selected medical practitioner

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.

Just Vulnerable or Permanently Disabled?

Just Vulnerable or Permanently Disabled?

“Remember that all through history, there have been tyrants and murderers, and for a time, they seem invincible. But in the end, they always fall. Always.”
Mahatma Gandhi, The Story of My Experiments With Truth

As certain forces continue on their hell-bent course of denying ill or injured officers their pension rights a pattern is developing.  Some Selected Medical Practitioners (SMPs) are labelling applicants with diagnosed PTSD or similar mental illness as ‘only’ having a ‘vulnerability’

Retirement on an ill health pension needs a SMP to decide that an illness or injury is likely to permanently disable the individual from working as a police officer. Some forces want to save the cash, so will go to extraordinary lengths to avoid the need to pay award an ill health pension.

To back up their assertion that medical retirement is inappropriate where the illness or injury is PTSD, as they say that condition is not permanent, SMPs are citing two High Court decisions, which they claim justify their view.

Today, more often than not, when the critical question delegated to SMPs, ‘Is this serving officer permanently disabled?’ the decision given is a rubber-stamped answer like this:vulnerable-refused

So when an application for ill-health retirement (IHR) is refused why are SMPs using the ‘vulnerable’ label?

The short answer is that it’s because they are relying on two cases, one concerning Northumbria and the other concerning Derbyshire. These are both force areas well known for their aggressive, acrimonious and antagonistic attempts to deny retired and serving officers their pension rights.

The cases are R (Northumbria Police Authority) v Broome [2006] ICR 555
and
R (Sidwell) v Police Medical Appeal Board v The Chief Constable of the Derbyshire Constabulary [2015] EWHC 122 (Admin).

By focusing on these two high court decisions some SMPs are attempting to imply things often not relevant to the circumstances. They use the cases as a rejection crib-sheet. It is rather like someone who claims that eating a certain wonder food prevents cancer, but neglects to mention that you would need to eat six pounds of it each day, for ever, for it to have any effect. They thus tell only part of the truth.

These SMPs are selective in their presentation of supporting case law. They fail to point to the case which contradicts and negates their view.

They conveniently fail to mention a much more recent judicial review. That of
Sharp v West Yorkshire Police & Anor [2016] EWHC 469 (Admin) (07 March 2016).
We will come back to this case in detail later.

Let us first discuss the Northumbria judicial review. No doubt this force’s nefarious force solicitor, Nicholas Wirz – skulking and slithering behind the scenes – was the protagonist who advised his Chief Constable to challenge the decision of his own SMP, Dr Jonathan Broome.

What happened was that, in 2005, officers Alison Doyle and Madeline Clementson both claimed permanent disability, which Dr Broome agreed existed and so was certified by him. Northumbria disagreed and challenged his decision – their own doctor! – by way of judicial review.

While based in Bamburgh, PC Madeline Clementson, was injured through being dragged along the road by a suspect’s van. Dr Broome, who assessed her, said she suffered panic disorder and agoraphobia along with an intractable antipathy towards her police role.

He added that although her physical injuries had not made her permanently incapable of performing her duties, she was plagued by symptoms of low mood and anxiety which could be worsened by a return to police duties.

In PC Alison Doyle’s case, Broome said there were several factors stopping her from returning to work including spinal pain, vulnerability to anxiety and her enmity towards Northumbria Police.

The doctor found she had developed such an entrenched aversion to returning to police duties of any sort that the prospect of doing so might well trigger mental ill-health.

Dr Broome said Alison had “an emnity towards Northumbria Police as an organisation” and would even have difficulty performing civilian duties for the force and he said that Madeline had such an “entrenched aversion to going back to police duties of any sort” that the prospect of doing so could trigger mental ill-health.

Both PCs lost the judicial review because neither had a definitive medical diagnosis.  Although both officers were given medical retirement by Broome, he failed to medically diagnose them or refer them to someone who could, so Mr Justice Bennet upheld the challenge and overturned the permanent disability certificates issued to the ex-officers.

It is important to note that a court will inevitably never challenge a medical opinion, for it is not competent to do so. It is a medical matter, and a court lacks the medical qualifications necessary to make any comment or judgement on medical matters. A court can, and will, determine matters of fact and law.

Northumbria took two of it’s officers all the way to the High Court to win a battle over an issue which could have been easily been sorted out without recourse to such stressful and expensive means. The judicial review served only to delay resolution at a horrendous personal cost to Alison Doyle and Madeline Clementson.

The reason why Northumbria won the original judicial review was simply that neither Doyle nor Clementson had a definitive diagnosis which could be found categorised in the World Health Organisation International Classification of Diseases (ICD-version 10)

As Mr Justice Bennet put it;

Vulnerability”, “enmity”, and “intractable antipathy” do not appear in internationally authoritative guides available to doctors such as ICD-10 and DSM IV

In a twist to the sorry state of affairs, Alison Doyle took Northumbria to an Employment Appeals Tribunal in 2012:
http://www.bailii.org/uk/cases/UKEAT/2012/0576_11_1712.html
In this EAT it is shown that four years later, in 2009, Doyle eventually got the IHR she asked for:

‘However, in a subsequent report dated 15 July 2009, Dr Broome recommended that Ms Doyle should be retired on medical grounds.  The Acting Chief Officer took a “holistic” view of her case, namely that her psychiatric condition, which in his view did not on its own amount to a permanent disability, should be taken into account.  Accordingly, on 21 August 2009 Ms Doyle was retired on medical grounds on the basis of her combined psychiatric and spinal problems.’

It seems that by 2009, Alison Doyle had secured a definitive diagnosis and so was, in the end, medically retired – the whole saga of the judicial review was pointless and unnecessary.  Instead of taking it’s officers to judicial review, Northumbria could have spent the money on getting both officers diagnosed by specialist clinicians, for far less cost and with far less stress caused to two damaged individuals.

The take home from this is that a line is drawn by this High Court decision. Once an officer has a recognised medical condition their case becomes distinguishable from the situation experienced by Madeline Clementson and Alison Doyle.

When an officer has a categorised diagnosis, rather than some wishy-washy opinon stated in vague terms by idiots like Broome,  matters have crossed the line into there being a recognised  infirmity.

When there is an ICD-10 diagnosis an “intractable antipathy” may well be noted, but only as a symptom of the infirmity, and not the infirmity itself.

And so on to the Sidwell judicial review.  This case involved the now deceased Dr Ralph Sampson who worked as a SMP for Derbyshire.

An unfortunate sequence of events led to DS Andrew Sidwell’s marriage failing and him then being made homeless after a colleague, who let him share his house, was investigated for corruption – an allegation that was later proved false and which, some believe, was based on a Professional Standards Department witch-hunt.  Homeless, he further suffered a forced transfer to another department, and this all led DS Sidwell into a spiral of understandable anger, resentment, embitterment and antipathy towards Derbyshire police.

Dr Michelle Shepherd, a consultant psychiatrist, diagnosed DS Sidwell as having situational anxiety disorder.  Dr Sampson refused medical retirement as he claimed that, ‘situational anxiety … is not permanently disabling’.

DS Sidwell saw another consultant psychiatrist to help an appeal he made against this decision to a Police Medical Appeal Board (PMAB). Consultant Maria Isaac assessed DS Sidwell and determined that his,

‘. . . anxiety is severe enough to approach phobic intensity. However I could find no evidence of significant underlying psychiatric illness or impairment’.

During the PMAB, one of the consultant psychiatrist panelists, Dr Karim Rajput, stated,

“I would classify him with an ICD-10 diagnosis of anxiety disorder, unspecified (F44.9)’

Despite this, the Board concluded (using a confusing double-negative to do so) that successful treatment of his condition was “not unlikely” and that therefore “he is not suffering a permanently disabling psychological condition’.

Consequently the appeal was dismissed and Sidwell was refused medical retirement.

Soon after, Derbyshire instigated Unsatisfactory Performance Procedures (UPP) against DS Sidwell citing inadequate attendance at work.  The Federation sent Sidwell to see yet another consultant psychiatrist. This time a Dr Qureshi diagnosed Sidwell’s condition as a permanently disabling chronic phobic anxiety disorder.

Derbyshire’s newly appointed SMP for this case was a Dr Geoffrey Davies who proclaimed that DS Sidwell’s condition would improve if he left the police service and as such has he has,

‘. . . a vulnerability to being in the police but does not have a permanent disablement.’

Another PMAB was held and another panelist, Dr Nehaul, disagreed with the diagnosis made by Dr Qureshi and the panel took Dr Nehaul’s view that the Mixed Affective Disorder diagnosis could not be right as there was no evidence of mania. Dr Nehaul devotes rather more words to demolishing Dr Qureshi’s diagnoses.

It is important to note that, unlike a court of law, a PMAB, can comment on and decide on medical matters, as all the Board members are themselves doctors.

