selected medical practitioner

The function of the SMP

iodpa selected medical practitioner, smp
The function of the SMP

What does a duly qualified medical practitioner (selected medical practitioner or ‘SMP’) bring to the table?  Firstly it is peremptory that any final decision made under Police Injury Benefit Regulations 2006 is a medical decision.  It is not a legal question or an occupational assessment – it is a medical question and therefore can only be answered by a medical doctor.  ‘Suitably qualified’ has no specific definition under the regulations other than the implied possession of  medical degree so a general practitioner or a surgeon could perform the task.  However it is the praxis of police pension authorities to have interpreted the suitable qualification as being a member of the Faculty of Occupational Medicine.

This hugely narrows the pool of suitable potential SMPs.  Forces are deliberately hiring a specific type of medical professional.  Quite often the SMP belongs to an umbrella  limited company that contracts the occupational health doctors back to several forces in a consortium pact.  This insular arrangement is amplified by use of the NAMF’s white list of approved providers.  An otherwise excellent medical practitioner is barred from working as a SMP if not a member of this closed club, further adding to the erosion of the independence of SMPs.

But what is the remit of a SMP?  Firstly the SMP is bound by the ethics of the GMC guidance which determines how its members are allowed to act in such positions (Confidentiality_disclosing_info_2009.pdf.)  The GMC guidelines dictate that any person the doctor has access to in such an event is still their ‘patient’ and it is irrelevant whether they are giving therapeutic treatment or not – as their patient, the well-being of the person is their first concern.  In partnership with their medical duty, there is the legal duty of the SMP to abide by the statutory instrument  enacted by the regulations. So the SMP assesses the disability and it’s effect on earning capacity together with factors such as rank and length of service. The SMP then makes the award which falls into four bands (Band one is the least).  The bands are simplified into 4 to make it easier for a medical expert (not a HR manager) to decide a suitable degree of disability.  When some SMPs use rounding to 2 decimal places in order to put an IOD retiree into a lower threshold (49.95%), they clearly haven’t taken the ‘decision in the round’.  This was talked about in the post concerning the PAEM & Bad maths.  As mentioned, although the SMP is employed by the Police Authority/Commissioner/Force, the function should be an independent one.

On the original decision (when the award is first given) the SMP may ask for full medical records as well as accompanying report from specialists.  There is no given power that enables the SMP to demand things – indeed no legal powers are inferred on the role of the SMP – he/she can ask but accordingly there is no obligation to acquiesce.   They are not coroners with common law or statute powers – the statutory role is to answer a question – the referred question; they are not empowered in anyway to act other than as a doctor.  Of course, the SMP is entitled to make an informed  judgement on the available evidence and non-cooperation does allow the SMP to infer something.  The final decision is the SMP’s alone to make.  The procedure should be an evidenced based approached.  In injury cases in particular it is important that the SMP should satisfy him or herself that the evidence presented about the circumstances surrounding the injury and the disablement in question is not accepted uncritically from either party. It is for the SMP to test and weigh the evidence given in the light of the other evidence provided and in the light of his or her own medical knowledge and reasoning. In deciding whether a statement put to him or her as a matter of fact is to be accepted as such, after having duly tested and weighed it, the SMP should apply the balance of probabilities and not a higher evidential test.

Such questions the SMP considers are (but not exclusive of):

  • The Regulations specify that whether the injury includes any injury or disease, whether of body or mind
  • That disablement is deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement
  • It is necessary to establish a direct causal link between the permanent disablement and service as a police officer:
  • In cases where the permanent disablement through injury was the result of a single, significant incident the question will be a relatively simple one – was the injury received in the execution of duty
  • An injury does not have to be received though a single, significant incident; where no single moment of injury can be identified.  The question for the SMP is whether the permanent disablement through injury was caused by, or received in, the execution of duty as opposed to domestic or other circumstances not related to police duty – bearing in mind the following points:
    • police duty should not be given a narrow meaning; it relates to all aspects of the officer’s work;
    • the Court of Appeal has held that stress-related illness through exposure to police disciplinary proceedings does not count as an injury received in the execution of duty;
    • police duty does not extend to a sporting activity for the police while not carried out on duty, unless where the injury was due to the officer being known to be a constable.
  • There may be an issue as to whether there was a single injury or more than one injury which contributed to the disablement. This can affect the calculation of degree or disablement where a relevant injury was not received in the execution of duty. Where this is relevant the SMP’s findings as to whether there is one injury or more than injury should be clearly stated (apportionment).

If the decision is not accepted it can be challenged within 28 days and an appeal lodge with the Police Medical Appeals Board.  This a panel of 3 medical specialists on a Home Office list.  Before Laws V PMAB historically a PMAB panel rubber-stamped the decision of the SMP using the HO guidance 46/2004 – an example of Home Office officials keeping the bien pensant stance and ensuring the Home Office guidance is followed to the letter (despite the subsequent withdrawal due to the guidance being unlawful).

