selected medical practitioner

Tell them everything or say nothing

iodpa Freedom of Information, HR, selected medical practitioner
Tell them everything or say nothing

“He who does not understand your silence will probably not understand your words.”
― Elbert Hubbard

“Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact.”
― George Eliot, Impressions of Theophrastus Such

A person undergoing a DWP assessment for benefits needs to provide evidence they are still entitled to that benefit. If they don’t do this then the DWP investigator has the power to remove said benefit.

An Injury on Duty award isn’t a benefit and can not be removed. If there is substantial change in the degree of disablement then the award can be revised, but it can never be stopped. There is no investigator or benefit claim. Nothing can be revoked or cancelled. When a review is held a police pension authority is to consider the sole question of, ‘is there any substantial alteration?’ Only If there is evidence which indicates there may be a substantial alteration then must the authority refer for decision the question of degree of disablement to a duly qualified medical practitioner.

On their fishing trip to elicit a response from IOD pensioners, Avon & Somerset tried to bluff that if they didn’t disclose any information requested, (such as how many cars you drive!) then they could stop the injury award (which they can’t) or prosecute you for providing misleading or inaccurate information (which would be something they might well regret trying).

Here’s the nasty little threat they sent to vulnerable disabled former officers, all  of whom have to bear the burden of very severe disablement.

liable

This supposed threat of prosecution was queried with a FOI request:

https://www.whatdotheyknow.com/request/injury_on_duty_pensions_2#incoming-620913

The force provided a classic example of corporate blather in response.

“The statement has been on the questionnaire relating to injury awards since 2003 (arising from a meeting of the Attendance Management Group held on 9 October 2002). The statement reflects the details included in the questionnaires provided by Essex and Sussex Police at that time and agreed with the Federation in January 2003.

The statement is intended to clarify that there are possible consequences should a former officer either omit information which is relevant to the consideration of the injury award and/or purposely provides misleading information which could possibly be fraudulent.

If the statement is not signed, it does not halt the review process, but if the details were found be fraudulent due consideration would be given to the next appropriate steps. It may be helpful to note that this statement has never needed to be actioned to date.”

This sinister, and wholly unfounded threat came from a police force,  for crying out loud !!

Threatening injured former officers with an invented prosecution?

Why would any IOD pensioner think themselves obliged to cooperate with a HR Department that thinks it can treat people like this?

What do the Regulations say about not engaging with a review?

The Police (Injury Benefit) Regulations 2006 Regulation 33

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

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

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

The interpretation of this is that if you deliberately don’t turn up for an assessment by the SMP then the force is allowed to make a decision based on such evidence and medical advice that they think is necessary.

That’s it. No reduction or suspension of injury award.

If you decide to attend for assessment by the SMP, but also decide to refuse to agree to full disclosure of medical records, back to birth, confining agreement to release of only records made since the last decision on degree of disablement, then you have complied, albeit with conditions.

The SMP and the force might not think you have been as cooperative as they wish.

In either circumstance – complete refusal to engage in what we know is a mockery of what should be a lawful process, or limited, conditional cooperation – then the force might, if they are daft enough, try to use regulation 33.

Their first problem though would be to satisfy the stringent test of ‘wilfully or negligently’. This is a high hurdle to jump and a hard condition to prove. How could any IOD pensioner be said to be wilfully or negligently refusing to engage with a process which he or she has very good reason to believe is unlawful? That is more than enough of a rational reason for refusal.

Their second problem would be trying to make a determination on such evidence and medical advice as they could obtain. The force seems to have lost or destroyed a lot of files and even if they have a full set most of them will contain information which has not been added to for many years. What evidence could there be of any alteration in degree of disablement?

The force can only use factual information – your notes when you retired for instance – to prove that there is a case for substantial alteration. They can’t pull a fresh assessment out of thin air as this inevitably revisits causation and apportionment and is forbidden. The High Court says so.

If there is no evidence of a substantial alteration in your degree of disablement then the status quo continues, no alteration means no revision of injury pension.

Instead of politely enquiring with pensioners whether their medical condition resultant from the duty injury had improved or worsened substantially over the intervening years since the last time degree of disablement was decided, the force thought it best to ask sneaky, irrelevant questions in the hope that it might provide cover for what was a predetermined decision to conduct a full review involving referral to a duly qualified medical practitioner.

When debating any issue, there is an implicit burden of proof on the person asserting a claim. An argument from ignorance occurs when either a proposition is assumed to be true because it has not yet been proved false (no evidence of change so the condition must have improved) or a proposition is assumed to be false because it has not yet been proved true.

This has the effect of shifting the burden of proof to the person criticizing the proposition, but is not valid reasoning.

You don’t have to tell HR or the SMP what car you drive, how you spend your day, what you submitted on your last HMRC return. The evidence required to determine alteration in degree of disablement is medical. If a SMP wants to know whether you are able to drive despite your disability, then he should ask you straightforwardly and not rely on information obtained under threat by the HR Department.

HR or the SMP have no power to try to get you to tell them your life story. What you did before the time of the last final decision is not relevant to the task in hand, which is only to look for any alteration in degree of disablement. What if the SMP takes an innocent comment out of context? You then find yourself fighting a nightmarishly complex, bizarre, and illogical game of trying to prove there is no alteration to your medical condition, whereas the burden of proof of any change is the responsibility of the SMP.

Just imagine, if you will, what might happen if you get notification that you will be reviewed. You might feel impelled to ask HR, why me? why now? What makes you think my condition has improved or worsened? Instead of an honest answer, namely that they intend to review everybody so as to try to see if they can save some money, you get the usual glib response from HR, claiming they have a right or a duty to review, blah, blah, blah. They are determined to review you and justifying their reason does not concern them. Giving a reason is not something we do. Don’t ask again or we will treat you as being vexatious, you cheeky bastard.  So you comply: you sign consent for partial disclosure of medical records. You might decide to refuse to answer their loaded questions on the questionnaire, for after all, you didn’t fill in a questionnaire when you were retired so how can they compare the here and now to the past with a new set of answers?

You then get a date to see a SMP. You turn up, wish the good doctor a pleasant hello and sit twiddling your thumbs. You answer whatever query of medical fact the doctor wishes to talk about but only concerning your medical records relating to duty injury and decline to answer anything you think is not relevant.

A review is not the Spanish Inquisition and an SMP is not supposed to behave like Tomas de Torqemada. It is not for you to prove you continue to qualify for the amount of injury pension you receive: it is for the force to determine whether or not there has been any alteration in your degree of disablement. It needs a substantial alteration before an injury pension can be revised.

It my well be that some of you think that full, unquestioning, cooperation is just fine – that you know you are not any better and you trust the SMP and HR and those that pull their strings to stick to the Regulations and case law and that everything will be just fine and dandy.

Sorry to say, that has not been the experience of most of the IOD pensioners who so far have been assessed by a SMP.  With the notable exception of those who saw Dr Jo Judge they all report abrasive and intrusive interviews, delving into areas which have nothing to do with determining whether there was any alteration. Most have not had a decision months after the event, and the SMP is trying to blame them for the delay.

