caselaw

A Tale Of Two Forces

A Tale Of Two Forces

‘In my judgement, Mr Lock’s submission is correct . . . ‘

— Her Honour Judge Belcher

We have two judicial review cases to report on. One resulted in a decision in favour of the pensioner  and the other did not.

Both cases will have considerable effect on the future behaviour of Police Pension Authorities (‘PPA’) across the country. However, it is becoming increasingly obvious that two or three PPAs are likely to continue attempts to thwart the intentions and purposes of The Police Injury Benefit Regulations 2006, whilst the vast majority remain rightly very cautious about breaking the law. IODPA hopes the lessons learned from these two recent judicial reviews will result in positive improvements in the administration of police injury awards.

For legal reasons, IODPA cannot comment on the merits of the case which was lost, but we can talk about the principles involved, as they apply universally.

In a hearing in the Administrative Court, the Chief Constable of Staffordshire Police was the respondent to an action taken by a former police officer, Colene Boskovic. The claimant argued that a decision by the PPA to refuse agreement to arrange a regulation 32(3) or 32(3) reconsideration was,

 

. . . unlawful on its face for inadequate reasons and/or a failure to address the primary purpose of a Regulation  32(2) reconsideration.

 

The case report of Boskovic is available for scrutiny here.

[pdf-embedder url=”https://iodpa.org/wp-content/uploads/2019/05/Boskovic-V-Chief-Constable-Staffordshire-Police.pdf” width=”600″]

 

We should explain that the Regulations make provision for any decision taken by a police pension authority to be reconsidered, provided that both parties, the individual concerned and the police pension authority, agree to a reconsideration process being held.

The concept of reconsideration is a sound one, in that it allows errors of law or fact to be readily and inexpensively revisited and for corrective action to be taken. The concept is a necessary one, for awareness there may have been errors might not surface for some time after a flawed decision was made. The concept is a positive one for disabled pensioners may be unable, for various compelling reasons, to act within the strict time limits which control when a formal appeal to a police medical appeal board must be made.

For many years it seems the reconsideration provision was little used. This may have been because pensioners, and those who represent them, were unaware decisions could be reconsidered, or were unsure how to approach this provision. Another factor undoubtedly has been the all too common practice of forces failing to properly inform officers and former officers of their rights.

We have the 2012 cases of Haworth v. Northumbria Police  Authority and Crudace v. Northumbria Police Authority to thank for illuminating the detail of regulations 32(2) and 32(3) – especially in informing all concerned there is no regulatory time limit on holding a reconsideration. Since 2012 pensioners have turned to the reconsideration provision to correct old errors, much to the dismay of some police pension authorities.

From all the evidence, both statistical and anecdotal, it is easy to conclude many errors remain undiscovered and uncorrected. Putting matters right would be an expensive business impacting on the hard-pressed finances of some forces. It comes as no surprise then that Staffordshire would seek to close off this opportunity.

As with Haworth and Crudace, Colene Boskovic sought agreement from her police pension authority to arrange a reconsideration of a decision. In her case, the decision was that she did not qualify for grant of an injury award. The court heard argument from the respondent which essentially presented the view that a reconsideration could not be held ‘fairly’, due in part to the passage of time – being some 14 years – since the disputed decision was made, and also the unavailability of the original decision-making SMP.

The Chief Constable explained her refusal thus:

I do not agree to a further reference to a medical authority for reconsideration of the original refusal of an injury award. This is because I believe the request is frivolous and vexatious: the delay of 14 years from the original assessment is such that I conclude no reconsideration is possible. Dr. Gandham, the selected medical practitioner who made the original decision to not make an injury award is no longer licensed to practice in the United Kingdom, and neither is Dr. Srinivasan upon whose report Dr. Gandham relied. I do not believe the underlying merits of having the case reconsidered have sufficient strength to justify it

 

The court’s decision in this case appears to bring new elements for a PPA to consider when deciding whether or not to agree to holding a reconsideration. All we can say for now, is that each case is different, and is determined on the individual circumstances and the merit of the arguments presented. Pensioners, and serving officers seeking grant of an injury award need not be disheartened by the outcome in this case. There will be other cases and IODPA is confident that understanding of regulation 32(2) and 32(3) will continue to expand and clarify in favour of disabled individuals.

