smp

Dr Cheng And Regulation 37(1) Reassessment Of Injury Pension

IODPA Admin 2022-05-312022-05-31 Regulation 37, Review, smp

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.”

It continues,

“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 admin@iodpa.org

What Is An Injury On Duty?

IODPA Admin 2022-04-112022-04-11 Causation, smp

The question is, “What is an injury on duty?“.

It’s a simple question and you’d think there would be a simple answer. Well, actually there is, if you look at regulation 6 of The Police (Injury Benefit) Regulations 2006, in which paragraph 2(a) states –

2(a) the member concerned received the injury while on duty…

So there you have it, apart from a couple of caveats that we’ll cover shortly, it is very simple. If you are ‘on duty‘ i.e booked on and working a recognised shift and you become injured, then it is an injury on duty. At IODPA, this is the advice that we have always given our members.

Who could not understand this simple concept?

Well, Selected Medical Practitioner (‘SMP’) Dr Charlie Vivian it seems.

In our last blog (which also happened to feature Dr Vivian), we referred to a document called the SMP paper, which is a paper entitled “The Police (Injury Benefit) Regulations 2006 – A guide for conducting the Injury Assessment”. This is a document that was written and agreed upon by three SMPs including Dr Vivian and the force solicitor from Northumbria Police.

We stated in our last blog, that we do not agree with much of the content of this paper, and that position hasn’t changed.

We will again be quoting from this paper as it ties in with this blog, so without further ado, this is what it says –

Furthermore, even if the officer has successfully claimed that the constabulary was negligent, and this resulted in injury, this would not automatically qualify as an injury on duty. Examples include if a chair broke, or the officer slipped on ice. The SMP should consider the facts of each case, but not automatically assume that such events qualify.

The paper alludes to the fact that a collapsing chair or slipping ice on would not be an injury on duty which is worrying because “unless the injury is wholly or mainly due to his own serious and culpable negligence or misconduct” these examples would satisfy the regulations with regards to being an injury on duty.

Unfortunately, we are aware that Dr Vivian has on a number of occasions refused to accept that an injury was an injury on duty because it was not in the execution of duty. Dr Vivian has performed over 400 assessments, and so the exact number of cases where he has applied the wrong test is unknown. That said, any decisions where the wrong test is applied is worrying.

Let’s now look at a recent judicial review, handed down on the 23rd February 2022, which confirms that this, and previous decisions of Dr Vivian were wrong. It involves an officer from Hampshire Police who was injured in 2007.

The full transcript can be read here – https://www.bailii.org/ew/cases/EWHC/Admin/2022/385.html

It’s fair to say that the injury was a result of tomfoolery in the canteen between the officer and a colleague. Rather then paraphrase the incident, we’ll refer you to the summary from paragraph 14 –

“14. In 2007, on the 18th of November, the Claimant was on duty at Fratton Park police station in Portsmouth in the early hours of the morning working in the parade room with other constables who were writing up incident reports. The normal banter was taking place between the constables and as part of that the Claimant threw a Sellotape roll at PC Fruin in jest. It hit him with a glancing blow to the head, causing amusement and no injury. He looked round and got out of his chair and said he was going to tip her onto her backside or words to that effect. He was not angry. The Claimant was not frightened, but she decided to run away and as she was going towards the door he caught her, held her by her shoulders, swept her legs away with a judo style move. They both fell into a heap on the floor with PC Fruin on top. During that fall the Claimant’s right knee and leg were twisted and she suffered an injury to the medial compartment of her right knee.”

To help us better analyse the case, the judge listed some mnemonics explaining the various ways in which an injury would be an injury on duty under the regulations, which we’ll summarise here (please read the judgment for a more detailed explanation) –

EOD – Execution of Duty. This would cover an off duty officer that put themselves back on duty whilst reacting to an unfolding incident before them.

WOD – While on Duty. This is, as the judge stated “The constable was either on duty or not on duty.” The vast majority of cases will be covered by this, and the subject of our blog.

WOJ – Whilst on a Journey. Journeys too and from work are covered, even if there is slight deviation in route.

NOD – Not on Duty. This would cover for example where an officer is assaulted by a malevolent person purely because the officer has been recognised as being a police officer.

Dr Vivian, as the SMP, was appointed on the 19th November 2019 to consider whether this was an injury on duty. Following on from our introduction, it won’t surprise you to learn that on 12th February 2020 he stated it was not an injury on duty.

The judge made the following observations –

“[Dr Vivian] directed himself that he needed to distinguish between injuries suffered in the execution of duty and injuries based on mere “status as a police officer”.

“He [Dr Vivian] considered that the law required him to separate out these two types of category, the former attracting compensation and the latter failing to attract compensation. For the reasons set out below I rule that the SMP misunderstood the law and so misapplied the law when making that distinction.”

“In his conclusion the SMP stated that the right knee injury was not an “injury on duty”. Those were his words. I find that as a matter of fact and law he was wrong about that conclusion.”

“But he [Dr Vivian] appears to have ignored the WOD category completely or to have misinterpreted it.”

An appeal was made by the officer to the Police Medical Appeals Board (‘PMAB’). Hampshire Police submitted that the injury wasn’t “on duty” citing the case of Stunt. The judge stated, “For the reasons set out below in my judgment that submission was wrong in law.”

The PMAB concluded that whilst the injury was suffered “on duty“, it was not “in the execution of duty“. The board also cited the cases of Stunt and also Gidlow, but the judge was of the opinion that they had conflated the mutually exclusive elements of WOD (While on Duty) and EOD (Execution of Duty).

The judge ruled that Dr Vivian, Hampshire Police and the PMAB incorrectly applied and interpreted the regulations, and that in this particular case it was an injury on duty. He also made reference to Home Office guidance which he deemed was “misleading and wrong” and should be withdrawn.

He helpfully provided a route map through the regulations that the SMP should consider in sequence.

Negligence or Misconduct (Reg. 6(4) disqualification);
Idiopathic disease or condition (“injury received” test) without any causative link to duty;
WOD application (Reg. 6(2)(a));
WOJ application (Reg. 6(2)(a));
NOD application (Reg. 6(2)(b));
EOD application (Reg. 6(1)).

The first consideration (or caveat as we alluded to earlier) is whether (à la regulation 6(4)) “the injury is wholly or mainly due to his own serious and culpable negligence or misconduct”

The second consideration, is whether there is a causal link to duty. For example adverse reactions to valid operation requirements or disciplinary matters have previously been excluded as being an injury on duty.

Once these two questions are disregarded, the SMP should then go on to answer questions (c) to (f). It should be noted that (c) to (f) are mutually exclusive and do not override or cancel each other out. If one of the conditions is met in (c) to (f) then it is an injury on duty.

The question that needs asking, is “how many other cases has Dr Vivian refused or apportioned an IOD award because of his incorrect interpretation of what constitutes an injury on duty?” We’d be happy to hear what Dr Vivian has to say about this judicial review and more importantly, what plans he may have to revisit his earlier assessments.

In our view, the regulations have always been very clear, ‘while on duty’ means just that ‘on duty‘ and needs no further interpretation.

We cannot find a more apt comment than one reported in a Pensions Ombudsman (‘PO’) decision (Cornish v Essex Police) where Lord Denning was quoted as saying “No person should put their own interpretation onto any regulation or law but should follow them to the letter. It is the prerogative of the Court and only the Court to interpret legislation.”

This is just one example of many, that we are aware of, where SMPs are interpreting the regulations and case law incorrectly, and usually to the detriment of injured officers.

If you believe that your injury on duty award was refused on similar grounds, please email us at admin@iodpa.org

When Is Receiving A Back Injury On Duty, Not An Injury On Duty?

IODPA Admin 2022-02-262022-02-26 smp

Q: When is receiving a back injury on duty, not an injury on duty?

A: When you are assessed by Dr Vivian.