The role of the SMP in a review situation is the sole question of substantial alteration of the degree of disablement (earning capacity not physical disability) since the last final decision.  Has the medical condition substantial improved or substantial deteriorated?  Is there jobs available to the individual that were not available at the last final decision?

A review therefore should be a benign event.  As circumstance dictate (and not routinely), the submission of medical records, partially disclosed of dates between the last decision and the date of the review.  A quick face to face meeting IF and ONLY if there are points in the medical notes that need clarifying.  If there is no evidence of change then the person should not even be put in front of a SMP.  That’s it.  Nothing more.  If the SMP acts like a Gestapo officer, forensically examining medical history and interrogating the retiree for close to 2 hours during a review then it is obvious that there is an agenda.  How will other IODs react when they get called?  Defensively, no doubt.  Where’s the motivation to engage in a demeaning and unlawful process.

There is no excuse for any review to last from May 2014 and still be continuing in mid-March 2015.  That suggests that the police pension authority and the SMP are considering facts that are beyond their legal duty.  Rather like Avon & Somerset’s current reviews…

Regulation 32

iodpa caselaw, pmab, reconsideration, regulation 32, Regulation 37, selected medical practitioner
Regulation 32

Everyone in receipt of an Injury on Duty award mostly understands the implications of the discretionary power to review, namely regulation 37.   As described previously on other posts it is frequently an abused power with reviews instigated by the police pension authority, on their whim, so that they can fulfil financial constraint reduction targets.   Rarely does a pensioner with a substantial deterioration in their medical condition request a review themselves – Avon & Somerset has only received 2 self-referred requests for a regulation 37 review in the past 10 years. https://www.whatdotheyknow.com/request/pensions_6

The same story is repeated nationally. Too many IODs are living their lives with degenerative conditions brought on by their qualifying injury received in the execution of their duty without wanting to resurrect the pain of dealing with their former force’s bureaucracy.  So they continue on, living on an award banding lower than what they should be entitled to.  The point I’m clumsily trying to make is that if no IOD recipient thinks of requesting a review, it is not surprising to hear that no one knows that there is a power to ask for a reconsideration.

Regulation 32 became more widely known as a direct result of the the unlawfulness of home office circular 46/2004.  Between 2003 and 2009 hundreds of reviews were used to reduce former police officers to the lowest band due to the fact that they had reached the age of 65.  Despite the hardship this caused only a few had the mental strength to appeal and it wasn’t until the first Judicial review in 2009 that the light was shined on the illegality of what had happened.  By then those affected had missed the strict deadlines to lodge appeals.

The case of Haworth explains this clearly.  This was Northumbria again on their mission to ruin lives, guided in their quest by their legal advisor Mr Wirz.  Susan Haworth was retired on an injury on duty award and medical pension in 1995.  In 2005 she was reviewed and had her injury award reduced.  The decision was taken to the police medical appeals board (hearing in 2006) whereupon the board further reduced the award to the lowest band, a band 1.  Both the SMP in 2005 and the board in 2006 revisited causation and unlawfully attempted to claim that Susan had pre-existing conditions and then applied apportionment.  This was not permissible and was outside the task which they had to undertake under regulation 37.  Susan did not take the fight further (she was unaware she could challenge it at the time) until she realised several years later, after Laws V PMAB in 2009, that the decision made against her was unjust.  So in 2010 she sought advice and submitted a request for the 2006 decision to be reconsidered under regulation 32.

Here is an excerpt of the letter from her solicitor requesting the reconsideration:

‘It is against the background of the decisions of the SMP and the PMAB that Mrs Haworth is seeking a reconsideration under Regulation 32(2) of the Police (Injury Benefit) Regulations 2006. The detailed reasons for seeking this review (sic) are set out below, however in essence the decisions of both the SMP and the PMAB were not made in accordance with the relevant regulations , as it is clear that the SMP…..revisited causation as to the original final decision made at the time of Mrs Haworth’s ill heath retirement in May 1995, and the,PMAB ….then proceeded to apply an apportionment, again to a final decision made in May 1995. Both of these decisions are therefore unlawful, and not made accordance with the Injury Benefit Regulations.”

Typically and acting to type, Northumbria refused the reconsideration.  The refusal was taken to judicial review and Haworth won the right to have a her case heard under regulation 32.