We can turn now to the more uplifting result of the case brought by our member Angie McLoughlin.

The case report has earlier been published on this web site – https://iodpa.org/2019/04/10/injured-pensioner-wins-court-case-over-back-payment-of-pension/

Angie appealed by way of judicial review the decision by the Chief Constable of West Yorkshire Police to refuse to fully backdate payment of an increased injury pension award.

Angie was severely injured by a burglary suspect and was retired on an injury pension in 1983, which was set at 25% disability. This is categorised in the Regulations as ‘slight disablement’ and attracts the lowest possible level of pension payment. It also meant that Angie was due much less in the way of the one-off gratuity. With only six years service, she qualified for a gratuity of 30% of average yearly pensionable pay, whereas if she had been assessed as very severely disabled she would have been due for an 85% gratuity and a much bigger pension.

Angie became embroiled in lengthy dispute with West Yorkshire Police. There was good reason to suspect that some records had been altered, so as to change what was 75% to 25%.  The issue of fraud has still not been brought to a conclusion. We don’t want to in any way give the appearance of glossing over the huge problems Angie faced in attempting to secure justice, but for reasons of space and focus, we need to leap ahead to 2004 and then to 2019, being the dates of pivotal events.

In 2004, some 21 years after Angie retired, a review was finally held regarding her degree of disablement, though the decision on that review was not produced until 2007. Meanwhile, Angie continued to be paid the lowest possible injury pension, despite the fact she was totally incapable of engaging in paid employment. The 2004 review led on, after much delay and complications, to Angie appealing to a police medical appeal board in 2009. The board assessed her degree of disablement as 88%, thus placing her in the highest of the four bands set out in the Regulations and confirming she suffered ‘very serious disablement.’

In August 2017, the police pension authority – none other than the Chief Constable – agreed to arranging a regulation 32 reconsideration of the original decision that had set her degree of disablement at 25%. Dr Iqbal was tasked with making the reconsideration as the original decision maker was no longer available.

Dr Iqbal concluded in April 2018,

In my opinion, based on the assessment carried out today as well as the evidence to hand, it is my opinion that at the time of the original decision in January 1984, a band 4 degree of disablement was appropriate.

 

The PPA continued to reject its liability to make complete restitution, with arguments over the period to be covered, so the matter was taken to judicial review in 2019, with the issues summarised by the court as,

The Appellant’s case is that Dr Iqbal’s fresh report, being by way of a re- consideration under Regulation 32(2), replaces Dr Anderson’s report of January 1984, and, as a consequence, the payment obligations owed by the Chief Constable are substituted for the payment obligations owing by the Chief Constable arising as a consequence of the previous report.  In other words, the Appellant asserts that the Regulations mandate back payments to cover the period from December 1983 to 2007.  The Respondent’s case is that the payment obligation is affected only from the date of Dr Iqbal’s report, that is from April 2018, and that the Appellant is not entitled to any backdated payments.

 

Angie won her case, and West Yorkshire Police became obliged to pay her all monies claimed, plus interest.

There are themes common to both cases, not least the effects of the passage of time on rights, liabilities and the practicality of securing a fair reconsideration through the application of regulation 32. These are weighty issues and it is likely they will figure again in other cases. IODPA would prefer to focus for now on highlighting and praising the immense courage and determination displayed by Angie and Colene. Pensioners and serving officers across the country owe them both a debt of gratitude. The history of the long-running ‘injury pension war’ as it has been dubbed, shows that it is only when individuals bring matters to court will errant police pension authorities mend their ways.

In the Boskovic case, we see the deputy head of the force’s legal services writing,

As a keeper of the public purse, it is right that the Chief Constable (as the Police Pensions Authority) considers her position carefully.

 

This implies the PPA was concerned about the costs which might result should they lose the case, and thus be liable, through reconsiderations, to make good injury pensions underpaid through years of maladministration and flawed decisions.

