Month: May 2020

Snippet #2 – Suitable Interval

Snippet #2 – Suitable Interval

Suitable Interval

Before a review, or a “reassessment of injury pension” can take place under regulation 37(1),the Police Pension Authority (‘PPA’) must firstly consider whether a suitable interval has elapsed. This is the first part of Regulation 37(1) –

37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable…

 

A suitable interval is not defined in the regulations, but was touched upon in ‘The Queen on the Application of Turner v The Police Medical Appeal Board’

para 23 – There is no question of relitigation and, of course, suitable intervals suggests that this is not a matter which should be revisited every year, nor is it.

 

Each case should be considered on its own merits as to whether a suitable interval has passed. In our view, it may be, due to the severity of a pensioners injury, that a suitable interval may be determined as ‘never’.

 

 

Snippet #1 – Comparison Exercise

Snippet #1 – Comparison Exercise

Comparison Exercise

The regulation used to review an existing award is 37(1). A review, or a “reassessment of injury pension” to be more accurate is a comparison exercise from the date of your award, or your last review to the present day. This is confirmed in the case of Metropolitan Police Authority v Laws & Anor [2010]

para 18 – So much is surely confirmed by the terms of Regulation 37(1), under which the police authority (via the SMP/Board) are to “consider whether the degree of the pensioner’s disablement has altered”. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

 

This means that the SMP has to identify a substantial alteration in the pensioners disability from the last assessment. A fresh assessment just based on the here and now is not permitted.

 

David Lock QC – Confusing Cases And Bad Law

David Lock QC – Confusing Cases And Bad Law

David Lock QC gives an interesting insight into a number of conflicting cases and how recent case law has been shaped.

The conflict is between Laws/Evans on one hand and Doubtfire/Boskovic on the other. Hopefully we will have a defining correction at some stage in the future.

You may read his article here,

https://www.linkedin.com/pulse/confusing-cases-bad-law-meaning-effect-decisions-made-david-lock-qc/

Alternately, you may read a copy here.

David Lock QC provides an update to the flawed police pension regulations 2015

David Lock QC provides an update to the flawed police pension regulations 2015

David Lock QC has released a new paper over the financial disaster that was imposed on some police officers by the forced implementation of the Police Pension Regulations 2015.

The Government have indicated that they will remedy the unsatisfactory situation, but it is not yet known how they are planning to resolve the issue, or when.

This is going to be a complex matter to unpick because retrospective changes to ill-health pensions will have a knock on effect to the calculated value of injury pensions as well.

You may read his article here,

https://www.linkedin.com/pulse/pension-rights-police-officers-who-suffer-losses-result-david-lock-qc/

Alternately, you may read a copy here.

Who can view your medical records?

Who can view your medical records?

Sometimes a complicated question has a simple answer

— Dr Suess

Question: “Who can view your medical records”

Simple answer: “A doctor, a doctor, or a doctor”.

Do we really need to reiterate that again? There is no requirement or legal authority for anyone to view your personal, private and sensitive medical records other than a doctor.

 

General Data Protection Regulations

Let’s start by looking at what protections there are for you and your medical records. The main one is the General Data Protection Regulations 2016/679 (‘GDPR’), tailored by the Data Protection Act 2018.

Article 4.1 GDPR defines ‘Personal data’ as follows,

‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person

 

Medical records are one step further from ‘Personal data’ and is classed as a ‘special category’ of personal data, also known as ‘sensitive personal data’,

Article 9.1 GDPR defines the processing of special categories of personal data,

Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

 

The GDPR recognises the importance of this special category of data citing that they are subject to a higher level of protection. There are two ways in which someone may lawfully process (view) or obtain your medical records, the first is consent and the second is a statutory authority. Regardless of the authority relied upon, it doesn’t allow the uncontrolled dissemination or arbitrary viewing of your medical records.

In the world of ill-health retirement and injury awards, here are four of the most common scenarios when access may be required to your medical records,

  1. Ill-health retirement
  2. ‘Assessment for an injury award’
  3. ‘Reassessment of an injury pension’
  4. ‘Appeal to board of medical referees’, usually in response to one of the above events

For practical purposes, scenarios one and two are often considered concurrently by the Police Pension Authority (‘PPA’) as an application for an injury award will often run in parallel with ill-health retirement. Even though this frequently occurs, the necessity for access to your medical records is different in each case.

 

1. Ill-Health Retirement

When an officer applies for ill-health retirement, the PPA are ordinarily obliged to refer a number of medical questions to a Selected Medical Practitioner (‘SMP’) under one of the police pension schemes.

It is suggested that the Force Medical Examiner (‘FMA’), who would usually have had some involvement in your case up until this point are required to provide an opinion to the SMP, as defined in Home Office (‘HO’) guidance and confirmed by Police Negotiating Board (‘PNB’) Circular 03/19,

18. In normal cases the police authority should ask the FMA most familiar with the case to provide advice on the case to the SMP…. The purpose of the FMA’s advice is to inform the assessment by the SMP…


19. To assist the SMP, the FMA’s advice will consist of two sections: a medical background and opinion:


· The medical background will include all relevant medical details and history of the case. This section should take account of the assessments of the officer’s GP and hospital specialist as appropriate and wherever possible should be supplemented with relevant records, reports, X-rays or scans. (The FMA should seek the written consent of the officer for this section to be referred to the SMP.)


