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.
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:
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.
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.
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.
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”
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.
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.
“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.
You are here: BAILII >> Databases >> European Court of Human Rights >> Z v. FINLAND – 22009/93 – Chamber Judgment  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,  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.
“If you are distressed by anything external, the pain is not due to the thing itself, but to your estimate of it; and this you have the power to revoke at any moment.”Marcus Aurelius, Meditations
Here is an unsettling fact. It seems that most police force are aware of the Access To Medical Reports Act, but some chose not to comply with it.
The Access to Medical Reports Act 1988 (AMR Act) provides the right for people who have been medically assessed for insurance or employment purposes to withhold their consent for access to medical records, and also to see any report produced by the commissioned doctor before it is sent to the person or organisation who commissioned it.
This Act applies directly to the process of review of police injury pensions, as an injury award is a form of compensation (i.e. insurance) for injury on duty.
On review of an award, it gives the right to demand changes and if you are still unhappy with the report, you have the right to stop it being sent to the police pension authority.
On an application for an award, you can demand corrections to medical inaccuracies (diagnosis, apportionment or causation) made by the SMP and if you are still unhappy with the report, you have the right to have your objections added to the report or to stop it being sent to the police pension authority. Stopping disclosure of the report may mean your application is not continued any further.
Here are extracts from two recently used consent forms, issued to IOD pensioners by two different forces, demanding agreement that the medical authority’s report shall go direct (or after a benevolent pause of three days!) to the Human Resource department:
From Avon and Somerset Constabulary:
And from Northumbria Police:
The forces who put out these manipulative psuedo-requests for consent will know all too well that there is legislation concerning the ‘provision of reports’. Why otherwise would they ask for ‘consent’ to release? That said, everything is wrong about the demands asked of the signatory. Both of these consent forms have but two options, each option which, with brazen shamelessness, breaches the Access to Medical Reports Act.
It is in fact illegal to release the report simultaneously to both the recipient and the third party, in this case the police pension authority. It is also unlawful to demand a three ‘working day’ window to inspect the report.
Where a person is induced to enter into giving consent entirely or partly by a false assertion, such as not being truthful with the rights gifted to them by legislation and failing to provide understanding in broad terms the nature and purpose of the disclosure and the rights they have, then any misrepresentation of these elements will invalidate consent.
The insistence that the report cannot be changed is also contrary to the Access to Medical Reports Act. Nowhere is the signatory explained their full rights. The reason for this is clear – it is a plain attempt to blitzkrieg disabled former officers to ensure they yield to the will of the pension scheme manager; to force compliance with a bullying, superior force.
The AMR Act makes it crystal clear that consent to any report being released can be withdrawn without retribution. If an individual being assessed is unhappy with any element of the report, and says so, then it is illegal for the doctor to release it to any third party, including the police pension authority. In real-terms this means the review is over… stalemate.
Forces know this. We can only conclude that is why there is no mention of the Act in the consent form and that is why your rights are not explained. Why give you an informed consent form when they can con you into forced acquiescence by saying you have 72 hours and the clock starts … now!
The basic points of the AMR Act can be summarised thus:
Section 3 of the Access to Medical Reports Act states that the person has to give his or her consent for their employer to be given access to their medical records.
Section 4 of the Act the doctor or medical practitioner must wait 21 days before sending the report to the employer.
An employer must obtain the person’s written consent which must then be provided to the doctor in order to be provided with access to the requisite report.
Under Section 5 of the Act a person can request the doctor to amend the report if they feel that it is incorrect or misleading.
An employee is entitled to withhold their consent for a report to be provided to an employer having been provided access to it under Section 4 of the Act.
