Dr Cheng And Regulation 37(1) Reassessment Of Injury Pension
Essex police have engaged Selected Medical Practitioner (‘SMP’) Dr William Chung Wing Cheng to conduct their Regulation 37(1) reviews under The Police (Injury Benefit) Regulations 2006. Many of our readers will be familiar with the name of Dr Cheng as he is also employed by a number of other forces, predominantly in the South East corner of England along with the Metropolitan Police, to conduct ill health retirement appointments.
Having spoken to a number of pensioners who have had a consultation with Dr Cheng, it appears as though he is conducting Essex reviews using the same methodology as when he considers an ill-health retirement. This is not only worrying, but wrong in law. The case of LAWS – https://www.bailii.org/ew/cases/EWCA/Civ/2010/1099.html makes it very clear that a reassessment under Regulation 37(1) is a comparison exercise between the last known position (either the initial grant of an IOD award, or the last review) and the date of the consultation. It seems to be very clear to us that Dr Cheng is carrying out a fresh assessment rather than carrying out a comparison between the two dates.
The questions that Dr Cheng asks are exactly the same regardless of whether he is assessing ill-health retirement, an injury award, or a review. Many of the questions are not even relevant to a review, but some are specifically designed to provide Dr Cheng with justification to reduce a pensioner.
We recommend that before the pensioner enters the front door, they should start to overtly record the consultation, which is your right, and has been confirmed by the General Medical Council (‘GMC’). Dr Cheng may object, or ask that he is furnished with a copy. He may also request that it should be forwarded to the force’s Human Resources (‘HR’) Occupational Health (‘OH’) department, who incidentally, are not entitled to listen to a person’s private medical and confidential examination.
The GMC guidance states,
“Although the GMC expects doctors to obtain patients’ consent to make a visual or audio recording, patients do not need their doctor’s permission to record a consultation, because they are only processing their own personal information and are therefore exempt from data protection principles.
Section 36 of the Data Protection Act 1998 states,
“Personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs are exempt from data protection principles.”
“If you suspect a patient is covertly recording you, you may be upset by the intrusion, but your duty of care means you would not be justified in refusing to continue to treat the patient. If you did, it could rebound on you and further damage your relationship with the patient. Remember that your refusal to continue with the consultation could also be recorded. A more pragmatic response might be to invite the patient to record the consultation openly and ask them whether you can have a copy of the recording, which can then become part of the patient’s medical records. In seeking their consent, you should reassure them the recording will be stored securely by the practice and only used for this purpose.”
As can be seen, the doctor needs to obtain a patient’s (your) consent to record the appointment. There is no requirement to give Dr Cheng, or anyone else a copy of the recording.
Onto the appointment itself.
Let us start with the waiting room, before the meeting even starts. It is likely that Dr Cheng or his receptionist will hand across a clipboard with a piece of paper which provides information about the role and requirements of a SMP. The documentation is pretty generic and from what we have seen, it relates to ill health retirement with no real relevance to a review.
Dr Cheng will often use a room which is not suitable for the consultation. It is usually too small to comfortably fit more than three people. It is your right, to be accompanied to the consultation by a family member, a support assistant, a Federation rep, a Mackenzie’s Friend, or any other person that you may consider necessary based on your mental or physical health. You should cite reasonable adjustments under the Equality Act 2010. It is YOUR consultation and you should feel properly supported.
Dr Cheng will often use the room size as an attempt to reduce the number of people a pensioner brings with them. He may go further by suggesting that the appointment be delayed. Be firm, and insist on those that you wish to remain, and that the consultation should go ahead with the people who are supporting you also present.
There should not be anyone else present in the room, that you have not invited other than Dr Cheng. We hear occasionally that there is an additional person in the room who is not introduced nor any medical credentials given. Dr Cheng MUST seek permission with the pensioner for any third party to be present in the appointment. If you are uncomfortable with a third party being present, during what will be a private medical discussion, representation must be made and the person asked to leave the room. We believe that it is an unfair and unethical approach that no prior permission is sought by Dr Cheng in these instances.
Once in the room, the chairs will have been purposely arranged. The pensioner, particularly for those with mental health conditions such as PTSD, will be invited to sit on a chair which will have the door to their back. It is a known fact that many PTSD sufferers will not be able to sit with their back to any door; they need to see all exits and be able to view the whole room. Dr Cheng is waiting to see if you move the chair. If you are not happy with the positioning, move the chair, it is YOUR consultation. A record will be made within his report if the pensioner does not ask to move chairs. This is the first subtle test of the appointment. If a pensioner does not ask to change places, his logic is that their PTSD cannot be that bad.
For those with physical conditions such as back problems, it is likely that uncomfortable chairs will be provided, or there will be no back supports such as a cushion. If you are not happy with the chair, ask for another, it is YOUR consultation. He will make a note if you sit on an unsuitable chair for any length of time.
If you have a physical disability and find it difficult to sit still or in the same place for long periods, get up and walk around the room. You are allowed to ask for a toilet break. It is highly likely that Dr Cheng will make a note in your report if you do not do these things, but will not mention it if you do. We would recommend that you actually say out loud, for the purposes of the tape that you need to stand up or move around so that it is captured on the tape recording and there can be no dispute that you needed to do this.
It is YOUR consultation, and you can do whatever makes you comfortable. He will make a note in your report if you sit for long periods or do not move about or do not complain.
Here is a list of questions (not definitive) that he puts to virtually all pensioners, regardless of whether they have a physical disability or a mental health condition.
He will ask –
- About your antecedent history, for example, the age, occupations and health of your parents and children along with dates of any marriages or how long people have been together. He will return to them to test you if you cannot remember them. He will often throw the wrong dates back at you on purpose to see if you correct him. These questions are designed to check your memory skills. Our belief is that the logic behind these questions is that if you are able to remember all these various numbers, then you are not that mentally unwell.
