“Who are you to judge the life I live?
I know I’m not perfect
-and I don’t live to be-
but before you start pointing fingers…
make sure you hands are clean!”
― Bob Marley
Some SMPs have acquired a fundamental misunderstanding of what is meant by them acting in a quasi-judicial capacity when conducting their part in a review of the degree of disablement in respect of the injury pension of former officers.
They have gone so far, in some instances, of thinking they have the power to direct IOD pensioners to do certain things – like handing over their medical records from birth, or travelling many miles to attend an appointment at the convenience of the SMP. Some try, (and fail) to forbid the pensioner having a friend, supporter, carer or chaperone present during a medical interview or examination. Some, in the grip of their delusions, have taken to calling a medical examination a ‘medical inquisition’. One SMP even thinks she is a Judge and is in the habit of ordering all and sundry to do her bidding, but we discount the rumours that she has a wig and ermine trimmed robe which she secretly wears in the bathroom at home.
The plain fact is that SMPs and even Police Pension Authorities, under whose authority they act, have no power to command or demand anything of a police injury on duty pensioner. Merseyside police recently came a cropper on this exact same point by capitulating on a judicial review. Ron Thompson of Haven solicitors said,
“This was an unnecessary and totally avoidable dispute. All the Chief Constable’s staff had to do was to read the wording of the Regulations to see that they had no power to force former officers to hand over medical notes or fill in questionnaires, particularly in advance of any decision to make a referral to the SMP. The lesson from this episode for Forces is that no amount of misguided “advice” from the National Attendance Management Forum can change the meaning of the words of the Regulations.
Any other Force that tries this tactic can expect to be served with the same type of legal challenge”
Yes, you read that right. No power whatever. If any HR manager, SMP or Police Pension Authority thinks otherwise, then IODPA has just this to say to them – ‘See you in court.’
At review, a SMP is required to make a decision. That’s it. That all parties are bound by the final decision (final if not appealed) is where the quasi-judicial bit comes from, and that is where it ends. The SMP’s decision is an action taken on behalf of a public administrative agency, the police pension authority, and a SMP is obliged upon to decide a question as the foundation for official actions. In plain words, they make a medical decision, and hand that decision to the PPA. A decision, only once made and so final that the PPA has to act in accordance with it, and is forbidden to alter, change or dismiss or get HR to pipe into a magic calculator to spit out a band one, is de facto a quasi-judicial decision. The decision. Not the process or the process maker.
But let us delve into the murky world of SMP’s enthusiastically failing to act as an independent arbitrators. It is a fundamental requirement that any decision-maker should be impartial. ‘Disinterested’ is the word – have no axe to grind, nothing to gain or lose by making a decision, neither having the interests of the pensioner or the PPA in mind, but being a servant of the law, medical ethics and of reason. Making a decision on verifiable facts and on professional opinion, and being prepared to explain and justify that decision.
We would like here to focus on the antics of one SMP – Dr Charlie Vivian, who works as SMP for Staffordshire PPA (police pension authority). (A reminder to readers – the PPA is none other than the Chief Constable alone.)
Dr Charlie Vivian says the process, his process, is quasi-judicial, but we are not convinced he understands what that means. His actions indicate he thinks he has unbridled power, including the right to discard the normal legal and ethical standards of conduct required of a decision-maker.
At a rare and brief resumption of normality, the National Wellbeing and Engagement Forum (formerly the NAMF) reconvened in September after their lack of members hiatus, and Dr Vivian sat at the same table as Andrew Colley of Staffordshire HR. This is unacceptable. Wouldn’t it be quite a thing for a judge or a coroner to seen hobnobbing over lunch with representatives of the prosecution and having discussions during the course of which the acceptability of process is discussed in the absence of the defendant and the public?
This behaviour would not serve the best interests of open, transparent justice but it’s sadly happened before. Health Management Ltd. has a Home Office contract to run police medical appeal boards but they only recently realised attending NWEF/NAMF compromises their independence. Or perhaps they knew all along but thought that nobody would notice, or care.
Their realisation of the bias was minuted in the June 2016 NAMF conference
This never stopped the chair of HML (and therefore head of all PMAB panelists) regularly attending NAMF himself whilst on the side labeling himself as a consultant of HML and giving speeches to the Association of Local Authority Medical Advisors (ALAMA) on the pitfalls SMPs face at PMAB hearings.