However, the judge took the view that it was appropriate for a PPA to take into account the cost of the process of reconsideration when deciding whether to agree to one or not. We can only but wonder at the logic of a PPA balking at spending the few hundreds of pounds a reconsideration would cost, yet happily spend many thousands of pounds of public money on contesting matters brought to judicial review. In the Boskovic case, the PPA may well be feeling the expense was justified, but is sure to find that any financial advantage apparently gained will be short lived.

The lesson from these two cases is that neither of them would need to have been brought if only the authorities involved had acted with decency and respect to its injured officers.

David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

David Lock QC: Police Ill-health and Injury Pensions: A guide through part of the maze

David Lock QC has released a paper – “Police Ill-health and Injury Pensions: A guide through part of the maze”.

The original article can be viewed here – https://www.linkedin.com/pulse/police-ill-health-injury-pensions-guide-through-part-maze-lock-qc

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

[pdf-embedder url=”https://iodpa.org/wp-content/uploads/2018/11/Police-Ill-health-and-Injury-Pensions.pdf” title=”Police Ill-health and Injury Pensions” width=”600″]

Tully – Revisited

Tully – Revisited

Neither are we impressed by the so-called floodgates argument advanced by the respondent. We consider this to be an irrelevant factor to our considerations.

― His Honour Judge D Morris

 

IODPA membership continues to grow. Membership is open to all former officers who are in receipt of an injury pension. We also are very happy to include serving officers who are at any stage of retirement because of ill health through injury.

Injury on duty pensioners and serving officers are turning to IODPA for one reason only – they need support and advice to deal with ongoing attacks on their pension rights.

It is a sad fact that some forces have shifted their money-saving focus in respect of pensions. They now try to deny ill or injured serving officers their pension rights. We hear of officers who are signed off sick, then reduced to half pay, or even no pay. The intention is, we fear, to pressure them into resigning. Which means they do not qualify for an enhanced ordinary pension. We hear of lengthy and essentially pointless processes designed to force ill officers back to work – with ‘reasonable adjustments’ made to working conditions which turn out to be completely unreasonable and in many cases actually further damage the individual’s health.

We can perhaps highlight some of these abuses in future blogs, but for now we want to look back to 2006 and at the appeal case brought by Phillip Tully, a former North Wales Police officer.

This case is important for it illustrates two aspects which remain relevant today.

Firstly, it exposes the lengths some forces go to in the ironic and self-defeating costly pursuit of saving pensions money. Secondly, it reveals the misplaced and utterly inappropriate attitude towards their duties and responsibilities of, in this case, the North Wales police pension scheme managers. Those attitudes remain entrenched in some other forces to this day.

Mr Tully served from 1991 to 2001. He ceased to serve due to physical disability. However, for reasons which the appeal case does not make clear North Wales Police did not offer to assess him for a deferred pension, or Mr Tully did not apply for one.

On 19th March 2005 Mr Tully applied for early payment of pension on grounds of permanent disability. A deferred pension is payable under regulation B5 of the Police Pensions Regulations 1987.

North Wales Police received the letter on the 14th March.

As is so often the situation, North Wales then proceeded very slowly. Mr Tully was required to see two doctors appointed by the force, and some eleven months after his application the pension authority indicated he qualified for a deferred pension.

However, the pension authority decided that it would become payable not from the date of Mr Tully’s retirement in 2001, nor from the date of his application for a deferred pension in 2005, but from the 16th February 2006, when a Dr Entwistle decided Mr Tully was permanently disabled from performing the ordinary duties of a police officer.

We need not go into the detail of the legal arguments advanced by North Wales, as it is sufficient to say the court found no merit in them. Mr Tully won his appeal.

The court decided,

First, we are satisfied that Parliament intended that, generally speaking, pension entitlements under these regulations should be payable from the date of an officer’s retirement unless or until that was limited or excluded by operation of an express provision to that effect elsewhere in the same regulations.

Here is a copy of the court ruling –

[pdf-embedder url=”https://iodpa.org/wp-content/uploads/2018/10/R-v-Tully.-2006.pdf” title=”R v Tully. 2006″ width=”600″]

 

Mr Tully won his appeal. The Court decided his deferred pension should be paid from the 1st October 2001, the date of his retirement.