Here at IODPA, we informally advise a large number of members over their injury awards. We have become aware of a large number of cases where the pensioner has suffered a back injury that has not been assessed on its own merits. Instead statistics are used to suggest that it is not a duty injury, but an age related disability instead.

The SMP who uses this rationale is Selected Medical Practitioner (SMP) Dr Charlie Vivian. We have previously written about Dr Vivian and return to this experienced SMP to examine some of his current practices.

To assist us in our deliberations, some time ago we were passed a paper entitled “The Police (Injury Benefit) Regulations 2006 – A guide for conducting the Injury Assessment”. This is a document that was written and agreed upon by three SMPs including Dr Vivian and the Northumbria Police’s force solicitor, Nicholas Wirz, another name that you will, no doubt, recognise from previous blogs of ours.

We have become aware that this document is now in the public domain, and if you search for it, it will be found. As we will be referring to it in this article, we will call it the ‘SMP paper’.

We shall be returning to this paper at a later date to consider in more detail what this group has decided between them, but will point out that nothing contained within it is binding, or even necessarily lawful, and some of it is clearly unlawful in our opinion. But that is a conversation for another day.

To start with, we are going to look at parts of this SMP paper in conjunction with a number of our members who suffered a back injury whilst on duty and were then assessed by Dr Vivian. Discussions that IODPA have had seems to suggest that there is a common theme and citations used in this SMP paper are commonly quoted by Dr Vivian.

The theme goes along these lines; 80% of adults will experience back pain at some stage in their life, therefore you would have had your back problem anyway in [insert number] x number of years regardless of the index injury.

Dr Vivian will then go on to write that the officer is not deserving of an award, apportion it down to 0%, or suggest that at some point in the future the officer will no longer have a duty injury using acceleration. (The thorny subject of aggravation and acceleration is another blog in its own right that we are going to cover in another article).

Let’s have a look at the evidence that Dr Vivian uses to support his assertion.

This is what is written in section 2 of the SMP paper –

“In principle, causation is a straightforward concept, following the medicolegal construct of post hoc ergo propter hoc. (“This followed that, therefore that caused this”). However, there is compelling evidence that this construct is seriously flawed in most instances, including the onset of back pain and neck pain. It provides an unsatisfactory explanation in cases of psychological injury, and is even more uncertain for the subjective health complaints such as fibromyalgia. (See note 2)”

To support this position, there are footnotes listing various citations, with an introduction of –

“For back pain, The best evidence confirms:” [our emphasis]

It then says –

“Back pain is extremely common, affecting up to 80% of the adult population at some point. (Halligan & Aylward, 2006)”

At IODPA, we pride ourselves that we like to do our research before publishing any article. We conducted a quick Google of Halligan & Aylward, which the SMP paper refers to. Google gave us a book on Amazon entitled “The Power of Belief: Psychological Influence on Illness, Disability, and Medicine Paperback”. Pub 2006.

https://www.amazon.co.uk/Power-Belief-Psychological-Disability-Psychosocial/dp/0198530110

Page 162 contains the following line –

“Low back pain is common and not confined to any particular demographic group, with a lifetime prevalence of 60 to 80 per cent.”

It is probably worthy of note that this comment bears no citation, or evidence of this being a fact. So, the most commonly used quote by Dr Vivian in his SMP reports has no supportive evidence. Whilst Dr Vivian is not incorrect in saying up to 80%, the actual figure quoted was 60 to 80 per cent. So it seems that he is highlighting the worst possible figure to support his reports, rather than accurately reporting that the figures could be a good 20% less; no mean figure.

Rather interestingly, a review of this book on Amazon by a person called Donnie on 20th September 2012, (written before IODPA was even a twinkle in the creator’s eye), gives the book a one star review –

For those of you using a screen reader, we’ll replicate the text here –

“It should be obvious that placing sections of society under psychos-social management just because they are sick or disabled has important moral and political consequences. Quite unsurprisingly, the introduction of a biopsychosocial model of disability in the UK, where Aylwayd worked on designing the new welfare system, has led to the weakest members of society being mistreated, for the benefit of those with power and money. I’m uncertain whether Aylward’s association with private insurance companies like UNUM should be taken to indicate corruption, or if his work should just be dismissed as well-meaning foolishness: either way, this book is worth reading only for those interested in the politics of quackery.” [our emphasis]

It is the belief of the author of this note that the trusted Halligan & Aylward may have a hidden agenda in their writings and are probably partisan of employers rather than employees. Donnie states that it will be the weakest members of society who will be mistreated for the benefit of money and power. We associate this comment to the realities injured police officers are facing and see that this quote fits perfectly.

We know that when an officer goes in front of an SMP, any SMP, he or she will be at their most vulnerable. They are extremely unwell. We do not need to remind you that many officers feel that ill-health retirement and latterly, the injury on duty award, is about money and how a SMP has the ultimate power in deciding an individual’s future. It is the job of the SMP to be impartial and we fail to see how that can be achieved if they are quoting biased citations and statistics.

Halligan & Aylward then proceed to quote back pain in adolescence and this time they do cite a source as belonging to Federico Balagué who published a paper on this latter claim in 2003. Balagué was subsequently publicly criticised by other clinicians as to claims regarding lower back claim. –

https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(12)60803-4/fulltext

It seems as though not everyone agrees with the writings of Halligan & Aylward!

Here, at IODPA, we’re not experts nor medical practitioners in back injuries, and so we do not know who is right and who is wrong. Suffice to say that whatever beliefs you may hold, there will always be others with an equally persuasive opinion to the contrary.

Returning to the SMP paper, it then goes on to quote –

“In fact, it is abnormal to go more than two years without activity-limiting pain. (Hadler 2007)”

Perhaps Dr Vivian himself suffers from back pain and can sympathise with this precept, but if you were to conduct a survey of your close friends and colleagues would you be able to find anyone that suffers activity-limiting pain every two years? No, nor us!

Another search of the internet reveals Hadler’s paper –

https://www.researchgate.net/publication/51390433_Back_Pain_in_the_Workplace

In paragraph 7 of the paper he quotes –

“It is unlikely that a healthy adult will escape a year without at least 1 important episode of low back pain”.

Footnote 12 attributes this fact to another paper published by Cassidy JD.

This is becoming like Chinese whispers where everyone is quoting and repeating everyone else. It’s also like social media, where it is often believed that if enough people repeat something then it must be true.

Google being our friend again quickly reveals the following paper entitled – “Incidence and course of low back pain episodes in the general population. Spine.” –

https://journals.lww.com/spinejournal/Abstract/2005/12150/Incidence_and_Course_of_Low_Back_Pain_Episodes_in.21.aspx

The article is only a summary, but it states that the study used the following method –

“An incidence cohort of 318 subjects free of LBP [lower back pain] and a course cohort of 792 prevalent cases was formed from respondents to a mailed survey. Incident, recurrent, persistent, aggravated, improved, and resolved episodes were defined by the Chronic Pain Questionnaire. The follow-up at 6 and 12 months was 74% and 62%, respectfully. Annual estimates were age and sex standardized.”

You will see that this was a mailed survey, of size unknown. Of course, when you send out a questionnaire regarding back pain, it is likely that those who respond are either suffering from or have suffered from back pain. People who don’t suffer from such a condition will have no interest in such a survey. A total of 1,110 respondents were used, 318 of whom suffered no lower back pain. So we question what weight or credence can be put on such a small study?

What is more worrying is the fact that a sample of 1,110 subjects can be extrapolated up to suggest that –

“It is unlikely that a healthy adult will escape a year without at least 1 important episode of low back pain.”

We could go on with these citations, but we don’t wish to embarrass Dr Vivian any more than necessary.

Actually, we will mention one more, because this is worrying. The SMP paper says when referring to whiplash –

“A study by Simontas and Shen in 2005 looked at demolition derby drivers. Those studied had had on average 2,000 accidents, 500 of which were high velocity (i.e., over 50mph). The average duration of neck pain was 21 days, and there was no chronic neck pain.”

