medical records

Surrey And Sussex Police Have A Candidate For File 13

IODPA Admin Chief Constable, GDPR, HR, medical records, Regulation 37, smp
Surrey And Sussex Police Have A Candidate For File 13

“File 13” is a euphemism for the trash can or waste paper basket.

 

Our attention has been drawn to a document entitled “Managing Police Officer and Police Staff Ill Health Retirement Policy (Surrey and Sussex) (542/2019)“, which can be found on the Sussex Police website. It is a joint force policy between Surrey and Sussex Police on the management of ill-health retirement, injury awards and subsequent reviews. This policy document is annotated on the bottom as belonging to the “People Services Department (Occupational Health)” of Surrey and Sussex Police.

You can find a copy at the following link:

https://www.sussex.police.uk/SysSiteAssets/foi-media/sussex/policies/managing-police-officer-and-police-staff-ill-health-retirement-policy-surrey-and-sussex-5422019.pdf

Or you can read a copy, duplicated below.

 

There are so many things wrong with this document that it’s difficult to know where to start.

It is probably fair to say that the overall feel of this official multi-force policy is one of dislike or even contempt of injured officers, as is evident from its frequent references to any non-defined ‘failure to co-operate’ being met with punitive measures.

We’ve selected, replicated and highlighted some of the worst sections of this policy document with our comments under each section. However, we will begin with the one section which is uncontentious.

 

3.1 This is a sensitive issue with personal and financial implications for the individual and the force. It must be
administered with sensitivity, understanding and confidentiality

The policy starts off well and we agree with their sentiments whole heartedly. Sensitivity, understanding and confidentiality are all words we use when describing how forces should be treating their injured officers, but it all goes downhill after here.

 

3.10 An individual will remain on their current pay status (full/half or nil pay) once they have made their application for IHR, unless they fail to co-operate with the process. Once authority is given for the individual to be ill health retired, they will revert to full pay.

Note: Chief constables have the lawful discretion to reduce the pay of officers who are ill or injured and thus not able to perform the full ordinary duties of a constable.

There are two things wrong with this statement, the first is that the policy states that if officers have already had their pay reduced, they will remain on their current level of pay until they have completed the ill-health retirement process and it is confirmed that they are likely to be retired; secondly, there is clear intent within this statement that if the officer fails to co-operate with the process, they will be further reduced.

The circumstances under which an officer’s pay may be reduced derives from section 28 of the Police Regulations 2003, which allows the chief constable discretionary powers to retain or reduce an officers pay during periods of sickness.

Police Negotiating Board (‘PNB’) Circular 05/01 provides specific guidance to chief constables to grant discretionary sick pay to officers who have been on sick leave for more than six months.

Section 7 of this guidance reads –

7. Whilst each case must be considered individually, the PNB considers it would generally be appropriate for chief officers to exercise the discretion favourably where:

  • The chief officer is satisfied that the officer’s incapacity is directly attributable to an injury or illness that was sustained or contracted in the execution of his/her duty or
  • The officer is suffering from an illness which may prove to be terminal; or
  • The case is being considered in accordance with the PNB Joint Guidance on Improving the Management of Ill Health and the police authority has referred the issue of whether the officer is permanently disabled to a selected medical practitioner
  • The Force Medical Adviser advises that the absence is related to a disability as defined by the DDA* (*”A physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day-to-day activities.”) and the chief officer considers that it would be a “reasonable adjustment” to extend sick pay, generally speaking to allow (further) reasonable adjustments to be made to enable the officer to return to work.

Whilst there is no explicit statutory obligation on the part of chief officers to have regard to this guidance, in the case of Weed, R (On the Application Of) v Commissioner of Police of the Metropolis [2020], it was accepted that it would have been unlawful to ignore the guidance.

It is clear, under point three (above), that once an officer has been referred for consideration of ill-health retirement, the chief constable should seriously consider reinstating the officer to full pay.

What has to be realised here is that officers can become ill through no fault of their own with physical or mental injuries, or sometimes a combination of both. It is not uncommon with mental health injuries for the officer to suffer from severe PTSD. This can seriously impair their cognitive function and ability to comply with requests or process information. Despite this, it is clear in the policy that there is no compassion or support regardless of the officer’s injury, but instead there is a clear statement that that non-compliance will trigger a further reduction.

Our point is that non-compliance may not be deliberate, negligent or willful, but may well be caused by the effects of the injury or illness. The policy makes no recognition of this possibility

The PNB guidance goes on to say there should be monthly reviews of the officer’s situation. This policy document ignores the guidance as there is no mention of monthly reviews.

 

5.2
…
Where such claims are substantiated at a later date and the application has been made within a year of the date, of the last day of service, for the officer, payment of the injury award will be backdated to the day after, the last day of Service.

This section unmistakably implies that if an application for an injury pension is not made within a year of the retirement date of the pensioner, the force will not backdate payment to the applicant. We’d be interested to hear from Surrey or Sussex where in the regulations or current case law this approach is permitted?

Regulation 43 of The Police (Injury Benefit) Regulations 2006 (‘PIBR’), states that the pension of a member of a police force under these Regulations shall be payable in respect of each year as from the date of his retirement.

It is widely accepted (by most forces) that an injury pension is payable from the date of retirement, unless the date of injury cannot be established, in which case, it would be the date of claim.

If Surrey and Sussex police need further persuading, we suggest that they look at the cases of Tully and North Wales police and Kelly and Chief Constable Of South Yorkshire Police.

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

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

 

5.3
…
This is to be illustrated as the percentage by which the individual’s police salary would fall, in order to reach the level of salary likely to be commanded in another occupation despite the injury. The SMP in such cases may be the FMA.

The suggestion that the Force Medical Adviser (‘FMA’) may act in such cases is not good practice, and we don’t know why it has ever been suggested. The whole purpose of the Selected Medical Practitioner (‘SMP’) is that they are supposed to be non-partisan and independent.

Published on the 4 May 2007, a Home Office (‘HO’) paper entitled “GUIDANCE ON MEDICAL APPEALS” states the following,

5. Where the police authority decides to refer the case to the SMP it should normally be via the force medical adviser (FMA). The purpose of the FMA’s advice is to inform not determine the assessment by the SMP on whether the officer is permanently disabled.

Yet again, it seems as though the author of this paper is blissfully unaware of any of the HO or PNB guidance.

Note: Police Pension Authorities would be negligent if they failed to consider guidance, but guidance is not law and need not be followed. Surrey and Sussex’s policy makes no reference to any guidance, so we are left in the dark as to whether it was considered or not. We add that certain Home Office guidance has in the recent past been determined to be flawed, to the point of being unlawful. PPA’s need to be cautious of blindly following guidance to the same degree that they need to be sure to consider it. The various Regulations are the law which PPA’s must abide by, and this policy document is deficient in that respect.

