Dorset Reviews – lessons learned, or not?

It certainly didn’t take Dorset’s new Chief Constable, Scott Chilton, who was only appointed on 12th August 2021, very long to authorise reviews of injury pensions under The Police (Injury Benefit) Regulations 2006 (‘PIBR’). He must have been in post less than a month before letters have been sent out. A clear message to his serving officers should they become injured.

We have been sent a copy of the correspondence sent out by the force and will examine it to see what lessons, if any, may have been learnt over the years from other forces.

Let’s start by looking at the covering letter sent out by Susan McCausland (HR Officer). We must start off by saying, that yet again, these letters were received by pensioners on a Friday or Saturday, at a time when the recipients are often unable to seek professional help in the form of legal advice or medical support through their GPs. Thankfully we are on hand to give some immediate help and reassurance to those very poorly and vulnerable people.

Here is a copy of the documentation that was sent out –

Dorset letter

 

The first paragraphs of the letter relates to the individual, and states that the review is as a result of their previous SMP recommending a future review. This approach is confirmed in the FAQ sheet (post) where they state “Presently we are only reviewing Injury Benefit Pensioners where the Selected Medical Practitioner (‘SMP’) has recommended a review.

This indicates that Dorset intend to review EVERY injury pension based upon a previous SMP recommendation.

Regulations 37(1) of the PIBR states that reviews may take place “as such intervals as may be suitable”. The recent case of Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 at para 81 is clear, that “It is for the Defendant [PPA] to decide whether a suitable interval has elapsed since the last assessment or reassessment”. It continues, “The Regulation does not permit the Defendant [PPA] to decide in advance that a suitable interval will never elapse”. What flows from this, is that a future date for review cannot be specified either, so a SMP cannot in our view recommend a future date that the PPA can then act on, on this basis alone.

It seems to be common practice for SMPs to make these recommendations, despite there being no requirement or reference to this in the PIBR.

Paragraph 3 of the letter “respectfully” requests that the pensioner completes an enclosed questionnaire. We know from paragraph 182 of the Goodland/Wright judgment (ante) that in the case of Staffordshire judgment, the Chief Constable “erred in law” by threatening the triggering of Regulation 33 for failing to complete this questionnaire.

Yet, we see in the FAQ, there is a suggestion that a failure to complete the questionnaire and consent to medical records may trigger Regulation 33. This implied threat is in itself is at best misleading and at worst, unlawful.

Paragraph 5 of the letter states that the pensioner has 28 days from the date of the letter to comply. The only reference to timescales in the regulations is when the pensioner has 28 days in which to appeal an SMP decision. So where in the regulations do these self-imposed timescales come from?

This 28 day deadline is also highlighted in bold in the FAQ. These time limits are quite rich considering forces regularly ignore correspondence from pensioners and their legal representatives for months and months at a time. Pensioners can also wait for six months or more for SMP reports to be forwarded after completion.

What this really highlights is the total lack of care or compassion, or understanding of the vulnerable and often very ill people that Dorset Police are dealing with. We have experienced first-hand the impact that a letter of this type has on a pensioner. HR staff sitting in their comfy, air conditioned offices, who probably have no experience of mental health issues, and see these ex-officers and as just a collar number, start date, end date and continuing cost (burden) to the force. We do make mention that it is not all HR staff who lack the emotional connection with their former officers, we know of  some HR personnel who go well beyond what is expected of them in caring for their injured and ill police pensioners. But clearly not in this case.

Many pensioners with mental health issues, often caused or exacerbated by their forces, will often not open post for weeks or months at a time.  A self-imposed limit of 28 days does nothing to reassure us that the force know who or what they are dealing with.

It has to be asked, what training have Dorset staff received to deal with vulnerable individuals? Little, or nothing is probably the answer.

We have already touched on the non-mandatory questionnaire, but let’s look at it in a little more detail.

It rightly asks whether the pensioner considers whether there has been a substantial alteration in the condition of the former officer. That is a sensible question to ask, and if the answer to that is ‘no’, the pensioner should be left alone. Alas, it then continues to go into a lot of detail about employment and other conditions.

We all know the purpose of these intrusive questions; it is an evidence gathering exercise for no other purpose but to reduce. We would know it commonly as a ‘fishing expedition’.

We all know that the SMP (perversely) performs a calculation (rather than a medical assessment) based on what a pensioner is earning in order to determine how their physical or mental disability has affected their earning capacity. We were, however, shocked to read this question –

(g) Date of next pay increase (as this may impact on your next award).

