medical treatment

“A little knowledge is a dangerous thing” is a slight misquotation of Alexander Pope’s “A little learning is a dangerous thing” dating back to 1774 and we do not think that there is a more appropriate quote that’s applicable to Dr Vivian.

We’ve recently been contacted by more than one pensioner, who have been reviewed by Dr Vivian under regulation 37(1) and have been reduced from band 4 to band 1 with a disability of 0%.

It would be most unusual for one pensioner to be reduced from band 4 to band 1, so what is going on?

Let’s firstly set the scene. Dr Vivian acted as the original SMP for the pensioners granting a band 4 injury pension in each case. He recommended that each pensioner be reviewed in two to three years time, which is now.

It may be worth pointing out at this stage, that such a recommendation is not part of the regulations and is likely to be contrary to the case of Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 (Admin) (16 September 2020) where the judge opined that Police Pension Authority (‘PPA’) cannot make a future decision regarding reviews. They have a duty to ‘consider at suitable intervals’ whether a pensioners level of disability has substantially altered and that decision is based on the here and now and cannot be diarised at a specific date in the future in the same way that Staffordshire Police were wrong to state that they were never going to review. We won’t labour this point here as this is not what this blog is about, but needless to say, we don’t agree with it.

When the pensioners hit their recommended review dates, the forces (conveniently) passed the cases back to Dr Vivian for a regulation 37(1) review. Nice work if you can get it!

Let’s look at the duty that is imposed on Dr Vivian under this reassessment.

Regulation 37(1) says the following –

Reassessment of injury pension

37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

The regulations specify that decision should be passed to a SMP.

Regulation 30(2)(d) says the following –

Reference of medical questions

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

…

(d) the degree of the person’s disablement;

and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

It is abundantly clear from that regulation that the duty, the ONLY duty, of Dr Vivian conducting a 37(1) reassessment is to establish the degree of the person’s disablement today.

We are sure that everyone is aware of the case of Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 (13 October 2010) which confirms that regulation 37(1) is a comparison exercise whereby the SMP has to compare the pensioners current level of disability with their last known position. This can be the original granting of the award, or the last review, whichever was most recent. In order for the PPA to reduce a pension they have to identify substantial alteration (via the SMP) in the pensioners level of disability.

So, the first question that we should ask is did Dr Vivian identify substantial alteration? The answer to that question is a resounding ‘NO’. On this basis alone, Dr Vivian has acted unlawfully as he has not complied with his duty under the regulations.

Instead, Dr Vivian cited R (Metcalf) v Marcus and West Yorkshire Police [2002] EWHC 2892 Admin in order to reduce each of the pensioners on the basis that each of the pensioners has failed to either seek or accept suggested medical treatment, since being retired, for their condition. He has stated that, in his opinion, it is unreasonable for them to not seek or attempt such treatment and has reduced each to 0% (band 1) on the basis that had they done so, they would have substantially improved.

The facts in Metcalf are extreme. Four clinicians had proposed treatment for a serving officer who had a shoulder injury sustained during a struggle with a prisoner in the form of (i) joint injections, (ii) surgical intervention, (iii) desensitising physiotherapy and (iv) pain management but these options had been rejected by the claimant on the grounds that none of it was guaranteed to make him operational again. Unsurprisingly, his refusal was held to be unreasonable and the High Court declined to intervene.

In 2003, no doubt inspired by the case, there was an amendment to the Police Pension Regulations 1987 (‘PPR 1987’), the forerunner to The Police (Injury Pension) Regulations 2006 (PIBR 2006).

The Police Pensions (Amendment) (No. 2) Regulations 2003 inserted the following onto the PPR 1987 –

(1A) For the purposes of deciding if a person’s disablement is likely to be permanent, that person shall be assumed to receive normal appropriate medical treatment for his disablement, and in this paragraph “appropriate medical treatment” shall not include medical treatment that it is reasonable in the opinion of the police authority for that person to refuse.

This amendment made it into regulation 7(3) of the PIBR 2006 –

Disablement

7.—(3) For the purposes of deciding if a person’s disablement is likely to be permanent, that person shall be assumed to receive normal appropriate medical treatment for his disablement, and in this paragraph “appropriate medical treatment” shall not include medical treatment that it is reasonable in the opinion of the police authority for that person to refuse.

Not only has Dr Vivian failed to comply with regulation 37(1) but the keen eyed readers amongst us may have also spotted the flaw with his logic and the application of this outdated case law?

The case law, the amendment to the PPR 1987 and the PIBR 2006 ALL place a duty on the SMP to ensure that the person has received “normal appropriate medical” ONLY when the question of permanency is being considered, and that question ONLY arises during the granting of the original award. Just to reinforce this point, this refers to officers who are going through the ill health retirement process, or are being assessed for an injury award.

Dr Vivian is NOT, in our opinion, entitled to revisit the question of permanency as this has already been decided, and there is NOTHING in the case law or regulations that allow him to apply this test on a regulation 37(1) review and he is therefore acting ultra vires.

What concerns us most, is that Dr Vivian is reducing people’s pensions who are seriously ill. The damage and the stress he’s causing these pensioners is immeasurable with his shenanigans and with his crackpot theories. His previous crusades on bad backs and acceleration has been discredited by the courts and overturned by PMABs.

When is this ultracrepidarian going to concentrate on the medical task in hand and leave the law to those who know what they’re talking about?