Surrey and Sussex’s policy casually departs from statutory limitations. Bells and whistles are added with no apparent rationale, and devoid of legal underpinning.

 

6.1 When an officer disagrees with the decision of the PPA not to accept a claim for ill health retirement or injury award and to refer questions to an SMP, the officer may appeal the decision to the Crown Court (PPR and PIBR refers). In such cases the police officer will be asked to complete an appropriate medical records consent form and such records will be sought from the officers GP.

Whilst it is correct that if the Police Pension Authority (‘PPA’) refuse to admit a claim for an injury award, the officer may refer the matter to the Crown Court for arbitration, there is no provision under the PIBR for forces to be able to demand medical records as a consequence. We have to question why the force would only be requesting the necessary medical records at this stage? Surely they would have needed them in order to have made a balanced decision to refuse the application to start with?

 

6.2 Where the officer is considered permanently disabled, the SMP will complete a report, relevant to the questions raised by the PPA in accordance with the relevant PPR that affect that officer and the officer will be formally notified of the decision in writing, by the PPA.

Medical reports completed by the SMP should be released to the officer first, who should be able correct any factual errors before it is released to the PPA.

 

7.3 Where an injury award is payable, the PPA shall consider whether the degree of disablement has substantially altered in accordance with the advice of the SMP who determined the injury award and if it has, the award will be revised accordingly in accordance with PIBR.

In determining the degree of disablement in this process, the PPA shall refer the matter to an SMP (the FMA may act in this role), who will be required to deal with it in accord with PIBR and will issue a report accordingly.

Let’s compare what has been written in the policy with the actual PIBR. The policy states “the PPA shall consider whether the degree of disablement has substantially altered“, whereas regulation 37(1) actually says “the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered“.

A small, but important omission, as the PPA is not entitled to conduct a reassessment of an injury pension unless there has been a suitable interval. A suitable interval is not defined, but in “The Queen on the Application of Turner v The Police Medical Appeal Board” it was said “suitable intervals suggests that this is not a matter which should be revisited every year, nor is it.”

This means that it is not open for the force to simply review at will without due consideration as to whether a suitable interval has passed. The policy thus puts the cart before the horse. It intimates that a SMP will exercise a remarkable ability to predict the future by recommending to the PPA when a disabled officer’s degree of disablement might alter substantially. The plain fact is that nobody, not even a doctor, can tell what the future holds.

The policy places a fetter on the discretion required of PPAs as to whether or when to consider the matter of substantial alteration in degree of disablement. It commits the PPA to a future action, based on nothing more than the opinion of a SMP.

This latter section, again suggests that it is appropriate for the FMA to act in the role of the SMP, when it is not. See the answer we gave to 5.3

 

7.5 The final part of the review process will involve an assessment by the SMP who will initially address the apparent disablement of the individual being reviewed, if necessary during private consultation and examination.

Reading this one line caused us outrage. The use of the word ‘apparent’ is highly offensive and clearly speaks volumes of how these two forces value and think of their injured and disabled pensioners. One dictionary definition of ‘apparent’ is ‘seeming true but not necessarily so’. So their obvious suggestion here is that pensioners are ‘pulling a fast one’ and there are no real injuries or illnesses.

Let us also point out that this approach is also unlawful. Once an SMP makes a determination in relation to a pensioners level of disability, that position is a given, and any subsequent reviews are a comparison exercise between that stated position and today. No ifs, or buts, you cannot question or revisit previous decisions or conduct a fresh assessment.

 

7.7 An individual subject to a review and living abroad, may be directed to see an SMP within reasonable travelling distance of their homes, after consultation by the OHWD with British Authorities overseas (e.g. Embassies, Consuls, Armed Forces). Alternatively, the individual may be advised to attend a meeting with the SMP within the UK. Failure on the part of the individual to co-operate may be addressed in accordance with the PIBR.

Firstly, this section suggests that the force has the right to ‘direct’ the pensioner to do things, which is not the case. They are no longer serving officers taking orders. More importantly, it suggests that pensioners who may be living abroad can be made to return to the UK for a medical consultation. We’d be interested to see where in the PIBR it allows forces to order pensioners to return for the purposes of a medical examination? Yet again, there is the threat of consequences if they fail to co-operate, so what are those consequences?

 

8.1
…
If the individual wilfully or negligently fails to submit to a medical examination, or to attend such interviews as the SMP may consider necessary in order to reach a decision, the PPA may make their determination on such evidence and medical advice, as in their discretion, they think necessary.

We have already mentioned in section 7.3 how the omission of a word from the regulations can change their original meaning. With that in mind, lets look at what has been written in the policy “the individual wilfully or negligently fails to submit to a medical examination“. That’s not what the PIBR say. What it actually says in regulation 33 is the the following “the person concerned wilfully or negligently fails to submit himself to such medical examination“.

Have you spotted the difference? The word “himself” is missing. So what is the significance of this? The word “himself” implies “the person” i.e. the pensioner should attend in person where they may be questioned or examined about their current level of disability. The statement “failing to submit to a medical examination” is far broader than just the person. It implies and could be argued that the medical examination also includes the authority to demand and examine medical records or other medical information about the pensioner which is not a requirement of the regulations.

SMPs can request, but not demand, access to medical records. They can ask a pensioner any relevant questions they think necessary to their task. However, we see nothing in the Regulations that allows anyone, SMP or other, to require or demand access. Nor do we see any legal authority in any other legislation which allows access without express informed permission from the data subject.

 

8.2 To assist with this determination, individuals who fail to co-operate, or only co-operate conditionally, will be provided with an appointment to see the SMP at their clinic, or other location specified by the PPA.

This section is absolutely nonsensical. It’s suggesting that pensioners whose injury pensions are being reviewed that are not co-operating will be referred to an an SMP in order to assist the PPA make a determination under regulation 33.

However regulation 30(2)(d) is clear, that if the PPA is considering revising an injury pension, the PPA has an obligation to refer the matter to the SMP,

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—
…
…
…
(d) the degree of the person’s disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

This means that the PPA should have already referred the pensioner to the SMP for the purposes of regulation 37(1), that being the case, why would they then refer the pensioner in order to determine regulation 33? If our understanding of this section is right, and they wish to refer the pensioner to the SMP purely for the purposes of regulation 33, then we’re happy to inform them that there is no such authority.

 

8.3 If they attend but have not completed a medical review questionnaire as supplied by OHWD, they will be provided with one by the SMP and asked to complete it forthwith. Once completed the SMP will conduct the consultation and examination but will delay any decision until the information on the questionnaire is examined by the OHWD and the appropriate report completed.

