The question is, “What is an injury on duty?“.
It’s a simple question and you’d think there would be a simple answer. Well, actually there is, if you look at regulation 6 of The Police (Injury Benefit) Regulations 2006, in which paragraph 2(a) states –
2(a) the member concerned received the injury while on duty…
So there you have it, apart from a couple of caveats that we’ll cover shortly, it is very simple. If you are ‘on duty‘ i.e booked on and working a recognised shift and you become injured, then it is an injury on duty. At IODPA, this is the advice that we have always given our members.
Who could not understand this simple concept?
Well, Selected Medical Practitioner (‘SMP’) Dr Charlie Vivian it seems.
In our last blog (which also happened to feature Dr Vivian), we referred to a document called the SMP paper, which is a paper entitled “The Police (Injury Benefit) Regulations 2006 – A guide for conducting the Injury Assessment”. This is a document that was written and agreed upon by three SMPs including Dr Vivian and the force solicitor from Northumbria Police.
We stated in our last blog, that we do not agree with much of the content of this paper, and that position hasn’t changed.
We will again be quoting from this paper as it ties in with this blog, so without further ado, this is what it says –
Furthermore, even if the officer has successfully claimed that the constabulary was negligent, and this resulted in injury, this would not automatically qualify as an injury on duty. Examples include if a chair broke, or the officer slipped on ice. The SMP should consider the facts of each case, but not automatically assume that such events qualify.
The paper alludes to the fact that a collapsing chair or slipping ice on would not be an injury on duty which is worrying because “unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct” these examples would satisfy the regulations with regards to being an injury on duty.
Unfortunately, we are aware that Dr Vivian has on a number of occasions refused to accept that an injury was an injury on duty because it was not in the execution of duty. Dr Vivian has performed over 400 assessments, and so the exact number of cases where he has applied the wrong test is unknown. That said, any decisions where the wrong test is applied is worrying.
Let’s now look at a recent judicial review, handed down on the 23rd February 2022, which confirms that this, and previous decisions of Dr Vivian were wrong. It involves an officer from Hampshire Police who was injured in 2007.
The full transcript can be read here – https://www.bailii.org/ew/cases/EWHC/Admin/2022/385.html
It’s fair to say that the injury was a result of tomfoolery in the canteen between the officer and a colleague. Rather then paraphrase the incident, we’ll refer you to the summary from paragraph 14 –
“14. In 2007, on the 18th of November, the Claimant was on duty at Fratton Park police station in Portsmouth in the early hours of the morning working in the parade room with other constables who were writing up incident reports. The normal banter was taking place between the constables and as part of that the Claimant threw a Sellotape roll at PC Fruin in jest. It hit him with a glancing blow to the head, causing amusement and no injury. He looked round and got out of his chair and said he was going to tip her onto her backside or words to that effect. He was not angry. The Claimant was not frightened, but she decided to run away and as she was going towards the door he caught her, held her by her shoulders, swept her legs away with a judo style move. They both fell into a heap on the floor with PC Fruin on top. During that fall the Claimant’s right knee and leg were twisted and she suffered an injury to the medial compartment of her right knee.”
To help us better analyse the case, the judge listed some mnemonics explaining the various ways in which an injury would be an injury on duty under the regulations, which we’ll summarise here (please read the judgment for a more detailed explanation) –
EOD – Execution of Duty. This would cover an off duty officer that put themselves back on duty whilst reacting to an unfolding incident before them.
WOD – While on Duty. This is, as the judge stated “The constable was either on duty or not on duty.” The vast majority of cases will be covered by this, and the subject of our blog.
WOJ – Whilst on a Journey. Journeys too and from work are covered, even if there is slight deviation in route.
NOD – Not on Duty. This would cover for example where an officer is assaulted by a malevolent person purely because the officer has been recognised as being a police officer.
Dr Vivian, as the SMP, was appointed on the 19th November 2019 to consider whether this was an injury on duty. Following on from our introduction, it won’t surprise you to learn that on 12th February 2020 he stated it was not an injury on duty.
The judge made the following observations –
“[Dr Vivian] directed himself that he needed to distinguish between injuries suffered in the execution of duty and injuries based on mere “status as a police officer”.
“He [Dr Vivian] considered that the law required him to separate out these two types of category, the former attracting compensation and the latter failing to attract compensation. For the reasons set out below I rule that the SMP misunderstood the law and so misapplied the law when making that distinction.”
