smp

Do SMPs Put Their Patients First?

Do SMPs Put Their Patients First?

No man has a good enough memory to be a successful liar
Abraham Lincoln

In our previous blog we looked at some serious misconceptions which have been implanted in the minds of SMPs. Now we need to focus some more on the shortcomings of certain SMPs.

For new readers, we first need to explain that the Police (Injury Benefit) Regulations 2006, govern a compensation scheme which grants pensions to officers injured and disabled in the line of duty who, as a result, have to leave the police service. The Regulations require the scheme managers to appoint a ‘duly qualified medical practitioner’ to decide certain medical questions. Usually, the medical professional is a doctor registered with the General Medical Council. The doctor, once appointed, is generally referred to as the Selected Medical Practitioner, or (‘SMP’)

We made the important point in the last blog that SMPs are nearly all doctors who have made a living not from healing and caring, but from finding work in the field of occupational medicine, formerly known as industrial medicine, where they spend their days concerned with the maintenance of health in the workplace, including prevention and treatment of diseases and injuries, with secondary objectives of maintaining and increasing productivity and social adjustment in the workplace.

Some SMPs have been misdirected over the nature and extent of their role within the Regulations. However, we do acknowledge that not all SMPs have been tainted by what can only be described as, pardon the pun, ‘indoctrination.’

We applaud all honest and decent SMPs, and members of HR and Occupational Health departments in those forces where they have ignored or dismissed the nonsense touted by a small handful of people whose disreputable motivations are tinged with biased.

It needs to be made clear that all medical interviews and examinations conducted by SMPs are of damaged people. Every officer or former officer they see will have suffered potentially life changing physical or mental injury. Many will have suffered both physical and mental damage. They deserve to be approached with kindness and understanding. Qualities which are entirely lacking in some SMPs.

The man on the Clapham omnibus would be forgiven for thinking that scheme managers and SMPs  would make their prime responsibility the welfare of the officer or former officer. Shamefully, that is generally not the case.

For example, we hear frequently of the complete lack of any regard to the both the practical and psychological difficulties faced by officers and former officers when called to attend a medical examination or interview. It’s not hard to wonder at the unthinking attitude of any force which apparently sees nothing amiss in arranging for these SMP sessions to take place on police premises.

This should be the last place a traumatised individual should be asked to visit. This choice of venue is guaranteed to increase the risk of triggering flashbacks in PTSD sufferers, and inevitably gives the impression of an intention to control and dominate events. The oppressive nature of this arrangement illustrates the unhelpful attitude we see in some forces, where injured, disabled former officers are seen only as a drain on resources, Although they have left the force, are no longer employees, some forces deal with them as though they were.

Instead of being politely asked to attend a SMP session, they are often, ‘advised an appointment has been arranged’. No consideration given as to whether the place or the time, or the travelling to and from might be inconvenient or difficult for the individual.

IODPA believes that all SMP sessions should be held on neutral territory, preferably a medical facility, properly designed and equipped to cater for the needs of disabled people. SMP appointments should be made at a time and place convenient to the individual, not arranged entirely for the convenience of the force or the SMP.

Returning to misconceptions, one which some SMPs have acquired is thinking that they can lay down rules about how a medical interview and/or examination by them shall take place.

We have heard much about the unpleasant and coercive practice whereby the SMP asks the disabled person to complete a sort of customer satisfaction survey. No, you can’t take it with you to complete and send it. You must do it now, and no, you can’t have a copy. Complete it before I commence my examination and interview and if you don’t then I may not be able to proceed.

Coercive behaviour of that nature is unbecoming of any medical professional.

We have heard of SMPs who are never more happy than when their decisions are appealed. They can sit back and let the force’s legal department take over whilst they look forward to another fat fee for attending the appeal hearing. At the going rate for SMP services of a minimum of £250 an hour, that is as shady dealer Arthur Daley would say, ‘A nice little earner.’

We frequently are told of SMPs reports which bear little to no relation to what was said and done during an examination or interview. In the most extreme examples an SMP has told the pensioner that the decision will be no alteration in disablement, and hence no reduction in pension payments, only for the SMP’s report to show otherwise.

