caselaw

Avenues of Appeal

iodpa caselaw, Disability Discrimination, Pension Ombudsman, regulation 32
Avenues of Appeal

“As my sufferings mounted I soon realised that there were two ways in which I could respond to my situation — either to react with bitterness or seek to transform the suffering into a creative force. I decided to follow the latter course.”
― Martin Luther King Jr.

If you are unhappy about any regulatory decision made by the Police Pension Authority (PPA) concerning an injury award or ill health retirement you are able to appeal against the decision. (In most forces the PPA is an office vested in the sole personage of the Chief Constable)

The intention of this post is to remind our readers of some of the ways injustice can be resolved.  As with other legal challenges, an appeal needs to be based on some good reason. Therefore, you will need to be able to point to any apparent error of fact or law which the authority has made.

A PPA carries ultimate responsibility, and will be the body named in the appeal, but the actual decision in question may have been made under delegation by a HR person, some other civilian worker or a SMP. A SMP has a regulatory duty to make certain decisions on behalf of the PPA. Decisions made by a Police Medical Appeal Board (PMAB) can also be subject to appeal.

The avenues of appeal available depend on the Regulation the decision was made under and whether you are currently serving or medically retired. Any decision which you receive from the PPA, SMP or a PMAB will be set out in writing and will normally contain the rationale or reason for the decision. A decision notification should also outline the reasons for the decision, and list avenues through which you may appeal the decision, as well as the relevant time limits within which an appeal must be made.

As well as formal avenues of appeal it is worth bearing in mind that complaints can be made about any individual employed by a police force, or against the police force itself. Complaints are justified wherever there is incompetence, injustice or a refusal to act within the rules of the pension schemes. All forces are required to have a formal Internal Disputes Resolution Procedure (IDRP) and will provide you with details of how it is operated.

Complaints about alleged criminal acts can be made to the Independent Police And Crime Commissioner.

Complaints to governing bodies (e.g. the General Medical Council or the Law Society) about the behaviour of the decision maker can also be pursued either unilaterally or combination to an Ombudsman concerning further maladministration.

Here is a brief list of the more usual avenues for appeal.

  • Regulation 32 Reconsideration (Further reference to medical authority – PIBR 2006)
  • Police Medical Appeals Board (Regulation 31 PIBR 2006 –  Appeal to board of medical referees)
  • Crown Court
  • Employment Tribunal & Employment Appeal Tribunal
  • Pension Ombudsman
  • Parliamentary and Health Service Ombudsman
  • Equality and Human Rights Commission
  • Equality Advisory and Support Service
  • Judicial Review
Regulation 32

Of particular note, as being probably the most useful, yet most under-used mechanism for having questionable decisions corrected is contained in regulation 32 of The Police (Injury Benefit) Regulations 2006. This is a very important provision of the Regulations, which every serving and retired officer who seeks or who is in receipt of an injury award should make themselves, their Federation Rep and any legal representative familiar with. Here it is in full:

Further reference to medical authority

32.—(1) A court hearing an appeal under regulation 34 or a tribunal hearing an appeal under regulation 35 may, if they consider that the evidence before the medical authority who has given the final decision was inaccurate or inadequate, refer the decision of that authority to him, or as the case may be it, for reconsideration in the light of such facts as the court or tribunal may direct, and the medical authority shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report which, subject to any further reconsideration under this paragraph, shall be final.

(2) The police [pension] authority and the claimant may, by agreement, refer any final decision of a medical authority who has given such a decision to him, or as the case may be it, for reconsideration, and he, or as the case may be it, shall accordingly reconsider his, or as the case may be its, decision and, if necessary, issue a fresh report, which, subject to any further reconsideration under this paragraph or paragraph (1) or an appeal, where the claimant requests that an appeal of which he has given notice (before referral of the decision under this paragraph) be notified to the Secretary of State, under regulation 31, shall be final.

(3) If a court or tribunal decide, or a claimant and the police [pension] authority agree, to refer a decision to the medical authority for reconsideration under this regulation and that medical authority is unable or unwilling to act, the decision may be referred to a duly qualified medical practitioner or board of medical practitioners selected by the court or tribunal or, as the case may be, agreed upon by the claimant and the police authority, and his, or as the case may be its, decision shall have effect as if it were that of the medical authority who gave the decision which is to be reconsidered.’

(4) In this regulation a medical authority who has given a final decision means the selected medical practitioner, if the time for appeal from his decision has expired without an appeal to a board of medical referees being made, or if, following a notice of appeal to the police [pension] authority, the police [pension] authority have not yet notified the Secretary of State of the appeal, and the board of medical referees, if there has been such an appeal.

The decision maker, which can be either the SMP, or a PMAB, is asked to look again at (reconsider) the decision, in the light of argument and/or information presented by the individual subject to the decision. It provides a simple way of having a mistake corrected.

Mr Justice King in the Haworth judicial review stated that [Regulation 32 is 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.’

Anyone considering using regulation 32 should note well that there is no time limit on when it can be used. It can be activated at any time following a decision – even many years later. We know of instances where historic maladministration has been discovered by pensioners, who can then use regulation 32 to have matters corrected. A typical instance is where an incorrect degree of disablement has been decided.

It is, however, well worth requesting a reconsideration of a decision at the same time as giving notice of appeal to a PMAB. That way, you secure registration of the PMAB appeal within the time limit, which allows the PPA to correct matters swiftly, thus negating the need to go to a PMAB. This has mutual benefits to both the individual and the PPA as stress and cost can be minimised.

One further valuable aspect of this regulation is that if the original decision maker is ‘unable or unwilling’ to make the reconsideration (a SMP might have retired, died, or simply not wish to be proved wrong) then individual is granted an extraordinary power. The individual and the PPA need to agree over selection of the alternate ‘duly qualified medical practitioner’ who will make the reconsideration. That means the individual can object to any doctor proposed by the PPA (on reasonable grounds, such as suspicion of bias or lack of appropriate qualifications). More importantly, though still untested in the Courts, it seems that the individual has the right to propose a duly qualified medical practitioner of his or her own choosing – and that doctor need not be someone who is already acting in the role of SMP for any force.

PMAB

A Police Medical Appeal Board is the method of appeal stipulated in the Regulations as an appeal to board of medical referees when person is dissatisfied with the decision of the selected medical practitioner as set out in a report under Regulation 30(6). A PMAB usually consists of a panel of three (two occupation health doctors and a specialist in the condition being assessed). Notice of intention to appeal to a PMAB needs to be given to a PPA within 28 days of receipt of formal notification of a decision. The appellant then has a further 28 days in which to provide the PPA with the full grounds for the appeal. (There is discretion for these time limits to be extended, within reason.)

A police pension authority does not have the right to appeal to a PMAB and therefore must take a SMPs decision it contests to judicial review.

Crown Court

If a serving officer simultaneously applies for an injury award/ill-health retirement and the police pension authority fails or refuses to refer the decision to a SMP, or a decision of the police authority is that the officers refusal to accept medical treatment is unreasonable, then the refusal or the suggested treatment can be challenged in a Crown Court.

Employment Tribunals

Employment Tribunals are responsible for hearing claims from people who think someone such as an employer or potential employer has treated them unlawfully (unfair dismissal, discrimination, unfair deductions from pay) . Employment Appeal Tribunals are responsible for handling appeals against decisions made by the Employment Tribunal where a legal mistake may have been made in the case.

Post-termination victimisation or discrimination claims are justiciable under the Equality Act 2010 following the recent Court of Appeal Judgments in Jessemy v Rowstock Ltd and Anor [2014] and in Onu v Akwiwu & Anor [2014]

In both decisions Court of Appeal decided that the Equality Act 2010 should be read to cover post-employment victimisation.  This should clear up the uncertainty caused by conflicting Employment Appeal Tribunal decisions on this issue.  In other words, a ‘post-employment‘ medically retired officer has the right to bring a disability, age or gender discrimination claim to an employment tribunal.

Pension Ombudsman

The Pension Ombudsman (PO) has legal powers to settle complaints, maladministration and disputes.  In recent years the PO has played an important part in having maladministration of injury awards corrected. If the PO decides someone responsible for a decision or the wrongful exercise of a power of discretion, or has got the law wrong or has not followed the scheme’s rules or regulations, or not taken the right things into account, they can tell them to go through the process again, but properly.

If financial loss has occurred, the PO can enforce the decision maker to put the disadvantaged individual back into the position they would have been in if everything had been done correctly. The PO can also decide upon redress for non-financial injustice, whether someone has been caused significant inconvenience, disappointment or distress. Although amounts of compensation are usually rather low, they serve to underline the finding of wrongdoing.

Every pension scheme has to have an Internal Dispute Resolution Procedure (IDRP) system built in to enable members of that scheme to complain about matters concerning the administration of their pension (section 50 of the Pensions Act 1995). Injury awards are no exception.

An IDRP can be a one or two part process. One part may settle the matter, but if not on it goes to part two. Be very aware though that the ‘I’ in IDRP does not stand for Independent. In part one a senior person is asked to consider your submission. If there is no resolution, then someone else is appointed to take a look. That person may be another force employee, or, more often will be someone with no close connection to the force who is deemed to have some relevant expertise. We have no data on how many IDRPs produce an acceptable solution at either stage. The process can take several months.  If a solution isn’t found or the IDRP process is ignored, then it can go to thePensions Ombudsman’s office for adjudication.

But if you don’t initiate an IDRP you will find that the Pensions Ombudsman – who is the person who can really do something about maladministration – will not be able to accept your complaint. He likes to see himself as a mediator, a settler of differences, and an arbiter of the law. He wants to see the parties to a dispute make efforts to resolve it before he is asked to get involved.

Quite often the failure of the PPA to correctly deal with the IDRP stages adds to strength of evidence that maladministration has occurred.

Parliamentary and Health Service Ombudsman

The Parliamentary and Health Service Ombudsman provides a service to the public by undertaking independent investigations into complaints that government departments, the National Health Service in England and a range of other public bodies in the UK have not acted properly or fairly, or have provided a poor service.

At this time complaints are raised through a person’s MP.  Soon the service will be open to take complaints directly.

This real case story neatly summarises what this ombudsman can do: Read Mr R’s Story .   What happened to Mr R was an example of disability discrimination and serves a good example of the Ombudsman providing redress for the individual – and also recommending systemic improvements for a wider public benefit.  It is a synonym of how some SMPs treat those disabled people forced in front of them.