Section 6 of the Act states that doctors will retain all reports requested by employers for six months
At this point we have to mention that the Police (Injury Benefit) Regulations 2006 require a police pension authority ‘refer for decision to a duly qualified medical practitioner selected by them . . . ‘ the relevant questions. At review, the relevant question is degree of disablement. Specifically whether there has been any alteration in degree of disablement. The Regulations also require,
30-(6) The decision of the selected medical practitioner on the question or questions referred to him under this regulation shall be expressed in the form of a report and shall, subject to regulations 31 and 32, be final.
30-(7) A copy of any such report shall be supplied to the person who is the subject of that report.
We can see, therefore, that the decision of the SMP must be in the form of a report. The SMP can not inform the police pension authority of his decision in any other way. So, no sneaky way round the Regulations or the AMR Act.
What happens if the doctor decides to release the report anyway? Firstly they breach the Access to Medical Reports Act and a court order can be easily obtained to enforce the Act. In effect this will nullify the report and any decision based upon it. Secondly, the GMC will almost certainly punish the doctor for committing gross misconduct. In all likelihood the doctor will be struck off.
Further, there will also have been a concurrent breach of the Data Protection Act.
As things stand in the strange alternative legal world view of Avon and Somerset and Northumbria, pensioners are being instructed to sign the consent form without seeing the report – in this case before they have even allowed access to their medical records. This is in no way seeking ‘informed’ consent. It is patently ridiculous to expect anyone to sign consent for the SMP to send in a report that has not yet been written, and has not been yet seen by the individual concerned.
The concept of consent arises from the ethical principle of patient autonomy and basic human rights. You can not consent to release of a report that, at that time, is yet to come into being.
Informed consent must be preceded by disclosure of sufficient information – in relation to a medical report, the report has to be visible for consent to be formed. Consent can be challenged on the ground that adequate information has not been revealed to enable the patient to take a proper and knowledgeable decision.
Tellingly, in the police consent form, there is no mention at all of any of the rights provided under the Access to Medical Reports Act 1988 – there is no mention in the consent form of the Act itself.
The General Medical Council (GMC), the British Medical Association (BMA), and the Faculty of Occupational Medicine (FOM) have issued guidance on the law governing commissioned reports. They recognise there are protocols enshrined in law, and the guidance is a consequence of that law.
As quoted from this report, the GMC guidance –that confidentiality is a fundamental duty for all doctors and must not be breached without the consent of the individual concerned – strengthens the notion of “no surprises”:
… in the relationship between doctors and patients and because of cases reported to them where the content of a medical report deviated significantly from the patient’s understanding of what it would say.
In 2008 the FOM set their greatest minds to the task of examining whether Occupational Health doctors have to comply with the AMR Act.
The main reason objective of the expert group was to to “explain the legal basis of our practice and how this differs from mainstream medicine in relation to this Act”.
The default recommendation of the expert panel was that if the occupational health clinician is “responsible for the clinical care” of the patient then the Act applies at all times.
An important conclusion of the report was that if the occupational health clinician bases a report from medical notes obtained from a GP, hospital or consultant then the Act applies.
In paragraph 62, the group come across the Rubicon that is the question of consent – the barrier which no SMP or HR Department may cross without falling foul of the law: “The Act sets no limit on the time the individual may take to consent to the release of the report and so it may potentially be delayed indefinitely“.
The specific wording of that Act that they are referring to is this:
Where an individual has been given access to a report under section 4 above the report shall not be supplied in response to the application in question unless the individual has notified the medical practitioner that he consents to its being so supplied.
Pay close to attention to the highlighted text. Consent can only be given once the individual has been given access to the report.
They concluded that they strongly agreed that, “An individual has a right of access to the medical report produced by the occupational health practitioner”.
Also they strongly agreed with the statement that, “When anoccupational health physician writes a report based upon medical records supplied by the GP or hospital, the occupational health physician needs consent to send the report”.
Dr Bulpitt of Avon & Somerset clearly understands the implications. He said himself that if consent to disclose the report is withdrawn then,“we are in danger of the whole thing grinding to a halt”.
