smp

Judge, Jury And Jackass

iodpa 2017-09-012017-09-20 selected medical practitioner, smp

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We thought you should know…

Ms Doubtfire & Mr Williams

iodpa 2017-03-262017-03-26 caselaw, Causation, selected medical practitioner, smp

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr Staley stated in his 2009 report that:

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

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

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

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

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

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

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

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

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

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

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

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

And for Mr Williams,

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

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

Let us take a closer look at this Regulation.

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

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

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

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

The Regulations do not call for a diagnosis.

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

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

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

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

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

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

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

Justice Pelling put this into legal speak:

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

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

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

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

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

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

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

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

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

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

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

The sensible ones have stepped off the field.

Just Vulnerable or Permanently Disabled?

iodpa 2016-12-082019-07-27 caselaw, morale, pmab, selected medical practitioner, smp

“Remember that all through history, there have been tyrants and murderers, and for a time, they seem invincible. But in the end, they always fall. Always.”
― Mahatma Gandhi, The Story of My Experiments With Truth

As certain forces continue on their hell-bent course of denying ill or injured officers their pension rights a pattern is developing. Some Selected Medical Practitioners (SMPs) are labelling applicants with diagnosed PTSD or similar mental illness as ‘only’ having a ‘vulnerability’

Retirement on an ill health pension needs a SMP to decide that an illness or injury is likely to permanently disable the individual from working as a police officer. Some forces want to save the cash, so will go to extraordinary lengths to avoid the need to pay award an ill health pension.

To back up their assertion that medical retirement is inappropriate where the illness or injury is PTSD, as they say that condition is not permanent, SMPs are citing two High Court decisions, which they claim justify their view.

Today, more often than not, when the critical question delegated to SMPs, ‘Is this serving officer permanently disabled?’ the decision given is a rubber-stamped answer like this:

So when an application for ill-health retirement (IHR) is refused why are SMPs using the ‘vulnerable’ label?

The short answer is that it’s because they are relying on two cases, one concerning Northumbria and the other concerning Derbyshire. These are both force areas well known for their aggressive, acrimonious and antagonistic attempts to deny retired and serving officers their pension rights.

The cases are R (Northumbria Police Authority) v Broome [2006] ICR 555
and
R (Sidwell) v Police Medical Appeal Board v The Chief Constable of the Derbyshire Constabulary [2015] EWHC 122 (Admin).

By focusing on these two high court decisions some SMPs are attempting to imply things often not relevant to the circumstances. They use the cases as a rejection crib-sheet. It is rather like someone who claims that eating a certain wonder food prevents cancer, but neglects to mention that you would need to eat six pounds of it each day, for ever, for it to have any effect. They thus tell only part of the truth.

These SMPs are selective in their presentation of supporting case law. They fail to point to the case which contradicts and negates their view.

They conveniently fail to mention a much more recent judicial review. That of
Sharp v West Yorkshire Police & Anor [2016] EWHC 469 (Admin) (07 March 2016).
We will come back to this case in detail later.

Let us first discuss the Northumbria judicial review. No doubt this force’s nefarious force solicitor, Nicholas Wirz – skulking and slithering behind the scenes – was the protagonist who advised his Chief Constable to challenge the decision of his own SMP, Dr Jonathan Broome.

What happened was that, in 2005, officers Alison Doyle and Madeline Clementson both claimed permanent disability, which Dr Broome agreed existed and so was certified by him. Northumbria disagreed and challenged his decision – their own doctor! – by way of judicial review.

While based in Bamburgh, PC Madeline Clementson, was injured through being dragged along the road by a suspect’s van. Dr Broome, who assessed her, said she suffered panic disorder and agoraphobia along with an intractable antipathy towards her police role.

He added that although her physical injuries had not made her permanently incapable of performing her duties, she was plagued by symptoms of low mood and anxiety which could be worsened by a return to police duties.

In PC Alison Doyle’s case, Broome said there were several factors stopping her from returning to work including spinal pain, vulnerability to anxiety and her enmity towards Northumbria Police.

The doctor found she had developed such an entrenched aversion to returning to police duties of any sort that the prospect of doing so might well trigger mental ill-health.

Dr Broome said Alison had “an emnity towards Northumbria Police as an organisation” and would even have difficulty performing civilian duties for the force and he said that Madeline had such an “entrenched aversion to going back to police duties of any sort” that the prospect of doing so could trigger mental ill-health.

Both PCs lost the judicial review because neither had a definitive medical diagnosis. Although both officers were given medical retirement by Broome, he failed to medically diagnose them or refer them to someone who could, so Mr Justice Bennet upheld the challenge and overturned the permanent disability certificates issued to the ex-officers.

It is important to note that a court will inevitably never challenge a medical opinion, for it is not competent to do so. It is a medical matter, and a court lacks the medical qualifications necessary to make any comment or judgement on medical matters. A court can, and will, determine matters of fact and law.

Northumbria took two of it’s officers all the way to the High Court to win a battle over an issue which could have been easily been sorted out without recourse to such stressful and expensive means. The judicial review served only to delay resolution at a horrendous personal cost to Alison Doyle and Madeline Clementson.

The reason why Northumbria won the original judicial review was simply that neither Doyle nor Clementson had a definitive diagnosis which could be found categorised in the World Health Organisation International Classification of Diseases (ICD-version 10)

As Mr Justice Bennet put it;

Vulnerability”, “enmity”, and “intractable antipathy” do not appear in internationally authoritative guides available to doctors such as ICD-10 and DSM IV

In a twist to the sorry state of affairs, Alison Doyle took Northumbria to an Employment Appeals Tribunal in 2012:
http://www.bailii.org/uk/cases/UKEAT/2012/0576_11_1712.html
In this EAT it is shown that four years later, in 2009, Doyle eventually got the IHR she asked for:

‘However, in a subsequent report dated 15 July 2009, Dr Broome recommended that Ms Doyle should be retired on medical grounds. The Acting Chief Officer took a “holistic” view of her case, namely that her psychiatric condition, which in his view did not on its own amount to a permanent disability, should be taken into account. Accordingly, on 21 August 2009 Ms Doyle was retired on medical grounds on the basis of her combined psychiatric and spinal problems.’

It seems that by 2009, Alison Doyle had secured a definitive diagnosis and so was, in the end, medically retired – the whole saga of the judicial review was pointless and unnecessary. Instead of taking it’s officers to judicial review, Northumbria could have spent the money on getting both officers diagnosed by specialist clinicians, for far less cost and with far less stress caused to two damaged individuals.

The take home from this is that a line is drawn by this High Court decision. Once an officer has a recognised medical condition their case becomes distinguishable from the situation experienced by Madeline Clementson and Alison Doyle.

When an officer has a categorised diagnosis, rather than some wishy-washy opinon stated in vague terms by idiots like Broome, matters have crossed the line into there being a recognised infirmity.

When there is an ICD-10 diagnosis an “intractable antipathy” may well be noted, but only as a symptom of the infirmity, and not the infirmity itself.

And so on to the Sidwell judicial review. This case involved the now deceased Dr Ralph Sampson who worked as a SMP for Derbyshire.

An unfortunate sequence of events led to DS Andrew Sidwell’s marriage failing and him then being made homeless after a colleague, who let him share his house, was investigated for corruption – an allegation that was later proved false and which, some believe, was based on a Professional Standards Department witch-hunt. Homeless, he further suffered a forced transfer to another department, and this all led DS Sidwell into a spiral of understandable anger, resentment, embitterment and antipathy towards Derbyshire police.

Dr Michelle Shepherd, a consultant psychiatrist, diagnosed DS Sidwell as having situational anxiety disorder. Dr Sampson refused medical retirement as he claimed that, ‘situational anxiety … is not permanently disabling’.

DS Sidwell saw another consultant psychiatrist to help an appeal he made against this decision to a Police Medical Appeal Board (PMAB). Consultant Maria Isaac assessed DS Sidwell and determined that his,

‘. . . anxiety is severe enough to approach phobic intensity. However I could find no evidence of significant underlying psychiatric illness or impairment’.