An important point regarding his ombudsman is that complaints about the exercise of clinical judgement are within its jurisdiction.

Equality and Human Rights Commission & Equality Advisory and Support Service

The Commission has responsibility for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales.  It took over the responsibilities of three former commissions: the Commission for Racial Equality, the Equal Opportunities Commission (which dealt with gender equality) and the Disability Rights Commission.
The EHRC’s functions do not extend to Northern Ireland, where there is a separate Equality Commission (ECNI) and a Human Rights Commission (NIHRC), both established under the terms of the Belfast Agreement.
The Equality Advisory and Support Service (EASS) is an advice service. It is aimed at individuals who need expert information, advice and support on discrimination and human rights issues and the applicable law, particularly when this is more than other advice agencies and local organisations can provide.

Judicial review

Judicial review is an audit of the legality of decision-making by public bodies.  Judicial review may be used where there is no right of appeal or where all avenues of appeal have been exhausted

  • when a decision-maker misdirects itself in law, exercises a power wrongly, or improperly purports to exercise a power that it does not have
  • a decision may be challenged as unreasonable if it “is so unreasonable that no reasonable authority could ever have come to it”
  • failure to observe statutory procedures or natural justice
  • when a public body is, by its own statements or acts, required to respond in a particular way but fails to do so.

A JR is a remedy of last resort.  However, the Court has a wide discretion to hear cases even if there is an alternative appeal mechanism available in line with M and G v IAT 2004. They successfully argued that the statutory appeal was both procedurally and substantively inadequate to safeguard the rights of asylum seekers.

Applications for JR will be refused are those where there are proceedings in another forum already underway or imminent.

 

We hope this brief guide to routes of appeal will serve to inform and encourage all serving, about to be retired and retired officers who believe they have suffered at the hands of the widespread incompetence and ignorance of the Regulations, so frequently displayed by those in authority over their ill health and injury pensions, to stand up and challenge decisions which they believe are wrong.

This is not intended to be a comprehensive guide to how to appeal. In all cases, you should seek professional advice and assistance before initiating any avenue of appeal or challenge. IODPA can, and will, give initial advice and information, and in some areas the Federation will be knowledgeable and helpful. IODPA retains excellent solicitors who can be instructed by individuals, and funding for them can be obtained via the Federation.

Just Vulnerable or Permanently Disabled?

iodpa caselaw, morale, pmab, selected medical practitioner, smp
Just Vulnerable or Permanently Disabled?

“Remember that all through history, there have been tyrants and murderers, and for a time, they seem invincible. But in the end, they always fall. Always.”
― Mahatma Gandhi, The Story of My Experiments With Truth

As certain forces continue on their hell-bent course of denying ill or injured officers their pension rights a pattern is developing.  Some Selected Medical Practitioners (SMPs) are labelling applicants with diagnosed PTSD or similar mental illness as ‘only’ having a ‘vulnerability’

Retirement on an ill health pension needs a SMP to decide that an illness or injury is likely to permanently disable the individual from working as a police officer. Some forces want to save the cash, so will go to extraordinary lengths to avoid the need to pay award an ill health pension.

To back up their assertion that medical retirement is inappropriate where the illness or injury is PTSD, as they say that condition is not permanent, SMPs are citing two High Court decisions, which they claim justify their view.

Today, more often than not, when the critical question delegated to SMPs, ‘Is this serving officer permanently disabled?’ the decision given is a rubber-stamped answer like this:vulnerable-refused

So when an application for ill-health retirement (IHR) is refused why are SMPs using the ‘vulnerable’ label?

The short answer is that it’s because they are relying on two cases, one concerning Northumbria and the other concerning Derbyshire. These are both force areas well known for their aggressive, acrimonious and antagonistic attempts to deny retired and serving officers their pension rights.

The cases are R (Northumbria Police Authority) v Broome [2006] ICR 555
and
R (Sidwell) v Police Medical Appeal Board v The Chief Constable of the Derbyshire Constabulary [2015] EWHC 122 (Admin).

By focusing on these two high court decisions some SMPs are attempting to imply things often not relevant to the circumstances. They use the cases as a rejection crib-sheet. It is rather like someone who claims that eating a certain wonder food prevents cancer, but neglects to mention that you would need to eat six pounds of it each day, for ever, for it to have any effect. They thus tell only part of the truth.

These SMPs are selective in their presentation of supporting case law. They fail to point to the case which contradicts and negates their view.

They conveniently fail to mention a much more recent judicial review. That of
Sharp v West Yorkshire Police & Anor [2016] EWHC 469 (Admin) (07 March 2016).
We will come back to this case in detail later.

Let us first discuss the Northumbria judicial review. No doubt this force’s nefarious force solicitor, Nicholas Wirz – skulking and slithering behind the scenes – was the protagonist who advised his Chief Constable to challenge the decision of his own SMP, Dr Jonathan Broome.

What happened was that, in 2005, officers Alison Doyle and Madeline Clementson both claimed permanent disability, which Dr Broome agreed existed and so was certified by him. Northumbria disagreed and challenged his decision – their own doctor! – by way of judicial review.

While based in Bamburgh, PC Madeline Clementson, was injured through being dragged along the road by a suspect’s van. Dr Broome, who assessed her, said she suffered panic disorder and agoraphobia along with an intractable antipathy towards her police role.

He added that although her physical injuries had not made her permanently incapable of performing her duties, she was plagued by symptoms of low mood and anxiety which could be worsened by a return to police duties.

In PC Alison Doyle’s case, Broome said there were several factors stopping her from returning to work including spinal pain, vulnerability to anxiety and her enmity towards Northumbria Police.

The doctor found she had developed such an entrenched aversion to returning to police duties of any sort that the prospect of doing so might well trigger mental ill-health.

Dr Broome said Alison had “an emnity towards Northumbria Police as an organisation” and would even have difficulty performing civilian duties for the force and he said that Madeline had such an “entrenched aversion to going back to police duties of any sort” that the prospect of doing so could trigger mental ill-health.

Both PCs lost the judicial review because neither had a definitive medical diagnosis.  Although both officers were given medical retirement by Broome, he failed to medically diagnose them or refer them to someone who could, so Mr Justice Bennet upheld the challenge and overturned the permanent disability certificates issued to the ex-officers.

It is important to note that a court will inevitably never challenge a medical opinion, for it is not competent to do so. It is a medical matter, and a court lacks the medical qualifications necessary to make any comment or judgement on medical matters. A court can, and will, determine matters of fact and law.

Northumbria took two of it’s officers all the way to the High Court to win a battle over an issue which could have been easily been sorted out without recourse to such stressful and expensive means. The judicial review served only to delay resolution at a horrendous personal cost to Alison Doyle and Madeline Clementson.

The reason why Northumbria won the original judicial review was simply that neither Doyle nor Clementson had a definitive diagnosis which could be found categorised in the World Health Organisation International Classification of Diseases (ICD-version 10)

As Mr Justice Bennet put it;

Vulnerability”, “enmity”, and “intractable antipathy” do not appear in internationally authoritative guides available to doctors such as ICD-10 and DSM IV

In a twist to the sorry state of affairs, Alison Doyle took Northumbria to an Employment Appeals Tribunal in 2012:
http://www.bailii.org/uk/cases/UKEAT/2012/0576_11_1712.html
In this EAT it is shown that four years later, in 2009, Doyle eventually got the IHR she asked for:

‘However, in a subsequent report dated 15 July 2009, Dr Broome recommended that Ms Doyle should be retired on medical grounds.  The Acting Chief Officer took a “holistic” view of her case, namely that her psychiatric condition, which in his view did not on its own amount to a permanent disability, should be taken into account.  Accordingly, on 21 August 2009 Ms Doyle was retired on medical grounds on the basis of her combined psychiatric and spinal problems.’

It seems that by 2009, Alison Doyle had secured a definitive diagnosis and so was, in the end, medically retired – the whole saga of the judicial review was pointless and unnecessary.  Instead of taking it’s officers to judicial review, Northumbria could have spent the money on getting both officers diagnosed by specialist clinicians, for far less cost and with far less stress caused to two damaged individuals.

The take home from this is that a line is drawn by this High Court decision. Once an officer has a recognised medical condition their case becomes distinguishable from the situation experienced by Madeline Clementson and Alison Doyle.

When an officer has a categorised diagnosis, rather than some wishy-washy opinon stated in vague terms by idiots like Broome,  matters have crossed the line into there being a recognised  infirmity.

When there is an ICD-10 diagnosis an “intractable antipathy” may well be noted, but only as a symptom of the infirmity, and not the infirmity itself.

And so on to the Sidwell judicial review.  This case involved the now deceased Dr Ralph Sampson who worked as a SMP for Derbyshire.

An unfortunate sequence of events led to DS Andrew Sidwell’s marriage failing and him then being made homeless after a colleague, who let him share his house, was investigated for corruption – an allegation that was later proved false and which, some believe, was based on a Professional Standards Department witch-hunt.  Homeless, he further suffered a forced transfer to another department, and this all led DS Sidwell into a spiral of understandable anger, resentment, embitterment and antipathy towards Derbyshire police.

Dr Michelle Shepherd, a consultant psychiatrist, diagnosed DS Sidwell as having situational anxiety disorder.  Dr Sampson refused medical retirement as he claimed that, ‘situational anxiety … is not permanently disabling’.

DS Sidwell saw another consultant psychiatrist to help an appeal he made against this decision to a Police Medical Appeal Board (PMAB). Consultant Maria Isaac assessed DS Sidwell and determined that his,

‘. . . anxiety is severe enough to approach phobic intensity. However I could find no evidence of significant underlying psychiatric illness or impairment’.

During the PMAB, one of the consultant psychiatrist panelists, Dr Karim Rajput, stated,

“I would classify him with an ICD-10 diagnosis of anxiety disorder, unspecified (F44.9)’

Despite this, the Board concluded (using a confusing double-negative to do so) that successful treatment of his condition was “not unlikely” and that therefore “he is not suffering a permanently disabling psychological condition’.

Consequently the appeal was dismissed and Sidwell was refused medical retirement.

Soon after, Derbyshire instigated Unsatisfactory Performance Procedures (UPP) against DS Sidwell citing inadequate attendance at work.  The Federation sent Sidwell to see yet another consultant psychiatrist. This time a Dr Qureshi diagnosed Sidwell’s condition as a permanently disabling chronic phobic anxiety disorder.

