Causation

Advocating a 100% Fresh Assessment in All but Name

Advocating a 100% Fresh Assessment in All but Name

“Isn’t it nice to think that tomorrow is a new day with no mistakes in it yet?”
― L.M. Montgomery

Here’s the problem. A force brainwashed SMP won’t say a medical examination has occurred without seeing the former officer stagger into the office with bulging* Lidl bag (other supermarkets are available) with papers sticking out of it. *Note: More than likely the physical carrying of such bag will be used as sly evidence of substantial change.

We don’t know if it had the words ‘all my medical records ever, since birth’ written in Magic Marker on the side of the bag. Anyway, a little later, the SMP says a mild bout of flu when 6 years old is the real cause of the missing limb and subsequent PTSD, and causation is revisited.

Later again, surprise is expressed that the SMP had been able to get through with his primitive bag of tricks. In this new-age we are continually exhorted by HR minions such as  Staffordshire’s Andrew Colley that it’s not the force that wants the medical records, it’s the SMP.  Always the SMP.  ‘Our hands are tied!’ says Colley, the doctor is a doctor, he can ask for whatever he likes.  Don’t shoot the messenger … nothing to do with the PPA (honest ‘guv).

We are told to be vigilant on disclosure of sensitive personal information, so why wasn’t the SMP told he can’t have what he’s not entitled to? Did nobody think it looked a bit suspicious?  That the question of what happened prior to the last decision is time-barred and irrelevant.  What maybe reasonable to a nice and pleasant doctor is not lawful in the world of the Regulations where nice and pleasant doctors are as rare as unicorn droppings.

We have the feeling we know the answer to that. Just think of the howl-round, the furore, if the SMP decided to say the person should not have an injury award in the first place or said the previous decision wrong. This would be a clear breach of Law Court of Appeal in Metropolitan Police Authority v Laws and the PMAB [2010] EWCA Civ 1099, in which it was held that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations, and had merely to consider whether the degree of disablement had substantially altered.

But by demanding full medical records from birth, this is exactly where we are, right now. Pinned to our seats by perceived medical decision immunity, as the train enters the darkness of the tunnel of the Laws case law, next stop a zero percent band one.

Forces like Staffordshire are trying to bypass Laws and revisit causation by pointing the finger at Dr Vivian by proclaiming that it’s not them (the police pension authority, PPA) that is demanding full medical records, it’s Vivian – and Vivian is a doctor, and all doctors are nice and pleasant and wouldn’t breach the law.  The flaw in this is the SMP, as a delegated decision maker, is synonymous with the PPA.  They are not two separate entities … one is culpable for the other.  What the PPA can’t do, the SMP can’t do.

But the “let’s look at full medical records from birth” is when the SMP brings in other illnesses even when there are no said illness – such as age! (We aren’t joking here, this recently happened). And the reduction is formalised behind the mask of so-called expert medical opinion.

Where did this process of radicalisation start, and what has had done to counter it?  Our blogs shine a light and the narrative is clear:  the Regulations do not support the interpretation that is placed upon them by police forces.  They get it wrong and that’s why they continually lose in judicial reviews.

The National Well Being & Attendance Forum sets its people apart from the rest and, in all too many cases, this apartness leads to a hatred of the function of the Regulations:  to provide those injured on duty with an injury award.

NWEF prefers to think the Regulations as a means to stop those injured on duty from getting an injury award.

The NWEF September 1st 2017 minutes are a case in point.  The minions in attendance obviously, quite rightly, have the willies about consent because they get the consent issue so wrong it hurts.  They talked about being GDPR ready (the GPDR is the new General Data Protection Regulations and is the new legal framework for data protection coming into force in 2018) but just prior they chat about the SMP can have anything the SMP asks for. NWEF says:

The general view was that it is the SMPs process so it is up to the SMP to direct what information or evidence they require,

We’ve read the GPDR and having ‘everything’ ever, because ‘everything’ is asked for, and not giving ‘everything’ will be seen as non-compliance and dealt with by punitive action, doesn’t seem to fit.  Actually enough faux understatement, let’s not beat around the bush; it’s unlawful.

And the questionnaire!  Oh my, the questionnaire.  Even though a 2017 consent order against Merseyside touched on this as well as full medical records from birth, NWEF still thinks a questionnaire is a legitimate means to fulfil the comparison test.

3) Refusing to complete a questionnaire for the purposes of Reg 37(1)
It was felt the exchange of information between the pensioner and SMP is essential to identify substantial change.
There was comment that the case of Laws set the principle that a case cannot be referred for degree of disablement to be reviewed without evidence of substantial change; the questionnaire assists with the gathering of evidence.

Let us quickly mention that the purpose of a review is never to fish for change to find evidence for a reduction and that a questionnaire is an invented device and is outside the statutory framework.  But let us roll with the juxtaposition of the Laws judgement and whether the questionnaire assists with the gathering of evidence.

Surely for the questionnaire to be a tool in the way NWEF suggests, there will have to be two questionnaires.  One completed on a previous date, and one completed in the present day. And then the answer to the questions could be balanced against the previous answer.

But no … there is only ever one questionnaire.  So tying to mask this unlawful device as permitted by Laws is just probably the worse thing ever written about anything to do with the Regulations. Ever.

Feel free to read the rest of the September minutes.  Have your tutting hat on.  You will be doing a lot of tutting!

NWEF September 1 2017

 

Polemic on the Poll Results

Polemic on the Poll Results

“The fact that man knows right from wrong proves his intellectual superiority to the other creatures; but the fact that he can do wrong proves his moral inferiority to any creatures that cannot.”
― Mark TwainWhat Is Man?