Take a look at this agenda of a 2012 ALAMA conference
Wallington spent 45 minutes advising SMPs about how to avoid the pitfalls for the unwary at a PMAB. Perhaps Wallington should perform the same service for those disabled former officers who are forced to attend PMABs because of an unjust SMP decision?
The Home Office has declared via a freedom of information request that very same Dr Wallington is the only PMAB panel member to attend a NAMF conference. Just look at question 5 found towards the bottom of this request:
This is an HTML version of an attachment to the Freedom of Information request ‘ Police Medical Appeal Board’.
Vivian claims he acts in a quasi-judicial capacity, but like Wallington, the company he keeps seems to suggest he is in cahoots with one side to the detriment of the other. What legal precedent does Dr Vivian rely on in the quasi-judicial matters in hand? First off, he thinks he is a coroner. Secondly, he thinks the Scottish high court judgement of Rooney v Strathclyde 2008 empowers him to be a coroner. The Rooney case is not dissimilar to the England & Wales judicial review of Sidwell v Derbyshire 2015. Both say a court only has limited scope to interfere with medical opinions supporting decision to compulsorily retire a police officer.
We’ve delved into the inner workings of the Internet and found the Rooney case. Here is it is:
There is the not insignificant matter that Scottish courts have no judicial precedent over England & Wales as Scotland has a different legal system. Judicial precedent refers to the set of rules specifying when a court must have regard to, or consider, the decision of another court, and the circumstances in which the decision of that other court is binding. What is decided in Scotland applies only to Scotland.
Quoting a Scottish court decision to support a view is rather like claiming that as they drive on the right in Canada, then it is OK to do so in Burton-on-Trent.
Vivian also has the problem that the Rooney judgement, read in its entirety, does not give SMPs in Scotland the quasi-judicial power he purports it does. In fact the only reference to the term “quasi-judicial” comes from an extract from a letter written by the solicitors for the Medical and Dental Defence Union of Scotland (MDDUS) to palliate the position of the SMP, a Dr Patience.
The purpose of the letter was to inform Rooney’s solicitors that the MDDUS was content that Dr Patience’s decision should be defended by Stathclyde Joint Police Board, and that Dr Patience would not therefore be taking part in the proceedings.
The judges in the Rooney case didn’t say, as claimed:
The regulations required him to act in a quasi-judicial capacity and to construe complex regulations that have been the subject of repeated litigation in recent years, and to grasp legal distinctions of some nicety … However, he did not have the benefit of a legally qualified clerk or assessor.
The above was actually quoted in this letter from the SMP’s professional body, the MDDUS. So Dr Vivian is using a quote from a letter, referring to a Scottish court case, from a professional body representing the very doctor whose decision is being challenged, and is claiming this as a legal precedent and therefore case law! Wow … just wow.
We don’t expect our lawyers to be experts on medical matters, and neither do the Regulations expect SMPs to be experts on legal matters. They have to follow the Regulations, and if they need guidance in that respect, they should be able to rely on their PPA. As so many PPA’s have little to no grasp of the requirements of the Regulations, and as the Home Office has decided not to issue any more guidance, SMPs have been turning to the biased and plainly wrong opinions presented by the likes of Nicholas Wirz, via the College of Policing and the NWEF.
That is a recipe for disaster. Just as our wrong-headed driver in Burton-On-Trent would discover.
So back to our quasi-judicialness. The decision of a SMP is final and is binding on all parties (save if appealed via Regulation 31 or Regulation 32) or challenged by way of judicial review. This is the only meaning implied by the Regulations in a judicial sense.
Scotland has The Crown Office and Procurator Fiscal Service which is the independent public prosecution service for Scotland and is an inquisitorial legal system where the court or a part of the court is actively involved in investigating the facts of the case. England & Wales does not have anything remotely close to this.
Dr Vivian, the NWEF, and Wirz should not be quoting Scottish law to bolster their biased and self-serving perversions of the Regulations. That itself is bad enough, and is unprofessional in the extreme, but we are appalled to see them use these false arguments to attempt to bully and bluster vulnerable disabled people into compliance with their extra-regulatory demands.
The role of a SMP is not quasi-judicial. The decision of a SMP is quasi-judicial insomuch that it is a decision which invokes finality and has to be implemented. Dr Vivian, please take note.