The first lesson from this case then is that former officers, and those about to retire due to disabling ill health or injury need to seek professional advice so as to be fully made aware of their pension rights and entitlements. It is never wise to rely on a police force having sufficiently well qualified and knowledgeable staff who will always ‘do the right thing’ and act within the Regulations. Even with the best of intentions, HR and Occupational Health staff make far too many mistakes.

The second lesson concerns the darkness which lays behind some decisions made by pension scheme managers. It seems that North Wales Police thought it appropriate to try to convince the court that Mr Tully’s appeal should be rejected because a successful appeal would bring forth a flood of other former officers who had been paid their pensions from an incorrect start date.

We have at the head of this blog quoted the Court’s response to this distasteful argument.

IODPA’s response is to remind police pension authorities they have a duty to administer the pension regulations in a way which is compatible with the intentions of Parliament. The various pension entitlements were put in place in recognition that police work can be dangerous, and wearing. The  Metropolitan Police introduced the very first pension scheme in 1829.  Benefits were provided on disablement for London officers “worn out by length of service”.

Not much has changed in that respect. Officers earn their pensions and it is not for misguided scheme managers to frustrate the intentions of Parliament by devising endless variations of ways to deny them their pension rights.

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

Court holds that Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP for IOD assessment on retirement if the officer “may” have an entitlement to a police injury pension.

In a ruling on 20th July 2018, that may have significance for many other disabled former police officers, HHJ Moore has decided that Chief Constables who require a police officer to retire on the grounds of permanent disablement can be under a legal duty to refer the officer to an SMP to decide whether the officer is entitled to a police injury pension.  The Judge decided the legal duty will arise in a case where the SMP report contains information which indicates that that the officer may have a right to a police injury pension.  This positive duty means that the Chief Constable is required to take the initiative by making an SMP referral in appropriate cases, and cannot just wait until the officer makes a request.

This important principle was decided in the case of former Sergeant Lloyd Kelly who was serving with the South Yorkshire Force.  After a long career of public service, Sgt Kelly was required to retire after developing a permanent medical condition in 2005.  The SMP report showed his condition was clearly duty related, but no referral was made by the Chief Constable to an SMP to make a decision whether he was entitled to an enhanced police injury  pension.  Police pension rights are complex and, as with many officers, Sgt Kelly was unaware that he may have been entitled to an IOD award as well as his standard ill-health pension and so did not request an SMP referral.

In 2016, Sgt Kelly learned that he may be entitled to an injury award and so applied to West Yorkshire Police to have his case considered by an SMP for the first time.  He was assessed by a new SMP and awarded a substantial police injury pension.  But contrary to Regulation 43(1) of the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”), the Chief Constable refused to pay a backdated award from the date of his retirement.  Sgt Kelly, supported by the Police Federation and Slater and Gordon Lawyers, appealed that refusal to the Sheffield Crown Court under Regulation 34 of the 2006 Regulations.

On 20th July 2017, HHJ Moore held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the Chief Constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension.  The Judge held that the scheme of the Regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement.  Hence, he directed the Chief Constable to pay the backdated pay in full and with interest from the date of the award.

However the case has wider significance because the Judge also decided a Chief Constable has a positive duty to refer disabled police officers into the IOD system if they may have a right to a pension, and cannot simply wait until the officer makes a request.  He reached this decision based on:

  1. the duty on the Chief Constable to make a decision as to what pensions were owing to the former officer under Regulation 30(1) of the 2006 Regulations,
  2. the common law duty the Chief Constable owes to police officers,
  3. the requirement to make reasonable adjustments in favour of disabled officers (now under the Equality Act 2010), and
  4. to give effect to the officer’s rights under Article 1 of Protocol 1 of the ECHR.

The Judge also followed the cases of Tully and Schilling in deciding that the police pension system provided for back-dated pensions payable from the date of retirement for officers who were permanently disabled on retirement, even if the pension award decision was taken at a later date.

The Court ordered the Chief Constable to pay all of the former officer’s legal costs.

David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

David Lock QC: The implications for the police injury pension scheme of the decision in R (Evans) v Chief Constable of Cheshire

David Lock QC has released a paper following his highly successful win at the high court in a Judicial Review against Cheshire Constabulary in the Manchester Administrative Court on the 14th March 2018.