What!??? They will be “asked to complete it forthwith“. Once and only once they complete it will the SMP conduct the examination. Let’s make it unequivocally clear to the chief constables of Surrey and Sussex, there in no requirement under the PIBR to complete any medical questionnaire. Furthermore, the disclosure any of such medial questionnaire to the Occupational Health and Welfare Dept (‘OHWD’) as suggested is a series breach of ‘special category’ personal data under the General Data Protection Regulations (‘GDPR’) and will make the force liable as the data controller for this serious breach.

Let’s make it perfectly clear to Surrey and Sussex Police,  a 37(1) reassessment of an injury pension is a medical decision, and as such can only be made by a medical practitioner. It is our view, that medical data should ONLY be requested and viewed by the SMP. There is no authority or provision in the regulations for OHWD staff to paw over the personal, sensitive and private medical notes provided by a pensioner. Is this clear enough?

 

8.4 Should the individual fail to attend any meeting with the SMP, or fail to co-operate at all, the injury award percentage will be reduced to 0%, unless there are clear and unequivocal reasons for not doing so. Any subsequent appeal will be defended, or the case may be reassessed if the individual is then able to co-operate

Wow! Let’s say that again, WOW! What regulation allows the PPA to reduce the injury award to 0% if the pensioner fails to attend an SMP meeting or if they fail to co-operate at all? This is fantasy land stuff and is UNLAWFUL. Again, we believe that this is clear indication as to the contempt in which they hold those in receipt of any injury award. They should bow their heads in shame!

 

9.1 An individual will remain on their current pay status (full/half or nil pay), once the PPA have granted permission for the IHR application to proceed, unless the individual fails to co-operate with the process. Once authority is given for the individual to be medically retired, they will revert to full pay from the date the PPA authorised the ill health retirement.

In closing, we would draw your attention to the comments we made in relation to 3.10 (ante).

Clearly someone has taken a lot of time and effort in producing this dreadful document, and we can only assume that the Chief Constables of Surrey and Sussex have viewed and authorised this policy.

Chief Constable of Surrey – Gavin Stephens Chief Constable of Sussex – Giles York

We started this blog by saying that “File 13” is a euphemism for the trash can, and we’ve found a prime candidate for the use of such a receptacle.

We’d love to hear the hear the conversation between one of the chief constables and the author of this policy document when they’re summonsed to his office.

Chief Constable: “So how long did it take you prepare this policy?”

Author: “About a week.”

Chief Constable: “Well, that’s how long you’re not going to be paid for!”

Author: “Oh, okay. What do you want me to do with the policy?”

Chief Constable: “Put it in file 13, on the way out!”

Staffordshire Police Should Stop Digging

IODPA Admin medical records, Review
Staffordshire Police Should Stop Digging

If you find yourself in a hole, the first thing you do is stop digging

— William Penn Adair Rogers (1879–1935) was an American stage and film actor, vaudeville performer, cowboy, humorist, newspaper columnist, and social commentator.

You have to wonder, don’t you, what went through the mind of whoever recently decided to send out a letter to a disabled former officer which seeks consent to access their medical records?

Staffordshire Police Pension Authority (‘PPA’)(The Chief Constable in a different role) is currently awaiting a decision in a judicial review, a central issue of which is access to injury-on-duty pensioners’ medical records.

We can’t comment on the case, but we can comment on the letter, so let’s do just that.

 

It does have one thing to commend it – it is reasonably polite in tone, but that is about all that can be said in its favour. Any politeness is lost in the dark undertones of the message.

The letter advises the recipient that a review of his degree of disablement, which was commenced nearly two years ago, is being proceeded with. There is no reason given for the long delay, nor any apology for any inconvenience or distress caused.

Also absent is any reference to what is actually meant by a ‘review’. We have pointed out before that the word ‘review’ does not appear anywhere in the Police (Injury Benefit) Regulations 2006. This is the legislation which govern the administration of the police injury award scheme.

For new readers – the scheme is a non-contributory compensation arrangement akin to an insurance plan. Should an officer be injured on duty to the extent they can not longer perform the full ordinary duties of a constable, then their Chief Constable has the option of requiring them to retire. In which case the disabled individual can be considered for grant of an injury award, which consists of a one-off gratuity and a pension payable for life.

The Regulations allow for the scheme manager to,

. . . consider at such intervals as may be suitable whether the degree of the pensioner’s disablement has altered, and if after such consideration the police [pension] authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

Such provision is sensible, as in some instances, a pensioner may find their disablement has worsened. In which case they may be due an increase in the injury pension. The opposite is also there, in that if a pensioner experiences a substantial improvement in their degree of disablement then the amount of pension paid can be reduced, on the basis that the individual is now better able to work and thus earn.

The Regulations do not tell police pension authorities exactly when it may be permissible to make the ‘consideration’ – to do so would place a fetter on the wide power of discretion police pension authorities have. However, whenever a power of discretion is exercised, it must be done so properly and with regard only to relevant factors. In the experiences of our members, it is rarely the case that police pension authorities manage to conduct these ‘considerations’ lawfully.

Faced with intransigent police pension authorities, who appear universally to have a complete lack of willingness to accept they have done anything wrong, it is not surprising that we have seen a steady flow of successful judicial review cases brought by pensioners.

Back to the letter. It commences with an inaccuracy, which does not bode well for the quality of the rest of its content. The letter says.

I am writing to inform you that your Injury Award . . . is due for review.

In fact, only the degree of disablement itself is liable for consideration. Not the ‘Injury Award’ which, as we know, consists of a pension and a gratuity. Other forces have made this mistake and have thus caused much distress to disabled former officers, many of whom are vulnerable and in poor health, for it gives the false impression that the gratuity may be under threat as well as the pension.

Staffordshire’s letter does redeem itself slightly, as it states, in bold, that, for this pensioner, the injury pension will not be reduced as a result of the ‘review.’

Now, this is where we see a bizarre aspect of the letter. The pensioner concerned is on the lowest level possible of injury pension. So, of course it can’t be reduced. Why then, we ask, is Staffordshire wanting to hold a ‘review’? Can it be they have reason to believe that the pensioner’s degree of disablement has worsened, and are anxious to provide a higher level of pension payment?

We think not. Staffordshire clearly have no idea whether that is the case or not, for they have ‘respectfully’ asked the pensioner to provide a raft of sensitive personal information, the purpose of which is to,

. . . enable the review to be undertaken . . .

Here is a copy of the questionnaire,

 

However, having asked for the information (of which more below) Staffordshire helpfully provide some ‘Frequently Asked Questions’ with the letter. The response to one question tells us that pensioners on the lowest band of injury pension will not have their pension reviewed.

We will repeat that, as it is noteworthy. Pensioners on the lowest band of injury pension will not see a ‘review’.

Yet, Staffordshire clearly tell this pensioner that his ‘injury award’ is due for ‘review’. They know the pensioner is on the lowest pension payment, so, according to their stated policy, the pensioner should not be subject to a review.

Very confusing.