The Board concluded,

‘Whilst having enormous sympathy for the position in which Mr Sidwell finds himself, the unanimous decision of the Board is that he does not have a permanent disabling medical condition which would prevent him from carrying out the ordinary duties of a Police Officer and therefore the appeal is rejected.’

This then went to judicial review where Mr Justice Mostyn rejected the claim that the PMAB’s decision was wrong and decided that,

‘The Board was entitled to prefer the opinion of Dr Nehaul to that of Dr Qureshi as to whether there existed a medical condition which caused the relevant inability.’

So the Sidwell case hinged on a spat between two consultant psychiatrist who failed to agree with each other and the judge decided there was not a point of law or fact in which the court could make a determination, given that there has to be considerable respect to the decision of an expert and informed tribunal.

In simple terms you could say that with the saga of Madeline Clementson and Alison Doyle (where there was no definitive diagnosis made), we can see their cases were the complete inverse to that of Sidwell v Derbyshire – wherein too many diagnoses existed!

Returning the question of this post.  How can a SMP on first seeing a serving injured officer use these cases to assert vulnerability?  If there is a diagnosed infirmity then the Rubicon for Doyle & Clementson is crossed.  If there is no PMAB and no quarrel between eminent consultants over what the condition actually is, then Sidwell is irrelevant.

This brings us to the latest judicial review, heard in 2016, of Sharp v West Yorkshire.

Mr Sharp suffered from anxiety on a number of occasions before he joined the police. He was in fact initially rejected by the police on medical grounds.  In 2011, whilst under UPP, he resigned and in 2013 he made an application for an ill health award. This was subsequently refused by the SMP, Dr Dagens.

He appealed and his PMAB submission was supported by a report from Professor Rix, a consultant forensic psychiatrist, who gave a diagnosis of recurrent depressive disorder (F33.4 ICD-10) and concluded,

The primary issue appears to be whether or not the Appellant is permanently disabled. Critical to this is the Appellant’s vulnerability. That vulnerability is his paranoid attitude. This is a permanent feature of his character or personality. It is when that attitude engages with management, as inevitably it would, that the Appellant would suffer a recurrence of his depressive disorder and be unable to perform all of the ordinary duties of a police officer. It therefore appears to me that the issue for the Board will be whether or not such vulnerability in itself amounts to a permanent disability for the purposes of the Regulations.

The PMAB rejected the appeal.  It had concluded,

‘Whilst his attitude may indeed make him more vulnerable to further episodes of depression, the Board does not consider such attitude equates to an infirmity with regards to the Police Pension Regulations. Likewise vulnerability arising from this attitude would not be regarded as permanently disabling. This is consistent with the case law on vulnerability.’

“Case law on vlunerabilty”.  Interesting use of the phrase there.  Just saying it doesn’t make it true and in reality the PMAB catastrophically failed to understand the precedents on vulnerability

It was accepted that Sharp suffered from a recurrent depressive disorder.  It was therefore unnecessary (and irrelevant) to consider whether Mr Sharp’s attitude was also an infirmity.  By trying to deny Sharp ill-health retirement and bending case-law to fit their objectives the PMAB failed to test whether Mr Sharp’s recurrent depressive disorder was sufficiently serious to amount to a permanent disablement.

Sharp requested a Regulation 32 reconsideration on the basis that Professor Rix’s report was misunderstood and the conclusion taken out of context. This reconsideration went to the same PMAB panel for a re-decision.  Unsurprisingly (and true to form), the PMAB panel stuck to it’s original decision to reject the application and finished by saying,

though mention of paranoid attitude in reports may suggest possibility of a personality trait, it would not amount to a disorder in the context of this case. The Board does not agree that likelihood of recurrence and persistent illness and ensuing disability despite optimal treatment is so strong, in this instance, as to fulfil the criteria for permanent disability

It was this second PMAB decision that went to judicial review.

Judge Brehens rejected West Yorkshire’s argument that both the Broome, Clementson & Doyle and the Sidwell case was applicable to Sharp.  The key to the Sharp judgement was that is was found that the PMAB asked the wrong question of infirmity and they wrongly considered the paranoid attitude to be the disorder.

So Judge Brehens found in favour of Sharp and overturned the PMAB decision by saying

I am satisfied that the PMAB ought to have held that Mr Sharp’s recurrent depressive disorder was an infirmity within the meaning reg A(12)(5). It was unnecessary and wrong to go on to consider whether his paranoid attitude was also an infirmity. It was a cause of the infirmity not the infirmity itself. I agree with Mr Lock QC that Mr Sharp had indeed crossed Bennett J’s line and was a recognised medical condition.

Judge Brehens continued,

‘Mr Sharp’s paranoid attitude is one of the causes of the severity of the recurrent depressive disorder.’

In other words, the Board had taken a symptom instead of the illness itself as reason to declare that disablement was not likely to be permanent.

Someone being, in the opinion of a SMP, merely ‘vulnerable‘ or having an ‘antipathy‘ towards their employers should not mean they are refused medical retirement. The vulnerability could be a symptom of a recognised, categorised condition which the SMP, for whatever reason has failed to diagnose. Those reasons may be simple medical incompetence, but worryingly could also be the result of deliberate policy by the force and SMP in collusion to prevent granting injury awards.

We pointed out above that law courts can’t second-guess medical opinion as they are not medical experts. PMABs, conversely are a medically expert arena, but have unfortunately consistently shown that when it comes to the law they are woefully unable to grasp the issues.

It does seem odd that PMABs are allowed to consider legal aspects at all. And if PMABs can misinterpret the case-law, do think it wise to trust any legal opinion of a lowly SMP?

For those officers with reports saying that their ill-health retirement is rejected due to’ vulnerability’ or any other vague and ill-defined phrase, please look carefully at any stated cases quoted by the SMP purporting to underpin his decision. It’s a sure bet that Sharp, the latest case-law on vulnerability, will have been omitted.

Ignoring something relevant which fails to prove one’s point is not how UK law operates.  You may have grounds to appeal whenever a SMP starts referencing case law.  An appeal to a PMAB will take you before a panel of doctors but the Board may have no better understanding of legal points than does the SMP.

IODPA does not suggest never going to PMAB, but we do strongly advise that you seek expert legal advice from one or other of the two excellent solicitors we refer our members to. A judicial review, based on errors of fact or law may be a better route than a PMAB.  Or if you are currently in proceedings for a PMAB look very carefully at the submission made by the police pension authority – are they relying on proving vulnerability whilst ignoring both your definitive diagnosis and the Sharp decision?

Alternatively, ask IODPA to provide you with information about how to use regulation 32 to have a SMP reconsider a decision which you believe errs in fact, law, or medical opinion.

Serving officers are facing hard times should they become ill or injured and are seeking ill heath retirement. It will not now be an easy path. However, it need not be an impossible path, provided that they seek professional advice and help at the earliest stage. SMPs, Police Pension Authorities, Chief Constables and their HR managers and legal ‘experts’ make so many mistakes that a challenge to a decision not to award an ill health pension has a very good chance of success.

Besides, why should you let the tyrants get away with it?

The Wisdom of the Pension Ombudsman

The Wisdom of the Pension Ombudsman

“He who establishes his argument by noise and command, shows that his reason is weak.”
Michel de Montaigne

In 2016, the months of September and October has seen two interesting decisions handed down by the Pension Ombudsman (PO).  In both decisions it is clear the arrogance of the pension authority involved led them to think the forcefulness of their command would conceal the lack of reason within.

One decision concerns Thames Valley Police and how this force (and vicariously by the SMPs they appointed) incorrectly apportioned an on-duty injury by trying to imply that the complainant, Ms E, had a pre-existing vulnerability to mental illness.  The infamous  Dr Cheng is in the centre of this particular stagnant mire.

The second Pension Ombudsman decision we are going to discuss here isn’t about police injury awards but it does involve ill-health retirement.  Mr Y complained to the Pensions Ombudsman that NGF Europe Pension Fund’s refusal of an ill-health early retirement pension was maladministration.  The Ombudsman upheld Mr Y’s complaint and directed the employer to make the decision again.

The points raised by the PO in these decisions have huge implications for police forces. Each will be discussed but let us first look at Mr Y’s case.

The PO found that NGF relied too much on it’s own occupation health clinician and ignored the expert opinion of the patient’s own clinicians:

NGF’s view that it is entitled to prefer its medical advisers’ opinions when there is a conflict of opinion between them and those of Mr Y’s GP and the consultant treating him, demonstrates that NGF saw its medical advisers’ own opinions of Mr Y’s state of health as at least equal to those of a specialist in a particular field of medicine. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

Effectively, the PO is saying employers can not simply rely on the recommendations  of their own ‘in-house’ medical advisers and that it is not…

“[…] rational to give considerable weight to a prediction that had not been fully explored and was outside the adviser’s remit”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

The decision says that, whether or not the employer (or regards to injury awards, the police pension authority) is understandably concerned about if the treating doctors of the patient have understood the definition of total incapacity, it can not give undue considerable weight to the opinion of it’s own assessor.

