smp

Collusion by Human Resources

Collusion by Human Resources

Who shall set a limit to the influence of a Human Being?

Waldo Emerson

 

Had the poet been around today, he might have mused over the influence of Human Resources (‘HR’) managers.

In this blog we take a look at another Employment Appeal Tribunal (‘EAT’) case and reflect on how the events and decisions made echo the experiences of too many disabled former officers.

The focus is on the dubious and what surely must be unlawful practice by some HR employees of exerting undue influence on the regulatory decisions made by Selected Medical Practitioners (‘SMPs’).

We could also say that some SMPs are more than willing to be influenced.

The case we briefly explore is the 2015 hearing of Ramphal v Department for Transport UKEAT/0352/14.

Here is the full report:

Mr_I_R_Ramphal_v_Department_for_Transport_UKEAT_0352_14_DA

 

Mr Ramphal was an employee of the Department of Transport. There was a disciplinary hearing to investigate possible misconduct in relation to the expenses Mr Ramphal had claimed and his use of hire cars.

Mr Goodchild, a manager with the Department of Transport, was appointed to conduct the investigation. Mr Goodchild was supposed to act as an independent and disinterested party, and he initially produced a draft of his findings of his investigation report, including his opinion that the misuse of hire cars was “not deliberate” and that the explanations given by the claimant in respect of expenditure on petrol were “plausible”. Mr Goodchild’s first report concluded that Mr Ramphal was guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct.

There then followed meetings of HR with Mr Goodchild as a result of which the report was amended with the findings in favour of Mr Ramphal removed. The report now concluded that Mr Ramphal’s conduct amounted to to gross misconduct and recommended that he be summarily dismissed.

The matter went to an Employment Tribunal, which held that Mr Ramphal had been fairly dismissed.

Mr Ramphal appealed on grounds that the investigating officer’s recommendations had been heavily influenced by input from Human Resources. The advice Mr Goodchild was given by HR was not limited to matters of law and procedure, and level of appropriate sanctions with a view to achieving consistency, but extended to issues of the claimant’s credibility and level of culpability.

The Employment Appeals Tribunal found in favour of Mr Ramphal, stating that employment judge had failed to apply the decision of the Supreme Court in Chabra v West London Mental Health NHS Trust [2013], which set out guidelines on the role of HR in disciplinary investigations. In particular, HR’s advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer.

A vitally important principle was drawn on by the EAT, namely that an employee against whom allegations of misconduct are made has an implied contractual right to a fair process. By interfering with what should have been an impartial decision by Mr Goodchild, the fairness of the investigation and hearing had been undermined.

This principle translates readily across to the role of the SMP, who is an appointed medical professional tasked by a Police Pension Authority (‘PPA’) to make a decision concerning the pension of a serving or retired officer.

Yet we hear, on a regular basis, accounts describing how HR employees interfere with what should be an independent and impartial decision. There appears to be a complete lack of understanding in some forces that there is a firm line between offering a SMP advice on the law and procedure and inserting HR into the actual decision-making process.

By way of example, and this is a very common occurrence, HR gather in information, often in contravention of data protection law, on an individual’s financial and other circumstances. They then present the SMP with often ludicrous opinion on what jobs and what earnings the individual might be capable of. In this way they influence the SMP’s decision on the individual’s degree of disablement.

Such practice is appalling, but worse examples exist. We know of one case where a HR manager colluded with a SMP to alter the decision of a Home Office appointed medical referee. The referee had decided a certain level of degree of disablement, and this decision was altered to a lower level of disablement, and thus a lower level of pension payment.

We also know of another instance where a HR manager ‘advised’ a SMP to follow their recommendation that the injury pension of a disabled former officer be reduced from the highest level of payment to the lowest.

In a Northwest force, they took things even further, and had an civilian employee deciding the degree of disablement of individuals and then having the SMP put his name to a decision which the SMP had no part in forming.

The Regulations require that a PPA refer ‘for decision’ to a duly qualified medical practitioner certain matters. Clearly, when a PPA hands that responsibility to a SMP it must step back and let the SMP form their own opinion, without influence and without interference. This simply is not happening in some forces.