So, it is up to you. Go along with a process which has about as much in common with a lawful review as does a rotten cabbage to a slice of apple pie, or give partial, conditional cooperation, or do you downright refuse to have anything to do with people who prefer to offer threats rather than ask honest questions, and who are happy to put you in front of a doctor who seems to know little about the Regulations and whose bedside manner would do justice to the little old ladies who used to knit as the guillotine did its grisly work.

What can they do if you refuse to cooperate? Downband you because they haven’t got any evidence that there is any substantial change and they feel you’ve been less then helpful? Not according to regulation 33 they can’t.

Pensioners accept that a police pension authority can hold reviews. But when reviews are not held lawfully, and when pensioners are not treated with dignity and respect, and are threatened and treated with contempt, then we need to remind ourselves that an injury pension is a right, enshrined in legislation, agreed by successive Governments, and is compensation for injury received on duty. It is not a State benefit, which we have to prove our continuing right to receive. It is part of the quid pro quo of police work. We readily put ourselves in harm’s way, and we held up our part of the bargain to the extreme extent of being damaged in body or mind, only to see some weasel with an eye on the balance sheet pressure ignorant and untrained HR types, and venal SMPs into abusing us, and the Regulations. Meanwhile, Nero fiddles as Rome burns.

The simple truth is that the drafters of the Regulations intended that reviews should only be held rarely – ‘at such interval as may be suitable’, is what they wrote. The status quo should be that no review is contemplated. When circumstances change, then a review might be appropriate. What we see in Avon and Somerset is a mind-set which thinks that a sizeable number of IOD pensioners are somehow not entitled to their pension, and that leads to the belief in certain quarters that no regard whatever need by given to the suitability or appropriateness of arranging a review in each individual instance, and no concern need be given to the health-damaging effects of putting vulnerable disabled people through the meat grinder of an unlawful process

In the here and now

iodpa caselaw, Regulation 37, selected medical practitioner
In the here and now

“It’s being here now that’s important. There’s no past and there’s no future. Time is a very misleading thing. All there is ever, is the now. We can gain experience from the past, but we can’t relive it; and we can hope for the future, but we don’t know if there is one.”
― George Harrison

Imagine, if you will, that you are a 37 year old male police constable with 15 years service.  You weigh 75 kilos and have 32″ waist.  You have just run to work at a brisk 6 minute mile pace, performed a 14 hour shift and run home (or if you prefer cycling, you cycled the detour of 15 miles in a spritely average of 20 mph).  You are basically immortal.  Then you have an on duty injury, and after 18 months and numerous surgical interventions you are retired with an IOD award.

What relevance would your medical notes be at the time you were 37 and able to run the 5 miles to work in 35 minutes (or cycle 15 in 45 minutes) to  start that early turn?  How would looking to that past allow for an impression on your capacity to earn on the day you were retired?

Following this train of thought, how can your fitness or lack of it 3 months or 3 years ago be an indication of your present degree of disablement?  It can’t be.

Speculation into the future is forbidden when an IOD is awarded, and this speculation similarly is not allowed at a review.  The degree of disablement in relation to earning capacity shall be determined at the time of the decision and not make any reference to potential future earning capacity (South Wales Police Force vs Anton and Crocker)

The starting point is Regulation A12(3) [of the Police Pensions Regulations 1987]. It requires an assessment of how earning capacity “has been affected”, not of how it is likely to be affected. (1)

It goes without saying that a lot of people will have reports from the SMP saying, rather hackneyed, ‘might be capable of work in the future’ or at review, the vapid ‘has worked in the past’.  These opinions are unwarranted and contrary to the above case-law.  It is how you are now, not how you were before the review started, or 12 months ago, or in 12 months time.

This is important as the above melds  two things: (1), the argument that a great number of SMP decisions are unlawful if the above comments have been used to lower a band, with (2), the reason FOR a review.  If earning capacity in the ‘here and now’ is zero then the award should be 100% and if in the ‘here and now’ the former officer is still unable to work there is no legitimation to review.  At a review, past medical records do not speak of the ‘here and now’ – arguably very recent records do, but historical records do not.     The positive duty to review is a figment of the Police Pension Authorities’ imagination.  The duty not to refuse a review if circumstances change does exist and if in the ‘here and now’ there is substantial change then the award can be revised.

The regulations are not there for any force to regularly spend over a year punishing a former officer by dragging them through a protracted review.

Interestingly, how can a force make a decision 8 months after that person saw the SMP?  Surely after such a time of procrastination any decision can be appealed with an automatic appeal of  ‘change of medical condition’.  Life has moved on, health has ‘moved on’ but the SMP report looks in the past.  The person can not be reviewed again as an immediate review consecutive to the last is not a suitable interval.  The ‘here and now’ is important.

A review is time sensitive and should be finalised within a month of the assessment (if required) with the SMP.  Otherwise time makes a non-finalised review obsolescent.  It can not be any other way – if the detailed examination of the elements were conducted 6 or 8 months ago then the ‘here and now’ has ‘been and gone’.  The “[…]  assessment of how earning capacity [ ] has been affected”  is twisted into “will be affected” and this distortion does not conform to the regulations and is explicitly denied by case-law, so therefore is unlawful.

Any  decision made based on superannuated assumptions can and shall be appealed on basis of time without any need to question the content of the decision.

(1)

Expiration of Consent

iodpa Freedom of Information, selected medical practitioner
Expiration of Consent

“Nobody can hurt me without my permission.”
― Mahatma Gandhi

Often the occupational health file of a former officer contains disclosed medical records; records that were obtained via consent for a specific purpose, be it the original decision or the last review.  The GP medical records do not belong to the force – they were collated for a reason and should be disposed of once that reason has ended.  Does the force have the right to dip in and out of these medical records as they chose?

Here is a response from the Information Commissioner’s office regarding the limitations of consent:

Case Reference Number ENQ0571696

In your email you ask questions about third parties gaining consent to access your medical records from your GP.

Question: […] once consent is  given, is that consent infinite until explicitly withdrawn? In other words once consent is so given is the passage of time, whether that be days, weeks, months or years irrelevant ?.

ICO answer: Consent would need to gained with each request.

Question: […] once that consent has been given in writing for a third party (as above) to access a patients medical records, at the point those records are provided (accessed), does that specific consent then expire?

ICO answer: The consent would last until the records were accessed by the third party.

Question: To clarify that, can that given consent be exercised more than once or continuously ?

ICO answer:  Consent would need to be gained with every request.

Question: Would any request made now be considered a fresh request and any attempt to use a historical consent be denied ?.

ICO answer:  If there is going to be a new request for your medical data, consent would need to be gained.

Question: Would any registered medical practitioner be acting unethically if they made such a request based on an historical consent ?.

ICO answer:  A medical practitioner needs to comply with the Data Protection Act 1998(DPA) and could not use a historical consent.

Question:  Would the ICO position be if such a historical consent was attempted to be used or presented as being valid (despite the passage of time and previous access) that any registered medical practitioner should reject such a request as invalid and require a ‘fresh and current consent’ from the patient ?.

ICO answer:The GP would be required to gain consent upon every request.

Question: Any consent should be subject to informed consent and valid, a gap of years surely must be contrary to the original informed consent ?.

ICO answer: The third party need to obtain consent from yourself, every time they wish to access your medical records. Requesting consent every time would mean the third party would be complying to the first principle of the DPA. The first principle is about processing fairly and lawfully and with respect to one of the conditions outlined in the act.

