniently fail to mention a much more recent judicial review. That of
Sharp v West Yorkshire Police & Anor [2016] EWHC 469 (Admin) (07 March 2016).
We will come back to this case in detail later.

Let us first discuss the Northumbria judicial review. No doubt this force’s nefarious force solicitor, Nicholas Wirz – skulking and slithering behind the scenes – was the protagonist who advised his Chief Constable to challenge the decision of his own SMP, Dr Jonathan Broome.

What happened was that, in 2005, officers Alison Doyle and Madeline Clementson both claimed permanent disability, which Dr Broome agreed existed and so was certified by him. Northumbria disagreed and challenged his decision – their own doctor! – by way of judicial review.

While based in Bamburgh, PC Madeline Clementson, was injured through being dragged along the road by a suspect’s van. Dr Broome, who assessed her, said she suffered panic disorder and agoraphobia along with an intractable antipathy towards her police role.

He added that although her physical injuries had not made her permanently incapable of performing her duties, she was plagued by symptoms of low mood and anxiety which could be worsened by a return to police duties.

In PC Alison Doyle’s case, Broome said there were several factors stopping her from returning to work including spinal pain, vulnerability to anxiety and her enmity towards Northumbria Police.

The doctor found she had developed such an entrenched aversion to returning to police duties of any sort that the prospect of doing so might well trigger mental ill-health.

Dr Broome said Alison had “an emnity towards Northumbria Police as an organisation” and would even have difficulty performing civilian duties for the force and he said that Madeline had such an “entrenched aversion to going back to police duties of any sort” that the prospect of doing so could trigger mental ill-health.

Both PCs lost the judicial review because neither had a definitive medical diagnosis.  Although both officers were given medical retirement by Broome, he failed to medically diagnose them or refer them to someone who could, so Mr Justice Bennet upheld the challenge and overturned the permanent disability certificates issued to the ex-officers.

It is important to note that a court will inevitably never challenge a medical opinion, for it is not competent to do so. It is a medical matter, and a court lacks the medical qualifications necessary to make any comment or judgement on medical matters. A court can, and will, determine matters of fact and law.

Northumbria took two of it’s officers all the way to the High Court to win a battle over an issue which could have been easily been sorted out without recourse to such stressful and expensive means. The judicial review served only to delay resolution at a horrendous personal cost to Alison Doyle and Madeline Clementson.

The reason why Northumbria won the original judicial review was simply that neither Doyle nor Clementson had a definitive diagnosis which could be found categorised in the World Health Organisation International Classification of Diseases (ICD-version 10)

As Mr Justice Bennet put it;

Vulnerability”, “enmity”, and “intractable antipathy” do not appear in internationally authoritative guides available to doctors such as ICD-10 and DSM IV

In a twist to the sorry state of affairs, Alison Doyle took Northumbria to an Employment Appeals Tribunal in 2012:
http://www.bailii.org/uk/cases/UKEAT/2012/0576_11_1712.html
In this EAT it is shown that four years later, in 2009, Doyle eventually got the IHR she asked for:

‘However, in a subsequent report dated 15 July 2009, Dr Broome recommended that Ms Doyle should be retired on medical grounds.  The Acting Chief Officer took a “holistic” view of her case, namely that her psychiatric condition, which in his view did not on its own amount to a permanent disability, should be taken into account.  Accordingly, on 21 August 2009 Ms Doyle was retired on medical grounds on the basis of her combined psychiatric and spinal problems.’

It seems that by 2009, Alison Doyle had secured a definitive diagnosis and so was, in the end, medically retired – the whole saga of the judicial review was pointless and unnecessary.  Instead of taking it’s officers to judicial review, Northumbria could have spent the money on getting both officers diagnosed by specialist clinicians, for far less cost and with far less stress caused to two damaged individuals.

The take home from this is that a line is drawn by this High Court decision. Once an officer has a recognised medical condition their case becomes distinguishable from the situation experienced by Madeline Clementson and Alison Doyle.

When an officer has a categorised diagnosis, rather than some wishy-washy opinon stated in vague terms by idiots like Broome,  matters have crossed the line into there being a recognised  infirmity.

When there is an ICD-10 diagnosis an “intractable antipathy” may well be noted, but only as a symptom of the infirmity, and not the infirmity itself.

And so on to the Sidwell judicial review.  This case involved the now deceased Dr Ralph Sampson who worked as a SMP for Derbyshire.

An unfortunate sequence of events led to DS Andrew Sidwell’s marriage failing and him then being made homeless after a colleague, who let him share his house, was investigated for corruption – an allegation that was later proved false and which, some believe, was based on a Professional Standards Department witch-hunt.  Homeless, he further suffered a forced transfer to another department, and this all led DS Sidwell into a spiral of understandable anger, resentment, embitterment and antipathy towards Derbyshire police.