Are they seriously suggesting that low speed front or rear end shunts by demolition derby drivers who are sitting in modified (reinforced) vehicles with bucket seats, back braces, and special helmets can be compared against those incurred by an operational officer driving a high-speed pursuit in an unmodified vehicle wearing bulky issue equipment? Seriously???

It appears as though the good Doctor has been cherry picking his statistics to support his case. Statistics are a dangerous tool if used incorrectly, here is an illustrative example.

20% of accidents are caused by people who have been drinking, which means that 80% of accidents are caused by people who are sober, so from this statistic, it is safer to drink and drive. We do not mean that, but do you see the point? Statistics can be written to suit the purpose and agenda of the author using them.

Let’s set aside the flawed data that Dr Vivian appears to be using, as it’s also important to look at how information like this is used. We hear that Dr Vivian has regularly quoted the same statistics, and we have to question the use of such data, even if it could be relied upon.

We know from experience that some of our members have suffered some pretty serious injuries from policing. Back injuries have occurred because officers have had extremely violent fights whilst trying to restrain prisoners, to being thrown down stairs and having vehicles written off in high speed pursuits.

An assessment is about the individual, not what may or may not go on in the wider population and certainly not based on questionable evidence that is now sixteen years old.

To conclude, we believe that this approach is not only flawed because of the reasons given above, but unlawful. An SMP is there to assess that person for their injuries, how they were caused and how it has affected their earning capacity. There is no place introducing any statistics as they are meaningless in this context.

Statistics should not play a part in any report. Reports should be based on the officer’s own individual circumstances and conditions.

What worries us most is that this paper has been sanctioned and signed off, not just by Dr Vivian, but two other prominent and well used SMPs as well as a force solicitor. This paper has no basis in law and that the only lawful documents that should be used in ill-health and injury awards are The Police (Injury Benefit) Regulations 2006 and relevant case law.

True to Form

IODPA Admin 2022-02-09 smp, Uncategorized

In this article, we take a look at the practice of Dr William Cheng in seeking feedback on his performance. Dr Cheng acts in the role of Selected Medical Practitioner (‘SMP’) for a number of police pension forces. He makes decisions affecting the pension entitlements of serving and retired police officers.

We are all aware of the concept of feedback. It seems that almost every time you buy something these days, the seller seeks to get you to rate their product and/or service.

Buy a new widget to fix that broken whatsit and no sooner has it been delivered than you get a request for feedback from the widget seller and, most likely, from the delivery firm as well. ‘How did we do?’ they cry!

It’s easy to see what they get out of your cooperation, feedback is valuable. It helps them improve their products and services. Positive feedback is welcome, but negative feedback is undoubtedly the most useful because it highlights failures and indicates areas which would benefit from improvement.

With that in mind, we have become aware that the ubiquitous Dr William Chung Wing Cheng, GMC registration number 1631726, has been presenting a feedback form to serving and former officers he has medically examined/interviewed with a view, in our opinion, to generating only positive feedback.

We reproduce it here.

Let’s remind ourselves that Dr Cheng is not contracted by the person he medically examines/interviews. That person is not his customer nor his client. He is paid by the police force and we believe that it should be the force which monitors and evaluates his performance. If feedback forms need to be handed out, they should come from the force but only following the conclusion of any decision-making process.

So, just what is the purpose behind the force giving either tacit or direct approval to Dr Cheng to hand out feedback forms?

There is an enormous level of unease felt by the officers and former officers he medically examines and interviews in respect of their pension entitlements. For every individual who has had the courage and ability to complain about him, there are many more who have good grounds to complain but do not.

As to why individuals do not complain, there are numerous factors. An analysis of them all would divert from the focus of this article.

Dr Cheng has taken it upon himself to attempt to generate some feedback.

Could it be the case that his feedback forms are there only so Dr Cheng and his paymasters can wave them and say, ‘Look, everyone loves this guy’? As you would expect, nobody would ever write anything derogatory when their whole future rests in his hands and a decision must be made.

We hear that Dr Cheng is in the habit of producing this feedback form toward the end of the session with individuals and making it clear that the form is completed and handed back to him before the individual leaves the room. Understandably, some would see this as undue influence that the SMP might not write a favourable report without first being rewarded with positive feedback, or as applying pressure on the individual to write only positive comments.

It could be that Dr Cheng is in need of some positive comments. It is a matter of public record that Dr Cheng had 28.3% of his regulatory decisions overturned by way of appeals to police medical appeal boards, over a five year period.

It has to be remembered that Dr Cheng, for a great part of his duties is dealing with vulnerable and damaged individuals – officers who are facing the certainty of premature retirement due to illness of injury and disabled, often traumatised, former officers whose continuing level of injury pension depends on his decisions. It does not take anything more than common sense to know that unwell individuals might think that not completing Dr Cheng’s form and giving him a good review might negatively affect his decisions.

Our advice to any officer or former officer is to take Dr Cheng’s form and stuff it – in your pocket. Fill it out later, or not, as you think fit, and send it, or not, to the police pension authority, not to Dr Cheng. Bear in mind though that by completing Dr Cheng’s form positively you would be potentially writing off the chances of any future complaint being successful.

If you genuinely receive a fair and professional service from Dr Cheng, we have no problem with giving positive feedback. What we object to is a form being presented to vulnerable people immediately after a consultation, and before the quality of the final report is known.

Dorset Reviews – lessons learned, or not?

IODPA Admin 2021-10-142021-10-16 Regulation 37, smp

It certainly didn’t take Dorset’s new Chief Constable, Scott Chilton, who was only appointed on 12^th August 2021, very long to authorise reviews of injury pensions under The Police (Injury Benefit) Regulations 2006 (‘PIBR’). He must have been in post less than a month before letters have been sent out. A clear message to his serving officers should they become injured.

We have been sent a copy of the correspondence sent out by the force and will examine it to see what lessons, if any, may have been learnt over the years from other forces.

Let’s start by looking at the covering letter sent out by Susan McCausland (HR Officer). We must start off by saying, that yet again, these letters were received by pensioners on a Friday or Saturday, at a time when the recipients are often unable to seek professional help in the form of legal advice or medical support through their GPs. Thankfully we are on hand to give some immediate help and reassurance to those very poorly and vulnerable people.

Here is a copy of the documentation that was sent out –

The first paragraphs of the letter relates to the individual, and states that the review is as a result of their previous SMP recommending a future review. This approach is confirmed in the FAQ sheet (post) where they state “Presently we are only reviewing Injury Benefit Pensioners where the Selected Medical Practitioner (‘SMP’) has recommended a review.”

This indicates that Dorset intend to review EVERY injury pension based upon a previous SMP recommendation.

Regulations 37(1) of the PIBR states that reviews may take place “as such intervals as may be suitable”. The recent case of Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 at para 81 is clear, that “It is for the Defendant [PPA] to decide whether a suitable interval has elapsed since the last assessment or reassessment”. It continues, “The Regulation does not permit the Defendant [PPA] to decide in advance that a suitable interval will never elapse”. What flows from this, is that a future date for review cannot be specified either, so a SMP cannot in our view recommend a future date that the PPA can then act on, on this basis alone.

It seems to be common practice for SMPs to make these recommendations, despite there being no requirement or reference to this in the PIBR.

Paragraph 3 of the letter “respectfully” requests that the pensioner completes an enclosed questionnaire. We know from paragraph 182 of the Goodland/Wright judgment (ante) that in the case of Staffordshire judgment, the Chief Constable “erred in law” by threatening the triggering of Regulation 33 for failing to complete this questionnaire.

Yet, we see in the FAQ, there is a suggestion that a failure to complete the questionnaire and consent to medical records may trigger Regulation 33. This implied threat is in itself is at best misleading and at worst, unlawful.

