selected medical practitioner

Chief Constable Morgan’s open letter

Chief Constable Morgan’s open letter

Today Chief Constable Gareth Morgan, the Staffordshire Chief Constable placed an open letter on his website regarding the forces recent Police (Injury Benefit) Regulations 2006 reviews under Section 37(1), and the recent resignation of his Selected Medical Practitioner (SMP) – Dr Vivian, who informed us last week that performing the role of a SMP in relation to these reviews had, “been a major burden”.

It was our intention to seek permission to reproduce the open letter here, but as Mr Morgan who is a prolific Twitter user, has previously blocked us, we were unable to ask. The article has been marked as an open letter, and so we will reproduce it here in it’s entirety, and also provide a link to the original so you may read it in all it’s glory.

Open letter

21.12.2017

Pension review of retired Injured on Duty (IoD) officers

On 26 April 2017 Staffordshire Police began a pension review of retired Injured on Duty (IoD) officers in accordance with Reg. 37 (1) of the Police (Injury Benefit) Regulations 2006 which places a duty upon the Police Pension Authority (the Chief Constable) to review whether the degree of the pensioners’ disablement has altered. Injury Benefit pensions (commonly known as Injury Awards) are granted to retired officers who have been medically assessed as being between Band 1 (slight disablement) to Band 4 (very severe disablement). By law a review cannot result in an injury pensioner being reduced to less than Band 1 so they are never removed in their entirety.

Since this time, and after confirming my intention to continue the reviews after my arrival as Chief Constable, there has been misinformation and misrepresentation of facts in what appears to be an attempt to besmirch the professional reputation of independent medical practitioners and Staffordshire Police. A small number of individuals have set out to campaign against these reviews in a manner which my staff have described as akin to harassment and intimidation – much of it on line and in the public domain.

I have always recognised that these reviews can cause concern and we have committed to expediting the process for that reason. I recognise that everyone is entitled to a view and are allowed to express it. However, the conduct of individuals is such that the independent Senior Medical Practitioner (SMP) no longer wishes to conduct injury assessments for retired officers at this time. The assertion circulating that the SMP left because he was being required to follow the instructions of the force and act unethically is entirely without foundation.

Every care is taken to ensure the Police (Injury Benefit) Regulations 2006 and related case law are adhered to. I reviewed the process and sought legal and HR advice before confirming my intention to continue the reviews. I am entirely confident that the procedures comply with the regulations and are lawful, both in the way Staffordshire Police conducts itself and in the actions of the SMP.

So far, reviews have commenced for 34 people. To date, 13 have been completed and have reached outcomes, of which four IoD pensioners have had their banding reduced to Band 1. To date, three of these pensioners have stated their intention to appeal as is their right in accordance with the Regulations. Appeals are conducted by the Police Medical Appeal Board, which is independent of Staffordshire Police.

The pension benefit review has not been held in the interests of money saving and no savings are assumed in our forecast budget plans. In fact, the total cost to Staffordshire Police for IoD pensioners amounts to £3 million per annum.

The review is to ensure we are ethical and proportionate in the way that we use public money and to ensure there is a fair and consistent approach to all. The review will ensure that the pensioners continue to receive the appropriate level of award.

I acknowledge we have a duty of care to support IoD pensioners and we are fully committed to providing that support to the most professional of standards. This covers all 360 IoD pensioners we have in Staffordshire. I also have a duty of care to my staff which is why I am writing this letter to iterate that I will not tolerate the treatment they have recently received.

I would ask that everyone reads the information that clearly outlines the review process on our website pages. Appeals, complaints and concerns should be submitted through formal channels and not aired in such a way that discredits the working practices of my colleagues who are simply carrying out their lawful and legal duties.

Gareth Morgan

Chief Constable, Staffordshire Police

21 Dec 2017 17:00:08 GMT

https://www.staffordshire.police.uk/article/8802/Pension-review-of-retired-Injured-on-Duty-IoD-officers

He has stated that reviews are not being conducted to save money.

He has also stated that no-one can be reduced below a band one, despite Staffordshire Police clearly threatening to suspend awards if the IOD does not comply with their demands. (here is the before and after).

What saddens us is the need to blame extremely poorly pensioners for the reason for Dr Vivian to withdraw from the process.

We wonder how the Regulations and case law is being adhered to when we read there are at least three pensioners who are appealing.

Also, what was the end result of the other nine pensioners?

We notice that Mr Morgan has blocked any comments being placed after the article on the Staffordshire Police website, which sort of makes his rant one way. Never mind, we’ll be happy to accept your comments! As always, please make them constructive.

Finally we have to ask, is a “Senior Medical Practitioner”, a SMP who is somehow superior in position or authority to an ordinary “Selected Medical Practitioner”? Answers on a postcard.

Icarus – Injury reviews, too hot to handle.

Icarus – Injury reviews, too hot to handle.

Icarus : the son of Daedalus, tried to escape imprisonment by flying with artificial wings made of feathers glued together with wax. He flew too close to the sun, which melted the wax. Icarus fell into the sea and drowned.

Wednesday 13th December is a day that injured on Duty Pensioners in Staffordshire and across the country will remember for a long time to come.

On that date Dr Vivian, the SMP contracted to conduct Reg 37 reviews, has with immediate effect, RESIGNED from the process, stating that it has, “been a major burden”.

By a strange twist of synchronicity, Dr Vivian conducts his business through his company called Icarus Ltd. It seems that Dr Vivian has found things too hot for him. We have no wish to see him come to harm and his resignation may well be an honourable reaction to being in a situation which compromised his ethics.  But, will his departure cause those in charge in Staffordshire Police to give any thought to the adverse physical and psychological affect that the reviews are having on the disabled pensioners themselves?

Many of you will know, that since the summer, Staffordshire Police have been ruthlessly pressing ahead with reviews, with virtually every reviewed pensioner being reduced in banding or having been unlawfully threatened with loss of their pension for not providing their full medical notes or completing a questionnaire.

Dr Vivian has been at the heart of these reviews. Although pensioners are stating that he has been nothing but courteous and polite, he has been reducing people unlawfully and he has been making outrageous demands for medical records to which he, and the police pension authority, are not entitled. It is bad enough that Dr Vivian and his employer have been acting outside the law, but it is beyond all bounds of normal decency that the actions are accompanied with threats.

We believe that Dr Vivian is a decent physician who appears to have been misled by those paying his fees. His attendance at the laughingly mis-named National Welfare and Engagement Forum (NWEF), lair of the infamous and erroneous Nicholas Wirz and cronies, suggests that his independence is questionable. At those meetings he will have been subjected to abundant bad advice and copious misinformation concerning the duties and legal restraints which apply to the conduct of injury pension reviews.

A doctor should always look after his or patients without causing harm or unwarranted distress. Did Dr Vivian come to realise that he was being forced to sell his soul?

We understand that Dr Vivian has recently been under an enormous amount of stress over performing the role of the SMP during these reviews. This may have been caused by Staffordshire Police putting pressure on him to obtain the results that they want rather than leaving to him providing a fair independent expert assessment.

Dr Vivian has stated of SMP work that, ‘. . . it has a reputation of being highly contentious“. We at IODPA say in response, that If all reviews were conducted properly and fairly under the Regulations, then then there would be no need for stress and contention.

