medical records

Access to Medical Reports Act

iodpa caselaw, medical records
Access to Medical Reports Act

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

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

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

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

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

From Avon and Somerset Constabulary:

consent
Avon & Som consent form

And from Northumbria Police:

np consent
Northumbria consent form

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

She concludes that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You can withhold your consent to a report being provided.

 

 

 

 

My medical records, not yours

iodpa medical records, selected medical practitioner
My medical records, not yours

“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.

Confidentiality and medical records

  • 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

Project Fear

iodpa medical records, morale, Regulation 33, Regulation 37, Review
Project Fear

“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.

remove award

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?

The questionnaire is a work of pure villainy.

Such guff deserves an appropriate response:

Dear Chief SuperNintendo Markey

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

Yours Sincerely and with love

XX

 

 

 

 

Access to Medical Records

iodpa caselaw, medical records, police injury award, Regulation 37, Review, selected medical practitioner
Access to Medical Records

One of the most sacred principles of law is, that a written instrument must be construed upon the face of it, and that no parol evidence can be used for the purpose of inserting any words not therein contained.

– Sir R. Malins, V.-C, Inre Sayer’s Trusts (1868), L. R. 6 Eq. Ca. 321.

Let’s get one thing straight here, before we begin. For the benefit of any HR managers who do us the honour of reading our well-meant attempts to help steer them along lawful paths, and for the benefit of one Nicholas Wirz who appears to be attempting the opposite:

The Regulations are law, and it is not up to anyone to try to place upon them a meaning which is not there.  OK, that said, let’s get back onto the main topic.

There is a lot of sensitive personal detail in everyone’s medical records. For example there will be references to third parties such as family members, or notes about relationship problems or the termination of a pregnancy. The sort of information which is meant to be seen only by one’s own doctor. It is confidential.

Disabled former officers may not appreciate the implications if they agree to the release of their full medical records to an Occupational Health Department or to a SMP.  People do not tell things to a GP in confidence only for every little bit of information they give to end up being read by employees of a police force. Some doctors argue that if patients feel their entire records are routinely viewed by outsiders patients may decide not to reveal certain conditions to their GP.

We have a right to expect medical confidentiality so why should anyone be conned, coerced, bullied, or baffled into signing away that right?  But this is what happens to disabled former officers who mistakenly give in to vapid threats and sign away their rights, consenting to full disclosure of all medical records since birth.

Not even the Department of Work and Pensions has the power to routinely demand full medical records.  The DWP can only request reports as stated in this link DWP Medical (factual) Reports.

DWP and their assessment providers only request a report where it is needed and not in every case. The medical report you provide will then be considered when producing an assessment report.

NHS GPs are under a statutory obligation to provide certain information to a healthcare professional working on behalf of the DWP, in respect of patients that they have issued or refused to issue a statement, including a requirement to complete IB113/ESA113 reports.  This is implicitly defined in a parliamentary instrument, also known as secondary legislation, namely The Employment and Support Allowance Regulations 2013.  This Regulation refers to evidence provided in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement).

There is no legislation that permits the same disclosure to a police pension authority.  An injury award is not a benefit that has to be reapplied for – it is an entitlement for life and is in effect compensation for work-related injuries.

But despite this, every time a force attempts to review an injury on duty award, without fail they will send out a consent form demanding access to all your medical history.

We believe that, in some forces, this is no more than a ploy to replace records which have been lost or destroyed.

We also believe that any demand for access to medical records so as to process a review of degree of disablement is unenforceable.

We know of instances where former officers have made a request under the terms of the Data Protection Act for copies of all information relating to them held by their former force. They have been told, shockingly, that their occupational health file and other medical records have been destroyed, in line with the force’s retention policy.

‘Destroyed’ is, we suspect with good reason, to be a euphemism for ‘lost’.  All psychiatric/ surgical/ general-medicine consultant reports and other documents of some individuals have been lost by the force since their retirement.  When they joined, full medical records were made available to the force medical officer and if they have since lost them, why would anyone trust them to be responsible with them a second time?  Once bitten, twice shy.

More than this, why do they insist they have a right to any medical records?

You may be surprised to hear that there is nothing that permits them to have any; not partial, not full. None. Zero. Zip. Zilch. Nada.

Long ago and before the all-out corruption of the Regulations practiced by certain forces there was a time when, if a force medical officer had questions about a significant change in an IOD pensioner’s medical condition, they would order a bespoke report from individual’s own GP or specialist.

But Nicholas Wirz, Principal Solicitor of Northumbria Police wishes to change all this.  Amazingly, he thinks GPs are biased and advises SMPs to ignore the opinion of the pensioner’s own doctor.