IODPA believes it is time all police pension authorities take a close look at the processes which HR departments have constructed around the way in which medical decisions are made. Police Pension Authorities  need to take steps to ensure HR managers and SMPs are better informed and instructed on the limits of advice and how to prevent interaction between SMP and HR dragging them down into a quicksand of unlawful unfairness caused by undue influence.

Staffordshire – The Story To Date

Staffordshire – The Story To Date

All the things I really like to do are either illegal, immoral, or fattening.

Alexander Woollcott (1887-1943)

 

Elsewhere on our web site are numerous comments concerning the action taken by Staffordshire Police in reducing the pension payments due to a group of disabled former officers. The comments make clear the feelings engendered in reaction to this dramatic turn of events.

IODPA has refrained from making comment as the issue is undoubtedly going to be subject to prompt legal challenge.

However, we can give an account of what has happened so far.

Officers who are injured on duty to such an extent they can no longer perform the ordinary duties of a constable can be required to retire. They can be awarded a one-off gratuity payment plus a pension, payable for life, as compensation for no-fault injury.

The compensation scheme is governed by The Police (Injury Benefit) Regulations 2006, which is secondary legislation made by a Minister of State under provision of The Police Pensions Act 1976.

The Regulations, specifically regulation 37, allow the question of degree of disablement to be considered from time to time, as appropriate, for it is recognised that the disabling effects of duty injuries may worsen or lessen. If there has been a substantial alteration, then the amount of pension paid can be revised accordingly.

On 26th April 2017 Staffordshire Police commenced a programme intended to review the degrees of disablement of the over 300 former officers who are in receipt of an injury pension.

The programme quickly ran into difficulties as pensioners raised issues questioning the legality of the programme, both in concept and in detail.

A major issue was the insistence of Staffordshire Police that it be allowed full unrestricted access to individual’s medical records, from birth, and to personal financial information.

A number of pensioners refused to give permission, on the grounds that their personal data enjoyed detailed protection under data protection law and that there is nothing in the 2006 Regulations to require a former officer to submit any medical records made by any other doctor to the force or to any doctor employed by the force.

A further concern expressed by some pensioners was that they had no confidence Staffordshire Police was capable of conducting the review process lawfully. The content of various policy and process documents created by Staffordshire Police concerning the review programme arguably contained misinformation and misrepresentation of law.

A number of reviews were held, and the doctor tasked by Staffordshire Police to decide whether there had been any alteration in degree of disablement reported that, in some instances, due to the absence of permission to access medical records, he could not make a decision. The doctor later withdrew himself from any further involvement in the review process.

In December 2017 Staffordshire Police published a letter which sought to apportion all blame on the difficulties being experienced to, ‘a small number of individuals’.

It emerged that in the majority of instances where pensioners had refused unrestricted access to their medical records no decision was made on alteration of degree of disablement, despite it being a requirement of the relevant regulation (regulation 30) that the appointed doctor is referred the question ‘for decision’.

Each of the individuals concerned had attended an appointment arranged by the force with the force’s doctor. They answered all questions which were put to them, and allowed themselves to be medically examined where this was requested. Some provided medical evidence showing there had been no alteration in their degree of disablement. in some cases, the pensioners were recalled within months to attend a second medical examination. Again, they fully complied.

On 26th November 2018, we reported that seventeen pensioners had had their pensions reduced.

This is the letter that was sent out to those who had refused permission for unrestricted access to their medical records. We reproduce a redacted copy of one of those letters here.

Morgan letter redacted

 

The letters announce that Staffordshire Police has turned to regulation 33, which it relies on as giving authority to reduce the injury pensions of those who had refused permission for unrestricted access to their medical and access to financial records.

It is worth reproducing regulation 33 here:

Refusal to be medically examined

  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 letter indicates that Staffordshire Police has taken the view that it was not enough for the individuals concerned to have submitted themselves to such medical examination as had been arranged for them with the force’s doctor, and to have allowed themselves to be interviewed by the doctor.  Staffordshire Police appears to believe regulation 30 covers access to personal medical and financial information. Staffordshire Police thus claims there has been either a wilful or negligent refusal.

Consequently, a decision has been made by the force to reduce the pensions of the individuals concerned.

Moreover, the reductions are to be back-dated to the time when they saw the force’s doctor.

The letter is essentially identical to each individual. Each letter fails to give any reason or insight into how the decision to reduce the pensions was taken, or on what evidence.