The importance of Haworth is not only that it brought to light that a police pension authority needs a robust reason to refuse a request for a reconsideration – more than Northumbria’s claim of “It is important that final decisions, once taken, remain just that” and that Mr Wirz’s submission to the court that ‘re-opening of old-cases will affect the authorities budget’ is irrelevant to the matter at hand .  But also that there is no time limit to restrict the use of regulation 32:

“I cannot accept that it is lawfully open to a police authority to refuse a retired officer its consent to refer a final decision back to a medical authority for reconsideration under regulation 32(2) simply on the grounds of delay, even inordinate delay, in other words passage of time since the decision was made, without any consideration of the underlying merits of the matters which the former officer seeks to pursue on such a consideration”.

The power to demand a reconsideration is therefore unfettered by time and is always available as a viable option.

So what advantage does a reconsideration (reg32) have over a review (reg37)?   If a review (or the original decision that the review is based upon) is using the wrong diagnosis, if there is undue apportionment, if causation is incorrect, if a previous final decision was contrary to regulations; a further review can not fix the fault.  That fault will remain now and in future reviews for eternity – the comparator always is the last final decision whether or not that final decision was wrong. A review is blind to the legitimacy of the last decision.   So the only way to wipe the slate clean and have future reviews looking at the correct factors is to have the previous decision(s) quashed and regulation 32 provides a mechanism for this to happen.

SMP has left disabled former officers adrift…

iodpa Federation, HR, selected medical practitioner
SMP has left disabled former officers adrift…

Allegedly Dr Philip Johnson is no longer working for Avon & Somerset Constabulary as their nominated Selected Medical Practitioner.  Given there are 15 band 4s, under amoral intent referred to Dr Johnson for his consideration of substantial alteration to their medical condition, who saw said SMP over 3 months ago and still not received a decision, it is a shocking indictment of the arrogance of Avon & Somerset Constabulary.

So, what are the options open to the police pension authority now?

They have an obligation, indeed a legal duty to complete the review process. There is nothing in the Regulations which covers the circumstances where a SMP refuses to decide or can’t decide. The Regulations say that the PPA ‘shall refer for decision’ the statutory question of degree of disablement. Having referred it, and having got no decision, then the process is complete and it is shocking that severely disabled civilians have had no letter explaining the delay; no update, nothing but total silence, as if the HR department at Portishead are pretending as if nothing has happened.  At the least, the police pension authority and those delegated in its administration are culpable of serious maladministration; at most there is a case to be answered for Misfeasance in a public office.

A review is a highly stressful life event and this has affected the lives of those concerned since 29th May 2014.  Almost a year.  Some of the 16 have had serious relapses of their mental and physical health others have had surgical operations.  Why is the federation not asking questions?  Why is the force being so opaque?  The answers will be heard.

On the shoulders of Giants – Laws & Turner

iodpa caselaw, Regulation 37, selected medical practitioner
On the shoulders of Giants – Laws & Turner

It is no understatement to say that without Stephen Turner (versus PMAB 2009) and Belinda Laws (versus PMAB 2009 & Appeal Court 2010), police injury on duty pensioners would be in an extremely precarious position with police pension authorities riding roughshod over the regulations without impedance.  There was a wave of successful judicial reviews after them (regarding automatic reduction to band 1 at aged 65) but Turner and & Laws reaffirmed the regulations and arguably gave others the strength to challenge unlawful guidance.  They are truly the 0.001% who stood up and were counted and their efforts are held high in esteem.  The case-law can be found here

But what does Turner and Laws mean?

Turner V PMAB concerned substantial change and apportionment (the level of the index injury causing the degree of disablement when other non-IOD injuries are present).  It can be summarised into these points:

  • Causation can not be revisited at review.
  • A review of the degree of disablement can only occur if there is medical evidence of an alteration to the condition.
  • Apportionment can only be a factor if there was apportionment at the original decision.
  • No other illness can be considered at review other than that on the original certificate of disablement.
  • New skills or functional capacity can be considered if substantial alteration has been evidenced.

Laws reaffirmed Turner and, as it was challenged by the police authority and went to the appeal court, it is now the primary case-law that defines the application of the regulations at review.

  • A review does not allow the SMP or the Board to redetermine the merits of any earlier decision. They are only to decide whether there has been an alteration since the last decision.
  • The earlier decision as to the degree of disablement is a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”.
  • Acquisition of new skills can be a factor that determines how a disability of a duty injury affects the capability of work.  But the effect on earning capacity must be proven and more than speculative.
  •  The clear legislative purpose of the regulations 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.
Laws stipulates that a review is a comparative exercise  this means a comparison of the degree of disablement between the date of the grant or the last review.   The natural corollary of this is that medical records prior to the last decision are unnecessary.
There will be a post soon about what the SMP actually can and can’t do.