Then there is the ‘Injury Award Pension Reassessment Questionnaire’ which also accompanies the letter. This asks the pensioner,

Do you consider that there has been a substantial alteration in your disablement since you were last assessed or reviewed for an injury award?

Any pensioner who had to work out what Staffordshire intends with this letter and accompanying material would come to the conclusion that whoever had a hand in putting the package together had no more than a feeble grasp of how to administer the Police (Injury Benefit) Regulations 2006.

We don’t mean to be unkind, and won’t critique much more of what was sent to this one pensioner any further other than to say it hardly helps foster any feelings of confidence that the Regulations will be followed fairly.

However, above all its other faults, one aspect stands out. We mentioned above that the letter came with a request for the pensioner to provide detailed sensitive personal information, including medical information, financial information and details of training, qualifications gained, employment, salary, other earned income, voluntary work and state benefits.

Thus, in the light of the ongoing judicial review, which will examine whether a police pension authority has any right to access a former offer’s medical records, we can only say that it is inflammatory and ill-advised for Staffordshire to seek the pensioner’s consent to approach the pensioner’s ‘Doctor/Consultant’, requesting ‘. . . a Medical Report or Medical Records . . .’.

Staffordshire should know that such information is classified under the General Data Protection Regulations as ‘special category’ data, which is robustly protected by means of detailed provisions within that legislation. If Staffordshire police pension authority thinks it has a right to such data, then there would be no need to ask for permission to access it. Asking for permission is about as clear an admission as can be that the police pension authority knows it has no regulatory or statutory right to such information.

The consent form is a cynical attempt at bamboozling a disabled former officer into signing away all rights which protect his special category information.

Whist the judicial review remains open, and pending any appeals, any decent, humane and sensible police pension authority surely would not be continuing with ‘reviews’ .

We will leave the last word on the matter to Will Rogers, who wrote, ‘There are three kinds of men. The ones that learn by reading’. The few who learn by observation. The rest of them have to pee on the electric fence for themselves.’

Who can view your medical records?

IODPA Admin GDPR, medical records
Who can view your medical records?

Sometimes a complicated question has a simple answer

— Dr Suess

Question: “Who can view your medical records”

Simple answer: “A doctor, a doctor, or a doctor”.

Do we really need to reiterate that again? There is no requirement or legal authority for anyone to view your personal, private and sensitive medical records other than a doctor.

 

General Data Protection Regulations

Let’s start by looking at what protections there are for you and your medical records. The main one is the General Data Protection Regulations 2016/679 (‘GDPR’), tailored by the Data Protection Act 2018.

Article 4.1 GDPR defines ‘Personal data’ as follows,

‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person

 

Medical records are one step further from ‘Personal data’ and is classed as a ‘special category’ of personal data, also known as ‘sensitive personal data’,

Article 9.1 GDPR defines the processing of special categories of personal data,

Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

 

The GDPR recognises the importance of this special category of data citing that they are subject to a higher level of protection. There are two ways in which someone may lawfully process (view) or obtain your medical records, the first is consent and the second is a statutory authority. Regardless of the authority relied upon, it doesn’t allow the uncontrolled dissemination or arbitrary viewing of your medical records.

In the world of ill-health retirement and injury awards, here are four of the most common scenarios when access may be required to your medical records,

  1. Ill-health retirement
  2. ‘Assessment for an injury award’
  3. ‘Reassessment of an injury pension’
  4. ‘Appeal to board of medical referees’, usually in response to one of the above events

For practical purposes, scenarios one and two are often considered concurrently by the Police Pension Authority (‘PPA’) as an application for an injury award will often run in parallel with ill-health retirement. Even though this frequently occurs, the necessity for access to your medical records is different in each case.

 

1. Ill-Health Retirement

When an officer applies for ill-health retirement, the PPA are ordinarily obliged to refer a number of medical questions to a Selected Medical Practitioner (‘SMP’) under one of the police pension schemes.

It is suggested that the Force Medical Examiner (‘FMA’), who would usually have had some involvement in your case up until this point are required to provide an opinion to the SMP, as defined in Home Office (‘HO’) guidance and confirmed by Police Negotiating Board (‘PNB’) Circular 03/19,

18. In normal cases the police authority should ask the FMA most familiar with the case to provide advice on the case to the SMP…. The purpose of the FMA’s advice is to inform the assessment by the SMP…


19. To assist the SMP, the FMA’s advice will consist of two sections: a medical background and opinion:


· The medical background will include all relevant medical details and history of the case. This section should take account of the assessments of the officer’s GP and hospital specialist as appropriate and wherever possible should be supplemented with relevant records, reports, X-rays or scans. (The FMA should seek the written consent of the officer for this section to be referred to the SMP.)


· The opinion will be the FMA’s advice to the SMP on the issue of permanent disablement in answer to the questions under regulation H1(2)(a) and (b).The authority should ensure that the FMA is aware of the officer’s compulsory retirement age. Where the FMA is of the view that the officer is permanently disabled he or she should also give his or her opinion on the officer’s capability. (This section will not include any confidential medical information and therefore no consent of the officer is required.)

 

It is perfectly acceptable for the FMA and SMP to be able to view your medical records as ill-health retirement is a medical decision and they are both qualified doctors.

What is not acceptable, or necessary is for any other non medical person or third party to have access to, or be able to view your medical records. This includes, but is not limited to other staff in –

  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

None of these people are responsible for making a medical determination, and therefore there is no legal requirement or need for them to be able to access your medical records.

In our opinion, all requests for consent to obtain, or process your medical records should come directly from the FMA, or the SMP. Records should only be released directly to the person requesting it. More of this later.

 

2. Assessment for an injury award  – reg 30

An application for an injury award (injury gratuity and injury pension) is no longer managed under any of the police pension schemes, but under The Police (Injury Benefit) Regulations 2006. As there is no reference to the FMA in the regulations, it is questionable whether they have any need or legal authority to view your medical records.

Regulation 30 of the PIBR 2006 confirms that it is the SMP, who is required to answer a number of medical questions,

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…

(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;

What is not acceptable, or necessary is for any non medical person or third party to have access to, or be able to read your medical records. This includes, but is not limited to other staff in –

  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

In our opinion, all requests for consent to obtain, or process your medical records should come directly from the SMP. Records should only be released directly to the person requesting it. More of this later.

 

3. Reassessment of an injury pension – reg 37(1)*

Before an injury pension can be revised under regulation 37(1) of the PIBR 2006, the PPA has to find that the ‘degree of the pensioner’s disablement has substantially altered‘. This is a medical question and Regulation 32(2)(d) dictates that the PPA shall refer the question to an SMP,

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—

…

(d) the degree of the person’s disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

 

As stated before, the regulations do not mention the FMA at all. Therefore there is no necessity or lawful authority for them to request or view your medical records.