We asked the question in a previous post whether a person who is disabled in relation to earning capacity and then succumbs to a persistence vegetative state should have his life further questioned by a police pension authority?

The question was asked without real context.  We deliberately didn’t explain what the Regulations allow and we purposely left some cross-over with the possible answers; we wanted people to answer with what they instinctively thought was right.

This human touch is sorely lacking in those who administer injury awards. All too often HR managers and SMPs entirely neglect to consider the effects of their actions on others. A few of them seem to be be completely devoid of any moral compass.

For example, Staffordshire thinks financial constraints are a legitimate reason to review and a questionnaire is the way to vet whether the expense of sending someone in front of a SMP is worth the £2000+ expense payable to the doctor for his arguably pre-determined work to reduce the person’s award.

The procedures laid down in the Regulations have to be applied with individual assessment in each case at each stage. This is being ignored in certain forces, and we need look no further for examples than at Knowles & Wirz of Northumbria and Andrew Colly & DCC Baker & Staffordshire.

Any action has to be justified; and it is not sufficient to ask oneself whether the underlying procedure is legal. In respect of the review of degree of disablement there is a ‘shall’ in the Regulations which ignorant or ill-intentioned managers interpret as giving them carte blanche to review whoever they wish, whenever they wish, as often as they wish. Their lack of moral compass allows them to forget that the so-called ‘duty to review’ is strictly limited and contains a wide power of discretion.

In our earlier blog we gave the example of a poor man placed in a coma. Interestingly, 89% of respondents to our survey think it best to leave the man alone.  Only 8% think that it is appropriate to review and reduce the man’s injury award.  No person voted to remove the injury award.

We think it is the sadly indoctrinated view of the majority involved with, and in receipt of, an injury award that reviews only exist to reduce people.  As a charity one of our aims is to dispel this myth. We don’t think it right that those with an injury award have to live their lives in the shadows, frightened of attracting the gaze of the PPA and always prepared for the manilla envelope to drop in their doormat announcing a review.

Such statistics as do exist – and it needs to be noted that they had to be obtained by lengthy Freedom Of Information requests from forces – show that over the last five years, when reviews have been held, then 83% result in a decision of no alteration in degree of disablement. Some 6.2% produced an increase in pension payment, whilst 10.29% saw the pensioners concerned reduced in banding.

The fear of reviews has much to do with the intrusiveness and uncertainty of the process itself, together with a well deserved and natural suspicion that in some forces the entire process is unlawfully constructed and is indeed intended to manipulate a reduction in payment.

We in IODPA think there are too many reviews, and too many of them are pointless and should never have been held. We are not against lawful reviews, but we are firmly against mass reviews and would want to see scheme managers realise they must exercise discretion in deciding whether a review is appropriate.

Turning again to our survey, why didn’t anyone vote for the award to be taken away in its entirety? Was it considered to be morally wrong or did all the participants have in mind that there are very particular and extremely rare circumstances where an injury pension can be ceased?  Regulation 43 tells us that ‘. . . a pension or allowance shall be payable for life’ yet we know that some forces have threatened pensioners with suspension or even cessation of their injury pension.

In some instances these threats have been carried through – at least only for so long as it takes our legal representatives to explain to the PPA concerned the error of their ways.

We have witnessed SMPs who concocted entirely unlawful rationale that an individual should never have been granted an injury award in the first place. We have seen HR managers issue wholesale threats to pensioners that there injury pension could be reduced or suspended if they fail to complete a questionnaire. We have gasped in disbelief when a PPA has issued similar threats to pensioners who had the temerity to refuse to allow unrestricted access to their sensitive medical records.

It is no small wonder then that IOD pensioners generally worry so much about the security of their injury pension income.

Of late, there has been a new addition to the inventive fancies of HR managers who would like to have the power to reduce or cease injury pensions in circumstances which are not allowed by the Regulations. Where in the Regulations does it say someone with a duty injury can have their pension reduced to the minimum when another injury overtakes the disablement?  The person is still unable to earn. We’ve made this point before; does the person become 200% disabled?

To find why we are even asking this question you need to look to NWEF’s and Northumbria’s legal advisor, Nicholas Wirz.  In his training guidance to SMPs he tells them this:

e.g. if an individual were to have developed advanced Parkinson’s disease since the last review, such that he was unable to work by reason of the symptoms of that disease alone, then the uninjured earning capacity should be nil

The “disease alone” could be replaced by anything according to Wirz: a persistent vegetative state, cancer, even aggravated natural degeneration.  Where does this stop?  For Wirz, he’d rather force an ill 70 year into spending his twilight years appealing the reprehensible Wirz-influenced medical decision to make him or her a band one.

We will talk about case law in a minute.  But ask yourself why the administration of police injury awards is so riddled with high court judgements.  It is because the PPAs, Wirz and NWEF keep trying to disadvantage retired police officers and serving officers who are in need, hardship or distress who are disabled as a consequence of being injured on duty.

By discussing whether an award should be reduced or removed because someone has become severely unwell on another matter is asking the wrong question.  A question that need not be asked and is only asked because Wirz is influencing the SMPs to enact it.  The truth of it is the person being targeted has been injured and had their career taken away – the righteous man or woman acting as a PPA would let them live their life without further hardship.

But there is case law on this matter.  There are three judicial reviews which we need to look at to see how the Regulations have been interpreted by the courts on this matter.  The trouble is they aren’t clear.