The SMP’s departure leaves Andrew Coley and Chief Constable Morgan in a predicament.

Do they now follow Avon and Somerset Constabulary who terminated reviews in June this year or do they continue to waste tax payers money on pursuing reviews?

IODPA continues to closely monitor events and sincerely hopes that Dr Vivian’s resignation will signal the beginning of the end of unlawful reviews and the abhorrent threats and intimidation which too many vulnerable disabled pensioners have been subjected to.

When David Lock QC Speaks the World Listens

When David Lock QC Speaks the World Listens

“Better to illuminate than merely to shine to deliver to others contemplated truths than merely to contemplate.”
― Thomas Aquinas

The speaking style of judges in judicial review transcripts can be incredibly hard to decipher, and we know it.  In judgements, the sentences start here, twist there and double back so many times that non-legally trained minds might give up trying to pin down what is being said.

That is why we give a shudder of relief when David Lock shines light on otherwise complicated matters.  For the second time this month we have seen another excellent piece on police injury pension decisions:

The duty on Medical Authorities to resolve factual issues when making police injury pension decisions.

The last opinion piece I posted about police medical pensions has been read nearly 5,000 times. This suggests that there is considerable disquiet

David touches on an much-missed judgement that holds selected medical practitioners to a civil standard of proof – a judgement that we have read before but honestly failed to detect the power of what his Honour Judge Davies said in the 2011 decision of Williams v Merseyside Police Authority.

Mr Williams was the first “anor” in the 2010 Doubtfire & Anor  v West Mercia Police Authority & Anor.  The second “anor” was Merseyside Police.  David Lock was the QC who won both the Doubtfire (and anor) judicial review and the sole Williams judicial review for the former officer.

Police officers with broken minds and bodies suffer huge personally trauma by being injured.  This life changing injury puts an end to not only a career, but a vocation and, sadly, often their family and personal life.  Then the malice that lives in the hearts of police forces places further purgatory by forcing former officers to chase their entitlement by going to court.

Please take a minute to consider that Mr Williams was medically retired on 4th September 2006.   He attended his first judicial review on 30th April 2010.   The second was held 13th April 2011.  Take stock of all the HR letters he has received, the work he has done with his legal team, the assessments he has attended: the intense and full force of the bureaucracy he faced! Just to receive what he has always been due.

Lest we forget the trauma placed upon those injured on duty by police pension authorities.

With due reverence, time to be moving on. Justice Davies started his judgement of the 2011 decision by making reference to the saga that Mr Williams has been forced to endure when he said:

“Mr Williams’ application for an injury pension already has a protracted and unfortunate history.

We’ve talked before about Mr Williams and how the SMPs, Dr Vincenti and Dr Staley, disagreed with each other about the exact name of Mr William’s diagnosis.  You can refresh your knowledge here.

In David Lock’s LinkedIn opinion piece he talks clearly about the grey area between medical and legal decision making.  The piece speaks for itself and we can not do it justice by commentating on it.  We wholeheartedly recommend it as essential reading.  Doctors who work as SMPs should take stock that hiding under the title of doctor does not absolve them from following the law.  Clearly, what has been ruled in previous case law applies to them just as much as it does to the police pension authority.

We will however touch on the Williams case.  It is worth remembering that this concerned an original decision. Specifically, the issue of causation.    Upon review under Regulation 37 the room for manoeuvre of the medical authority is significantly narrower because of the decision of the 2010 Court of Appeal in Metropolitan Police Authority v Laws.

After the 2010 case of Doubtfire the decisions were quashed and Mr Williams had to see the same PMAB (the “Board”) panel for a re-determination.  Bizarrely instead of producing a fresh report, it simply produced an addendum to their original report, entitled “reconsideration following judicial review”.

The case discussion by the Board involved a lot of umming-and-ahhing over what was, and what was not, supported by the evidence.  The Board was attempting to unravel some of the accusations of bullying  and they observed that there was a difference between Mr Williams’ account of events and that of  a Sergeant Hilton and an Inspector Fitzpatrick.

Merseyside lost the judicial review on several points but the most relevant point for us today was that the Board based decisions on one party’s perception of version of events at the expense of the other party.  This is one thing that David touches on in his opinion piece when he says

The SMP and the PMAB is not entitled to rely on the finding of the Force uncritically but needs to form its own view of the truth.

Justice Davies made it clear that the medical authority can not selectively weigh evidence depending on who is the evidence giver. Justice Davies said in the judgement:

 It does however appear, when read with the rest of the letter, that the Board’s approach was that it was only prepared to accept evidence from Mr Williams which was either proved by independent evidence or not disputed by the Authority. It appears that the reference to seeking additional information is a reference back to the difficulty they had in interpreting what Inspector Fitzpatrick had said. However the end result appears to have been that in the absence of additional information they simply took what Inspector Fitzpatrick said at face value and decided the issue against Mr Williams on that basis.

It’s worth contemplating that for a second.  The medical authority would not consider anything not disputed by the police pension authority or not independent.  Such blatant partisan and excessive zeal in refusing to hear the other side of the story, or to refuse the giving of context to dry medical records,  belongs more to the spectacular miscarriages of justice seen in 18th century than the United Kingdom in the 21st Century.

We often hear anecdotal situations where the medical authority (the SMP) blithely casts aside a letter from a patient’s General Practitioner, or where the SMP takes great care to give weight to the force’s submission but states that the patient’s own clinicians would be bias and too over-favourable.

Or an often repeated situation where the SMP refuses to listen to the oral submissions of the former officer sat in front of him and solely only thinks “what is written is truth” and discounts the medical opinion he doesn’t agree with without reasoning why the evidence is rejected. Like the Board in the Williams case, this will always produce a result which was unfair to the former officer, and which is not a decision on the civil balance of probabilities.

An even greater travesty is where the medical authority pre-determines any decision in the to and fro  communication with a HR manager prior to the actual date of the former officer’s assessment.  Such happenings have occurred between Dr Vivian and Staffordshire’s Andrew Colley.

Holding the title of a doctor does not excuse one, when acting as a SMP, in failing to apply the civil standard of proof.

Re-reading the Williams judgement with fresh eyes has been revealing.  We again thank David Lock for shining a light on how the law shall be applied.

 

 

 

 

SMPs Have No GMC Immunity

SMPs Have No GMC Immunity

…the moment you declare a set of ideas to be immune from criticism, satire, derision, or contempt, freedom of thought becomes impossible.”
[Defend the right to be offended (openDemocracy, 7 February 2005)]”
― Salman Rushdie

Pop quiz:  Have you heard of  General Medical Council v Meadow [2006] EWCA Civ 1390.  It was a judgement handed down by the Court of Appeal on 26 October 2006.

No?  Doesn’t ring a bell?  You are not alone. We’ve read the majority of literature published on selected medical practitioners (SMPs) and the relationship they have with the Police Injury Benefit Regulations but had never come across this case law either.

General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006)

You are here: BAILII Databases England and Wales Court of Appeal (Civil Division) Decisions General Medical Council v Meadow [2006] EWCA Civ 1390 (26 October 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/1390.html Cite as: [2006] EWCA Civ 1390, [2007] ICR 701, [2007] QB 462, [2007] 2 WLR 286, [2007] LS Law Medical 1, [2007] 1 FLR 1398, [2006] 3 FCR 447, [2007] 1 All ER 1, 92 BMLR 51, (2006) 92 BMLR 51, [2007] Fam Law 214, [2007] 1 QB 462, [2006] 44 EG 196

We have read, however, that Nicholas Wirz, solicitor for Northumbria police, thinks the GMC code of ethics and GMC guidelines are irrelevant to the function of a SMP.  He essentially has been advising that SMPS can behave badly towards IOD pensioners with no consequences from the GMC.