We have heard of venues where ‘security cameras’ capture the arrival of the disabled individual and follow their progress right into the room where the examination/interview is to take place. Whilst capturing video for security purposes is acceptable, it is not at all acceptable for an SMP to then view the footage to see how the disabled person arrives, whether they come by car, and what make and model of car, and whether they drive or not, or how they manage the stairs, opening doors, how they walk, etc. All done without the individuals knowledge or consent, and with a view to taking these observations into consideration when making a medical decision.

Mention of video recording leads us naturally into what has been a contentious issue, and the cause of much distress to disabled officers and former officers who are assessed by a SMP. The Regulations do not set out anything about audio or video recording. Nor do they grant any power whatever to SMPs to allow them to ban recording by the individual.

No honest SMP would see any reason to object to recording. Those who have objected can only have done with one objective in mind, and that is to prevent an accurate record of proceedings being made, so their version of events can not be successfully challenged.

We also hear, too frequently, of SMPs who either downright refuse or strongly object to the disabled individual having a friend, supporter, or carer present during the examination/interview. This of course gives rise to justified suspicion that the SMP wishes to place the individual at a disadvantage whilst also ensuring that there is no witness to the proceedings who might later dispute the SMP’s version of what was said and done.

Needless to say, the GMC and other medical professionals’ organisations advise all doctors conducting any professional interaction with individuals to allow a friend, carer or chaperone to be present if the patient so wishes.

And it is the use of the term ‘patient’ which some SMPs think gives them wriggle-room to behave in ways that contravene GMC guidelines. They claim that the individual is not their patient, so the guidelines don’t apply. In thinking this they are sorely mistaken and IODPA advises all its members and any non-members reading this that no SMP can refuse the individual having a friend, carer, supporter, or even a legal representative present.

It is frankly indicative of their combative mind-set that some SMPs would even dream of trying to refuse or object to the presence of a companion. Due variously to misinformation, lack of information, deficient expertise, even natural inclination, some SMPs see themselves as protectors of their force’s budgets. They are on a mission to seek out every little opportunity to find a reason however flimsy, however inventive, or however fly-in-the-face of the facts it is, to come to a decision which results in a reduction of benefits due.

In a blog published last year – https://iodpa.org/2018/07/03/recordingreviews we said:

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 SMP is supposed to be an independent medical expert whose role is to weigh all the medical evidence lawfully available in a truly disinterested manner. It should not be any concern of the SMP whether any decision they make results in financial advantage or disadvantage to the individual. Their responsibility is to the Regulations, which require them to make a decision, and by clear inference to make that decision free of bias, and with due consideration of all relevant factors, with the exclusion of irrelevant factors.

Presently, that is not happening universally. In plain terms, there is a whole lot of dodgy behaviour going on, both with some SMPs and with some HR and Occupational Health staff. In the worst cases the corruption has spread to the top of the tree.

For the sake of all that is decent, for the sake of the reputation of the medical profession, for the sake of the health and well being of disabled officers and former officers, this must stop.

The Wirz virus

Virus found

Like computer viruses, successful mind viruses will tend to be hard for their victims to detect. If you are the victim of one, the chances are that you won’t know it, and may even vigorously deny it.

— Richard Dawkins: English ethologist, evolutionary biologist, and author.

 

Doctors are expected to do what they can to prevent the spread of viruses, and to cure those who are made ill by them.

How contrary then is it that a handful of doctors seem content to be infected by a species of virus which has taken hold in their own minds? A virus, the very specific effects of which are to confuse the host with delusions of power and a warped interpretation of the set of Regulations which govern the police injury award scheme.

We speak of those doctors, who act in the role of ‘selected medical practitioner’ (SMP) for the several Police Pension Authorities (PPAs) in England, Wales and Northern Ireland. SMPs have a role in the administration of the police injury benefit scheme. They are responsible for making certain regulatory medical decisions. The most notable being determining an officer’s or former officer’s degree of disablement resulting from injury on duty.

A certain solicitor, after whom the virus is named, who is employed by a certain Northern police force is suspected, with good reason, as being responsible for the creation of the virus and for its release.

The virus is known as the Wirz virus and has been in circulation for some time now – and we in IODPA think it is long overdue that all PPAs, all the Human Resources departments of police forces, and all doctors who act as SMPs or as panel members of police medical appeal boards should be made aware of the virus and the threats it contains to their reputations and careers.