The original article can be viewed here – https://www.linkedin.com/pulse/implications-police-injury-pension-scheme-decision-r-evans-lock-qc/

Please visit the article and leave an appropriate comment.

All copyright owned by David Lock QC

[pdf-embedder url=”https://iodpa.org/wp-content/uploads/2018/04/The-implications-for-the-police-injury-pension-scheme-of-the-decision-in-R-v-Evans.pdf” title=”The implications for the police injury pension scheme of the decision in R v Evans” width=”600″]

Breaking News: Judicial Review confirms that final decisions are final

Breaking News: Judicial Review confirms that final decisions are final

Our congratulations to David Lock QC and Ron Thompson of Haven Solicitors who have won another very important Judicial Review against Cheshire Constabulary in the Manchester Administrative Court on the 14th March 2018. It centres around whether an SMP who is considering an injury award can revisit the same questions already answered during the ill-health retirement process. IODPA receives a lot of correspondence over this issue, and the judgement reinforces the rights of injured officers and should provide some certainty to those who have been ill-health retired and are seeking an injury award.

The case involved Mark Evans an officer from Cheshire Constabulary, who in 2007 following a number of on duty incidents was deemed to be disabled by reason of (i) mechanical back pain, and (ii) post-traumatic stress disorder, and that that disablement was likely to be permanent. Evans was not ill-health retired, but retained on non-operational clerical roles.

In 2015, the force reconsidered whether that state of affairs should continue and an assessment by Dr Pilkington, a new SMP concluded that he was permanently disabled on the basis of “significant degenerative changes in his right shoulder“, but that his PTSD “would not be expected to constitute a permanent incapacity“. He was required to retire on the grounds of permanent disablement.

Evans then applied for an injury on duty award, and his case was referred to a third SMP, Dr Walsh. Dr Walsh concluded the claimant had a permanent disability as a result of “significant degenerative changes in his right shoulder joint“, but again rejected the claim of PTSD. Evans was awarded band 1.

Evans appealed the decision to the PMAB, who disagreed that he had any permanent disablement at all, and therefore he did not qualify for an injury award.

The case hinged on whether following the initial determination of Dr Hutton, the PMAB were entitled to reconsider under the Police (Injury Benefit) Regulations 2006, the following questions that had already been decided under the Police Pension Regulations 1987,

(a) whether the person concerned is disabled
(b) whether the disablement is likely to be permanent

Mr Justice LANE quashed the decision of the PMAB stating “police officers who are required to retire on the grounds of permanent disablement are entitled to a degree of finality in respect of their entitlement to pensions. A police officer who has to retire as a result of what is then considered to be permanent disablement caused in the line of duty should not be at the mercy of a subsequent medical assessment, that he or she was not, in fact, permanently disabled“.

You can read the full judgement here – http://www.bailii.org/ew/cases/EWHC/Admin/2018/952.html

Ron Thompson from Haven Solicitors has provided the following press release.

 

[pdf-embedder url=”https://iodpa.org/wp-content/uploads/2018/04/Haven-Press-Release-Evans.pdf” title=”Haven Press Release – Evans” width=”600″]

 

 

“Round One” to Staffordshire Police

“Round One” to Staffordshire Police

Mr Justice KERR recently handed down a judgement in the case of BOSKOVIC v. Chief Constable of Staffordshire Police. The matter was heard in Manchester Administrative Court on the 31st October 2017.

The claimant, now 42, left the employment of Staffordshire Police in 2002 with an ill health pension by reason of permanent disablement consisting of psychiatric injuries. An application was made for an injury on duty award, which was refused by Staffordshire Police following a number of psychiatric reports. The claimant was so unwell that she withdrew her application before it reached PMAB. She left the UK, returning in 2006.

In 2015, after reading an article by IODPA, she submitted an application to Staffordshire Police to have her application reconsidered under Regulation 32(2). In Haworth v. Northumbria Police Authority, regulation 32(2) was described as follows,

 

96. I am persuaded that Mr Lock must be correct in his submission that regulation 32(2) should be construed as a free standing mechanism as part of the system of checks and balances in the regulations to ensure that the pension award, either by way of an initial award or on a review to the former police officer by either the SMP or PMAB, has been determined in accordance with the regulations and that the retired officer is being paid the sum to which he is entitled under the regulations. It must be the overall policy of the scheme that the award of pension reflects such entitlement and I see no reason why regulation 32(2) should be construed simply as a mechanism to correct mistakes which might nonetheless be able to be corrected by some other means.

