If you find yourself in a hole, the first thing you do is stop digging
— William Penn Adair Rogers (1879–1935) was an American stage and film actor, vaudeville performer, cowboy, humorist, newspaper columnist, and social commentator.
You have to wonder, don’t you, what went through the mind of whoever recently decided to send out a letter to a disabled former officer which seeks consent to access their medical records?
Staffordshire Police Pension Authority (‘PPA’)(The Chief Constable in a different role) is currently awaiting a decision in a judicial review, a central issue of which is access to injury-on-duty pensioners’ medical records.
We can’t comment on the case, but we can comment on the letter, so let’s do just that.
It does have one thing to commend it – it is reasonably polite in tone, but that is about all that can be said in its favour. Any politeness is lost in the dark undertones of the message.
The letter advises the recipient that a review of his degree of disablement, which was commenced nearly two years ago, is being proceeded with. There is no reason given for the long delay, nor any apology for any inconvenience or distress caused.
Also absent is any reference to what is actually meant by a ‘review’. We have pointed out before that the word ‘review’ does not appear anywhere in the Police (Injury Benefit) Regulations 2006. This is the legislation which govern the administration of the police injury award scheme.
For new readers – the scheme is a non-contributory compensation arrangement akin to an insurance plan. Should an officer be injured on duty to the extent they can not longer perform the full ordinary duties of a constable, then their Chief Constable has the option of requiring them to retire. In which case the disabled individual can be considered for grant of an injury award, which consists of a one-off gratuity and a pension payable for life.
The Regulations allow for the scheme manager to,
. . . consider at such intervals as may be suitable whether the degree of the pensioner’s disablement has altered, and if after such consideration the police [pension] authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.
Such provision is sensible, as in some instances, a pensioner may find their disablement has worsened. In which case they may be due an increase in the injury pension. The opposite is also there, in that if a pensioner experiences a substantial improvement in their degree of disablement then the amount of pension paid can be reduced, on the basis that the individual is now better able to work and thus earn.
The Regulations do not tell police pension authorities exactly when it may be permissible to make the ‘consideration’ – to do so would place a fetter on the wide power of discretion police pension authorities have. However, whenever a power of discretion is exercised, it must be done so properly and with regard only to relevant factors. In the experiences of our members, it is rarely the case that police pension authorities manage to conduct these ‘considerations’ lawfully.
Faced with intransigent police pension authorities, who appear universally to have a complete lack of willingness to accept they have done anything wrong, it is not surprising that we have seen a steady flow of successful judicial review cases brought by pensioners.
Back to the letter. It commences with an inaccuracy, which does not bode well for the quality of the rest of its content. The letter says.
I am writing to inform you that your Injury Award . . . is due for review.
In fact, only the degree of disablement itself is liable for consideration. Not the ‘Injury Award’ which, as we know, consists of a pension and a gratuity. Other forces have made this mistake and have thus caused much distress to disabled former officers, many of whom are vulnerable and in poor health, for it gives the false impression that the gratuity may be under threat as well as the pension.
Staffordshire’s letter does redeem itself slightly, as it states, in bold, that, for this pensioner, the injury pension will not be reduced as a result of the ‘review.’
Now, this is where we see a bizarre aspect of the letter. The pensioner concerned is on the lowest level possible of injury pension. So, of course it can’t be reduced. Why then, we ask, is Staffordshire wanting to hold a ‘review’? Can it be they have reason to believe that the pensioner’s degree of disablement has worsened, and are anxious to provide a higher level of pension payment?
We think not. Staffordshire clearly have no idea whether that is the case or not, for they have ‘respectfully’ asked the pensioner to provide a raft of sensitive personal information, the purpose of which is to,
. . . enable the review to be undertaken . . .
Here is a copy of the questionnaire,
However, having asked for the information (of which more below) Staffordshire helpfully provide some ‘Frequently Asked Questions’ with the letter. The response to one question tells us that pensioners on the lowest band of injury pension will not have their pension reviewed.
We will repeat that, as it is noteworthy. Pensioners on the lowest band of injury pension will not see a ‘review’.
Yet, Staffordshire clearly tell this pensioner that his ‘injury award’ is due for ‘review’. They know the pensioner is on the lowest pension payment, so, according to their stated policy, the pensioner should not be subject to a review.
Then there is the ‘Injury Award Pension Reassessment Questionnaire’ which also accompanies the letter. This asks the pensioner,
Do you consider that there has been a substantial alteration in your disablement since you were last assessed or reviewed for an injury award?
Any pensioner who had to work out what Staffordshire intends with this letter and accompanying material would come to the conclusion that whoever had a hand in putting the package together had no more than a feeble grasp of how to administer the Police (Injury Benefit) Regulations 2006.
We don’t mean to be unkind, and won’t critique much more of what was sent to this one pensioner any further other than to say it hardly helps foster any feelings of confidence that the Regulations will be followed fairly.
However, above all its other faults, one aspect stands out. We mentioned above that the letter came with a request for the pensioner to provide detailed sensitive personal information, including medical information, financial information and details of training, qualifications gained, employment, salary, other earned income, voluntary work and state benefits.
Thus, in the light of the ongoing judicial review, which will examine whether a police pension authority has any right to access a former offer’s medical records, we can only say that it is inflammatory and ill-advised for Staffordshire to seek the pensioner’s consent to approach the pensioner’s ‘Doctor/Consultant’, requesting ‘. . . a Medical Report or Medical Records . . .’.
Staffordshire should know that such information is classified under the General Data Protection Regulations as ‘special category’ data, which is robustly protected by means of detailed provisions within that legislation. If Staffordshire police pension authority thinks it has a right to such data, then there would be no need to ask for permission to access it. Asking for permission is about as clear an admission as can be that the police pension authority knows it has no regulatory or statutory right to such information.
The consent form is a cynical attempt at bamboozling a disabled former officer into signing away all rights which protect his special category information.
Whist the judicial review remains open, and pending any appeals, any decent, humane and sensible police pension authority surely would not be continuing with ‘reviews’ .
We will leave the last word on the matter to Will Rogers, who wrote, ‘There are three kinds of men. The ones that learn by reading’. The few who learn by observation. The rest of them have to pee on the electric fence for themselves.’