Paragraph 5 of the letter states that the pensioner has 28 days from the date of the letter to comply. The only reference to timescales in the regulations is when the pensioner has 28 days in which to appeal an SMP decision. So where in the regulations do these self-imposed timescales come from?

This 28 day deadline is also highlighted in bold in the FAQ. These time limits are quite rich considering forces regularly ignore correspondence from pensioners and their legal representatives for months and months at a time. Pensioners can also wait for six months or more for SMP reports to be forwarded after completion.

What this really highlights is the total lack of care or compassion, or understanding of the vulnerable and often very ill people that Dorset Police are dealing with. We have experienced first-hand the impact that a letter of this type has on a pensioner. HR staff sitting in their comfy, air conditioned offices, who probably have no experience of mental health issues, and see these ex-officers and as just a collar number, start date, end date and continuing cost (burden) to the force. We do make mention that it is not all HR staff who lack the emotional connection with their former officers, we know of some HR personnel who go well beyond what is expected of them in caring for their injured and ill police pensioners. But clearly not in this case.

Many pensioners with mental health issues, often caused or exacerbated by their forces, will often not open post for weeks or months at a time. A self-imposed limit of 28 days does nothing to reassure us that the force know who or what they are dealing with.

It has to be asked, what training have Dorset staff received to deal with vulnerable individuals? Little, or nothing is probably the answer.

We have already touched on the non-mandatory questionnaire, but let’s look at it in a little more detail.

It rightly asks whether the pensioner considers whether there has been a substantial alteration in the condition of the former officer. That is a sensible question to ask, and if the answer to that is ‘no’, the pensioner should be left alone. Alas, it then continues to go into a lot of detail about employment and other conditions.

We all know the purpose of these intrusive questions; it is an evidence gathering exercise for no other purpose but to reduce. We would know it commonly as a ‘fishing expedition’.

We all know that the SMP (perversely) performs a calculation (rather than a medical assessment) based on what a pensioner is earning in order to determine how their physical or mental disability has affected their earning capacity. We were, however, shocked to read this question –

(g) Date of next pay increase (as this may impact on your next award).

Quite simply this approach is unlawful. A regulation 37(1) reconsideration is about the ‘here and now’, not about what you may earn at some stage in the future. If anyone has had future earnings used in a calculation in this manner, we would suggest that you immediately have grounds to appeal and would urge you to contact us at admin@iodpa.org.

Finally, the questionnaire contains a declaration entitled Section 2 of the Fraud Act 2006. The inclusion of this caption seems to have originated in Avon and Somerset Police, way back in 2014, subsequently copied by Staffordshire Police and has now been adopted by Dorset Police. Quite frankly, we find this wording disgusting and highly offensive. We would recommend that pensioners do NOT sign this document based on this one caption alone.

Police officers, by the very nature of their role, are honest and have unquestionable integrity. They have signed the Official Secrets Act, prepare and present papers for the most heinous of crimes at the highest levels of probity, and yet they are not trusted to honestly complete a questionnaire (which is not required under the regulations or case law). This speaks volumes of the contempt in which they are held by their forces.

Let’s now look at the FAQs.

In answer to the question “Will my medical records be kept confidential?” they reply “Only SMP reports will be seen by non-medical staff in the HR Operations Corporate Support Team”.

Clearly, we need to provide Dorset police with a lesson on confidentiality of personal and private sensitive medical information under the GDPR and the PIBR.

The PIBR states under Reg 30(2)(d) that if the [PPA] are considering whether to revise an injury pension, they shall refer question (d) above to the SMP –

(d) the degree of the person’s disablement;

It is clear that all medical decisions are to be answered by the SMP, and the SMP alone. There is NO provision in the regulations for any other nominee of the PPA to request, collect, collate, or view any personal and private medical records of retired pensioners. In our view medical records should be forwarded directly to the SMP with the condition that they are not disclosed or shared with any third party without express permission.

The fact that an SMP may not want records sent directly to them, is not a reason not to do it, if it secures the confidentiality of your medical files. At paragraph 150 of the Goodland/Wright judgment (ante), Dr Vivian kindly wrote to Mr Wright offering him the facility of sending his medical notes directly to him. This proves that it can be done.

Once the SMP has made their consideration, Reg 30(6) states that the decision ‘shall be expressed in the form of a report’.

Having read many SMP reports, we are well aware that the SMP will usually prepare a written report as well as a new certificate of disability (often referred to under the 1987 Regs as a H1) including the new level of disability or banding.

The covering report, however, is verbose and very detailed, and will often contain a summary of the pensioner’s entire medical background and history. It is quite wrong in our view, that this report be shared amongst any individual in HR, let alone a team. The ONLY people entitled to see a person’s personal and private medical conditions is another medical professional, and that is with the express consent of the pensioner.

In our opinion, if the SMP report has to go back to the force, then it should ONLY go back to someone who is medically qualified, and that person is the Force Medical Examiner (‘FMA’), and this is despite them playing no recognised role in the review process according to the PIBR. The only document that should go to HR is the revised certificate.

Finally, we turn our attention to the two consent forms that were attached for the pensioner to sign. They ask for full medical records, which, in our view, is not necessary. The force would have obtained a full set of medicals at the time of the officer’s ill health retirement so why ask for a duplicate set? Or have they lost the original set they held which could lead in to another potential can of worms to be opened?

In the Goodland/Wright case (ante) the judge deemed that it was for the SMP to decide what was necessary, and in that case some of the SMP only asked for notes since the last review, so our question to Dorset, is why are you asking for full medical records since birth in every case when other forces are not doing the same?

We note that the ‘CONSENT FOR THE RELEASE OF GP RECORDS’ document contains a statement that any withheld records my affect “my application for ill-health retirement or an on duty award”.

There forms have been re-purposed for these reviews, but are not fit for purpose as unless expressly requested and justified by the SMP, the pensioner should only be requested to provide their medical records since the granting of the award, or the last review. The case of the Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 was not superseded by the Goodland/Wright case, which states that a review is a comparison exercise, and therefore medical notes since the last review should nearly always be sufficient.

We would have expected a professional organisation to have seen the small but nonetheless important administrative error and actually created a document that reflected the regulation that they are dealing with, rather than ‘making do’.

We can only profusely apologise to all those who will be affected by this review process and the poor and compassionless manner in which they are being dealt with. Perhaps a letter asking the former officer how they are and whether there has been any change initially would not have gone amiss, when many have not heard from their former force for years. Or are we asking for the impossible?

Learn From The Mistakes Of Others

IODPA Admin 2021-03-23 smp

Learn from the mistakes of others. You can’t live long enough to make them all yourself.

— Eleanor Roosevelt (1884 – 1962)

Here’s a question for you –

Would you ask a plumber to service your car?

Although the initial response might well be a resounding, ‘No’ a few moments thought could lead us to contemplate that there might, just possibly, be a few plumbers out there who are also qualified experienced car mechanics who have access to all the rights tools and equipment needed to service a car.

Let’s apply this thought to members of the medical profession. How many doctors are there who are experts in police pension law? By expert we mean hold a qualification in law – a law degree, and who fully understand all the police pension regulations and case law. Or, in reverse, how many legal professionals are there, such as solicitors or barristers, who are also registered with the General Medical Council as fit to practice medicine?

There must be a few, but so far as we are aware none of the doctors employed in the role of ‘selected medical practitioner’ (SMP) by police pension authorities in England and Wales have any sort of legal qualification or experience.

Yet doctors are being required to make decisions on matters of law in respect of police pension entitlement – matters which they are surely not competent to decide.

The Regulations which govern police pensions state that certain decisions must be made by a medical practitioner selected by the police pension authority.

For new readers – a SMP is a doctor who is required by a police pension authority to decide certain regulatory questions in respect of police ill health and injury pensions. A SMP also provides medical assessments within that context.