97. In other words I am persuaded that in the light of the statutory scheme as a whole, there is no reason not to construe regulation 32(2) as in part a mechanism (and indeed an important mechanism) to correct mistakes either as to fact or as to law which have or may have resulted in an officer being paid less than his full entitlement under the regulations, which cannot otherwise be put right, which is this case.

 

Staffordshire Police refused her request on the basis that her claim was “frivolous and vexatious”, and the matter eventually ended up in front of Mr Kerr.

Mr Kerr has refused the application on three grounds.

He had difficulty with the wording of regulation 32(2) which states the following, “The police authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him”. He believes that there must be an agreement by the PPA and that there is NO obligation to refer a matter back for reconsideration.

Secondly, he accepted that the length of time that had passed made it unlikely that the claimant would get a fair reconsideration, and that Staffordshire Police were within their rights to consider this when making a decision. This was despite the fact that the original medical reports were still on file, and even if the original psychiatrists were no longer available to reconsider the case, regulation 32(3) allows for another SMP to be appointed.

Lastly, whilst it was acknowledged that any subsequent costs i.e. payment of an injury pension award should the applicant be successful cannot be taken into account, Mr Kerr accepted that costs associated with the application and review process itself could be, particularly with regards to the cost to the public purse. Translated, this means that it is acceptable for Staffordshire Police to spend £50,000 of public money fighting this application in a Judicial Review in order to save the huge cost of £750 instructing an SMP for two hours. Of course there would be additional work for HR employees, whose salaries have to be paid anyway.

Mr Kerr gave leave for an appeal and we await “Round Two”.

The full judgement can be read here http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2018/14.html

SMPs Have No GMC Immunity

SMPs Have No GMC Immunity

…the moment you declare a set of ideas to be immune from criticism, satire, derision, or contempt, freedom of thought becomes impossible.”
[Defend the right to be offended (openDemocracy, 7 February 2005)]”
― Salman Rushdie

Pop quiz:  Have you heard of  General Medical Council v Meadow [2006] EWCA Civ 1390.  It was a judgement handed down by the Court of Appeal on 26 October 2006.

No?  Doesn’t ring a bell?  You are not alone. We’ve read the majority of literature published on selected medical practitioners (SMPs) and the relationship they have with the Police Injury Benefit Regulations but had never come across this case law either.

General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006)

You are here: BAILII Databases England and Wales Court of Appeal (Civil Division) Decisions General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1390.html Cite as: [2006] EWCA Civ 1390, [2007] ICR 701, [2007] QB 462, [2007] 2 WLR 286, [2007] LS Law Medical 1, [2007] 1 FLR 1398, [2006] 3 FCR 447, [2007] 1 All ER 1, 92 BMLR 51, (2006) 92 BMLR 51, [2007] Fam Law 214, [2007] 1 QB 462, [2006] 44 EG 196

We have read, however, that Nicholas Wirz, solicitor for Northumbria police, thinks the GMC code of ethics and GMC guidelines are irrelevant to the function of a SMP.  He essentially has been advising that SMPS can behave badly towards IOD pensioners with no consequences from the GMC.

Remember, Wirz is the chap who is busy advising Staffordshire and Nottinghamshire how Regulation 33 can be stretched as thin as a cheapest, gossamer see-through pair of budget nylon tights. The visible result of this self-appointed quasi-guru’s meddling is that disabled former officers are seeing their injury pensions unlawfully reduced from band four to band one. The not so visible result is traumatised, bullied, frightened disabled former officers, many of whom are vulnerable due to mental health problems, and who feel they have no way of challenging the appalling behaviour of some SMPs.