“In his conclusion the SMP stated that the right knee injury was not an “injury on duty”. Those were his words. I find that as a matter of fact and law he was wrong about that conclusion.”
“But he [Dr Vivian] appears to have ignored the WOD category completely or to have misinterpreted it.”
An appeal was made by the officer to the Police Medical Appeals Board (‘PMAB’). Hampshire Police submitted that the injury wasn’t “on duty” citing the case of Stunt. The judge stated, “For the reasons set out below in my judgment that submission was wrong in law.”
The PMAB concluded that whilst the injury was suffered “on duty“, it was not “in the execution of duty“. The board also cited the cases of Stunt and also Gidlow, but the judge was of the opinion that they had conflated the mutually exclusive elements of WOD (While on Duty) and EOD (Execution of Duty).
The judge ruled that Dr Vivian, Hampshire Police and the PMAB incorrectly applied and interpreted the regulations, and that in this particular case it was an injury on duty. He also made reference to Home Office guidance which he deemed was “misleading and wrong” and should be withdrawn.
He helpfully provided a route map through the regulations that the SMP should consider in sequence.
- Negligence or Misconduct (Reg. 6(4) disqualification);
- Idiopathic disease or condition (“injury received” test) without any causative link to duty;
- WOD application (Reg. 6(2)(a));
- WOJ application (Reg. 6(2)(a));
- NOD application (Reg. 6(2)(b));
- EOD application (Reg. 6(1)).
The first consideration (or caveat as we alluded to earlier) is whether (à la regulation 6(4)) “the injury is wholly or mainly due to his own serious and culpable negligence or misconduct”
The second consideration, is whether there is a causal link to duty. For example adverse reactions to valid operation requirements or disciplinary matters have previously been excluded as being an injury on duty.
Once these two questions are disregarded, the SMP should then go on to answer questions (c) to (f). It should be noted that (c) to (f) are mutually exclusive and do not override or cancel each other out. If one of the conditions is met in (c) to (f) then it is an injury on duty.
The question that needs asking, is “how many other cases has Dr Vivian refused or apportioned an IOD award because of his incorrect interpretation of what constitutes an injury on duty?” We’d be happy to hear what Dr Vivian has to say about this judicial review and more importantly, what plans he may have to revisit his earlier assessments.
In our view, the regulations have always been very clear, ‘while on duty’ means just that ‘on duty‘ and needs no further interpretation.
We cannot find a more apt comment than one reported in a Pensions Ombudsman (‘PO’) decision (Cornish v Essex Police) where Lord Denning was quoted as saying “No person should put their own interpretation onto any regulation or law but should follow them to the letter. It is the prerogative of the Court and only the Court to interpret legislation.”
This is just one example of many, that we are aware of, where SMPs are interpreting the regulations and case law incorrectly, and usually to the detriment of injured officers.
If you believe that your injury on duty award was refused on similar grounds, please email us at admin@iodpa.org
Reading this through I have to take my hat off to the officer involved for not throwing the towel in by giving up and also for seeking legal advice.
Unfortunately, as well all know, many would have and in fact already have, not able through illness to continue to fight for what is theirs.
I also note the comments made by Mr Justice Ritchie who certainly didn’t mince his words in how the matter had been dealt with before reaching him. Now that’s surely a wise mind to have hearing the case and as IODPA have also pointed out, the comment from Lord Denning is also extremely clear as to who it is who should be making interpretations of law.
A great result in the end, hopefully enabling a colleague to finally move forward with their life. Stories like this show that it is possible to get the right result over the finish line but the struggle to do so is so very, very difficult. Top result 🙂
It is appalling to still read that SMP’s are getting away with treating Officers in this manner. My own experience with Dr Cheng in 2015 is has left me with even more issues than before I saw him, after a 20-minute talk from him, the review was over. As I left his office stunned and somewhat confused as he had referred me to see a Dr Pitkanen, Consultant Neuropsychiatrist, he suddenly got up out of his chair and asked me to return so he could take my blood pressure stating whilst chuckling to himself that he had better check that I’m still alive. Don’t get me started on Dr Pitkanens consultation needless to say both of these wonderful, caring, professional people helped me…not. If it wasn’t for IODPA I too would have fallen by the wayside, my case is ongoing and stretches back to 1992. In this instance though, a review I had with the FMO as they were then, carried out at yearly or as required was then ‘brow beaten’ by a ex Chief Inspector employed by the force to investigate Officers with injury pensions. The result was against the FMO’s advice to reduce my banding (the FMO’s words in his revised review). Again, this wasn’t a judicial review as required by the Act, but a simple case of reducing the outgoing costs of the force. All these so-called professionals should be held to account on behalf of so many ex Officers and their families. Thank goodness for IODPA.