This is an excerpt from Wirz’s January 2014 SMP training indoctrination course:

This can often be the case with reports produced by a treating physician in support of their patient. The patient may have a very strong desire to achieve a particular outcome (eg medical retirement; an injury award – or larger award; being found not permanently disabled if young in service etc). Applying the facts to the correct legal test may not support a conclusion supportive of the officer/pensioner. This places the treating physician in an invidious position.

Explicitly reaching a conclusion their patient does not desire risks destroying that particular doctor/patient relationship. A common occurrence is for the treating physician to “fudge” the issue. SMPs need to be alert to this and be able to argue why a particular report has not been accepted. Usually this will require an analysis of the correct test and where the report fails to appreciate this.

Wirz proclaims in his guidance to SMPs that all doctors will only tell their patients things that they want to hear, and that physicians commonly fudge the issue.  In other words, his view is that only the SMPs he ‘trains’ are the sole beacon of righteousness in a world full of misguided and fudge-prone doctors.

Hang on a moment. Back up a little and think about this goose and gander situation. What is sauce for one is sauce for the other. If it is OK for Wirz to say that all GPs and specialists can’t be trusted to be unbiased and impartial when writing a formal report on their patient’s condition, then surely it is OK for us to similarly point at all SMPs and say they can’t be trusted to be free of bias and partiality.

Who would you trust most to be truthful and impartial? Your hard working GP, trusted by parliament to issue medical reports to the DWP, embedded in the local community, with years of accumulated trust and confidence stored in their account, or a hired hand, a doctor who comes via his own private limited company with a contract through another private limited company to supply ‘medical services’ to a police force?

This post from February 2015 displays clearly how SMPs inplementing Wirz’s doctrine collude together to persuade themselves that GPs are not to be trusted and that any failure to disclose full medical records is an attempt to conceal from them facts that they can unlawfully use to reapportion or revisit causation – page 2 of the pdf is truly shocking: When SMPs Attack

Wirz continues with his claim that the SMP must demand full access to medical records, despite the fact (conceded in his own words) that the Regulations do not speak of medical records – only medical examination. It seems that in his delusional world a medical examination does not count if the SMP is not able to have prior sight of whatever medical records he demands.

So, if you are unfortunate enough to be knocked down by a number nine bus, does the doctor who arrives by helicopter to treat you at the scene first demand that your full medical records are made available? Why should a SMP need to see that you had measles when you were eight years old, or indeed any medical record which pre-dates the time of the last final decision on degree of disablement? In either scenario, a traffic accident or a review, what the doctor sees before them is what the doctor gets. Sure, they can ask for information, and the individual can chose whether to give it, but there is no way that any doctor can demand information.

Come off it Wirz. A SMP has no need of a full medical history to determine whether there has been any alteration in degree of disablement. If he needs an expert opinion, then he has only to ask the individual’s own GP or specialist for a report.

Wirz offers these words of wisdom to SMPs:

An officer/pensioner who elects not to take a step the SMP considers necessary risks the process being concluded by management: on the grounds that the election amounts to a failure:

“..to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision.”

Where the PPA reaches this conclusion it,:

“.may make its determination on such evidence and medical advice as they in their discretion think necessary.”

Even though the Regulations refer to medical examination and interviews, the provisions have no meaning unless included in those terms are the necessary preparatory steps before those events can take place. A medical examination would be largely meaningless without, eg, prior sight of the relevant medical records. If the SMP considers a step “necessary” then the SMP should direct the officer/pensioner to take it.

This orthodoxy from the book of Wirz is fed SMPs, who foolishly emboldened with the utter tripe that is Wirz’s speciality dish of every day, are now routinely demanding full medical notes from birth.

The trouble for Wirz is that there is in fact no onus on the pensioner to prove that their medical condition has or has not changed.  The last final decision is a given and is the starting point from which the SMP must make the assessment. When a police pension authority tasks a SMP to determine whether there has been any alteration in degree of disablement, the burden of proof rests solely on the police pension authority, via the SMP.

The SMP can’t begin the task by assuming there is substantial change and then asking the pensioner to prove, by submitting medical records, why there hasn’t been. That would be coming at the task from the wrong direction. It would be illogical.

Wirz has taken the words contained in the Police Injury benefit Regulations and has performed with them nothing less than reverse alchemy, turning gold into manure.

The literal rule of statutory interpretation should be the first rule applied by anyone referring to the Regulations. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without seeking to put a gloss on the words or seek to make sense of the statute.

The Regulations state that the pensioner can face only a medical examination. They contain nothing about SMPs trawling through medical records. It is wrong for Wirz to try to insinuate that the provision has no meaning unless full medical records are released.