Remember, Wirz is the chap who is busy advising Staffordshire and Nottinghamshire how Regulation 33 can be stretched as thin as a cheapest, gossamer see-through pair of budget nylon tights. The visible result of this self-appointed quasi-guru’s meddling is that disabled former officers are seeing their injury pensions unlawfully reduced from band four to band one. The not so visible result is traumatised, bullied, frightened disabled former officers, many of whom are vulnerable due to mental health problems, and who feel they have no way of challenging the appalling behaviour of some SMPs.

Wirz says in his training material to SMPs

The GMC believes it has jurisdiction over medical practitioners performing a statutory function under the Regulations. Officers/Pensioners commonly make complaints to the GMC against both SMPs and those other medical practitioners the SMP instructs to assist with and inform the SMP process.Para 5.1 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

And then he continues to assert that this belief is mistaken:

The SMP takes their authority from the statute as interpreted by the courts. Does the GMC have any locus in these circumstances? In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of CoronerPara 5.2 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

So where does this proclamation by Wirz that the GMC has no jurisdiction leave us? In the training material referred to above, Wirz makes no reference at all to General Medical Council v Meadow. Why? We can not believe he is unaware of the case, nor fully cognisant of its implications for SMPs. Asking as we are, in this rhetorical way, it seems the judgement has some of the characteristics that Wirz would like to ignore. So he has done just that – he does not mention it. Wirz’s modus operandi is to present only material which appears to support his peculiar, warped, biased and objective-driven view of the Regulations.

This case concerned Professor Sir Roy Meadow, the infamous paediatrician, and his evidence in the case of Sally Clark, who became the victim of a miscarriage of justice when she was found guilty of the murder of her two elder sons.

The Fitness to Practise Panel (FTPP) of the GMC found serious professional misconduct to be proved, and ordered Professor Meadow’s name to be erased from the register. Professor Meadow appealed both against the finding of serious professional misconduct and the sanction of erasure.

The GMC had sought to protect the public by removing Meadow’s registration. This action was in response to his serious professional misconduct, or impaired fitness to practice, which was evidenced by testimony given by him in a criminal court. The doctor’s appeal was based on a claim that the evidence given by him in court was privileged. Immunity is a common law concept. It is given to witnesses to encourage them to give evidence, and to avoid multiplicity of actions.

Meadow won the appeal on the argument that the purpose of the GMC’s FTP (fitness to practice) proceedings is not there to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those doctors who have shown they are not fit to practise.

In other words the FTPP should look forward not back, and the FTPP got this wrong, so the GMC appeal failed.

The important part of the ruling is that the court did however rule that the GMC did indeed have the jurisdiction it claimed. There is no blanket immunity permissible for doctors to never be referred to the GMC for misconduct or impairment to practice. It depends on the type of misconduct or impairment.

Master of the Rolls Sir Anthony Clarke covered the GMC’s statutory function, powers and duties of the GMC as governed by the Medical Act 1983;

  1. It is I think inconceivable that the draftsman of any of these provisions could have thought that a person against whom there was a case to answer that he was guilty of serious professional misconduct or, now, that his fitness to practise was impaired, would or might be entitled to an immunity of the kind suggested here. Such immunity would, to my mind, be inconsistent or potentially inconsistent with the principle that only those who are fit to practise should be permitted to do so.

So on the matter of granting an immunity which had not, up to 2006 been explicitly recognised, the judge considered that the immunity did not need to be absolute.

There was no reason why the judge before whom an expert gave evidence (or the Court of Appeal where appropriate) should not refer his conduct to the relevant disciplinary body if satisfied that his conduct had fallen so far below what was expected of him as to merit disciplinary action.

Master of the Rolls Sir Anthony Clarke said in his judgement,

However, I should say at once that in this regard I accept the submission made by Mr Henderson on behalf of the GMC. It is that, although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public’s health and safety enshrined in the GMC’s statutory duty to bring FTP proceedings where a registered medical practitioner’s fitness to practise is impaired. A similar point can be made in the case of other professions and occupations, with more or less force depending upon the particular circumstances.

Meadow seemingly won the appeal on a technicality of the failings of the FTPP  – not because the GMC’s FTPP did not have jurisdiction.

All the doctors brainwashed by Nicholas Wirz via his ramblings presented at meetings of the NWEF and at the College of Policing should realise that the equivalent immunity from professional regulatory investigation or proceedings, which Wirz tells those gullible enough to listen to him applies to SMPs, has been held by the Court of Appeal to be contrary to the public interest in the case of expert witnesses.

Nowadays, the GMC has the Medical Practitioners Tribunal Service (MPTS).  Whether or not the GMC case examiners or the investigation committee are satisfied that there is a realistic prospect of establishing that the doctor’s fitness to practise is impaired, and so refers complaints to the MPTS,  is down to the facts of the matter being alleged.  Perhaps the conduct does or doesn’t touch on fitness to practice issues.  Maybe the matter concerns a breach of GMC guidance such as failing to treat the former officer as a patient or to ignore the requirements to disclose medical reports BEFORE disclosure to the force.  Guidance such as this  Confidentiality & Disclosure GMC.

But the take-home here is that Wirz is wrong yet again.  How many vulnerable former officers have not pursued complaints because he has told them the SMP is out of bounds?  Perhaps even Wirz knew about the GMC v Meadows judgement and wanted to bamboozle those about the threshold level required for the GMC to act. Who knows.  We know that there is a world of difference between “no jurisdiction” and  the threshold of fitness to practice to ensure patient safety.

In following this Court of Appeal, there is no exception. The GMC does not aim to resolve individual complaints or punish doctors for past mistakes, but rather to take action where needed in order to protect patients or maintain the public’s confidence in the medical profession.

You do know now, though, that any SMP who claims immunity from GMC ethics or guidelines, or claims that you are not his or her patient needs to read the above Court of Appeal judgement.

If you feel a SMP has harmed your health by his behaviour, or by his failure to put your health first, or by making unreasonable demands causing distress, such as insisting you travel a distance to see him or her, provide medical records from birth, or threaten you with reduction on your injury pension if you do not comply – or any other behaviour or omission which adversely impacts on your health, then complain to the GMC.

You are a ‘patient’ in the eyes of the GMC, and you have the right to be protected from doctors who are unfit to practice.

Quasi-Judicial: What It Is & What It Isn’t

Quasi-Judicial:  What It Is & What It Isn’t

“Who are you to judge the life I live?
I know I’m not perfect
-and I don’t live to be-
but before you start pointing fingers…
make sure you hands are clean!”
― Bob Marley

Some SMPs have acquired a fundamental misunderstanding of what is meant by them acting in a quasi-judicial capacity when conducting their part in a review of the degree of disablement in respect of the injury pension of former officers.