During the PMAB, one of the consultant psychiatrist panelists, Dr Karim Rajput, stated,

“I would classify him with an ICD-10 diagnosis of anxiety disorder, unspecified (F44.9)’

Despite this, the Board concluded (using a confusing double-negative to do so) that successful treatment of his condition was “not unlikely” and that therefore “he is not suffering a permanently disabling psychological condition’.

Consequently the appeal was dismissed and Sidwell was refused medical retirement.

Soon after, Derbyshire instigated Unsatisfactory Performance Procedures (UPP) against DS Sidwell citing inadequate attendance at work. The Federation sent Sidwell to see yet another consultant psychiatrist. This time a Dr Qureshi diagnosed Sidwell’s condition as a permanently disabling chronic phobic anxiety disorder.

Derbyshire’s newly appointed SMP for this case was a Dr Geoffrey Davies who proclaimed that DS Sidwell’s condition would improve if he left the police service and as such has he has,

‘. . . a vulnerability to being in the police but does not have a permanent disablement.’

Another PMAB was held and another panelist, Dr Nehaul, disagreed with the diagnosis made by Dr Qureshi and the panel took Dr Nehaul’s view that the Mixed Affective Disorder diagnosis could not be right as there was no evidence of mania. Dr Nehaul devotes rather more words to demolishing Dr Qureshi’s diagnoses.

It is important to note that, unlike a court of law, a PMAB, can comment on and decide on medical matters, as all the Board members are themselves doctors.

The Board concluded,

‘Whilst having enormous sympathy for the position in which Mr Sidwell finds himself, the unanimous decision of the Board is that he does not have a permanent disabling medical condition which would prevent him from carrying out the ordinary duties of a Police Officer and therefore the appeal is rejected.’

This then went to judicial review where Mr Justice Mostyn rejected the claim that the PMAB’s decision was wrong and decided that,

‘The Board was entitled to prefer the opinion of Dr Nehaul to that of Dr Qureshi as to whether there existed a medical condition which caused the relevant inability.’

So the Sidwell case hinged on a spat between two consultant psychiatrist who failed to agree with each other and the judge decided there was not a point of law or fact in which the court could make a determination, given that there has to be considerable respect to the decision of an expert and informed tribunal.

In simple terms you could say that with the saga of Madeline Clementson and Alison Doyle (where there was no definitive diagnosis made), we can see their cases were the complete inverse to that of Sidwell v Derbyshire – wherein too many diagnoses existed!

Returning the question of this post. How can a SMP on first seeing a serving injured officer use these cases to assert vulnerability? If there is a diagnosed infirmity then the Rubicon for Doyle & Clementson is crossed. If there is no PMAB and no quarrel between eminent consultants over what the condition actually is, then Sidwell is irrelevant.

This brings us to the latest judicial review, heard in 2016, of Sharp v West Yorkshire.

Mr Sharp suffered from anxiety on a number of occasions before he joined the police. He was in fact initially rejected by the police on medical grounds. In 2011, whilst under UPP, he resigned and in 2013 he made an application for an ill health award. This was subsequently refused by the SMP, Dr Dagens.

He appealed and his PMAB submission was supported by a report from Professor Rix, a consultant forensic psychiatrist, who gave a diagnosis of recurrent depressive disorder (F33.4 ICD-10) and concluded,

The primary issue appears to be whether or not the Appellant is permanently disabled. Critical to this is the Appellant’s vulnerability. That vulnerability is his paranoid attitude. This is a permanent feature of his character or personality. It is when that attitude engages with management, as inevitably it would, that the Appellant would suffer a recurrence of his depressive disorder and be unable to perform all of the ordinary duties of a police officer. It therefore appears to me that the issue for the Board will be whether or not such vulnerability in itself amounts to a permanent disability for the purposes of the Regulations.

The PMAB rejected the appeal. It had concluded,

‘Whilst his attitude may indeed make him more vulnerable to further episodes of depression, the Board does not consider such attitude equates to an infirmity with regards to the Police Pension Regulations. Likewise vulnerability arising from this attitude would not be regarded as permanently disabling. This is consistent with the case law on vulnerability.’

“Case law on vlunerabilty”. Interesting use of the phrase there. Just saying it doesn’t make it true and in reality the PMAB catastrophically failed to understand the precedents on vulnerability

It was accepted that Sharp suffered from a recurrent depressive disorder. It was therefore unnecessary (and irrelevant) to consider whether Mr Sharp’s attitude was also an infirmity. By trying to deny Sharp ill-health retirement and bending case-law to fit their objectives the PMAB failed to test whether Mr Sharp’s recurrent depressive disorder was sufficiently serious to amount to a permanent disablement.

Sharp requested a Regulation 32 reconsideration on the basis that Professor Rix’s report was misunderstood and the conclusion taken out of context. This reconsideration went to the same PMAB panel for a re-decision. Unsurprisingly (and true to form), the PMAB panel stuck to it’s original decision to reject the application and finished by saying,

though mention of paranoid attitude in reports may suggest possibility of a personality trait, it would not amount to a disorder in the context of this case. The Board does not agree that likelihood of recurrence and persistent illness and ensuing disability despite optimal treatment is so strong, in this instance, as to fulfil the criteria for permanent disability

It was this second PMAB decision that went to judicial review.

Judge Brehens rejected West Yorkshire’s argument that both the Broome, Clementson & Doyle and the Sidwell case was applicable to Sharp. The key to the Sharp judgement was that is was found that the PMAB asked the wrong question of infirmity and they wrongly considered the paranoid attitude to be the disorder.

So Judge Brehens found in favour of Sharp and overturned the PMAB decision by saying

I am satisfied that the PMAB ought to have held that Mr Sharp’s recurrent depressive disorder was an infirmity within the meaning reg A(12)(5). It was unnecessary and wrong to go on to consider whether his paranoid attitude was also an infirmity. It was a cause of the infirmity not the infirmity itself. I agree with Mr Lock QC that Mr Sharp had indeed crossed Bennett J’s line and was a recognised medical condition.

Judge Brehens continued,

‘Mr Sharp’s paranoid attitude is one of the causes of the severity of the recurrent depressive disorder.’

In other words, the Board had taken a symptom instead of the illness itself as reason to declare that disablement was not likely to be permanent.

Someone being, in the opinion of a SMP, merely ‘vulnerable‘ or having an ‘antipathy‘ towards their employers should not mean they are refused medical retirement. The vulnerability could be a symptom of a recognised, categorised condition which the SMP, for whatever reason has failed to diagnose. Those reasons may be simple medical incompetence, but worryingly could also be the result of deliberate policy by the force and SMP in collusion to prevent granting injury awards.

We pointed out above that law courts can’t second-guess medical opinion as they are not medical experts. PMABs, conversely are a medically expert arena, but have unfortunately consistently shown that when it comes to the law they are woefully unable to grasp the issues.

It does seem odd that PMABs are allowed to consider legal aspects at all. And if PMABs can misinterpret the case-law, do think it wise to trust any legal opinion of a lowly SMP?

For those officers with reports saying that their ill-health retirement is rejected due to’ vulnerability’ or any other vague and ill-defined phrase, please look carefully at any stated cases quoted by the SMP purporting to underpin his decision. It’s a sure bet that Sharp, the latest case-law on vulnerability, will have been omitted.

Ignoring something relevant which fails to prove one’s point is not how UK law operates. You may have grounds to appeal whenever a SMP starts referencing case law. An appeal to a PMAB will take you before a panel of doctors but the Board may have no better understanding of legal points than does the SMP.

IODPA does not suggest never going to PMAB, but we do strongly advise that you seek expert legal advice from one or other of the two excellent solicitors we refer our members to. A judicial review, based on errors of fact or law may be a better route than a PMAB. Or if you are currently in proceedings for a PMAB look very carefully at the submission made by the police pension authority – are they relying on proving vulnerability whilst ignoring both your definitive diagnosis and the Sharp decision?

Alternatively, ask IODPA to provide you with information about how to use regulation 32 to have a SMP reconsider a decision which you believe errs in fact, law, or medical opinion.