IODPA understands that solicitors have been instructed in challenging this extraordinary action by Staffordshire Police.

We will provide updates as the situation evolves.

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

David Lock QC: Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP

Court holds that Chief Constables are under positive legal duty to refer permanently disabled police officers to an SMP for IOD assessment on retirement if the officer “may” have an entitlement to a police injury pension.

In a ruling on 20th July 2018, that may have significance for many other disabled former police officers, HHJ Moore has decided that Chief Constables who require a police officer to retire on the grounds of permanent disablement can be under a legal duty to refer the officer to an SMP to decide whether the officer is entitled to a police injury pension.  The Judge decided the legal duty will arise in a case where the SMP report contains information which indicates that that the officer may have a right to a police injury pension.  This positive duty means that the Chief Constable is required to take the initiative by making an SMP referral in appropriate cases, and cannot just wait until the officer makes a request.

This important principle was decided in the case of former Sergeant Lloyd Kelly who was serving with the South Yorkshire Force.  After a long career of public service, Sgt Kelly was required to retire after developing a permanent medical condition in 2005.  The SMP report showed his condition was clearly duty related, but no referral was made by the Chief Constable to an SMP to make a decision whether he was entitled to an enhanced police injury  pension.  Police pension rights are complex and, as with many officers, Sgt Kelly was unaware that he may have been entitled to an IOD award as well as his standard ill-health pension and so did not request an SMP referral.

In 2016, Sgt Kelly learned that he may be entitled to an injury award and so applied to West Yorkshire Police to have his case considered by an SMP for the first time.  He was assessed by a new SMP and awarded a substantial police injury pension.  But contrary to Regulation 43(1) of the Police (Injury Benefit) Regulations 2006 (“the 2006 Regulations”), the Chief Constable refused to pay a backdated award from the date of his retirement.  Sgt Kelly, supported by the Police Federation and Slater and Gordon Lawyers, appealed that refusal to the Sheffield Crown Court under Regulation 34 of the 2006 Regulations.

On 20th July 2017, HHJ Moore held that Sgt Kelly’s case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the Chief Constable was attempting to gain a windfall from his predecessor’s breach of its legal duty by failing to pay the back-dated pension.  The Judge held that the scheme of the Regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement.  Hence, he directed the Chief Constable to pay the backdated pay in full and with interest from the date of the award.

However the case has wider significance because the Judge also decided a Chief Constable has a positive duty to refer disabled police officers into the IOD system if they may have a right to a pension, and cannot simply wait until the officer makes a request.  He reached this decision based on:

  1. the duty on the Chief Constable to make a decision as to what pensions were owing to the former officer under Regulation 30(1) of the 2006 Regulations,
  2. the common law duty the Chief Constable owes to police officers,
  3. the requirement to make reasonable adjustments in favour of disabled officers (now under the Equality Act 2010), and
  4. to give effect to the officer’s rights under Article 1 of Protocol 1 of the ECHR.

The Judge also followed the cases of Tully and Schilling in deciding that the police pension system provided for back-dated pensions payable from the date of retirement for officers who were permanently disabled on retirement, even if the pension award decision was taken at a later date.

The Court ordered the Chief Constable to pay all of the former officer’s legal costs.

Recording Reviews

Recording Reviews

There are some things one remembers even though they may never have happened.

Harold Pinter – Old Times 

In an earlier blog, we highlighted some of the barriers which stand in the way of justice for disabled former officers in receipt of an injury pension, and serving officers seeking to retire due to injury on duty or disabling ill health.

We commented on how individuals are effectively prevented from securing their pension rights.

The system seems loaded against them due to the scarcity of information, support and professional representation. IODPA reaches out to those who would otherwise not secure their pension rights and in so doing we learn about and witness first hand the deficiencies of some of the doctors who are asked to provide medical assessments on behalf of police pension authorities.

One aspect of these assessments which our members have highlighted is the matter of the reports which these ‘selected medical practitioners’ (SMPs) produce. All too often they seem to bear little resemblance to what was said and done during the assessment.

The upsetting experience of one of our members might illustrate what we mean.

An injury on duty pensioner was being assessed by a SMP for the purpose of determining whether there had been any alteration in his degree of disablement.