The 2003 case of South Wales v Anton (Crocker) is the first.  This case concerned an original decision for an award that SWP didn’t like.

Paragraphs 53, 54 and 55 are the pertinent ones.Mr Justice Ouseley says:

So the question to be answered under the Regulations is what degree of the loss of earning capacity is the result of the duty injury? This seemingly simple question can give rise to acute problems of causation, even though the question of whether or not there has been a disability which the duty injury has caused, or substantially contributed to, has already been answered. A separate issue of causation arises at the apportionment stage, because the entitlement stage can be passed on the basis of an injury which substantially contributes to, but is not the whole cause of, disablement

The judge is saying that another injury may have some effect on the person’s capacity to earn.  We all agree on this.  An injury award should not compensate for injuries not received on-duty. If there is a mix of on duty injury and other injury, then the amount of disablement caused by the on duty needs to be determined.

However, it becomes more complex where an on duty injury exacerbates or aggravates a pre-existing condition. This is commonly referred to as the straw which broke the camel’s back. An officer may be fit for duty despite the pre-existing condition, and it is only when injured on duty that they become disabled.

Mr Justice Ouseley touches on the duty injury aggravating an non-duty injury:

The position is more complex where the total loss is attributable to the effect of a duty injury on an underlying condition, which may or may not be an injury within the definition in the Regulations, and which by itself may or may not have contributed to a separate loss of earning capacity. An officer might suffer from a condition which would not affect him or his earning capacity until aggravated by a duty injury.

So for example a person with a dodgy cervical spine injury, that is mainly asymptomatic and intermittent and does not affect his capacity to earn and is still a fully operational police officer, receives a duty injury that aggravates it.

In this example Mr Justice Ouseley says apportionment for the aggravation and acceleration is not appropriate

  1. I do not consider that the question of apportionment should be answered by trying to attribute a share of the loss of earning capacity to any underlying condition which, on its own, had not, or did not, cause a loss of earning capacity. The loss should be attributed wholly to the duty injury which, albeit because of that underlying condition, has directly caused the loss of earning capacity.

Let us return to the poor individual in the persistent vegetative state.  We are only  talking about this because Wirz has taken the above judgement and twisted it to mean that if a person becomes further disabled through the trials and tribulations which life throws at a person then then the unfortunate soul should not be compensated for the injuries received on duty – even though the injury on duty still exists

The Ouseley judgement does not speak of this.  Wirz has picked up the baton and lobbed it into a field of nettles.  It is an invented concept of Wirz that he feels he wants to test upon disabled and vulnerable former officers.

The Walther judicial reviews (there were two of them) also touch on the matter of apportionment and acceleration.

In Walther v The Police Medical Appeal Board & Anor [2010]  Mr Justice Irwin declared that:

  1. A short acceleration of the onset of a permanent disability is unlikely to be held to be a “substantial” contribution to that disability. Acceleration to any degree is some contribution, but not likely to be regarded as substantial. The opposite applies, it seems to me. A significant acceleration – taking the extreme case, an acceleration of a decade or more – clearly would be a significant contribution to a permanent disability. Where the dividing line comes must be a matter of fact in each case. In my judgment such an approach is consistent with the language of the Regulation and with common sense.

Just because a non duty injury or condition has been accelerated, without it being substantial, it matters not and in any case common sense reigns.  The trouble we have is that Wirz has no common sense and the moralistic determinations of some SMPs are zero.  With a predetermined desire to reduce, they will go to whatever lengths to justify apportionment.  Understanding the whole picture by demanding (with threats of suspension of an award) full medical records from birth  is their favoured way of introducing apportionment.  In effect this is a alwyer’s trick to carry out the unlawful act of revisiting causation.

The second Walther judicial review Met v The Police Medical Appeal Board [2013] was instigated by the Met in 2013 who attempted to remove the award granted to David Walther by the PMAB tasked to revisit the question after the 2010 judgement won by Mr Walther.

The judge this time, Mr Justice Collins, said this:

Only if there will be no loss of earning capacity resulting from the injury when the officer is medically retired will it be likely to be the case that there was no substantial contribution.

In the end Justice Collin’s agreed with the PMAB and David Walther kept his injury award.

But, rather contradictory, instead of the decade stated in the first case by Mr Justice Irwin, even if a duty injury had caused only an acceleration of symptoms of 18 months to 2 years, if at the time the question was being considered by the SMP, the disablement was the result of the injury, then the officer would be entitled to an award.

But the interesting point is what Justice Collins said about Regulation 37. The basis for Collins J’s view was that he considered regulation 37, which provides for reassessment of injury pensions where there has been substantial alteration in the degree of disablement, enabled there to be a later assessment as to whether an underlying condition had overtaken any disablement resulting from the injury.

Specifically he is referring to David Walther’s problem of degenerative disc changes of the L4/5 and L5/S1 discs and prominent disc bulges at T12/4, L4/5 and L5/S1.  All these were explicitly listed when Mr Walther was retired.  It does not follow then that injuries not listed, or not known about, when the medical retirement was given can be reintroduced by a later review.  This would be contrary to the Laws and Pollard cases.

Of course, the existence of Regulation 37 helps everyone when the duty to review is used correctly. It is a provision which can be sparingly used, with plentiful discretion, to help ensure the correct level of injury pension is paid. It forbids all need for speculation about what might occur in the future. An injury pension is granted at a rate commensurate with what has occurred in the past and what disablement the individual exhibits in the here and now.