It is possible the drafters of the pension Regulations never envisaged just how many errors in law otherwise worthy doctors could make. It is also possible that some police pension authorities have wrongfully tried to ‘assist’ the supposedly independent decision making of their SMPs by inserting themselves into the process.

This has never resulted in good decisions, for the staff involved are frequently as poorly equipped to decide matters of law as are their SMPs.

Home Office guidance issued in 2004 was that any doctor who is to act as a SMP should, ideally, 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.

The guidance also says that, 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.

No mention there of legal training or qualifications.

We are aware that some SMPs attended a training event arranged by the College of Policing in January 2014. It was presented by one Nicholas Wirz, who is a solicitor employed by Northumbria Police, and in our opinion, hardly best placed to be trusted to deliver unbiased training. We have commented earlier here on the doubtful content and appropriateness of this training, so don’t need to say any more other than it was, at best, biased and dubious and very likely to lead SMPs astray when dealing with the legal aspects of their role.

One SMP who attended the training became so disorientated that she consequently claimed she had all the powers of a high court judge, and could order individuals to do her bidding.

Certainly, there has been no lessening of the number and frequency of mistakes made by SMPs since the training event.

So far as we are aware, apart from the single College of Policing event, it is left entirely up to individual forces to ensure their SMPs are competent in both medical and legal expertise.

A SMP’s opinion on a medical matter can be appealed, and thus considered by a panel of other doctors, including at least one specialist in the relevant field of medicine. However, a SMP’s decision on a legal aspect, if challenged, will almost inevitably have to be settled in a court of law.

This is so because there seems to be little point in taking a questionable legal decision by a SMP to more doctors – to a police medical medical appeal board composed of only doctors. Increasing the number of doctors, who have no law qualifications, involved in the decision making process is no guarantee of them being any better able to understand the law. All that happens is that the appeal board covers its shortcomings by appointing its own solicitor or barrister to attend the hearing, thus putting the appellant at a huge disadvantage unless they can afford to be represented by their own solicitor or barrister.

Unfortunately, far too many disabled former, and serving officers, continue to have to suffer the stress, inconvenience and cost of dealing with mistakes made by SMPs and by appeal boards.

So, are forces well enough equipped to provide legal training for SMPs and thus help prevent mistakes? Even assuming they have the will to do so?

Staffordshire’s Chief Constable Morgan, who is currently engaged in a legal process resulting from questionable actions taken by a SMP and by himself, not long ago researched and produced a paper on the ‘Force Management of Ill Health Retirements, Injury on Duty Awards and Police Medical Appeal Boards.’

He reports:

‘Many forces are struggling due to the lack of expertise within their organisations. Both forces and staff associations report difficulties managing these issues due to key personal leaving the organisation or being absent for short periods due to sickness or prolonged periods of leave.’

And:

‘The structure of some force HR facilities do not support the management of the process. When managed by shared service pools rather than through specific dedicated individuals, personnel are unable to build up experience in dealing with these cases. This is acutely felt by small forces that do not have the workload to enable individual staff members to build up their experience of this work.’

And:

‘The above issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.’

He concludes:

‘In light of the above, force personnel lack the confidence and expertise to successfully manage these processes. This is compounded by a perception that senior management in the service do not understand the complexity of the role, do not provide adequate support and that the regulations which govern these processes are not fit for purpose.’

And comments:

‘There is variance in the level of engagement of legal professionals and forces are not only obtaining legal advice from a number of sources, including individual force legal teams and contracted external legal advisors, but in some instances forces are without the support of any recognised legal professional. Due to the range of legal areas force solicitors cover, and in some instances the relatively low number of occasions when their services are engaged, legal services have been unable to develop expertise in these areas.’

From this, and from our members’ reports of continuing maladministration arising from lack of legal knowledge exhibited by SMPs, we are disturbed to know that SMPs are no more clued up now on legal matters now than they were back in 2009 when Dr Broome, (a co-worker of Nicholas Wirz and undoubtedly advised by him) erroneously thought it entirely lawful to reduce, in the course of one day, with no medical examinations, the pensions of no less than 70 elderly disabled former police officers merely because they had reached a certain age.

There are far too many current examples of legal knowledge being woefully inadequate in SMPs for us to discuss them all here. However, we can present one recent example which perhaps illustrates the situation rather well.

An individual applied to be awarded an injury on duty pension. The SMP decided that the person did not qualify, as he had received the disabling duty injury whilst employed in another force. The officer had transferred from one force to another during his career. The SMP’s view was that the officer’s current force was therefore not liable to pay him an injury pension.

This was entirely an instance of a SMP failing completely to understand the relevant law. It seems the SMP was not even capable of reading the Police (Injury Benefit) Regulations 2006 to check what the law said. Had he done so he would have seen this:

Authorities responsible for payment of awards

41, – (1) An award which is payable to or in respect of a person by reason of his having served as a regular police officer shall be payable by the police authority of the force in which he last served as such.

Not difficult to understand. Even a layperson should be able to get to grips with this straightforward piece of law. But, we hear of SMPs, and HR managers complaining that the various police pension Regulations are hard to understand, or are poorly written. Chief Constable Morgan has even gone so far as to suggest the pension Regulations are, ‘not fit for purpose.’

We don’t agree. Any difficulty SMPs face is down to lack of basic understanding of the law, and lack of adequate unbiased training. They make mistakes because they are out of their depth, and because HR managers, and others, insert themselves into the decision making, which by law, should be the sole disinterested responsibility of the SMP.

An oversight, a mistake, such as the one above is hugely distressing to the individual involved. The blame lays not only with the SMP but with the people who hired him and who are available to him for legal advice. In this instance we don’t know whether some hidden agenda influenced the SMPs decision. If that was the case, then the maladministration moves into the area of malice.

It was Chief Constable Morgan’s considered opinion that the best way to deal with the many deficiencies he encountered in his research would be to centralise SMP services. He thought that regional centres, controlled and staffed with doctors selected and presumably trained by the Home Office would be a solution.

Not so. It is our view that such an arrangement would make matters worse, not better. We suspect the Home Office realises this, and is content to let individual chief constables continue to carry the cost of litigation whenever their SMPs make mistakes.

We rarely express any sympathy for SMPs, but we do acknowledge that they are not all hopelessly inadequately trained. There are some excellent SMPs who consistently make sound medical judgements and who apply the police pension regulations fairly and accurately.

Unfortunately, for every SMP who can’t be bothered to read the Regulations, there are a host of HR and Occupational Health workers, plus senior officers, who simply don’t have a clue and who either fail to recognise their SMPs shortcomings, or who are content to allow them to occur.

Between them, these persons in positions of responsibility do their forces no good at all. Mistakes cost money. They also destroy confidence. Few forces still cling to the fool’s gold belief that conducting reviews of the degree of disablement of former officers will result in savings. The mistakes that SMPs and HR staff help to ensure that savings are illusory. Importantly, even if reviews were all held perfectly, the data indicates strongly that as many or more pensions stand to be increased than decreased, with the vast majority remaining unaltered.

Despite this, some forces, for reasons unknown, continue to employ plumbers to do their car servicing.

Good luck with that.

Chinese Parmesan

IODPA Admin 2020-09-08 smp

Aunty Sophia is a redoubtable woman and a very good cook. Ask her anything about food and she will have the answer, from how to make the perfect Eggs Benedict to how Spaghetti Bolognese does not exist in Italy.

She will explain, with an exasperated sigh, that in Bologna they make a minced beef ragù with minced pork, onions, celery, carrots, wine and other ingredients, which is served tossed through Tagliatelle, Fettuccine or the wider Pappardelle, but (and at this point her voice raises in volume and a finger wags admonishingly) it is never, never, served with spaghetti.

She is scathing about the globalisation of cuisine. She simply refuses to accept that Cheddar cheese can be made in Australia, Canada, and even Scotland, and yet legally be called Cheddar. Yes, it is cheese, but it can not be proper Cheddar cheese.