To clarify, this means that an organisation must:

have legitimate grounds for collecting and using the personal data; not use the data in ways that have unjustified adverse effects on the individuals concerned; be transparent about how they intend to use the data, and give individuals appropriate privacy notices when collecting their personal data;handle people’s personal data only in ways they would reasonably expect; and make sure they do not do anything unlawful with the data.

Information Commissioner’s Office

That seems very unambiguous.  Once consent is given that consent  has to be timely and relevantly exercised; subsequently, new consent has to be obtained to allow for further use of the data.  So a force is unable to delve into the medical records enclosed in a occupational health file at their whim;  they are unable to approach a GP practice and ask for further disclosure using previous consent without expressly renewing the consent.

Some forces are under the misapprehension that once they have copies of medical records, they own the data and their access to it is then infinite.  This is incorrect.  To give a clear view of this mistaken belief, here is the fallacy of what Avon & Somerset thinks historical consent allows:

Police Medical Pensioners Medical Record Authority Timescale – a Freedom of Information request to Avon and Somerset Constabulary

In respect of Police medical pensioners. When an authority to release medical records from General Practitioners, specialists and consultants in relation to that Officer has been submitted to the Force, how long in timescale does that authority last? Is it days, weeks, months, or years. Please be specific.

Private Our Reference 089/15

Philip Piper Your reference

[1][FOI #249845 email] Date 17 February
2015

Dear Mr Piper

I write in connection with your request for information dated 23^rd
January concerning medical records.

Specifically you asked:

In respect of Police medical pensioners.
When an authority to release medical records from General Practitioners,specialists and consultants in relation to that Officer has been submitted o the Force, how long in timescale does that authority last? Is it days, weeks, months, or years. Please be specific.

The authority lasts until consent is withdrawn.

Yours sincerely

C Quartey

Freedom of Information Officer

Corporate Information Management Department

No it doesn’t Mr/Mrs C Quartey.  The consent lasts until the the records are accessed.  Once that access is completed then the consent expires.  Any decision made without valid permission for those records to be accessed is therefore unsound.

It is quite frightening that a Police Force has such disregard for data belonging to former officers.  What liberties is it taking with data of other members of the public?

An interesting point is raised if the review is unlawful for reasons given on earlier posts.  Here is an extract from the ICO’s website

In brief – what does the Data Protection Act say about handling personal data fairly and lawfully?

The Data Protection Act says that:

Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless –

(a) at least one of the conditions in Schedule 2 is met, and

(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.

This is the first data protection principle. In practice, it means that you must:

  • have legitimate grounds for collecting and using the personal data;

  • not use the data in ways that have unjustified adverse effects on the individuals concerned;

  • be transparent about how you intend to use the data, and give individuals appropriate privacy notices when collecting their personal data;

  • handle people’s personal data only in ways they would reasonably expect; and

  • make sure you do not do anything unlawful with the data.

So if consent is provided and then the force revisits causation and applies apportionment then they are, by default, acting unlawfully.  The corollary is their unlawful action invalidates the consent.  This follows in revisiting previous disclosed medical records – if they try to look at any medical history prior to the last final decision they are contrary to the regulations, and not only is there no implied consent anyway the illegality is a block in the first instance.  The ICO is able to impose severe fines for such breaches.

Substantial Alteration

iodpa Regulation 37, Scoffield, selected medical practitioner
Substantial Alteration

“When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.”
― Edmund Burke, Thoughts on the Cause of the Present Discontents: Volume 1 Paperback: 001

A review of an Injury on Duty is an antonym to a Department of Work of Pensions assessment.  The latter is concerned with capability to work – it is often called a Work Capability Assessment.  It’s purpose is to determine whether disabled welfare claimants are entitled to Employment and Support Allowance.  It is a claimed benefit.

An Injury on Duty award is primarily an award for life in compensation for an injury sustained whilst on duty.  On-duty being defined as the following:

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or

(b) he would not have received the injury had he not been known to be a constable, or

(c) the police authority are of the opinion that the preceding condition may be satisfied and that the injury should be treated as one received in the execution of duty.

It’s easy to keep repeating that the regulations state that the injury pension (award) is unaltered unless a substantial alteration is proved.  But what is substantial alteration?

David Scoffield QC raises this point in his report

“Broadly speaking, there appears to be two approaches to the interpretation of this word in case-law dealing with it in other contexts: that is to say, either that it means not insubstantial or other than de minimis; or that it means significant or large.“

“It is a known tactic that SMPs deliberately put people 1% above the neighbouring lowest banding in order to make it ‘easier’ for them to claim an alteration significant enough to reduce an award .Slight amendments to banding levels reducing from 26% to 25%, which could hardly be deemed substantial yet costs the individual affected thousands of pounds per annum.”

Scoffield cuts through this deviousness of the Police Pension Authorities and the SMP:  “

 1%-2%, which would otherwise not be considered to be a substantial alteration in the degree of disablement, might be considered to be a “substantial alteration” requiring revision of an IOD pension under regulation [37] simply because the percentage calculation happened to be on the borderline of two of the applicable bands. It seems to me illogical to say that such an alteration is substantial when, for instance, a percentage change of 20% or more would not be considered to be substantial, simply because the magnitude of change happens to be incorporated within one banding.”

So lets piece all of this together.  An example 6% drop for a band four originally on 80% is not significant or substantial by itself, so the reduction to band three is not permissible.  A 1% drop that straddles band 2 and band 3 is not substantial and no revision is permitted.

But arguing over the semantics of single figure percentages totally misses the whole-point – THE REVIEW SHOULD NOT HAVE OCCURRED IN THE FIRST PLACE.

For a review to progress to a SMP, there must be some change in circumstance. The PPA must ‘consider’ whether the degree of the pensioner’s disablement has altered, with evidence of an improvement or a worsening, in the medical condition resulting from the duty injury.  And that is the crux of it.

Substantial alteration is based on a comparator of the ‘here and now’ to the last decision.  Unlike an ATOS assessment it is not a measure of capability and entitlement, it is a measure of whether anything has changed – substantially.  Without any substantial alteration, it can not undo a generous award or uplift a miserly one.  If the person could work then and can work now, there is no change, irrelevant of the band previously awarded. No alteration to the medical condition, no change.  The status-quo does not amount to substantial change.  Managing a condition does not amount to substantial change.  A Police Pension Authority trying to rewrite history because medically retiring officers suited it’s recruitment policy does not amount to substantial change, nor does a PCC with a zealous chief finance officer.

If a tweak to a percentage is not permitted and a Lazarus type cure for a medical condition is unlikely to bordering ‘beyond impossible’ so what else can be classed as substantial change? Let’s discuss hypothetical new jobs that didn’t exist previously:  George Aldrich, Nasa’s “chief sniffer”  is a new position, but it’s filled. And it is arguably too similar to any other ‘taster’ say of wine or coffee; in any case when he’s not sniffing space dust he is a laboratory technician  – a job that has definitely been around for most of the modern era.  Space suit designer couldn’t be called a new job as it has too many overlaps with the existing position of a tailor.

It is hoped that the reader can see the tacit  finality of an award. A review is a rigorous and exceedingly stressful undertaking with a high standard to be able to revise it  – the regulations define it as an injury pension not a benefit.  The corruption that has allowed Police Pension Authorities to chip away at someone’s award by slowly reducing the percentage figure is not only unlawful but a horrendous breach of trust.