Dr Michelle Shepherd, a consultant psychiatrist, diagnosed DS Sidwell as having situational anxiety disorder.  Dr Sampson refused medical retirement as he claimed that, ‘situational anxiety … is not permanently disabling’.

DS Sidwell saw another consultant psychiatrist to help an appeal he made against this decision to a Police Medical Appeal Board (PMAB). Consultant Maria Isaac assessed DS Sidwell and determined that his,

‘. . . anxiety is severe enough to approach phobic intensity. However I could find no evidence of significant underlying psychiatric illness or impairment’.

During the PMAB, one of the consultant psychiatrist panelists, Dr Karim Rajput, stated,

“I would classify him with an ICD-10 diagnosis of anxiety disorder, unspecified (F44.9)’

Despite this, the Board concluded (using a confusing double-negative to do so) that successful treatment of his condition was “not unlikely” and that therefore “he is not suffering a permanently disabling psychological condition’.

Consequently the appeal was dismissed and Sidwell was refused medical retirement.

Soon after, Derbyshire instigated Unsatisfactory Performance Procedures (UPP) against DS Sidwell citing inadequate attendance at work.  The Federation sent Sidwell to see yet another consultant psychiatrist. This time a Dr Qureshi diagnosed Sidwell’s condition as a permanently disabling chronic phobic anxiety disorder.

Derbyshire’s newly appointed SMP for this case was a Dr Geoffrey Davies who proclaimed that DS Sidwell’s condition would improve if he left the police service and as such has he has,

‘. . . a vulnerability to being in the police but does not have a permanent disablement.’

Another PMAB was held and another panelist, Dr Nehaul, disagreed with the diagnosis made by Dr Qureshi and the panel took Dr Nehaul’s view that the Mixed Affective Disorder diagnosis could not be right as there was no evidence of mania. Dr Nehaul devotes rather more words to demolishing Dr Qureshi’s diagnoses.

It is important to note that, unlike a court of law, a PMAB, can comment on and decide on medical matters, as all the Board members are themselves doctors.

The Board concluded,

‘Whilst having enormous sympathy for the position in which Mr Sidwell finds himself, the unanimous decision of the Board is that he does not have a permanent disabling medical condition which would prevent him from carrying out the ordinary duties of a Police Officer and therefore the appeal is rejected.’

This then went to judicial review where Mr Justice Mostyn rejected the claim that the PMAB’s decision was wrong and decided that,

‘The Board was entitled to prefer the opinion of Dr Nehaul to that of Dr Qureshi as to whether there existed a medical condition which caused the relevant inability.’

So the Sidwell case hinged on a spat between two consultant psychiatrist who failed to agree with each other and the judge decided there was not a point of law or fact in which the court could make a determination, given that there has to be considerable respect to the decision of an expert and informed tribunal.

In simple terms you could say that with the saga of Madeline Clementson and Alison Doyle (where there was no definitive diagnosis made), we can see their cases were the complete inverse to that of Sidwell v Derbyshire – wherein too many diagnoses existed!

Returning the question of this post.  How can a SMP on first seeing a serving injured officer use these cases to assert vulnerability?  If there is a diagnosed infirmity then the Rubicon for Doyle & Clementson is crossed.  If there is no PMAB and no quarrel between eminent consultants over what the condition actually is, then Sidwell is irrelevant.

This brings us to the latest judicial review, heard in 2016, of Sharp v West Yorkshire.

Mr Sharp suffered from anxiety on a number of occasions before he joined the police. He was in fact initially rejected by the police on medical grounds.  In 2011, whilst under UPP, he resigned and in 2013 he made an application for an ill health award. This was subsequently refused by the SMP, Dr Dagens.

He appealed and his PMAB submission was supported by a report from Professor Rix, a consultant forensic psychiatrist, who gave a diagnosis of recurrent depressive disorder (F33.4 ICD-10) and concluded,

The primary issue appears to be whether or not the Appellant is permanently disabled. Critical to this is the Appellant’s vulnerability. That vulnerability is his paranoid attitude. This is a permanent feature of his character or personality. It is when that attitude engages with management, as inevitably it would, that the Appellant would suffer a recurrence of his depressive disorder and be unable to perform all of the ordinary duties of a police officer. It therefore appears to me that the issue for the Board will be whether or not such vulnerability in itself amounts to a permanent disability for the purposes of the Regulations.