How often is a one-sided view taken by a SMP?  Every-time that SMP is trained or advised by certain elements within NAMF is the answer.

It is a well recorded fact that often SMPs deliberately disregard what a former officer’s General Practitioner or treating consultant have said.  Indeed Nicolas Wirz, solicitor for Northumbria police has been so unguarded as to write in his NAMF approved ‘guidance’ to SMPs that:

SMPs are likely to be more skilled at resolving disputes of medical fact [Para 4.12 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]

and

A common occurrence is for the treating physician to “fudge” the issue [Para 4.14 POLICE PENSIONS (SMP) DEVELOPMENT EVENT 31 JANUARY 2014 MR NICHOLAS WIRZ PRESENTATION]

In other words, a highly qualified, experienced specialist consultant’s opinion is nothing compared to that of some money-grabbing quack who has jumped on the gravy train of doing SMP work. Moreover, said consultant will be biased, whereas the SMP will be squeaky clean unbiased.

Come off it Wirzy-boy, pull the other one, it’s got bells on. Do you really think that you can fool anyone other than the intellectually-challenged likes of Cheng and Nightingale, etc. with this sort of manure? You have got dear old Karen thinking she is a High Court Judge who can ‘direct’ people to do her bidding, and good old Billy Chung Wing prefers not to engage his brain other than to remember where he has stashed all his illicit earnings. The rest of the medical profession have wisely elected to give SMP work a wide berth because of you.

But we digress – the case of Mr Y shows that the PO disagrees with Mr Wirz.  In fact it leaves Mr Wirz’s claims naked.  His imagined invention of an aura of being ‘judicially all-powerful’ is simply his cloak for SMPs to wear. Cloaks that make them feel better about themselves.  Not only delusional cloaks, if cloaks can be delusional, but clearly not in accordance with fact that the SMP is acting as an employer’s agent.

An agent with a role defined in statute – but an agent of an employer nonetheless.

The SMP is no more a presiding judge than, say, a Custody Sergeant with his duties defined in the Criminal Justice and Courts Act 2015.

The PO declared that when it comes to Mr Y’s ill-health retirement there were relevant questions which should have been asked and that the employer and his medical adviser should not apply a selective restriction to the reports provided by the patient’s clinicians.

The PO’s decision could be exactly applied to the erroneous methodology preached by Wirz.  The PO has said it is wrong for pension authorities, like NGF, to only take into account its medical advisers’ opinions as this, by it’s nature, will also take in irrelevant considerations.

So yet again the proclamations of Nicholas Wirz are proved wrong – SMPs must resist being brainwashed by the outpourings from this darkly dubious source into thinking the Regulations are too complex for the patient’s clinicians to comprehend.  If the SMP has suspicions the clinician doesn’t understand the statutory question then he shall not dismiss the opinion outright, he should seek clarification.  Put plainly, the PO says they should just ask:

It would not have been difficult to ask them, but this was not done; https://www.pensions-ombudsman.org.uk/determinations/2016/po-13059/ngf-europe-pension-fund/

In the PO’s judgement NGF Europe held a dismissive view of important reports and it was wrong for it to claim that it had enough evidence already and clarification was unnecessary.  This arrogance conveys the impression that the decision not to award a total incapacity pension had already been made.

And so, onto the decision in respect of Ms E’s complaint to the PO.

This concerned the granting of an original injury award.  The first SMP, Dr Leeming-Latham, made the  decision to apportion Ms E’s injury benefit on nothing more substantial than than the appearance of a single entry in her GP’s notes dating from 1988 stating, “Depressional neurosis”.

Despite being told that a reconsideration of Dr Leeming-Latham ‘s decision (under regulation 32) would be a paper exercise, Ms E had the unfortunate experience of attending an appointment with Dr Cheng.  Not only did Dr Cheng think the apportionment applied by Leeming-Latham was reasonable but he also considered the 1988 notes demanded an apportionment bedfellow, and commented that:

general formal grievances that were not upheld and disciplinary proceedings should not be classified as an injury on duty”. https://www.pensions-ombudsman.org.uk/determinations/2016/po-5477/police-injury-benefit-scheme/

You can see how Dr Cheng’s brain was working … when you are asked to review a complaint of inappropriate apportionment, why stop at one.  Why not add further apportionment and then you can try to apportion the whole award away?

Seizing the chance with both hands to go gaga full-bore crazy, Dr Cheng continued by saying Ms E actually had a problem with her wrist, which was incorrect.  On top of all this Ms E had expressed concern her papers might have been mixed up with someone else’s. She also said that Dr Cheng had told her he never gave anyone a 100% degree of disablement.

This was all taken to a PMAB, where the basis for the appeal was that Ms E disputed Dr Cheng’s opinion that her disablement placed her in Band Two for an injury award.

Ms E won the appeal and was awarded a band three award.  The PMAB found Dr Cheng was wrong and concluded that the psychological impairment arising from perceptions of work events were the only factor contributing to permanent disablement and that apportionment was not appropriate.

A victory against the odds!  The PO mentioned in his judgement that Ms E raised concerns that the PMAB appeared to exhibit bias.  Ms E specifically called into question the unnecessary time delays, the lack of female presence, that there was no mention at the hearing of her being put under surveillance while on sick leave, nothing submitted relating disciplinary proceedings whilst she was on sick leave and the horrendous situation of the conflict of interest that existed as TVP’s Pensions Manager and Dr Cheng both sat on the national HR board for the PMAB.  Ms E was awarded £750 for all the maladministration.

And now we can weave together the similarity between Ms E’s decision and Mr Y’s.

Just like NGF Europe Pension Fund’s modus operandi, both TVP and the PMAB “cherry picked” Ms E’s documents.  Favourable reports from a Dr Logsdail were not considered and personal development reviews, papers relating to her grievances, newspaper articles criticising her, and emails from senior staff criticising her were all ignored by Dr Cheng and the PMAB.

Sound familar?  TVP, as a pension authority, had a duty not to have a predetermined decision in mind.  But they used Cheng and Leeming-Latham to get the result they wanted by ignoring everything that contradicted their point of view.

This is exactly what the PO is getting at in the decision of Mr Y.

The simple message for all police pension authorities is to keep this in mind: you only get one chance to do things right the first time.

Why not dispense with your biased SMPs and save money and improve the quality of injury award decisions by making fewer mistakes and learning more from those you do make.  Tell the SMPs you use to look objectively at all the evidence placed in front of them.  Stop using Dr Cheng and the number of appeals will plummet.

This means also put the Book of NAMF in the bin where it belongs.

It must be better, quietly and without fuss, noise and bluster, to aim to get things right in the first place rather than having to forced to put them right through expensive appeal and complaint processes. You may well think that the likes of Cheng and Wirz save you money. You would be wrong to think that. The legal challenges you are facing now are only the tip of the iceberg.

Contrasting Medical Reports

Contrasting Medical Reports

Are you sure the report, the one the selected medical practitioner disclosed to you about your  permanent disablement and degree of disability, is the only report in existence?

Could there be another report out in the wild? Did the force actually receive the ‘true’ copy?

Maybe this second report was never intended for your eyes to see.   This hidden report is how the Human Resources director dreamt it to be.    Flawed, corrupted, damaged by the fevers, intoxication, hate and unforgiveness of it’s SMP author.  The report you never get to read tells the story of what the doctor truly thinks about your medical condition – how little your earning capacity is affected; how he doubts your symptoms.

Such deviousness has a precedent.  In July 2016 The High Court granted insurance company LV= permission to bring committal proceedings against solicitors from a defunct law firm after two contrasting medical reports emerged in a road traffic case they were handling.

Her Honour Judge Karen Walden-Smith, sitting as a High Court judge,described the differences between the two reports – one served on the insurer and the other included in the trial bundle – as “stark”.

http://www.bailii.org/ew/cases/EWHC/QB/2016/2590.html

  1. The contrast between the two reports is stark. In the report disclosed with the claim, Mr Iqbal had suffered whiplash injuries to the neck and to the wrist, with a 6-8 month recovery period; whereas the report included in the bundle sets out that Mr Iqbal had mild pain and stiffness on the day of the accident but the symptoms, due to a whiplash injury, resolved 1 week from the date of the accident. The diagnosis of a whiplash injury to the wrist does not even make sense.

How does this relate to Police Injury Awards you may well ask?