Derbyshire’s newly appointed SMP for this case was a Dr Geoffrey Davies who proclaimed that DS Sidwell’s condition would improve if he left the police service and as such has he has,

‘. . . a vulnerability to being in the police but does not have a permanent disablement.’

Another PMAB was held and another panelist, Dr Nehaul, disagreed with the diagnosis made by Dr Qureshi and the panel took Dr Nehaul’s view that the Mixed Affective Disorder diagnosis could not be right as there was no evidence of mania. Dr Nehaul devotes rather more words to demolishing Dr Qureshi’s diagnoses.

It is important to note that, unlike a court of law, a PMAB, can comment on and decide on medical matters, as all the Board members are themselves doctors.

The Board concluded,

‘Whilst having enormous sympathy for the position in which Mr Sidwell finds himself, the unanimous decision of the Board is that he does not have a permanent disabling medical condition which would prevent him from carrying out the ordinary duties of a Police Officer and therefore the appeal is rejected.’

This then went to judicial review where Mr Justice Mostyn rejected the claim that the PMAB’s decision was wrong and decided that,

‘The Board was entitled to prefer the opinion of Dr Nehaul to that of Dr Qureshi as to whether there existed a medical condition which caused the relevant inability.’

So the Sidwell case hinged on a spat between two consultant psychiatrist who failed to agree with each other and the judge decided there was not a point of law or fact in which the court could make a determination, given that there has to be considerable respect to the decision of an expert and informed tribunal.

In simple terms you could say that with the saga of Madeline Clementson and Alison Doyle (where there was no definitive diagnosis made), we can see their cases were the complete inverse to that of Sidwell v Derbyshire – wherein too many diagnoses existed!

Returning the question of this post.  How can a SMP on first seeing a serving injured officer use these cases to assert vulnerability?  If there is a diagnosed infirmity then the Rubicon for Doyle & Clementson is crossed.  If there is no PMAB and no quarrel between eminent consultants over what the condition actually is, then Sidwell is irrelevant.

This brings us to the latest judicial review, heard in 2016, of Sharp v West Yorkshire.

Mr Sharp suffered from anxiety on a number of occasions before he joined the police. He was in fact initially rejected by the police on medical grounds.  In 2011, whilst under UPP, he resigned and in 2013 he made an application for an ill health award. This was subsequently refused by the SMP, Dr Dagens.

He appealed and his PMAB submission was supported by a report from Professor Rix, a consultant forensic psychiatrist, who gave a diagnosis of recurrent depressive disorder (F33.4 ICD-10) and concluded,

The primary issue appears to be whether or not the Appellant is permanently disabled. Critical to this is the Appellant’s vulnerability. That vulnerability is his paranoid attitude. This is a permanent feature of his character or personality. It is when that attitude engages with management, as inevitably it would, that the Appellant would suffer a recurrence of his depressive disorder and be unable to perform all of the ordinary duties of a police officer. It therefore appears to me that the issue for the Board will be whether or not such vulnerability in itself amounts to a permanent disability for the purposes of the Regulations.

The PMAB rejected the appeal.  It had concluded,

‘Whilst his attitude may indeed make him more vulnerable to further episodes of depression, the Board does not consider such attitude equates to an infirmity with regards to the Police Pension Regulations. Likewise vulnerability arising from this attitude would not be regarded as permanently disabling. This is consistent with the case law on vulnerability.’

“Case law on vlunerabilty”.  Interesting use of the phrase there.  Just saying it doesn’t make it true and in reality the PMAB catastrophically failed to understand the precedents on vulnerability

It was accepted that Sharp suffered from a recurrent depressive disorder.  It was therefore unnecessary (and irrelevant) to consider whether Mr Sharp’s attitude was also an infirmity.  By trying to deny Sharp ill-health retirement and bending case-law to fit their objectives the PMAB failed to test whether Mr Sharp’s recurrent depressive disorder was sufficiently serious to amount to a permanent disablement.

Sharp requested a Regulation 32 reconsideration on the basis that Professor Rix’s report was misunderstood and the conclusion taken out of context. This reconsideration went to the same PMAB panel for a re-decision.  Unsurprisingly (and true to form), the PMAB panel stuck to it’s original decision to reject the application and finished by saying,

though mention of paranoid attitude in reports may suggest possibility of a personality trait, it would not amount to a disorder in the context of this case. The Board does not agree that likelihood of recurrence and persistent illness and ensuing disability despite optimal treatment is so strong, in this instance, as to fulfil the criteria for permanent disability

It was this second PMAB decision that went to judicial review.

Judge Brehens rejected West Yorkshire’s argument that both the Broome, Clementson & Doyle and the Sidwell case was applicable to Sharp.  The key to the Sharp judgement was that is was found that the PMAB asked the wrong question of infirmity and they wrongly considered the paranoid attitude to be the disorder.

So Judge Brehens found in favour of Sharp and overturned the PMAB decision by saying

I am satisfied that the PMAB ought to have held that Mr Sharp’s recurrent depressive disorder was an infirmity within the meaning reg A(12)(5). It was unnecessary and wrong to go on to consider whether his paranoid attitude was also an infirmity. It was a cause of the infirmity not the infirmity itself. I agree with Mr Lock QC that Mr Sharp had indeed crossed Bennett J’s line and was a recognised medical condition.

Judge Brehens continued,

‘Mr Sharp’s paranoid attitude is one of the causes of the severity of the recurrent depressive disorder.’

In other words, the Board had taken a symptom instead of the illness itself as reason to declare that disablement was not likely to be permanent.

Someone being, in the opinion of a SMP, merely ‘vulnerable‘ or having an ‘antipathy‘ towards their employers should not mean they are refused medical retirement. The vulnerability could be a symptom of a recognised, categorised condition which the SMP, for whatever reason has failed to diagnose. Those reasons may be simple medical incompetence, but worryingly could also be the result of deliberate policy by the force and SMP in collusion to prevent granting injury awards.

We pointed out above that law courts can’t second-guess medical opinion as they are not medical experts. PMABs, conversely are a medically expert arena, but have unfortunately consistently shown that when it comes to the law they are woefully unable to grasp the issues.

It does seem odd that PMABs are allowed to consider legal aspects at all. And if PMABs can misinterpret the case-law, do think it wise to trust any legal opinion of a lowly SMP?

For those officers with reports saying that their ill-health retirement is rejected due to’ vulnerability’ or any other vague and ill-defined phrase, please look carefully at any stated cases quoted by the SMP purporting to underpin his decision. It’s a sure bet that Sharp, the latest case-law on vulnerability, will have been omitted.

Ignoring something relevant which fails to prove one’s point is not how UK law operates.  You may have grounds to appeal whenever a SMP starts referencing case law.  An appeal to a PMAB will take you before a panel of doctors but the Board may have no better understanding of legal points than does the SMP.

IODPA does not suggest never going to PMAB, but we do strongly advise that you seek expert legal advice from one or other of the two excellent solicitors we refer our members to. A judicial review, based on errors of fact or law may be a better route than a PMAB.  Or if you are currently in proceedings for a PMAB look very carefully at the submission made by the police pension authority – are they relying on proving vulnerability whilst ignoring both your definitive diagnosis and the Sharp decision?

Alternatively, ask IODPA to provide you with information about how to use regulation 32 to have a SMP reconsider a decision which you believe errs in fact, law, or medical opinion.

Serving officers are facing hard times should they become ill or injured and are seeking ill heath retirement. It will not now be an easy path. However, it need not be an impossible path, provided that they seek professional advice and help at the earliest stage. SMPs, Police Pension Authorities, Chief Constables and their HR managers and legal ‘experts’ make so many mistakes that a challenge to a decision not to award an ill health pension has a very good chance of success.

Besides, why should you let the tyrants get away with it?

The Wisdom of the Pension Ombudsman

iodpa Apportionment, caselaw, Pension Ombudsman, pmab, police injury award, selected medical practitioner
The Wisdom of the Pension Ombudsman

“He who establishes his argument by noise and command, shows that his reason is weak.”
― Michel de Montaigne

In 2016, the months of September and October has seen two interesting decisions handed down by the Pension Ombudsman (PO).  In both decisions it is clear the arrogance of the pension authority involved led them to think the forcefulness of their command would conceal the lack of reason within.

PO Decisions 5477 & 13059

pdf
PO-5477 Mrs E v TVP 18102016
pdf
PO-13059 Mr Y v NGF

One decision concerns Thames Valley Police and how this force (and vicariously by the SMPs they appointed) incorrectly apportioned an on-duty injury by trying to imply that the complainant, Ms E, had a pre-existing vulnerability to mental illness.  The infamous  Dr Cheng is in the centre of this particular stagnant mire.

The second Pension Ombudsman decision we are going to discuss here isn’t about police injury awards but it does involve ill-health retirement.  Mr Y complained to the Pensions Ombudsman that NGF Europe Pension Fund’s refusal of an ill-health early retirement pension was maladministration.  The Ombudsman upheld Mr Y’s complaint and directed the employer to make the decision again.

The points raised by the PO in these decisions have huge implications for police forces. Each will be discussed but let us first look at Mr Y’s case.

The PO found that NGF relied too much on it’s own occupation health clinician and ignored the expert opinion of the patient’s own clinicians:

NGF’s view that it is entitled to prefer its medical advisers’ opinions when there is a conflict of opinion between them and those of Mr Y’s GP and the consultant treating him, demonstrates that NGF saw its medical advisers’ own opinions of Mr Y’s state of health as at least equal to those of a specialist in a particular field of medicine. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

Effectively, the PO is saying employers can not simply rely on the recommendations  of their own ‘in-house’ medical advisers and that it is not…

“[…] rational to give considerable weight to a prediction that had not been fully explored and was outside the adviser’s remit”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

The decision says that, whether or not the employer (or regards to injury awards, the police pension authority) is understandably concerned about if the treating doctors of the patient have understood the definition of total incapacity, it can not give undue considerable weight to the opinion of it’s own assessor.

How often is a one-sided view taken by a SMP?  Every-time that SMP is trained or advised by certain elements within NAMF is the answer.