Disabled former officers, and injured serving officers also need to be made aware of the Wirz virus and of those doctors and others who have been infected by it. And that is where IODPA can help.

IODPA exists to provide advice, support and defence of their pension rights. We regularly hear of mistakes made by those involved in the management of the police injury benefit scheme. Mistakes arise from a variety of causes. Some are due to lack of training, some from lack of knowledge, some from carelessness, some from prejudice, some from laziness, some from a lack of moral courage, some from a desire not to be seen as a poor team player and a few from deliberate intent.

All of these can usually be dealt with, and corrected, one way or another, but the Wirz virus inserts something much more damaging than simple mistakes into the system. The Wirz virus spreads misinformation and does so in a way which leads those infected to absolutely believe the misinformation. Those infected inevitably produce work and decisions which are always legally flawed. Their entire output is contaminated.

That causes great harm to disabled former officers, injured serving officers, and their families. It also harms the hosts – the carriers of the virus – and the reputation of the medical profession itself.

Our sympathies are centred on the victims of maladministration but we do reserve a small concern for any honest, decent, ethical doctor or HR staff who might have unwittingly been infected by the Wirz virus. We have, however, no sympathy whatever for anyone who deliberately or negligently denies disabled former officers or injured serving officers their pension rights.

Whilst feeling a little bit sorry for some SMPs, we recognise also that the role of SMP is reportedly widely recognised within the medical profession as something to be avoided at all costs. The main factor informing that perception appears to be an awareness of the strong likelihood of becoming embroiled in litigation and complaints due to being required to act in ways unknowingly contrary to the Regulations. The Wirz virus causes SMPs and others to believe all complaints, all challenges to maladministration are vexatious and, above all, should not be made as SMPs have immunity from professional regulatory investigation or proceedings

Let’s divert briefly to highlight the origin of this situation.

By a peculiar initiative of the Home Office, it became a requirement that SMPs should preferably hold a qualification in occupational medicine.

In 2002 it was agreed by the then Police Negotiating Board that it should produce, with the Home Office, joint guidance for police authorities and force senior managers on the key areas of managing ill-health retirement.

In due course a joint circular was issued which contained this:

Qualifications of FMA and SMP

  1. It is difficult to be prescriptive about the minimum qualification an FMA should have since there are many existing FMAs with considerable experience but relatively few occupational health qualifications. New FMAs should be recruited with the minimum requirement that he or she be an Associate of the Faculty of Occupational Medicine (AFOM) or EEA equivalent and be given the opportunity quickly to build up a good knowledge of the police service and the range of duties that need to be performed.

  2. Ideally, the SMP should be a Member or Fellow of the Faculty of Occupational Medicine (MFOM or FFOM), or EEA equivalent. The minimum requirement should be that he or she is an Associate of the Faculty of Occupational Medicine (AFOM) or EEA equivalent. Before appointment as SMP the police authority must provide the medical practitioner concerned with an induction programme and other training so that he or she has an understanding of what police service entails.

The logic of this advice is suspect as it seems to suggest that only a doctor with such a qualification has the skill and experience to perform the role. If the role of SMP included a brief to help injured officers back to health so they could continue to serve, then an occupational health qualification might be useful. But SMPs are not required to do that. They have no part to play (and rightly should have no part to play) in treatment of an officer or former officer.  A SMP is there merely to decide certain regulatory questions which are part of either the ill health retirement process or part of the injury benefit scheme. It seems to IODPA that an occupational health qualification is pointless and by only selecting doctors with that qualification to act in the role of SMPs helps create conditions for maladministration.

Any illusory advantages an occupational health qualification might bring are heavily outweighed by  one major disadvantage. At a stroke the agreement reduced the pool of potential doctors who might wish to act in the role of SMP down to a fraction. In 2018, almost 290,000 doctors were registered in the United Kingdom. Few hold, or want to hold, qualifications in occupational health.

The net result is that SMPs nearly all come from a very restricted pool of medical professionals who by no stretch of the imagination can be said to be sufficiently ‘appropriately qualified’ as required by the Regulations. More experienced, better qualified doctors are excluded.

Back to the Wirz virus.

Mr Wirz. With the cooperation of that esteemed body of rational thought and learning, the Police College (wholly funded by the Home Office), decided to give SMPs the benefit of his inestimable insight into the detail of the police injury benefit scheme. A training programme was devised. It was given the grand title of Police Pensions (SMP) Development Event and was held at the college on 31st January 2014.