These minutes from a Thames Valley Federation meeting suggest not only does this practice happen to retired police officers, but a senior HR manager recently resigned because his involvement in this intentionally and consciously performed misdeed was found out.

ibb-draft-minutes-010816

On page four there’s this quote:

IHR’s
It remains challenging to secure IHR’s as officers are increasingly asked to explore alternative treatment options. It has come to light that in some cases and at the instruction of the force legal team, that some officers seeking IHR but who have active or potential legal claims against the force, are having detailed capability reports prepared by the SMP, withheld. The force through the CHSS* have indicated that this practice has only been adopted in the last half a dozen cases. The CHSS has provided the full reports upon written request by officers. Haven Solicitors are coordinating the investigation into this practice and JW has made PFEW aware of this practice through the National General Secretary and Martyn Mordecai. Chris Sharp has resigned his position as CHSS, in part on the back of this nonregulatory practice. He will leave us in October.

[*Head of Corporate Health & Support Services]

So just like the contrasting medical reports in the 2016 LV= case,  Chris Sharp the Head of Corporate Health and Pensions Manager at Thames Valley police seemingly commissioned and then withheld capability reports, resplendent in greater sensitive medical detail than the ‘other’ report, from the former officers.  This was performed with the blessing of the force’s legal services department.

And he has resigned as a consequence.

If this is true then the SMP and Thames Valley may have fallen foul of countless pieces of legislation from the Data Protection act to the Access to Medical Reports Act.

In the LV= court case Counsel was perturbed by the existence of two reports.  Counsel was clearly concerned that there was a deliberate alteration of the report to put forward a stronger case for damages.

In The Police Injury Benefit Regulations the qualified medical authority is asked to provide ‘A’ report.  Not two.  Not a ‘certificate’  A Report.  Singular.

Is it the case that Thames Valley has been using the existence of two reports to ‘put forward’ (read bias) the case to reduce the award banding?  And by not disclosing the report benefiting by handicapping any future appeal?

No, surely not…  it surely can’t be that the administration of injury awards is that rife with corruption!  (ahem)

 

Battle of the ALAMA

Battle of the ALAMA

“I am at liberty to vote as my conscience and judgement dictates to be right, without the yoke of any party on me… Look at my arms, you will find no party hand-cuff on them. ”
David Crockett

In 1835, Mexican President Antonio Lopez de Santa Anna (1794-1876) threw out the nation’s constitution and made himself dictator.  Many Americans in Texas, as well as Tejanos (Mexicans in Texas), hated this blow to their liberty and the growing tensions between Mexico and Texas erupted into violence when Mexican soldiers attempted to disarm the people of Gonzales, igniting the Texan war for independence. Like other states discontented with the central Mexican authorities, the Texas department of the Mexican state of Coahuila y Tejas rebelled in late 1835 and declared itself independent on 2 March 1836.

The Battle of the Alamo (February 23 – March 6, 1836) was a pivotal event in the Texas Revolution. Mexican troops under President General Santa Anna attacked the Alamo Mission near modern-day San Antonio, Texas, United States, killing all of the Texian defenders, one of whom was the famous Davy Crockett.

In an ironic twist of events, Santa Anna had fought for Mexico’s independence from Spain, only to decide to crush the independence desired by the people of Texas.

The Texas revolution finally ended at the battle of San Jacinto on April 21, 1836. It had been an uprising in defence of liberty.

Santa Anna shared a characteristic common to many other dictators. He was as contemptuous of the views, and rights, of the people of Mexico as he was towards the Texians. In 1824 Santa Anna gave his opinion as, ‘A hundred years to come my people will not be fit for liberty. They do not know what it is, unenlightened as they are, and under the influence of a Catholic clergy, a despotism is the proper government for them, but there is no reason why it should not be a wise and virtuous one.

In 2016, a senior representative of an organisation named the ALAMA, which boasts a membership of just 300 occupational health doctors, seems to have experienced a fit of pique. He lobbied the GMC in an attempt to get it to change its rules so as to exclude a certain class of people from the principles of confidentiality and respect for patients’ privacy that all doctors are expected to understand and follow. That class of people was disabled former police officers.

The ALAMA representative wished to prevent them from exercising their right to see a copy of any report written by a SMP before it is sent in to the commissioning authority. He wished to see disabled former police officers also lose their right to withdraw their permission for any such report to be sent in should they find fault with it. (See the guidance on line at http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality_contents.asp)

The lobbyist was Dr Bulpitt, who is Force Medical Advisor for Avon and Somerset Constabulary. He is is the official police representative of ALAMA –  the Association of Local Authority Medical Advisors. He is no Santa Anna, but from him there emanates more than a whiff of the characteristics which distinguish dictators. His approach to the GMC demonstrates that he is contemptuous of the considered democratic view of the eminent GMC, which sets the standards which the more than 281,000 doctors registered with the GMC are required to follow. We are also suspicious that his lobbying was a personal campaign, and does not truly reflect the views of the members of ALAMA.

In ALAMA’s name, Dr Bulpitt has discarded the self evident truth that the GMC guidance follows legislation and complies with legislation. He fails to see that when the law isn’t applied to some, it doesn’t apply to any.

But is it the position of ALAMA, or the views of one man?  We can’t tell if it is the organisation as a whole which is intent on destroying the rights of disabled former police officers, or whether Bulpitt’s lobbying is an example of an individual unilaterally abusing his position within ALAMA to perform some sort of ‘Game of Thrones’ politics of power play.  

Dr David Bulpitt’s position and influence within this small organisation does not just have local consequences within Avon and Somerset. ALAMA represents many of the doctors who work as SMPs across the country. Should Dr Bulpitt’s views sway the GMC to amend its guidance, then that will affect every injury award review and injury award application nationwide.

Unlike Davy Crockett, who solely relied on his conscience and judgement, this particular doctor has the yoke of best practice defined by a regulatory body to adhere to –  best practice that he wants to have the ability to choose when to park aside and who and when to exempt, to suit his own agenda.

ALAMA was founded after a conference on inhalation hazards in Firemen held in Edinburgh in March 1979. In April 1980 a follow-up meeting for local authority doctors in Manchester saw the start of an ALAMA steering committee.

The declared aims of the Association were to hold an annual meeting, to develop some kind of link with the Society of Occupational Medicine, the Faculty of Occupational Medicine and the British Medical Association.

Plainly, its founding aims were not to lobby the GMC to discriminate against certain cohort of people! So, what is the exact lobbying we are talking about?

The GMC are currently reviewing their 2009 Confidentiality guidance – making sure it is “relevant to doctors’ needs and to be compatible with the law throughout the UK.”  The public consultation on the revised draft of the guidance on confidentiality closed on the 19 February 2016.

In January 2016, almost three months after he had professed to the Home Office that he had already contacted the GMC, Dr Bulpitt used ALAMA headed notepaper to belatedly write to that organisation.

bulpitt-gmc-disclosure-28012016
(select and use arrows bottom left to navigate pages)

Within his letter he compared the right of certain specified members of the public – who happen to be people retired from the police service – to withdraw consent for medical reports (under the Access to Medical Reports Act) to being synonymous to condoning a repeat of the 2014 Glasgow bus catastrophe that killed six and injured fifteen others.

Just like the Tejanos in 1835, we are understandably appalled at the attack upon our liberty. Such purging of protection under the law for chosen targets leads inevitably to greater and greater abuses and more and more destruction of rights. This process was aptly chronicled by  Martin Niemöller … to misquote this pastor, “First they came … for the people with disabilities. And I did not speak out because I did not have a disability”.

Dr Bulpitt sets his scene by first constructing a diversionary straw-man argument. Ignoring the contentious and unlawful mass review programs instigated by a minority of police pension authorities to reduce their ‘financial exposure’ to the cost of police injury on duty pensions, the doctor starts with smoke and mirrors by saying the OHP (occupational health practitioner, in other words the SMP) is only concerned with the fitness to work, in an attempt to sway the GMC Assistant Director for Standards & Ethics away from his true agenda.

Why let the truth get in the way of a good yarn? That his lobbying has no basis in fitness to work, dealing as it does with the destruction of the rights of people pensioned off from the police service, doesn’t cause Dr Bulpitt to see the irrelevance in his narrative.

Clinical Information obtained and recorded by OHPs, especially during a one off assessment, is exclusively for the purpose of advising employee and employer on fitness for work.  Therefore the consent to request this information is made in that context. Clinical  information is not obtained to provide clinical care and therefore the basis of the consent to  request it is quite different from Drs who provide clinical care.

According to the Introductory Memorandum to The Police (Injury Benefit) Regulations 2006  the Police injury awards do not depend on membership of the Police Pension Scheme, but are in effect compensation for work-related injuries (the degree of disablement in relation to capacity to earn).

Continuing to omit things which irritatingly do not tally with his story, Dr Bulpitt fails to say that a great many SMP’s have in fact become of late a pale shadow of the independent and impartial decision-makers which they are required to be in law.  He leaves out the inconvenient fact that he regularly demands clinical information including full medical records since birth; expunges from his lobbying of the GMC the information that the occupational health unit almost always did provide clinical care to the injured police officer whilst injured and still in service.