It is a well recorded fact that often SMPs deliberately disregard what a former officer’s General Practitioner or treating consultant have said.  Indeed Nicolas Wirz, solicitor for Northumbria police has been so unguarded as to write in his NAMF approved ‘guidance’ to SMPs that:

SMPs are likely to be more skilled at resolving disputes of medical fact [Para 4.12 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]

and

A common occurrence is for the treating physician to “fudge” the issue [Para 4.14 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]

In other words, a highly qualified, experienced specialist consultant’s opinion is nothing compared to that of some money-grabbing quack who has jumped on the gravy train of doing SMP work. Moreover, said consultant will be biased, whereas the SMP will be squeaky clean unbiased.

Come off it Wirzy-boy, pull the other one, it’s got bells on. Do you really think that you can fool anyone other than the intellectually-challenged likes of Cheng and Nightingale, etc. with this sort of manure? You have got dear old Karen thinking she is a High Court Judge who can ‘direct’ people to do her bidding, and good old Billy Chung Wing prefers not to engage his brain other than to remember where he has stashed all his illicit earnings. The rest of the medical profession have wisely elected to give SMP work a wide berth because of you.

But we digress – the case of Mr Y shows that the PO disagrees with Mr Wirz.  In fact it leaves Mr Wirz’s claims naked.  His imagined invention of an aura of being ‘judicially all-powerful’ is simply his cloak for SMPs to wear. Cloaks that make them feel better about themselves.  Not only delusional cloaks, if cloaks can be delusional, but clearly not in accordance with fact that the SMP is acting as an employer’s agent.

An agent with a role defined in statute – but an agent of an employer nonetheless.

The SMP is no more a presiding judge than, say, a Custody Sergeant with his duties defined in the Criminal Justice and Courts Act 2015.

The PO declared that when it comes to Mr Y’s ill-health retirement there were relevant questions which should have been asked and that the employer and his medical adviser should not apply a selective restriction to the reports provided by the patient’s clinicians.

The PO’s decision could be exactly applied to the erroneous methodology preached by Wirz.  The PO has said it is wrong for pension authorities, like NGF, to only take into account its medical advisers’ opinions as this, by it’s nature, will also take in irrelevant considerations.

So yet again the proclamations of Nicholas Wirz are proved wrong – SMPs must resist being brainwashed by the outpourings from this darkly dubious source into thinking the Regulations are too complex for the patient’s clinicians to comprehend.  If the SMP has suspicions the clinician doesn’t understand the statutory question then he shall not dismiss the opinion outright, he should seek clarification.  Put plainly, the PO says they should just ask:

It would not have been difficult to ask them, but this was not done; https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

In the PO’s judgement NGF Europe held a dismissive view of important reports and it was wrong for it to claim that it had enough evidence already and clarification was unnecessary.  This arrogance conveys the impression that the decision not to award a total incapacity pension had already been made.

And so, onto the decision in respect of Ms E’s complaint to the PO.

This concerned the granting of an original injury award.  The first SMP, Dr Leeming-Latham, made the  decision to apportion Ms E’s injury benefit on nothing more substantial than than the appearance of a single entry in her GP’s notes dating from 1988 stating, “Depressional neurosis”.

Despite being told that a reconsideration of Dr Leeming-Latham ‘s decision (under regulation 32) would be a paper exercise, Ms E had the unfortunate experience of attending an appointment with Dr Cheng.  Not only did Dr Cheng think the apportionment applied by Leeming-Latham was reasonable but he also considered the 1988 notes demanded an apportionment bedfellow, and commented that:

“general formal grievances that were not upheld and disciplinary proceedings should not be classified as an injury on duty”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-5477/police-injury-benefit-scheme/

You can see how Dr Cheng’s brain was working … when you are asked to review a complaint of inappropriate apportionment, why stop at one.  Why not add further apportionment and then you can try to apportion the whole award away?

Seizing the chance with both hands to go gaga full-bore crazy, Dr Cheng continued by saying Ms E actually had a problem with her wrist, which was incorrect.  On top of all this Ms E had expressed concern her papers might have been mixed up with someone else’s. She also said that Dr Cheng had told her he never gave anyone a 100% degree of disablement.

This was all taken to a PMAB, where the basis for the appeal was that Ms E disputed Dr Cheng’s opinion that her disablement placed her in Band Two for an injury award.

Ms E won the appeal and was awarded a band three award.  The PMAB found Dr Cheng was wrong and concluded that the psychological impairment arising from perceptions of work events were the only factor contributing to permanent disablement and that apportionment was not appropriate.

A victory against the odds!  The PO mentioned in his judgement that Ms E raised concerns that the PMAB appeared to exhibit bias.  Ms E specifically called into question the unnecessary time delays, the lack of female presence, that there was no mention at the hearing of her being put under surveillance while on sick leave, nothing submitted relating disciplinary proceedings whilst she was on sick leave and the horrendous situation of the conflict of interest that existed as TVP’s Pensions Manager and Dr Cheng both sat on the national HR board for the PMAB.  Ms E was awarded £750 for all the maladministration.

And now we can weave together the similarity between Ms E’s decision and Mr Y’s.

Just like NGF Europe Pension Fund’s modus operandi, both TVP and the PMAB “cherry picked” Ms E’s documents.  Favourable reports from a Dr Logsdail were not considered and personal development reviews, papers relating to her grievances, newspaper articles criticising her, and emails from senior staff criticising her were all ignored by Dr Cheng and the PMAB.

Sound familar?  TVP, as a pension authority, had a duty not to have a predetermined decision in mind.  But they used Cheng and Leeming-Latham to get the result they wanted by ignoring everything that contradicted their point of view.

This is exactly what the PO is getting at in the decision of Mr Y.

The simple message for all police pension authorities is to keep this in mind: you only get one chance to do things right the first time.

Why not dispense with your biased SMPs and save money and improve the quality of injury award decisions by making fewer mistakes and learning more from those you do make.  Tell the SMPs you use to look objectively at all the evidence placed in front of them.  Stop using Dr Cheng and the number of appeals will plummet.

This means also put the Book of NAMF in the bin where it belongs.

It must be better, quietly and without fuss, noise and bluster, to aim to get things right in the first place rather than having to forced to put them right through expensive appeal and complaint processes. You may well think that the likes of Cheng and Wirz save you money. You would be wrong to think that. The legal challenges you are facing now are only the tip of the iceberg.

Former Met Officer wins UPP Tribunal Appeal

iodpa caselaw, morale, newsflash
Former Met Officer wins UPP Tribunal Appeal

A disabled police officer has won an Employment Appeals Tribunal (EAT) disability discrimination case against the Metropolitan Police after he was told to return to work despite medical evidence saying the enforced return was impossible.

Mr Finlay Buchanan had been absent from work for eight months when the Met began to take steps under a procedure which bears the name Unsatisfactory Performance Procedure (“UPP”).

http://www.bailii.org/uk/cases/UKEAT/2016/0112_16_3009.html

“Mr Buchanan is a trained police motorcyclist.  He was assigned to the Diplomatic Support Group in 2002.  On 21 December 2012 he was involved in a serious motorcycle accident while responding to an emergency call.

The accident was not his fault: the brakes on his motorcycle failed.  He made a good recovery from his physical injuries.  But he developed serious post-traumatic stress disorder.

By April 2013 he was a disabled person for the purposes of the Equality Act 2010 and by May 2013 the Metropolitan police knew or could reasonably be expected to know he had the disability.  He has never been able to return to work.

At the time of the Employment Tribunal hearing in July 2015 medical retirement was under consideration.  That medical retirement has now taken place.”

The original 2015 Employment Tribunal (ET) unanimously held that the steps to force Mr Buchanan to return to work by implementing the UPP amounted to unfavourable treatment because of something arising from the Claimant’s disability.

But the 2015 tribunal found that the unfair treatment was justifiable  under section 15(2)(b) Equality Act 2010 that allows for a proportionate means of achieving a legitimate aim.  In other words, because they concluded that, as the UPP was administratively correct in it’s over-riding procedures, the application of it had a defence of justification.

However the  ET also accepted that the various items of treatment were because of something arising from the Claimant’s disability and that one member of the panel Dr Moher dissented to the ‘justification’ defence.  He argued that the justification defence must extend to the actual treatment.  He found that the defence was not established.  He said that alternative steps of extending the improvement notice or setting ill health retirement procedures in train should have been adopted.  The process was driven by a mechanistic desire to push on through the formal procedures.

The 2015 ET decision was quashed in this EAT by His Honour Justice David Richardson.

The judge said that the Met’s HR officers did not appreciate the extent of their powers under the Regulations or their discretion under the policies.  He also dismissed the relevance of the case law (Seldon v Clarkson Wright & Jakes) that the Met relied upon saying it would only rarely be applicable to disability discrimination cases.

This EAT case makes it clear that HR managers should not robotically follow UPP procedures and should not blindly use policy when it is not appropriate to do so.

The question will always be whether it was proportionate to the Respondent’s legitimate aims to take a particular step under the UPP.

In making that assessment it is of course relevant to take into account that Parliament has laid down a procedure to be followed before an officer can be dismissed on grounds relating to capability; so long as it is also appreciated that neither Parliament nor the Respondent’s own policies require a mechanistic application of the procedure.

It is also relevant to take into account the impact of applying the procedure in a particular way on a particular officer.  I would, however, caution the ET to make careful findings as to the Respondent’s aims;

I think the policies show they may have been more sophisticated than simply “to move in stages towards either a return to work or dismissal”.

 

Case law simplified

iodpa caselaw, newsflash
Case law simplified

The study of law is like eating an elephant. The best way to do it is one bite at a time.
–  anon

We’ve all heard the phrase “information overload.”.   Trying to categorise the case law concerning Injury Awards is a mammoth sized example.

How can you tell whether the large mammal of a court transcript is the one in the room that you need, uselessly white or of the delirium-induced hallucinated pink variety?

What do you do when there are too many elephants on your plate and it’s becoming overwhelming? Packing all elephant related analogies into the trunk (for now, at least), we’ve made the first known attempt to group related injury award High court decisions together.

WiseMapping is a free online mind mapping program that anyone can use for
brainstorming ideas. We’ve used it to try and map together all the decisions so you can focus on the ones that matter.
*Edit. You might see a broken link below as the wisemapping security certificate may be invalid on some browsers. As we get this fixed pleae view the PDF version at the bottom of this page

Use the cross-hair to move the map.  Click the attachment ‘paper clip’.  And then click in the thumbnail box to open the court transcript in another window.

wisemap

We’ve put the map on the caselaw RSS feed for your convenience.