The SMP referred the pensioner to a consultant neuropsychiatrist, who saw him some little time later. The pensioner had his wife present throughout the assessment. He was asked some questions about alcohol consumption,  and the pensioner stated that he, together with his wife, drank three bottles of wine a week.

When the consultant’s report was issued, the pensioner, and his wife, were shocked to see that the consultant had written that he drank three bottles of wine a day and believed he should be categorised as presenting with ‘Harmful use of Alcohol’. The consultant went on to comment that he should reduce his alcohol consumption and be prescribed thiamine – a drug given to alcoholics to help reduce vitamin deficiency.

It was bad enough that the consultant, who was not entitled to make any recommendations, or even comments on treatment, did just that, but worse was yet to come, for the error was not corrected.

When the pensioner pointed out the error to the consultant and asked for her report to be amended,  the consultant refused to do so. Thus this error, which essentially labels a sober man an alcoholic, has remained on file.

The point of this illustration is that, if the assessment had been recorded, then the error would have been revealed in evidential form and would have been corrected, either by agreement, or by compulsion through legal proceedings.

You might think it only common sense that medical assessments and interviews held in connection with police pension rights should be routinely recorded. That the doctors concerned be supplied with proper recording equipment, which produced a simultaneous copy for the medic and for the individual.

However, that is not the case, and is likely to remain the situation. Not least because some SMPs have voiced opposition to any form of recording of their sessions. Some have gone so far as attempting to stop individuals from making their own recording of the assessment or interview. We will comment on that situation below.

In our earlier blog we produced figures on the number of appeals made to Police Medical Appeal Boards concerning pension matters. For an appeal to be arranged, a police pension authority must accept that there is reason to believe an error of fact or law was made – by a SMP or by a police pension authority.

We believe that the number of appeals heard cast only a glimmer of light into the darkest of corners. It is entirely probable there are many more errors which have not been revealed and have not been challenged.

Of course, it is not only SMPs and consultants who can have faulty recollection. A study [1] revealed that patients only retain between 40% and 80% of what their doctor has told them during a consultation. It is not hard to understand that former officers with mental injury, placed under the huge stress of a medical examination and interview, the results of which will determine the amount of their pension, might find it even harder to recollect much of what went on.

It is partly for that reason IODPA recommends members always have someone with them during any process concerning their pensions.

We are aware of instances though, where certain SMPs have objected to anyone other than the individual being privy to what is said and done. Happily, the General Medical Council (GMC) has advised that doctors should not raise any objections to a friend being present.

Looking at the wider picture, it would be better all round if there were fewer appeals. There would be less stress and financial uncertainty for the individuals and less cost for forces. To achieve a reduction in appeals, however, there would need to be a decrease in errors, and we think that is unlikely to come to pass, given the fact that, by all the accounts we receive, SMPs and police pension authorities are, shall we say, rather prone to committing errors.

Errors should be corrected without the need for appeal to a PMAB. The Police (Injury Benefit) Regulation 2006 make that very clear, for regulation 32, parts (2) and (3) makes provision for SMP’s to be asked to reconsider any decision.

A reconsideration is an opportunity for the SMP to be made aware of any errors of fact or law, and to correct them. But, before an individual can bring such matters to the attention of a police pension authority and request a reconsideration the errors need to be identified.

IODPA therefore advocates that anyone who attends a medical interview or examination by a SMP, or any other doctor to whom they have been referred to by a SMP, should not only insist they are accompanied throughout by a friend, but should also make a recording of the entire event, and should do so openly.

We advise that the doctor be told the session is being recorded.

If any doctor objects, then the objection should be acknowledged and the doctor told they have no legal power to prevent the recording.

Doctors should have no cause to object, for a recording is as much a protection for them as is it is to the individual.

Recording is lawful because you are only processing your own personal information and are therefore exempt from data protection principles.

The recording remains the property of the individual, who may well find it could be admitted as evidence should they decide to appeal any decision made by the SMP, or if matters go to an industrial tribunal or judicial review. The GMC will also likely accept the recording as evidence in any complaint proceedings against a doctor.

A little bird has told us that a certain SMP thinks that they have the authority to ban individuals from making recordings of medical interviews and examinations.

That SMP is wrong.