Remember that this isn’t the consent to obtain medical records in the first instance. As we’ve mentioned, the consent concerning disclosure cannot cover the consent to release a report that is yet to exist.
Are you an employee of a police ‘inhuman remains’ (HR) department that still thinks that the Access To Medical Reports Act 1988 doesn’t apply to police injury awards?
Let us put your doubts to bed once and for all. The British Medical Association (BMA) has a document titled “The Occupational Physician“. It was authored by the BMA occupational medicine committee.
Chapter 11 Access to Medical Reports Act 1988
How the Act affects occupational physicians
Although the Act, for most practical purposes, applies to reports provided by an individual’s GP or hospital doctor, it also affects occupational physicians in the following circumstances:
where an occupational physician provides clinical care to the employee (care is defined in the Act as including examination, investigation or diagnosis for the purposes of, or in connection with, any form of medical treatment)
where an occupational physician has previously provided medical treatment or advice to an employee (in the context of a doctor/patient relationship) and therefore holds confidential information which could influence the subsequent report
where an occupational physician acts as an employer’s agent, seeking clinical information from an individual’s GP or consultant. In this case the occupational physician, acting for the employer, should seek the employee’s consent to request a report and explain his/ her rights under the Act.
Often the occupational health record of a former police officer contains confidential information where the force medical officer has provided treatment or advice in attempt to get that person back to work – so this is (b) and is covered by the AMR Act. Advice and/or treatment to get someone operational again should be the raison d’être of a police occupational health unit.
A report produced by an organisation’s own occupational health practitioner (or delegated agent) is covered by the AMR Act when the practitioner or predecessor has been involved in the employee’s treatment, even past treatment unrelated to the employee’s current medical condition. How many serving, but injured, police officers prior to retirement were sent for MRI scans? Counselling? Private operations to speed recovery? Referrals to rehabilitation centres? This all amounts to clinical care.
The guidance from the GMC, BMA and FOM all coalesces into the single agreement that if a report is based from clinical information gained from the individual’s GP then this is (c), above, and is covered by the AMR Act.
Diana Kloss QC of St John’s Buildings Barristers’ Chambers published an article in the Occupational Medicine Journal (September 1st 2016) that covers this exact subject. She touches upon the frustration felt by force medical officers such as Dr Bulpitt when she writes:
human resources and occupational health (OH) professionals are unhappy with the current guidance (under review) from the General Medical Council (GMC) that an OH report to management should be shown to the patient before it is sent and that they should be permitted at that stage to withdraw consent
She concludes that:
only when the employee is told what is in the OH report can he give valid consent to its disclosure to his employer…
Therefore, just as an employee can withdraw consent to disclosure of a GP report when he sees it (under the AMRA), so he can refuse to permit an [Occupational Physician] to send a report to management when he knows what it contains.
Somewhat playing to the intended audience of the journal, the QC mentions circumstances concerning the application of an ill health retirement in her article and makes a point that it is:
it is arguable that an [Occupational Physician] appointed to advise on an ill-health retirement pension may be considered to be in a position analogous to that of an expert witness especially when pension procedure is laid down in statutory regulations
But that argument has no relation to any medical report written from clinical information from an individual’s GP or consultant. In any case, Diane Kloss herself makes it clear that even an expert witness can have consent to their report withdrawn. In Kapadia v London Borough Of Lambeth  Dr Grime, a Registrar in the Department of Occupational Health and Safety at King’s College, refused to hand over his report on Mr Kapadia – that he undertook on the instructions of Lambeth – to the Borough’s counsel on the first morning of the hearing as no consent to do so was provided by Mr Kapadia.
In relation to police injury awards, such a medical report required by the Regulations is not written by an ‘expert witness‘, they are written by a suitably qualified medical practitioner – under the full jurisdiction of the GMC, FOM, BMA and AMR Act. The applicant for an ill-heath retirement that withdraws disclosure just will be unable to prove to the police pension authority their entitlement to an injury award. The ability to exercise consent can not be denied.