They have gone so far, in some instances, of thinking they have the power to direct IOD pensioners to do certain things – like handing over their medical records from birth, or travelling many miles to attend an appointment at the convenience of the SMP. Some try, (and fail) to forbid the pensioner having a friend, supporter, carer or chaperone present during a medical interview or examination. Some, in the grip of their delusions, have taken to calling a medical examination a ‘medical inquisition’. One SMP even thinks she is a Judge and is in the habit of ordering all and sundry to do her bidding, but we discount the rumours that she has a wig and ermine trimmed robe which she secretly wears in the bathroom at home.

The plain fact is that SMPs and even Police Pension Authorities, under whose authority they act, have no power to command or demand anything of a police injury on duty pensioner.  Merseyside police recently came a cropper on this exact same point by capitulating on a judicial review.  Ron Thompson of Haven solicitors said,

“This was an unnecessary and totally avoidable dispute. All the Chief Constable’s staff had to do was to read the wording of the Regulations to see that they had no power to force former officers to hand over medical notes or fill in questionnaires, particularly in advance of any decision to make a referral to the SMP. The lesson from this episode for Forces is that no amount of misguided “advice” from the National Attendance Management Forum can change the meaning of the words of the Regulations.
Any other Force that tries this tactic can expect to be served with the same type of legal challenge”

Yes, you read that right. No power whatever. If any HR manager, SMP or Police Pension Authority thinks otherwise, then IODPA has just this to say to them – ‘See you in court.

At review, a SMP is required to make a decision. That’s it. That all parties are bound by the final decision (final if not appealed) is where the quasi-judicial bit comes from, and that is where it ends. The SMP’s decision is an action taken on behalf of a public administrative agency, the police pension authority, and a SMP is obliged upon to decide a question as the foundation for official actions. In plain words, they make a medical decision, and hand that decision to the PPA. A decision, only once made and so final that the PPA has to act in accordance with it, and is forbidden to alter, change or dismiss or get HR to pipe into a magic calculator to spit out a band one, is de facto a quasi-judicial decision. The decision.  Not the process or the process maker.

But let us delve into the murky world of SMP’s enthusiastically failing to act as an independent arbitrators. It is a fundamental requirement that any decision-maker should be impartial. ‘Disinterested’ is the word – have no axe to grind, nothing to gain or lose by making a decision, neither having the interests of the pensioner or the PPA in mind, but being a servant of the law, medical ethics and of reason. Making a decision on verifiable facts and on professional opinion, and being prepared to explain and justify that decision.

We would like here to focus on the antics of one SMP – Dr Charlie Vivian, who works as SMP for Staffordshire PPA (police pension authority). (A reminder to readers – the PPA is none other than the Chief Constable alone.)

Dr Charlie Vivian says the process, his process,  is quasi-judicial, but we are not convinced he understands what that means. His actions indicate he thinks he has unbridled power, including the right to discard the normal legal and ethical standards of conduct required of a decision-maker.

At a rare and brief resumption of normality, the National Wellbeing and Engagement Forum (formerly the NAMF) reconvened in September after their lack of members hiatus, and Dr Vivian sat at the same table as Andrew Colley of Staffordshire HR.  This is unacceptable. Wouldn’t it be quite a thing for a judge or a coroner to seen hobnobbing over lunch with representatives of the prosecution and having discussions during the course of which the acceptability of process is discussed in the absence of the defendant and the public?

This behaviour would not serve the best interests of open, transparent justice but it’s sadly happened before. Health Management Ltd. has a Home Office contract to run police medical appeal boards but they only recently realised attending NWEF/NAMF compromises their independence. Or perhaps they knew all along but thought that nobody would notice, or care.

Their realisation of the bias was minuted in the June 2016 NAMF conference


This never stopped the chair of HML (and therefore head of all PMAB panelists) regularly attending NAMF himself whilst on the side labeling himself as a consultant of HML and giving speeches to the Association of Local Authority Medical Advisors (ALAMA) on the pitfalls SMPs face at PMAB hearings.

Take a look at this agenda of a 2012 ALAMA conference

Wallington spent 45 minutes advising SMPs about how to avoid the pitfalls for the unwary at a PMAB.  Perhaps Wallington should perform the same service for those disabled former officers who are forced to attend PMABs because of an unjust SMP decision?

The Home Office has declared via a freedom of information request that very same Dr Wallington is the only PMAB panel member to attend a NAMF conference.  Just look at question 5 found towards the bottom of this request:

34242.pdf

This is an HTML version of an attachment to the Freedom of Information request ‘ Police Medical Appeal Board’.

Vivian claims he acts in a quasi-judicial capacity, but like Wallington, the company he keeps seems to suggest he is in cahoots with one side to the detriment of the other.  What legal precedent does Dr Vivian rely on in the quasi-judicial matters in hand? First off, he thinks he is a coroner.  Secondly, he thinks the Scottish high court judgement of Rooney v Strathclyde 2008 empowers him to be a coroner.  The Rooney case is not dissimilar to the England & Wales judicial review of Sidwell v Derbyshire 2015.  Both say a court only has limited scope to interfere with medical opinions supporting decision to compulsorily retire a police officer.

We’ve delved into the inner workings of the Internet and found the Rooney case.  Here is it is:

MATTHEW ROONEY Petitioner; against STRATHCLYDE JOINT POLICE BOARD

There is the not insignificant matter that Scottish courts have no judicial precedent over England & Wales as Scotland has a different legal system.  Judicial precedent refers to the set of rules specifying when a court must have regard to, or consider, the decision of another court, and the circumstances in which the decision of that other court is binding. What is decided in Scotland applies only to Scotland.

Quoting a Scottish court decision to support a view is rather like claiming that as they drive on the right in Canada, then it is OK to do so in Burton-on-Trent.

Vivian also has the problem that the Rooney judgement, read in its entirety, does not give SMPs in Scotland the quasi-judicial power he purports it does.  In fact the only reference to the term “quasi-judicial” comes from an extract from a letter written by the solicitors for the Medical and Dental Defence Union of Scotland (MDDUS) to palliate the position of the SMP, a Dr Patience.

The purpose of the letter was to inform Rooney’s solicitors that the MDDUS was content that Dr Patience’s decision should be defended by Stathclyde Joint Police Board,  and that Dr Patience would not therefore be taking part in the proceedings.

The judges in the Rooney case didn’t say, as claimed:

The regulations required him to act in a quasi-judicial capacity and to construe complex regulations that have been the subject of repeated litigation in recent years, and to grasp legal distinctions of some nicety … However, he did not have the benefit of a legally qualified clerk or assessor.

The above was actually quoted in this letter from the SMP’s professional body, the MDDUS.  So Dr Vivian is using a quote from a letter, referring to a Scottish court case, from a professional body representing the very doctor whose decision is being challenged, and is claiming this as a legal precedent and therefore case law!  Wow … just wow.

We don’t expect our lawyers to be experts on medical matters, and neither do the Regulations expect SMPs to be experts on legal matters. They have to follow the Regulations, and if they need guidance in that respect, they should be able to rely on their PPA. As so many PPA’s have little to no grasp of the requirements of the Regulations, and as the Home Office has decided not to issue any more guidance, SMPs have been turning to the biased and plainly wrong opinions presented by the likes of Nicholas Wirz, via the College of Policing and the NWEF.

That is a recipe for disaster. Just as our wrong-headed driver in Burton-On-Trent would discover.