Expert police pension solicitor Mark Lake advises on the argument that a recording, covert or otherwise, may not be admissible in legal proceedings:

I do not think such an argument can possibly succeed for 2 reasons. First, the SMP is acting as a public law decision maker in this interview and not as a treating doctor.

Second, any confidentiality in the consultation belongs to the patient and not the doctor.

Although a SMP may be considered to act in a quasi-judicial way, that is solely because any decisions made are binding unless appealed. By decisions we mean only those a SMP is tasked to make under the Regulations. A SMP is not a judge and does not have the powers of a court.

Essentially a medical interview or examination for pension purposes under the Regulations is just that – a doctor’s consultation with a person who they must respect as having the status of patient. The doctor must abide by the ethics of their profession and also with the law, with particular regard to the Access to Medical Reports Act 1988 and the General Data Protection Regulations.

Is the view of IODPA on the recording of these sessions a lone one? It seems not, for we can turn to the combined wisdom of the General Medical Council and to the Medical Defence Union, the Medical Protection Society and the Medical and Dental Defence Union of Scotland for their opinions.

All of these organisations recommend that doctors raise no objections to a patient recoding any interaction with them.

The GMC has confirmed there exists a doctor/patient relationship when a doctor is conducting a medical examination or interview for an employer or pension scheme manager. SMPs are obliged to follow GMC guidelines and advice, as failure to do so opens the door to civil claims and to complaints to the GMC.

In its guidance on good medical practice, the GMC states:

You must give patients the information they want or need to know in a way they can understand. You should make sure that arrangements are made, wherever possible, to meet patients’ language and communication needs.

Clearly, this is an endorsement of patients making recordings, which allow them to obtain the information they need in a form which enables considered analysis of the information.

The Medical Defence Union offered its opinion in its publication ‘Good Practice’ [2] The article says:

By recording a consultation to listen to again later, patients are less likely to miss something important.

And;

It would be a mistake to think they are trying to catch you out or that a complaint or claim will inevitably follow. If you are concerned that the patient’s actions are a sign they do not trust you, you may want to discuss this with them at a later date, but recording a consultation is not itself sufficient reason to end your professional relationship with them.

The Medical Protection Society gave its opinion in its publication ‘Practice Matters’ [3] The article says:

A recording would potentially provide even more detail to support the doctor’s professional position. There should be no reason therefore why you should have anything to fear from such a recording.

And;

A patient does not require your permission to record a consultation. The content of the recording is

confidential to the patient, not the doctor so the patient can do what they wish with it. This could include disclosing it to third parties, or even posting the recording on the internet.

In a press release dated 2nd July 2015 [4], the Medical and Dental Defence Union of Scotland stated:

In an ideal world, patients would not feel the need to covertly record a consultation and would be open about it, says Dr Peddie, however, doctors should not necessarily feel threatened when they become aware of a recording. Indeed, a recording may be helpful in avoiding misunderstandings.

So there we have it. Recording of medical interviews and examinations for any purpose concerning pensions or ill health retirement is lawful, and is encouraged by doctor’s professional organisations.

SMPs should take careful note of this and accept that an accurate record is essential to ensure errors of law or fact can be revealed and dealt with without the need to take matters to a PMAB.

As for PMABs, then IODPA urges the Home Office to make provision for official recording of everything said and done during an appeal hearing and to advise PMABs not to obstruct appellants or their legal representatives who wish to make recordings.

 

[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC539473/ – Journal of the Royal Society of Medicine, 2003

[2] https://www.themdu.com/guidance-and-advice/journals/good-practice-june-2014/patients-recording-consultations – Good Practice June 2014

[3] https://www.medicalprotection.org/docs/default-source/pdfs/uk-practice-matters/practice-matters-oct-2014.pdf – Practice Matters, Volume 2, Issue 3, page 6, 2014

[4] https://www.mddus.com/about-us/media-centre/2015/july/doctors-should-not-fear-covert-recording –

Police Medical Appeal Boards

Police Medical Appeal Boards

Access to justice is a fundamental requirement for the rule of law, by which people have their voice heard, exercise their rights, challenge discrimination, and hold decision makers to account.

The Law Society

 

We are going to talk about Police Medical Appeal Boards.