We believe that any request for consent to view existing medical records or obtain medical records should come directly from the SMP, with a justification as to what medical information they seek and why. Only the SMP can decide what medical information they may require in any particular case, and each case would have to be considered individually.

We can now add the FMA to our previous list of people who should not access your medical records under an injury review –

  • FMA
  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

It is not acceptable for any other third party to make this request for or on behalf of the SMP, which includes HR managers, even if they have had powers delegated to them by the PPA under the PIBR 2006. The PPA does not have the authority to view your medical records and therefore neither can their delegate.

In our opinion, all requests for consent to obtain, or process your medical records should come directly from the SMP. Records should only be released directly to the person requesting it. More of this later.

 

4. Appeal to board of medical referees – reg 31

An appeal to a Police Medical Appeal Board (‘PMAB’) may require you to provide consent to release your medical records. The PMAB is an independent body and all requests should come directly from the board as defined in HO guidance and confirmed by PNB Circular 03/19,

59. It will be for the board chair appointed by Aon to arrange as necessary for the appellant’s consent to release other medical records, as applicable, from:
· the appellant’s General Practitioner
· any hospital or specialist which has treated the appellant, together with details of any tests and final reports. Aon will send the appellant the necessary consent form. Any reasonable costs necessarily incurred by the board in obtaining these records will be added to the board’s expenses at the end of the case

What is not acceptable, or necessary is for any non medical person or third party to have access to, or be able to read your medical records. This includes, but is not limited to other staff in –

  • FMA
  • Occupational Health Units
  • Human Resources
  • Force Solicitors
  • Senior Management
  • PPA (Chief Constable)
  • Any other person

It is not acceptable for any other third party to make this request for or on behalf of the PMAB, which includes force solicitors, even if they have had powers delegated to them by the PPA under the PIBR 2006. The PPA does not have the authority to view your medical records and therefore neither can their delegate.

All requests for consent to obtain, or process your medical records should come directly from the PMAB. Records should only be released directly to the PMAB. More of this later.

 

In summary

At present there appears to be a wholesale abuse of medical records. We believe that the following good practice should be adopted,

  1. Requests should only come directly from the FMA, SMP or PMAB where appropriate.
  2. The request should be on headed paper and signed by the individual concerned.
  3. There should be written justification of what medical records are required and why.
  4. Medical records should only be provided directly to the appropriate doctor requesting them.
  5. All records will be held securely and confidentially.
  6. There should be a record of access for each set of records with a log of who accessed the records, when, where and why.
  7. No records will be divulged to any third party without additional and express permission.
  8. At the conclusion of the process, all records, other than those which may be lawfully retained should be returned, or confidentially destroyed.
  9. A declaration should be signed by the person requesting the records that the above conditions will be complied with at the point of request.

This article has been written taking into account the views of the Information Commissioners Office (‘ICO’) who enforce the lawful application of the GDPR. A separate document containing their opinions on these issues can be found here – https://iodpa.org/the-general-data-protection-regulations-gdpr-and-you/

*Whilst this article does refer to providing consent to access or provide medical records under certain conditions, the current legal advice is that there is NO requirement to provide any consent with regards to a reg 37(1) review.

CC Morgan refuses pensioner’s legal representatives to attend a meeting

IODPA Admin Chief Constable, medical records, Regulation 33
CC Morgan refuses pensioner’s legal representatives to attend a meeting

We recently published a letter sent by Chief Constable Morgan of Staffordshire Police to  pensioners in our blog found here – https://iodpa.org/2018/07/13/chief-constable-morgan-sends-letters-to-vulnerable-pensioners/

He invited pensioners who are currently subject to an ongoing review to meet him, so that he may discuss his obligation to make a determination under regulation 33 of The Police (Injury Benefit) Regulations 2006.

Any such determination under Regulation 33 is a legal decision and Mr Ron Thompson of Haven Solicitors who represents a number of the pensioners has quite rightly requested that he and his colleague Mark Botham be allowed to attend the meeting in order to represent his clients best interests.

Mr Morgan has refused to allow the vulnerable pensioner’s legal representatives to attend the meeting on their behalf on the basis that

 

…it was not not my intention for the meeting to be adversarial in any way.

 

We’ve been passed Mr Morgan’s response by one of the pensioners.

 

 

Chief Constable Morgan sends letters to vulnerable pensioners

IODPA Admin Chief Constable, medical records, Regulation 33
Chief Constable Morgan sends letters to vulnerable pensioners

Chief Constable Morgan of Staffordshire Police today sent a letter to former police officers, all of whom are disabled, either mentally or physically.

These pensioners have been under review for a considerable amount of time and have to date fully complied with The Police (Injury Benefit) Regulations 2006 which govern them.

They have been sent this letter by Mr Morgan who has given them a week to comply.

Our advice is that these vulnerable and injured pensioners should politely decline his offer.

 

 

Watch out for a more detailed blog on this letter shortly.

David Lock QC: Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

iodpa medical records, newsflash
David Lock QC: Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

All copyright owned by David Lock QC

David Lock QC

David Lock QC

Barrister and QC at Landmark Chambers

Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

There is a considerable debate at the moment about how far Chief Constables, acting as the Police Pensions Authority, (“the PPA”) and the Selected

3 Big Data Myths: Busted

iodpa medical records
3 Big Data Myths: Busted

“He knows nothing; and he thinks he knows everything. That points clearly to a political career.”
― George Bernard Shaw, Major Barbara

Myth #1:  Handwritten SMP notes belong to the Doctor

Having brought and subsequently lost a constructive dismissal claim, in 2014 and 2015, a Mr Percival made a series of Subject Access Requests to the Ministry of Justice (MoJ) seeking access to the judge’s notes relating to the employment tribunal.

The MoJ initially resisted the request on the basis that judicial notes should not be disclosed as part of a subject access request. They argued that the Judge’s notes were not part of a “relevant filing system” so were not within the scope of the Data protection Act and that the MoJ were not the relevant data controller concerning the notes

The ICO also disagreed with the argument put forward by the MoJ that they were not the data controller, deciding that the MoJ became the data controller in relation to the notes as soon as they were included in the court file.

Accordingly, the ICO recommended that all personal data (including the Judge’s handwritten notes) should be provided. The judge’s notes were eventually released to Mr Percival in January 2017.

It is reported that the ICO letter to Mr Percival stated

“there is no doubt that clarifying the nature of the relationship between judicial notes and the DPA is important … a decision on the relationship is likely to be far-reaching and extend well beyond the particular circumstances of your own case.”

Often SMP’s keep their scribbles to themselves.  The ICO advice makes it clear that if the SMP has used a pen during the appointment, then he or she is obliged to disclose what they have written in answer to a subject access request.

Myth #2:  consent to Disclose a report cannot be revoked when an Occupational Health Doctor is performing a work test for an employer

IODPA has already discussed the Access to Medical Reports Act.  You can refresh your knowledge here:

Access to Medical Reports Act

But what are the thoughts to the GMC on this matter?  Michael Keegan, Policy Adviser with the GMC’s Standards & Ethics Team made it quite clear in a 2009 letter he sent to the Faculty of Occupation Medicine.