Serving officers are facing hard times should they become ill or injured and are seeking ill heath retirement. It will not now be an easy path. However, it need not be an impossible path, provided that they seek professional advice and help at the earliest stage. SMPs, Police Pension Authorities, Chief Constables and their HR managers and legal ‘experts’ make so many mistakes that a challenge to a decision not to award an ill health pension has a very good chance of success.

Besides, why should you let the tyrants get away with it?

Battle of the ALAMA

iodpa 2016-09-262016-09-26 selected medical practitioner, smp, Uncategorized

“I am at liberty to vote as my conscience and judgement dictates to be right, without the yoke of any party on me… Look at my arms, you will find no party hand-cuff on them. ”
― David Crockett

In 1835, Mexican President Antonio Lopez de Santa Anna (1794-1876) threw out the nation’s constitution and made himself dictator. Many Americans in Texas, as well as Tejanos (Mexicans in Texas), hated this blow to their liberty and the growing tensions between Mexico and Texas erupted into violence when Mexican soldiers attempted to disarm the people of Gonzales, igniting the Texan war for independence. Like other states discontented with the central Mexican authorities, the Texas department of the Mexican state of Coahuila y Tejas rebelled in late 1835 and declared itself independent on 2 March 1836.

The Battle of the Alamo (February 23 – March 6, 1836) was a pivotal event in the Texas Revolution. Mexican troops under President General Santa Anna attacked the Alamo Mission near modern-day San Antonio, Texas, United States, killing all of the Texian defenders, one of whom was the famous Davy Crockett.

In an ironic twist of events, Santa Anna had fought for Mexico’s independence from Spain, only to decide to crush the independence desired by the people of Texas.

The Texas revolution finally ended at the battle of San Jacinto on April 21, 1836. It had been an uprising in defence of liberty.

Santa Anna shared a characteristic common to many other dictators. He was as contemptuous of the views, and rights, of the people of Mexico as he was towards the Texians. In 1824 Santa Anna gave his opinion as, ‘A hundred years to come my people will not be fit for liberty. They do not know what it is, unenlightened as they are, and under the influence of a Catholic clergy, a despotism is the proper government for them, but there is no reason why it should not be a wise and virtuous one.‘

In 2016, a senior representative of an organisation named the ALAMA, which boasts a membership of just 300 occupational health doctors, seems to have experienced a fit of pique. He lobbied the GMC in an attempt to get it to change its rules so as to exclude a certain class of people from the principles of confidentiality and respect for patients’ privacy that all doctors are expected to understand and follow. That class of people was disabled former police officers.

The ALAMA representative wished to prevent them from exercising their right to see a copy of any report written by a SMP before it is sent in to the commissioning authority. He wished to see disabled former police officers also lose their right to withdraw their permission for any such report to be sent in should they find fault with it. (See the guidance on line at http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality_contents.asp)

The lobbyist was Dr Bulpitt, who is Force Medical Advisor for Avon and Somerset Constabulary. He is is the official police representative of ALAMA – the Association of Local Authority Medical Advisors. He is no Santa Anna, but from him there emanates more than a whiff of the characteristics which distinguish dictators. His approach to the GMC demonstrates that he is contemptuous of the considered democratic view of the eminent GMC, which sets the standards which the more than 281,000 doctors registered with the GMC are required to follow. We are also suspicious that his lobbying was a personal campaign, and does not truly reflect the views of the members of ALAMA.

In ALAMA’s name, Dr Bulpitt has discarded the self evident truth that the GMC guidance follows legislation and complies with legislation. He fails to see that when the law isn’t applied to some, it doesn’t apply to any.

But is it the position of ALAMA, or the views of one man? We can’t tell if it is the organisation as a whole which is intent on destroying the rights of disabled former police officers, or whether Bulpitt’s lobbying is an example of an individual unilaterally abusing his position within ALAMA to perform some sort of ‘Game of Thrones’ politics of power play.

Dr David Bulpitt’s position and influence within this small organisation does not just have local consequences within Avon and Somerset. ALAMA represents many of the doctors who work as SMPs across the country. Should Dr Bulpitt’s views sway the GMC to amend its guidance, then that will affect every injury award review and injury award application nationwide.

Unlike Davy Crockett, who solely relied on his conscience and judgement, this particular doctor has the yoke of best practice defined by a regulatory body to adhere to – best practice that he wants to have the ability to choose when to park aside and who and when to exempt, to suit his own agenda.

ALAMA was founded after a conference on inhalation hazards in Firemen held in Edinburgh in March 1979. In April 1980 a follow-up meeting for local authority doctors in Manchester saw the start of an ALAMA steering committee.

The declared aims of the Association were to hold an annual meeting, to develop some kind of link with the Society of Occupational Medicine, the Faculty of Occupational Medicine and the British Medical Association.

Plainly, its founding aims were not to lobby the GMC to discriminate against certain cohort of people! So, what is the exact lobbying we are talking about?

The GMC are currently reviewing their 2009 Confidentiality guidance – making sure it is “relevant to doctors’ needs and to be compatible with the law throughout the UK.” The public consultation on the revised draft of the guidance on confidentiality closed on the 19 February 2016.

In January 2016, almost three months after he had professed to the Home Office that he had already contacted the GMC, Dr Bulpitt used ALAMA headed notepaper to belatedly write to that organisation.

		
			
			
		

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Within his letter he compared the right of certain specified members of the public – who happen to be people retired from the police service – to withdraw consent for medical reports (under the Access to Medical Reports Act) to being synonymous to condoning a repeat of the 2014 Glasgow bus catastrophe that killed six and injured fifteen others.

Just like the Tejanos in 1835, we are understandably appalled at the attack upon our liberty. Such purging of protection under the law for chosen targets leads inevitably to greater and greater abuses and more and more destruction of rights. This process was aptly chronicled by Martin Niemöller … to misquote this pastor, “First they came … for the people with disabilities. And I did not speak out because I did not have a disability”.

Dr Bulpitt sets his scene by first constructing a diversionary straw-man argument. Ignoring the contentious and unlawful mass review programs instigated by a minority of police pension authorities to reduce their ‘financial exposure’ to the cost of police injury on duty pensions, the doctor starts with smoke and mirrors by saying the OHP (occupational health practitioner, in other words the SMP) is only concerned with the fitness to work, in an attempt to sway the GMC Assistant Director for Standards & Ethics away from his true agenda.

Why let the truth get in the way of a good yarn? That his lobbying has no basis in fitness to work, dealing as it does with the destruction of the rights of people pensioned off from the police service, doesn’t cause Dr Bulpitt to see the irrelevance in his narrative.

Clinical Information obtained and recorded by OHPs, especially during a one off assessment, is exclusively for the purpose of advising employee and employer on fitness for work. Therefore the consent to request this information is made in that context. Clinical information is not obtained to provide clinical care and therefore the basis of the consent to request it is quite different from Drs who provide clinical care.

According to the Introductory Memorandum to The Police (Injury Benefit) Regulations 2006 the Police injury awards do not depend on membership of the Police Pension Scheme, but are in effect compensation for work-related injuries (the degree of disablement in relation to capacity to earn).

Continuing to omit things which irritatingly do not tally with his story, Dr Bulpitt fails to say that a great many SMP’s have in fact become of late a pale shadow of the independent and impartial decision-makers which they are required to be in law. He leaves out the inconvenient fact that he regularly demands clinical information including full medical records since birth; expunges from his lobbying of the GMC the information that the occupational health unit almost always did provide clinical care to the injured police officer whilst injured and still in service.

Apparently, in Dr Bulpitt’s version of the parliamentary process, it is only civil servants in the Home Office that ‘sets down’ legislation, conveniently forgetting the role of the Houses of Commons and Lords.

The Police Pension Scheme serves as a particular example of where clarity is urgently needed as to whether additional consent is necessary once an individual has requested their employer to enter them into the process for health assessment, and consideration for payment related to ill health. At present GMC guidance appears to sit uncomfortably with the Regulations for the Police Pension Scheme which are set down in Legislation via the Home Office.