Do No Harm.

iodpa selected medical practitioner
Do No Harm.

“Primum non nocerum. (First do no harm)”
― Hippocrates

Doctor Philip Johnson is our least favourite medical practitioner.  Single-handedly this man is making the nefarious agenda of the HR department (well, their business manager Wood and her underling Jones) a reality. A gynaecologist by trade, he thinks the case law of the Regulations allows him to have access to the medical records of private citizens since birth. It does no such thing. When he is asked to do his part of a review of a police injury pension he is only entitled to decide whether there has been any alteration in an individual’s degree of disablement since the last time that was decided. Delving into medical records which pre-date that decision is not permitted. It is an abuse of the Police (Injury Benefit) Regulations 2006 and an abuse of his profession.

As far as knowing the law is concerned, the not-so-good doctor Johnson falls short. What he is rather better at is knowing how to behave in a way which has forced mentally ill former officers to seek help from their crisis teams after seeing him. What sort of a doctor is it who carelessly damages the health of a patient?

Johnson has declined, or is unable to make a decision in any of the reviews he has conducted so far. He then takes great delight in trying to blame that state of affairs on the disabled former officers who have, quite rightly, raised concerns about his blunders. This man is a champion of the art of procrastination and a leader in the field of shifting blame. He desperately wants to earn his fee by doing what his paymasters require -which is to manipulate the review process so as to reduce pension payments, yet he he wants to do this with no stain on his character and no possibility of being in the firing line when there comes the inevitable run of cases in the Administrative Court over maladministration of injury pensions.

The tenet of ‘first do no harm’ means only one thing to doctor Johnson – do no harm to oneself and stuff the rest of you.

And you may well ask ‘where is your evidence to make so bold a statement about the ‘good’ doctor?  There is the fact that there are recorded transcripts of  reviews where Dr Johnson is heard stating that he can see no change and that the condition is obviously no better.  But this train of thought is lost when he makes his first report back to HR.  Rather janus-faced, he now insinuates in the report to his paymasters that there may perhaps be change and its up to the HR department to decide how much.  Or how-about the letter Dr Johnson wrote after a review saying there is no change and then 2 weeks later sending a follow-up report, stating in fact there maybe some change, and he needs now to have job profiles to see how much.  The inference is perhaps that Dr Johnson wants to defer the ultimate decision to his bosses in HR and if they aren’t happy with his first view then that view has to change to become the view of HR.   Or last but not least, the classic letter where Dr Johnson says he can’t make a decision and writes as such to both the former officer and HR.  But then still HR claims that its not as though Dr Johnson has decided not to give a decision, it’s just that Dr Johnson has decided to not decide to give a decision.  All these transcripts and letters exist.

Remember these ‘professionals’ are dealing with former officers, injured on duty and with severe disablement to their earning capacity AND who has had no contact from said force for over 12 years.

“Dr Wallington, I presume”

Dr Johnson isn’t alone in his willingness to apply his own tough love to those unfortunate to be in receipt of an IOD award.  Dr Cheng, the resident Met SMP, is of the circular view (and Joseph Heller of Catch-22 fame would grudgingly admire Dr Cheng’s logic) that a band four IOD award is an oxymoron, as to get a band four the former officer should be so debilitated that they shouldn’t even have the capacity to apply for an IOD award in the first place.

Then there is the infamous Dr Broome  of Northumbria.  He who reduced 75 former officers on higher bands to band 1 in a single afternoon.  He is still in post despite all the case-law that names him.

Dr Nightingale is an ubiquitous SMP who seems to focus her work around the Midlands.  She quite often sees herself as an all-powerful judicial authority and demands responses by 16:12 hours exactly or she will record non-compliance in a rather Borg like manner.  This doctor is often mentioned in Pension Ombudsman findings.

And to end the post, I’ll mention Dr Wallington.  Remember NAMF?  Well Dr Wallington is the head of the police medical appeals board (PMAB).  He has overseen more PMABs than anyone in recent times

34242.pdf

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

No. of Boards sat on 
from 01/01/2013 – 
Doctor 
GMC Number 
01/01/2015 
Dr David Wallington
2311212
64
Dr Lanre Ogunyemi
4571061
25
Dr Daphne Pereira
1625857
58
Dr Ian Lambert
2271118
12
Dr Prassana Krishnan
4186951
34
Dr Rosemary Waddy
1462942
7
Mr Anthony Robinson
2493684
1
Dr Adil El-Nujumi
3388422
1
Dr Paul Holmes
3604397
1
Mr John Plewes
666422
6
Dr Karim Rajput
4184289
27
Dr John Nehaul
1380264
5
Dr Abdel Salih
3448908
9
Mr Michael Smith
1467693
65
Dr Mark Groom
3124949
26
Dr Michael Forbes
1469217
7
Dr Philip Steller
1582994
9

5.  Please indicate ANY member of the listed PMAB members (lay or medical) who have
attended ANY NAMF (National Attendance Management Forum) meeting in the past three
calenders years to date (that is 2012, 2013, 2014).

Dr David Wallington 

So why does the lead of an independent appeals board attend NAMF meetings?  Is it to ‘first do no harm’?  Or to see how much harm can be done.

A Suitable Interval

iodpa Regulation 37, selected medical practitioner
A Suitable Interval

“Once obsolete, an automobile is thrown to the scrap heap. Once here and gone, the human life has likewise served its purpose. If it has been a good life, it has been sufficient. There is no need for another.”
― Luther Burbank

There is life after being medically retired with an Injury on Duty award.  There are new opportunities and experiences available that were not remotely imaginable whilst serving. Losing a vocation through no default of your own is hard enough and trying to rebuild a life with a disability  is a trial of Hercules … but it is possible and the rewards are there to be taken.

But how difficult is it to build a semblance of normality when you are constantly placed on a carousel of continuous reviews?  Reviews that have been instigated with an ulterior purpose  to reduce the award to the lowest permissible band as soon as possible.  Are you now a member of the public or are you still under the umbrella of a disciplined serviced with the compulsion to respond to an order of a review on the whim of the Police Pension Authority (PPA)?  How can you progress when there is an interruption of a zealous and watchful eye looking for any change even though any progress and improvement could be short lived and ephemeral.

Is a review 6 months post retirement suitable?  What about 18 months?  5 years?

A 6 month timeline may possibly be appropriate for a person with a band one or two degree of disablement to see if the condition has deteriorated perhaps, giving time to find some sort of employment and if none if forthcoming and  there is substantial worsening to the medical condition then the award can be revised upwards.