Wirz says in his training material to SMPs

The GMC believes it has jurisdiction over medical practitioners performing a statutory function under the Regulations. Officers/Pensioners commonly make complaints to the GMC against both SMPs and those other medical practitioners the SMP instructs to assist with and inform the SMP process.Para 5.1 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

And then he continues to assert that this belief is mistaken:

The SMP takes their authority from the statute as interpreted by the courts. Does the GMC have any locus in these circumstances? In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of CoronerPara 5.2 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

So where does this proclamation by Wirz that the GMC has no jurisdiction leave us? In the training material referred to above, Wirz makes no reference at all to General Medical Council v Meadow. Why? We can not believe he is unaware of the case, nor fully cognisant of its implications for SMPs. Asking as we are, in this rhetorical way, it seems the judgement has some of the characteristics that Wirz would like to ignore. So he has done just that – he does not mention it. Wirz’s modus operandi is to present only material which appears to support his peculiar, warped, biased and objective-driven view of the Regulations.

This case concerned Professor Sir Roy Meadow, the infamous paediatrician, and his evidence in the case of Sally Clark, who became the victim of a miscarriage of justice when she was found guilty of the murder of her two elder sons.

The Fitness to Practise Panel (FTPP) of the GMC found serious professional misconduct to be proved, and ordered Professor Meadow’s name to be erased from the register. Professor Meadow appealed both against the finding of serious professional misconduct and the sanction of erasure.

The GMC had sought to protect the public by removing Meadow’s registration. This action was in response to his serious professional misconduct, or impaired fitness to practice, which was evidenced by testimony given by him in a criminal court. The doctor’s appeal was based on a claim that the evidence given by him in court was privileged. Immunity is a common law concept. It is given to witnesses to encourage them to give evidence, and to avoid multiplicity of actions.

Meadow won the appeal on the argument that the purpose of the GMC’s FTP (fitness to practice) proceedings is not there to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those doctors who have shown they are not fit to practise.

In other words the FTPP should look forward not back, and the FTPP got this wrong, so the GMC appeal failed.

The important part of the ruling is that the court did however rule that the GMC did indeed have the jurisdiction it claimed. There is no blanket immunity permissible for doctors to never be referred to the GMC for misconduct or impairment to practice. It depends on the type of misconduct or impairment.

Master of the Rolls Sir Anthony Clarke covered the GMC’s statutory function, powers and duties of the GMC as governed by the Medical Act 1983;

  1. It is I think inconceivable that the draftsman of any of these provisions could have thought that a person against whom there was a case to answer that he was guilty of serious professional misconduct or, now, that his fitness to practise was impaired, would or might be entitled to an immunity of the kind suggested here. Such immunity would, to my mind, be inconsistent or potentially inconsistent with the principle that only those who are fit to practise should be permitted to do so.

So on the matter of granting an immunity which had not, up to 2006 been explicitly recognised, the judge considered that the immunity did not need to be absolute.

There was no reason why the judge before whom an expert gave evidence (or the Court of Appeal where appropriate) should not refer his conduct to the relevant disciplinary body if satisfied that his conduct had fallen so far below what was expected of him as to merit disciplinary action.

Master of the Rolls Sir Anthony Clarke said in his judgement,

However, I should say at once that in this regard I accept the submission made by Mr Henderson on behalf of the GMC. It is that, although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public’s health and safety enshrined in the GMC’s statutory duty to bring FTP proceedings where a registered medical practitioner’s fitness to practise is impaired. A similar point can be made in the case of other professions and occupations, with more or less force depending upon the particular circumstances.

Meadow seemingly won the appeal on a technicality of the failings of the FTPP  – not because the GMC’s FTPP did not have jurisdiction.

All the doctors brainwashed by Nicholas Wirz via his ramblings presented at meetings of the NWEF and at the College of Policing should realise that the equivalent immunity from professional regulatory investigation or proceedings, which Wirz tells those gullible enough to listen to him applies to SMPs, has been held by the Court of Appeal to be contrary to the public interest in the case of expert witnesses.

Nowadays, the GMC has the Medical Practitioners Tribunal Service (MPTS).  Whether or not the GMC case examiners or the investigation committee are satisfied that there is a realistic prospect of establishing that the doctor’s fitness to practise is impaired, and so refers complaints to the MPTS,  is down to the facts of the matter being alleged.  Perhaps the conduct does or doesn’t touch on fitness to practice issues.  Maybe the matter concerns a breach of GMC guidance such as failing to treat the former officer as a patient or to ignore the requirements to disclose medical reports BEFORE disclosure to the force.  Guidance such as this  Confidentiality & Disclosure GMC.

