Learn from the mistakes of others. You can’t live long enough to make them all yourself.
— Eleanor Roosevelt (1884 – 1962)
Would you ask a plumber to service your car?
Although the initial response might well be a resounding, ‘No’ a few moments thought could lead us to contemplate that there might, just possibly, be a few plumbers out there who are also qualified experienced car mechanics who have access to all the rights tools and equipment needed to service a car.
Let’s apply this thought to members of the medical profession. How many doctors are there who are experts in police pension law? By expert we mean hold a qualification in law – a law degree, and who fully understand all the police pension regulations and case law. Or, in reverse, how many legal professionals are there, such as solicitors or barristers, who are also registered with the General Medical Council as fit to practice medicine?
There must be a few, but so far as we are aware none of the doctors employed in the role of ‘selected medical practitioner’ (SMP) by police pension authorities in England and Wales have any sort of legal qualification or experience.
Yet doctors are being required to make decisions on matters of law in respect of police pension entitlement – matters which they are surely not competent to decide.
The Regulations which govern police pensions state that certain decisions must be made by a medical practitioner selected by the police pension authority.
For new readers – a SMP is a doctor who is required by a police pension authority to decide certain regulatory questions in respect of police ill health and injury pensions. A SMP also provides medical assessments within that context.
It is possible the drafters of the pension Regulations never envisaged just how many errors in law otherwise worthy doctors could make. It is also possible that some police pension authorities have wrongfully tried to ‘assist’ the supposedly independent decision making of their SMPs by inserting themselves into the process.
This has never resulted in good decisions, for the staff involved are frequently as poorly equipped to decide matters of law as are their SMPs.
Home Office guidance issued in 2004 was that any doctor who is to act as a SMP should, ideally, 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.
The guidance also says that, 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.
No mention there of legal training or qualifications.
We are aware that some SMPs attended a training event arranged by the College of Policing in January 2014. It was presented by one Nicholas Wirz, who is a solicitor employed by Northumbria Police, and in our opinion, hardly best placed to be trusted to deliver unbiased training. We have commented earlier here on the doubtful content and appropriateness of this training, so don’t need to say any more other than it was, at best, biased and dubious and very likely to lead SMPs astray when dealing with the legal aspects of their role.
One SMP who attended the training became so disorientated that she consequently claimed she had all the powers of a high court judge, and could order individuals to do her bidding.
Certainly, there has been no lessening of the number and frequency of mistakes made by SMPs since the training event.
So far as we are aware, apart from the single College of Policing event, it is left entirely up to individual forces to ensure their SMPs are competent in both medical and legal expertise.
A SMP’s opinion on a medical matter can be appealed, and thus considered by a panel of other doctors, including at least one specialist in the relevant field of medicine. However, a SMP’s decision on a legal aspect, if challenged, will almost inevitably have to be settled in a court of law.
This is so because there seems to be little point in taking a questionable legal decision by a SMP to more doctors – to a police medical medical appeal board composed of only doctors. Increasing the number of doctors, who have no law qualifications, involved in the decision making process is no guarantee of them being any better able to understand the law. All that happens is that the appeal board covers its shortcomings by appointing its own solicitor or barrister to attend the hearing, thus putting the appellant at a huge disadvantage unless they can afford to be represented by their own solicitor or barrister.
Unfortunately, far too many disabled former, and serving officers, continue to have to suffer the stress, inconvenience and cost of dealing with mistakes made by SMPs and by appeal boards.
So, are forces well enough equipped to provide legal training for SMPs and thus help prevent mistakes? Even assuming they have the will to do so?
Staffordshire’s Chief Constable Morgan, who is currently engaged in a legal process resulting from questionable actions taken by a SMP and by himself, not long ago researched and produced a paper on the ‘Force Management of Ill Health Retirements, Injury on Duty Awards and Police Medical Appeal Boards.’
‘Many forces are struggling due to the lack of expertise within their organisations. Both forces and staff associations report difficulties managing these issues due to key personal leaving the organisation or being absent for short periods due to sickness or prolonged periods of leave.’
‘The structure of some force HR facilities do not support the management of the process. When managed by shared service pools rather than through specific dedicated individuals, personnel are unable to build up experience in dealing with these cases. This is acutely felt by small forces that do not have the workload to enable individual staff members to build up their experience of this work.’