But a 6 month interval invoked by the PPA to see if the person is in any employment is not appropriate as a band two award states that the degree of disablement is between 25% and 50% so it can be expected that some capacity to earn is possible, so what is the purpose of a review after such a short period?  What happens if the review triggers a relapse of PTSD and the stress of a review combined with the difficulties of starting a new working life post being a police officer,  causes the mental illness to manifest more strongly and the employment is lost as a result – the paradox of a worsening of the index injury but with recent employment will not be viewed favourable by the PPA, with  their closed minded and misguided intent to reduce their financial commitments surely thinking the latter trumps the former.  Therefore a fair and suitable interval could be a further 6 months into the employment, once things have settled down for the former officer and the the employment is established.  An IOD award is for life and the peaks and troughs do not give an excuse for a knee jerk reaction by the PPA to change a statutory award.  Ultimately the finality and a stability of an award is undermined by the PPA’s determination to ‘prove’ the original decision wrong; that is the singular purpose of a review as seen by the PPA – always to reduce, never to increase. **

**note:  The two above paragraphs, although reality in a pragmatic sense, falls into the same trap that SMPs often stumble into  – “lets give a banding as a punt and then get the chap in a few months to see if I got it right”.  The regulations are apathetic to whether employment materialises or not.  The capacity to earn does not tally with actual employment or earnings; both are irrelevant to a person’s capacity … the terms ‘economically inactive’, ‘under-employed’ and ‘over-qualified’ alludes to this fact.  The bottom line is that the SMP makes a final decision of the degree of disablement and only substantial alteration can justify a review.  There is nothing in the regulations that allows for a ‘suck it and see’ approach. Once made a decision to the banding is final.  The SMP has no room to think he might get it wrong – he makes the award in the here and now.  An un-appealed IOD award banding once given is right by its nature of being given, and can only be ‘undone’ by a regulation 32 reconsideration.

If the person’s wellbeing is in the forefront of their mind then a review after 6 months is not the answer.  Why not ask a welfare officer of the Federation to check in with the former officer?  Ask how they are coping, suggest to the person that if their condition has deteriorated then they can self-refer themselves for a review, in their own time and  when they feel strong enough to face such a daunting  prospect.

What about a review every 2 years?  Is that a suitable interval?  Not if you are a band four with a severe degree of disablement of earning capacity.  If a review takes up to 6 months to complete then a review every 2 years will mean that in a decade you will have spent a full 2 years ‘under review’.  Intolerable to be living a  life that way.

Fundamentally  the timing of a review needs to be  dependant on the individual’s circumstances.  The timing of subsequent reviews requires a judgement by the PPA to allow the former officer to live before being reminded of a past life.  If after 5 years there is no change to the circumstances of a band four then arguably there is a strong case for no further reviews in that person’s lifetime.  If nothing has improved after 5 years, then what can change in the autumn years of that person’s life?

The answer to these conundrums is to ask questions of the PPA. Whenever notified that a review is to be arranged, the first response of any pensioner should always be to ask, Why? Why me, Why now? Get the PPA to qualify its interpretation of a suitable interval. Chances are that the PPA (in reality some bod in HR) will not have given it a moment’s thought. Explain to the HR bod that ‘suitable’ infers that the interval must be right and appropriate for each individual. Ask them to explain their understanding of what constitutes a suitable interval, in general terms, and in the particular circumstances of your case. Ask if they have a policy, or a procedure for considering if a suitable interval has passed. If the PPA can’t answer the questions, then arguably the legitimacy of the review fails on the first hurdle.

It has been the habit of forces to think they have unlimited power to hold a review whenever they liked. Some even set up schedules or programmes when reviews would be conducted. As mentioned, others have a policy – reviews every two years, or five years. Tellingly, and ultimately fatal to all who claim that regular reviews are a ‘duty’ there is nowhere to hide from a history of having either held no reviews or having told people they would never be reviewed. It is as legal, and as legitimate, for someone to decide there will be no more reviews as it is, when done properly, for a PPA to decide to hold a review. They can’t claim a duty to review when it is evidential that they have not held reviews. They can’t have it both ways.

Let David Scoffield, QC have the last word. He is the eminent Queens Council who was commissioned by the Policing Board of Northern Ireland to look into the administration (shouldn’t that be maladministration?) of police injury pensions that side of the water, where the Regulations are pretty much identical to ours.

He recommended:

‘There should be a move away from automatic review for all cases at any fixed interval set in policy. The judgment as to when a review is appropriate should be made on a more case-sensitive basis, driven particularly by medical advice on this issue from the SMP and/or IMR (although it ought to remain open to an officer to request a review himself at any time and the Board should also retain the right to initiate a review at any time if information comes to its attention identifying an apparent relevant change in circumstances). SMPs and IMRs should expressly be asked to provide the Board with advice on this issue in their completion of reports.’

Fishy Business or When a Review Should Stop

iodpa Regulation 37, selected medical practitioner, smp
Fishy Business or When a Review Should Stop

Fishing Expedition
· Examples· Word Origin

noun, Informal.

1. a legal proceeding mainly for the purpose of interrogating an adversary, or of examining his or her property and documents, in order to gain useful information.

2. any inquiry carried on without any clearly defined plan or purpose in the hope of discovering useful information.

So, imagine you are a well paid, supposedly professional and experienced HR manager, (let’s say you have the initials of CJ), who knows the difference between a haddock and a kipper, who has been given orders from your Business Manager (with perhaps the initials of CW), who in turn has had instruction from the Chief Finance Officer and the Police and Crime Commissioner.

You have been tasked to send review notifications out to disabled former officers who have had no contact from the force since retiring due to injury on duty for at least a minimum of 12 years ago and some, in fact most, who have been out of the job for 15 to 20 years. You’ve been told to start a programme of reviewing injury pensions, beginning with those which have the potential to cost the most over the long term. According to the bean counters, who have less knowledge than even you of the Regulations governing police injury pensions, these are the pensions which offer the tempting best prospect of providing the greatest savings – if only a way can be found to reduce the payments. It might take a bit of imagination, but let’s say, for instance, that you could get a patsy in the form of a ‘duly qualified medical practitioner’ who would be prepared, in return for a fat fee of around £500 a time, to find a way around the ethics of the medical profession and the Regulations and declare that this person and that person has had a miraculous substantial improvement in their disability. Bingo! Kerching! Three cherries in a row! Done up like a kipper!

You know nothing about these disabled former officers, as in many instances no personnel records exist, having been destroyed due to the force’s retention policy. And there’s no way you are allowed to view the occupational health records due to an irritating little impediment called the Data Protection Act. You can’t quite understand why anyone would object to letting you read all about their private personal medical history. Patient confidentiality – it’s a bugger, (shame that). You only know these people are on band four so are severely disabled in regards to earning capacity. The fact that some may have mental illness such that that the stress of a review could send them into a catastrophic life changing adverse reaction. Tough, you think, much as did the train driver to Belsen-Bergen, I’ve got a job to do, and by golly I’ll do it no matter who objects.

Do you pause for a moment and think that it might be appropriate to ask the force medical officer to review the medical notes the force does have, to see if a review is in fact appropriate? No, that would be the right thing to do, but you’ve got targets imposed on you by the higher powers. The train is in motion and you can’t stop it – more than your job is worth – someone else’s responsibility. You may have even been told that everyone retired with an injury on duty award are earning 6 figure salaries and driving Porche Cayennes and ought to be reviewed – how dare they be retired on an ‘award’ you might think.

So you send the letters out. But not before you spice the letters up and say you are reviewing the recipient due to the financial constraints to the force is under. Nothing like telling them your agenda from the start. As an added incentive to make the pensioners take your cunning plan seriously, you throw in a questionnaire which asks them how many cars they drive and how much they earn and threatens them with either prosecution if they make an error with their answers or reduction or suspension of their injury award if they mess you about. Never mind there is no lawful way of doing that – they won’t know as they are just dumb ex-cops. And, oh, while I am at it, can I have your signed permission to contact the DHS and HMRC so I can get to see how much money you have?