Apparently, in Dr Bulpitt’s version of the parliamentary process, it is only civil servants in the Home Office that ‘sets down’ legislation, conveniently forgetting the role of the Houses of Commons and Lords.

The Police Pension Scheme serves as a particular example of where clarity is urgently needed as to whether additional consent is necessary once an individual has requested their employer to enter them into the process for health assessment, and consideration for payment related to ill health. At present GMC guidance appears to sit uncomfortably with the Regulations for the Police Pension Scheme which are set down in Legislation via the Home Office.

Rather peculiarly, the official ALAMA representative’s letter goes from faux concern for Council employed drivers; Police Officers using Firearms; Teachers with responsibility for children, on directly to his real bugbear – the Police Pension Scheme.

Could it be that mention of other local authority aspects were just a diversionary tactic?  Is his real true agenda purely to convince the director of ethics that there is an imagined disconnect between GMC guidance and the Police Injury Benefit Regulations?

At present GMC guidance appears to sit uncomfortably with the  Regulations for the Police Pension Scheme which are set down in Legislation via the Home  Office.

IODPA would like to see evidence of where this proclaimed inconsistency lies. We believe there is no evidence. Dr Bulpitt chooses not to explain himself, and presents as fact something which is wide open to critical challenge. We believe that the current GMC guidance is based on a careful and rational analysis of the Regulations and of relevant court cases which have addressed the issues of confidentiality and consent in respect of reports commissioned by employers and pension scheme managers.

We have witnessed too many instances of reports written by SMPs which contained factual inaccuracies, incorrect application of the Regulations, and which exceeded the limitations of the brief of the SMP to see very readily why Dr Bulpitt wants these reports to be winged direct to the commissioning authority without scrutiny.

He fears that injury on duty pensioners have finally become aware that their rights under the law, and under GMC’s guidance, have consistently and widely been denied. He fears that a high percentage of reports will be subjected to withdrawal of consent and will not land on the desks of HR managers. His ambition to manipulate the Regulations so as to effect reductions of pension payments would be thwarted.

His letter to the GMC exposes very clearly that this doctor has only the wishes of his paymasters in mind, and cares nothing about the health and well being of disabled former police officers, nor cares anything for their right to continue to receive the level of pension their injuries deserve.

Current GMC guidance requires that the patient is offered a copy of the OHP’s report about  them before it is sent. Many Drs consider that the guidance leaves ambiguous whether the  patient is then able to withdraw consent at that point and thus prevent release of the report  to whoever commissioned it.

We would like to request that the GMC consider an additional section in future guidance
advising Drs and patients specifically for situations where health assessments are requested  by third parties from specialist OHPs and which particularly recognises the impartial role of  OHPs making clinical assessments generally and especially in
The context of Health and Safety Legislation.
• When instructed in accordance with the terms of insurance typically in a Pension
Scheme
• When instructed under Regulations set down under legislation e.g. by Home Office

In their reply the GMC calmly proclaims that Dr Bulpitt’s grotequese bus tragedy analogy is already covered by the guidance and the exception Dr Bulpitt demands is given short-shrift.

Our understanding is that patients are entitled to withdraw consent for a  report to be disclosed to a third party unless there is legal requirement to disclose the information, or disclosure can  be justified in the public interest (for example, because failure to disclose the information could leave others at a  risk of death or serious harm).

So what can the ALAMA learn about the Alamo?

After he defeated the rebels at the Battle of the Alamo, President General Santa Anna unwisely divided his forces, allowing Sam Houston to surprise him at the Battle of San Jacinto.  Santa Anna was captured and forced to negotiate with the Mexican government for recognition of Texas’ independence and sign papers saying he recognised the Republic of Texas. He returned to Mexico in disgrace and retired to his hacienda. The people of Texas fought on for freedom and, eventually, on December 29, 1845, Congress admitted Texas to the U.S. as a constituent state of the Union.

Perhaps members of ALAMA will think it wise to consider how this particular representative is behaving and see fit to distance themselves from his lobbying techniques. The majority of conscientious and hard-working occupational clinicians do not deserve to have their ethics sullied by the machinations of one doctor.

One of Crockett’s sayings, which were published in almanacs between 1835 and 1856, was: ‘Always be sure you are right, then go ahead’

Every time we observe the lengths some twisted minds go to subvert the rights of others, IODPA is reinforced that we are right to keep going ahead.

Survey Results – R.E.S.P.E.C.T.—why some doctors are not getting any

Survey Results – R.E.S.P.E.C.T.—why some doctors are not getting any

“R-E-S-P-E-C-T!!! Find out what it means to me”― Aretha Franklin

Our straw poll would never receive awards for being scientifically robust, but it provides an overview to the opinion of serving and retired officers towards those doctors (aka force medical advisors) employed by police forces – and that overview certainly seems to be at odds to how doctors are viewed by the public at large.

Generally in the United Kingdom, which has been hit by an unprecedented number of medical scandals and transgressions in recent years, doctors still top the polls as the most trustworthy and hardworking of all professionals.   An Ipsos MORI recent polling found that doctors were the most trusted profession, with 90 per cent of respondents trusting them to tell the truth. In contrast, just 16 per cent of respondents trusted politicians and 22 per cent trusted journalists to do likewise.

Our survey (for all it’s faults) had representation from all forces except Lincolnshire (perhaps there is Democratic People’s Republic of Lincolnshire that clamps down on Internet access and purposefully prevents its citizens from communicating with the outside world – or more likely maybe there isn’t an issue with ill-health retirements in this force, so there is no incentive for those to look at related social media).

Only 8% of respondents trust their force medical officer.

Do you trust your force medical adviser?

 

COUNT PERCENT
No 277 66%
Don’t know him/her 107 26%
Yes 34 8%

Strip out the ‘don’t knows’ and you can see the stark realism that 89% do not trust their force doctor.

rplot-yesno-survey

And what forces have least trust in the force doctor and mostly make up the blue “no’s”?rplot-no-surveyAnd those with the most trust in the force doctor?  Due to the low numbers we can show all 34 votes and the vote’s corresponding force individually.

rplot-yes-survey

What this all suggests is that police officers at their most vulnerable have no faith in some of these occupational health doctors.

Those clinicians tasked with duties such as promoting healthcare policies and initiatives and advice on medical, health and welfare matters, are neglecting their core duty – to care for people.

There is no sane reason why force medical officers should not have the same high satisfaction rates as their peers in other specialities.  However, it seems some have misplaced loyalties to the pleasing of the employer and not the patient or  to the furthering of medical excellence.

When they are needed most they are causing deep pain and prolonged suffering . With notable exceptions, some are no longer regarded as the paternalistic figures they once were, but rather as a technical bureaucrat or a gatekeeper with an over-riding deigned reluctance – who begrudges having to deal with those police officers the Job has injured, discarded, disabled and defeated.

do-you-trust-your-force-medica-survey-results-_-polldaddy

“Preposterous” Awards

“Preposterous” Awards

“Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well- warmed, and well-fed.”― Herman Melville

Were Melville commenting today, he might well have had disabled former officers in mind as the ‘poor’ and the Force Medical Adviser of Avon and Somerset Constabulary as their well-warmed and well-fed critic.  In Moby Dick, Melville frequently uses biblical and mythological allusions.  Like the Biblical Ahab, in Melville’s Ahab (and our well-fed critic) there is a desire for something that he isn’t entitled to and that isn’t good for him to have, to try to get it by foul means, and then to get his comeuppance in the form of an ironic reversal of his own evil deed.

Although not all injured-on-duty pensioners are in the dire straits of penury, they are all poor in respect of the way their injury pensions are administered. The habit of the pensioners is to be in constant bemusement over how those who have a duty to administer injury pensions within the law so easily, and so enthusiastically seek to pervert the meaning and intentions of the Regulations.

As we have repeatedly said on these pages, IODPA is not against reviews of degree of disablement. Chief Constables have a wide discretion on whether or not to conduct a regulation 37 review of degree of disablement. They can consider the matter at such intervals as may be appropriate. However, it is not appropriate to initiate a review as a potential cost saving measure.

Reviews can not be used to undo the finality of the last final decision even if a certain force medical officer considers the award to be “preposterous” (see below). We can only wonder just how he managed to come to that opinion. On what evidence did he base his consideration?

No matter what a FMA might think about any individual’s injury pension payment he surely must be aware that only a substantial alteration to the degree of disablement can permit a revision of the level of pension paid. Is the verdict of “preposterous” informed by a generalised assumption of some deficiency in the process of granting an injury award? The FMA must know that the causation and the substance of the award always remains final and can not be revisited at review.