The same goes for Parmesan. In Italy, one is judged by how good is the Parmesan you serve to your guests. It has to be authentic, for it is not unknown for unscrupulous retailers to pass off lesser hard cheeses as genuine Parmigiano-Reggiano. What really gets Italian Aunty Sophia’s goat is the deep suspicion that Parmesan is now being made in China. Chinese Parmesan! Oddio! Che cosa sta succedendo? What’s going on!

Aunty’s amazement and utter rejection of Chinese Parmesan is so often expressed by her that it has become a sort of meme within her family. If something is not right, fake, a deception or just plain out crooked, then it is ‘Chinese Parmesan’.

Which inevitably brings us to focus on selected cheesy medical practitioners who take on the role of SMP.

For new readers, a Selected Medical Practitioner (‘SMP’) is a doctor, usually qualified in the branch of medicine known as occupational health, who is selected and paid by a police pension authority to make medical assessments and medical decisions in connection with fitness to work and, especially, decisions affecting the pension rights of serving and former police officers.

IODPA is usually very critical of SMPs. With good reason. Whenever IODPA lists their numerous shortcomings, exposes their woeful ignorance of the police pension regulations, or when we report on how they deliberately flout data protection law, then IODPA will name and shame, but always in the spirit of constructive criticism. IODPA hopes, perhaps forlornly, that exposure of SMP’s deficiencies might encourage them, and their paymasters to realise they need to change their ways and begin to conduct themselves lawfully and ethically.

Unusually, in this article we are not going to recount some new or repeated wrongdoing by a corrupt or incompetent SMP. I’d be spoiled for choice. Instead we are going to sing the praises of one doctor who fulfills the role of SMP in a caring and professional manner.

Several of our members have told IODPA that this doctor is a rarity. An honest and impartial SMP. A round of noble Stilton on a table groaning with counterfeit Camembert, fake Feta, analogue pizza cheese substitute, and ersatz Emmental.

IODPA has heard nothing but praise for the professional and respectful way medical examinations and interviews have been conducted. Decisions made have been in tune with the medical facts and have thus been acceptable. The strict requirements of the General Data Protection Regulation have been adhered to. Members report no objections or difficulties being raised when being accompanied by a chaperone or helper, nor to sessions being recorded.

This doctor demonstrates that the police injury and ill health regulations are not difficult to understand or to apply. The regulations do not require that a SMP holds a law degree or that the SMP should act as though they were a presiding magistrate or High Court Judge. The role of the SMP can be described as simply as this – interview and examine an individual as necessary with the objective to identifying illness or injury which might erode an individual officer’s ability to carry out the full range of duties required of a constable, and, in the case of former officers in receipt of an injury pension, determine whether there has been any alteration in their degree of disablement.

A SMP is there to consider the medical evidence – not just from their own examination and interview, but all evidence supplied by the individual, such as reports from eminent specialists, consultants and grounded GPs.

The SMP delivers a decision on certain medical questions which are contained in the various regulations.

The questions, so far as the Police (Injury Benefit) Regulations 2006 are concerned come down to these:

(a) whether the person concerned is disabled (or totally disabled);

(b) whether the disablement (or total disablement) is likely to be permanent;

(c) whether the disablement is the result of an injury received in the execution of duty, and;

(d) the degree of the person’s disablement.

On rare occasions a SMP may be asked to revisit a decision made by a different SMP, who for whatever reason is not able or willing to reconsider their decision themselves (commonly known as a Regulation 32(3)).

The SMP we are praising has had to address all of these questions and has done so consistently, with no apparent difficulty and without giving any cause for either the individual concerned, or the police pension authority to feel that some skulduggery was involved.

Anyone can make mistakes, but there is a world of difference between genuine unintentional error and the sort of ‘error’ that some SMPs make, hoping they won’t be noticed, and therefore drive a 987 horsepower Bugatti Veyron through the regulations. Errors, which the offending SMP’s police pension authority will inevitably do their utmost to deny.

We have to say that the SMP, who we thank and congratulate here, is first and foremost a caring human being who happens to be a doctor, who happens to work as a SMP. His or her work is in glowing contrast to the Machiavellian manoeuvrings of other SMPs whose behaviour strays right across the spectrum from careless inability, incompetence, ineptitude, and inexperience through to full-on criminal intent to defraud.

We haven’t named this doctor, for we fear the powers that be would find some excuse to dispense with his or her services. Sounds far-fetched? Not a bit of it. Ill-intentioned police pension authorities have successfully driven out nearly all honest and decent SMPs, who have been replaced with the Chinese Parmesan type of doctors who Italian Aunty Sophia would readily sniff out and scornfully reject as not the real deal.

She would say, ‘Where you find Chinese Parmesan, there you will also find a useless Chef.’

Surrey And Sussex Police Have A Candidate For File 13

IODPA Admin 2020-07-03 Chief Constable, GDPR, HR, medical records, Regulation 37, smp

“File 13” is a euphemism for the trash can or waste paper basket.

Our attention has been drawn to a document entitled “Managing Police Officer and Police Staff Ill Health Retirement Policy (Surrey and Sussex) (542/2019)“, which can be found on the Sussex Police website. It is a joint force policy between Surrey and Sussex Police on the management of ill-health retirement, injury awards and subsequent reviews. This policy document is annotated on the bottom as belonging to the “People Services Department (Occupational Health)” of Surrey and Sussex Police.

You can find a copy at the following link:

https://www.sussex.police.uk/SysSiteAssets/foi-media/sussex/policies/managing-police-officer-and-police-staff-ill-health-retirement-policy-surrey-and-sussex-5422019.pdf

Or you can read a copy, duplicated below.

There are so many things wrong with this document that it’s difficult to know where to start.

It is probably fair to say that the overall feel of this official multi-force policy is one of dislike or even contempt of injured officers, as is evident from its frequent references to any non-defined ‘failure to co-operate’ being met with punitive measures.

We’ve selected, replicated and highlighted some of the worst sections of this policy document with our comments under each section. However, we will begin with the one section which is uncontentious.

3.1 This is a sensitive issue with personal and financial implications for the individual and the force. It must be
administered with sensitivity, understanding and confidentiality

The policy starts off well and we agree with their sentiments whole heartedly. Sensitivity, understanding and confidentiality are all words we use when describing how forces should be treating their injured officers, but it all goes downhill after here.

3.10 An individual will remain on their current pay status (full/half or nil pay) once they have made their application for IHR, unless they fail to co-operate with the process. Once authority is given for the individual to be ill health retired, they will revert to full pay.

Note: Chief constables have the lawful discretion to reduce the pay of officers who are ill or injured and thus not able to perform the full ordinary duties of a constable.

There are two things wrong with this statement, the first is that the policy states that if officers have already had their pay reduced, they will remain on their current level of pay until they have completed the ill-health retirement process and it is confirmed that they are likely to be retired; secondly, there is clear intent within this statement that if the officer fails to co-operate with the process, they will be further reduced.

The circumstances under which an officer’s pay may be reduced derives from section 28 of the Police Regulations 2003, which allows the chief constable discretionary powers to retain or reduce an officers pay during periods of sickness.

Police Negotiating Board (‘PNB’) Circular 05/01 provides specific guidance to chief constables to grant discretionary sick pay to officers who have been on sick leave for more than six months.

Section 7 of this guidance reads –

7. Whilst each case must be considered individually, the PNB considers it would generally be appropriate for chief officers to exercise the discretion favourably where:

The chief officer is satisfied that the officer’s incapacity is directly attributable to an injury or illness that was sustained or contracted in the execution of his/her duty or
The officer is suffering from an illness which may prove to be terminal; or
The case is being considered in accordance with the PNB Joint Guidance on Improving the Management of Ill Health and the police authority has referred the issue of whether the officer is permanently disabled to a selected medical practitioner
The Force Medical Adviser advises that the absence is related to a disability as defined by the DDA* (*”A physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day-to-day activities.”) and the chief officer considers that it would be a “reasonable adjustment” to extend sick pay, generally speaking to allow (further) reasonable adjustments to be made to enable the officer to return to work.