If a doctor makes a report based on that person’s own medical history, specific consent of disclosure is required.

Mr Keegan elucidates:

For the avoidance of doubt, I should state that the disclosure of a report expressing an opinion (on a patient’s fitness to work, for example) based on confidential information is a disclosure. I think that was common ground.

He contrasts this with a report authored with information that originated from the employer alone:

Reports based on information to which patients’ employers or insurers already have access are not disclosures for the purposes of this guidance, although the involvement and role of doctors should be explained as part of the information about the process.

Police forces do not have the information held on your GP medical records – this is why they demand full records from birth with poorly veiled threats to suspend awards on non-compliance.  They fail to realise by obtaining such information they then have statutory restrictions on any report or certificate they write based on such information.

This takes us to the final myth: they can’t keep the confidential, personal and sensitive data they already possess!

Myth #3:  A Police force can retain the personal CONFIDENTIAL & sensitive data of a retired officer forever in perpetuity “just in case“

This debunk involves a Mr Herring who, having attended a Police Medical Appeals Board (‘PMAB’), approx 15 years ago recently discovered that the Avon and Somerset Constabulary still retained a full set of his medical records from birth. They attempted to justify this retention on the basis that the records were being held ‘just in case’ they were required at some point in the future. Case law confirms that once a medical assessment has been made under the PIBR 2006, then that decision is final and introducing or using previous medical information can be unlawful.

The case was taken to the Information Commissioner’s Office (‘ICO’) regarding the excessive retention and processing of data of personal sensitive information. After consultation with the National College of Policing (‘COP’), the ICO upheld the complaint, and instructed the Avon and Somerset Constabulary to cease processing this material forthwith and either destroy it, or return it to Mr Herring upon request.

We quote from the ICO’s advice to Mr Herring,

“…it would appear that the constabulary is excessively processing sensitive personal data about you. It would appear unnecessary for the constabulary to continue to retain information about your medical records, going right back to your birth.
We have therefore asked the constabulary to cease processing your medical records. We would recommend that you contact the constabulary directly to agree how best for them to do this; whether it be that they return the information to you or securely destroy it”

Mr Herring subsequently had his medical records returned to him.

There is therefore no justification or provision in law for holding or processing such excessive amounts of sensitive personal information. Many forces hold vast amounts of information relating to retired officers, and for no lawful reason. We understand that the COP will be issuing guidance to forces, but in the meantime it is open for all retired officers to contact their force and ask for the return of their data. We would also encourage them to do so.

 

 

 

 

IODPA Sounds Alarm Over Threats to Injured On Duty Police

iodpa medical records
IODPA Sounds Alarm Over Threats to Injured On Duty Police

CrowdJustice – Crowdfund public interest law

Justice for Injured On Duty Police: Donate to the Campaign That Stops Threats to Injured On Duty Police


[29th September 2017]

Charity Sounds Alarm Over Threats to Injured On Duty Police

The Injury On Duty Pensioners Association (IODPA) has today launched a campaign to fund legal assistance for disabled and vulnerable former officers who are being threatened and are facing injustice concerning their injury pensions.

CrowdJustice is a crowdfunding platform that enables individuals, groups and communities to come together to fund legal action.  Donors can make a pledge to the campaign here:
https://www.crowdjustice.com/case/justice-for-police-injured-onduty/

IODPA is a registered charity formed to relieve the need of retired and serving police officers in hardship or distress.

Some few forces are deliberately flouting the law. Their Chief Constables are responsible for the lawful administration of police injury pensions, but they are overseeing abuse of disabled people who have been threatened and misinformed.

IODPA needs to bring issues to the attention of the courts so as to compel errant forces to comply with the law governing police injury pensions.

The Regulations which govern injury pensions give no rights which would allow a human resources employee or a doctor working for a police force to demand personal and sensitive medical information.

In June, Merseyside Police backed down when challenged at judicial review for its unlawful action of stopping the injury award of a former officer, who rightly held the view they were not entitled to his full medical history.

In Staffordshire Police, Deputy Chief Constable recently made a public statement that:

“Staffordshire police does not threaten to suspend injury pensions if the information asked for is not provided”

Despite this promise, Andrew Colley, a human resources employee of Staffordshire police recently sent a letter to a former officer with a medical pension threatening that not providing full medical records would amount to non-attendance at a medical examination – whether or not the person physically attended.

All appointments made out by Staffordshire police  for injury pensioners to see a Dr Charles Vivian have been cancelled indefinitely as Dr Vivian is refusing to see any pensioner without prior completion of a questionnaire and disclosure of full medical records from birth.

This issue is just the latest in a long history of deliberate and determined abuse of vulnerable disabled former officers, and of the law, by some forces. IODPA needs to fund successful legal challenges, which will benefit all of the over 12,000 former officers who are retired due to disabling injury on duty.

IOPDA seeks to challenge this unlawful abuse of process by providing legal assistance though solicitors with expertise in this area. Our appointed legal experts are Haven Solicitors and Cartwright King.

Contact: press@iodpa.org

Proudly associated with:
Mark Lake http://cartwrightking.co.uk/
Ron Thompson http://havensolicitors.co.uk/

Injury On Duty Pensioners Association (Charitable Incorporated Association)
Registered Charity Number 1174473
Lytchett House, 13 Freeland Park Wareham Road, Lytchett Matravers, Poole, Dorset, BH16 6FA

[End]
Download here CHARITY-SOUNDS-ALARM-OVER-THREATS-TO-INJURED-ON-DUTY-POLICE.pdf

The Truth Of It

iodpa Chief Constable, medical records
The Truth Of It

All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us? ~ Reg: Monty Python’s Life of Brian

In a recent Police Oracle news story concerning Merseyside police taking a former officer’s award away because – quite rightly from his position – he said he wouldn’t fill in any ridiculous questionnaire, a representative of Merseyside reportedly said:

“The only issue determined by the judicial review was whether the former officer’s pension payments should have been suspended”

Injured ex-officer sees pension reinstated after legal fight

Solicitors warn other forces about acting in a similar way. A solicitor has warned forces that attempts to make injured retired officers provide more personal information than required by law for reassessments of their pensions will be challenged. Former Merseyside Police officer Paul McHugh issued judicial…

What an example of spin – right out of the text book of Malcolm Tucker in the BBC sitcom The Thick of It. We wonder if Mr/Mrs Merseyside spokesperson asked three straightforward questions of the people who, within Merseyside, took the injury award away from Mr McHugh.

First: are they certifiably insane? That is, are they — as the Americans put it — crazier than a shithouse rat?