Rather peculiarly, the official ALAMA representative’s letter goes from faux concern for Council employed drivers; Police Officers using Firearms; Teachers with responsibility for children, on directly to his real bugbear – the Police Pension Scheme.

Could it be that mention of other local authority aspects were just a diversionary tactic? Is his real true agenda purely to convince the director of ethics that there is an imagined disconnect between GMC guidance and the Police Injury Benefit Regulations?

At present GMC guidance appears to sit uncomfortably with the Regulations for the Police Pension Scheme which are set down in Legislation via the Home Office.

IODPA would like to see evidence of where this proclaimed inconsistency lies. We believe there is no evidence. Dr Bulpitt chooses not to explain himself, and presents as fact something which is wide open to critical challenge. We believe that the current GMC guidance is based on a careful and rational analysis of the Regulations and of relevant court cases which have addressed the issues of confidentiality and consent in respect of reports commissioned by employers and pension scheme managers.

We have witnessed too many instances of reports written by SMPs which contained factual inaccuracies, incorrect application of the Regulations, and which exceeded the limitations of the brief of the SMP to see very readily why Dr Bulpitt wants these reports to be winged direct to the commissioning authority without scrutiny.

He fears that injury on duty pensioners have finally become aware that their rights under the law, and under GMC’s guidance, have consistently and widely been denied. He fears that a high percentage of reports will be subjected to withdrawal of consent and will not land on the desks of HR managers. His ambition to manipulate the Regulations so as to effect reductions of pension payments would be thwarted.

His letter to the GMC exposes very clearly that this doctor has only the wishes of his paymasters in mind, and cares nothing about the health and well being of disabled former police officers, nor cares anything for their right to continue to receive the level of pension their injuries deserve.

Current GMC guidance requires that the patient is offered a copy of the OHP’s report about them before it is sent. Many Drs consider that the guidance leaves ambiguous whether the patient is then able to withdraw consent at that point and thus prevent release of the report to whoever commissioned it.
…
We would like to request that the GMC consider an additional section in future guidance
advising Drs and patients specifically for situations where health assessments are requested by third parties from specialist OHPs and which particularly recognises the impartial role of OHPs making clinical assessments generally and especially in
The context of Health and Safety Legislation.
• When instructed in accordance with the terms of insurance typically in a Pension
Scheme
• When instructed under Regulations set down under legislation e.g. by Home Office

In their reply the GMC calmly proclaims that Dr Bulpitt’s grotequese bus tragedy analogy is already covered by the guidance and the exception Dr Bulpitt demands is given short-shrift.

Our understanding is that patients are entitled to withdraw consent for a report to be disclosed to a third party unless there is legal requirement to disclose the information, or disclosure can be justified in the public interest (for example, because failure to disclose the information could leave others at a risk of death or serious harm).

So what can the ALAMA learn about the Alamo?

After he defeated the rebels at the Battle of the Alamo, President General Santa Anna unwisely divided his forces, allowing Sam Houston to surprise him at the Battle of San Jacinto. Santa Anna was captured and forced to negotiate with the Mexican government for recognition of Texas’ independence and sign papers saying he recognised the Republic of Texas. He returned to Mexico in disgrace and retired to his hacienda. The people of Texas fought on for freedom and, eventually, on December 29, 1845, Congress admitted Texas to the U.S. as a constituent state of the Union.

Perhaps members of ALAMA will think it wise to consider how this particular representative is behaving and see fit to distance themselves from his lobbying techniques. The majority of conscientious and hard-working occupational clinicians do not deserve to have their ethics sullied by the machinations of one doctor.

One of Crockett’s sayings, which were published in almanacs between 1835 and 1856, was: ‘Always be sure you are right, then go ahead’

Every time we observe the lengths some twisted minds go to subvert the rights of others, IODPA is reinforced that we are right to keep going ahead.

“Preposterous” Awards

iodpa 2016-09-012016-08-31 police injury award, Regulation 37, Review, selected medical practitioner, smp

“Of all the preposterous assumptions of humanity over humanity, nothing exceeds most of the criticisms made on the habits of the poor by the well-housed, well- warmed, and well-fed.”― Herman Melville

Were Melville commenting today, he might well have had disabled former officers in mind as the ‘poor’ and the Force Medical Adviser of Avon and Somerset Constabulary as their well-warmed and well-fed critic. In Moby Dick, Melville frequently uses biblical and mythological allusions. Like the Biblical Ahab, in Melville’s Ahab (and our well-fed critic) there is a desire for something that he isn’t entitled to and that isn’t good for him to have, to try to get it by foul means, and then to get his comeuppance in the form of an ironic reversal of his own evil deed.

Although not all injured-on-duty pensioners are in the dire straits of penury, they are all poor in respect of the way their injury pensions are administered. The habit of the pensioners is to be in constant bemusement over how those who have a duty to administer injury pensions within the law so easily, and so enthusiastically seek to pervert the meaning and intentions of the Regulations.

As we have repeatedly said on these pages, IODPA is not against reviews of degree of disablement. Chief Constables have a wide discretion on whether or not to conduct a regulation 37 review of degree of disablement. They can consider the matter at such intervals as may be appropriate. However, it is not appropriate to initiate a review as a potential cost saving measure.

Reviews can not be used to undo the finality of the last final decision even if a certain force medical officer considers the award to be “preposterous” (see below). We can only wonder just how he managed to come to that opinion. On what evidence did he base his consideration?

No matter what a FMA might think about any individual’s injury pension payment he surely must be aware that only a substantial alteration to the degree of disablement can permit a revision of the level of pension paid. Is the verdict of “preposterous” informed by a generalised assumption of some deficiency in the process of granting an injury award? The FMA must know that the causation and the substance of the award always remains final and can not be revisited at review.

We are writing here about not just any old FMA, but one Dr David Bulpitt MRCGP FFOM, who is the Force Medical Adviser of Avon and Somerset Constabulary. It is a telling reflection of the rather nasty and lawfully inaccurate attitudes prevalent in some quarters, that Dr Bulpitt appears to have an inflated ego of such magnitude that he wants to rewrite history and convert the decisions of his predecessors, into becoming his decisions.

Dr Bulpitt is not shy about voicing his rather skewed opinions on injury awards. He is not even a run-of-the-mill force medical adviser. He has a national platform – as the police representative for the Association of Local Authority Medical Advisers (ALAMA). Listed as a speaker in past ALAMA conferences for Occupational Health physicians who are “set on delivering the highest quality services and the best standards in patient care in the most effective manner”, you’d have thought his words would always exemplify the motto of ALAMA: “communication, education, consistency and quality of clinical practice of doctors providing Occupational Health Services” . Unfortunately for Dr Bulpitt, his words may well come back to haunt him.

As Will Rogers put it, “After eating an entire bull, a mountain lion felt so good he started roaring. He kept it up until a hunter came along and shot him. The moral: When you’re full of bull, keep your mouth shut.”

In an intemperate email rant to the Police Workforce & Capability Unit at the Home Office, Dr Bulpitt displays his frustration and impuissance.

It seems he might well be vexed over his inheritance of the historical legacy of decisions that he thinks ‘he’ would not have made, conveniently ignoring that such attempts at historical revisionism is forbidden by the Regulations. An interesting stance, given Dr Bulpitt is not privy to the Zeitgeist and full facts which swayed the decisions of his predecessors.

His ego asks for more. The finality demanded by the Regulations is an affront to his wishful view of how things should be if he were in charge, and he can’t control his craving to fuel his desire to remove the injury awards of those retired from the force he represents, sacrificing his medical professionalism and independence in the process.

Frustrated by his impotence to alter history, he contacted the Home Office to tell them how hard-done-by he his.

[…] I suspect that you might be aware that we have a group of pensioners that are organising a campaign to resist having their pension reviewed.

So blinded by his own peculiar view of the Regulations, Dr Bulpitt actually thinks that a group of disabled former officers, who in their working lives were intent on seeing that the law was upheld, are now campaigning against reviews, per se. Dr Bulpitt not only has hold of the wrong end of the stick, he has the wrong stick altogether. We guess he is referring to IODPA. In which case, how has he missed the plainly, and oft-repeated, statement of our mission, which is to challenge all aspects of unlawful reviews and maladministration?