It says nothing whatever about the extra-regulatory wage comparison exercises practices by some PPAs which remain the aspect of reviews which create the most persistent and most aggressive forms of abuse of the Regulations.

Another area of particular difficulty arising from the second Walther decision may be the Judge’s interpretation of regulation 37, central to his reasoning overall, that it permits a reduction for David Walther’s injury award once a period of simple acceleration has passed. Collins J did not refer in his judgement to the decision of the Court of Appeal in Metropolitan Police Authority v Laws and the PMAB.  We will never know how a review would affect Mr Walther as the Met do not review unless a person asks to be reviewed.

And here lies the problem.  The two Walther cases do conflict somewhat even though David Walther won both. Nicholas Wirz, without regard to what is right or just or reasonable, is trying to populate the void that now exists by using the contradiction to reduce injury awards.

Even though both Walther cases involved the original decision and applied to someone with co-existing duty and non-duty injuries at the time of the award, Wirz seemingly wants SMPs to apportion everyone and to use Regulation 37 to do it.

IODPA is certain that a further judicial review will clarify the issue for once and for all but we again return to the example of the man in our question of PTSD and a coma after a car accident.

The question on the legality walks in parallel with what is morally right – the spirit of the law is phrase often quoted.  IODPA is a much-needed counter to people like Wirz and part of its role is to shout out quite clearly that legal questions with a moral content are usually easy to answer if the person invoking the questions does so with a just mind.

The law itself is no more than a codified expression of moral standards. It arises and lives as a demonstration of the combined moral core of the people. The law should not be a plaything for the likes of Wirz, Colley and Baker. IODPA has the will and the means to see that they, and others who try to bend the scope and intention of the Regulations into unrecognisable shapes will always be challenged, and will always be made to mend their ways.

Everlasting Anxiety

Everlasting Anxiety

Anxiety is love’s greatest killer. It makes others feel as you might when a drowning man holds on to you. You want to save him, but you know he will strangle you with his panic.”
Anaïs Nin

It seems that those who oversee the administration of injury awards in Staffordshire Police have rather a special collection of ineptness.  Quite a feat to combine the malevolence of Northumbria with the idiocy of Avon & Somerset.

For a force that officially signed a contract and abandoned reviews in 2008, the errors and illegalities in the letter they have sent out to all those retired with an injury award is exceedingly far beyond any, even the twisted mind, could conjure up.

We’ve published the missive in full at the end of this post.

Rather than pointing out the obvious conflict this letter has with the Regulations and case law – such as the invented duty that the 2015 Police Pension Regulations* forces them to do this (!)  and the continual use of the word “reassessment“, today we are going to talk about this paragraph:

This letter is just to inform you of the reassessment programme. Whilst I acknowledge this may cause you some anxiety, I regret that at this point in time I am unable to enter into correspondence with you about your personal circumstances. You will be written to again directly in due course when your injury pension comes up for review. The process is expected to take at least eighteen months, so it may be some time before you are written to again about this.

*(Very naughty Staffordshire!  A blatant lie!  In fact these Regulations has no implications on injury awards as they only refer to the Career Average Revalued Earnings Scheme (CARE) scheme and the lower/enhanced tier only applicable to those retired on this 2015 pension scheme – the PIBR 2006 Regulations are the only regulations that concern injury on duty awards)

Wow!  Sending an unsolicited letter, that they know (or don’t care perhaps out of complete indifference) will cause or manifest an existing diagnosis of a mental health illness, to a cohort of disabled individuals – some with severe PTSD, all with a protected characteristic under the Equality Act – and then sign-off by saying that they will happily prolong the assault for up to 18 months….

Just Wow!… What cave has Staffordshire been living in for the past five years?

The Department of Work and Pensions received a drubbing in the Court of Appeal back in 2013.  Court judges upheld a decision that the ATOS assessments for sickness and disability benefits discriminate against people with mental health conditions.  This followed an earlier decision by the Upper Tribunal that the Work Capability Assessment – the notorious computer based test which has led to hundreds of thousands of claimants declared ‘fit for work’ – substantially disadvantaged those with mental health problems.

The Appeal Court said:

Tribunal was satisfied that the difficulties faced by [mental health patients] placed them at a substantial disadvantage when compared with other disabled persons who do not experience mental health problems

The judges found that:

  1. In my judgment, therefore, the Tribunal properly identified relevant disadvantages in this case as potentially relating both to the actual determination or outcome itself, and to the process leading up to it.

So to speak the obvious; who has Staffordshire seen fit to sent a mass mailing list to, warning the recipient that they will spend the next 18 months in purgatory whilst knowing full well that what they intend to do will cause them harm?

Rhetorical answer: Only to members of the public with both physical and mental illness, who are permanently disabled  and who are proportionally certain to have many of the mental health disorders that are caused by a combination of factors, including changes in the brain and environmental stress.

Bizarrely this was sent out to even the people they have unilaterally decided not to review such as those band ones and those over 72.

Even those with a terminal illness recieved this letter. Whilst it’s excellent that they won’t be further victimised whilst end of life, but why stress them with irrelevance? – an example why mass mailshots to those with a protected characteristic without due public sector equality duty compliance is unlawful.

Though we are experienced in the dark-arts of those who administer injury awards, IODPA is still perpetually amazed that some police forces think those that get injured and permanently disabled on duty have no rights.