Words fail me. The injustice of it all. My own injury on duty goes back over 41 years. And yes, I too was one who fought on my own and then gave up until I found IODPA. How many other police officers have been left to fend for themselves over the years? Do we even have any actual numbers? Can we obtain them from anywhere?
It’s criminal that probably 100’s (1000’s ?) of us were made to hand back a uniform we were proud to wear. It’s criminal that the Chief Constables of these forces, who we possibly aspired to become one day, are the very same people who are betraying its own wounded/injured and disabled by allowing these SMP’s to carry out these medical reviews with impunity.
My wife (also an ex-officer) and I are so pleased that some SMP’s like Dr Vivian are now being found out and here’s to IODPA continuing to go from strength to strength in the fight for police officers injured on duty. A fight for Justice!
I watched with interest a news report two weeks ago of a whistleblower who, on behalf of DWP, was told that when they entered a home of a person who was attempting to claim PIP for a serious disability, these ‘nurses/inspectors’ were told to look at the house and how the person was dressed and see if they ‘deserved any entitlement to PIP’. How true these claims from the whistleblower are will obviously be getting rigorously checked, but it does sound all too familiar that these things appear to be coming from Government bodies with one objective, and that is to stop/cut down payments for people who deserve them.
Well, well, well. One would anticipate a caring paternal response from a doctor who has taken his oath to do no harm and who writes for the Christian Medical Fellowship.
The reality? He cares for counting his coffers at every chance, casting blatantly unfair judgements at Brave injured police officers. He twists the regulations in a truly shocking unethical manner so he can keep in with the Farces who like to employ his “services “.
He leaves one feeling quite (falcons) crest fallen .
Reading all the above is very upsetting. Our Police Federation should be funding ALL appeals when the so called INDEPENDENT SMP’s make their biased decisions for their payment/more work, from the Chief Constables. It is pliantly evident it is the same SMP’s making easy money on the back of IOD’s. I recall attending my own medial review, accompanied by my crisis mental health nurse. As soon as we were inside the medical room, the SMP informed the nurse , to put her pen and paper away as she is not allowed to make any notes of the review, no recordings were allowed, it was the SMP’s review. It appears the SMP’s are exempt from being disciplined for their actions/behaviour.
Dr Vivian really needs to be taken to one side by Mr Justice Ritchie and given a sharp slap, and reminded what his job is, and that he took an oath as a Dr also that he has to comply with the law and the regulations as they are written
The SMP that dealt with my own case made clear that only his opinion mattered. My own thoughts and comments were dismissed out of hand and he appeared joyous in doing so.
On hearing about other officers’ experiences it appears that the role of SMP is not an independent one, rather it is one of a financial guardian on behalf of the force they are engaged by.
I am dismayed by the number of officers who appear to have been let down by a system that was meant to protect them.
In simple terms, should there not be a nationwide register of SMPs assessments and decisions that can be regulated and dip sampled by an independent body including IODPA and legal representative(s) as opposed to the fragmented scatterings that appear to be at present with IODPA latterly piecing together and highlighting malpractices. Everything else an Officer does on duty has a monitoring and quality assurance process applied to it, often a cost analysis too! Therefore why aren’t all these costly and often traumatic SMP assessments and decisions registered in one place. Perhaps that would be too easy to identify the real money grabbers.
That sorry excuse for a “Doctor” Charles Vivian is nothing more than a vexatious little narcissist !
Serving and former officers have no choice over which SMP makes the vital decisions concerning ill health retirement and injury on duty awards.
BUT – that does not mean they have to meekly accept the SMP chosen by their Police Pension Authority (none other than their budget-conscious Chief Constable).
If there are any doubts about the SMP’s impartiality, professional competence, or track record, then bloody well complain to the Chief Constable.
Keeping quiet is never an option.
Good advice Mr Dastardly. Injured Officers are always on the backfoot and probably so worn down that they would not even think to challenge having “Doctor” Vivian or his “type” unfortunately as their SMP. This particular “professional!!!” is biased, incompetent with an appalling track record. How many of the 400 cases he has done are wrong? I’m going to hazard a guess: 399? I’ll give the former flying officer the benefit of the doubt out of the kindness of my heart!
A proper Charlie. He should drop medicine and join the circus. Yep, you guessed it, as a clown.