We are writing here about not just any old FMA, but one Dr David Bulpitt MRCGP FFOM, who is the Force Medical Adviser of Avon and Somerset Constabulary. It is a telling reflection of the rather nasty and lawfully inaccurate attitudes prevalent in some quarters, that Dr Bulpitt appears to have an inflated ego of such magnitude that he wants to rewrite history and convert the decisions of his predecessors, into becoming his decisions.

Dr Bulpitt is not shy about voicing his rather skewed opinions on injury awards.  He is not even a run-of-the-mill force medical adviser.  He has a national platform – as the police representative for the Association of Local Authority Medical Advisers (ALAMA).  Listed as a speaker in past ALAMA conferences for Occupational Health physicians who are “set on delivering the highest quality services and the best standards in patient care in the most effective manner”, you’d have thought his words would always exemplify the motto of ALAMA: “communication, education, consistency and quality of clinical practice of doctors providing Occupational Health Services” .  Unfortunately for Dr Bulpitt, his words may well come back to haunt him.

As Will Rogers put it, “After eating an entire bull, a mountain lion felt so good he started roaring. He kept it up until a hunter came along and shot him. The moral: When you’re full of bull, keep your mouth shut.”

In an intemperate email rant to the Police Workforce & Capability Unit at the Home Office, Dr Bulpitt displays his frustration and impuissance.

It seems he might well be vexed over his inheritance of the historical legacy of decisions that he thinks ‘he’ would not have made, conveniently ignoring that such attempts at historical revisionism is forbidden by the Regulations.  An interesting stance, given Dr Bulpitt is not privy to the Zeitgeist and full facts which swayed the decisions of his predecessors.

His ego asks for more.  The finality demanded by the Regulations is an affront to his wishful view of how things should be if he were in charge, and he can’t control his craving to fuel his desire to remove the injury awards of those retired from the force he represents, sacrificing his medical professionalism and independence in the process.

Frustrated by his impotence to alter history, he contacted the Home Office to tell them how hard-done-by he his.

 

[…] I suspect that you might be aware that we have a group of pensioners that are organising a campaign to resist having their pension reviewed.

So blinded by his own peculiar view of the Regulations, Dr Bulpitt actually thinks that a group of disabled former officers, who in their working lives were intent on seeing that the law was upheld, are now campaigning against reviews, per se.  Dr Bulpitt not only has hold of the wrong end of the stick, he has the wrong stick altogether. We guess he is referring to IODPA. In which case, how has he missed the plainly, and oft-repeated, statement of our mission, which is to challenge all aspects of unlawful reviews and maladministration?

IODPA has never sought to frustrate legitimate, lawful review process, but, in Avon and Somerset, and elsewhere, finding a legitimate review is about as difficult as finding an honest, decent and professionally competent FMA or SMP  (difficult but not impossible – they do exist but the good ones tend to avoid the debacles and imbroglios that always shadow bulk review programs).

Dr Bulpitt’s email continues in a manner that, perhaps unintentionally for him, actually answers his question of why pensioners do not want their injury award reviewed by Dr Bulpitt or anyone connected to Dr Bulpitt.

 

The issue is largely one of the Constabularies making in my view because they are on preposterous awards, frequently 100% and have hardly ever been reviewed if at all. One appears  to never had anything wrong with them and another had a certificate stating they did not have a permanent condition but got an injury award anyway.

Who are the ‘they’ that Dr Bulpitt refers to? The group ‘resisting having their pensions reviewed’ are all medically retired former police officers unfortunate enough to be retired from Avon & Somerset and other forces across the country where the review process is clearly being managed contrary to the Regulations.

Among everything else wrong in his email, Dr Bulpitt has the nerve to call the deliberate unlawful actioning of recommendatory Home Office guidance that reduction to 0% of the degree of disablement all former police officers once reaching sixty-five years of age as, ‘acting in good faith’.  

Oh!  That’s OK then – it’s fine to carry out a public duty unlawfully as long as it is done in good faith.  It’s perfectly fine to make an almighty cock-up, so long as it was done in good faith. It is acceptable to drive a coach and horses through the Regulations, bringing huge distress to disabled former officers and their families, so long as it is done in good faith.

This may be arguable in a pursuit of proving misfeasance in public office, an intentional tort rooted in bad faith, but the tone of Bulpitt’s email shows his intent is as far a polar opposite to a ‘good faith’ mistake as is possible.  Dr Bulpitt’s unsolicited use of the term ‘good faith’ clearly shows he has the spectre of misfeasance in his mind; just saying it is all in good faith doesn’t make it so.

As sure as eggs are eggs, Dr Bulpitt wants to globally revise the award downwards of all those retired by Avon & Somerset.  If this isn’t bad-faith then what is?

Do you think Dr Bulpitt paused for a minute and thought, as he typed his email, that it’s no wonder that people don’t want to be unlawfully reduced just because he, as the current force medical officer with only the scantiest knowledge of the circumstances, thinks there is nothing wrong with them and they shouldn’t have the award in the first place?

Or perhaps he feels he has sufficient knowledge. If so, he has been trawling through sensitive personal medical data which he has no right to access. The implication from his remarks amounts to a self-admission that Dr Bulpitt freely rummages around in the personal sensitive medical records of former police officers without consent. If that is the case, it is shocking to say the least.  How else can he justify his generalisation that those retired in the past, ‘have nothing wrong with them’?

The bunker mentality seeps through the words of Dr Bulpitt.

 

Apart from a coordinated campaign of FOI  requests, subject access requests and so on, they have been put in complaints to the GMC about  our SMP. Not too dissimilar from the picture in many forces that I have worked with but this one  is far more venomous and a lot of work has gone into worrying pensioners and frankly trying to smear the OH unit and the SMP by the Pipin group

Hold on there, Doctor. It sounds like you are saying that all complaints, all requests for information, and every attempt by injury on duty pensioners to shine some light into the murky recesses of the shambles that is the administration of their injury pensions, is done to annoy and smear? What utter hogwash! What a frankly outrageous attitude to display by someone who is supposedly trained and skilled in the art of diagnosis. What an example of bias overcoming logic.

Doc, your diagnosis is wrong. YOU, and the other people who have not got a clue about how to properly administer police injury pensions, are the disease. IODPA is the cure. We challenge because we have been attacked. We seek information because none is freely given out. We point out deficiencies because nobody has the wit or the will to remedy them unless backed into a corner.

 It is people such as Dr Bulpitt and Dr Johnson, the SMP used by A&S, who are smearing the Occupational health unit. They are dragging the unit into disrepute by abusing the Regulations.  Uncovering the truth of what is really going on cannot be twisted into smear campaign.  Smear tactics differ from normal discourse or debate in that they do not bear upon the issues or arguments in question.  On this website you will only find disclosure and arguments that always bear upon the focus of unlawful administration of injury awards.

The unguarded admission by Dr Bulpitt is another example in a long line of examples of how far some public officials will go in attempting  to undermine legislation.

Frustrated that Avon & Somerset legal services advise that it is unlawful to reduce an injury pension banding where an IOD pensioner disagrees with the SMP’s report and withdraws consent for it to be disclosed to the police pension authority, Dr Bulpitt states that he is at a ‘crunch point’.

Prevented by the GMC to force the release of a report that a SMP makes on an individual and unable to revise an award without it, his considered reaction is to ask the Home Office to change the law for him to provide immunity for SMPs from oversight by the GMC.

 

I know that others have written about this but surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their  interests first?

Their insistence that we have to offer to share our report with the pensioner/applicant first is very difficult and potentially will prevent the review  of pensions if, as my legal department tells me, we cannot alter the pension without that report  and the pension authority cannot insist on it being released. They (the GMC) are adamant that  we must put the pensioner first and if that means not adjusting a pension to the correct level  then so be it.  My concern is also that this is getting so unpleasant for doctors we are getting very limited in our  selection of SMPs. FMAs are now very rarely employed and tend to turnover very quickly.

We cannot alter the pension without that report”.  Rather a conspicuously revealing and graphic sentence.  He uses the accusation of a conspiracy to save money in a dismissive throwaway comment concerning a pensioner who was unlawfully reduced in – cough! – ‘good faith’ three years ago.

 

[redacted] is being investigated over a decision [redacted] took 3 years ago when [redacted] had been instructed to review a pensioner who had reached the age of 65 and drop their award (we now know that is incorrect of course but [redacted] acted in good faith at the time). [redacted] contacted the GMC but has been frustrated by the apparent lack of any understanding of the role. The pensioner had his pension restored at appeal but has now gone on a crusade, accusing [redacted ] of “colluding with the pension authority to save money”.

But “we” (not the independent and supposedly impartial SMP) want to alter the “preposterous” award, he says!