Whilst there is no explicit statutory obligation on the part of chief officers to have regard to this guidance, in the case of Weed, R (On the Application Of) v Commissioner of Police of the Metropolis [2020], it was accepted that it would have been unlawful to ignore the guidance.

It is clear, under point three (above), that once an officer has been referred for consideration of ill-health retirement, the chief constable should seriously consider reinstating the officer to full pay.

What has to be realised here is that officers can become ill through no fault of their own with physical or mental injuries, or sometimes a combination of both. It is not uncommon with mental health injuries for the officer to suffer from severe PTSD. This can seriously impair their cognitive function and ability to comply with requests or process information. Despite this, it is clear in the policy that there is no compassion or support regardless of the officer’s injury, but instead there is a clear statement that that non-compliance will trigger a further reduction.

Our point is that non-compliance may not be deliberate, negligent or willful, but may well be caused by the effects of the injury or illness. The policy makes no recognition of this possibility

The PNB guidance goes on to say there should be monthly reviews of the officer’s situation. This policy document ignores the guidance as there is no mention of monthly reviews.

5.2
…
Where such claims are substantiated at a later date and the application has been made within a year of the date, of the last day of service, for the officer, payment of the injury award will be backdated to the day after, the last day of Service.

This section unmistakably implies that if an application for an injury pension is not made within a year of the retirement date of the pensioner, the force will not backdate payment to the applicant. We’d be interested to hear from Surrey or Sussex where in the regulations or current case law this approach is permitted?

Regulation 43 of The Police (Injury Benefit) Regulations 2006 (‘PIBR’), states that the pension of a member of a police force under these Regulations shall be payable in respect of each year as from the date of his retirement.

It is widely accepted (by most forces) that an injury pension is payable from the date of retirement, unless the date of injury cannot be established, in which case, it would be the date of claim.

If Surrey and Sussex police need further persuading, we suggest that they look at the cases of Tully and North Wales police and Kelly and Chief Constable Of South Yorkshire Police.

In Tully, The court decided, ‘First, we are satisfied that Parliament intended that, generally speaking, pension entitlements under these regulations should be payable from the date of an officer’s retirement unless or until that was limited or excluded by operation of an express provision to that effect elsewhere in the same regulations.’

In Kelly the court 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

5.3
…
This is to be illustrated as the percentage by which the individual’s police salary would fall, in order to reach the level of salary likely to be commanded in another occupation despite the injury. The SMP in such cases may be the FMA.

The suggestion that the Force Medical Adviser (‘FMA’) may act in such cases is not good practice, and we don’t know why it has ever been suggested. The whole purpose of the Selected Medical Practitioner (‘SMP’) is that they are supposed to be non-partisan and independent.

Published on the 4 May 2007, a Home Office (‘HO’) paper entitled “GUIDANCE ON MEDICAL APPEALS” states the following,

5. Where the police authority decides to refer the case to the SMP it should normally be via the force medical adviser (FMA). The purpose of the FMA’s advice is to inform not determine the assessment by the SMP on whether the officer is permanently disabled.

Yet again, it seems as though the author of this paper is blissfully unaware of any of the HO or PNB guidance.

Note: Police Pension Authorities would be negligent if they failed to consider guidance, but guidance is not law and need not be followed. Surrey and Sussex’s policy makes no reference to any guidance, so we are left in the dark as to whether it was considered or not. We add that certain Home Office guidance has in the recent past been determined to be flawed, to the point of being unlawful. PPA’s need to be cautious of blindly following guidance to the same degree that they need to be sure to consider it. The various Regulations are the law which PPA’s must abide by, and this policy document is deficient in that respect.

Surrey and Sussex’s policy casually departs from statutory limitations. Bells and whistles are added with no apparent rationale, and devoid of legal underpinning.

6.1 When an officer disagrees with the decision of the PPA not to accept a claim for ill health retirement or injury award and to refer questions to an SMP, the officer may appeal the decision to the Crown Court (PPR and PIBR refers). In such cases the police officer will be asked to complete an appropriate medical records consent form and such records will be sought from the officers GP.

Whilst it is correct that if the Police Pension Authority (‘PPA’) refuse to admit a claim for an injury award, the officer may refer the matter to the Crown Court for arbitration, there is no provision under the PIBR for forces to be able to demand medical records as a consequence. We have to question why the force would only be requesting the necessary medical records at this stage? Surely they would have needed them in order to have made a balanced decision to refuse the application to start with?

6.2 Where the officer is considered permanently disabled, the SMP will complete a report, relevant to the questions raised by the PPA in accordance with the relevant PPR that affect that officer and the officer will be formally notified of the decision in writing, by the PPA.

Medical reports completed by the SMP should be released to the officer first, who should be able correct any factual errors before it is released to the PPA.

7.3 Where an injury award is payable, the PPA shall consider whether the degree of disablement has substantially altered in accordance with the advice of the SMP who determined the injury award and if it has, the award will be revised accordingly in accordance with PIBR.

In determining the degree of disablement in this process, the PPA shall refer the matter to an SMP (the FMA may act in this role), who will be required to deal with it in accord with PIBR and will issue a report accordingly.

Let’s compare what has been written in the policy with the actual PIBR. The policy states “the PPA shall consider whether the degree of disablement has substantially altered“, whereas regulation 37(1) actually says “the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered“.

A small, but important omission, as the PPA is not entitled to conduct a reassessment of an injury pension unless there has been a suitable interval. A suitable interval is not defined, but in “The Queen on the Application of Turner v The Police Medical Appeal Board” it was said “suitable intervals suggests that this is not a matter which should be revisited every year, nor is it.”

This means that it is not open for the force to simply review at will without due consideration as to whether a suitable interval has passed. The policy thus puts the cart before the horse. It intimates that a SMP will exercise a remarkable ability to predict the future by recommending to the PPA when a disabled officer’s degree of disablement might alter substantially. The plain fact is that nobody, not even a doctor, can tell what the future holds.

The policy places a fetter on the discretion required of PPAs as to whether or when to consider the matter of substantial alteration in degree of disablement. It commits the PPA to a future action, based on nothing more than the opinion of a SMP.

This latter section, again suggests that it is appropriate for the FMA to act in the role of the SMP, when it is not. See the answer we gave to 5.3

7.5 The final part of the review process will involve an assessment by the SMP who will initially address the apparent disablement of the individual being reviewed, if necessary during private consultation and examination.

Reading this one line caused us outrage. The use of the word ‘apparent’ is highly offensive and clearly speaks volumes of how these two forces value and think of their injured and disabled pensioners. One dictionary definition of ‘apparent’ is ‘seeming true but not necessarily so’. So their obvious suggestion here is that pensioners are ‘pulling a fast one’ and there are no real injuries or illnesses.

Let us also point out that this approach is also unlawful. Once an SMP makes a determination in relation to a pensioners level of disability, that position is a given, and any subsequent reviews are a comparison exercise between that stated position and today. No ifs, or buts, you cannot question or revisit previous decisions or conduct a fresh assessment.

7.7 An individual subject to a review and living abroad, may be directed to see an SMP within reasonable travelling distance of their homes, after consultation by the OHWD with British Authorities overseas (e.g. Embassies, Consuls, Armed Forces). Alternatively, the individual may be advised to attend a meeting with the SMP within the UK. Failure on the part of the individual to co-operate may be addressed in accordance with the PIBR.

Firstly, this section suggests that the force has the right to ‘direct’ the pensioner to do things, which is not the case. They are no longer serving officers taking orders. More importantly, it suggests that pensioners who may be living abroad can be made to return to the UK for a medical consultation. We’d be interested to see where in the PIBR it allows forces to order pensioners to return for the purposes of a medical examination? Yet again, there is the threat of consequences if they fail to co-operate, so what are those consequences?