We have visited the content of Mr Wirz’s presentation before, and continue to hold our low opinion as to the quality, relevance and accuracy of the content. For now though we need look at only one section to make the point that this training was responsible for sowing confusions and misdirecting SMPs.

Mr Wirz, addressing the issue of complaints made to the General Medical Council by officers and former officers against SMPs stated,

The GMC believes it has jurisdiction over medical practitioners performing a function under the Regulations.

He continued:

It is by no means clear that the GMC does, in fact, have jurisdiction over an SMP when acting as such. 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 Coroner.

Really?

IODPA is aware the GMC has consistently been very clear that SMPs need to act according to GMC guidelines, and that breaching those guidelines carries a risk of complaint and consequent investigation by the GMC.

We present here the recently-expressed view of Mr Percival who is the Principal Legal Advisor and Deputy General Counsel to the General Medical Council, and Judge, First Tier Tribunal Health, Education and Social Care Chamber at HM Courts and Tribunal Service.

Even in the case of judges who sit in courts or tribunals, there is not complete immunity from regulatory proceedings. This is demonstrated by the existence of the Judicial Conduct Investigations Office, with powers to investigate misconduct relating to a judge’s personal behaviour whether in court or outside of court, though not of course a judge’s decisions or judgments made in the course of court proceedings which can only be challenged via the appropriate appellate proceedings.

So far as registered medical practitioners are concerned, the Court of Appeal in its judgment in the case of Meadow v General Medical Council [2006] EWCA Civ 1390 declined to extend the immunity from suit (from claims in the civil courts) in the case of expert witnesses to also cover immunity from regulatory proceedings. The reasons given were clearly stated by the Court of Appeal, namely 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.”

For this reason, the equivalent immunity from professional regulatory investigation or proceedings which appears to be being suggested to apply to SMPs, has been held by the Court of Appeal to be contrary to the public interest in the case of expert witnesses – whose role and function in a wide array of legal proceedings of substantial public importance can, as acknowledged by the Court of Appeal in Meadow, present risks of complaints being raised which are very much the same as those potentially arising in relation to SMPs.

As you will be aware, the overarching objective of the GMC is the protection of the public. This involves:

  1. protecting, promoting and maintaining the health, safety and well-being of the public,
  2. promoting and maintaining public confidence in the medical profession, and
  3. promoting and maintaining proper professional standards and conduct for members of that profession.

We are not aware that the particular role of SMPs raises any substantially different arguments for immunity from regulatory proceedings from a public interest perspective than does the role of the expert witness in court proceedings. For these reasons, the GMC does not currently consider that there is any more justification, or legal basis, for exempting SMPs from its regulatory jurisdiction than there would be for exempting expert witnesses from the same in respect of their role in giving expert evidence in a wide range of judicial proceedings.

 

From all the evidence, from all of the accounts we hear from our members, it is beyond argument that some police pension authorities allow, perhaps even encourage, their SMPs to conduct medical examinations and interviews in ways which cause real and lasting damage to health. At the very least, PPAs remain unaware of what is being done in their name, not just by SMPs, but by HR staff also. This has to stop. Police pension authorities need to find a better, less intrusive, kinder way of discharging their responsibilities under the Regulations.

On that note, we will have to draw to a conclusion, for reasons of space, but we will return in a future article to further examine the role of the SMP.

Northumbria Police Produce Guidance To SMPs

Northumbria Police Produce Guidance To SMPs

A man who works evil against another works it really against himself, and bad advice is worst for the one who devised it.

— Hesiod  (Greek poet, generally thought to have been active between 750 and 650 BC.)

 

We all receive advice as we progress through life.  Parents, teachers, doctors, financial advisers, police officers, lifestyle coaches, diet experts and many others – they all hand out advice. By all accounts, much of it is then promptly ignored.

Perhaps that reaction can be explained by an instinctive understanding that it can be difficult to spot bad advice, especially when it comes from an authoritative source. Essentially, advice is seen as not to be followed blindly, but to serve only as someone’s point of view, before making up your own mind what to do or not do.

With that in mind, this blog is about some seemingly professional advice issued as ‘guidance’ by Northumbria Police to the doctor or doctors who are tasked to make certain decisions in regard to so-called ‘reviews’ of the degree of disablement of former officers of Northumbria Police. 