Avon & Somersent DCC Gareth Morgan may be thinking that becoming this force’s chief may not be a wise career move after all!

injury review intent 20042017_Redacted
injury review intent 20042017_Redacted 2

 

 

 

 

 

Ms Doubtfire & Mr Williams

Ms Doubtfire & Mr Williams

“And what physicians say about consumptive illnesses is applicable here: that at the beginning, such an illness is easy to cure but difficult to diagnose; but as time passes, not having been recognized or treated at the outset, it becomes easy to diagnose but difficult to cure.”
Niccolò Machiavelli, The Prince

A 2010 judicial review had far-reaching implications for former officers in receipt of an injury on duty pension on the distinction between a diagnosis and a disability. We will take a look at it in this blog, but apropos of nothing more than amusement, note that the surnames of the two disabled former police officers appellants give the real name and character identity of the actor in a film which combines slapstick comedy with a poignant look at a broken marriage.  Hmmm? There is a fair bit of comedy in the pathetic efforts of some HR managers, who love to pretend they are something they most certainly are not. As Mrs Doubtfire (the character) might say, ‘Well my dear, they puff and pout and blather in a vain effort to appear professional, but they consistently fail to live up to their own low standards.’

Doubtfire & Williams, R (on the application of) v West Mercia Police Authority & Merseyside [2010] EWHC 980 (Admin) (14 May 2010)

This case changed how ill-health retirements and injury awards are conducted.

Doubtfire & Williams supplanted another judicial review which occurred just prior to it – that was the one where, in a ridiculously bizarre situation, Northumbria Police’s in-house solicitor Nicholas Wirz took his own doctor, Dr Jon Broome, to the High Court. (That case is Dr Broome (Industrial and Organisational Health) v Northumbria Police Authority – 2010).  You won’t find the Broome transcript on the bailli.org database (British and Irish Legal Information Institute) which is helpful as Doubtfire & Williams rubbished the point Wirz was trying to prove anyway.

In Broome v Northumbria, Northumbria conducted the legal equivalent of playing a game of shinty with itself.  Shinty is that rough-house where two teams of people hit each other with sticks whilst aiming for a ball. Wirz hired Sam Green QC to sue Northumbria’s own SMP, but despite his best efforts, this judicial review confirmed that when a review of degree of disablement is held a SMP cannot introduce into the assessment new medical conditions caused by police duties.   “Impuissant” means  powerless, ineffectual, feeble, or impotent – rather sums up this Wirz v Broome judicial review that even bailli.org doesn’t want show.

Anyway, bailli.org does have our Doubtfire judicial review in all it’s glory.  It post-dates, therefore over-rides, the Broome one and clarifies that the Regulations are concerned with the disability not the medical condition itself. The Doubtfire & Williams case had more to say about the diagnosis of the medical condition.

Appellant Ms Doubtfire served as a police officer with the West Mercia Police from 23rd October 1989 until she was retired by reason of ill health on 6th September 2008.  Even though her employers knew Ms Doubtfire had a history of underlying depressive illness she was posted to an extremely stressful and public-facing hate crime unit.  The stress of the role and a perceived level of insensitivity from her superior officers together with a lack of adequate line management at senior level aggravated her condition. There was a suicide attempt in 2004. She took sick leave in October 2005 and never returned to work. West Mercia, perhaps to their credit, or perhaps out of complete indifference, did not see fit to retire her on grounds of ill health until 2008.

The SMP in that process was a Dr Jackson who decided that her diagnosis was Social Phobia. Which is a condition classified in the International Statistical Classification of Diseases and Related Health Problems (ICD), a medical classification list by the World Health Organization (WHO).  The classification reference number is: (ICD10 F40.1)

The second jointly heard case involved Merseyside.  Northumbria & Merseyside are the panto villains of the IOD world.  It would be trivialising the subject matter and profound life-changing damning effects these forces have on the injured officers they attack to say this.  To imply a ‘panto‘ where villain is hissed and the poor victims “awwwww’d” would be improper.  But still, it’s always the same named employees salaried by the public purse that continually​ do this evil in a frequency beyond parody.

Appellant Mr Williams joined Merseyside Police in July 1991 and served with that force until he was required to retire by SMP Dr Smith because of Bipolar Affective Disorder (ICD10 F31.6), a condition which arose as a result of the refusal and repeated failings of Merseyside to help him with support and retraining. Mr Williams retired on the 4th September 2006.

After their ill-health retirement, both Ms Doubtfire and Mr Williams applied for an injury award.

Although the SMP for Ms Doubtfire, Dr Jackson, had signed-off the social phobia as a permanent disablement for the ill-health retirement, when he came to assess her for the injury award he performed a complete u-turn.  He decided that what he had diagnosed as Social Phobia was questionable. In his words, “should not be completely discounted”, but discount it he did.  He decided it was not the result of an injury in the execution of duty and that in any case the permanent disability was more to do with the depressive illness.

A similar example of the mercurial minds of SMPs was experienced by Mr Williams.  For his injury award he was put in front of a new SMP, Dr Vincenti, who brazenly over-ruled over-ruled Dr Smith, by claiming that he could find:

“. . . no evidence whatsoever from the history, examination of the documentary evidence, and from my examination of Mr Williams as well as my conversation with his wife, that he ever suffered from a bipolar affective disorder.”

But Dr Vincenti none-the-less approved the injury award, stating that his opinion was Mr Williams’s depressive illness had a precipitating cause linked to his work and in particular the lack of support. Dr Vincenti therefore concluded that the permanent condition from which the Claimant suffered, namely depression, was

the result of an injury received in the execution of his duty

True to form, Merseyside didn’t like this one bit and started judicial review proceedings against Dr Vincenti.  The case never went before the court as a compromise agreement was put into place for Mr Williams to be referred to a new SMP.  This time a Dr Staley of West Midlands Service for Police Psychiatry was asked to consider the regulatory questions.