Quite simply this approach is unlawful. A regulation 37(1) reconsideration is about the ‘here and now’, not about what you may earn at some stage in the future. If anyone has had future earnings used in a calculation in this manner, we would suggest that you immediately have grounds to appeal and would urge you to contact us at admin@iodpa.org.

Finally, the questionnaire contains a declaration entitled Section 2 of the Fraud Act 2006. The inclusion of this caption seems to have originated in Avon and Somerset Police, way back in 2014, subsequently copied by Staffordshire Police and has now been adopted by Dorset Police. Quite frankly, we find this wording disgusting and highly offensive. We would recommend that pensioners do NOT sign this document based on this one caption alone.

Police officers, by the very nature of their role, are honest and have unquestionable integrity. They have signed the Official Secrets Act, prepare and present papers for the most heinous of crimes at the highest levels of probity, and yet they are not trusted to honestly complete a questionnaire (which is not required under the regulations or case law). This speaks volumes of the contempt in which they are held by their forces.

Let’s now look at the FAQs.

In answer to the question “Will my medical records be kept confidential?” they reply “Only SMP reports will be seen by non-medical staff in the HR Operations Corporate Support Team”.

Clearly, we need to provide Dorset police with a lesson on confidentiality of personal and private sensitive medical information under the GDPR and the PIBR.

The PIBR states under Reg 30(2)(d) that if the [PPA] are considering whether to revise an injury pension, they shall refer question (d) above to the SMP –

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

It is clear that all medical decisions are to be answered by the SMP, and the SMP alone. There is NO provision in the regulations for any other nominee of the PPA to request, collect, collate, or view any personal and private medical records of retired pensioners. In our view medical records should be forwarded directly to the SMP with the condition that they are not disclosed or shared with any third party without express permission.

The fact that an SMP may not want records sent directly to them, is not a reason not to do it, if it secures the confidentiality of your medical files. At paragraph 150 of the Goodland/Wright judgment (ante), Dr Vivian kindly wrote to Mr Wright offering him the facility of sending his medical notes directly to him. This proves that it can be done.

Once the SMP has made their consideration, Reg 30(6) states that the decision ‘shall be expressed in the form of a report’.

Having read many SMP reports, we are well aware that the SMP will usually prepare a written report as well as a new certificate of disability (often referred to under the 1987 Regs as a H1) including the new level of disability or banding.

The covering report, however, is verbose and very detailed, and will often contain a summary of the pensioner’s entire medical background and history. It is quite wrong in our view, that this report be shared amongst any individual in HR, let alone a team. The ONLY people entitled to see a person’s personal and private medical conditions is another medical professional, and that is with the express consent of the pensioner.

In our opinion, if the SMP report has to go back to the force, then it should ONLY go back to someone who is medically qualified, and that person is the Force Medical Examiner (‘FMA’), and this is despite them playing no recognised role in the review process according to the PIBR. The only document that should go to HR is the revised certificate.

Finally, we turn our attention to the two consent forms that were attached for the pensioner to sign. They ask for full medical records, which, in our view, is not necessary. The force would have obtained a full set of medicals at the time of the officer’s ill health retirement so why ask for a duplicate set? Or have they lost the original set they held which could lead in to another potential can of worms to be opened?

In the Goodland/Wright case (ante) the judge deemed that it was for the SMP to decide what was necessary, and in that case some of the SMP only asked for notes since the last review, so our question to Dorset, is why are you asking for full medical records since birth in every case when other forces are not doing the same?

We note that the ‘CONSENT FOR THE RELEASE OF GP RECORDS’ document contains a statement that any withheld records my affect “my application for ill-health retirement or an on duty award”.

There forms have been re-purposed for these reviews, but are not fit for purpose as unless expressly requested and justified by the SMP, the pensioner should only be requested to provide their medical records since the granting of the award, or the last review. The case of the Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 was not superseded by the Goodland/Wright case, which states that a review is a comparison exercise, and therefore medical notes since the last review should nearly always be sufficient.

We would have expected a professional organisation to have seen the small but nonetheless important administrative error and actually created a document that reflected the regulation that they are dealing with, rather than ‘making do’.

We can only profusely apologise to all those who will be affected by this review process and the poor and compassionless manner in which they are being dealt with. Perhaps a letter asking the former officer how they are and whether there has been any change initially would not have gone amiss, when many have not heard from their former force for years. Or are we asking for the impossible?

Dorset Reviews – lessons learned, or not?
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20 thoughts on “Dorset Reviews – lessons learned, or not?