You can make your own mind-up whether Dr Bulpitt is seemingly in cahoots with others.  The use of “we” in the above context goes nowhere in quashing any suspicion that the SMP is not totally his own man and the goal is to alter the pension in all circumstances.  You don’t need to be a clairvoyant to predict the direction of the desired alteration.

The Faculty of Occupation Medicine, of which Dr Bulpitt holds the FFOM post-nominal, has a ‘Competency 4‘ that governs the relationship between the occupational health doctor and the patient.

The absence of the usual therapeutic relationship between patient and doctor does not exempt the doctor from his/her professional duties imposed on all members of the profession..

Dr Bulpitt appears adamant that this should not apply to some members of the public and it seems he thinks that the required doctor-patient relationship is absurd.

 

surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their interests first

The role is described as quasi-judicial but I see  little that is “quasi” about it. Surely it is not a doctor-patient relationship as we would understand

They (the GMC) are adamant that we must put the pensioner first and if that means not adjusting a pension to the correct level then so be it.

But it is not just the demands of the GMC, is it?  To be a FMA or a SMP the National Attendance Management Forum demands a prerequisite of membership of the Faculty of Occupational Medicine.  It is Dr Bulpitt’s own specialty designated body that demands the same compliance.

Given the Regulations are paramount and the Home Office refuses to release any central guidance in relation to injury awards, Dr Bulpitt continues forlornly, with a sigh of desperation and acknowledgement that some forces refuse to review contrary to the Regulations.

 

Can anything be done about this because we are in danger of the whole thing grinding to a halt?
So far as I know the Met are still not carrying out any reviews and have stated publicly that they  will not be doing so.

The Home Office sensibly skirts over the rant and calmly explains to Dr Bulpitt that the Regulations require a medical authority and the GMC therefore have primacy over the behaviour of any medical professional.

 

Hi David,
Thank you for your email. Whilst I understand your concerns and appreciate your comments it remains that as SMPs do fall within the remit of the GMC. You said that the GMC have been contacted to explain this issue but that the GMC do not seem to be understanding the role. Have any further attempts been made with the GMC to explain the role in further detail?
The Regulations state that the SMPs are being asked for a medical opinion and the fact that they sit under the remit of the GMC is something that cannot just be overridden through amendments to our legislation. It would be interesting to know more about the discussions which have been had with the GMC regarding this issue.
Kind Regards

Dr Bulpitt, and others with similar mindset, appear to have a clear appreciation or understanding of the laws that regulate their conduct in this area, but still they do their utmost to get around them.  When challenged, as we have so often witnessed in instances of other outrageous maladministration by public officials, they consistently fail to acknowledge that they have done anything wrong.

 

We are lucky here because our GMC liaison officer is very understanding and I took the  precaution of warning him that he would start seeing complaints. Thus far the GMC has not felt  any of the complaints against our SMP warranted investigation.  This has not necessarily been the case elsewhere

It is worrisome that Dr Bulpitt has apparently arranged an ‘understanding’ with the local GMC liaison officer.  Does this mean any complaint of wrongdoing is dismissed by the GMC responsible officer, regardless of the strengths and merits of the complaint?

Dr David Bulpitt’s position as Force Medical Officer has, we believe, become untenable with these shockingly offensive comments. He has demonised the entire population of disabled former officers who have injury awards, and his comments show extremely poor judgment and a surprising lack of sensitivity.

It is important that a doctor in a position of trust who is dealing with injured police officers and medically retired former officers enjoys public confidence and this is at risk with his continuing in the important role of Force Medical Officer.

We are so appalled at this insight into the recesses of the mind of Dr Bulpitt, and are so concerned about the bias and discriminatory attitudes which are revealed that we call for Dr Bulpitt to either resign quietly, or if he will not, for him to be dismissed.

If Avon and Somerset wishes to see a return to normalcy in its relationship with injury on duty pensioners and the emergence of good governance of police injury pensions, then this stumbling block named Bulpitt must go.

This is the full email chain.  Keep in mind if this is what Bulpitt sees as a measured email to the Home Office, what is he saying and doing in the privacy of his own office?

http://iodpa.org/wp-content/uploads/2016/08/38800-Annex.pdf

38800 Annex
[hover the cursor over the page to read all 4 pages or to download pdf]

My medical records, not yours

My medical records, not yours

“A good blog should be like a woman’s skirt; long enough to cover the subject and short enough to create interest.”
– A Facebook poster (knowingly misquoting Winston Churchill)

There are roughly 57,000,000 adults in the UK.  There are approximately 14,000 adults who are medically retired former police officers with injury awards.

There is no lawful authority to treat 0.000246% of the population any differently.  The Data Protection Act nor the GMC guidance do not have an exception saying their requirements don’t apply to those with an injury award.

Confidentiality and medical records

  • A doctor should gain a patient’s consent before disclosing information to a third party (and that includes a worker who is being examined only for a medical report)
  • The legal right to see a report in advance and withhold consent only applies to reports from a doctor who is treating them, but the GMC guidance makes it clear that this should apply to all medical reports
  • Before an employer asks an employee to go for a medical examination for any purpose they should notify the employee what the examination will entail and what the purpose is. The employee should be given the opportunity of challenging any such request if they feel it is unwarranted.
  • The doctor should confirm that the patient is aware of the implications of the examination and has consented. They should also advise them that they have the right to withdraw consent at any time.
  • There is no need for the full medical record, nor should information on any other conditions be disclosed unless directly relevant. If the employee is concerned over this they should raise it with the doctor and, if necessary, remind them of the GMC advice

The Law of Laws …

The Law of Laws …

“I am the law and you’d better believe it!” – Judge Dredd: 2000 AD prog 40.

We haven’t discussed for a while the landmark decision in the appeal of Metropolitan Police Authority (Appellant) – and – Belinda Laws (Respondent)- and – Police Medical Appeals (Additional Party).

A timely revisit of the basic principles has been provided to us by the Lake Jackson legal team involved in both the first judicial review and the appeal.

It’s important to remember that this opinion relates to the duty of the SMP, when the decision to revise the injury award has been passed to the medical authority – in other words the police pension authority has already considered, that there has been an alteration (“shall” so are referring the question of degree of disablement to the SMP: Regulation 30(2)(d)).

Police Authority v Laws is the leading authority on the correct application of injury award reviews under Regulation 37 of the 2006 Police (Injury Benefit) Regulations 2006. The leading judgement was given by Lord Justice Laws.

In the course of his judgement Laws LJ approved the decision of Burton J in MPA –v- Turner. 

The correct interpretation of Laws is that the Regulation 37 duty of the SMP (or logically the PMAB on appeal) is primarily a comparative exercise.

The SMP must consider the pensioner’s current degree of disablement [Regulation 30(2)(d)] at the date of grant or last review and then compare it with the pensioner’s current degree of disablement.

A revision of the pension, upwards or downwards, is only permissible where there has been a substantially alteration (paragraph 18 Metropolitan Police Authority v Laws 2010) in the degree of the pensioner’s disablement.

This may be occasioned by some substantial improvement or substantial deterioration in his/her medical condition or because of external factors such as the availability of a job or jobs which were not available previously but which are now available to the pensioner either because of the advances in medicine;  e.g. a very ergonomically friendly chair which allows those with chronic back complaints to sit and work at a desk for longer periods and/or changes in the employment market [‘The law degree point in Laws’] such as for example the greater availability of jobs in the private sector for officers with Counter-Terrorism training and experience. 

The right question for the SMP is not “what jobs can this person do today” because that would be a re-assessment of the degree of disablement and not a review.

Further the SMP is forbidden from calculating any quantification on the present degree of disablement unless the SMP has first concluded that there is a substantial alteration in the former officer’s degree of disablement even though HR used to instruct an SMP and often send them a list of suitable jobs before the examination had even taken place. 

‘Degree of disablement’ is defined under Regulation 7(5) as loss of earning capacity. Thus any earnings (or salary) in itself cannot be used to calculate a new degree of disablement and then be used to compare against the previous assessment to prove substantial alteration. 

This is consistent with the purpose of the statutory scheme as outlined by Cox J at first instance in Laws. The scheme recognises that police officers undertake an inherently dangerous job and the purpose of the scheme is to compensate officers for the loss of their careers and any loss of earning capacity going forward past compulsory retirement age and beyond.

Thus the earnings comparator is usually police pay whilst the ex officer is still within CRA. Afterwards the comparator becomes more subjective but the equation is usually the earning capacity of an injured officer as against that of an uninjured officer.

Another heresy is that an ex officer has no earning capacity at state retirement age. It is in any event inconsistent with state retirement being gradually increased to age of 70.

Immeasureable Loss

Immeasureable Loss

“Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a police officer” – Regulation 7(5) The Police (Injury Benefit) Regulations 2006

We often trust experts blindly, because we’re programmed to do so practically from birth. Call it the “Wizard of Oz” effect: first with our parents, then our teachers, and then on to the authoritative voices in our textbooks and on TV news, we’re brought up to believe there are always people whose knowledge and judgement should be taken over our own.

