Like computer viruses, successful mind viruses will tend to be hard for their victims to detect. If you are the victim of one, the chances are that you won’t know it, and may even vigorously deny it.
— Richard Dawkins: English ethologist, evolutionary biologist, and author.
How contrary then is it that a handful of doctors seem content to be infected by a species of virus which has taken hold in their own minds? A virus, the very specific effects of which are to confuse the host with delusions of power and a warped interpretation of the set of Regulations which govern the police injury award scheme.
We speak of those doctors, who act in the role of ‘selected medical practitioner’ (SMP) for the several Police Pension Authorities (PPAs) in England, Wales and Northern Ireland. SMPs have a role in the administration of the police injury benefit scheme. They are responsible for making certain regulatory medical decisions. The most notable being determining an officer’s or former officer’s degree of disablement resulting from injury on duty.
A certain solicitor, after whom the virus is named, who is employed by a certain Northern police force is suspected, with good reason, as being responsible for the creation of the virus and for its release.
The virus is known as the Wirz virus and has been in circulation for some time now – and we in IODPA think it is long overdue that all PPAs, all the Human Resources departments of police forces, and all doctors who act as SMPs or as panel members of police medical appeal boards should be made aware of the virus and the threats it contains to their reputations and careers.
Disabled former officers, and injured serving officers also need to be made aware of the Wirz virus and of those doctors and others who have been infected by it. And that is where IODPA can help.
IODPA exists to provide advice, support and defence of their pension rights. We regularly hear of mistakes made by those involved in the management of the police injury benefit scheme. Mistakes arise from a variety of causes. Some are due to lack of training, some from lack of knowledge, some from carelessness, some from prejudice, some from laziness, some from a lack of moral courage, some from a desire not to be seen as a poor team player and a few from deliberate intent.
All of these can usually be dealt with, and corrected, one way or another, but the Wirz virus inserts something much more damaging than simple mistakes into the system. The Wirz virus spreads misinformation and does so in a way which leads those infected to absolutely believe the misinformation. Those infected inevitably produce work and decisions which are always legally flawed. Their entire output is contaminated.
That causes great harm to disabled former officers, injured serving officers, and their families. It also harms the hosts – the carriers of the virus – and the reputation of the medical profession itself.
Our sympathies are centred on the victims of maladministration but we do reserve a small concern for any honest, decent, ethical doctor or HR staff who might have unwittingly been infected by the Wirz virus. We have, however, no sympathy whatever for anyone who deliberately or negligently denies disabled former officers or injured serving officers their pension rights.
Whilst feeling a little bit sorry for some SMPs, we recognise also that the role of SMP is reportedly widely recognised within the medical profession as something to be avoided at all costs. The main factor informing that perception appears to be an awareness of the strong likelihood of becoming embroiled in litigation and complaints due to being required to act in ways unknowingly contrary to the Regulations. The Wirz virus causes SMPs and others to believe all complaints, all challenges to maladministration are vexatious and, above all, should not be made as SMPs have immunity from professional regulatory investigation or proceedings
Let’s divert briefly to highlight the origin of this situation.
By a peculiar initiative of the Home Office, it became a requirement that SMPs should preferably hold a qualification in occupational medicine.
In 2002 it was agreed by the then Police Negotiating Board that it should produce, with the Home Office, joint guidance for police authorities and force senior managers on the key areas of managing ill-health retirement.
In due course a joint circular was issued which contained this:
‘Qualifications of FMA and SMP
It is difficult to be prescriptive about the minimum qualification an FMA should have since there are many existing FMAs with considerable experience but relatively few occupational health qualifications. New FMAs should be recruited with the minimum requirement that he or she be an Associate of the Faculty of Occupational Medicine (AFOM) or EEA equivalent and be given the opportunity quickly to build up a good knowledge of the police service and the range of duties that need to be performed.
Ideally, the SMP should be a Member or Fellow of the Faculty of Occupational Medicine (MFOM or FFOM), or EEA equivalent. The minimum requirement should be that he or she is an Associate of the Faculty of Occupational Medicine (AFOM) or EEA equivalent. Before appointment as SMP the police authority must provide the medical practitioner concerned with an induction programme and other training so that he or she has an understanding of what police service entails.
The logic of this advice is suspect as it seems to suggest that only a doctor with such a qualification has the skill and experience to perform the role. If the role of SMP included a brief to help injured officers back to health so they could continue to serve, then an occupational health qualification might be useful. But SMPs are not required to do that. They have no part to play (and rightly should have no part to play) in treatment of an officer or former officer. A SMP is there merely to decide certain regulatory questions which are part of either the ill health retirement process or part of the injury benefit scheme. It seems to IODPA that an occupational health qualification is pointless and by only selecting doctors with that qualification to act in the role of SMPs helps create conditions for maladministration.