The PMAB rejected the appeal.  It had concluded,

‘Whilst his attitude may indeed make him more vulnerable to further episodes of depression, the Board does not consider such attitude equates to an infirmity with regards to the Police Pension Regulations. Likewise vulnerability arising from this attitude would not be regarded as permanently disabling. This is consistent with the case law on vulnerability.’

“Case law on vlunerabilty”.  Interesting use of the phrase there.  Just saying it doesn’t make it true and in reality the PMAB catastrophically failed to understand the precedents on vulnerability

It was accepted that Sharp suffered from a recurrent depressive disorder.  It was therefore unnecessary (and irrelevant) to consider whether Mr Sharp’s attitude was also an infirmity.  By trying to deny Sharp ill-health retirement and bending case-law to fit their objectives the PMAB failed to test whether Mr Sharp’s recurrent depressive disorder was sufficiently serious to amount to a permanent disablement.

Sharp requested a Regulation 32 reconsideration on the basis that Professor Rix’s report was misunderstood and the conclusion taken out of context. This reconsideration went to the same PMAB panel for a re-decision.  Unsurprisingly (and true to form), the PMAB panel stuck to it’s original decision to reject the application and finished by saying,

though mention of paranoid attitude in reports may suggest possibility of a personality trait, it would not amount to a disorder in the context of this case. The Board does not agree that likelihood of recurrence and persistent illness and ensuing disability despite optimal treatment is so strong, in this instance, as to fulfil the criteria for permanent disability

It was this second PMAB decision that went to judicial review.

Judge Brehens rejected West Yorkshire’s argument that both the Broome, Clementson & Doyle and the Sidwell case was applicable to Sharp.  The key to the Sharp judgement was that is was found that the PMAB asked the wrong question of infirmity and they wrongly considered the paranoid attitude to be the disorder.

So Judge Brehens found in favour of Sharp and overturned the PMAB decision by saying

I am satisfied that the PMAB ought to have held that Mr Sharp’s recurrent depressive disorder was an infirmity within the meaning reg A(12)(5). It was unnecessary and wrong to go on to consider whether his paranoid attitude was also an infirmity. It was a cause of the infirmity not the infirmity itself. I agree with Mr Lock QC that Mr Sharp had indeed crossed Bennett J’s line and was a recognised medical condition.

Judge Brehens continued,

‘Mr Sharp’s paranoid attitude is one of the causes of the severity of the recurrent depressive disorder.’

In other words, the Board had taken a symptom instead of the illness itself as reason to declare that disablement was not likely to be permanent.

Someone being, in the opinion of a SMP, merely ‘vulnerable‘ or having an ‘antipathy‘ towards their employers should not mean they are refused medical retirement. The vulnerability could be a symptom of a recognised, categorised condition which the SMP, for whatever reason has failed to diagnose. Those reasons may be simple medical incompetence, but worryingly could also be the result of deliberate policy by the force and SMP in collusion to prevent granting injury awards.

We pointed out above that law courts can’t second-guess medical opinion as they are not medical experts. PMABs, conversely are a medically expert arena, but have unfortunately consistently shown that when it comes to the law they are woefully unable to grasp the issues.

It does seem odd that PMABs are allowed to consider legal aspects at all. And if PMABs can misinterpret the case-law, do think it wise to trust any legal opinion of a lowly SMP?

For those officers with reports saying that their ill-health retirement is rejected due to’ vulnerability’ or any other vague and ill-defined phrase, please look carefully at any stated cases quoted by the SMP purporting to underpin his decision. It’s a sure bet that Sharp, the latest case-law on vulnerability, will have been omitted.

Ignoring something relevant which fails to prove one’s point is not how UK law operates.  You may have grounds to appeal whenever a SMP starts referencing case law.  An appeal to a PMAB will take you before a panel of doctors but the Board may have no better understanding of legal points than does the SMP.

IODPA does not suggest never going to PMAB, but we do strongly advise that you seek expert legal advice from one or other of the two excellent solicitors we refer our members to. A judicial review, based on errors of fact or law may be a better route than a PMAB.  Or if you are currently in proceedings for a PMAB look very carefully at the submission made by the police pension authority – are they relying on proving vulnerability whilst ignoring both your definitive diagnosis and the Sharp decision?

Alternatively, ask IODPA to provide you with information about how to use regulation 32 to have a SMP reconsider a decision which you believe errs in fact, law, or medical opinion.

Serving officers are facing hard times should they become ill or injured and are seeking ill heath retirement. It will not now be an easy path. However, it need not be an impossible path, provided that they seek professional advice and help at the earliest stage. SMPs, Police Pension Authorities, Chief Constables and their HR managers and legal ‘experts’ make so many mistakes that a challenge to a decision not to award an ill health pension has a very good chance of success.

Besides, why should you let the tyrants get away with it?