- About your current relationship, and the names and ages of those in the room with you if they are family members.
- What your partner does and how many hours they work?
- If your partner leaves you to fend for yourself for long periods on your own whilst they work? This is to establish whether you are alone through the day and whether you can manage by yourself for ‘x’ number of hours.
- What type of education did you have and what qualifications you possess?
- Whether you have worked, what you have done and the details and dates of that work. As well as determining what your current work capability is, these types of questions are establishing any skills-set and qualifications you may have which can be used in the civilian world.
- What medication you were on when you retired and what medication you are on today, and whether it’s increased or decreased?
- What treatments that you have or may be receiving?
- What medical problems or illnesses you had before ill-health retirement?
- What time do you get up?
- How do you wash or shower?
- What you ate for breakfast.
- What you do in your day.
- Do you sleep during the day?
- What time do you have your evening meal?
- What time do you go to bed?
- Who looks after the garden and pets i.e. are you capable of looking after or caring for other dependent things?
- Who does the housework, you or your partner?
- Do you watch TV, how long do you sit for, what do you watch?
- What hobbies that you may have, and how you fill your day?
- If you drink alcohol and how much you consume? Any answer in the affirmative could be used against you in that you may not have PTSD, but are instead, an alcoholic. This has been used on a number of occasions.
- Whether you are in receipt of certain benefits such as IIDB or CSA?
- You to spell a word backwards such as ‘WORLD’ or ‘SCHOOL’?
- You to count backward from 100 subtracting 7 on each occasion?
Again, both these questions are designed to test your cognitive functions, memory and concentration. Even a physical injury will be asked to answer these questions.
If Dr Cheng does not get the response he wants, he will manufacture the result to support his case. Where a pensioner has failed to spell or count backwards i.e. they’re plainly unable to perform this task, Dr Cheng will write that they were able to complete the task, but “with errors”.
Moving on from the questions, let us discuss what type of examination Dr Cheng will conduct on a pensioner.
He will ask them to stand on their toes and rock backwards and forwards, or to squat. He will also request that they move their head from side to side. This is regardless of whether you have a physical or mental disability.
However, he will take your blood pressure. If it is a normal reading, he is likely to say that you are not anxious or ill as he is suggesting that a person’s blood pressure should be raised if in a distressing and stressful situation.
Dr Cheng is unlikely to do any further physical examinations, even for those suffering with physical injuries and has previously stated that he would not be able to establish anything more than the specialist reports that he may have in his possession (and will then later go on to ignore!).
He is likely to report on how a pensioner looks and dresses. He will comment on whether a pensioner is able to make eye contact with him when speaking, what their speech sounds like, or whether they become physically alert and distressed if they hear a siren outside the office. Again, he will be looking to see the reactions of someone who suffers from PTSD. Of course, not everyone who has PTSD is triggered by sirens but this seems to have been lost on him.
Be in no doubt that Dr Cheng will have thoroughly read through your GP medical records to see if there is anything in your history that may be the cause of your injury i.e. if you are a mental health injury, he will be looking at whether you have suffered stress, anxiety, depression before and what was the cause. Likewise, if you are a physical injury and whether you had any history prior to your index injury on duty.
We would recommend that you read and check your own GP notes prior to the appointment so you know what is in there and what he will be seeing. It is important that you check for any inaccuracies that may have been written in your notes and has never been corrected. Moreover, reading through your records will refresh your memory on what you have previously consulted the doctors about. Do not let him surprise you with anything. What you have read is exactly what he will read.
What Dr Cheng is also very adept at doing, is to root through your medical records and find somewhere that it states you feel better and then quote this phrase out of context. For example, if you have had a hydrocortisone injection in a painful shoulder it may give you a limited amount of instant relief (until it wears off). Of course the underlying problem remains, and so does your disability, but if you have made a comment to the physician, that it made you feel better, then Dr Cheng will quote this as an improvement in your condition.
Dr Cheng will report on anything he considers that he can use to show an improvement in your condition or your mental well-being.
At the end of the consultation, as we have already covered in a previous blog – https://iodpa.org/2022/02/09/true-to-form/, Dr Cheng will present you with a feedback questionnaire for you to sign. It is likely that pressure will be placed on the pensioner to complete it there and then. As in our previous blog, our recommendation is to take hold of the questionnaire form and state you will complete it later. There is no requirement to complete it, either at the appointment or at home. Of course, we are well aware that many people complete it in Dr Cheng’s favour in the hopes that they will receive a favourable report. It matters not if the questionnaire is completed or not in this respect. If you feel that Dr Cheng has not behaved satisfactory in the appointment, it would be worth sending the questionnaire to the GMC for them to log it rather than return it to Dr Cheng who may just discard any derogatory reports written about him.
From what we have been told by various sources, Dr Cheng will show very little compassion whatsoever when a pensioner recalls traumatic events and breaks down. Many people have voiced their surprise and shock at such a lack of empathy from a doctor. He may ask if you felt in fear of your life.
He will not usually ask how the pensioner is or if there has been any change in your condition since your last review or the grant of your IOD award.
Experience shows that the report prepared by Dr Cheng is not likely to provide any evidence that there has been a “substantial change” in your condition, which is a requirement in law. It will most likely just state that you have got better. In these cases, Dr Cheng’s determinations should be challenged as you are entitled to do under the regulations.
Finally, it is worth highlighting that Dr Cheng can come across as quite polite and friendly, but do not be fooled. In our opinion, the old adage ‘A sheep in wolf’s clothing’ springs to mind.
If you require further advice, or if you have had a recent consultation with Dr Cheng, and we have omitted to include something that may be of use to others, please get in touch at email@example.com
Latest Blog Comments