After having his award approved by one doctor, it was now effectively taken from him by another.

Dr Staley stated in his 2009 report that:

Mr Williams’ reaction to the alleged bullying should not be considered an injury on duty in that if an injury did occur it happened as a result of his status as a police officer rather than as a result of his carrying out his duties as an officer.”

As might well be expected, Mr Williams appealed to a PMAB.  One of the board members, Dr Nehaul, changed the diagnosis yet again – this time to moderate depressive illness.

The PMAB all agreed that the moderate depressive illness was an injury on duty and therefore there was eligibility to an injury award.  But in a twist, they went on to say he suffered from a psychological impairment as a result of an injury on duty and this was a depressive disorder not Bi-Polar Affective Disorder, as diagnosed by the original SMP, Dr Smith.

The Board considered that as Dr Smith had, in its opinion, certified the wrong diagnosis then it could not decide Mr Williams was entitled to an injury award!

In other words, his permanent disablement that necessitated his ill-health retirement was, in their view, wrong and even though he had been injured on duty then they could not give him what he was entitled to, due their interpretation of a point of law.

These events led both Ms Doubtfire and Mr Williams to a judicial review as a joint appellants, to be heard before His Honour Judge Pelling, QC.

Of course a cynical mind might say that the SMPs involved were quick to decide upon permanent disablement when there are no cost implications to the force, but become truculent in such matters when financial exposure means it’s in their employer’s interest to refuse to grant injury awards.  An ill health retirement is funded by the contributions made by all officers during their service. An injury pension stands to be paid out of the force budget.

The experiences of Doubtfire and Williams is closely reminiscent of the previous history of forces using medical retirement as a personnel management tool when central Government funds picked up the tab and has similarities with the current trend of nowadays never medically retiring anyone and keeping ill and damaged serving officers in limbo.

The Doubtfire & Williams case shows the problems which can be caused to injured officers when doctors argue between themselves over medical opinion.  It shows the farcical potential of the injury award procedure in glaring detail – a process where officers injured in the line of duty in certain forces can now expect to be royally done over if they apply for an injury award.

Merseyside and West Mercia lost this judicial review.  The former officers got the injury award they deserved and were entitled to.

Justice Pelling quashed both PMAB verdicts.  For Ms Doubtfire he said:

In relation to Ms Doubtfire, it is clear from the defendant’s report that it asked itself the wrong question namely whether “workplace events” might have led to Social Phobia. That was not the correct question. The correct question was whether her permanent disablement had been caused by an injury in the execution of duty.”

And for Mr Williams,

In relation to Mr Williams, exactly similar conclusions follow – the Defendant asked itself whether Bi Polar Affective Disorder was the result of an injury on duty. This was not the correct question as I have explained. The correct question involved asking whether Mr William’s permanent disablement was the result of (a) an injury, which (b) was received in the execution of duty.”

The judge’s explanation on why the wrong question was asked hinges on the Regulations.  The wording of Regulation 30(2) taken as a whole makes clear that the reference is to “…the disablement …”.  The diagnosis doesn’t feature.

Let us take a closer look at this Regulation.

30.—(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—
(a) whether the person concerned is disabled;
(b) whether the disablement is likely to be permanent,

except that, in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 Regulations, a final decision of a medical authority on the said questions under Part H of the 1987 Regulations shall be binding for the purposes of these Regulations;
and, if they are further considering whether to grant an injury pension, shall so refer the following questions—
(c) whether the disablement is the result of an injury received in the execution of duty,
 and
(d) the degree of the person’s disablement;

The questions have to be answered sequentially at each stage in the process. The decision made are required to be final, (subject only to appeal or reconsideration).

Paragraph (c), the question of whether it is an on duty injury, is to the disablement in respect of which either the disablement questions identified in (a) and (b) have been answered affirmatively or the disablement is one to which the proviso applies.

The Regulations do not call for a diagnosis.

In the Doubtfire and Williams case we have seen the sorry mess that medically qualified, but largely legally ignorant doctors can make of what is a very simple matter. Of course, permanent disablement has to be of a qualified medical condition (affirmed in the Clementson & Doyle judicial review – Northumbria AGAIN!), but even if a doctor is unable to give it a classification or is uncertain as to exactly what the condition is, that does not prevent them from deciding that it is an injury on duty which is likely to be permanent.  It is a medical question after-all that needs to be answered.  But this is only for the purpose of demonstrating that the relevant disablement has been caused by an ” … infirmity of mind or body“.

Once that test has been passed it is only the answer to the question whether the officer is permanently disabled that is final and the causation to it that is binding.

Justice Pelling clarifies this point with an example.  If a former officer is refused an injury award on the basis of a flawed diagnosis then he has the avenue to appeal the decision to a PMAB.

Imagine though if the former officer is given an injury award, the permanent disablement is obvious but the diagnosis is factually incorrect as the SMP has little experience in such a specialism.  The former officer has no incentive to appeal as he has the end result he applied for, notwithstanding the diagnosis is a bit topsy-turvy.

This position is affirmed in Regulation 31 – the power to appeal a decision to a police medical appeals board.  A former police officer has the power to appeal when they are “… dissatisfied with the decision of the [SMP] as set out in a report under Regulation 30(6) …”.  They do not necessarily have the same right to appeal with regards to the contents of the report other than the decision.  Mistakes in the content of a medical report can be remedied by withdrawing consent until the errors are rectified by use of the Access to Medical Reports Act (AMRA).