You realise that you might be onto a sticky wicket when the former officers start asking questions. Like, why are we being reviewed now? You have ignored me and my welfare for the last twenty years so why the sudden interest? Where is the individual case by case objectivity? You give out some baloney about a SMP will look at your medical records and decide whether a review is actually required (whilst crossing your fingers behind your back), fully aware that your pet stooge SMP fully intends to interrogate every single one of them without exception no matter what they say.

Despite having no circumstances to justify a review, no evidence to indicate whether there has been any improvement in any individual’s degree of disablement, no evidence of the substantial alteration needed by law before an injury pension can be revised, you know that your SMP will find the ‘evidence’ by hook or by crook. He’ll even try to con his way into getting agreement to let him look at medical records that date from birth to see if he can give his expert opinion that the back injury was given by the midwife’s forceps, not during the reported polacc.

But you come across a problem. You’ve made someone extremely ill as a direct response of your actions. Someone who has just been trying to survive for the past 15 years, barely hanging on to life by their fingernails and who can’t deal with the process. If you’d got the force medical officer to read the notes beforehand you would had known that this person’s health is in such a delicate state that he is unreviewable. Nevertheless, you think that what you haven’t bothered to look into you can’t be blamed for, so you demand he attends the occupational health unit and you get your SMP to grill him like a turbot for 90 minutes anyway.

The mental anguish of someone already suffering from PTSD means they are unable to deal with abnormal events such as a review. The experience is so traumatic that after the grilling by the SMP they have to go to the community mental health crisis team. The relapse is huge and his clinicians write to you to say this person is no better this year than he was last year, or the year before that, or the year before that. In fact, the duty injury ruined his life and his health and your review is making things worse. But you wouldn’t know, because you and your predecessors have not bothered to enquire after him or to ask him how he is coping. This person is borderline suicidal. Clinicians write to you some more, pleading for you to back off. But you and your tame SMP are adamant that just because an expert psychologist says someone has deteriorated there is no reason to believe it.

So you’ve waited a year since first notifying the intention to review and 6 months since dragging this person before the SMP. He must be stewed enough now you think. You have a brainwave. Send him a letter saying he is too ill to be reviewed now but you’ll postpone the review for 3 months until there is some improvement. Yes that’ll do it. If these people aren’t better then we will wait until they are better! Brilliant! No matter how long that takes I’ll keep the review open until I get the result I want. Why ever end a review with a decision when we can keep a review going for infinity? Don’t have to bother with a suitable interval or a PMAB appeal this way, I will surely get my bonus this year, you think, and maybe some recognition from the HR professional associations. Sheer HR genius – I ought to write up a presentation on this to give to the next meeting of the NAMF. Nothing fishy about that.

Note: This is a true story and the protagonist HR professional is employed by Avon & Somerset Constabulary.

NB: The sassy gallows humour tone of this post is a front to cope with the true fiendish actions of HR. It is no way intended to lessen, or be disrespectful of, the horrendous affect it is all having on the former officer mentioned.

More bad maths

iodpa Degree of Disablement, PEAM, selected medical practitioner
More bad maths

Dateline: 24th April 2015.

A response by Staffordshire Police to a freedom of information request.

https://www.whatdotheyknow.com/request/police_regulations

Staffordshire are proud to reveal exactly how they calculate the degree of disablement for the purpose of grant of a police injury pension. The same method is used when they review an injury pension.

One small problem. Staffordshire are acting unlawfully. Their method is intended to provide a way of subverting the purpose and scope of the Police (Injury Benefit) Regulations 2006 so that they can get away with paying disabled former officers less than their due by way of injury pension. Staffordshire takes what is a medical decision on how much remains of a disabled former officer’s capacity to work, and thus earn, puts it through a calculation which has no basis in the Regulations, compares a police wage with a nominal wage and doubly reduces the degree of disablement.

People who should be paid a band four injury pension are finding that under the magic of this slight of hand they are hardly disabled at all and thus get paid only a band one pension. The savings to the force are considerable.

Let’s look at this in detail. The percentage of degree of disablement is a medical question. It says so in the Regulations. The police pension authority is required, by law, to hand the decision on degree of disablement to a duly qualified medical practitioner. Reason being that disablement is a medical matter. It is all about twisted or missing limbs, constant pain and medication, or mental injury. Damage to body and/or mind so bad you would not wish it on your worst enemy. An independent medical person makes a decision which is binding on all concerned. Apart from Staffordshire police pension authority, that is.

The Regulations tell us how an injury pension is to be calculated. For example, a pensioner is given a degree of disablement figure of 66% by the ‘duly qualified medical practitioner’ selected by the police pension authority (the SMP). That is the final figure, and there is no need, and no legal authority for further calculation or decision. As the percentage is between 50% and 75% it falls within band 3 of the Schedule 3, as set out in the Regulations. In our example, that means a former officer with more than 15 years service but less than 25 would be paid an injury pension calculated as 75% of his former police salary.

Staffs can punch in a few figures plucked out of thin air into a calculator and turn that 75% into a lowly 45%.

Staffordshire and some other forces use what is known as the PEAM system (Police Earnings Assessment Matrix), which is a system not specified or sanctioned anywhere in the Regulations, to set aside the SMP’s decision and come to another perverse conclusion which artificially reduces an IOD award to the minimum.

The Regulations do not permit this, yet Staffordshire seem oblivious to that fact. Or, is it the case that they know full well they are breaking the law but just don’t care? Has someone in high authority calculated that disabled former officers are very unlikely to a) realise that they have been screwed and b) if they do cotton on, are too crocked up to do much about it?

Staffordshire was asked a simple question in the freedom of information request. If a SMP gives a degree of disablement of 75%, can a Band 1 be awarded? Think on this – the SMP has awarded a 75% degree of disablement. To award 75% the SMP has judged the disablement caused by the duty injury has caused a reduced amount of earning capacity and has given what the Regulations very clearly state is a final decision on the matter. That’s it. Over and done with. But not in Staffordshire.

Let’s take a look at that:

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

But not final in the twisted world of PEAM.

Here’s what Staffordshire said:

paem

To break this down, Staffordshire has admitted that a 75% degree of disablement, which the Regulations name as ‘major disablement’ and which is but one degree short of ‘very severe disablement’, can be turned into an 18% degree of disablement – ‘slight disablement’.

Here is the warped logic:

  1. A SMP gives a percentage of 75%
  1. Despite the finality of the 75%, Staffordshire thinks that any retired police officer can earn £28389, no matter what the degree of disablement decided by the qualified medical practitioner. Moreover, they describe this as ‘potential earnings’. It is nothing more than a wage picked out from a job advert – a job some functionary in HR, with no medical qualifications, no understanding of disability, and no right to do so, ‘thinks’ the individual ought to be able to earn. And ex-pigs might fly.
  1. Staffordshire work out that a maximum salary for a PC is £37500. So the ‘loss of earnings’ is the difference between what they would be earning as a PC and what they say the person could be earning outside the job: £37500 minus £28389 equals £9102.