If you’ve noticed a relationship that we’ve missed, please leave a comment below.


 

Henderson’s Precedent

iodpa caselaw, Pension Ombudsman, pmab, police injury award, Regulation 33
Henderson’s Precedent

“Don’t use the conduct of a fool as a precedent”
The Talmud.

Sometimes you read a decision handed down by an authority and are so appalled by the maladministration which is revealed by the light of justice in action that you miss the obvious.

The 2011 Pension Ombudsman’s decision in Mr Henderson’s complaint is one such example. North Yorkshire Police Authority (NYPA) had foisted upon this poor medically retired police officer a level of injustice concerning his pension such that anyone with a grain of common sense would have recognised as the actions of fools.

(Note that, in another example of foolishness, when the old Police Authorities were scrapped, the Government decided that each Chief Constable should be the police pension authority. In other words, they now not only are the injury pension scheme managers, but are also supposed to be their own oversight agency. Given that many of them have not a clue about the Regulations, and nor do their so-called professional HR people, it is no wonder that NYPA could make such an almighty cock-up – and then not even have the good grace to put things right without the need for the directions of the Pensions Ombudsman.)

Download: Mr M Henderson V North Yorkshire Police Authority (NYP)
View:
(if it fails to open in google docs, try again.  It will work eventually!		 Mr M Henderson V North Yorkshire Police Authority (NYP)

Mr Henderson was retired in 1991, following an assessment by a Dr Givans of permanent disability caused by,

‘. . . problems [that] consist of pain and stiffness in the left knee and right hip with associated weakness of the legs’.

He was awarded an injury pension on band four – the highest level, which is described in the Regulations as, ‘very severe disablement.’

Mr Henderson’s degree of disablement was reviewed in 1993, when it was decided there was no change to his circumstances.  Some fourteen years passed, during which time Mr Henderson struggled on with no ability to work and earn, then, in 2007 he was reviewed for a second time. NYPA performed a complete reversal from the 1993 review and this time, for reasons unknown, thought he could be a personal security co-ordinator, a scrutiny officer or a rent recovery officer.  This is someone who had been a band four for 16 years.

His injury pension was reduced by NYPA from a band four to a band two. We can only imagine the huge shock and upset this must have caused the poor man, who had never been fit to work since leaving the police.

He appealed, but, amazingly, the PMAB magnified his torture by reducing him further from a band two to a 0% band one.  The (cough) ‘wisdom’ of the PMAB was they thought Mr Henderson’s right hip problem was not related to the injury on duty.

So far, so bad.

Mr Henderson turned to the Pensions Ombudsman for some sane insight into the situation.

Fortunately, (and inevitably) the PO upheld Mr Henderson’s complaint and found against both the PMAB and NYPA. The PO directed that North Yorkshire Police Authority had to refer Mr Henderson’s case back to the PMAB for review and to make it clear to the PMAB what it was to consider.

The PO concluded that:

‘[NYPA had unlawfully] invited the PMAB to reconsider the original decision and expressed its concerns about Dr Givans’ decision’

As readers of our pages will know, it is, and always has been, unlawful to revisit any final decision on the cause of disablement when conducting a review of degree of disablement. NYPA and the PMAB were apparently blithely unaware of this. So much for professionalism. Or is it that neither actually cared a damn, and just did what they wanted to do, regardless of the law?

Before we jump ahead and talk about an important implication of the PO’s decision, we need to have a crash course about some legalese.  Hold on though as the punchline will be worth it.

The legal doctrine of precedent has a Latin term: stare decisis – ‘standing of previous decisions’ as the legal principle of determining points in litigation according to precedent.  It means that Judges must follow past decisions to ensure certainty.

William Blackstone (English jurist, judge and Tory politician of the eighteenth century) opined that judges do not create or change laws. The law has always been that way and the Judge’s role is to discover and declare the true meaning.  Since it is discovered by the Judge that the law has always existed in the way he or she rules then this means that case law operates retrospectively.

There is a hierarchy of precedent that starts from the Supreme Court, goes down through the Court of Appeal, High Court, Crown Court, County Court all the way to Magistrates and tribunals.

Obiter dictum translates to “said in passing” and this exists in the doctrine of precedent covering decisions by legal authority lower in the hierarchy than the Courts themselves.

In legal-speak the Pension Ombudsman is a ‘persuasive authority’.  In plain language this means that, although a PO decision is final and binding on both parties (and an appeal of a determination of the Pensions Ombudsman can only be lodged at the High Court on points of law or questions of fact), the decision does not set a definitive precedent onto judgements made by a higher court.

But, as a persuasive authority, any given PO decision is one which any higher the court can, and will, consider and may be persuaded by it.

It is also a decision which any police pension authority, and any PMAB ought to take due notice of, as to act contrary to it is sure to attract challenge and appeal.

Now we have talked about the persuasive precedent of the PO, let us return to the decision made in Mr Henderson’s case.

In the conclusion of the decision the Ombudsman stated this:

NYPA shall refer Mr Henderson’s case back to the PMAB for review and make it clear to the PMAB what it is to consider. NYPA shall restore Mr Henderson’s injury benefit to its previous rate until such time as a final decision is reached.

The PO decided the decision of the PMAB would be quashed.  It must be readdressed – this time correctly – and no reduction to rate of injury benefit shall occur until it is all over.

In other words, until there is finality – until all appeal avenues have been exhausted – the injury award of Mr Henderson must not be altered.

Persuasive precedent.

Bully boy tactics by civilian so-called medical retirement officers, director of resources or other such non-medical technocrats should please take very careful note of the PO’s conclusions in the Henderson case.

Such people have been known, with intent fuelled by self-interest, to casually make unlawful threats to disabled former officers of suspension of their injury award or punitive reduction to a band one.

These threats are made just because there is no capitulation to their wrongful orders for disclosure of medical records since birth or non-completion of an odious and irrelevant questionnaire asking for sensitive personal information which no PPA has a right to demand.

They need to be reminded that not only does Regulation 33 not apply in such circumstances (decision upon the available evidence if there is a failure to attend a medical examination), but the PO has made it very clear that any reduction in pension payment, whether made lawfully or not,  has to be suspended until all avenues of appeal are exhausted.

It rather takes the wind out the sails of their threat doesn’t it?

PPAs and their HR managers – and compliant (‘Show me the money’) SMPs should take note that if the sanction of reduction of pension has been performed without any medical evidence an appeal is clearly inevitable.

Taking the precedent to it’s logical conclusion, any punitive unlawful threat to ‘do this, or else!’ is meaningless.  All that is being achieved is to take the decision out of the hands of the police pension authority and into the remit of an appeal.  The reduction can not be enforced until the appeal process has finalised.

It seems to us in IODPA that the system is well and truly broken. Chief Constables and their staff lack the necessary expertise to understand the Regulations. In some areas, they see injury pensions as a drain on resources, so throw their PPA hat into the bin and clap on their ‘I’m concerned about the budget’ hat and set about scheming how they can manipulate the review process so as to reduce injury pensions.

PMABs, if anything, are worse. They are a panel of medical professionals whose knowledge of the Regulations is based on out of date Home Office guidance, which has no legal authority and which has been roundly discredited by the Courts. They struggle with the niceties of legal protocol. To them the rules of precedent are a dark pool into which they prefer not to venture.

So, PPAs, PMABs, HR types, SMPs and all the other acronymic twerps who are currently the bane of the lives of disabled former police officers continue to act according to their own vacuous precedents, rather than to legal precedent. They keep on repeating, and elaborating on, their own woeful mistakes.

They are truly fools, one and all.

 

 

 

 

Access to Medical Reports Act

iodpa caselaw, medical records
Access to Medical Reports Act

“If you are distressed by anything external, the pain is not due to the thing itself, but to your estimate of it; and this you have the power to revoke at any moment.”Marcus Aurelius, Meditations

Here is an unsettling fact. It seems that most police force are aware of the Access To Medical Reports Act, but some chose not to comply with it.

The Access to Medical Reports Act 1988 (AMR Act) provides the right for people who have been medically assessed for insurance or employment purposes to withhold their consent for access to medical records, and also to see any report produced by the commissioned doctor before it is sent to the person or organisation who commissioned it.

This Act applies directly to the process of review of police injury pensions, as an injury award is a form of compensation (i.e. insurance) for injury on duty.

Here are extracts from two recently used consent forms, issued to IOD pensioners by two different forces, demanding agreement that the medical authority’s report shall go direct (or after a benevolent pause of three days!) to the Human Resource department:

From Avon and Somerset Constabulary:

consent
Avon & Som consent form

And from Northumbria Police:

np consent
Northumbria consent form

The forces who put out these manipulative psuedo-requests for consent will know all too well that there is legislation concerning the ‘provision of reports’. Why otherwise would they ask for ‘consent’ to release?  That said, everything is wrong about the demands asked of the signatory.  Both of these consent forms have but two options, each option which, with brazen shamelessness, breaches the Access to Medical Reports Act.

It is in fact illegal to release the report simultaneously to both the recipient and the third party, in this case the police pension authority.  It is also unlawful to demand a three ‘working day’ window to inspect the report.

Where a person is induced to enter into giving consent entirely or partly by a false assertion, such as not being truthful with the rights gifted to them by legislation and failing to provide understanding in broad terms the nature and purpose of the disclosure and the rights they have, then any misrepresentation of these elements will invalidate consent.

The insistence that the report cannot be changed is also contrary to the Access to Medical Reports Act.  Nowhere is the signatory explained their full rights.  The reason for this is clear – it is a plain attempt to blitzkrieg disabled former officers to ensure they yield to the will of the pension scheme manager; to force compliance with a bullying, superior force.

The AMR Act makes it crystal clear that consent to any report being released can be withdrawn without retribution.  If an individual being assessed is unhappy with any element of the report, and says so, then it is illegal for the doctor to release it to any third party, including the police pension authority.  In real-terms this means the review is over… stalemate.

Forces know this. We can only conclude that is why there is no mention of the Act in the consent form and that is why your rights are not explained.  Why give you an informed consent form when they can con you into forced acquiescence by saying you have 72 hours and the clock starts … now!