  • 2021-10-17 at 4:23 pm
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    The really depressing aspect of seeing one Force after another pursuing this policy is that those (mal)administering it occupy their comfy offices safe in the knowledge that they will never have to confront the sort of creatures who inhabit certain sections of society. Meanwhile brave men and women do so on a daily basis and sometimes unfortunately are injured as a result. Even if the injury is serious enough to render them no longer able to carry out the duties of a Police officer they have to jump through hoops in order to obtain an IOD award. At the end of this process it will have been established that their injury was incurred on duty and is PERMANENT.
    The original and true purpose of the regulations recognised the need to compensate for the resultant loss of earning capacity and the four bands of award reflect the degree of injury and loss of capacity. Having established the level of award the regs state that there needs to be a SUBSTANTIAL alteration in the degree of disablement in order to vary the award. It follows that in the vast majority of cases a review should result in ‘no change’.
    Unfortunately the faceless bean counters that run the process seem to start from the position that the majority of awards are somehow undeserved and should be reduced by whatever means possible. This attitude is borne out by more than one Force recently including in its questionnaire a reference to the Fraud Act, which I consider to be a complete insult.
    Butterfly career seeking Chief Constables would do well to consider the consequent undermining of the morale of their officers caused by their attempts to save money which in my view amounts to a moral breach of contract.

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  • 2021-10-16 at 8:41 pm
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    How often have we heard the Police, Government, or other public services, telling lies after a noticeable event. Classics include “more police officers in the area” and their apparent favourite, “lessons will be learned”!

    How often are those statements true? Rarely, if at all, but for one particular issue, it is very clear that lessons have been learned & that is regarding the lie they tell us, that the reviews of police Injury On Duty pensions is not a money saving scheme.

    Unfortunately, they have learned lessons from there previous attempts!

    After the Police College & the Home Office spent considerable time on rewriting the regulations, they then failed to get these infamous draft Regs through Parliament.

    So, what did they do? Lesson learned…. don’t go through Parliament, so the ‘Architect’ moved to Avon & Somerset and tried to reduce pensioners there.

    As they only picked on those who were the youngest and with the highest bands, that failed spectacularly too.

    So the lessons they learned there, were taken by the ‘Architect’ to Staffs, where a new attempt by was started across the board, (unless you were a Band 1 & can only increase your pension).

    However, a couple of bloody noses, occurred in this new attempt, which saw them using any dirty tactic they could think of and finally their ‘Ace’, to ensure a judicial review finally went in their favour.

    From that it seems obvious that further lessons have been well and truly learned, as Dorset now seems to be taking all the ‘best bits’ re money saving in their approach to reviews, whilst ignoring any welfare needs, or consideration of those former officers health being affected.

    Isn’t it a shame that the same dedication is not applied to other issues where ‘lessons have (apparently), been made!

    Isn’t it strange that a new Chief Constable, days into the job, considers that IOD Pension reviews are a higher priority, than say, Domestic Violence, Drugs, County Lines etc. The cynical answer to that, is that those issues all cost Dorset money, whilst the persecution of former officers is obviously money saving.

    Who will be next and what version of the ‘lessons learnt’, will they be using!

    No wonder Police Officers are leaving to drive trains! Least they have a Union that will fight for them against such ‘lessons’ as these.

    Will the Fire Service be next? Err No, I wonder why!

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  • 2021-10-15 at 8:28 pm
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    The one thing that gets me about the form is asking what you earn.
    The question before the SMP is a medical one. How many hours you can work or the nature of the work you do is relevant to assessing your capabilities as a disabled person. What you earn isn’t relevant.
    A company director can be a paper excercise involving no work at all. Any income from this is irrelevant to the medical question.
    Asking about any other income is again none of their business. You can earn from investments etc which is none of their business as you can be layer up in bed and still earn.
    Asking about benefits you receive. Again they are only entitled to know which benefits you are in receipt of either for the injury or on the list of deductible benefits.
    Any IIDB that you get for other issues or PIP for example is again none of their business.
    The one thing that concerns me about your production of the blog is again the advice you give regarding release of medical notes.
    The recent case going against the 17 refusing to release notes should mean such comments in such a blog should be qualified so as not to lead vulnerable readers down a tricky path.
    The case should have focused on notes from last review but it didn’t.
    So as it stands producing a blog and still giving that advice is questionable.
    The IODPA blogs could be read and relied upon by some as facts to argue and many won’t read the case law or instruct legal services before responding.
    I find it quite irresponsible to be still giving such advice in such a precarious situation.
    Especially in the context of this blog saying they should be in possession of notes from your retirement so shouldn’t need everything.
    This contradicts advice given to contact your force and have them return or dispose of notes under data protection rules once the process has ended.

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    • 2021-10-16 at 11:32 am
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      The blog does not advise pensioners not to provide medical records or to comply with what the SMP may deem necessary.