Second, if the unlawful removal wasn’t for not filling in the questionnaire as well as not giving full medical records from birth to the z-team HR minions, messrs Peter Owens and Supernintendo Markay, then why did they take the award away?

Did they randomly wake up one morning and arbitrarily select a victim to suspend an award!

And third: do they have anything to gain, financially, from making these assertions? Merseyside saved a lot of money by reducing people by use of this questionnaire and by not using a SMP.  All these people have grounds to demand a reconsideration.

Our guess is that none of those questions have been asked. And they have not been asked because those are not the sort of question a spokesperson working for the police is allowed to ask any more. Such a poor excuse for a glib individual must take everything at face value these days. They must not exercise their judgement — or, as we would put it, the truth…

Never mind that a sworn officer of the law at a rank of senior manager at executive level with a position to set strategy, standards and policy across a department or organisation, did something so illegal that Supernintendo Markay and Peter Owens couldn’t persuade Merseyside to defend it in the high court, and then got a spokesperson to say the judicial review wasn’t about what it was actually about to save their careers.

Quite worrying isn’t it when the upholders of the law revert to spin to cover up a major wrong?

IODPA hates it when people don’t come clean.  When they don’t mention what is staring them in the face.  When the truth is hidden.

Speaking of spin.  The Internet is such a clever thing.

We’ve found the six year old draft change to the Police Injury Benefit Regulations sat on a virtual shelf gathering dust.  This never became law and was first put forward in 2011.  All of the proposals were dropped and there are interesting conversations between the staff side and the Home Office between what should stand and what should go.  Mostly the Federation was for the proposals.  We might talk about these cosy chats in another blog.

Anyway, here it is:

Regulation 33 (failure to attend a medical examination) of the 2006 Regulations becomes Regulation 32 in this proposal.

Remember, all these proposals were dropped.  But the content of this new Regulation 32 is telling:

32.—(1) This regulation applies where a relevant medical question is referred to a medical
authority under regulation 29, 30 or 31 and the person concerned wilfully or negligently fails to—
(a) submit himself to a medical examination;
(b) attend an interview; or
(c) consent to the disclosure of medical records
which the medical authority considers necessary in order to enable him to make his decision.

The real, current and active Regulation 33 makes no reference at all to medical records.  But the proposal makes an explicit reference to it.  In other words the current Regulations do not do what they want it to do.  So they wanted it changed.  They failed.

If this is not an admission that the production of medical records is not required under the current Regs, we don’t know what is.

And why was the 2011 proposed change to the Regulations dropped?  Probably because there is a provision in law that means such sweeping changes could not be applied retrospectively, and that rather defeated their point.

What the debacle of the questionnaire reveals is the untruths that underpin what certain individuals in police forces tell those who are medically retired to get them to acquiesce to unlawful demands.  The HR minion tells a porky; the head of legal services finds a clever lawyer-trick to skirt a way around a “problem”; the chief constable says all is well and right in a world of right and wellness; and the PCC says the chief is the best thing since sliced bread.  The IPCC says any such complaint is nothing to do with them and the cycle circulates infinitely.

The language of those who administer injury awards is therefore a truly transformative grammar.   There are words which, when uttered by a such a person, lose all sense of themselves — such as ‘duty’ and ‘must’ and ‘shall’.

It is not simply that these words can mean different things to different people — it is that when these people such as supernintendo Markay, Owens and Andrew Colley use them they are at best an euphemism and at worst a downright lie.

And from that you have to draw the conclusion that their whole injury award edifice is built upon a perpetually shifting succession of imaginative falsehoods.

If IODPA is unable to do anything else, our readers can be assured we will always speak the truth and like Ockham’s razor, cut through the crazy, complicated  spin and constructions spouted by those who should know better.

 

 

 

The Protection of Personal Data & The Sad Story of “Z”

iodpa data protection, medical records
The Protection of Personal Data & The Sad Story of “Z”

“If I maintain my silence about my secret it is my prisoner…if I let it slip from my tongue, I am ITs prisoner.”
― Arthur Schopenhauer

One important aspect of privacy is recognised in common law – that of the confidentiality of medical information.   Patients should be free of the fear that they will be harmed by disclosure of clinical information as a result of engaging with a doctor.

In the UK there are various statutes and statutory instruments that require doctors to reveal information, which would otherwise be considered confidential. For example the reporting of notifiable diseases (Public Health Control of Diseases Act 1984) or notification of terminations of pregnancy (Abortion Regulations, 1991).  The Abortion Regulations provides a good example of the clarity given to the subject’s protections when medical information has to be disclosed, its section 5 specifically refers to the restrictions placed on disclosure of information.   There are ten parts to this section that explicitly spells out the limited remit of any information disclosed to the Chief Medical Officer and his delegates relating to abortions and the narrow window that it can be processed.

It is by no accident then, that the Police (Injury) Benefit Regulations (PIBR) does not reference at all the words ‘medical records’ or ‘medical notes’.  Given this fact, that no mention of the limitations of disclosure is made, such as you’ll read in the Abortion Regulations, it is clear that there is no requirement for disclosure in the first place!

There is also no implied obligation to do so because it would involve the state asserting an unqualified right to inspect confidential medical records.

Think on this for a second:  There is only one small sample of the UK populace who is frequently threatened to disclose all and every piece of medical information ever written about them in their entire life on a whim of a non-medical HR agent working for a police force.  Fail to acquiesce and a HR minion will terrorise a disabled former police officer by saying they will stop the injury award that person receives.

Everyone else in the UK is protected from such a menace – but the HR minion authoring the threats blithely continues onwards without pause.

Bureaucrats such as the medical retirement officer from Merseyside police demands full medical records from birth, ignorant (or not caring) that a request for such medical records isn’t mandated by any law.  If the former officer is female, the fact that these medical records may contain records of an abortion and therefore protected by the statutory instrument mentioned above, is criminally overlooked by the officious functionary.

When a statutory instrument calls for medical information, this is what you’ll find:

“A notice given or any information furnished to a Chief Medical Officer in pursuance of these Regulations shall not be disclosed except that disclosure may be made…[]”STATUTORY INSTRUMENTS 1991 No. 499 MEDICAL PROFESSION The Abortion Regulations 1991

Their ignorance is beyond comprehension.  In reality everyone, those with injury awards included, also have protections under the Human Rights legislation.

Don’t take our word for it.  Just listen to the European Court of Human Rights (ECHR).

It will not surprise our constant readers that the European court found that domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention.

In other words there has to be effective and adequate safeguards against the possibility that either irrelevant or medically inaccurate information recorded would be re-circulated and used out of its original context to the prejudice of the person.  Such safeguards as exampled in the UK Abortion Regulations!

Before we go on an exploration of a judgement made by the European Court of Human Rights it’s worth saying first that Brexit will not change anything about the point we will make here.