The guidance is reproduced in full, below –

IOD Reviews and Reconsiderations Case Law Reference for SMPs

 

We should explain, for new readers, that officers who are injured on duty and as a result become disabled to a degree which prevents them continuing to perform the full range of ordinary duties of a police officer are retired, with an injury pension. The old phrase used for this involuntary retirement was that the individual was ‘cast from the force’. 

The amount of injury pension paid is tied, in part, to the ‘degree of disablement’ which is the extent to which an individual’s capacity to do paid work has been eroded by the disablement.

It is accepted there is a possibility the degree of disablement present at the point of retirement may alter at some later stage. The injury pension Regulations allow, therefore, for a police pension authority to consider, ‘at such intervals as may be suitable’ whether an individual’s degree of disablement has altered. If it has altered substantially, then the amount of pension paid can be revised. This process, of medical assessment and decision is commonly known as a ‘review’.

The Regulations require that the scheme manager, who holds the office of Police Pension Authority (‘PPA’), shall select a ‘duly qualified medical practitioner’ to decide whether there has been any alteration, and if there has been, decide the extent of the alteration. This doctor is known commonly as the Selected Medical Practitioner, or the SMP. The guidance issued by Northumbria Police is to those doctors. 

We understand the guidance has been widely circulated and has not been confined to only Northumbria’s SMPs. Thus, its influence, and potential impact, has spread far and wide, across many of the 43 police forces in England and Wales.

Can guidance from such an authoritative, seemingly professional source, be trusted? We suggest not. Northumbria has a long history of misunderstanding the Regulations. We need hardly remind ourselves of the disgraceful actions of Northumbria’s resident SMP, Dr Broome in reducing, at the stoke of his pen, the pensions of some 70 disabled pensioners.

We believe that Dr Broome, who describes himself as a ‘consultant occupational physician’ was undoubtedly guided in his actions by Northumbria’s resident solicitor, Mr Wirz.

An appeal, by way of judicial review, was made by several of the affected pensioners. They won their case. Here is what the court report has to say:

Dr Broome, the SMP, dealt with all 70 cases on the same day – 20th February 2009. In each case he reduced the degree of disablement to Band 1. In Mr Crudace’s case his reasons were expressed in a letter of that date which reads:

I am advised that the Pensioner has reached State Retirement Age and therefore, in accordance with the Regulations, the Pensioner “no longer has an earning capacity for the purposes of the Police Injury Benefit Regulations”.  Northumbria Police has also determined that there is no “cogent reason” why the Pensioner should not, therefore, be considered to have 0% loss of earnings capacity and as a consequence of their injury, and should be placed in the 0-25% Degree of Disablement banding. I confirm that the above recommendations are consistent with the Regulations and I attach a revised Statement of Injury

 

Dr Broome should have weighed more carefully whatever guidance was directed his way. For his part, and in our humble opinion, solicitor Wirz would have in turn relied on guidance issued by none other than the Home Office.

That guidance, contained in Home Office circular 46/2004, which one would think should  have been beyond critical appraisal given its source, was declared to be unlawful later and the Home Office withdrew significant parts of it.

It is worth nothing that both Dr Broome and Mr Wirz have had several other unsuccessful ventures in the appeal courts.  Indeed, it is hard to find any record of a successful outcome in the law courts for these two.

Yet they both continue to be employed by Northumbria Police, despite all the above.
The rub is, Dr Broome, being paid by Northumbria Police, can hardly be classed as impartial. He who pays the piper calls the tune.

It is all very well that Northumbria’s Chief Constable and the local Police and Crime Commissioner are content to have Dr Broome and Mr Wirz on the books. Perhaps their shortcomings are compensated for by excellence in other aspects of their duties. However, when bad advice is more than likely circulated by Northumbria to other forces – forces who may be blissfully unaware of the track records of Mr Wirz and Dr Broome. These forces may be tempted to take the guidance as sound, valid and watertight, and might recommend it to their own SMPs.

They would be wrong to do so.

The motives of Mr Wirz remain known only to him, but glimpses of his thinking can be caught from reading the guidance. It can be read on two levels – the visible and the unstated. For those who have knowledge of the history of police injury pension maladministration, the unstated theme of the guidance is obvious. It is, in our view, a cynical attempt to manipulate SMPs into applying the regulations in an unlawful manner.