So back to our quasi-judicialness.  The decision of a SMP is final and is binding on all parties (save if appealed via Regulation 31 or Regulation 32) or challenged by way of judicial review.  This is the only meaning implied by the Regulations in a judicial sense.

Scotland has The Crown Office and Procurator Fiscal Service which is the independent public prosecution service for Scotland and is an inquisitorial legal system where the court or a part of the court is actively involved in investigating the facts of the case.  England & Wales does not have anything remotely close to this.

Dr Vivian, the NWEF, and Wirz should not be quoting Scottish law to bolster their biased and self-serving perversions of the Regulations. That itself is bad enough, and is unprofessional in the extreme, but we are appalled to see them use these false arguments to attempt to bully and bluster vulnerable disabled people into compliance with their extra-regulatory demands.

The role of a SMP is not quasi-judicial.  The decision of a SMP is quasi-judicial insomuch that it is a decision which invokes finality and has to be implemented. Dr Vivian, please take note.

 

 

 

 

 

Judge, Jury And Jackass

Judge, Jury And Jackass

“One’s dignity may be assaulted, vandalized and cruelly mocked, but it can never be taken away unless it is surrendered.”
― Michael J. Fox

There is a selected medical practitioner.  Let us be irreverent and childish and call him Dr Brush.  Dr Brush works for a particular force but sometimes he extends his range.  On one such occasion he came South, the midlands in fact, to perform a Regulation 37 review as the incumbent SMP of that parish had breathed his last breath.

On a midwinter’s morning there were two doctors sat behind a desk.  One was Dr Brush, the other was a specialist in his particular arena.  Across the desk from our two medical practitioners sat three members of the public.  Perfect in their own way, there was nothing special, remarkable or wondrous about these three other people other than one was entitled to an injury award – and accordingly Dr Brush thought this individual had no rights – and the remaining two were there to give much needed succour.  Indeed even in the surreal world of injury awards, Dr Brush must have surely been of the opinion that two doctors to one vulnerable person without any companionship would be … Oppressive? Intolerable?  Overwhelming? Abusive? You choose the appropriate adjective.

So there were five people in this room.  The medical examination under Regulation 37 “took place”.

For 200 minutes the “interview” raged.  Voices were raised.  Tempers flared.  Dr Brush thought he had evidence of substantial change but would not tell the three sat opposite him what that change was supposed to be. And then it was over, in a manner not unlike an EU/UK Brexit negotiation, without a standout conclusion.

Dr Brush had burnt himself out red faced and confrontational; the specialist was no doubt thinking along the lines “what is this corruption of an assessment“; the person with an injury award was in tears and inconsolable and suffering the manifesting agonising symptoms of the PTSD they suffered from; and the accompanying friends were thinking what corner of hell were they just privy to.

Within days the  specialist disqualified himself from the debacle – he said he can’t be party to such an intimidating process.  Mr Brush did the same but for different reasons – now without an ally he was open to be discredited and he begrudgingly walked away only after igniting a bomb – he dropped the microphone with menacingly aplomb.  Brush wrote to the midland based police force and told them the person with an injury award failed to attend a medical examination by failing to answer his questions.  The Kafkaesque interpretation is that Dr Brush did not get the answers he wanted.

Within days, thinking their ships had all come in at once with the green light from Dr Brush, the police force removed, totally and entirely, the injury award.  Suddenly the cogs of justice clunked together and a solicitor put a stop to this madness.  The injury award was restored but missed the following payroll.  Six weeks elapsed before the victim received the money they had always been due.

Roll on to the present to Staffordshire and a Dr Charlie Vivian.  Andrew Colley, the HR operative in Staffordshire has given several dates for people to see Dr Vivian.  You see, the paper-sift potential of only sending certain select individuals seemingly ripe (to Colley) for reduction through questionnaire answers has been denied to Mr Colley.  Arguably the mass review program should end here but Colley thought he had no other option but to give dates to see the SMP.

These dates were booked for late August but Staffordshire changed its mind (or Dr Vivian was otherwise engaged) and rearranged them for mid-September.  Some people were to see Dr Vivian locally in Staffordshire, some will have to travel a 180 mile round trip – it being 90 miles to Dr Vivian’s office in Cheltenham.  The arbitrary criteria to travel (or not) seemed to be based on gender.  Males got Cheltenham, females Staffordshire.

All these appointments were made with full knowledge of what the person with the injury award had or had not disclosed.  The dates were rescheduled with the same insight.

Just a matter of days before the attendance, Dr Vivian has cancelled indefinitely all the appointments on the basis that he now demands to have full medical records – the only permissible redaction he allows is where the medical records show third party identifiers of family members.

You see, Vivian – like Brush – think they are judges and that they can subpoena people to conditionally attend only if they provide full medicals from birth and that this conditional attendance isn’t under duress – no, it’s of your own volition apparently.  You “shall” do this and you “shall” do that but you shall do this willingly “or else“.

Incidentally Vivian is using the same terms inventing his quasi-judicial power than Brush used.  Coincidence?  We think not.

Staffordshire thought that by doling out dates they could pass their problem of fishing for change to justify a review to the SMP. Vivian doesn’t seem to want to play ball so he has bounced the conditional threats back to the vulnerable and disabled former officer.  DCC Baker recently told Police Oracle that no awards will be suspended.  Will they use Dr Vivian’s teddy and pram Olympic throwing event as a gold opportunity to renege on this?  If they believe Vivian’s whining remonstration then it seems judicial reviews on this matter are inevitable.

Now there is the self-made ignominious fiasco of a police pension authority (Staffordshire) trying to use the SMP to leverage compliance.  Just like Dr Brush used his position to bully and intimidate a former police officer with a psychological illness.

We remember how Dr Philip Johnson dug himself into holes by blustering and flustering when dealing with the now cancelled mass review program in Avon & Somerset.  History seems to be repeating itself.  No one working for the police seems to learn.

We thought you should know…

 

 

Contractors, Ethics & the College of Policing

Contractors, Ethics & the College of Policing

“Education without values, as useful as it is, seems rather to make man a more clever devil.”
C.S. Lewis

The administration of injury awards is a racket: given what disabled former police officers have had to suffer at the hands of corrupt doctors acting for police pension authorities, aided and abetted by the astounding ignorance of HR departments, it’s fair to say that’s a given. But unless you’ve had personal experience of the devious workings of those who are responsible for the administration of police injury pensions you probably have no idea just how much of a racket it has become.

If you ever have to deal with Inhuman Resources or any (oh-so-carefully) selected medical practitioner used by them then you know that you get sucked into a system which taints almost everyone it touches with corruption so flagrant it’s hard to believe such a thing could be possible in hyper-regulated modern Britain.

All the current platitudes coming from Parliamentary candidates in the upcoming election and media focus about police numbers is so ignorantly abstract when it really boils down to the realism of what happens to those injured on duty that face the system.

The system is run so that a very small band of favoured occupational health companies provide nearly all the SMP services used by police pension authorities. They have cornered the market, with the active connivance of the NWEF. They get their snouts in the trough, grab as much public money as they can, and leave the patsies in HR to take the flak. Outsourcing is the new game now, with forces handing over what should be their responsibilities to private limited companies whose morals and ethos are moulded entirely around the bottom line of the balance sheet.

Even the police medical appeal boards (PMABs) are outsourced to a limited company, Health Management Limited (HML).