‘The above issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.’
‘In light of the above, force personnel lack the confidence and expertise to successfully manage these processes. This is compounded by a perception that senior management in the service do not understand the complexity of the role, do not provide adequate support and that the regulations which govern these processes are not fit for purpose.’
‘There is variance in the level of engagement of legal professionals and forces are not only obtaining legal advice from a number of sources, including individual force legal teams and contracted external legal advisors, but in some instances forces are without the support of any recognised legal professional. Due to the range of legal areas force solicitors cover, and in some instances the relatively low number of occasions when their services are engaged, legal services have been unable to develop expertise in these areas.’
From this, and from our members’ reports of continuing maladministration arising from lack of legal knowledge exhibited by SMPs, we are disturbed to know that SMPs are no more clued up now on legal matters now than they were back in 2009 when Dr Broome, (a co-worker of Nicholas Wirz and undoubtedly advised by him) erroneously thought it entirely lawful to reduce, in the course of one day, with no medical examinations, the pensions of no less than 70 elderly disabled former police officers merely because they had reached a certain age.
There are far too many current examples of legal knowledge being woefully inadequate in SMPs for us to discuss them all here. However, we can present one recent example which perhaps illustrates the situation rather well.
An individual applied to be awarded an injury on duty pension. The SMP decided that the person did not qualify, as he had received the disabling duty injury whilst employed in another force. The officer had transferred from one force to another during his career. The SMP’s view was that the officer’s current force was therefore not liable to pay him an injury pension.
This was entirely an instance of a SMP failing completely to understand the relevant law. It seems the SMP was not even capable of reading the Police (Injury Benefit) Regulations 2006 to check what the law said. Had he done so he would have seen this:
Authorities responsible for payment of awards
41, – (1) An award which is payable to or in respect of a person by reason of his having served as a regular police officer shall be payable by the police authority of the force in which he last served as such.
Not difficult to understand. Even a layperson should be able to get to grips with this straightforward piece of law. But, we hear of SMPs, and HR managers complaining that the various police pension Regulations are hard to understand, or are poorly written. Chief Constable Morgan has even gone so far as to suggest the pension Regulations are, ‘not fit for purpose.’
We don’t agree. Any difficulty SMPs face is down to lack of basic understanding of the law, and lack of adequate unbiased training. They make mistakes because they are out of their depth, and because HR managers, and others, insert themselves into the decision making, which by law, should be the sole disinterested responsibility of the SMP.
An oversight, a mistake, such as the one above is hugely distressing to the individual involved. The blame lays not only with the SMP but with the people who hired him and who are available to him for legal advice. In this instance we don’t know whether some hidden agenda influenced the SMPs decision. If that was the case, then the maladministration moves into the area of malice.
It was Chief Constable Morgan’s considered opinion that the best way to deal with the many deficiencies he encountered in his research would be to centralise SMP services. He thought that regional centres, controlled and staffed with doctors selected and presumably trained by the Home Office would be a solution.
Not so. It is our view that such an arrangement would make matters worse, not better. We suspect the Home Office realises this, and is content to let individual chief constables continue to carry the cost of litigation whenever their SMPs make mistakes.
We rarely express any sympathy for SMPs, but we do acknowledge that they are not all hopelessly inadequately trained. There are some excellent SMPs who consistently make sound medical judgements and who apply the police pension regulations fairly and accurately.
Unfortunately, for every SMP who can’t be bothered to read the Regulations, there are a host of HR and Occupational Health workers, plus senior officers, who simply don’t have a clue and who either fail to recognise their SMPs shortcomings, or who are content to allow them to occur.
Between them, these persons in positions of responsibility do their forces no good at all. Mistakes cost money. They also destroy confidence. Few forces still cling to the fool’s gold belief that conducting reviews of the degree of disablement of former officers will result in savings. The mistakes that SMPs and HR staff help to ensure that savings are illusory. Importantly, even if reviews were all held perfectly, the data indicates strongly that as many or more pensions stand to be increased than decreased, with the vast majority remaining unaltered.
Despite this, some forces, for reasons unknown, continue to employ plumbers to do their car servicing.
Good luck with that.