“All the fallacies of human reason had to be exhausted, before the light of a high truth could meet with ready acceptance.”
― Friedrich Max Müller
Here at IODPA we are seeing regular references, made by people who should know better, to the Selected Medical Practitioner (SMP) having standing akin to a Coroner or a Judge with case management powers. Indeed some SMPs have referred to themselves as being involved in a judicial process and acting as judges (not only have we had anecdotal feedback incorporating these common themes, we have seen the reports containing such fallacious proclamations firsthand).
Before we look at the veracity of these claims and their origins a brief understanding of the law is required. So lets test the proposition; is the claim of an SMP being a Judicial Office Holder valid or a convenient invention?
The doctrine of Parliamentary Sovereignty is the cornerstone of our democracy. This legal doctrine means that parliament makes the law in the form of Statutes and gives authority to the provision of secondary legislation such as the Police Injury Benefit Regulations.
The Brexit debate and recent Miller case has brought this sharply into focus. In the Simpson High Court Judgement it was ruled that the attempt by a Home Office Civil Servant to issue guidance undermined Regulations and Case law. You cannot usurp Parliamentary Sovereignty and import meaning or intention which does not exist. The Home Office withdrew its guidance and directed Chief Constables to legislation and case law as referenced in the Simpson Judgement.
The rule of law is another fundamental concept in our legal traditions. As Police Officers we had to accept the decisions of the courts after all we were servants of the law. The Home Office had no choice but to rightly recognise their errors when they were ruled to have acted unlawfully by Mr Justice Supperstone, and (with rapped knuckles and burnt fingers) withdrew their guidance as not to prolong their humiliation.
This unlawful guidance was much, much more than just a costly mistake. Arguably it was pursued voraciously by some forces with eyes wide open. It made many injured former Police officers face financial ruin including homelessness as well as the emotional trauma. The costs to the taxpayer were enormous and the only winners would appear to have been the SMP’s paid to conduct these reviews and the Barristers acting for the Police.
Lessons were learnt by some, unlawful reviews were suspended. The country’s largest force, The Metropolitan Police, does not undertake reviews unless requested by the former officer. However, there were those who couldn’t accept the rule of law; after-all, they parochially thought, why should those who were unable to work or have their earning capacity reduced, having put themselves in harms way and lost their careers and become disabled, receive an injury award?
Well, we have yet to meet a HR minion who has walked a mile in our shoes, or any distance for that matter. The award is deserved both morally and legally. Parliamentary intention was to recompense Police officers who could no longer serve due to their injuries, the bands reflected the loss in earning capacity. The explanatory memorandum to the Police (Injury Benefit) Regulation was prepared by the Home Office and had been laid before Parliament by Command of Her Majesty; it says without ambiguity that police injury awards:
“… are in effect compensation for work-related injuries”7. Policy background EXPLANATORY MEMORANDUM 2006 No.932
The void created by the Home Office withdrawing from providing any central guidance was filled by the National Attendance Management Forum (NAMF). Perhaps the Home Office considered that having a proxy would avoid them again facing the wrath of the High Court.
Interestingly not all 43 forces are involved in NAMF. That speaks volumes itself. NAMF is now chaired by the Head of Human Resources at Northumbria Police, Leslie-Ann Knowles, and it’s chief legal advisor is Nicholas Wirz – Solicitor of Northumbria Police. NAMF delegates have included FMAs, SMPs, PMAB members, HR managers and Force Solicitors as well as Mr Trevor Forbes who represents Police Forces at PMAB.
Naturally, we at IODPA are concerned about this as it would appear to breach the rule against bias. We’ll leave that issue for another blog and a High Court case submission.
NAMF has devised its own guidance , section 4.3 Case Management Powers of an SMP, there is reference to a quasi-judicial process. Some SMPs have been told they have powers similar to those of a Coroner or a Judge at NAMF training events. The SMPs have repeated this erroneous view in their assessments. A recurring theme in some reports made by SMPs who have attended courses presented by Wirz, is that they claim the position of ‘SMP’ empowers them to be able to make any direction or demand. No matter how unreasonable, discriminatory or contrary to primary legislation that demand actually is.
Serving and retired Police officer’s have told us about their assessments, the SMP likening themselves to a judge is a recurring theme. So the phoenix has risen from the ashes and the Home Office Guidance has been resurrected in the form of NAMF guidance. Our members have repeatedly, and wrongly, been told by SMPs and HR staff that NAMF guidance is mandatory and must be followed.
There is a direct correlation to those forces involved in NAMF, unlawful reviews PMABS and JRs. Mr Wirz, whose zealousness is not diminished by losing previous High Court cases, continues to spread his views which have no anchor in law.
Compare and contrast
The role of SMP is cited in the regulations. They are medically qualified doctors (or should be, we have encountered a physiotherapist). NAMF have introduced the mandatory requirement that membership of the Faculty of Occupational Medicine is required. SMPs are selected by individual Police Forces. Coroners on the other hand are experienced lawyers or medical professionals whose appointment is approved by the Chief Coroner and the Lord Chancellor.
Coroners are Judicial Officer holders and must take the judicial oath. Judges are recruited via the Judicial Appointments Commission, their appointment must be approved by the Lord Chancellor, again they are Judicial Officer holders and must take the judicial oath.
Training is organised by the Judicial College, similarly, a formal disciplinary framework exists for the judiciary. So when did the foundations of constitutional law that has central importance to the maintenance of judicial independence fracture and rip to such an extent to allow SMPs become quasi-Judges and Mr Wirz and NAMF the judiciaries’ training provider? Of course, in the real world, there has been no such rupture. The foundations of judicial appointment are still wholly intact. Only Wirz thinks differently. The edicts of NAMF cannot stand scrutiny.
The Simpson case should have acted as a warning. The Pensions Ombudsman case in Lightfoot v West Yorkshire Police at paragraph 33 encapsulates how innovation is occurring:
“….As has been found by my office in other cases (for example, Ayres 27979/2 and Sharp 80008/1) it is not appropriate to try and impose a meaning on the relevant Regulations which they do not hold simply because the Home Office (or the WYPA) think that logically they should. This was an error of law, albeit that WYPA was following Home Office guidance and was acting in good faith.”
The status of the SMP has been pushed by NAMF from that of a Doctor to that of a Judge. This leap has no basis in law. Legal chicanery as a description does a disservice because this goes far beyond that into the realms of a fantasist.
Powers conferred on police officers by primary legislation, such as those defined by Police and Criminal Evidence Act, are a statutory licence that do not empower any judicial functions onto an Inspector, say, authorising a search. Can that Inspector forgo the need to reasonably believe the premises may contain evidence linked to the offence in question? Of course not. Taking the illogical thinking of Wirz to the extreme, if the Inspector thought the same as a SMP, and considered they were a judge, they could ignore PACE and sign their own warrant of entry.
The SMP is not a judicial office holder but a doctor – a medical authority asked to answer a statutory question based on available medical evidence, in the same manner as a power of entry and search under s18 cannot be exercised without the statutory requirement of prior written authorisation of an officer of the rank of inspector or above.
A SMP can’t invent evidence. He isn’t a judge in an inquisitorial system – a legal system where the court or a part of the court is actively involved in investigating the facts of the case. He is a doctor; simply asked a medical question that statute demands a referral to him or her by a police pension authority. Statute does not gift any magical power to answer the question – only to use his medical training to make sense of the medical information presented to him.
To suggest otherwise is a fallacy.