IODPA has never sought to frustrate legitimate, lawful review process, but, in Avon and Somerset, and elsewhere, finding a legitimate review is about as difficult as finding an honest, decent and professionally competent FMA or SMP (difficult but not impossible – they do exist but the good ones tend to avoid the debacles and imbroglios that always shadow bulk review programs).

Dr Bulpitt’s email continues in a manner that, perhaps unintentionally for him, actually answers his question of why pensioners do not want their injury award reviewed by Dr Bulpitt or anyone connected to Dr Bulpitt.

The issue is largely one of the Constabularies making in my view because they are on preposterous awards, frequently 100% and have hardly ever been reviewed if at all. One appears to never had anything wrong with them and another had a certificate stating they did not have a permanent condition but got an injury award anyway.

Who are the ‘they’ that Dr Bulpitt refers to? The group ‘resisting having their pensions reviewed’ are all medically retired former police officers unfortunate enough to be retired from Avon & Somerset and other forces across the country where the review process is clearly being managed contrary to the Regulations.

Among everything else wrong in his email, Dr Bulpitt has the nerve to call the deliberate unlawful actioning of recommendatory Home Office guidance that reduction to 0% of the degree of disablement all former police officers once reaching sixty-five years of age as, ‘acting in good faith’.

Oh! That’s OK then – it’s fine to carry out a public duty unlawfully as long as it is done in good faith. It’s perfectly fine to make an almighty cock-up, so long as it was done in good faith. It is acceptable to drive a coach and horses through the Regulations, bringing huge distress to disabled former officers and their families, so long as it is done in good faith.

This may be arguable in a pursuit of proving misfeasance in public office, an intentional tort rooted in bad faith, but the tone of Bulpitt’s email shows his intent is as far a polar opposite to a ‘good faith’ mistake as is possible. Dr Bulpitt’s unsolicited use of the term ‘good faith’ clearly shows he has the spectre of misfeasance in his mind; just saying it is all in good faith doesn’t make it so.

As sure as eggs are eggs, Dr Bulpitt wants to globally revise the award downwards of all those retired by Avon & Somerset. If this isn’t bad-faith then what is?

Do you think Dr Bulpitt paused for a minute and thought, as he typed his email, that it’s no wonder that people don’t want to be unlawfully reduced just because he, as the current force medical officer with only the scantiest knowledge of the circumstances, thinks there is nothing wrong with them and they shouldn’t have the award in the first place?

Or perhaps he feels he has sufficient knowledge. If so, he has been trawling through sensitive personal medical data which he has no right to access. The implication from his remarks amounts to a self-admission that Dr Bulpitt freely rummages around in the personal sensitive medical records of former police officers without consent. If that is the case, it is shocking to say the least. How else can he justify his generalisation that those retired in the past, ‘have nothing wrong with them’?

The bunker mentality seeps through the words of Dr Bulpitt.

Apart from a coordinated campaign of FOI requests, subject access requests and so on, they have been put in complaints to the GMC about our SMP. Not too dissimilar from the picture in many forces that I have worked with but this one is far more venomous and a lot of work has gone into worrying pensioners and frankly trying to smear the OH unit and the SMP by the Pipin group

Hold on there, Doctor. It sounds like you are saying that all complaints, all requests for information, and every attempt by injury on duty pensioners to shine some light into the murky recesses of the shambles that is the administration of their injury pensions, is done to annoy and smear? What utter hogwash! What a frankly outrageous attitude to display by someone who is supposedly trained and skilled in the art of diagnosis. What an example of bias overcoming logic.

Doc, your diagnosis is wrong. YOU, and the other people who have not got a clue about how to properly administer police injury pensions, are the disease. IODPA is the cure. We challenge because we have been attacked. We seek information because none is freely given out. We point out deficiencies because nobody has the wit or the will to remedy them unless backed into a corner.

It is people such as Dr Bulpitt and Dr Johnson, the SMP used by A&S, who are smearing the Occupational health unit. They are dragging the unit into disrepute by abusing the Regulations. Uncovering the truth of what is really going on cannot be twisted into smear campaign. Smear tactics differ from normal discourse or debate in that they do not bear upon the issues or arguments in question. On this website you will only find disclosure and arguments that always bear upon the focus of unlawful administration of injury awards.

The unguarded admission by Dr Bulpitt is another example in a long line of examples of how far some public officials will go in attempting to undermine legislation.

Frustrated that Avon & Somerset legal services advise that it is unlawful to reduce an injury pension banding where an IOD pensioner disagrees with the SMP’s report and withdraws consent for it to be disclosed to the police pension authority, Dr Bulpitt states that he is at a ‘crunch point’.

Prevented by the GMC to force the release of a report that a SMP makes on an individual and unable to revise an award without it, his considered reaction is to ask the Home Office to change the law for him to provide immunity for SMPs from oversight by the GMC.

I know that others have written about this but surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their interests first?
…
Their insistence that we have to offer to share our report with the pensioner/applicant first is very difficult and potentially will prevent the review of pensions if, as my legal department tells me, we cannot alter the pension without that report and the pension authority cannot insist on it being released. They (the GMC) are adamant that we must put the pensioner first and if that means not adjusting a pension to the correct level then so be it. My concern is also that this is getting so unpleasant for doctors we are getting very limited in our selection of SMPs. FMAs are now very rarely employed and tend to turnover very quickly.

“We cannot alter the pension without that report”. Rather a conspicuously revealing and graphic sentence. He uses the accusation of a conspiracy to save money in a dismissive throwaway comment concerning a pensioner who was unlawfully reduced in – cough! – ‘good faith’ three years ago.

[redacted] is being investigated over a decision [redacted] took 3 years ago when [redacted] had been instructed to review a pensioner who had reached the age of 65 and drop their award (we now know that is incorrect of course but [redacted] acted in good faith at the time). [redacted] contacted the GMC but has been frustrated by the apparent lack of any understanding of the role. The pensioner had his pension restored at appeal but has now gone on a crusade, accusing [redacted ] of “colluding with the pension authority to save money”.

But “we” (not the independent and supposedly impartial SMP) want to alter the “preposterous” award, he says!

You can make your own mind-up whether Dr Bulpitt is seemingly in cahoots with others. The use of “we” in the above context goes nowhere in quashing any suspicion that the SMP is not totally his own man and the goal is to alter the pension in all circumstances. You don’t need to be a clairvoyant to predict the direction of the desired alteration.

The Faculty of Occupation Medicine, of which Dr Bulpitt holds the FFOM post-nominal, has a ‘Competency 4‘ that governs the relationship between the occupational health doctor and the patient.

The absence of the usual therapeutic relationship between patient and doctor does not exempt the doctor from his/her professional duties imposed on all members of the profession..

Dr Bulpitt appears adamant that this should not apply to some members of the public and it seems he thinks that the required doctor-patient relationship is absurd.

surely it is crazy to have the GMC overseeing the work to the SMP and insisting that the pensioner is our patient and that we must put their interests first
…
The role is described as quasi-judicial but I see little that is “quasi” about it. Surely it is not a doctor-patient relationship as we would understand
…
They (the GMC) are adamant that we must put the pensioner first and if that means not adjusting a pension to the correct level then so be it.

But it is not just the demands of the GMC, is it? To be a FMA or a SMP the National Attendance Management Forum demands a prerequisite of membership of the Faculty of Occupational Medicine. It is Dr Bulpitt’s own specialty designated body that demands the same compliance.

Given the Regulations are paramount and the Home Office refuses to release any central guidance in relation to injury awards, Dr Bulpitt continues forlornly, with a sigh of desperation and acknowledgement that some forces refuse to review contrary to the Regulations.

Can anything be done about this because we are in danger of the whole thing grinding to a halt?
So far as I know the Met are still not carrying out any reviews and have stated publicly that they will not be doing so.

The Home Office sensibly skirts over the rant and calmly explains to Dr Bulpitt that the Regulations require a medical authority and the GMC therefore have primacy over the behaviour of any medical professional.

