“Better to illuminate than merely to shine to deliver to others contemplated truths than merely to contemplate.”
― Thomas Aquinas
The speaking style of judges in judicial review transcripts can be incredibly hard to decipher, and we know it. In judgements, the sentences start here, twist there and double back so many times that non-legally trained minds might give up trying to pin down what is being said.
That is why we give a shudder of relief when David Lock shines light on otherwise complicated matters. For the second time this month we have seen another excellent piece on police injury pension decisions:
His piece can be read here which we have duplicated here for your convenience.
David touches on an much-missed judgement that holds selected medical practitioners to a civil standard of proof – a judgement that we have read before but honestly failed to detect the power of what his Honour Judge Davies said in the 2011 decision of Williams v Merseyside Police Authority.
Mr Williams was the first “anor” in the 2010 Doubtfire & Anor v West Mercia Police Authority & Anor. The second “anor” was Merseyside Police. David Lock was the QC who won both the Doubtfire (and anor) judicial review and the sole Williams judicial review for the former officer.
Police officers with broken minds and bodies suffer huge personally trauma by being injured. This life changing injury puts an end to not only a career, but a vocation and, sadly, often their family and personal life. Then the malice that lives in the hearts of police forces places further purgatory by forcing former officers to chase their entitlement by going to court.
Please take a minute to consider that Mr Williams was medically retired on 4th September 2006. He attended his first judicial review on 30th April 2010. The second was held 13th April 2011. Take stock of all the HR letters he has received, the work he has done with his legal team, the assessments he has attended: the intense and full force of the bureaucracy he faced! Just to receive what he has always been due.
Lest we forget the trauma placed upon those injured on duty by police pension authorities.
With due reverence, time to be moving on. Justice Davies started his judgement of the 2011 decision by making reference to the saga that Mr Williams has been forced to endure when he said:
“Mr Williams’ application for an injury pension already has a protracted and unfortunate history.
We’ve talked before about Mr Williams and how the SMPs, Dr Vincenti and Dr Staley, disagreed with each other about the exact name of Mr William’s diagnosis. You can refresh your knowledge here.
In David Lock’s LinkedIn opinion piece he talks clearly about the grey area between medical and legal decision making. The piece speaks for itself and we can not do it justice by commentating on it. We wholeheartedly recommend it as essential reading. Doctors who work as SMPs should take stock that hiding under the title of doctor does not absolve them from following the law. Clearly, what has been ruled in previous case law applies to them just as much as it does to the police pension authority.
We will however touch on the Williams case. It is worth remembering that this concerned an original decision. Specifically, the issue of causation. Upon review under Regulation 37 the room for manoeuvre of the medical authority is significantly narrower because of the decision of the 2010 Court of Appeal in Metropolitan Police Authority v Laws.
After the 2010 case of Doubtfire the decisions were quashed and Mr Williams had to see the same PMAB (the “Board”) panel for a re-determination. Bizarrely instead of producing a fresh report, it simply produced an addendum to their original report, entitled “reconsideration following judicial review”.
The case discussion by the Board involved a lot of umming-and-ahhing over what was, and what was not, supported by the evidence. The Board was attempting to unravel some of the accusations of bullying and they observed that there was a difference between Mr Williams’ account of events and that of a Sergeant Hilton and an Inspector Fitzpatrick.
Merseyside lost the judicial review on several points but the most relevant point for us today was that the Board based decisions on one party’s perception of version of events at the expense of the other party. This is one thing that David touches on in his opinion piece when he says
The SMP and the PMAB is not entitled to rely on the finding of the Force uncritically but needs to form its own view of the truth.
Justice Davies made it clear that the medical authority can not selectively weigh evidence depending on who is the evidence giver. Justice Davies said in the judgement:
It does however appear, when read with the rest of the letter, that the Board’s approach was that it was only prepared to accept evidence from Mr Williams which was either proved by independent evidence or not disputed by the Authority. It appears that the reference to seeking additional information is a reference back to the difficulty they had in interpreting what Inspector Fitzpatrick had said. However the end result appears to have been that in the absence of additional information they simply took what Inspector Fitzpatrick said at face value and decided the issue against Mr Williams on that basis.
It’s worth contemplating that for a second. The medical authority would not consider anything not disputed by the police pension authority or not independent. Such blatant partisan and excessive zeal in refusing to hear the other side of the story, or to refuse the giving of context to dry medical records, belongs more to the spectacular miscarriages of justice seen in 18th century than the United Kingdom in the 21st Century.
We often hear anecdotal situations where the medical authority (the SMP) blithely casts aside a letter from a patient’s General Practitioner, or where the SMP takes great care to give weight to the force’s submission but states that the patient’s own clinicians would be bias and too over-favourable.
Or an often repeated situation where the SMP refuses to listen to the oral submissions of the former officer sat in front of him and solely only thinks “what is written is truth” and discounts the medical opinion he doesn’t agree with without reasoning why the evidence is rejected. Like the Board in the Williams case, this will always produce a result which was unfair to the former officer, and which is not a decision on the civil balance of probabilities.
An even greater travesty is where the medical authority pre-determines any decision in the to and fro communication with a HR manager prior to the actual date of the former officer’s assessment. Such happenings have occurred between Dr Vivian and Staffordshire’s Andrew Colley.
Holding the title of a doctor does not excuse one, when acting as a SMP, in failing to apply the civil standard of proof.
Re-reading the Williams judgement with fresh eyes has been revealing. We again thank David Lock for shining a light on how the law shall be applied.