Note: Remember that the 75% is a final decision and this extra calculation is post-decision and thus extraneous and unlawful. Note also: An injury pension is compensation for duty injury and is not compensation for loss of earnings.

In fact, the Regulations do not mention loss of earnings at all. They do speak of earning capacity however, of which regulation 7-(5) tell us this: ‘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 member of a police force.’

Earning capacity has been determined in the Administrative Court to be a measure of a person’s capacity to work and thus earn. No mention of wages or loss of earnings. It’s the CAPACITY stupid! Not what that capacity might produce in terms of earnings.

  1. So where were we? Oh yes, Staffordshire had worked out that £9102 is 24% of £37500. (Which you and I can readily see makes a ‘loss of earnings’ of 24%, which, if that was a legal way of calculating degree of disablement, which it isn’t, would already place the pensioner on band one.)
  1. That’s not good enough for Staffordshire. They want a lower percentage, more firmly down in band one and thus less likely to see a future SMP move it up into a band two. So, now they calculate a percentage of a percentage. They bring the 75% back into it and calculate 75% of 24%. This gives 18% and a band 1 award.
  1. Taking the poor mathematical logic further, just say the SMP decides the person is totally incapable of any work and so awards a degree of disablement of 100%. Staffordshire will then still award a band 1. The calculation for ‘loss of earnings’ remains the same, but 100% of 24% is 24% and a band 1.
  1. The fallacy is the double jeopardy of calculating a percentage of a percentage to factor down the SMP’s ‘final’ given degree of disablement.
  1. The unlawfulness is that Staffordshire have overruled the final decision of the SMP.

Is it a coincidence that the majority of those injured out in Staffordshire with an on duty injury are band 1s?

Here is how it should happen:

  1. SMP awards 75%
  2. Look for where 75% sits in the following table for a PC retired with service between 15 and 25 years
  3. Degree of disablement Gratuity expressed as % of average pensionable pay Minimum income guarantee expressed as % of average pensionable pay
    Less than 5 years’ service 5 or more but less than 15 years’ service 15 or more but less than 25 years’ service. 25 or more years’ service.
    (1)       (2) (3) (4) (5) (6)
    25% or less (slight disablement)         12.5% 15% 30% 45% 60%
    More than 25% but not more than 50% (minor disablement)         25% 40% 50% 60% 70%
    More than 50% but not more than 75% (major disablement)        37.5% 65% 70% 75% 80%
    More than 75% (very severe disablement)          50% 85% 85% 85% 85%
  4. It is band 3.
  5. The % is still 75%75% of the final salary is due as the IOD award

The insight into Staffordshire’s calculations given by their response to the freedom of information request is scarily enlightening. Staffordshire has given us a clear understanding of the perverse ploys that they, and some other forces, use to go against the Regulations.

Needless to say, use of PEAM to make calculations after the SMP has announced a final decision is blatantly unlawful and needs to be taken to Judicial Review.

Now, if only there was an organisation, say a federated organisation created by statute, which could support retired officers and fight their cause . . . .

Just don’t go there …oh! Too late, you did.

iodpa Regulation 33, Regulation 37, Review, selected medical practitioner, smp
Just don’t go there …oh! Too late, you did.

Just Don’t Go There

“A fishing rod is a stick with a hook on one end and a fool at the other.”

Samuel Johnson (1709-17840

When a police pension authority decides to hold a review of an injury pension it is not entitled to pack some sandwiches and a flask of tea and go on a fishing expedition. It can’t itself, or via the SMP, try to second-guess or overturn earlier decisions, whether made when an injury award was first granted or at an earlier review.

Regulation 37 is perfectly clear on this, yet foolish forces mysteriously seem unable to grasp the fact. The quote below is from the Court of Appeal judgement in the case of The Metropolitan Police Authority vs. Belinda Laws, where the court was considering the fishy argument of the Met that the SMP could revisit, and thus come to a different view of the factors which led to earlier decisions. The court rejected this argument, stating, in effect, that earlier decisions were very much final, as were the facts on which the decisions were made:

“18. So much is surely confirmed by the terms of Regulation 37(1), under which the police authority (via the SMP/Board) are to “consider whether the degree of the pensioner’s disablement has altered”. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

19 In my judgment, then, the learned judge below was right to construe the Regulations as she did. Burton J’s reasoning in paragraph 21 of Turner, which encapsulates the same approach, is also correct. The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners. Strictly that is so. But the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.

Why then do doctors Johnson and Bulpitt think they are permitted to look for information in someone’s medical history which might reveal something about apportionment or causation?  The former is the SMP put in post by Avon & Somerset Police Pension Authority and the latter the substantive Force Medical Officer from Avon & Somerset Police.

Take a look at the email below, in which Dr Bulpitt actually mentions in the same sentence, ‘apportionment’ and ‘attribution of cause’! He is arguing that the SMP should have full access to any individual’s medical records back to the year dot. He wants to see if something is ‘concealed’ which might let the SMP come to a different view which would allow him to call into question earlier final decisions.

The foolishness of these two medical worthies inquisitiveness is disturbing. They may know the difference between a wart and a boil (not that I would trust either one of them to remove or lance any such disfigurements on my body) but they seem to known diddly-squat about the seminal appeal court decision in the case of Laws.

The simple fact is that SMPs conducting a review of an injury pension are not allowed in any way to revisit apportionment or causation. (Apportionment is the tricksy ploy of saying a disablement is partly or wholly due to a non-duty injury or pre-existing condition, and causation is the SMP looking for something other than injury on duty having caused the disablement.)

bulpitt

Ha!

Has there been substantial alteration in degree of disablement since the latest of either the last review or original award? That is the only question the SMP is allowed to consider. Medical history prior to the injury award being given (or prior to the last review) could not speak to that, only to the question of the correctness of the original award or the award on review. That is the very thing which the case of Belinda Laws rules unacceptable. Further, Laws was followed and confirmed in the case of Simpson vs. Police Medical Appeal Board in the High Court in 2012. The principle is beyond doubt. The SMP can not access whatever medical records he wishes. That is the very thing that Avon and Somerset is getting wrong at the moment. (Unfortunately, it is not the only thing.)

In a later email, Dr Johnson says he will be ‘robust’ on those former officers who refuse to disclose full medical records.

johnson

Regulation 33, of the Police (Injury Benefit) Regulations 2006 states that if any person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then the police pension authority has the discretion to make their determination on such evidence and medical advice as they in their discretion think necessary.

A pensioner is being neither wilful nor negligent should he or she point out the law to an erring SMP, nor does the regulation mention access to medical records. In fact, drawing the attention of the SMP to the fact that not only has his hook got no bait on it, but his dog is eating his sandwiches is doing him a great service, as it should prevent him from acting unlawfully.

There is nothing in the law which would suggest to former military gynaecologist Johnson that he could say the Regulations allow him to have a full picture. His statement is either a bare-faced lie, or a display of pure ignorance.

Surely even a pilchard like Johnson has the ability to read the Regulations and see that?

The decision … or lack of one

iodpa selected medical practitioner, smp
The decision … or lack of one

When a police pension authority turns its mind to police injury pension reviews, there are some decisions to be made.

It’s a bit like eating a plate of chips. Shall I have mayonnaise with them, or just salt and vinegar? Sounds like an either/or type of decision, doesn’t it. But what if you can’t decide? Then the status quo continues – the chips get eaten just the same, but with no dressing. No decision is really a decision to leave things as they are.