Even when you are swimming in treacle during the ill-health retirement process and the police service’s inability to  deal with your situation means your view of them has crumbled further into a disillusioned, sometimes lazy, ineffective, unrespected and undisciplined organisation, you still remember when you were at training school and you were taught that with authority came responsibility and accountability.

Doctors have a special power over our brains’ decision-making capabilities.  We get discombobulated and our rationality put on hold when we’re presented with what an expert with a stethoscope thinks they should be doing, regardless of how bad the thing is.

When a Selected Medical Practitioner (SMP) demands of a Human Resources minion to supply them with job profiles what is actually happening is a measurable assessment of loss.   The bad news for the occupational health doctor and Human Resources is that measurable future (or potential) earnings has no place in the Regulations.

One of the most complex concepts within the Regulations is the notion of ‘degree of
disablement’.  Earnings do not dictate earning capacity.

The doctors employed as SMPs find this concept exceptionally hard to grasp.

David Scoffield QC succinctly lays down this confusion as the main reason why he was commissioned to perform the PSNI “Review of the present arrangements for the payment of ill health pensions and injury on duty awards to former police officers”

Put shortly, however, the degree of disablement relates to the consequences of the duty
injury for the officer’s capacity to earn money. It is the calculation of this element which has given rise to many of the difficulties which have led to the need for the present review.

The law is quite exact in determining Earning Capacity.   Courts use something called heads of loss or heads of claim to pinpoint how much damage has been done which influences the amount of compensation a claimant will receive.  In civil claims the head of damage of ‘earning capacity’ cannot be awarded if ‘loss of future earnings’ is awarded as, if a claimant is not working by the time of trial or is already in a lower paid employment, he will be compensated under the loss of earnings head of damage.

Where the evidence that the former police officer is not able to earn as much as he or she would have done BUT for the injury then the compensation is loss of earning capacity.  The injury award compensates, in the here and now, for the injury and the affect that this has had on earning capacity.

The test for earning capacity is that there must not be a measurable loss.  If there is a measurable loss then this is loss of future earnings.  Billett v (MOD) [2015] EWCA Civ 773 (23 July 2015) was a case about loss of future earning capacity, not future loss of earnings.

Paragraph 53:

In Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40 Lord Denning MR explained the difference between loss of earnings and loss of earning capacity in this way:

“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.

The courts can see the distinction but SMPs and HR directors are blind to it.  The Regulations provide a minimum income guarantee in the form of the award that is in effect ‘damages’ for the injury causing ‘diminution in earning capacity’.

Interestingly the appeal court in Billet v MoD found that when considering what constitutes a substantial adverse effect on a person’s ability to carry out normal day to day activities the focus should be on what the person cannot do, as opposed to what he can do.

Paragraph 89 Billet V MoD

Those statements are all true. But, as Mr Poole points out, those submissions fall into the trap which Langstaff J identified in Aderemi. They are directed to what the claimant can do. The focus of the inquiry should be upon what he cannot do as a result of the injury to his feet.

This is the total opposite to the standard approach of a SMP who, more often than not, brazenly proclaims that if you are able to dress yourself and make a cup of tea, in their view, you should be able to work full time as an Intelligence Analyst at Force Headquarters. (One of the mysteries of the universe is why are there so many vacancies of Intelligence Analysts given HR minions always provide them to SMPs as one of the three job profiles that they think a disabled former police officer can do! )

Loss of future earnings is quantifiable.  It is measurable with some precision.  David Scoffield QC clarifies that the earning capacity in relation to the Regulations has no provision for exactness:

there is nothing in the Regulations which specifically requires an SMP to give a percentage figure in any individual case. Their obligation under regulation 29(2) is to give a decision on “the degree of the person’s disablement”, which could just as easily mean a decision as to whether the disablement is slight, minor, major or very severe. Regulation 29 could have been drafted to indicate that the medical authority had to specify a precise percentage disablement; but it is not.

If the Regulations meant for an injury award to be compensation for loss of future earnings then the injury award would be calculated using the Ogden tables, paid at the start and as a one-off lump sum.  It doesn’t and so it isn’t.

The major difference is that earning capacity is not usually affected by voluntary, non-binding, choices made by the worker. The ability remains whether the individual chooses to exercise that ability or not.  In other words, any earning capacity remains whether or not the person chooses to exercise it or not.

So, to consider the earning capacity of an doctor who earned tens of thousands of pounds in a fruitful year being a gun-for-hire SMP for a particular police service with a mass review program and has built up such a massive nest-egg that they’ve now chosen to stay home with pre-school children (or even sail a yacht around the Caribbean given the humongous amounts paid out) rather than enter or remain in the labour market, we need not investigate the process by which such a decision is made, nor attempt to estimate the year-by-year probability  of returning to the labour market. A focus upon future or expected earnings would lead directly to such questions.  It is irrelevant to earning capacity.

Winning the lottery or becoming the beneficiary to the estate of a recently deceased long lost Aunt are both factors that can voluntarily affect the decisions and choices of the worker.  Both are irrelevant to earning capacity.

How can we measure the immeasurable, we hear SMPs ask?

The good news is SMPs don’t have to.

Let David Scoffield have the last words:

Indeed, the fact that the degree of a person’s disablement is a “medical
question” under regulation 29 of the 2006 Regulations may also suggest that (what I have referred to as) the mathematical approach is not the correct way of determining degree of disablement under the Regulations; but that, rather, it is a broad judgment to be made by a clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data. This approach seems to me to draw support from the Crocker judgment, particularly at paragraph [56] where Ouseley J noted that the approach he was suggesting (in relation to an issue of apportionment in that case):

“… reflects the statutory question which has to be answered. It is a straightforward
approach which fits with the process for making the assessment, which is comparatively informal, and one in which doctors, and not lawyers or philosophers, make the decisions.”
[underlined emphasis added]

 

 

This group of police force HR managers, occupational health personnel and the odd force solicitor is supposedly concerned in its quarterly meetings with keeping the police workforce fit and well. The clue is in the name - it is supposed to concentrate on people who work. However, it spends time also considering matters relating to disabled former officers. Quite what legitimates this group's interest in disabled private citizens who are in receipt of a police injury pension is a mystery.

The mystery deepens when it is revealed that the Home Office and representatives of the commercial company which has the contract to run Police Medical Appeal Boards, HML, also regularly appear on the list of delegates. The mystery morphs into something smelling of conspiracy when the delegate list is entirely absent of any representative of any of the people whose lives the NAMF seeks to affect. There is nobody from the Police Federation, nor from NARPO, nor anyone from any disablement charity, mental health association, etc. etc. In other words, the NAMF is a one-sided talking shop. Even at that level it is not properly representative of all police forces, for we note that there are rarely, if ever, delegates present from every area.

Those of us with long memories, recollect that the Home Office claimed that it had conducted what it called a 'survey' of all forces, way back in 2004, prior to finalising its unlawful guidance issued as Annex C to HO circular 46/2004. The HO claimed that their survey showed that it was common practice for forces to review the degree of disablement of injury-on-duty pensioners once they reached what would have been normal force retirement age. This is what the guidance said:

'This Guidance is being issued to help ensure a fairer, more cohesive approach to the payment of injury benefits to ill-health retired officers who have reached the compulsory retirement age with their Force. A recent survey found that practice in this area was diverse. Some forces automatically reduced degree of disablement benefits to the lowest banding when this age had been reached - others continued to pay benefits at the same rate until the death of the Officer concerned.'

The plain truth, revealed through Freedom of Information Act requests, was that there never was any survey. The HO later tried to claim that the bold, unmistakable claim made in its guidance resulted from 'round the table discussions' at meetings of the NAMF. Yet nothing even hinting at such discussions appeared in the minutes and the HO could not produce a single scrap of data nor any record or any other evidence to show quite how it had come to the conclusion that some forces automatically reduced benefits to the lowest band at what would have been normal force retirement age.

Shockingly, further research revealed that absolutely no forces, not a single one out of the 43 in England and Wales, had ever reduced benefits to the lowest band at what would have been normal force retirement age, automatically or otherwise. The Home Office was caught out in a blatant lie. It was a lie intended for one purpose only - its actually intent was to give an air of normalcy to the huge change in practice which the HO wished to bring about.

This astounding act by a Government department tells us what the NAMF was then, and remains now. It's objective in so far as police injury on duty pensions is concerned, is to subvert the law of the land. The law cannot be changed retrospectively, so the inner circle work to find ways to unlawfully manipulate it through influencing gullible HR managers, and by training carefully selected corruptible SMPs how to refuse grant of an injury award and how to conduct reviews which reduce the degree of disablement of retired officers.

And so the machinations of the NAMF continue...