Any illusory advantages an occupational health qualification might bring are heavily outweighed by one major disadvantage. At a stroke the agreement reduced the pool of potential doctors who might wish to act in the role of SMP down to a fraction. In 2018, almost 290,000 doctors were registered in the United Kingdom. Few hold, or want to hold, qualifications in occupational health.
The net result is that SMPs nearly all come from a very restricted pool of medical professionals who by no stretch of the imagination can be said to be sufficiently ‘appropriately qualified’ as required by the Regulations. More experienced, better qualified doctors are excluded.
Back to the Wirz virus.
Mr Wirz. With the cooperation of that esteemed body of rational thought and learning, the Police College (wholly funded by the Home Office), decided to give SMPs the benefit of his inestimable insight into the detail of the police injury benefit scheme. A training programme was devised. It was given the grand title of Police Pensions (SMP) Development Event and was held at the college on 31st January 2014.
We have visited the content of Mr Wirz’s presentation before, and continue to hold our low opinion as to the quality, relevance and accuracy of the content. For now though we need look at only one section to make the point that this training was responsible for sowing confusions and misdirecting SMPs.
Mr Wirz, addressing the issue of complaints made to the General Medical Council by officers and former officers against SMPs stated,
The GMC believes it has jurisdiction over medical practitioners performing a function under the Regulations.
It is by no means clear that the GMC does, in fact, have jurisdiction over an SMP when acting as such. The SMP takes their authority from the statute as interpreted by the courts. Does the GMC have any locus in these circumstances? In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of Coroner.
IODPA is aware the GMC has consistently been very clear that SMPs need to act according to GMC guidelines, and that breaching those guidelines carries a risk of complaint and consequent investigation by the GMC.
We present here the recently-expressed view of Mr Percival who is the Principal Legal Advisor and Deputy General Counsel to the General Medical Council, and Judge, First Tier Tribunal Health, Education and Social Care Chamber at HM Courts and Tribunal Service.
Even in the case of judges who sit in courts or tribunals, there is not complete immunity from regulatory proceedings. This is demonstrated by the existence of the Judicial Conduct Investigations Office, with powers to investigate misconduct relating to a judge’s personal behaviour whether in court or outside of court, though not of course a judge’s decisions or judgments made in the course of court proceedings which can only be challenged via the appropriate appellate proceedings.
So far as registered medical practitioners are concerned, the Court of Appeal in its judgment in the case of Meadow v General Medical Council  EWCA Civ 1390 declined to extend the immunity from suit (from claims in the civil courts) in the case of expert witnesses to also cover immunity from regulatory proceedings. The reasons given were clearly stated by the Court of Appeal, namely that “although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public’s health and safety enshrined in the GMC’s statutory duty to bring FTP proceedings where a registered medical practitioner’s fitness to practise is impaired.”
For this reason, the equivalent immunity from professional regulatory investigation or proceedings which appears to be being suggested to apply to SMPs, has been held by the Court of Appeal to be contrary to the public interest in the case of expert witnesses – whose role and function in a wide array of legal proceedings of substantial public importance can, as acknowledged by the Court of Appeal in Meadow, present risks of complaints being raised which are very much the same as those potentially arising in relation to SMPs.
- protecting, promoting and maintaining the health, safety and well-being of the public,
- promoting and maintaining public confidence in the medical profession, and
- promoting and maintaining proper professional standards and conduct for members of that profession.
We are not aware that the particular role of SMPs raises any substantially different arguments for immunity from regulatory proceedings from a public interest perspective than does the role of the expert witness in court proceedings. For these reasons, the GMC does not currently consider that there is any more justification, or legal basis, for exempting SMPs from its regulatory jurisdiction than there would be for exempting expert witnesses from the same in respect of their role in giving expert evidence in a wide range of judicial proceedings.
From all the evidence, from all of the accounts we hear from our members, it is beyond argument that some police pension authorities allow, perhaps even encourage, their SMPs to conduct medical examinations and interviews in ways which cause real and lasting damage to health. At the very least, PPAs remain unaware of what is being done in their name, not just by SMPs, but by HR staff also. This has to stop. Police pension authorities need to find a better, less intrusive, kinder way of discharging their responsibilities under the Regulations.
On that note, we will have to draw to a conclusion, for reasons of space, but we will return in a future article to further examine the role of the SMP.