Parts (a), the disability and (b), the permanence of Regulation 30(2) can not be revisited if the question of the injury award is not decided concurrently with the question of ill-health retirement.

The arguments Merseyside and West Mercia presented to the court, if they had won, would lead to the absurd situation Mr Williams found himself in – a purgatory where someone could be permanently disabled and medically retired but not disabled permanently enough for an injury award.  Just because two medical practitioners have a difference of opinion.  Too ill to be recalled to duty but now not having a disablement sufficient for the ill-health retirement just given – a limbo position existing nowhere but upon the borders of Hell.

Justice Pelling put this into legal speak:

If the analysis identified above is adopted then the absurdity that so concerned the Defendant Board in relation to Mr William’s case – that is that the permanent disability of the Claimant was caused by an injury and was caused in the execution of duty but the Defendant was precluded from answering the causation case in favour of the Claimant because it did not agree with the original diagnosis – cannot arise.”

So it is the disablement that matters, not the diagnosis.  And if the disablement for the ill-health retirement is the same as those applied for in the injury award then the questions of permanency and disablement are answered and can not be revisited.

But what happens if someone is retired on a medical grounds for a non-duty injury and after retirement applies for an injury award?

Justice Pelling covers this succinctly and says no paradox is caused.

When an officer suffers a permanent disability otherwise than in execution of his duty but sustains another disability thereafter then his or her permanently disability will have been established for retirement purposes and does not have to be established again.
However, in relation to any claim for injury benefit by reference to the subsequent duty injury all three questions (the disablement questions and the causation question) identified in Regulation 30(2) will have to be answered.
This is not because it is relevant to the retirement decision but because on this hypothesis all three will be relevant to the question whether injury benefit should be paid by reference to the permanent disability alleged to have been caused by the duty injury.

Justice Pelling says that this way the absurdity of Merseyside and West Mercia  is solved,

Thus as I see it there is no risk of the sort of absurdity that the Claimant prays in aid arising, nor do I see this issue as assisting in the question that arises one way or the other.”

We can only hope that common sense prevails and that the sort of unnecessary trauma Ms Doubtfire and Mr Williams went through stops for good and the legal services of certain police forces stop this ‘gamesmanship’ interpretation of statute.

Until forces like Merseyside and Northumbria start to understand the harm they cause to disabled people and chose to take a more humane path, there’s always the possibility that they will continue to drag injured officers before the courts, only to lose.

We have said it before, and we will say it again. It’s all about the money. Some forces, like Northumbria and Merseyside have Chief Constables who fail to make proper differentiation between their duties in that office with their duty as a police pension authority. When acting as the former, they quite rightly must be prudent with their budget. When acting as the latter they must not take any account of the cost of decisions made in the grant of injury awards.

And on the matter of costs. It seems that 38 out of the 43 police forces in England and Wales have seen the light. They realise that it is illusory to think that reviews of degree of disablement will result in savings. The opposite is true. Unless the regulations are applied honestly, fairly, and properly, then about-to-be-retired officers and IOD pensioners will mount very effective challenges which will create unjustifiable costs to the forces concerned. SMPs, HR managers, and in-force legal advisors have proved time and time again they are not competent to administer the Regulations properly. The most ignorant keep thrashing around with their shinty sticks.

The sensible ones have stepped off the field.

Apportionment & Revisiting Causation

Apportionment & Revisiting Causation

Human Resources and SMPs simply are not getting the message. They are ignoring the Regulations, determinations by the Pensions Ombudsman and binding decisions in the High Court. They think they can revisit and amend earlier final decisions on the causes of injury. IODPA is ready and able to fight all such abuses. We speculate on the adverse impact of injury pension maladministration on the morale and efficiency of serving officers

“Can we say, in this case, that the cause of a cause is the relevant cause?” ― Johnny RichThe Human Script

Let’s talk some more about reviews of injury pensions, and the deliberate mischief that SMPs and HR get up to. We believe that injured on duty pensioners are often subjected to an unlawful fresh assessment of their degree of disablement.  It is clear the inexperience of HR departments and SMPs leads some of them into thinking that on review, they can calculate degree of disablement from scratch.  They can’t.  And this is why.

At review, the only task of the SMP is to determine whether there has been any alteration in degree of disablement since the question was last decided. It’s like looking at a clock – it tells you the time now is so many hours, minutes or seconds different from the last time you looked. You don’t tell the current time by calculating from the big bang when the universe was created. The SMP is required to take the previous decision on degree of disablement as a given – as the starting point. He can’t second-guess the why or the how of the duty injury. He can’t try to find fault in the decisions made by the earlier decision-maker. Those decisions are, in law, final and not subject to question.

Some SMP think they can revisit these decisions and believe they are entitled to look again at the cause of the disablement – the ‘causation’ as it is known. Some SMPs forget they are not there to conduct a diagnosis, and are thus forbidden from speculating whether the disabling injury occurred as a result of the execution of the officer’s duty or from some other cause. The High Court has made it clear that causation can not be revisited, but some SMPs think they can ignore the law.

The consequence of such a root and branch departure from the strictures of the Regulations is so dramatic the consequences cannot be emphasised enough.  Once a SMP makes a mistake it condemns the former officer to a long drawn out legal battle to undo something that should never have occurred.  True to form, once a bad decision is made a Police Pension Authority will always blindly defend it to the end – even if they know they are wrong they seem incapable of a climbdown. It can take years to sort out.