Couldn’t have said it better myself 🙂
Just a late thought…now the good doctor has proven himself incompetent in this role and incapable of carrying out his SMP duties in a correct and lawful manner and this has been confirmed by a Court, will forces continue to use his services?
If I as an officer had muffed up so badly that I’d ended up in front of a judge and lost then I would have been out on my ear, as would anyone else. Sadly, I suspect these contractors won’t have to work to the same moral and disciplinary standard as hard working police officers do and forces will continue to use him because his attitude and approach to IOD’s will save them money, at least until they get taken to court again.
Are you listening yet Dr Broome and especially your legal adviser, Nicholas Wirz so called principal solicitor (Northumbria Police) and trainer of SMP’s nationwide, and the College of policing, together with Police Forces up and down the UK?
We cannot find a more apt comment than one reported in a Pensions Ombudsman (‘PO’) decision (Cornish v Essex Police) where Lord Denning was quoted as saying “No person should put their own interpretation onto any regulation or law but should follow them to the letter. It is the prerogative of the Court and only the Court to interpret legislation.”
To wit, Messrs Broome, Wirz, Vivien, and others – your so called “legal” interpretation of the Police Injury Benefit Regulations 2006 will never be legal because you are not and never will be a Court.
Time to stop acting like you know what you are doing (Amateur) and leave the law to the Courts (Professionals)
Will never be a court but certainlynshould be in a court – charge with malfeasance/misconduct in public office !
Sigh…appointed on behalf of an organisation that is placed to enforce the law, I find it incredible that some decide they will interpret the legislation in their own way, to the significant detriment of others, who are often at their most vulnerable.
When you are at your worst, your injured, physically or mentally and you become faced with self opinionated doctors.
I hope that these wrongs can be corrected. I would also add that banter is the only thing that keeps an officer from a total mental meltdown after attending harrowing incidents that sear their memories deep within.
Thank you IODPA, you were here for officers before they even needed you!
If a financial penalty was imposed on the SMPs in these blatant cases as has already been commented, maybe the SMPs involved may act correctly and fairly. As long as the powers that be allow this nothing will change. The CCs will save budget and the SMPs becomes rich, so basically it is a win win situation for everyone but the IOD. I hasten to add that not all SMPs seem to act in this way but unfortunately all get tarred with the same brush. At the end of the day this is purely down to finance and I sincerely hope that the result of this JR has a positive impact and is now adhered to.!
How the hell is this guy allowed to practice medicine?
He doesn’t practice medicine. He couldn’t cut it as a real Doctor with a high level of responsibility for his fellow man, so instead he fell into the easy lazy gutter of being a Consultant Occupational Health “physician” as he likes to label himself. Not all OH doctors stoop to the gutter – some ARE fair and compassionate but not this little man. Be born into money, attend private school, scrape through medical school and you too can earn £122k last year and £160K the year before.
There are no excuses for these perverse decisions, perhaps the SMP should bare the costs at PMAB and Judicial Review when his ludicrous and meaningless decisions are overturned. These SMP’s need to bare the consequences of their actions as do those that “advise” them at the moment the only persons chastised are the IOD’s themselves because they have suffered whilst performing their duty. If the SMP wants to act in a quasi judicial role and for which he has received correct “training” then there should be an appropriate body responsible for such, as it stands the SMP is only governed by the GMC/FOM who deal with medical matters, there clearly should be governance over their legal decisions with the ability to ensure the correct and proportional application of the Law.
A just opinion. What’s unfortunate is that the court cannot strike Dr. Vivian off as an SMP
So the inflated ego of this ‘Quasi-Coroner’, otherwise known as SMP Vivian, lets him down again!
This is not the first time this much inflated and pompous individual has got it wrong. Until recently he was quoting a Scottish law case as grounds for some of his thoughts! However, as most people know, Scottish law does not apply to England and Wales. Oh dear, more egg on the face!
I think SMP Vivian needs reminding, maybe via the GMC, or other professional body, that he is NOT the Judge and Jury he thinks he is, and as is stated, starts to recognise that it’s for the Court to decide the law as written, not him.
Remember, it was not so long ago that SMP’s like him were spouting about no recording of appointments & that no one else could be in the room with the IOD. Some still spout this, but the law and GMC have clearly indicated that recording is OK & Yes, other people can attend YOUR appointment.
It’s simples SMP Vivien……. abide by the law as written, stop making it up to suit your bias!
I do hope that those who have been affected by these bogus decisions, do come forward, as it’s about time this particular gasbag was burst once and for all!