Medical records are no small thing.  They are intrinsically confidential and a SMP has the same obligations under their regulator (the GMC) and by statute to act impartially and ethically as do the treating clinicians that so often are (according to Wirz) so eager to ‘fudge’ their reports.

The Regulations do not prescribe exactly how a police pension authority or a duly qualified medical practitioner acting on behalf of a police pension authority should set about any consideration but, using the literal rule, if the Regulations required the submission of ANY medical records it would explicitly state as such.   Of course, there is no such mention.

Moreover, any actions taken by a police pension authority or anyone acting on its behalf must comply with the Data Protection Act, the Human Rights Act and all relevant parts of administrative law.  This includes Data Protection Act 1998 – Schedule 1, Part 1, Principle 5. Wherein it is stated that,

‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes’. 

We may well ask then, why do forces think they can hold on to sensitive personal information, including medical records, which has been processed at some point for some purpose, and has then remained unused for years?

And what is the situation should an individual refuse to accede to a demand that access is given to medical records held by their GP?

The Regulations say this:

Refusal to be medically examined

33.If a question is referred to a medical authority under regulation 30, 31 or 32 and the person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then—

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

 (b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.

From this Regulation it is clear that a police pension authority, after a suitable interval and after consideration of the possibility of alteration to the medical condition, has the right to request an individual to subject himself to a medical examination or interview, but has no power to command it.

Note well  – there is no penalty for wilful or negligent non-cooperation. If the police pension authority decides to continue in the face of willfull or negligent non-cooperation then it is permitted to make a decision on such evidence as is available.

Any such decision would need to be rational – that is based on facts, and not punitive. There is no power for a police pension authority to reduce or suspend any injury pension in such circumstances. Such action would be unlawful.

There is nothing that expressively permits a police pension authority or SMP the right to demand that an individual agrees to allowing access to any medical records.

Since the appeal case of Belinda Laws in 2010, those subjected to a review have generally allowed the release of partial notes since the last decision.  Despite pressure from their HR department  those in the know have refused consent for the SMP to access full medical records and only agree to release of those from the time of the last review.

But if you consider that the Regulations do not refer to any medical records at all, then arguably no medical records need be disclosed at all.

This is not wilful, nor is it negligent. Rather, this is a considered and advised decision based on compelling legal knowledge that the Regulations do not permit the SMP to have sight of such records.

It may not be ideal, but that’s the law. We don’t advocate non-cooperation as a tactic, but we do suggest that disabled former officers should be very selective about what medical information, or any other personal information, they chose to divulge to the police pension authority or the SMP. Just because someone asks you for information does not mean they are entitled to it, or that you are obliged to give it.

As former Police Officers there were many times we would have liked to have had access to additional personal information on individuals but the law prohibited it.  This was to protect miscarriages of justice and to protect an individual’s rights to privacy.

When in doubt about why any information is requested, or what use will be made of it, the question to ask the SMP is for them to quote the Act and Section of any legislation which they think grants them permission to obtain sensitive personal information.

It is clear that Wirz, just like Grima ‘Wormtongue’ in the Lord of the Rings, uses words formed as his twisted corruption of the Regulations to manipulate people to nefarious ends. Fooling people by using devious and unscrupulous tactics to obtain irrelevant information is unethical and immoral, and it is certainly harmful to health.

The current Regulations do not serve the purposes suggested by Wirz and can only be interpreted literally and thus it would appear that individuals such as the SMPs who follow the book of Wirz are willing to operate outside the law to achieve their goals.

Unless you want to be reviewed or are currently applying for an award in the first instance you have the option to say no – tell them consent to any medical records is refused and revoked.  Even if you are applying for an award or need to evidence substantial worsening of your medical condition at a review and wish to clearly evidence your index injury, think very, very carefully about disclosing information prior to your injury occurring. Any disclosure has to be relevant to the matter in hand.  A recent, pertinent expert specialist clinical report carries more weight than you suffering from measles at 3 years of age.

No doubt there could be a backlash from the more idiotic of the pension authorities.  You may receive threatening letters from SMPs, Directors of HR and staff officers or even the Chief Constable demanding that you do what they say.  ‘Who are you go argue with us?’,you’ll hear them shout.  But remember these people have never taken the time to read and understand the Regulations and the case-law built around them.

If you are in any doubt then ask the police pension authority the question:

As nothing can be more mischievous than the attempt to wrest words from their proper and legal meaning, will you please explain to me how can a medical examination be interpreted as giving you, yet again, authority to demand access to full or partial medical notes?