A review under Regulation 37 is also commenced with a demand for full access to all medical records held by the GP practice. Notwithstanding the lack of any legal authority within the Regulations for asking for such information, any attempt to write a medical report on somebody without giving that person their statutory rights is scandalous.
And, if you’re wondering, why the distinction under the AMR Act between an occupational health doctor, not being a doctor responsible for the clinical care of the IOD pensioner, who writes a report from occupational notes, contrasted with the same doctor writing a report from medical information gleamed direct from GP and/or hospital notes? The former is not compelled to comply with the AMR Act whereas the latter is under the remit of the AMR Act.
The answer shows the foresight of the legislators that penned the AMR Act.
No one in the UK is registered with a GP – they are registered with a GP practice. There might a favourite GP there who you would prefer to see, or that nice doctor you saw since childhood may have recently retired. You may have moved home recently and changed GP practices. The GP practice may have amalgamated with a bigger, slicker more modern outfit.
The point is that a report written by a GP you have never met, from your comprehensive medical notes, who works at a GP practice which is responsible for your clinical care is no different from an occupational health clinician, who you don’t know, writing a similar report from the same medical files.
Neither ‘know you’, neither ‘have treated you’. But the locum doctor working at an understaffed GP practice (a locum is a doctor who stands in temporarily for another doctor) that is tasked with the request from an insurer or employer to provide a medical report is put in exactly the same position as the selected medical practitioner: a position whereby they must comply with the AMR Act.
This is why all reports based from medical records have to comply with the AMR Act. And this is why you aren’t told of your rights. People like Dr Bulpitt would prefer you not to know this.
Failure to properly advise IOD pensioners about the application of the AMR Act is a further deliberate misuse of the authority of a policing body. The insidious and creeping behaviour of some public officials employed by the police undermining the rights of disabled former officer is stark. The maladministration of injury awards is epidemic.
Until police bodies are held to account for deliberately attacking or neglecting legislation that have been set up to help protect our rights, the abuse will continue.
IODPA will always work to put an end to it. If you have been to see a SMP and are not happy with the report (or felt the SMP performed a blatant and partisan interrogation), why not remove consent for that report to be released. Be clear that the doctor’s licence to practice is at stake if he or she fails to comply.
Do not be browbeaten into compliance by threats of the legal services department that you have not complied. Regulation 33 of the Police Injury Benefits Regulations only compels a medical examination and/or interview if the police pension authority has considered whether there may be a change in the pensioners degree of disablement, a suitable interval has taken place, and has decided there is enough evidence of that being the case to pass the question of a substantial change, for decision, to the medical authority (negligent or wilful failure to attend said examination only permits a decision being made on the available evidence, attending satisfies this condition – subsequently withdrawing consent is a statutory right and is something else entirely).
You have control over who sees the report. It is in your power to decide that no-one should see it.
Until you see a consent form such as this fully AMR Act compliant suggested example that we have created and the full AMR Act statutory framework explained separately, explain to your force very clearly that you will not tolerate your rights being trampled upon:
This is a guide to your principal rights under the Access to Medical Reports Act, which is concerned with certain reports provided for employment or insurance purposes. Your full statutory rights shall be provided in a separate document. Potentially the occupational selected medical practitioner may have access to your patient record. As a report, based upon medical records supplied by the GP or hospital, is being sought from the occupational selected medical practitioner and an evidence based judgement is asked for, then the Act applies even though the practitioner isn’t directly responsible for your clinical care. This follows Faculty of Occupational Medicine guidance. In line with GMC code of practice, you are a patient of the practitioner even though there is no traditional therapeutic relationship.