But the take-home here is that Wirz is wrong yet again.  How many vulnerable former officers have not pursued complaints because he has told them the SMP is out of bounds?  Perhaps even Wirz knew about the GMC v Meadows judgement and wanted to bamboozle those about the threshold level required for the GMC to act. Who knows.  We know that there is a world of difference between “no jurisdiction” and  the threshold of fitness to practice to ensure patient safety.

In following this Court of Appeal, there is no exception. The GMC does not aim to resolve individual complaints or punish doctors for past mistakes, but rather to take action where needed in order to protect patients or maintain the public’s confidence in the medical profession.

You do know now, though, that any SMP who claims immunity from GMC ethics or guidelines, or claims that you are not his or her patient needs to read the above Court of Appeal judgement.

If you feel a SMP has harmed your health by his behaviour, or by his failure to put your health first, or by making unreasonable demands causing distress, such as insisting you travel a distance to see him or her, provide medical records from birth, or threaten you with reduction on your injury pension if you do not comply – or any other behaviour or omission which adversely impacts on your health, then complain to the GMC.

You are a ‘patient’ in the eyes of the GMC, and you have the right to be protected from doctors who are unfit to practice.

Coming Soon: Crowd Funding to Help Those Injured on Duty

Coming Soon:  Crowd Funding to Help Those Injured on Duty

Our www.CrowdJustice.com case
Justice for Police Officers Injured On Duty

Disabled, vulnerable former police officers who were injured in the performance of their duty are facing gross injustice in regard to their pensions. Some police forces are determinedly flouting the law. They are bullying and threatening pensioners. They are demanding access to medical records from birth, which is unlawful. They are threatening to take away the pensions of those who do not comply. That too is unlawful. These abuses are only the tip of the iceberg.

Our campaign is to raise funds to allow expert solicitors to fight these injustices. We need to get the courts to order these rogue forces to comply with the law.

Haven Solictors’ legal victory over Merseyside Police, on this very issue, is being deliberately ignored. Staffordshire Police is trying to twist the law by saying that if a pensioner attends a medical examination arranged by the force but does not also give permission for the doctor to access medical records from birth then they will reduce the amount of pension paid – regardless of the individual’s medical condition.  This is absurd.

We need to raise funds to start to fight the injustice.

Police forces can, and do, spend unlimited amounts of public money to attempt to defend their misconduct. Elderly, disabled former police officers on limited incomes can not afford to hire solicitors to help protect their pensions.

A full press release will be circulated when the campaign goes live at 8am Friday 29th September.

CrowdJustice – Crowdfund public interest law

CrowdJustice is a crowdfunding platform that enables individuals, groups and communities to come together to fund legal action. Using the power of people to create change!

 

 

 

Introducing Our Live Employment Tribunal Search Feed

Introducing Our Live Employment Tribunal Search Feed

Following  our Employment Appeal Tribunal (EAT) live feed we are pleased to announce another step in our quest to be the authoritative source of all injury awards information.

As of February 2017 recent Employment Tribunal judgements can be accessed via GOV.UK at https://www.gov.uk/employment-tribunal-decisions.  We have created a RSS feed to this database to extract decisions involving police forces that will be updated automatically as decisions are added.

EATs have always been published on the British and Irish Legal Information Institute (BAILII) but anyone wanting to search or browse employment tribunal decisions had to attend in person at offices in Bury St Edmunds for English and Welsh decisions, and in Glasgow for Scottish decisions.  Employment tribunal judgements are first-instance decisions and are not binding on subsequent cases.

However, decisions often provide a detailed account of the facts in a case, which can incentivise parties to settle rather than risk bad publicity. Judgements can also provide helpful examples of how tribunals deal with legal issues and fact situations

You can find the link on the right side bar under Case Law:

Not all decisions will be matters concerning the Equality Act and disability discrimination but you will be able to see patterns from certain police forces as repeated respondents.  We will blog about pertinent cases that overlap into injury awards and ill-health retirement.