· The opinion will be the FMA’s advice to the SMP on the issue of permanent disablement in answer to the questions under regulation H1(2)(a) and (b).The authority should ensure that the FMA is aware of the officer’s compulsory retirement age. Where the FMA is of the view that the officer is permanently disabled he or she should also give his or her opinion on the officer’s capability. (This section will not include any confidential medical information and therefore no consent of the officer is required.)

 

It is perfectly acceptable for the FMA and SMP to be able to view your medical records as ill-health retirement is a medical decision and they are both qualified doctors.

What is not acceptable, or necessary is for any other non medical person or third party to have access to, or be able to view your medical records. This includes, but is not limited to other staff in –

  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

None of these people are responsible for making a medical determination, and therefore there is no legal requirement or need for them to be able to access your medical records.

In our opinion, all requests for consent to obtain, or process your medical records should come directly from the FMA, or the SMP. Records should only be released directly to the person requesting it. More of this later.

 

2. Assessment for an injury award  – reg 30

An application for an injury award (injury gratuity and injury pension) is no longer managed under any of the police pension schemes, but under The Police (Injury Benefit) Regulations 2006. As there is no reference to the FMA in the regulations, it is questionable whether they have any need or legal authority to view your medical records.

Regulation 30 of the PIBR 2006 confirms that it is the SMP, who is required to answer a number of medical questions,

30 (2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent…

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person’s disablement;

What is not acceptable, or necessary is for any non medical person or third party to have access to, or be able to read your medical records. This includes, but is not limited to other staff in –

  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

In our opinion, all requests for consent to obtain, or process your medical records should come directly from the SMP. Records should only be released directly to the person requesting it. More of this later.

 

3. Reassessment of an injury pension – reg 37(1)*

Before an injury pension can be revised under regulation 37(1) of the PIBR 2006, the PPA has to find that the ‘degree of the pensioner’s disablement has substantially altered‘. This is a medical question and Regulation 32(2)(d) dictates that the PPA shall refer the question to an SMP,

30(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—

(d) the degree of the person’s disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

 

As stated before, the regulations do not mention the FMA at all. Therefore there is no necessity or lawful authority for them to request or view your medical records.

We believe that any request for consent to view existing medical records or obtain medical records should come directly from the SMP, with a justification as to what medical information they seek and why. Only the SMP can decide what medical information they may require in any particular case, and each case would have to be considered individually.

We can now add the FMA to our previous list of people who should not access your medical records under an injury review –

  • FMA
  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

It is not acceptable for any other third party to make this request for or on behalf of the SMP, which includes HR managers, even if they have had powers delegated to them by the PPA under the PIBR 2006. The PPA does not have the authority to view your medical records and therefore neither can their delegate.

In our opinion, all requests for consent to obtain, or process your medical records should come directly from the SMP. Records should only be released directly to the person requesting it. More of this later.

 

4. Appeal to board of medical referees – reg 31

An appeal to a Police Medical Appeal Board (‘PMAB’) may require you to provide consent to release your medical records. The PMAB is an independent body and all requests should come directly from the board as defined in HO guidance and confirmed by PNB Circular 03/19,

59. It will be for the board chair appointed by Aon to arrange as necessary for the appellant’s consent to release other medical records, as applicable, from:
· the appellant’s General Practitioner
· any hospital or specialist which has treated the appellant, together with details of any tests and final reports. Aon will send the appellant the necessary consent form. Any reasonable costs necessarily incurred by the board in obtaining these records will be added to the board’s expenses at the end of the case

What is not acceptable, or necessary is for any non medical person or third party to have access to, or be able to read your medical records. This includes, but is not limited to other staff in –

  • FMA
  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

It is not acceptable for any other third party to make this request for or on behalf of the PMAB, which includes force solicitors, even if they have had powers delegated to them by the PPA under the PIBR 2006. The PPA does not have the authority to view your medical records and therefore neither can their delegate.

All requests for consent to obtain, or process your medical records should come directly from the PMAB. Records should only be released directly to the PMAB. More of this later.

 

In summary

At present there appears to be a wholesale abuse of medical records. We believe that the following good practice should be adopted,

  1. Requests should only come directly from the FMA, SMP or PMAB where appropriate.
  2. The request should be on headed paper and signed by the individual concerned.
  3. There should be written justification of what medical records are required and why.
  4. Medical records should only be provided directly to the appropriate doctor requesting them.
  5. All records will be held securely and confidentially.
  6. There should be a record of access for each set of records with a log of who accessed the records, when, where and why.
  7. No records will be divulged to any third party without additional and express permission.
  8. At the conclusion of the process, all records, other than those which may be lawfully retained should be returned, or confidentially destroyed.
  9. A declaration should be signed by the person requesting the records that the above conditions will be complied with at the point of request.

This article has been written taking into account the views of the Information Commissioners Office (‘ICO’) who enforce the lawful application of the GDPR. A separate document containing their opinions on these issues can be found here – https://iodpa.org/the-general-data-protection-regulations-gdpr-and-you/

*Whilst this article does refer to providing consent to access or provide medical records under certain conditions, the current legal advice is that there is NO requirement to provide any consent with regards to a reg 37(1) review.