The basic points of the AMR Act can be summarised thus:

  • Section 3 of the Access to Medical Reports Act states that the person has to give his or her consent for their employer to be given access to their medical records.
  • Section 4 of the Act the doctor or medical practitioner must wait 21 days before sending the report to the employer.
  • An employer must obtain the person’s written consent which must then be provided to the doctor in order to be provided with access to the requisite report.
  • Under Section 5 of the Act a person can request the doctor to amend the report if they feel that it is incorrect or misleading.
  • An employee is entitled to withhold their consent for a report to be provided to an employer having been provided access to it under Section 4 of the Act.
  • Section 6 of the Act states that doctors will retain all reports requested by employers for six months

At this point we have to mention that the Police (Injury Benefit) Regulations 2006 require a police pension authority ‘refer for decision to a duly qualified medical practitioner selected by them . . . ‘ the relevant questions. At review, the relevant question is degree of disablement. Specifically whether there has been any alteration in degree of disablement. The Regulations also require,

30-(6) The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to regulations 31 and 32, be final.

30-(7) A copy of any such report shall be supplied to the person who is the subject of that report.

We can see, therefore, that the decision of the SMP must be in the form of a report. The SMP can not inform the police pension authority of his decision in any other way. So, no sneaky way round the Regulations or the AMR Act.

What happens if the doctor decides to release the report anyway?  Firstly they breach the Access to Medical Reports Act and a court order can be easily obtained to enforce the Act.  In effect this will nullify the report and any decision based upon it.  Secondly, the GMC will almost certainly punish the doctor for committing gross misconduct.  In all likelihood the doctor will be struck off.

Further, there will also have been a concurrent breach of the Data Protection Act.

As things stand in the strange alternative legal world view of Avon and Somerset and Northumbria, pensioners are being instructed to sign the consent form without seeing the report – in this case before they have even allowed access to their medical records. This is in no way seeking ‘informed’ consent. It is patently ridiculous to expect anyone to sign consent for the SMP to send in a report that has not yet been written, and has not been yet seen by the individual concerned.

The concept of consent arises from the ethical principle of patient autonomy and basic human rights.  You can not consent to release of a report that, at that time, is yet to come into being.

Informed consent must be preceded by disclosure of sufficient information – in relation to a medical report, the report has to be visible for consent to be formed. Consent can be challenged on the ground that adequate information has not been revealed to enable the patient to take a proper and knowledgeable decision.

Tellingly, in the police consent form, there is no mention at all of any of the rights provided under the Access to Medical Reports Act 1988 – there is no mention in the consent form of the Act itself.

The General Medical Council (GMC), the British Medical Association (BMA), and the Faculty of Occupational Medicine (FOM) have issued guidance on the law governing commissioned reports. They recognise there are protocols enshrined in law, and the guidance is a consequence of that law.

The Faculty of Occupational Medicine makes it clear in this document titled General medical council guidance on confidentiality (2009) and Occupational Physicians that it’s members have to comply with the guidance and ethics laid down by the GMC.

As quoted from this report, the GMC guidance –that confidentiality is a fundamental duty for all doctors and must not be breached without the consent of the individual concerned – strengthens the notion of “no surprises”:

… in the relationship between doctors and patients and because of cases reported to them where the content of a medical report deviated significantly from the patient’s understanding of what it would say.

In 2008 the FOM set their greatest minds to the task of examining whether Occupational Health doctors have to comply with the AMR Act.

An expert group was formed by FOM and this panel was chaired by Professor K Holland Elliott FFOM CMIOSH Barrister (non-practising).  The result was a published report titled “Guidance for Occupational Physicians on compliance with the  Access to Medical Reports Act” .

The main reason objective of the expert group was to  to “explain the legal basis of our practice and how this differs from mainstream medicine in relation to this Act”.

The default recommendation of the expert panel was that if the occupational health clinician is “responsible for the clinical care” of the patient then the Act applies at all times.

An important conclusion of the report was that if the occupational health clinician bases a report from medical notes obtained from a GP, hospital or consultant then the Act applies.

In paragraph 62, the group come across the Rubicon that is the question of consent – the barrier which no SMP or HR Department may cross without falling foul of the law: “The Act sets no limit on the time the individual may take to consent to the release of the report and so it may potentially be delayed indefinitely“.

The specific wording of that Act that they are referring to is this:

Where an individual has been given access to a report under section 4 above the report shall not be supplied in response to the application in question unless the individual has notified the medical practitioner that he consents to its being so supplied.

Pay close to attention to the highlighted text.  Consent can only be given once the individual has been given access to the report.

They concluded that they strongly agreed that, “An individual has a right of access to the medical report produced by the occupational health practitioner”.  

Also they strongly agreed with the statement that, “When an occupational health physician writes a report based upon medical records supplied by the GP or hospital, the occupational health physician needs consent to send the report”.

Dr Bulpitt of Avon & Somerset clearly understands the implications.  He said himself that if consent to disclose the report is withdrawn then,“we are in danger of the whole thing grinding to a halt”.

Remember that this isn’t the consent to obtain medical records in the first instance.  As we’ve mentioned, the consent concerning disclosure cannot cover the consent to release a report that is yet to exist.

Are you an employee of a police ‘inhuman remains’ (HR) department that still thinks that the Access To Medical Reports Act 1988 doesn’t apply to police injury awards?

Let us put your doubts to bed once and for all.  The British Medical Association (BMA) has a document titled “The Occupational Physician“.  It was authored by the BMA occupational medicine committee.

Chapter 11 Access to Medical Reports Act 1988
How the Act affects occupational physicians
Although the Act, for most practical purposes, applies to reports provided by an individual’s GP or hospital doctor, it also affects occupational physicians in the following circumstances:

  1. where an occupational physician provides clinical care to the employee (care is defined in the Act as including examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment)
  2. where an occupational physician has previously provided medical treatment or advice to an employee (in the context of a doctor/patient relationship) and therefore holds confidential information which could influence the subsequent report
  3. where an occupational physician acts as an employer’s agent, seeking clinical information from an individual’s GP or consultant. In this case the occupational physician, acting for the employer, should seek the employee’s consent to request a report and explain his/ her rights under the Act.

Often the occupational health record of a former police officer contains confidential information where the force medical officer has provided treatment or advice in attempt to get that person back to work – so this is (b) and is covered by the AMR Act.  Advice and/or treatment to get someone operational again should be the raison d’être of a police occupational health unit.

A report produced by an organisation’s own occupational health practitioner (or delegated agent) is covered by the AMR Act when the practitioner or predecessor has been involved in the employee’s treatment, even past treatment unrelated to the employee’s current medical condition.  How many serving, but injured, police officers prior to retirement were sent for MRI scans? Counselling? Private operations to speed recovery?  Referrals to rehabilitation centres?  This all amounts to clinical care.

The guidance from the GMC, BMA and FOM all coalesces into the single agreement that if a report is based from clinical information gained from the individual’s GP then this is (c), above, and is covered by the AMR Act.

Diana Kloss QC of St John’s Buildings Barristers’ Chambers published an article in the Occupational Medicine Journal (September 1st 2016) that covers this exact subject.  She touches upon the frustration felt by force medical officers such as Dr Bulpitt when she writes:

human resources and occupational health (OH) professionals are unhappy with the current guidance (under review) from the General Medical Council (GMC) that an OH report to management should be shown to the patient before it is sent and that they should be permitted at that stage to withdraw consent

She concludes that:

only when the employee is told what is in the OH report can he give valid consent to its disclosure to his employer…
Therefore, just as an employee can withdraw consent to disclosure of a GP report when he sees it (under the AMRA), so he can refuse to permit an [Occupational Physician] to send a report to management when he knows what it contains.

Somewhat playing to the intended audience of the journal, the QC mentions circumstances concerning the application of an ill health retirement in her article and makes a point that it is:

it is arguable that an [Occupational Physician] appointed to advise on an ill-health retirement pension may be considered to be in a position analogous to that of an expert witness especially when pension procedure is laid down in statutory regulations

But that argument has no relation to any medical report written from clinical information from an individual’s GP or consultant.  In any case, Diane Kloss herself makes it clear that even an expert witness can have consent to their report withdrawn. In Kapadia v London Borough Of Lambeth [1999] Dr Grime, a Registrar in the Department of Occupational Health and Safety at King’s College, refused to hand over his report on Mr Kapadia – that he undertook on the instructions of Lambeth – to the Borough’s counsel on the first morning of the hearing as no consent to do so was provided by Mr Kapadia.

In relation to police injury awards, such a medical report required by the Regulations is not written by an ‘expert witness‘, they are written by a suitably qualified medical practitioner – under the full jurisdiction of the GMC, FOM, BMA and AMR Act.  The applicant for an ill-heath retirement that withdraws disclosure just will be unable to prove to the police pension authority their entitlement to an injury award.  The ability to exercise consent can not be denied.

A review under Regulation 37 is also commenced with a demand for full access to all medical records held by the GP practice.  Notwithstanding the lack of any legal authority within the Regulations for asking for such information, any attempt to write a medical report on somebody without giving that person their statutory rights is scandalous.

And, if you’re wondering, why the distinction under the AMR Act between an occupational health doctor, not being a doctor responsible for the clinical care of the IOD pensioner, who writes a report from occupational notes, contrasted with the same doctor writing a report from medical information gleamed direct from GP and/or hospital notes?  The former is not compelled to comply with the AMR Act whereas the latter is under the remit of the AMR Act.

The answer shows the foresight of the legislators that penned the AMR Act.

No one in the UK is registered with a GP – they are registered with a GP practice.  There might a favourite GP there who you would prefer to see, or that nice doctor you saw since childhood may have recently retired.  You may have moved home recently and changed GP practices.  The GP practice may have amalgamated with a bigger, slicker more modern outfit.

The point is that a report written by a GP you have never met, from your comprehensive medical notes, who works at a GP practice which is responsible for your clinical care is no different from an occupational health clinician, who you don’t know, writing a similar report from the same medical files.

Neither ‘know you’, neither ‘have treated you’.  But the locum doctor working at an understaffed GP practice (a locum is a doctor who stands in temporarily for another doctor) that is tasked with the request from an insurer or employer to provide a medical report is put in exactly the same position as the selected medical practitioner:  a position whereby they must comply with the AMR Act.

This is why all reports based from medical records have to comply with the AMR Act.  And this is why you aren’t told of your rights.  People like Dr Bulpitt would prefer you not to know this.