The ECHR is not part of the EU and will not change on Brexit as it is completely separate from the EU.  The ECHR was drafted in the aftermath of the Second World War and adopted by the Council of Europe in 1950. It was incorporated into UK law through the Human Rights Act 1998.  Arguably, the Great Repeal Bill, which will become an Act in 2019 or 2020, will do quite the opposite of repealing anything: although the Bill will remove the 1972 European Communities Act (ECA), which gives EU law authority, first it will adopt EU law lock stock and barrel into UK law

OK.  Proviso dealt with.

We are going to talk about what the ECHR thinks of “The State” using it’s authority to demand things of it’s citizens – specifically personal data.

In 1997 “Z” applied to the European Court of Human Rights alleging that her right to privacy under the Convention was violated when her HIV status was disclosed by the media during her husband’s criminal trial.

Z v. FINLAND – 22009/93 – Chamber Judgment [1997] ECHR 10 (25 February 1997)

You are here: BAILII >> Databases >> European Court of Human Rights >> Z v. FINLAND – 22009/93 – Chamber Judgment [1997] ECHR 10 (25 February 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/10.html Cite as: 25 EHRR 371, (1999) 45 BMLR 107, [1997] ECHR 10, (1998) 25 EHRR 371


This ECHR case turned on issues of privacy as Z was the applicant complaining that Finland’s legal system had not protected her privacy rights under Article 8 of the European Convention on Human Rights throughout the process.

The Finnish police tried to investigate when X, the spouse of Z, became HIV positive to prove an attempted manslaughter charge against X;  subsequent to the victims being raped by X.   At the 1993 manslaughter hearing, Z’s doctor was called as a prosecution witness and told the court about Z’s medical history, specifically a blood test taken from Z three years earlier.   Z also took the witness stand and told the court that she had not been infected with HIV by X.

All the medical records of Z were seized by the Finnish police who added them all to items of evidence in the case files.  These records comprised some thirty documents.  Such seizure would be unlawful in the UK by virtue of the Police and Criminal Evidence Act 1984 (PACE)*.

*PACE Sections 8 and 9 and schedule 1 (see R v. Central Criminal Court ex parte Brown (1992) TLR Sept 7th) in the absence of agreement by those holding the records the police have no powers to seize or have access to ‘documentary and other records’.

X was convicted of attempted manslaughter for the three rapes he committed in 1992 and solely rape for the offence committed in 1991.   The court sentenced X to seven years imprisonment and decreed that the reasoning and case files (including Z’s medical records) should be kept confidential for a decade.

Just after the first trial a leading national newspaper reported the seizing of Z’s medical records under the headline “Prosecutor obtains medical records of wife of man accused of HIV rape”.  The article published the first name and family name of Z.

In December 1993 the convictions were upheld by Finland’s Court of Appeal.  Further, the 1991 rape as well as newly introduced 1992 rape charge was now judged to have been attempted manslaughter.  The reasoning was released to the media.  It contained a passage where Z was named as a carrier of HIV and that as the wife of X, this gave X reasonable suspicion to think he was also infected.  In any case, the Court of Appeal sentenced X to a further four years.

The media again published identifiable information of both Z and X after the Court of Appeal sent the decision by fax on the day the hearing was concluded to several newspapers.

Under Finnish law, the Court of Appeal had the power to omit any identifiers of individuals in their judgements.  The ECHR heard whether the Court of Appeal was justified to release the disclosure of Z’s identity and HIV status in the Court of Appeal’s judgement made available to the press.

It was explained to the ECHR that X’s lawyers had petitioned for the confidentially order of a decade to be extended and that Z remained anonymous.  The Court of Appeal had paid no heed.

The EHCR ruled that the publication of Z’s identity and medical condition was not supported by any cogent reasons and accordingly the publication gave rise to a violation of Z’s right to respect for her family and private life as guaranteed by Article 8.  The EHCR also made a ruling on the special nature of medical data:

In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (art. 8).

The court made it clear that health data has a special preeminence:

Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

We are fortunate in the UK.   Existing primary legislation such as PACE, Access to Medical Reports Act and the Data Protection Act ‘should‘ prevent medical records floating around so many of the case file bundles as happened in the case of Z.

Would the story of Z reached the ECHR if not for the media leak?  Perhaps, perhaps not.  But that’s not the point.  The point is, once medical records are ‘released into the wild‘ the subject loses control over them.

Clearly UK lawmakers know this and that is why the Abortion Regulations puts safeguards on such sensitive medical information.  The ECHR ruled that medical information needs unrivalled protection and that is why the PIBR, as a similar statutory instrument, does not call for medical records by not referencing them and by not implementing safeguards on any, HR or SMP invented, ‘implied disclosure’.

When a HR minion demands full medical records from birth there is always a possibility that your medical records will fall into the hands of those not entitled to access them.  And as a consequence the material is misused.  The story of Z is an extreme case but the Finnish Court of Appeal still made a massive mistake that potentially can be repeated if medical records aren’t treated as the most sensitive and confidential of all personal documentation and never disclosed in full just because a SMP wants to see the “whole picture”.

Are you sufficiently confident that the Finnish Court of Appeal is more incompetent than the Occupational Health unit of a police service you used to serve with?  And that your own confidential data couldn’t be used in untoward processing?  Do you know whether your medical data relates to any 3rd party?

Murphy’s law comes into play here.  The adage that is typically stated as: Anything that can go wrong, will go wrong.  No public organisation is beyond making the same mistake as one of the highest Finnish court.  Indeed, given how often police HR departments cock things up and the frequency that the Police Injury Benefit Regulations are contravened there is a much higher probability that the HR department could lose and misuse such sensitive medical data.

Talking about the original ten year confidentially order (breached by the Court of Appeal) the EHCR stated plainly that:

the interference with the applicant’s private and family life which the contested orders entailed was thus subjected to important limitations and was accompanied by effective and adequate safeguards against abuse

We’ll repeat this again: There are no limitations and there are no safeguards provided by the Police Injury Benefit Regulations in relation to confidential medical records.  Why?  Because there is no mention of confidential medical records in the Regulations.

A police force asks for full medical records from birth because their default position is that the injury award grant was wrong.  And they want their double jeopardy.  They want to reduce their financial commitment and will gladly look for a medical incident when you were 11 years old to justify their malevolence.

Case law is quite clear in this matter.  Pollard, Turner and Laws all state the last decision is final.  There is no right for them to have any medical records.  The clock cannot be ‘turned back’.

Tell them this and refer them to this blog if the HR minion disagrees.

How would the HR minion react if they themselves, or close family members, were victims of such bullying and bureaucratic blundering?  You would hear their personal outcries of injustice in their own reaction to a public authority, decades after their own retirement, sending a missive demanding disclosure to their own full medical history.

Best they realise now that following ‘orders’ gives them no protection.  They should think very carefully before signing letters demanding things they have no legal justification to demand.