The British legal system is often said to be the envy of the World. In the criminal justice system an accused person is assumed to be innocent until proved guilty. The proof of guilt is a high one. Whoever is tasked with deciding guilt is proved must arrive at a finding of guilt beyond all reasonable doubt.

Even when found guilty, a person can usually appeal the decision, providing there are some good grounds for believing the decision was in some way flawed.

These two principles apply to most other forms of hearing, such as disciplinary hearings, employment dismissals, grant of a licence, state benefit decisions and right down to parking fines.

So too with decisions made by a police pension authority and by medical professionals acting for the police pension authority.

Anyone who has been reading the blogs on this site will be under no illusion that police pension authorities and their ‘selected medical practitioners’ (SMPs) have a remarkable talent for making decisions which are unsound and eminently suitable for appeal.

So, how many unsound decisions are being made?

Unfortunately, it is impossible to say with certainty, for decisions made by police pension authorities and their SMPs are not subject to any oversight whatever. Unlike in a court of law there is usually no person present who represents the officer or former officer. Nobody to spot the mistakes, or to make at-the-time objections. Nobody to review the decision once made, to examine it for factual accuracy and legal compliance.

IODPA exists to offer advice and support to any former officer who has concerns over their injury pension and we applaud the good work of all local NARPO’s and the Federation where they are able to guide individuals through the tribulations of ill health retirement or the trauma of a review of degree of disablement.

Worse, where the decisions are being made concern disabled former officers who were injured on duty, the individuals subject of the decisions are, we have good reason to say, almost always totally unaware of the police injury pension regulations and thus have no way of knowing whether the process of decision making, or the decision itself is flawed. What greater disservice could there be to officers injured in the line of duty than to leave them unaware of their pension rights and without any support to help ensure they receive the benefits they are due..

Police Forces themselves universally stay clear of offering any advice or assistance – and we can understand their reasons for doing this, but suspect their reasons are not always grounded in concerns to remain impartial. The best any individual can hope for is a brief few lines mentioning NARPO or the Federation and the availability of appeal to a PMAB.

Despite this sorry situation, some individuals must feel so aggrieved by a decision they decide to appeal.

We should bear in mind that decisions made by a SMP are medical ones. That is, they are nothing more than a medical opinion. In that sense, they can rarely be arrived at beyond all reasonable doubt, for diagnosis is not an exact science. Where the decision contains elements of prognosis we depart rapidly a great distance away from certainty, for prognosis is entirely speculative and uncertain.

A PMAB is composed of a panel of three doctors, one of whom must be a specialist in the field of medicine most relevant to the duty injury or injuries of the appellant. The rationale is that only other doctors can offer an opinion contrary to that of a SMP.

When a disabled former officer arrives at a PMAB hearing they are often as poorly prepared as they were in the earlier stages of life as a disabled person. Only those who have secured assistance from IODPA or from the Federation will have anyone to represent them and to look out for their best interests. Pensioners are at the mercy of the Board, and of the arguably fallible SMP, who will inevitably be at the hearing.

Pensioners will also find that their pension authority is represented by a solicitor, or even a barrister, though sometimes they rely on the cheaper services of a self-styled pensions expert or someone from the force’s HR or Occupational Health Department.

It is a testament to the firmness of purpose of the few pensioners who do have the will and the ability to negotiate the many barriers put in their way to getting justice, that there are any appeals at all. IODPA is all too well aware that for the vast majority of individuals the barriers are too daunting a prospect. They have to accept the decisions made, for their circumstances are such they have no hope whatever of taking matters to appeal. For some, the trauma and stress would do so much harm to their delicate health they fear to seek justice.

So, given that, for now, we don’t know how many decisions made by police pension authorities and SMPs have been flawed, and thus susceptible to challenge, how many PMABs have actually been held in recent times?

A freedom of information request – https://www.whatdotheyknow.com/request/smp_police_medical_appeal_boards – made by a Lily Nightingale, which may or may not be the same Lily Nightingale who is an SMP, has revealed this:

  • In 2014 there were 66 appeals heard, of which 23 were upheld, and 43 rejected.
  • In 2015 there were 93 appeals heard, of which 24 were upheld and 69 rejected,
  • In 2016 there were 119 appeals heard, of which 94 were upheld and 67 rejected.
  • In 2017, there were 94 appeals heard, of which 35 were upheld and 59 rejected.
  • In the first quarter of 2018 there were 20 appeals heard, of which 10 were upheld and 10 rejected.