      It is questioning the blanket approach of Dorset Police who appear to demanding full medical records in every case because they are using forms designed for another purpose. Other forces are not asking for full notes and neither did some of the SMPs in the Goodland/Wright case.

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      • 2021-10-17 at 6:22 pm
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        IODPA, your blog is spot on imho and you are definitely NOT advising anyone not to hand over their medical records from how I have read it.

        You are right to question their approach when Essex are asking for records since their last review.

        IODPA is definitely not being irresponsible. They are challenging and asking appropriate questions which is what we have come to expect of them.

        IODPA, let me tell you something I am sure you have heard a million times before….you can’t please all the people all the time….there will always be someone who wants to complain.

      • 2021-10-18 at 9:00 am
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        Why should the recent case have focussed on medical notes from the last review when it doesn’t actually mention that in regulation 33? It does not mention medical notes whatsoever hence the challenge. And the QC involved must have believed in this thought process to have taken it all the way.
        No doubt, the decision by the courts was purely a political one rather than the correct decision.
        All I can say is thank you to IODPA and the police federation for supporting those involved and taking it to judicial review.

    • 2021-10-17 at 9:19 pm
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      Sorry to say David Soul but where have you read that Iodpa advise the with holding of medical notes? I think that you are confusing yourself and posting some comments that are in itself irresponsible. The Iodpa do not give legal advice and that is blatantly apparent as it is reiterated at their National meeting and local meetings of which I have attended both.
      You comment that it contradicts the advice to request medical notes are returned or destroyed is just a bit of a childish dig and again unhelpful to the greater audience in fact a pointless comment. Most pensioners will not have the energy or be bothered to even approach their forces for the return of notes and therefore the force will have retained copies of medical notes.
      Maybe if you want to be helpful start a campaign through Facebook or a similar social media outlet reaching out to injured officers and helping them request the return of notes?
      I personally thank Iodpa for keeping us updated and fighting for the greater cause. Do not forget it wasn’t Iodpa that took the Staffordshire CC case to court they just ensured that it happened!

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  • 2021-10-15 at 6:11 am
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    A well rearched and well written blog. Legally, ethically and morally, right on the button.
    As in all things in life, we have to take responsibility for our actions, or else we are forced to do so.
    Sadly, in the meantime, people who dedicated their lives to serving others and became injured will be hurt even further. Indefensible.

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  • 2021-10-14 at 9:46 pm
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    Doesn’t this just show the contempt that our blue heroes are held in by their former forces? Willing to give their lives for their community. (If they had given their lives, the whole country would have known how heroic they had been and the force going into full blown PR showdown saying how their ‘blue family’ are rallying around each other)
    Become badly injured and there is no compassion. Just seen as a drain on their funds They give with one hand, they taketh with the other.

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  • 2021-10-14 at 9:01 pm
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    Another Chief Officer who has no understanding of the PIBR, and ploughing on regardless.
    To all currently serving Police Officers, please pay heed of what your force is likely to do to you if your injured on duty and forced to retire. You will be made to fight all the way for your ill health retirement pension, and then a separate fight for an injury on duty award from them. They will fight tooth and nail to deny them to you. If they are unsuccessful in doing that then they will get you at the Regulation 37(1) review, where the force select and pay the bill for an “independent” medical opinion from the forces SMP. Usually an Occupational Health Doctor as normal GP’s wont touch the role with a barge pole, who will find a reason to reduce your banding down to a lowly band 1. If your not satisfied with that decision, you can always appeal to the PMAB. The PMAB is made up of independent Doctors, also from the ranks of the Occupational Health regime. Now this involves the force SMP attending the PMAB for which he receives another fee.

    So the SMP is in a win win situation, whereby he gets paid first to reduce your banding at your review and then attend your PMAB where he gets paid again. (it isn’t difficult to see why the SMP would have no problem with attending these “reviews” and subsequent PMAB appeals)

    The PMAB seems to select the same individuals for the panel.
    Now the loss of some medical records seems to be par for the course so don’t think your alone in this happening as I am aware that the panel members have been caught out searching patients clothing for covert recording devices, which you are entitled to use as an aide memoir. They have also “lost” medical records which the ICO via the GDPR and Data Protection Act class as “special category data”
    PMAB’s are not alone in losing your special category data, there are many occurrence’s of Police Forces losing these records.

    The UK GDPR singles out some types of personal data as likely to be more sensitive, and gives them extra protection:
    such as data concerning health for example.