You wish to see the report before it is issued. The Selected Medical Practitioner will be informed and will not supply the report until you have seen and approved it. If the Medical Practitioner has not heard from you in 21 days, he will assume you approve and provide the report. When you see the report, if there is anything which you consider incorrect or misleading, you can request in writing that the Selected Medical Practitioner amends the report, but he may not agree to do so. In this situation you can:
withdraw consent for the report to be issued
ask the Medical Practitioner to attach to the report a statement from you giving your views.
agree to the report being issued unchanged. The above will also apply if the Medical Practitioner declines to show you the report (or part of it) because he considers there are special circumstances which are described in the Act.
You can withhold your consent to a report being provided.
“A good blog should be like a woman’s skirt; long enough to cover the subject and short enough to create interest.”
– A Facebook poster (knowingly misquoting Winston Churchill)
There are roughly 57,000,000 adults in the UK. There are approximately 14,000 adults who are medically retired former police officers with injury awards.
There is no lawful authority to treat 0.000246% of the population any differently. The Data Protection Act nor the GMC guidance do not have an exception saying their requirements don’t apply to those with an injury award.
A doctor should gain a patient’s consent before disclosing information to a third party (and that includes a worker who is being examined only for a medical report)
The legal right to see a report in advance and withhold consent only applies to reports from a doctor who is treating them, but the GMC guidance makes it clear that this should apply to all medical reports
Before an employer asks an employee to go for a medical examination for any purpose they should notify the employee what the examination will entail and what the purpose is. The employee should be given the opportunity of challenging any such request if they feel it is unwarranted.
The doctor should confirm that the patient is aware of the implications of the examination and has consented. They should also advise them that they have the right to withdraw consent at any time.
There is no need for the full medical record, nor should information on any other conditions be disclosed unless directly relevant. If the employee is concerned over this they should raise it with the doctor and, if necessary, remind them of the GMC advice
“never to admit a fault or wrong; never to accept blame; concentrate on one enemy at a time; blame that enemy for everything that goes wrong; take advantage of every opportunity to raise a political whirlwind”
– page 219 Analysis of the Personality of Adolph Hitler: With Predictions of His Future Behaviour and Suggestions for Dealing with Him Now and After Germany’s Surrender, by Henry A. Murray, October 1943
Merseyside’s Project Fear has evolved into Project Threat. We’ve tried to point them onto a righteous path but they still do not understand that they cannot threaten to remove an injury award just on the basis of whether or not a questionnaire is completed.
Let us be quite clear for the umpteenth time. There is no power to punitively revoke an injury award.
Regulation 33 of the Police (Injury) Benefit Regulations states that if there is a negligent or wilful refusal to be medically examined then a decision can be made on the available evidence. It does not say an award can be taken away as punishment. In any case this does NOT apply to Regulation 37(1) — Reassessment of injury pension — so far as it relates to the statutory duty placed upon a police pension authority to ‘consider’ whether there has been substantial alteration after a suitable interval.
Only after the police pension authority having considered whether the degree of the pensioners disablement has altered, and a suitable interval has occurred, it MUST then and only then refer the statutory medical question under Regulation 30 (2) (d) – degree of disablement -to an SMP and, a result, it is only then that Regulation 33 can feasible ever apply.
This is an extract from a threatening letter being sent out to disabled former police officers written by Chief Superintendent Chris Markey, who evidently has never read the Regulations in his life.
The obvious reply to such a threat is to ask ‘under what power will you use to suspend my injury award?’. Chief Superintendent Markey would not be able to answer this without either by telling the truth and admitting there is no power or without lying by saying there is and the Regulations permit him to do this (which if you are still in doubt – they don’t). Why would a senior officer debase himself this way? Would he tell an untruth in a criminal investigation to get what he wants?
I recently received a letter from you. Every two years or so I get one. This one suggested that there was an urgent requirement to address the problem of my lack of a questionnaire.
I am sorry, but after all these years my medical condition has not changed, and now I have run out of patience. I understand your need to ensure that people who have an injury award should be considered if there has been substantial change to see if the correct band is being paid, but as someone who never receives a nice and pleasant letter from you just asking ‘how I am and can you help’, I think it’s time you cut me some slack.