Hi David,
Thank you for your email. Whilst I understand your concerns and appreciate your comments it remains that as SMPs do fall within the remit of the GMC. You said that the GMC have been contacted to explain this issue but that the GMC do not seem to be understanding the role. Have any further attempts been made with the GMC to explain the role in further detail?
The Regulations state that the SMPs are being asked for a medical opinion and the fact that they sit under the remit of the GMC is something that cannot just be overridden through amendments to our legislation. It would be interesting to know more about the discussions which have been had with the GMC regarding this issue.
Kind Regards

Dr Bulpitt, and others with similar mindset, appear to have a clear appreciation or understanding of the laws that regulate their conduct in this area, but still they do their utmost to get around them. When challenged, as we have so often witnessed in instances of other outrageous maladministration by public officials, they consistently fail to acknowledge that they have done anything wrong.

We are lucky here because our GMC liaison officer is very understanding and I took the precaution of warning him that he would start seeing complaints. Thus far the GMC has not felt any of the complaints against our SMP warranted investigation. This has not necessarily been the case elsewhere

It is worrisome that Dr Bulpitt has apparently arranged an ‘understanding’ with the local GMC liaison officer. Does this mean any complaint of wrongdoing is dismissed by the GMC responsible officer, regardless of the strengths and merits of the complaint?

Dr David Bulpitt’s position as Force Medical Officer has, we believe, become untenable with these shockingly offensive comments. He has demonised the entire population of disabled former officers who have injury awards, and his comments show extremely poor judgment and a surprising lack of sensitivity.

It is important that a doctor in a position of trust who is dealing with injured police officers and medically retired former officers enjoys public confidence and this is at risk with his continuing in the important role of Force Medical Officer.

We are so appalled at this insight into the recesses of the mind of Dr Bulpitt, and are so concerned about the bias and discriminatory attitudes which are revealed that we call for Dr Bulpitt to either resign quietly, or if he will not, for him to be dismissed.

If Avon and Somerset wishes to see a return to normalcy in its relationship with injury on duty pensioners and the emergence of good governance of police injury pensions, then this stumbling block named Bulpitt must go.

This is the full email chain. Keep in mind if this is what Bulpitt sees as a measured email to the Home Office, what is he saying and doing in the privacy of his own office?

http://iodpa.org/wp-content/uploads/2016/08/38800-Annex.pdf

[hover the cursor over the page to read all 4 pages or to download pdf]

Immeasureable Loss

iodpa 2016-06-08 Degree of Disablement, Scoffield, selected medical practitioner, smp

“Where it is necessary to determine the degree of a person’s disablement it shall be determined by reference to the degree to which his earning capacity has been affected as a result of an injury received without his own default in the execution of his duty as a police officer” – Regulation 7(5) The Police (Injury Benefit) Regulations 2006

We often trust experts blindly, because we’re programmed to do so practically from birth. Call it the “Wizard of Oz” effect: first with our parents, then our teachers, and then on to the authoritative voices in our textbooks and on TV news, we’re brought up to believe there are always people whose knowledge and judgement should be taken over our own.

Even when you are swimming in treacle during the ill-health retirement process and the police service’s inability to deal with your situation means your view of them has crumbled further into a disillusioned, sometimes lazy, ineffective, unrespected and undisciplined organisation, you still remember when you were at training school and you were taught that with authority came responsibility and accountability.

Doctors have a special power over our brains’ decision-making capabilities. We get discombobulated and our rationality put on hold when we’re presented with what an expert with a stethoscope thinks they should be doing, regardless of how bad the thing is.

When a Selected Medical Practitioner (SMP) demands of a Human Resources minion to supply them with job profiles what is actually happening is a measurable assessment of loss. The bad news for the occupational health doctor and Human Resources is that measurable future (or potential) earnings has no place in the Regulations.

One of the most complex concepts within the Regulations is the notion of ‘degree of
disablement’. Earnings do not dictate earning capacity.

The doctors employed as SMPs find this concept exceptionally hard to grasp.

David Scoffield QC succinctly lays down this confusion as the main reason why he was commissioned to perform the PSNI “Review of the present arrangements for the payment of ill health pensions and injury on duty awards to former police officers”

Put shortly, however, the degree of disablement relates to the consequences of the duty
injury for the officer’s capacity to earn money. It is the calculation of this element which has given rise to many of the difficulties which have led to the need for the present review.

The law is quite exact in determining Earning Capacity. Courts use something called heads of loss or heads of claim to pinpoint how much damage has been done which influences the amount of compensation a claimant will receive. In civil claims the head of damage of ‘earning capacity’ cannot be awarded if ‘loss of future earnings’ is awarded as, if a claimant is not working by the time of trial or is already in a lower paid employment, he will be compensated under the loss of earnings head of damage.

Where the evidence that the former police officer is not able to earn as much as he or she would have done BUT for the injury then the compensation is loss of earning capacity. The injury award compensates, in the here and now, for the injury and the affect that this has had on earning capacity.

The test for earning capacity is that there must not be a measurable loss. If there is a measurable loss then this is loss of future earnings. Billett v (MOD) [2015] EWCA Civ 773 (23 July 2015) was a case about loss of future earning capacity, not future loss of earnings.

Paragraph 53:

In Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40 Lord Denning MR explained the difference between loss of earnings and loss of earning capacity in this way:

“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.

The courts can see the distinction but SMPs and HR directors are blind to it. The Regulations provide a minimum income guarantee in the form of the award that is in effect ‘damages’ for the injury causing ‘diminution in earning capacity’.

Interestingly the appeal court in Billet v MoD found that when considering what constitutes a substantial adverse effect on a person’s ability to carry out normal day to day activities the focus should be on what the person cannot do, as opposed to what he can do.

Paragraph 89 Billet V MoD

Those statements are all true. But, as Mr Poole points out, those submissions fall into the trap which Langstaff J identified in Aderemi. They are directed to what the claimant can do. The focus of the inquiry should be upon what he cannot do as a result of the injury to his feet.

This is the total opposite to the standard approach of a SMP who, more often than not, brazenly proclaims that if you are able to dress yourself and make a cup of tea, in their view, you should be able to work full time as an Intelligence Analyst at Force Headquarters. (One of the mysteries of the universe is why are there so many vacancies of Intelligence Analysts given HR minions always provide them to SMPs as one of the three job profiles that they think a disabled former police officer can do! )

Loss of future earnings is quantifiable. It is measurable with some precision. David Scoffield QC clarifies that the earning capacity in relation to the Regulations has no provision for exactness:

there is nothing in the Regulations which specifically requires an SMP to give a percentage figure in any individual case. Their obligation under regulation 29(2) is to give a decision on “the degree of the person’s disablement”, which could just as easily mean a decision as to whether the disablement is slight, minor, major or very severe. Regulation 29 could have been drafted to indicate that the medical authority had to specify a precise percentage disablement; but it is not.

If the Regulations meant for an injury award to be compensation for loss of future earnings then the injury award would be calculated using the Ogden tables, paid at the start and as a one-off lump sum. It doesn’t and so it isn’t.

The major difference is that earning capacity is not usually affected by voluntary, non-binding, choices made by the worker. The ability remains whether the individual chooses to exercise that ability or not. In other words, any earning capacity remains whether or not the person chooses to exercise it or not.

So, to consider the earning capacity of an doctor who earned tens of thousands of pounds in a fruitful year being a gun-for-hire SMP for a particular police service with a mass review program and has built up such a massive nest-egg that they’ve now chosen to stay home with pre-school children (or even sail a yacht around the Caribbean given the humongous amounts paid out) rather than enter or remain in the labour market, we need not investigate the process by which such a decision is made, nor attempt to estimate the year-by-year probability of returning to the labour market. A focus upon future or expected earnings would lead directly to such questions. It is irrelevant to earning capacity.

Winning the lottery or becoming the beneficiary to the estate of a recently deceased long lost Aunt are both factors that can voluntarily affect the decisions and choices of the worker. Both are irrelevant to earning capacity.