We don’t propose to present a detailed critique of the Northumbria guidance, for that would take up too much space. Instead we suggest to any other force, and any other SMPs who might be tempted to adopt this guidance, that they would do well to treat it with circumspection and a healthy level of suspicion. 

It may though be helpful to sample the guidance at its start, in the middle, and at its end. A sample is all that is needed to demonstrate just how badly flawed is the entire guidance, and how any SMP or police pension authority who chose to rely on it could expect the certainty of successful legal challenge.

It is laughably ironic that the guidance warns, at the outset, that SMPs should not rely on Home Office guidance. The very guidance which Dr Broome and Northumbria Police failed to identify as flawed and unlawful back in 2009.

Although the Home Office withdrew parts of the guidance (46/2004 circular) they left virtually intact and in circulation a hugely more detailed and lengthy guidance which was composed by the same person. 

So, Northumbria is right to warn SMPs conducting reviews that,

. . . case law confirms that the approach to this issue contained in historic Home Office Guidance should not be relied upon.

 

But Northumbria is being partisan by omitting to caution that case law equally confirms that, given its track record, the approach to most issues of injury pension law by Northumbria police pension authority should not be relied upon.

Further into the guidance, speaking about reviews, it advises,

The SMP must establish, relying on admissible evidence, whether the pensioner remains disabled, and if so, whether the disablement caused by the qualifying medical condition is permanent.

 

This is not at all what ‘case law confirms’. The SMP is required to accept the previously-decided degree of disablement, and with that as the starting point, must then determine whether there has been any alteration from that level. 

We note the guidance neglects to cite the ‘case law’ it relies upon. We can put the matter straight by quoting from the case report of  Haworth and Northumbria Police Authority [2012] EWHC 1225 (Admin).

At paragraph 24, we see the court’s opinion:

Upon any such review the starting point on disablement has to be taken as that reached by any previous review as a matter of substance and a new review cannot lawfully seek to re-open questions on disablement, and in particular on causation, already determined by earlier decisions of the material medical authority.

 

Given that this was a judicial review case involving Northumbria, it seems all the more suspect that its Guidance to SMPs is so much at variance with the decision of a court and that it relies on unidentified legal authority here.

Moving to the bottom of the guidance it can be seen that SMPs are being advised directly to divest themselves of a legal duty in certain circumstances.

Those circumstances are currently the subject of an ongoing legal case involving Staffordshire’s police pension authority, so we can’t comment in detail. Suffice to say that the issues revolve around the data protection rights of private citizens and the limits of authority of a Police Pension Authority in making decisions concerning degree of disablement.

We can point out though that the Police (Injury Benefit) Regulations 2006 place a duty on the SMP to make a decision. Regulation 30 states, very clearly a police pension authority. ‘. . . shall refer for decision to a duly qualified medical practitioner selected by them . . .’ certain decisions.

The Northumbria guidance, in complete contradiction, says this:


As SMP you should avoid attempting to make a determination in the absence of information which you, in your professional judgement, consider necessary in order to complete the determination.

 

It is IODPA’s informed understanding that a SMP must make a decision. The regulations offer no option where the SMP can decline to decide. There is a duty on the SMP to make a decision. If there is no evidence, for whatever reason, of substantial alteration in degree of disablement, then the decision of the SMP can only be, and should only be to declare there is no evidence of alteration.

The importance of Northumbria’s guidance on this point is that, if a SMP declines to make a decision, claiming certain information is not available, then an aggressive police pension authority might be tempted to claim the pensioner had wilfully or negligently refused to be medically examined. Thus allowing the police pension authority to turn to regulation 33 and make the decision itself.

That is the very crux of the litigation which is currently engulfing Staffordshire police pension authority.

Whilst that case is ongoing IODPA cautions all SMPs to be very careful in respect of the totality of the guidance issued by Northumbria. The guidance is adversarial in tone, emanates from a source with a record of losses at judicial review and is most probably penned by an individual who has an axe to grind.

We have said it before and we repeat it again. Forces need to ensure they, and their SMPs conduct reviews rigorously within the regulations, utterly fairly, without bias, and with the welfare of the disabled former officer firmly in mind in all that they do.

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.