From those figures we can calculate some percentages.

  • In 2014 65.15% of appeals were rejected
  • In 2015 74.19% of appeals were rejected
  • In 2016 56.30% of appeals were rejected
  • In 2017 62.76% of appeals were rejected
  • In 2018 50% of appeals were rejected
  • Overall, 63.26% of all appeals were rejected

If we are to search for reasons why more appeals are rejected than succeed, then more research would be needed. We can theorise that one reason may be that doctors are reluctant to disagree with an opinion of a fellow medical professional. Another may be that where appeals were rejected the individual was not represented or poorly represented.

Given that we know decisions made by PMABs do get challenged successfully by way of judicial review or by complaint to the Pensions Ombudsman, we can also consider it is possible the medical people who form the Boards may lack the legal knowledge necessary to ensure they arrive at decisions which are not biased or arrived at by consideration of irrelevant factors, or by dismissing or ignoring relevant factors.

Unlike the criminal justice system, the appeals concerning matters arising from the Police (Injury  Benefit) Regulations 2006 are heard by a panel selected by and trained by a for-profit commercial company. The doctors who sit on the PMABs are paid a fee, as are the SMPs who attend and whose decisions are being challenged. Representatives of the police pension authority are likewise paid a fee or are on a salary from their police force.

The appellants, in contrast, have no financial assistance save the few who manage to secure some from the Federation. On those grounds alone, the appeal system is weighted in favour of the police pension authorities, who think nothing of spending public money defending their actions.

Appellants are not accused of any crime, yet they seem to have far fewer rights, and lesser safeguards ensuring fairness, than any common criminal. Far too frequently the system as currently established is effective in denying them their pension rights and blocking any paths to the possibility of redress.

The freedom of information request supplies a list of names, of the SMPs whose decisions were being appealed. Not too much can be read into this, as there are not many doctors willing to debase their profession by taking on SMP work. However, even though the likes of Drs William Cheng, Ralph Sampson, David Bulpitt, Johnathan Broome, and, yes, Lily Nightingale appear frequently on the list of appeals via PMAB, it might be preferable to contemplate which SMPs names are consistently absent from the list.

In a well ordered system there would be no need for appeals. But until there is reform PMABs will remain a stain on the enshrined principles of justice. Until justice can be made freely accessible to vulnerable disabled former officers there is no certainty of justice being found. Until vulnerable disabled former officers can know themselves supported and properly advised and represented throughout all stages of ill health retirement and reviews of degree of disablement then the ill-disposed, the ignorant or misinformed, the lazy and the incompetent who administer the systems within which injustice is allowed to flourish will ensure a steady flow of appeals.

Whilst all those who either do not know they have been victims of injustice and all those who do suspect but are unable to do anything about it will continue to suffer injustice unseen and unheard.

Chief Constable Morgan’s open letter

Chief Constable Morgan’s open letter

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

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

Open letter

21.12.2017

Pension review of retired Injured on Duty (IoD) officers

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

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

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

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

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

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

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

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

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

Gareth Morgan

Chief Constable, Staffordshire Police

21 Dec 2017 17:00:08 GMT

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

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

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

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

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

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

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

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

SMPs Have No GMC Immunity

SMPs Have No GMC Immunity

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

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

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

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

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

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

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

Wirz says in his training material to SMPs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Take a look at this agenda of a 2012 ALAMA conference

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

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

34242.pdf

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

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

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

MATTHEW ROONEY Petitioner; against STRATHCLYDE JOINT POLICE BOARD

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

Judge, Jury And Jackass

Judge, Jury And Jackass

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We thought you should know…

 

 

Ms Doubtfire & Mr Williams

Ms Doubtfire & Mr Williams

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr Staley stated in his 2009 report that:

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

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

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

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

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

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

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

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

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

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

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

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

And for Mr Williams,

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

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

Let us take a closer look at this Regulation.

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

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

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

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

The Regulations do not call for a diagnosis.

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

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

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

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

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

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

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

Justice Pelling put this into legal speak:

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

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

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

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

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

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

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

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

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

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

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

The sensible ones have stepped off the field.