Occupational health doctors who act as SMPs mirror HML and set up their limited companies in dubious, but no doubt tax-efficient, manner.

We see that commercial basis as being the driver which impels some SMPs to revel in creating unjustified appeals, by flagrantly disregarding the Regulations and case law, as a means to further their pay-packet in attendance costs. They know that a PMAB will either side with their crass decisions or make a new one. Either way, this lets the SMP off the hook. If there is a judicial review, it is the PMAB and the police pension authority who appear as respondents. The SMP is left free to continue their abuse of the law and of vulnerable and damaged individuals.

Some of these decidely dodgy SMPs work in tandem with a more malevolent master.  For instance, Dr Jonathan Broome.  He is Northumbria’s resident SMP, and seems to be going for the world-record of mentions in High Court decisions purely because he is unable, or unwilling, to say no to his colleague, the solicitor of Northumbria police, Nicholas Wirz.  Ever eager to push their own twisted and perverse take of the Regulations to judges, the dreadful duo are evidently so cold-hearted they never care about the morality.

But morality matters. Ethics is not just a necessary but inconsequential something which SMPs have sworn to when taking the Hippocratic oath. Some SMPs have abandoned the first ethical principle – to do no harm. For that alone their failures need to be challenged.

But would you believe that there is a “Code of Practice for the Principles and Standards of Professional Behaviour for the Policing Profession of England and Wales” which actually applies to people like Broome or Dr William Cheng, even if they are only a fleeting and temporary SMP gun-for-hire?

Quite by accident, we’ve discovered that the College of Policing’s code of ethics actually stretches itself to cover any person engaged in any work for any police force.  Subcontractors are covered and it matters not if the contract agreement to provide the SMP service is verbal, written in stone, toilet paper, carefully scribed in blood, is on vellum or scribbled on the back of a fag packet.

Here it is:

1.3 Scope of the Code
1.3.3
This includes all those engaged on a permanent,
temporary, full-time, part-time, casual,
consultancy, contracted or voluntary basis.

The code of ethics demands honesty, courtesy, equality, the ability to follow the Police Regulations and confidentiality. Let’s look at the scope and detail, and wonder as we do so just how the likes of Broome, Cheng, Nightingale and others square this code with their behaviour.

Standards of professional behaviour
1. Honesty and integrity I will be honest and act with integrity at all times, and will not compromise or abuse my position.  4 6. Duties and responsibilities I will be diligent in the exercise of my duties and responsibilities.
2. Authority, respect and courtesy I will act with self-control and tolerance, treating members of the public and colleagues with respect and courtesy. I will use my powers and authority lawfully and proportionately, and will respect the rights of all individuals. 7. Confidentiality I will treat information with respect, and access or disclose it only in the proper course of my duties.
 3. Equality and diversity I will act with fairness and impartiality. I will not discriminate unlawfully or unfairly. 8. Fitness for work I will ensure, when on duty or at work, that I am fit to carry out my responsibilities.
4. Use of force I will only use force as part of my role and responsibilities, and only to the extent that it is necessary, proportionate and reasonable in all the circumstances. 9. Conduct I will behave in a manner, whether on or off duty, which does not bring discredit on the police service or undermine public confidence in policing.
5. Orders and instructions I will, as a police officer, give and carry out lawful orders only, and will abide by Police Regulations.I will give reasonable instructions only, and will follow all reasonable instructions. 10. Challenging and reporting improper behaviour I will report, challenge or take action against the conduct of colleagues which has fallen below the standards of professional behaviour

Stop laughing at the back!

If ever the maladministration of injury awards is adapted into a corrupted game of bingo, you could call house immediately in the above top ten of naughtiness.

By all accounts the code of ethics has guidance on what to do when the code is breached.

Behaviour that does not uphold the policing principles or which falls short of the expected standards of professional behaviour set out in this Code of Ethics will be dealt with:
• according to the severity and impact of any actual, suspected or alleged breach • at the most appropriate level • in a timely and proportionate manner in order to maintain confidence in the process.

For the worst offenders the College of Policing states that the most serious allegations amounting to gross misconduct can result in suspension from duty or restriction of duty, and may involve a criminal investigation and criminal proceedings.

The trouble we have here is the age old problem of who is the custodian of the custodians? Who does an aggrieved person report a breach of the code of ethics to?  Of course, you guessed it – the relevant police force or policing organisation you are complaining about. This is such a sick joke, for all Chief Constables are the police pension authority in their own area, so, under the rules of natural justice should not be allowed to decide any matter in which they have a vested interest. Yet they do. And when they do, they of course always, without fail, decide there is no case to answer. Nobody has done anything wrong. Nobody is to blame. Nothing to see here, move along.

If the local professional standards department cuffs away the complaint or calls you vexatious for having the cheek to tell them their own colleagues are dabbling with corruption then it goes to Britain’s police watchdog, the Independent Police Complaints Commission or IPCC.

Home Affairs Committee publishes report on the IPCC – News from Parliament

the Commission is overloaded with appeal cases; serious cases involving police corruption or misconduct are left under-investigated, while the Commission devotes resources to less serious complaints; and public trust continues to be undermined by the IPCC’s dependence on former officers and the investigative resources of police forces.

The IPCC has been slated in the influential Parliamentary report that accuses the IPCC of being overloaded with cases, leaving cases un-investigated, of having no real power and of too often using former policemen as supposedly “independent” investigators.

For us though, it matters not whether the IPCC is fit for purpose.  Concerns about the effectiveness or willingness of the IPCC should never be an excuse to not formally report a breach of the College of Policing’s code of ethics.  Quite the opposite.  Any contravention of this code by any person, working in any facility, needs to be officially reported and recorded to the relevant PSD department.

The volume of complaints can not all be deflected away into a dusty draw of a battered filing cabinet stored in the broom cupboard.

IODPA says this to all injured on duty pensioners.

If a HR minion makes an unlawful threat to remove your injury award, report them under the code.

If a SMP has breached confidentiality of your sensitive medical data, report them to the ICO, GMC and make a formal complaint for contravening the code.

Quite soon the lid will blow off the racket of maladministration of injury awards.  The subsequent inquiry will look, through hindsight, at the College of Policing and all responsible Chief Constables and how they allowed such rampant disregard of their own ethical standards.

 

 

Ms Doubtfire & Mr Williams

Ms Doubtfire & Mr Williams

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr Staley stated in his 2009 report that:

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

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

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

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

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

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

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

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

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

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

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

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

And for Mr Williams,

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

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

Let us take a closer look at this Regulation.

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

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

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

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

The Regulations do not call for a diagnosis.

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

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

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

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

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

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

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

Justice Pelling put this into legal speak:

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

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

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

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

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

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

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

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

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

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

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

The sensible ones have stepped off the field.

Natural Justice: The Rule Against Bias

Natural Justice: The Rule Against Bias

Injustice anywhere is a threat to justice everywhere. ~Martin Luther King, Jr.

British justice, the sense of fair play and the British Police Service have been the envy of the world. It is somewhat ironic that injured Police officers who have lost their police careers have to fight to be treated fairly, and be treated in keeping with the scope and intentions of the Regulations, which are there to compensate them for their injury and consequent loss of earning capacity.