8.1
…
If the individual wilfully or negligently fails to submit to a medical examination, or to attend such interviews as the SMP may consider necessary in order to reach a decision, the PPA may make their determination on such evidence and medical advice, as in their discretion, they think necessary.

We have already mentioned in section 7.3 how the omission of a word from the regulations can change their original meaning. With that in mind, lets look at what has been written in the policy “the individual wilfully or negligently fails to submit to a medical examination“. That’s not what the PIBR say. What it actually says in regulation 33 is the the following “the person concerned wilfully or negligently fails to submit himself to such medical examination“.

Have you spotted the difference? The word “himself” is missing. So what is the significance of this? The word “himself” implies “the person” i.e. the pensioner should attend in person where they may be questioned or examined about their current level of disability. The statement “failing to submit to a medical examination” is far broader than just the person. It implies and could be argued that the medical examination also includes the authority to demand and examine medical records or other medical information about the pensioner which is not a requirement of the regulations.

SMPs can request, but not demand, access to medical records. They can ask a pensioner any relevant questions they think necessary to their task. However, we see nothing in the Regulations that allows anyone, SMP or other, to require or demand access. Nor do we see any legal authority in any other legislation which allows access without express informed permission from the data subject.

8.2 To assist with this determination, individuals who fail to co-operate, or only co-operate conditionally, will be provided with an appointment to see the SMP at their clinic, or other location specified by the PPA.

This section is absolutely nonsensical. It’s suggesting that pensioners whose injury pensions are being reviewed that are not co-operating will be referred to an an SMP in order to assist the PPA make a determination under regulation 33.

However regulation 30(2)(d) is clear, that if the PPA is considering revising an injury pension, the PPA has an obligation to refer the matter to the SMP,

30(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—
…
…
…
(d) the degree of the person’s disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

This means that the PPA should have already referred the pensioner to the SMP for the purposes of regulation 37(1), that being the case, why would they then refer the pensioner in order to determine regulation 33? If our understanding of this section is right, and they wish to refer the pensioner to the SMP purely for the purposes of regulation 33, then we’re happy to inform them that there is no such authority.

8.3 If they attend but have not completed a medical review questionnaire as supplied by OHWD, they will be provided with one by the SMP and asked to complete it forthwith. Once completed the SMP will conduct the consultation and examination but will delay any decision until the information on the questionnaire is examined by the OHWD and the appropriate report completed.

What!??? They will be “asked to complete it forthwith“. Once and only once they complete it will the SMP conduct the examination. Let’s make it unequivocally clear to the chief constables of Surrey and Sussex, there in no requirement under the PIBR to complete any medical questionnaire. Furthermore, the disclosure any of such medial questionnaire to the Occupational Health and Welfare Dept (‘OHWD’) as suggested is a series breach of ‘special category’ personal data under the General Data Protection Regulations (‘GDPR’) and will make the force liable as the data controller for this serious breach.

Let’s make it perfectly clear to Surrey and Sussex Police, a 37(1) reassessment of an injury pension is a medical decision, and as such can only be made by a medical practitioner. It is our view, that medical data should ONLY be requested and viewed by the SMP. There is no authority or provision in the regulations for OHWD staff to paw over the personal, sensitive and private medical notes provided by a pensioner. Is this clear enough?

8.4 Should the individual fail to attend any meeting with the SMP, or fail to co-operate at all, the injury award percentage will be reduced to 0%, unless there are clear and unequivocal reasons for not doing so. Any subsequent appeal will be defended, or the case may be reassessed if the individual is then able to co-operate

Wow! Let’s say that again, WOW! What regulation allows the PPA to reduce the injury award to 0% if the pensioner fails to attend an SMP meeting or if they fail to co-operate at all? This is fantasy land stuff and is UNLAWFUL. Again, we believe that this is clear indication as to the contempt in which they hold those in receipt of any injury award. They should bow their heads in shame!

9.1 An individual will remain on their current pay status (full/half or nil pay), once the PPA have granted permission for the IHR application to proceed, unless the individual fails to co-operate with the process. Once authority is given for the individual to be medically retired, they will revert to full pay from the date the PPA authorised the ill health retirement.

In closing, we would draw your attention to the comments we made in relation to 3.10 (ante).

Clearly someone has taken a lot of time and effort in producing this dreadful document, and we can only assume that the Chief Constables of Surrey and Sussex have viewed and authorised this policy.


Chief Constable of Surrey – Gavin Stephens	Chief Constable of Sussex – Giles York

We started this blog by saying that “File 13” is a euphemism for the trash can, and we’ve found a prime candidate for the use of such a receptacle.

We’d love to hear the hear the conversation between one of the chief constables and the author of this policy document when they’re summonsed to his office.

Chief Constable: “So how long did it take you prepare this policy?”

Author: “About a week.”

Chief Constable: “Well, that’s how long you’re not going to be paid for!”

Author: “Oh, okay. What do you want me to do with the policy?”

Chief Constable: “Put it in file 13, on the way out!”

The Shortcomings Of Certain SMPs

IODPA Admin 2020-03-07 smp

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 Selected Medical Practitioners (SMPs). Now we need to focus 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, who needs to be on the register maintained by the General Medical Council. The doctor, once appointed, is generally referred to as the SMP or selected medical practitioner.

We made the important point in the last blog that SMPs are nearly all doctors who have not made it their professional objective to do what is accepted to be the main work of doctors, such as healing the sick, researching for cures to diseases, or caring for the terminally ill. Instead, they chose to find work in the field of occupational medicine, formerly known as industrial medicine, where they spend their days, to quote, from various sources, ‘. . . concerned with the maintenance of health in the workplace, with secondary objectives of maintaining and increasing productivity and social adjustment in the workplace.’

An objective observer may consider there is an inbuilt conflict of interest where a doctor is employed by a commercial organisation in a role which is essentially to assist productivity.

It might also be thought that an occupational health doctor employed in the public sector would be free of any hint of conflict of interest, for there is no pressure on them to have an eye on their employer’s profit margin, Sadly, when it comes to the police service, whilst there is no profit margin to worry about, Chief Constables fret, with good cause, over the costs of running their force. They are encouraged to make savings by successive Governments, who in the same breath will demand greater efficiency and falling crime rates.

No wonder then that some Chief Constables have looked at the cost of providing injury pensions and have strayed into dangerous territory by enabling their HR and Occupational Health managers, along with the SMPs used by their force, to be ‘inventive’ with their application of the law governing the administration of injury pensions.

Elsewhere in this website, there are numerous examples of the sharp practices which have resulted from some Chief Constables forgetting entirely that their responsibility to the law precludes them from putting their worries over their shrinking budgets before their duties as managers of the police injury benefit scheme.

Put simply, police injury benefits should be managed with no thought to the financial effect of decisions made regarding a serving officer’s or injured retired officer’s medical condition. Decisions made by a SMP need to be made free of any pressure, whether overt or merely hinted at, to act in ways which are influenced by financial outcomes.

Some SMPs, however, 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 biase.

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 a 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 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, and 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.

We have heard much about the unpleasant and coercive practice whereby the SMP asks the disabled person to complete a “customer satisfaction” survey. The pensioner is told something along the lines of, ‘No, you can’t take it with you to complete and send it back. 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 around £250 an hour, that is as shady dealer Arthur Daley would say, ‘A nice little earner.’

We are frequently told of SMPs reports which bear little to no relationship to what was said and done during an examination or interview. In the most extreme examples an SMP has told the pensioner verbally during the examination/interview 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 a 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, or 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 so 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 in 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 HR/ 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.

Do SMPs Put Their Patients First?

IODPA Admin 2020-01-202020-03-03 smp

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.’

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.

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.

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.

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.

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.

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.

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.

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