Failure to properly advise IOD pensioners about the application of the AMR Act is a further deliberate misuse of the authority of a policing body.  The insidious and creeping behaviour of some public officials employed by the police undermining the rights of disabled former officer is stark.  The maladministration of injury awards is epidemic.

Until police bodies are held to account for deliberately attacking or neglecting legislation that have been set up to help protect our rights, the abuse will continue.

IODPA will always work to put an end to it.  If you have been to see a SMP and are not happy with the report (or felt the SMP performed a blatant and partisan interrogation), why not remove consent for that report to be released.   Be clear that the doctor’s licence to practice is at stake if he or she fails to comply.

Do not be browbeaten into compliance by threats of the legal services department that you have not complied.  Regulation 33 of the Police Injury Benefits Regulations only compels a medical examination and/or interview if the police pension authority has considered whether there may be a change in the pensioners degree of disablement, a suitable interval has taken place, and has decided there is enough evidence of that being the case to pass the question of a substantial change, for decision, to the medical authority (negligent or wilful failure to attend said examination only permits a decision being made on the available evidence, attending satisfies this condition – subsequently withdrawing consent is a statutory right and is something else entirely).

You have control over who sees the report.  It is in your power to decide that no-one should see it.

Until you see a consent form such as this fully AMR Act compliant suggested example that we have created and the full AMR Act statutory framework explained separately,  explain to your force very clearly that you will not tolerate your rights being trampled upon:

This is a guide to your principal rights under the Access to Medical Reports Act, which is concerned with certain reports provided for employment or insurance purposes.  Your full statutory rights shall be provided in a separate document.  Potentially the occupational selected medical practitioner may have access to your patient record.  As a report, based upon medical records supplied by the GP or hospital, is being sought from the occupational selected medical practitioner and an evidence based judgement is asked for, then the Act applies even though the practitioner isn’t directly responsible for your clinical care.   This follows Faculty of Occupational Medicine  guidance. In line with GMC code of practice, you are a patient of the practitioner even though there is no traditional therapeutic relationship.
OPTION A

You wish to see the report before it is issued. The Selected Medical Practitioner will be informed and will not supply the report until you have seen and approved it. If the Medical Practitioner has not heard from you in 21 days, he will assume you approve and provide the report. When you see the report, if there is anything which you consider incorrect or misleading, you can request in writing that the Selected Medical Practitioner amends the report, but he may not agree to do so. In this situation you can:

  1. withdraw consent for the report to be issued
  2. ask the Medical Practitioner to attach to the report a statement from you giving your views.
  3. agree to the report being issued unchanged. The above will also apply if the Medical Practitioner declines to show you the report (or part of it) because he considers there are special circumstances which are described in the Act.
OPTION B

You can withhold your consent to a report being provided.

 

 

 

 

Ex-Police Constable Archibald

iodpa caselaw, Degree of Disablement
Ex-Police Constable Archibald

“If you want to feel the life and the body of great men who are long gone, go to their tombs or monuments; if you want to understand the real life and the wisdom of great men who are long gone, go to their libraries!”
― Ernest Agyemang Yeboah

The Police Pension Scheme has its origins in a scheme introduced by the Metropolitan Police in 1829. Benefits were provided on disablement for London officers “worn out by length of service”. Payment of a pension was discretionary, with limits to payment set in legislation. The pensions reflected the “arduous and hazardous conditions” of police work.

A police officer could gain a maximum pension after 25 years, compared to 45 years under the 1834 civil service scale.

In 1890, the Government promoted a Bill which retained the existing superannuation funds.  A uniform pension scheme for police officers was first established under the Police Pensions Act 1921 and further detailed police pensions regulations, along the current lines of what we have today, were subsequently made under the Police Pensions Act 1948.

On the 21st November 1967 Mr. Ron Lewis (Member for Carlisle) had an exchange in the Commons concerning police injury pensions with Dick Taverne, the then Under-Secretary of State for the Home Department.  The featured image of this blog is a picture of Mr Taverne sat in his personal library.

They discuss the case of an ex-policeman named P.C. Archibald, who had “… been compulsorily retired from the police as a result of injuries sustained in the course of duty in trying to restore order or to arrest criminals”.

How attitudes have changed. Back then they understood that earnings had no relevance to the degree of disablement and that it was important to ensure the “fair and adequate financial provision for police officers who are retired because of disablement as a result of injuries received in the performance of their duties”.

Mr Dick Taverne:
I come to particular examples, including Police Constable Archibald’s case. A police constable like Mr. Archibald who retired after nine years’ service with the degree of disablement of 40 per cent..—. . . [snip. Archibald got an enhanced ill-health pension and an injury award]. . ., his total benefit would be £149 plus £198, or a total of £347 a year, and he would continue to receive this while the degree of disablement persisted, whatever work he took up.

The purpose and intent of the injury Regulations has not changed one iota since PC Archibald’s duty injuries were the subject of Parliamentary discussion. To the Home Office Minister of the day, it was a clear as it could be that there was absolutely no link between what a disabled former officer earned and the level of his injury pension. This is what we in IODPA have been saying for some time, but, so far, scheme managers are refusing to listen. They will, eventually, have to listen when this issue is aired by means of judicial review – and that will not be too far in the future.

We’ll say it again. Reviews where any attention is paid to earnings are unlawful. The medical condition resultant from the duty injury, and whether it has altered so as to improve or worsen an individual’s ability (capacity) to work is the focus, not income.

Here is a link to the full exchange:

http://hansard.millbanksystems.com/commons/1967/nov/21/disabled-policemen-superannuation#S5CV0754P0_19671121_HOC_452

 

 

 

Missing Morality of Merseyside’s “MRO”

iodpa caselaw, morale
Missing Morality of Merseyside’s “MRO”

“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse, and you say that you are neutral, the mouse will not appreciate your neutrality.”
― Desmond Tutu

And the elephant will thank you for being on its side.

Justice is rooted in morality. All laws are based on that which decent folk think is right. Injustice raises it ugly head when decent folk are gagged and afraid to speak out, or when people in power act not according to a moral sense, but for other, perverse, reasons.

Morality comes from us – we make it. It starts with a few biological sources, such as the basic survival instinct, and behaviours of social species. After that, human philosophy, theology, and assessment of harm versus benefit, establish the remaining nuances of morality.

The recent RSS newsfeed search of the BAILII database has revealed that Merseyside Police has historically had a disproportionately high number of judicial reviews compared to other forces and evidently has or had a moral compass that is badly out of kilter.

The Metropolitan Police (understandable given its size) and Northumbria Police (not surprising given the ubiquitous and nasty Nicholas Wirz is the force solicitor) are also widely referred to as either defendants or appellants at appeal.

There are apparent institutional deficiencies at the heart of the correlation between Merseyside and the frequency this force appears in England and Wales High Court (Administrative Court) Decisions cases concerning police injury pension decisions.

If you read the Judicial review transcripts it is easy to conclude that Merseyside had a culture where serving officers perceived they were being bullied, victimised or not supported. This led to a spiral down into sporadic and then long-term absence from work, as well as stress, depression, and no doubt the unseen dependence on alcohol or drugs; even manifestations of the physical symptoms that accompany such mental conditions.  Complaints about  management failures must have repeated themselves in occupational health  referral meetings and HR offices but it is apparent that Merseyside forgot the principles of what was right and proper, and the cycle repeated.

Organizational culture, power, hierarchies and poor leadership capacity clearly contribute to a culture of failures.  Quite likely Merseyside has glossy leaflets or fancily worded policies and procedures describing their approach to dealing with bullying, victimisation and other management failures.  Often serving officers in difficulties will rely on the support of the occupational health unit but if the culture of an organisation is corrupt then the morals of the occupational health unit will prevent careers being saved and, as sure as night follows day, peoples’ health will deteriorate.

The courts have declared that the mere provision of an occupational health unit does not excuse a failure of a employer to provide decent working conditions.  Intel Corporation (UK) Limited v Daw (2007) made it clear that there is a duty on employers to be proactive in reducing stress. There is a clear pattern that the occupational health unit at Merseyside seems to have been at best ineffective – at worse deliberately negligent.

It seems that morality within Merseyside’s occupational health unit, in it’s capacity to prevent the situations stated in the Judicial reviews, was found wanting.  Where did the institutional culture to not help those in need come from? From the cold, impersonal commandments of senior managers?

Or from Mr Peter Owens?

Peter Owens is a retired Chief Inspector who served in Merseyside Police as the Head of Merseyside Police’s Occupational Health Unit, and now is employed as the self-styled Medical Retirement Officer (MRO) of the same force.

So, what motivates Mr Owens?

To quote from Freshexpressions.org, Mr Owens used his church connections to create a religious cell  that included at least 4 high ranking officers.

Early in 2006, Peter Owens, Chief Inspector of the Occupational Health Unit at Merseyside police and a leading member of the Merseyside Christian Police Association, planted a church at work, known as Riverforce.

From the initial suggestion made by his vicar, it took a year to set up the first cell, which consists of four high ranking police officers.

It is disconcerting and unfortunate that freshexpressions.org also quotes Mr Owens stating in the same press release that “Christians were filling key roles in the force”.  According to Merseyside’s 2015 equality publication 98% of serving officers are white and 43% have a religious affiliation, so it is no surprise that active Christians are well represented in senior management – what is of concern is the insinuation that a sect such as Riverforce, as an Evangelical Christian Support Group,  is actively recruiting members within a civil authority.

The phrase “separation of church and state” is generally traced to a January 1, 1802 letter by Thomas Jefferson, addressed to the Danbury Baptist Association in Connecticut, and published in a Massachusetts newspaper. Jefferson wrote,

“ I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”[1]

Peter Owens has managed to knock the wall down and truly embed the law with his church.

Belonging to a clique can only result in unconscious people preferences (biases) playing a significant part in the way Riverforce ‘cell’ members engage with others and the decisions others make about them. Perhaps it was connections such as this that led to Peter Owens being re-employed as the MRO directly after his retirement.  A shoo-in, so to speak.  The job application of the MRO was written in a way to certainly only be favourable to a preferred candidate given its narrow suitability to a small number of people with a specialised knowledge and interest – such as a former Head of Occupational Health with connections.