The fight over the 15 years has culminated in over 22 High Court Judicial reviews and 43 Pension Ombudsman decisions regarding  maladministration of Police Injury Awards. British Justice still lives within our Courts and arbiters. It is of little surprise that the decisions overwhelmingly remedy the injustices former injured officers have endured.

The rules of natural justice

The rules of Natural Justice require all trials and hearings to be rooted in fairness . Following the case of Re HK (an infant) (1967)  the phrase “act fairly” was established making it incumbent on all  decision makers to act fairly. There are two parts to the rule:

  1. Audi alteram partem – “hear the other side” or “let the other side be heard as well.”
  2. Nemo judex in res sua – “no one  should be a judge in his own cause” – A pecuniary interest in the outcome of the decision gives rise to automatic disqualification. Also known as the rule against bias.

Following on from our blog “The Judicial Fallacy” we need to explain that the term judex (simply translated as judge) within Nemo judex in res sua  extends beyond judges to all statutory decision makers. This, just in case some SMPs and Mr Wirz start to believe their own hype that they are judges.

Notwithstanding copious direction from the Courts, some scheme managers and SMPs have shown themselves unable, or perhaps unwilling, to apply the Regulations. It is because of this entrenched mindset we at IODPA thought it would be of benefit for decision makers to be educated in respect of their responsibilities.

Whilst the Home Office guidance 46/2004 has been deemed unlawful and withdrawn following the High Court decisions in Laws and Simpson it demonstrates   how the Audi alteram parterm rule can apply.

Some Police Pensions Authorities (Chief Constables), HR, and SMPs  fervidly embraced the unlawful aspects of this guidance and some still do. Despite a legion of in-house lawyers and CIPD qualified HR personnel, no one thought that guidance is unnecessary if the Regulations are followed.  Guidance only becomes a thing if the intention is to bend the rules.  Just as Al Qaeda’s Management of Savagery is a manual for how to wage war by creating religious resentment and violence, guidance has historically been used to square a circle, to give excuses to override Holy text and provide bureaucrats a means to blindly follow orders.

The law is the form of the Police Injury Benefit Regulations and case law.  This simplicity had to be spelled out in the Simpson case ruling that PPAs can’t usurp the law through guidance !!! Luckily, it wasn’t all 43 Police Pension authorities that wandered, zombie like, into the trap.

So with the advent of the Home Office guidance and a stroke of a pen many pensioners were dropped to Band 1. The decision makers’ minds were closed, the poor pensioners weren’t allowed to make representation or even have their voices heard… Audi alteram partem. This struck to the heart of fairness, our Courts and Judges world renowned for their sense of justice did not allow this dreadful state of affairs to triumph.

We at IODPA have raised previously concerns about guidance emanating from the National Attendance Management Forum. (Now re-branded as the National Well-Being and Engagement Forum – NWEF). We regard it as yet another crude attempt to usurp the Police Injury Benefit Regulations and case law. We regard the NAMF guidance as a resurrection of the unlawful Home Office guidance. The NAMF guidance does not operate in a vacuum: understanding the context in which it operates is necessary. Re-branded, but with the same people at the helm, NWEF still holds regular meetings, but the fact that not all 43 forces subscribe to this forum or attend its meetings should tell the organisers something.

During NWEF events Nicholas Wirz tells the force Solicitors, FMAs, SMPs and HR minions that a pensioners doctor’s opinion cannot be relied on.

…It is also not uncommon for that specialist to be provided with the incorrect legal test, in which case their conclusions need to be treated with caution.[…] This can often be the case with reports produced by a treating physician in support of their patient…[]

A common occurrence is for the treating physician to “fudge” the issue(SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION

This is nothing more than a shameful attempt to uniformly denigrate  good, honest, hardworking GPs who have witnessed the physical and mental health of their patients deteriorate, been involved in treatment plans and best placed to comment on the efficacy of them. These practitioners are always best placed to provide the definitive medical opinion.

However, Mr Wirz believes they are prone to provide false opinion. Really? So honest hard-working practitioners of medicine who are not paid by the PPA or the pensioner and who are bound by professional ethics are not to be relied on? What is it which drives Witz and his followers’ false belief that it is only the opinion of SMP’s which is sacrosanct or unbiased? That Wirz saw fit to make such a telling observation reveals that his mind is crammed full of both conscious and unconscious bias.

The SMPs are being paid for by the PPA and are being trained by Wirz. Anecdotal evidence and feedback we’ve had from members is that SMPs have quoted Home Office guidance as well as NAMF guidance. Well, if they are approaching the assessment with a closed mind then we would say that the pensioner will not be heard as the SMP has closed his/her mind to any other view than that of the NAMF guidance.

 Now turning to the rule against bias  nemo judex in res sua Lord Denning summarised this rule in Metropolitan Properties Ltd Lannon [1969] CA.

“The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’.”

The term judge incorporates decision makers such as SMP’s and PMAB members, just in case you missed it earlier decision makers and not Judges in the Judicial sense. So if we surveyed right-minded people, would they think that pensioners were not only treated fairly but seen to have been treated fairly?

We think not for the following reasons :-

NAMF training and guidance – So the delegates consist of FMAs, SMPs, PMAB members,  force Solicitors and HR personnel. We’ve made it plain that the NAMF guidance has no basis in law, yet the principles incorporated within this document are being mis-sold as the lawful regulatory framework to SMPs. We also believe it is inappropriate for  SMPs who are meant to act as independent decision makers  to attend such events and then apply these principles. What if the Police Federation held such events and invited medical experts they instruct, how would you feel about that Mr Wirz?

The fact is not lost on us that HML, the company who manage the PMAB process, no longer attends NAMF meetings, why not? Has the penny dropped that such conduct is not acceptable ?

Some PMAB members far from being fair and open minded are in fact closed-minded acolytes of Mr Wirz and NAMF. Did they think that if HML just slipped out no-one would notice? Especially not the injured pensioners who have been experienced and trained investigators.

SMPs  and the  HR partnership – The late Dr Sampson and Mr Steven Mitchell from Nottinghamshire HR have jointly given presentations. We would invite you to have a look.  Both are eager to  convey how much money can be saved.

No onlooker would conclude that this appropriate. What if Dr Sampson hadn’t saved Nottinghamshire Police money, would he have lost his lucrative contract? Well we need to go to Avon and Somerset to show what happens when SMPs can’t be tamed.

The Avon and Somerset PCC’s Agenda – Mountstevens thinks those that have lost their Police careers and their health by putting themselves in harms way are a financial burden. She does not care about the moral or legal obligations enshrined in the Police Injury Benefit Regulations.

Don’t take our word for it,  she has been caught out writing to the Policing minister,  take a peek. The then Policing Minister (Damian Green) has pointed out the obligations of police pension scheme managers are enshrined in law, and gives his direct opinion that it is right there should be provision for police officers injured in the line of duty. His letter can easily be read as a coded message to scheme managers: don’t approach the administration of injury awards from the viewpoint of looking to save money.

Selection and Deselection –We at IODPA do not believe it coincidental that honest SMPs, such as the fair and just Dr Jo Judge (now retired Dyfed Powys FMA used briefly by Avon and Somerset) who have retained officers on Band 4, i.e. the most disabled and thus the most costly, are no longer engaged as SMPs by forces who want to reduce their financial commitments.