How can we measure the immeasurable, we hear SMPs ask?

The good news is SMPs don’t have to.

Let David Scoffield have the last words:

Indeed, the fact that the degree of a person’s disablement is a “medical
question” under regulation 29 of the 2006 Regulations may also suggest that (what I have referred to as) the mathematical approach is not the correct way of determining degree of disablement under the Regulations; but that, rather, it is a broad judgment to be made by a clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data. This approach seems to me to draw support from the Crocker judgment, particularly at paragraph [56] where Ouseley J noted that the approach he was suggesting (in relation to an issue of apportionment in that case):

“… reflects the statutory question which has to be answered. It is a straightforward
approach which fits with the process for making the assessment, which is comparatively informal, and one in which doctors, and not lawyers or philosophers, make the decisions.”
[underlined emphasis added]

Why Things Hurt

iodpa 2016-04-112016-05-22 morale, police injury award, selected medical practitioner, smp

“Of pain you could wish only one thing: that it should stop. Nothing in the world was so bad as physical pain. In the face of pain there are no heroes.”
― George Orwell, 1984

This post is about the complexity of pain and the observation that the doctors used by police pension authorities are not able to comprehend how the world of a previously fit and high-achieving police officer collapses once they are injured on duty. It shows that the consultants, GPs and clinicians of the former officer -who know of and have treated the individual – heavily out-guns the opinion of any given selected medical practitioner.

You haven’t had any contact with the police for years and now they want to reduce their financial commitment by reviewing your injury award . There has been no change, in fact you’re worse now than ever. You just want to be left alone to live your life. Or you are a serving officer struggling on long term sick leave and currently the victim of an UPP.

How can an occupation health doctor make a valid judgement on your health in a 60 minute ‘interrogation’ – don’t fool yourself into thinking it is anything but an inquisition: imagine Tomás de Torquemada assisted by the full incompetence of a HR department.

An injury on duty can involve both body and mind and quite likely both. A physical injury has psychological consequences. PTSD (Post Traumatic Stress Disorder), is caused when a person experiences an ordeal that causes physical harm or mental harm. The individual was either harmed, someone close to them was harmed, or they experienced events that was imprinted in their brains. In PTSD, there are two main parts of the brain that are affected and also where all the chemical imbalance in the disorder is located at. The two main parts are the Hippocampus and the amygdala.

http://www.chemistryislife.com/the-chemistry-of-post-traumatic-stress-disorder

The hippocampus is a part of the brain that is located inside one of the folds of the brain so it is not identifiable by the human eye but the way we can find it is that it is located at the temporal lobe which lies right under the temple of the human body. An important function that the hippocampus does is that it makes information into memory and stores it in the brain. So, for example, someone experiences a traumatic event in their life and they can’t forget about it even though they try really hard to. The hippocampus has taken this traumatic event that this person has and stored it in their brain as a memory which explains how PTSD works. This part of the brain can also send connections to the amygdala which then could explain the beginning of strong emotions triggered by specific memories or events. But it is not just for making memories. It also plays a huge roll in the making of creating new brain cells for the brain. The hippocampus may look intimidating but it can be affected very easily. Alzheimer’s Disease, Epilepsy, and little blood flow are just some of the injuries the hippocampus could have.

The other big part of PTSD is the amygdala. Like the hippocampus, it is also part of the limbic system and is also inside the brain just above the hippocampus and the lateral ventricle. This is the epicenter of emotional behavior, emotions, and also motivation. A lot of signals from the other brain parts go to the amygdala because it then makes those signals into emotion. The amygdala can produce components of emotion such as heart rate changes, blood pressure changes, and also respiration changes in the body. While the hippocampus makes memory, the amygdala takes those memories and combine them with emotion which could explain why certain memories produce certain emotions for us such as happiness and fear. This is where the “fight-or-flight” mechanism comes into play. Since so many alarm circuits of the human body are located in the amygdala, there is a lot of triggers that can activate the “fight-or-flight” response.

Sufferers of PTSD are prone to chronic pain and sufferers of the chronic pain of debilitating physical injuries are liable to suffer from PTSD-like chemical imbalances.

The author of this post has a physical injury that has also manifested itself psychologically. Chronic pain does that. A life not lived; a career cut short. Over time, to treat the condition, nociceptive prescription pain medication is supplemented with neuropathic medication. But we are still dragged in front of a SMP and demanded to explain ourselves. Questioned in a hour window on why we are no longer the high achievers we once were.

This video gives an interesting insight into pain but reveals a terrible dilemma. We are all individuals,and as IODs, all our circumstances are different. Herein lies one of the complexities that makes understanding and treating chronic pain so difficult.

Professor Lorimer has the advantage of being on the top of his game. He has a successful career in clinical Neurosciences. His lecture is factually correct. Experience doesn’t always match the explanation.

For the individual chronic pain is a reinforcing web of pain signals, personal history, seeking security in what you know (pain) and limited ability to envisage a future. It is life consuming and this is why the Regulations are there to compensate for work-related injuries.

SMPs are not equipped to understand how the brain creates and perpetuates pain. They will always fail to make a valid judgement on your health in an allotted 60 minutes. For this reason if you are ever unfortunate to go in front of a SMP, for whatever reason, go prepared. Make them understand the complexity of your illness.

Bogeymen

iodpa 2016-03-082016-05-22 NAMF, National Attendance Management Forum, police injury award, selected medical practitioner, smp

“If there is anything more annoying in the world than having people talk about you, it is certainly having no one talk about you.”
― Oscar Wilde

A bogeyman (also spelled bogieman, boogeyman, or boogie man) is a monstrous imaginary figure. But it seems that some HR Departments believe he is real and even now stalks the land in human form.

The bogeyman of legend and fairy tale has no specific appearance. Children are told stories of shadowy shapes that flit into the corner of one’s eye and then disappear. The bogeyman might live under the bed, or in the wardrobe, or might be lurking in the dark overgrown bushes at the bottom of the garden. No matter where he hides, he is out to get you, so beware. Hurry home, children, dive into bed and pull up the covers so he can’t seize you by the toes and drag you off to his lair.

HR managers give the bogeyman more corporeal form and substance. They seem to think that the bogeyman appears in the borrowed shape of disabled former police officers. A guise quite at odds with the spirit of the legends and, as a modern take on a traditional myth, is really very inventive and clearly the product of a disturbed mind.

The etymology of the word “bogeyman” is uncertain, as is when it first appeared in the English language. Some sources date it to the 16th century, while others to around 1836, as a term for the Devil.

The Devil is now, according to the rumour mill being circulated by some police forces, stalking and abusing, not children, but stoical adult medical practitioners who work for police forces. By these accounts one force in particular is telling people, ‘that a doctor has been subject to stalking and that threats have been made against FMAs [Force Medical Advisors] by a campaign group’.

We at IODPA are extremely shocked and concerned at this revelation. Apparently there is a militant and anarchist campaign group out there that is actively seeking out and physically targeting force medical advisors (selected medical practitioners were not mentioned). The force spreading this malicious and unsubstantiated gossip mentions FMAs, plural – as in more than one single incidence. The source of this fairy tale we suspect to emanate from the National Attendance Management Forum, which is where HR managers and others gather together, safety in numbers, to exchange gossip and misinformation.

The unsubstantiated Chinese whispers we have heard are that the stalking typically involves a sped-up chase scene involving a crew of scantily-clad injured persons hobbling with their canes and struggling with their mental illness, with a doctor being the one chased, due to silly predicaments that he himself caused. A take-off on the stereotypical Keystone Kops chase scenes.

In all seriousness, we are in IODPA a cooperative made up solely of responsible, adult, medically retired police officers, who were all injured in the execution of their duty. It is generally known that it takes a high standard of character to be recruited into the police and that police work can be dangerous. Our members were all injured through no fault of their own and are now disabled members of the public with a strong core of moral code. We have been subjected to unlawful behaviour by police pension authorities but we will never reciprocate like with like. Injustice cannot be overcome with injustice.

The injuries of our members range from physical to psychological. Quite often the physical injuries have psychological repercussions. The psychological injuries are often extremely severe.