So what prevents a SMP who has a casual disdain for the Regulations and case law from going back to medical records from birth and stating an injury was caused, in part, by you falling off your bicycle when you were 7 years old?

I’m not exaggerating.

In a recent case a SMP tried to make out that a former officer who had a mild episode of anxiety when he was just 7 had a ‘pre-existing condition’ and thus his PTSD some thirty years later was not solely cased by on duty incidents. This sneaky little ploy is called ‘apportionment’. It can be used to cut a band four pension down to a band one.

SMPs need to be told in no uncertain terms that they must comply with the law, which includes binding decisions made in the High Court.

In the Court of Appeal in the case of the Metropolitan Police Authority v Laws and the PMAB [2010] EWCA Civ 1099,  it was held that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations.

To put this simply, the question of causation or apportionment can only be considered at the time of the original decisions, when the injury award was granted, or on appeal against the original decisions to a PMAB, or if a reconsideration is made under regulation 32. A SMP cannot, years later, trawl through medical and other records in an attempt to re-think and amend those final decisions.

Once decided, the cause of the injury or any application of apportionment is final and at review the SMP is not able to even remotely go anywhere near those matters.  Even when the SMP would like to have full medical records because they want the ‘full picture’  – whatever that means – they can’t.  It is the equivalent of open prejudice in the sight of the jury or bench. It may be due to the training doctors get – treat the whole person, look for all the causes, check out all the possibilities – but SMPs must put that training to one side when conducting a review. Once a SMP has seen medical records he shouldn’t have seen he can’t conveniently forget them – doctors are not trained to forget medical history however much they claim it won’t influence them.  By accessing records they are not lawfully entitled to it instantly corrupts and prejudices the decision he/she is supposed to exclusively focus on, which is whether there has been any alteration in degree of disablement.

In  the case of R (on the application of Pollard) v The Police Medical Appeal Board and West Yorkshire Police Authority [2009] EWHC 403, Silber J found that Regulation 37 does not enable the police authority to reach a different conclusion on the issues specified in Regulation 30(2)(a), (b) or (c).

But what happens when an SMP does what they aren’t allowed to do?  Inevitably complaints are made to the Pension Ombudsman. Happily, in the vast majority of instances the pensioner wins the case.

Here is a short, but typical, sample of three PO determinations:

1.

PO-828 [SMP] Dr Zubier found that Mr Diamond was “based on his level of functioning as a result of his fibromyalgia, … unfit for all work”. However, because he took the view that Mr Diamond’s Fibromyalgia was not caused by an injury on duty, Dr Zubier apportioned the injury award. This was not the correct approach to take under the Regulations

2.

87657/1 Despite having noted that they should not revisit causation, the PMAB’s ‘Detailed Case Discussion’ included a lengthy discussion on the likely causes for Mr Marsden’s symptoms. The PMAB stated that they found it bizarre that they were not allowed to revisit causation, but said that they accepted that this was required by law. Having discussed likely causation at some length (and made it obvious that they disagreed with the previous decision), the PMAB then failed to ask the question they were required to; namely, whether there had been any substantial alteration in Mr Marsden’s condition since 2006. The PMAB instead moved on to consider whether and what type of roles Mr Marsden might be able to undertake. They had asked NPA to supply details of alternative roles Mr Marsden might be expected to undertake. However, the record of their discussion does not suggest that they asked whether those roles had become accessible to Mr Marsden since the 2006 review, either by changes in his medical condition or changes in the roles themselves. I find, therefore, that the PMAB’s consideration of Mr Marsden’s case was flawed and that this should have been apparent to NPA.

3.

84102/2 It is clear that the SMP based her report on medical evidence which predated the date of the last review, that both the SMP and the PMAB were questioning the validity of the original decision taken by MPA to award Ms Beale an injury benefit. In addition, although the PMAB noted “Ms Beale could work 50% of the time (less than 20 hours per week) in an appropriate environment with necessary adaptations for wheelchair access”, it then failed to ask the question it was required to; namely, whether and what type of roles Ms Beale might be able to undertake and whether those roles had become accessible to Ms Beale since the 2001 review, either by changes in her medical condition or changes in the roles themselves. I find, therefore, that the PMAB’s consideration of Ms Beale’ case was flawed and that this should have been apparent to MPA. I find that it was maladministration for the MPA to reduce Ms Beale’s benefit on the basis of a flawed review.

I hope the reader sees why IODPA needs to exists?  Because of the bungling machinations of HR drones and SMPs, disabled former officers face the lifetime prospect of entanglement with Police Medical Appeal Boards, complaints to the Pension Ombudsman, and even judicial reviews in the High Court. It can be a full time career to have the misfortune of being awarded an IOD.

Perhaps all who join the police should be told, ‘Welcome, and if you are ever injured on duty you’ll get what’s due to you. It won’t be sympathy, assistance, care or concern. You’ll be put on light duties, half pay, messed about, kept in the dark about your rights and then booted out. You will have to fight tooth and nail to get an injury award and then you will be hounded forever with endless unlawful reviews. Expect to spend the rest of your life dealing with the fallout created by incompetent, poorly trained, often downright nasty HR types, and SMPs’.

Do you think that, knowing this is a very real prospect, a fresh recruit would think twice about following a suspect in a foot chase down a dark alley, or confront the violent drunk who is brandishing a fence post, or try to stop a careering stolen vehicle?

Perhaps if they knew the truth they might think its better to stay safe than risk being injured and cast out with an IOD.