So, what should happen when a police pension authority (PPA) thinks about holding a review of an injury pension? First off, a decision needs to be made as to whether a review is appropriate in each individual case. The PPA has a wide power of discretion over when or whether to hold a review. According to the Police (Injury Benefit) Regulations 2006 a PPA (regulation 37-(1) the PPA,

‘ . . . shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered . . . ‘

The Regulations give no instructions on what might constitute a suitable interval. That is left to the PPA to decide, because each case is different. Where legislation confers a power of discretion, it must be exercised. Some ‘mind’ must be applied to the matter. The PPA is obliged, indeed required. to conduct a decision-making process for each individual, designed to determine whether a suitable interval has passed since the time of the last final decision.

Of course, I am assuming here that a review would only be contemplated for the reason of ensuring the intention and scope of the Regulations were upheld. Which, with the review provision, is to help ensure the correct level of injury pension continues to be paid. In Avon and Somerset Police Headquarters they don’t think that way. Oh no. They look at the bill for injury pensions and see the review process as offering a way to reduce pension payments. They look for ways of manipulating the process so as to achieve that aim.

Once that approach has been adopted, it is all downhill from there. None of the decisions taken along the route thereafter are lawful.

Let’s back up a little. Regulation 37-(1) commands the PPA to consider whether the degree of the pensioner’s disablement has altered. In my dictionary, ‘consider’ means, ‘To spend time thinking about a possibility or making a decision.’ So, let’s imagine ourselves in the shoes of a professional HR manager to whom has been delegated the task of considering whether a former officer’s degree of disablement has altered.

What information do we have to go on? We can’t look at any occupational health file, as that contains personal medical information which we have no authority to access. Even if we could, it would not help as we have no medical qualifications and thus can’t form any opinion or decision based on medical information. There is the former officer’s personnel file, which contains little which might help, other than date of injury, date of retirement, date of grant of injury award – all of which relate to events many years ago. Nothing which might tell us the state of the individual’s disability now.

So, here comes the first mayonnaise or salt and vinegar moment. Shall we

  1. a) send a sneaky, intrusive and threatening questionnaire to pensioners selected on the grounds that they are on band four and under the age of 50, so being the most likely candidates for a reduction in pension payment, or
  2. b) send a polite letter to all injury pensioners asking them to indicate whether they, if asked to do so, could provide a report from their GP saying their disablement was any better, worse, or much the same?It’s a no-brainer. As a HR professional the nasty, sneaky, stupid approach is always by far the best option.

However, at least the HR professional has done what the Regulations require. The question has been considered. No matter that it has been done in the most ham-fisted, insulting and idiotic way possible, breaking a good few laws on data protection, human rights and fraud along the way. No matter that the responses from pensioners could never contain the slightest piece of information which could be used to determine the possibility or otherwise of there being a substantial alteration in degree of disablement.

Thus, on we go – we have considered so now we can arrange the appointments for the pensioners to be assessed by the SMP, which is what we intended all along.

That is why the process devised by Avon and Somerset Constabulary is fundamentally wrong. It is a fishing expedition. Their non-independent SMP, Dr Philip Johnson, has been involved in the process from the start and has declared the intention to ‘forensically examine’ the medical history from the birth of former officers. Why so? The reason is clear – he and the PPA are looking to unlawfully revisit earlier final lawful decisions and to try to overturn them. You can just hear Johnson, can’t you – ‘Oh look, this man had a graze on his knee when he was six. That, in my very professional opinion caused a degenerative weakness which has exacerbated his injury. So let’s say that accounts for 50% of his disability. Cut his pension by half.’

Avon & Somerset has got things back to front. They have approached the review process in bad faith and with the wrong reason. Their objective is to revise the degree of disablement downwards so the tactic is to have the SMP forensically examine the medical history and interrogate the disabled former officer and thus revisit decisions they are not permitted to revisit. They have revealed their warped intentions so very clearly that it is a wonder the SMP does not wear a stripped pullover and carry a bag marked ‘swag’.

The first 16 disabled former officers selected for review are all on the highest banding and under the age of 50. They represent, in the delusional minds of A&S, the best opportunity for making savings. Moreover, being crafty, they have worked out that they are eliminating any risk of having to increase any pensions, as from band four the only way is down.

The HR manager of Avon & Somerset Police, one Christine Jones, explains that the reviews of the selected sixteen is a two-stage process. She says that first there would be a ‘consideration’ and then and only then might there be a need to see a SMP. This is what she wrote to a former officer about how she sees the review process:

Our interpretation (which has been agreed with the Federation) is that this is a two stage process – the review firstly determines whether there has been a substantial alteration in the level of your incapacity and, if this is the case, a review is then carried out as to the level (or banding) of the injury award.

Christine’s words are just fluff (or misdirection, depending on your level of cynicism). They do not reflect the real situation, which is that she first tried to elicit information from pensioners which she thought would give her an idea of their financial situation and life-style. She asked for permission for medical records and tax records to be seen by goodness knows whom in the occupational health department, and by the SMP. She even wanted to know how many vehicles pensioners drive. From this mish-mash of totally irrelevant data the SMP was expected to rubber stamp the pre-made decision to interview, examine and assess each of the 16. It was smoke and mirrors. A false consideration.

Her own words describe the real process. The SMP is to examine the pensioners to determine whether there has been a substantial alteration in ‘incapacity’. Have a look in the Regulations – the word incapacity is not mentioned.  It might sound like disablement or disability but that is not what is assessed at review. The only task of the SMP is to answer the question of whether there has been a substantial alteration in degree of disablement.

Degree of disablement is the extent to which an individual’s ability to work and thus earn has been affected by duty injury. How many cars he might drive is neither here nor there. Nor is his or her income. The focus should be on disability, and whether it has altered.

Once the SMP has decided that question, the review is complete. But Christine thinks there is a second stage – where a ‘review is then carried out as to the level (or banding) of the injury award.’

But the Regulations don’t allow for this ‘two reviews’ approach which the HR department think is permissible. They have to consider whether there has been an alteration in the pensioners level of disability and then, ask the SMP to decide if there indeed has been a substantial alteration. If there has been, no further calculation is needed. The pension is revised in line with the table set out in Schedule 3 of the Regulations.

When the SMP is assessing a person’s disablement for evidence of substantial alteration there can only be one of two decisions which result.  It’s either salt and vinegar or mayonnaise. The SMP can decide there has not been a substantial alteration or he can decide there has been. There is no room for a decision not to be made. If he can’t decide, for whatever reason, then the decision defaults to no alteration in degree of disablement.

But Dr Philip Johnson thinks he has the luxury of making no decision and has done this in all the Avon and Somerset reviews he has been a part of. Is his lack of decision nothing more than the result of his growing realisation that he is willingly participating in an unlawful process? Does he realise that his reputation, even his licence to practice might well be in jeopardy? His lack of decision and Christine Jones’ view of how a review should proceed give the clearest confirmation that there is indeed a hidden agenda to unlawfully revisit the basis of earlier final decisions.

The SMP, out of a well-honed sense of self preservation can see a storm coming and is steering his boat for harbour. No more fishing expeditions for him. And as for Christine – see you in court.