When SMPs ATTACK !!

iodpa HR, selected medical practitioner
When SMPs ATTACK !!
collusion
noun
secret or illegal cooperation or conspiracy in order to deceive others.
“the armed forces were working in collusion with drug traffickers”
synonyms: conspiracy, connivance, complicity, intrigue, plotting, secret understanding, collaboration, scheming

“there has been collusion between the security forces and paramilitary groups”

The regulations state the police pension authority shall refer for decision on the degree of the person’s disablement to a duly qualified medical practitioner (a selected medical practitioner or SMP).

You’d have thought that the SMP should be independent and blind to the process and only interested in answering the sole question put to them – the only duty on such a review, is to decide whether since then there has been a substantial change.

Here, not only is he referring to former officers injured in the execution of their duty as experts in process, legislation and points of law, he wants to revisit causation:they know the score.  Just because the federation exists (and we know how helpful they’ve been) there is no excuse to be ‘direct’ and not treat disabled individuals with respect and dignity.

It isn’t very good to discover that the SMP has been in contact with the force all throughout the process and has actually advised the HR department of the force how the former officers should be treated. It is also unnerving to find out that the same SMP has been working for the force before they have been actually contracted to perform their function.  SMP started in May but the force said he didn’t start his duties until late July !  https://www.whatdotheyknow.com/request/contractual_terms_of_reference_f#outgoing-409280

Q2. Please tell me the date he commenced his duties.

Dr Johnson commenced his duties on 24^th July 2014.

Why does the SMP think that refusal for full disclosure of medical records since birth is a manipulation of the process:  GP reports arent good enough.

When the sole question is substantial change since the last review then surely seeking to revisit causation and apportionment prejudices the decision making process

When the same SMP declares that the former officers ‘know the score’ and can seek legal assistance if they don’t like it – you know that this SMP isn’t actually independent and has an agenda.

PEAM and Bad Maths

iodpa HR, PEAM, selected medical practitioner
PEAM and Bad Maths

PEAM (Police Earnings Assessment Matrix)

“The Police Earnings Assessment Matrix (PEAM) was independently developed by Grantwood Consulting to enable the force to arrive at fair, reasonable and defensible assessments of the earnings potential of Police Officers. PEAM’s underlying principle is that there are a number of generic job levels in the police, public sector and the wider job market. The job levels enable:  The size of jobs to be assessed, particularly jobs in different functions or disciplines.  Base salary levels for a number of different market sectors or geographies. The job levels allow police officer positions to be compared with jobs of comparable size or weight in the public sector, private sector or police support staff populations. PEAM therefore combines best practice from both outside and within the police sector. It has also been tested to ensure compliance with equal opportunities requirements.”

Why is this bad maths.  Well its contrary to regulations for a start.  The regulations are quite simple and split the degree of disablement of earning capacity into 4 bands: slight, minor, major and severe:

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%

What the PEAM manages to do is turn a % given by a medically qualified selected practitioner  into another lesser % used by HR for the award.  For example, 75% (major and band 3) once put into the Police Earnings Assessment Matrix can be magically distorted into a minor band 1.  Basically PEAM is a device that is used to reduced an IOD banding into its lowest factor.  This fallacy was spotted in a Senior Counsel review of Injury on Duty Awards commissioned by the Northern Ireland Policing Board where Mr David Schofield QC stated in section 1.35

“I also recommend that, in the course of such a further review of Northern Ireland specific policy guidance in this area, serious consideration should be given to abandoning the currently recommended method of calculating percentage disablement, including detailed reliance on the ASHE survey and comparison with the officer’s notional uninjured police salary, in favour of a much more basic approach, whereby the relevant medical authority would simply make a judgment in the round as to the severity of the impact of the duty injury on the officer’s earning capacity, so as to select the officer’s appropriate band without the need to calculate a specific percentage disablement figure”.

chapters_1_and_14_of_the_scoffield_report__website_version_

In other words the injured former officer should be placed in band 1,2 3 or 4 based on a judgement ‘in the round’.  The regulations do not allow for inclusion of any manipulation by use of an invented earning matrix therefore this PEAM device has no de jure.

So the use of PEAM (or any convoluted matrix) is unlawful.  PEAM and other methods involving wage comparison resulting in a figure which purports to reflect future loss of earnings. An injury pension is paid as compensation for loss of the capacity to work, and the Regulations are blind as to how much or how little an individual might be earning, or be capable of earning.

The SMP (selected medical practitioner) is not permitted to look to the future when deciding degree of disablement. He must make his decision on the medical evidence at the time he makes that decision. The wording of the Regulations is,

‘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.’

Note, ‘has been’ not ‘will be’.

Note also, ‘capacity’ not ‘earnings’.

The SMP must make a decision in the here and now, and should relevant circumstances alter substantially in future, then the Regulations allow for a police pension authority to review the degree of disablement and revise the amount of pension paid.