I think this and the tone of your letter, and threats of taking my award away, and suggestion that in some way I am a liar is what finally got my goat (I do not actually have a goat either. This is an expression in common usage, although even if I did have a goat I do not believe this amounts to substantial change.)
The questionnaire that you demand of me is rather confusing. You first ask what my injury is. Don’t you know? This seems rather strange. If you need me to explain it then something is amiss already.
If I answer NO to question 2 and declare that there has been no change then is this farce then over? Surely you can’t send me to see a SMP if there there has been no change. The ‘review’ for all it’s purposes is in effect over. Or won’t you believe me?
You then ask me to declare medical interventions. Have you not heard of Chatham House rules? or more colloquially: What is said to my doctor stays with my doctor. Putting confidential medical information on a questionnaire that can be read by all and sundry does not seem to the correct way to process personal and confidential information. The Data Protection Act can be very serious when it comes to medical information.
Throughout the questionnaire you jump from reference to reference. Does “your condition” reference back to the “medical condition” referred to at question 1? Are you surreptitiously trying to determine apportionment in a review!? Don’t you know you can only consider the degree of disablement. I hope you aren’t already trying to declare that an unrelated medical condition has overtaken the index injury – in a tatty questionnaire. Oooh! you are awful!
You then jump to the term “disability”. Does that phrase simply refer back to the “medical condition” or is it meant to encompass something broader? If so, what? You are like a jumping bean, all over the place.
Out of interest have you ever seen the ESA50 form used by the government? This is to do with applying and reapply for a benefit. As you know an injury award isn’t a benefit – it is an award for life and the last decision made by the medical authority is final. But the point is in the ESA50 they don’t just use YES/NO like you’ve done. They have a ‘it varies’ option. This is much nicer. Can I suggest you add it for next time?
I am very puzzled with precisely what way my current ability to drive or ride a motor vehicle or use sporting equipment is relevant to the questions falling for consideration under the Regulations? I would love it if you could explain this to me.
In like terms, please clarify the relevance of any current annual salary to the relevant issue for consideration under the Regulations?
At this point I need you to post to me the last questionnaire I filled in and sent you. I can’t remember ever doing this but I may be mistaken.
I would like to see the answers I put. You must have a copy – how else can you compare what I’ve written then to what I might write now? I do hope you have a copy. Otherwise this might all be a fresh assessment. And that will be a very naughty thing to do.
Is the question of salary limited to income earned from employment or self-employment or is it meant to encompass income from any source (such as investments)? This puzzles me. I’ve read and reread the Regulations and can’t see anywhere, anything that gives you authority to be entitled to that information, and how it touches upon the relevant statutory question.
My Great Aunt Bessy died last year (god bless her) and she bequeathed me her house. I now rent this out. I can’t see how this affects my capacity to earn. Sure the rental income is income, but it isn’t earned income. Could you please help me out with this sticky problem?
As you can see Chief SuperNintendo Markey I do have loads of questions. I herewith give you 21 days to reply. If you fail to reply I may take action to suspend any doubt that you are an idiot.
This is not an action that I would usually wish to take
IODPA is the only dedicated UK charity that supports injured police officers through the ill-health retirement process, injury awards and subsequent injury reviews. Please visit our website at https://t.co/yggO0p16kI or Facebook /iodpaorg. Please RT and support our brave police.
Can’t recommend IODPA enough, Fed reps don’t always know enough about this so excellent source of info & advice for any IOD Officer. You never know when you might need them! Worthy of a follow 👍 https://t.co/GhWSvxO8bo
IODPA is a UK based charity that supports injured police officers undergoing the ill health retirement process, or post employment injury awards and issues such as injury reviews. Please visit our website at https://t.co/yggO0p16kI or Facebook /iodpaorg