Whether nepotism did or did not actually exist, the mere perception of nepotism will poison the newly created MRO post that Mr Owens moulded for himself.  What is corrupted is the ‘special trust’ and neutrality that now can never be invested in the position and makes the exploitation or misuse of authority a natural progression for the compromised post-holder.  Baggage from previous decisions will haunt and prevent the correct administration of the Police Injury Benefit Regulations and the Chief Constable as the true Police Pension Authority, thinking he has a ‘safe pair of hands’ doing all his work for him, will be kept blind to the real travesty happening in his name.

Peter Owens has also been regularly attending NAMF (National Attendance Management Forum) meetings at least as early as 2004 as Merseyside’s ‘attendance coordinator’ – and we all know the thin moral fibre of NAMF is so weak and elastic that it stretches with them to commit whatever outrages they can get away with.

namf 2004 attendance cropped

The tenure of Mr Owens overlapped all the Judicial reviews that Merseyside zealously pursued, and so there is high probability that the God fearing, faith moralistic Mr Owens was acutely aware, possibly even a leading protagonist, of the following legal proceedings:

Williams, R (On the Application Of) v Merseyside Police Authority [2011]

Merseyside Police Authority v Police Medical Appeal Board & Ors [2009]

Merseyside Police Authority, R (on the application of) v Gidlow & Anor [2004]

The 2004 case of Gidlow concerned medically retired Police Sergeant Mr Reilly-Cooper who was given an injury award on appeal after the original SMP rejected the application. Dr Gidlow, the appeal  SMP (this was before the days of PMABs),  decided to uphold the appeal as in his view the Sergeant’s diagnosed adjustment disorder and mixed anxiety/depression being found as “an injury received in the execution of his duty as a police constable”.  Merseyside disagreed and took the decision of the SMP to Judicial review where  the decision of Dr Gidlow was quashed and the judgement made that Mr Reilly-Cooper will have to see another SMP.

The sorry episode chronicled from 1997 to 2001 shows that Mr Reilly-Cooper developed a  psychiatric condition resulting from resentment and poor handling by the force of the grievance procedure over an allegation made against Mr Reilly-Cooper and his perception that he had not been supported by senior officers.

Simply put, Merseyside Police made him ill. Mr Reilly-Cooper’s complaint was that he felt that he was being punished for an allegation against him being upheld suggestively, though not directly expressed, even though he was found not to be guilty.

The occupational health unit, headed by Chief Inspector Owens, seemingly failed in their duty of care. Where is the moral compass here? Who made the moral judgement that it was acceptable to visit mental distress on an already ill individual, presumably to attempt to win a point about how the Regulations applied?

The 2009 case  involved two former police officers who served with Merseyside, a Mr McGinty and Mr Hudson.  PMAB panels found that each were permanently disabled from performing the ordinary duties of a member of the police force.  Merseyside Police Authority disagreed and challenged the Board’s determination that the respective disablement of each was received in the execution of duty.  Merseyside Police seemed eager to go the extra-mile to attempt to stop people getting injury awards.

In this case the Judicial review found in favour of the PMAB and rejected Merseyside’s appeal.  The noteworthy aspect of the transcript is the theme that there were concerns of the fairness or propriety of the procedures that the Merseyside force took against Mr McGinty and Mr Hudson.  Again Merseyside seemingly failed in its duty of care to its serving officers.

The 2011 Judicial review concerned a Mr Williams, whose claim involved the issue as to whether or not the former police officer, compulsorily retired due to permanent disablement as a result of psychiatric illness, could establish an entitlement to a police injury pension on the basis of – yes, you guessed it – that the psychiatric illness was received … in the execution of his duty.  In this instance the appeal was upheld.  Merseyside is nothing but consistent in reasons to force its former officers to the high courts after it neglected the same officer whilst in service.  Not a good advert for the head of the occupational health department.

  1. It is clear that this account includes reference to requests for training which were rejected and to Mr Williams’ perception that his employers were not listening to his concerns. It also refers to Mr Williams “struggling to cope” with his new duties. This is also consistent with a report produced by a Mr Ganley, a clinical psychologist, dated 22 April 2004, who in the course of recounting the history given by Mr Williams at the appointment, wrote:

    “Due to imposed changes in 2001 Mr Williams was then transferred to get back to active service. From this period Mr Williams reports increasing stresses due to being overwhelmed with new aspects of the role. Mr Williams reported his concerns but he feels he was not given the extra support and training. Subsequently Mr Williams’ anxiety developed to such an extent that he developed significant symptoms of anxiety and depression and was unable to remain in his post.”

The Judicial review quashed the PMAB decision on points of law and ordered that Mr Williams shall be seen by another PMAB panel.

Who won or lost at the above court actions isn’t the point of this blog post.  It is the fact that the Judicial reviews needlessly happened when it is clear by reading the transcripts in each and every case that if senior officers, personnel department and the occupation health unit had the moral compass to have treated the officers with fairness and compassion from the beginning it is arguable that the court actions would never had materialised in the first place.

The concern is how Merseyside Police mistreated these four former police officers and drove each to an illness so severe that they had to be medically retired.  Once retired the officers came up against the full force of Merseyside who continued the trauma by pursuing them through the courts.

We question the values of an organisation which is apparently content to allow someone in a position of authority when this all happened to continue in a similar role in the present day.

In 2015 history repeated itself.  How many retired Merseyside officers were similarly mistreated when they served and driven to medical retirement by the same senior management team that supposedly were there to lead, manage and support them?

Did Mr Owens ignore that the injury pension of victims such as Mr McGinty and Mr Hudson (Mr Reilly-Cooper and Mr Williams if they were eventually successful) are unique to that person’s individual circumstances of disablement and continued to review them anyway despite such a review only being allowable to occur at a suitable interval relevant to that individual’s circumstances.  Or or did he take the cynical judgement to conveniently forget about a review of those who had the temerity to challenge Merseyside’s failures at the Administrative courts – if challenging them provides protection from future abuses then its a sure sign that it is never advantageous to acquiesce to bullies.

In any case, Regulation 37 does not empower a police force to neglect its duty of care. Where mental health issues are identified in an employee and the occupational health unit blithely ignores or participates in management failures to influence and strengthen the hold of the illness, to the extent that the person becomes so ill that they are medically retired then later, once that person is trying to move on with their lives, blindly reviewing them along with 501 others just reduce the financial burden of the force is inexcusable.

If that person suffers a repeated attack each and every time they are reviewed, just because they are a band three or four it is quite plausible, given Intel v Daw, for retired officers to consider bringing retrospective claims for personal injury.

When Chief Financial Officers foolishly cook up ideas to corrupt and misuse a Regulatory power to exert heavy pressure by mass reviewing everyone in order to extract money they should stop to think whether reopening any individual’s history will start a process that will generate many unpleasant and complicated problems, that they or their predecessors caused, over which they will have very little control.

The Chief Constable of Merseyside can not be neutral over this. He is the boss of both the mouse and the elephant. At present he is giving the nod to the elephant. We say this to the Chief Constable: elephant dung makes a whole lot more mess compared to mouse droppings.

 

Introducing our new BAILLI Newsfeed Feature

iodpa caselaw
Introducing our new BAILLI Newsfeed Feature

What is BAILII?

The British and Irish Legal Information Institute (BAILII) provides legal information, and especially reports of cases decided by courts, in the United Kingdom.   BAILII contains judgments, decisions, legal texts and commentaries of  British  case law and legislation.

What is RSS?

RSS is a technology that is being used by millions of web users around the world to keep track of their favorite websites.

In the ‘old days’ of the web to keep track of updates on a website you had to ‘bookmark’ websites in your browser and manually return to them on a regular basis to see what had been added.

What if you could tell a website to let you know every time that they update? In a sense, this is what RSS does for you.

RSS flips things around a little and is a technology that provides you with a method of getting relevant and up to date information sent to you for you to read in your own time. It saves you time and helps you to get the information you want quickly after it was published.

RSS stands for ‘Really Simple Syndication’. Many people describe it as a ‘news feed’ that you subscribe to .

IODPA has linked all the relevant searches concerning Police Pension and Injury Regulations  on BAILII into a single RSS search.

You can find this new feature on the right sidebar:

RSSCaselaw

Or click this link Caselaw RSS Newsfeed

Return to this page to see case-law as it is determined.

Mr R has learning disabilities and a mental health condition. He went overseas on holiday to stay with some family friends. His parents had intended to travel with him but were unable to do so because of his father’s ill health. This was the first time that Mr R had travelled abroad alone.
On his return he was stopped at his local airport by two trainee customs officers because he was carrying a large amount of tobacco. He was then interviewed about his trip abroad, how it had been funded, and the tobacco. Contrary to the UK Border Agency’s own guidance, the customs officers did not check at the start of the interview whether Mr R was fit and well, or whether he had any medical condition they needed to be aware of. Nor did they ask him to read and sign the notes of the interview. If they had done, they would have discovered that Mr R could not read or write. The officers strip searched Mr R - at one point leaving him naked.
One of the reasons given for the strip-search was that Mr R appeared ‘nervous’ and ‘evasive’ when questioned. Although Mr R had referred to his disabilities and one of the officers had written ‘Mental health problems, disability’ in his notebook, the officers simply continued with the interview and the search. No drugs were found. Mr R was eventually allowed to leave, but the tobacco he had been carrying was seized. My investigation found that the UK Border Agency had not had regard to Mr R’s disability rights in the way that it had carried out its functions. As soon as Mr R referred to his disabilities, the customs officers should have stopped the interview and re-arranged it so that an appropriate adult could be present. Instead they had pressed on regardless, they had failed to follow the Agency’s own interviewing protocols, which might have helped them to identify Mr R’s disabilities and deal with him appropriately as a vulnerable adult. An appropriate adult should have been able to explain that Mr R’s difficulties in answering questions were due to his learning disabilities and not evidence of evasive behaviour. Not only was it unlikely that the encounter would have progressed so far as a strip search, but Mr R would have had the support and protection he was entitled to in what for him was a terrifying situation. Not surprisingly, he never wanted to go near an airport again. We upheld the complaint. The UK Border Agency apologised to Mr R and paid him £5,000 compensation for the distress, humiliation and anxiety they had caused him. In an attempt at restorative justice we asked the Agency to explore with Mr R and his mother what they might do to enable Mr R to feel comfortable using his local airport in future. The Agency also agreed to review the disability awareness training provided to their customs officers, with a particular emphasis on identifying non-visible disabilities such as learning disabilities and mental health conditions.

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...