    In the Goodland case at 212. It says in relation to medical records “Fourth, the request was proportionate. It was solely for the purposes of the statutory task which the SMP was required to carry out. The materials would be destroyed once that task had been completed and the time for any appeal had expired. Although the request was for general authorisation, the access would be limited to medical professionals and subject to the professional obligations of the SMP and OH personnel including their duties of confidentiality and under the data protection legislation. The SMPs could be relied on to include only relevant information in their reports. In relation to the risk of them relying on inaccurate information, the Claimants would receive a copy of the report relating to their case and they also had a right of appeal under the 2006 Regulations.”

    “The materials would be destroyed once that task had been completed” and “the access would be limited to medical professionals and subject to the professional obligations of the SMP and OH personnel including their duties of confidentiality and under the data protection legislation.

    So, put simply any request for data must comply with the duty of confidentiality and also the GDPR and Data Protection Act. Force HR or Force solicitors are NOT entitled to see your Medical records. If any request comes in from the SMP send what you think is compliant with Data Protection Laws, and with the SMP’s duty of confidentiality.

    At the end of your review as the Judge said “The materials would be destroyed once that task had been completed and the time for any appeal had expired.” So, make sure your medical records are returned to you or are certified as destroyed by the SMP.

    Having read the above blog I can only say watch this space for more JR’s to come.

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  • 2021-10-14 at 8:14 pm
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    Glad to see he’s knuckled down to the serious issues as soon as he’s into the job. A shame that he’s committed hard won expenditure to such a futile task. He’ll be bogged down with litigation for the next few years and, if by some chance he’s successful, his gains will be outweighed by his costs. Maybe he should phone his predecessor for tips on how to run a police service – she did a pretty good job as I recall – without looking for money from her injury pensioners. Shame on you Scott – one way or another your force will be the poorer for your “efforts”.

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  • 2021-10-14 at 7:45 pm
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    Thank you IODPA for highlighting yet more bad practise from another police force. I, for one, am grateful that we have you fighting our corner and blogging these kind of articles.

    I am disgusted that these very poorly former officers have this to deal with on top of their injuries. Haven’t they suffered enough for their communities? Yes, I know forces can review…how many actually are…three, four? And all those who are, are only doing them to save monies, despite their protestations to the contrary. (They think we are all so stupid to believe them when they bleat there is not down to savings)

    Dorset officers, my heart is with you, like it is with those in Essex. Please stay strong and don’t let them grind you down as this is what they are relying on.

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  • 2021-10-14 at 7:36 pm
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    I so hope that when word of this gets around in Dorset, any officers who knew nothing about IOD awards discover it and claim one. There is no time limit to claim one! I also hope they were on the 1987 Pension Regs.! There have been a few like that who have contacted iodpa.org in the past. It is shocking that other forces are coming along and joining this circus! It cost WYP a LOT of money to decide to review me after 20 years! I think it should be that the ONLY medical records they can ask for are those relating to the injury!

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  • 2021-10-14 at 6:48 pm
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    You have provided a very helpful assessment of this Dorset review – in my view. These questions seem to be solely asked to potentially action a reduction in the pensioners award but never to enquire about welfare.
    Thankyou so much for highlighting the unfairness and intent.
    Very best regards

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  • 2021-10-14 at 6:35 pm
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    This was obviously prepared well in advance of the new Chief’s appointment. There is no way this was a day one priority so it has all the fingerprints of the Police and Crime Commissioner getting in quick with a new Chief. I hope he sees this and comes down hard on the side of his officers. However I somehow doubt it, Police Chiefs are not now selected as leaders of their troops but more on their political correctness.

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  • 2021-10-14 at 6:35 pm
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    Nice to see that yet another HR department has a poor appreciation of the regs, and what the regs actually entitle them to do.

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  • 2021-10-14 at 6:32 pm
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    What an absolutely disgusting, sickening start to this man’s stewardship of the force.

    I hope that his serving officers take note, and really think twice before putting themselves in danger. It just isn’t worth it. ‘Look after number one” was drilled into me in my early service. Never has it been more relevant.

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  • 2021-10-14 at 5:47 pm
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    That man is an utter disgrace to Policing.
    He was incredibly unpopular in Hampshire, he doesn’t care about his staff, only his career progression. He’s utterly useless.
    Shame on him. Thinking of all our Dorset colleagues facing a review.

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  • 2021-10-14 at 5:47 pm
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    Can we not have this CC arrested for causing alarm harassment and distress??

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  • 2021-10-14 at 5:35 pm
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    An excellent piece, well written explaining the issues that are put in place by ignorant police forces who are just doing the process in order to try and save money.
    It is a disgrace that they are not learning by the mistakes of other forces and abiding by the clear regulations.
    It is sole destroying to read this but no surprise

    Reply

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