Those that can be enticed to adopt the PCC’s mantra are handsomely awarded such as FMA Dr Bullpitt as well as Dr Johnson SMP. Dr Bullpitt has also lobbied the GMC and Home Office to be exempted from GMC guidance. Really??

Dr Bullpitt’s devious wish to remove the protections of GMC guidance for a hand-picked and specially chosen disabled few, just because they are members of the public in receipt of injury awards, is of serious concern.  It goes against equality law, human rights legislation and codes of conduct. All professions are subject to regulation be it Police Officers through the Conduct Regulations, Solicitors via the Solicitors Regulatory authority, even Judges and MP’s are not exempt, that’s what you expect in a fair minded democracy, no one is above oversight. Yet Dr Bullpitt wants this exemption… why ?

So would the right-minded think police pensioners are treated fairly ? We think not.

The rule against bias compels decision makers to  leave aside prejudices and preconceptions In the case of  R v Bingham Justices ex p Jowitt (1974) QBD a  magistrate said

“My principle in such cases has always been to believe the evidence of the police officer.”

We believe this is no difference to SMPs approaching their duties under the influence of NAMF guidance, for example dismissing the pensioner’s specialist’s or GP’s opinion.

The test of apparent bias has  developed through  case law. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers’ Association [1960], Devlin LJ recognised:

“Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so”.

Lord Denning MR, in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] recognised:

“The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . . “

In R v Sussex Justices Ex parte McCarthy (1924) KBD the Defendant  appeared before the justices on a charge of dangerous driving, the clerk to the court was acting in parallel civil proceedings for  the other party.  This case led to the  celebrated maxim:

 it [… ] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

During the inquest of “The Marchioness” disaster, the coroner was heard to have  described some of the victims relatives in attendance as “unhinged” and “mentally unwell” indicating  the presence  of unconscious bias. A different  coroner was required to resume the decision making process R v Inner West London Coroner ex parte Dallaglio (1994) “The Marchioness.”

We know through anecdotal evidence and having seen the SMP reports first hand of such bias. Comments such as ill-health retirement being a tactic purely in pursuance of a favourable exit packages, physical injuries being psychosomatic and ignoring specialist medical evidence are not uncommon. Dr Nightingale and Dr Willy Cheng are particularly adept at this malevolent projection. Dr Cheng goes the extra mile and repeats these attacks in PMAB hearings seemingly without challenge.

In R v Gough [1993], Lord Goff  formulated the test for apparent bias in the following terms:

 “the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias . . .”.

The accepted test for apparent bias is from Porter v Magill [2001] HL, para 103:

“whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

We at IODPA have been asked to demystify some of the hocus-pocus which some police pension authorities rely on. We hope that by showing how, through the resurrection in the form of NAMF guidance, erroneous Home Office guidance 46/2004 has, brought about a fresh wave of pension maladministration. Lazy, incompetent, HR managers with only scant knowledge of the Regulations, and no familiarity with the basic concepts of justice within the law, as have been briefly set out here, are tempted to turn to the chocolate teapot uselessness of guidance issued by people who seem to be incapable of freeing themselves of the most pernicious forms of bias.

We hope that this whistle-stop tour through the law will help in the demystification. The Chief architect of the NAMF guidance, Mr Wirz, is a lawyer (albeit not a very good one) and he more than most will come to realise that it is through the protections which the law provides to the victims of malpractice, we will continue to forcibly remind him and the NAMF acolytes of their shortcomings.

Mr Wirz we would like to remind you of another  legal maxim:

 “The law is a shield and not a sword”.

Whilst you wrongly quote and twist law to use it as a sword against police pensioners we will use the law as a shield. Natural Justice underpins Judicial Review and at present count it’s the Police Pensioners who are winning countless Judicial Reviews.  Does that not tell you something, Mr Wirz?

We will continue to educate and enlighten police pensioners to their rights and point out your wrongs, in right is might!

 

 

 

 

 

The Paradox of BT’s Occupational Health Service

The Paradox of BT’s Occupational Health Service

“But how will I eat cake if my head is over there, and my hands are over here?”
Marie Antoinette

An interesting decision has just been published on the Pension Ombudsman website.  It concerns Mr E versus British Telecommunications PLC and involves ill-health and medical retirement.

The paradox here is that BT wanted it’s cake and to eat it.  It wanted to dismiss someone due to ill-health but it didn’t want to pay that person the injury benefit that person was entitled to.

Mr E complained that BT, his former employer, refused to award him BT’s medical retirement benefits.  The Pensions Ombudsman found in favour of Mr E and told BT to do it properly.

Displaying the arrogance mostly seen by police pension authorities, BT didn’t like the fact the PO was making a decision in the case.  With unabashed chutzpah, BT submitted that the employee benefit is not within jurisdiction of the PO because it is neither an “occupational pension scheme” nor a “personal pension scheme”.

Dismissing BT’s argument with savagery, the PO clearly stated that such matters are within it’s remit:

The right to bring a complaint to the Ombudsman, is a statutory right to complain to a body established by the Pension Schemes Act 1993, which seems to me to fall squarely within that exclusion.

Play for the ball BT! … never go for the man – or indeed the referee!  Meaning: assess the point of law but don’t go making a proclamation that the referee shouldn’t be on the pitch.  This desperation shows their argument is lost already and shows them up as idiots.

Anyway, back to Mr E.

BT refused his ill-health retirement on the basis that their Occupation Health Service (OHS) “deemed Mr E was not suffering from ill health and that he was not permanently incapacitated as other treatments were not exhausted”.

This is exactly the issue facing those injured on duty and on long term sick from police duties. Not having exhausted all treatment options is an often repeated mantra to deny permanency.

The trouble with BT’s claim (that Mr E had not already exhausted all treatment options) was that he had already been dismissed on grounds of capability due to ill health.  Before the PO got involved, he had taken BT to the Employment Tribunal for unfair dismissal, disability discrimination and unlawful deductions of wages. The matter was settled with an agreement and BT paid him £106,750.

But BT obviously had the hump and decided to prolong the misery for longer.

So what did the PO say about BT’s duplicity?  The skulduggery of, on the one hand dismissing someone for ill-health, and on the other saying his ill-health wasn’t sufficient to pay a medical benefit?

The PO adjudicator said although BT through their OHS had stated that alternative treatments were available, the OHS did not state what outcome, on the balance of probabilities, these treatments would produce for Mr E.

BT did not ask their OHS this simple question.  In other words just saying there’s treatments available isn’t enough.

The OHS used a doctor named  Dr Lichfield.  This occupational health doctor made a general statement that he thought improved medical management would not suggest that Mr E remains incapacitated.  Dr Lichfield said:

Mr [E] appeared not to have undergone the full range of treatments for his condition and, in particular, that he had not seen a mental health specialist

Again, back to injury awards, this is a common statement found in SMP reports that refuse applications for ill-health retirements.

The PO considered the medical opinion of Dr Lichfield as not sufficient as it wasn’t good enough.  OHS and BT needed to establish what Mr E’s prognosis would be if he completed the entire course of available treatments.  And they hadn’t done that so the complaint was upheld.

This decision has overlap into the world of injury awards.  It shows the PO isn’t frightened off when an organisation challenges his jurisdiction.  It also shows that a medical opinion is not good enough when that decision is based on the wrong question, or the reasoning behind the decision was either absent or poorly explained.

Well done Pension Ombudsman.