Perhaps IODPA is being too precious, but we hope that the Devil that these forces believe is stalking doctors is not meant to be a reference to us.

We therefore challenge any FMA, SMP or HR person to produce concrete proof of these allegations. If any person has been stalked, tell us who, when and where. If there was evidence of harassment, abuse and threats then any competent and independent person would expect there to be a criminal investigation and a prosecution. It speaks volumes that there has been no such thing. All police forces should be above the childish playground behaviour of spreading rumours.

In the meantime, we will take these bogeyman tales as no more than a foul ploy to divert attention away from the very real, and evidenced accounts of harassment and, yes, stalking, of disabled former police officers by police forces.

The fact is, members of our association have been stalked. There are instances where people with IOD awards have been put unlawfully under surveillance. We can never forget the case of the West Midlands consultant psychiatrist, Dr Nicholas Cooling, who personally hired a team of private detectives to stake out and video an injured police officer. The GMC suspended him over that little lapse of ethics.

Another tale of harassment concerns a former South Wales officer whose police career ended after he was severely traumatised following the 2002 clash between Cardiff City and Leeds United fans, and who won a victory in 2009 against South Wales Police, which had kept him under surveillance for months. The Police Medical Appeal Board (PMAB) was highly critical of South Wales Police, which had claimed he was not entitled to an injury award. The Appeal Board adjudication said video evidence of him was irrelevant. Material disclosed subsequently showed that 11 officers from South Wales Police and the neighbouring Dyfed-Powys force were used to spy on him for months in an operation estimated to have cost more than £100,000.

There have been too may instances to list here where a person with an IOD award has been abused and harassed over a course of years not just by a SMP but also by the bullying machinations of a zealous and uncaring HR department.

We will mention one incident, which concerns a very ill retired former officer who was summoned to be reviewed. Two friends drove him to the appointment at the force’s occupational health offices, and waited for him in the car-park. When the review was under way a uniformed police officer with their epaulettes removed came out of the building and blatantly took photographs of the waiting vehicle and the occupants. Here was no RIPA authority, nothing that allowed this intrusion into civil liberty. Not prepared to be taken at a disadvantage, the occupants themselves took a picture or two of the uniformed officer taking pictures. Then a doctor came out of the building, walked up to the car and spoke to those within saying, ‘Do you want a close up?’

We know of another incident where a person with complex psychological issues was forced to undergo a review just because he was a band four. Despite his condition down-turning and his clinicians warning the force and evidencing his severe deterioration during the months of delay cause by the police pension authority, the force in question kept up their sanctimonious fishing trip. This sorry episode was reported in this blog post.

Driven to the realms beyond madness he told his crisis clinician during a mental health crisis team counselling session that he wanted to kill those who he saw were harming him. This clinician took the threats seriously and was duty bound to escalate his concerns to the relevant authorities. There are always two sides to every story.

The shameful outcome of this shameful event is the force ‘deferred‘ the review (a made up thing that does not exist in the Regulations), saying the former officer is too ill and that he should be reviewed again in 3 months, ‘when he is better’.

A review isn’t a benign thing. It damages people. And if they are damaged already they become more and more unstable. IODPA does not condone unlawful behaviour. That said, we can understand why someone with complex PTSD isn’t always in control of their own responses.

When a force proclaims that a campaign group is physically threatening Doctors, and it uses this as an excuse to withhold information, it tarnishes everyone. This circus show encourages guilt by association, and seeks to demonise all disabled former officers. We say, you hypocrites, first take the plank out of your own eye, and then you will see clearly there is no speck in our brother’s eye.

IODPA only asks for fairness, respect and the fundamental and lawful following of the Regulations.

Those injured former officers who contribute to this association are all law abiding citizens.

If only those that administer the police injury award scheme were as conscientious as we are.

For the Love of Money

iodpa 2015-11-252015-11-25 HR, selected medical practitioner, smp

For the love of money
People will steal from their mother
For the love of money
People will rob their own brother
For the love of money
People can’t even walk the street
Because they never know who in the world they’re gonna beat
For that lean, mean, mean green
Almighty dollar, money
– The O’Jays

Every now and again a search on Google turns up dynamite.

£45,701.50 … read this figure again out loud.

It transpires that Dr Philip Johnson has been paid £45,701.50 by Avon & Somerset constabulary since the 1st of August 2014 for his role to conduct reviews of Injury on Duty awards. And this is just for an ‘evaluation’ to see how unlawful their unlawful review program really is. Heaven knows how much he’ll cost them when he does this for ‘real’.

We know that the minions of the A&S HR department have 3 lists:

1. Those they have ignored for years and want to reduce but have no legally valid idea how to squeeze their pips;

2. The 16 band fours it trampled on in 2014 (most of which still have had no result);

3. Those retired recently (more likely by Johnson) who are due (according to them) a review.

Johnson has barely ‘reviewed’ a double figure number of IODs and, for this part-time work on top of his salaried job as force medical officer of Dorset, he has been paid a king’s ransom of almost £46,000 in just over 12 months.

That works out at around four and half thousand pounds per person reviewed. If the farce wants to review all 490 IODs the constabulary will end up paying Johnson a handsome £2,450,000.

Don’t forget that this £2.5 million is not a one off. Bulpitt (A&S force medical officer) and Johnson are under the delusion that every IOD shall be reviewed every 2 years if they can’t be dropped a band and every 5 years if they are dropped a band.

Do you like their logic here? Review them more often if they can’t prove substantial change – more bites of the cherry you see; but review them less often if the ‘good’ doctors get their devious way and they are reduced.

It’s like playing snakes and ladders with the board full of grease-covered snakes, with only one ladder … and this ladder is decrepit, riddled with wood-worm and with a suspiciously sawed through rail.

Back to Johnson and his £46K. As mentioned this is a recurring payment as the constabulary is deluded into thinking they have a positive power to review ‘as and when’ their coffers are running low. As soon as they are brassic, up steps Johnson, ready to invoice the constabulary more money per IOD than he can ever attempt to unlawfully reduce them by.

Of course, this money per IOD does not include the expense of a Police Medical Appeals Board, the Judicial Review and the Regulation 32 reconsiderations that follows.

Johnson has already cocked up massively. He has recklessly and unlawfully given some IODs new certificates with changes to their percentage even though he has written on the same certificate and accompanying report that there is no change (let alone no substantial change) to the IOD’s medical condition or capacity to earn.

IODPA wonders whether Johnson will now invoice A&S for all the time he takes to put together his defence when he is dragged in front of appeal boards.

Buzzwords Bingo

iodpa 2015-09-032015-09-05 HR, smp

Bullshit Bingo

A game that can be played in large meetings. The players write down management-nonsense word like “Out-of-the-box-thinking”, “Synergy”, “Content streamlining” etc. in a 5 by 5 square bingo card.

If a word or phrase is used during the meeting you check the box. When you get a five box line (horizontally, vertically or diagonally) you shout “BULLSHIT!” and win.

-Company Bigshot Fancypants: “And that is why this merger is going to benefit shareholder value by creating value driven content.”

-Eager But Dim Employee: “BULLSHIT BINGO!”

-Company Bigshot Fancypants: “You’re fired!”

It wasn’t long ago that Avon & Somerset HR employees stated in a meeting that their ‘procedures’ weren’t aligned with the Regulations.

I think they meant to say that they knew they were breaking the law.

On learning of that remark, IODPA dared to think for a moment that the ignorant had become a bit more enlightened. We were mildly excited. We were prepared to ignore the fact that the remark was good enough for a Bullshit Bingo award, and concentrated on its meaning rather than its delivery. We knew there was a still a lot of work for HR and their string-pullers to do – we’re worldly-wise and know how HR types operate – but we thought we saw the first faint flicker of light on the horizon.

Oh, but how we underestimated the force’s capacity to continue to muck things up.

Our internal source (God/Allah bless him/her) has informed us that the force is about to send out final reports for some of those under review. Remember these are the ones Dr Johnson has been ‘contemplating’ since May 2014.

When those reports finally end up on the doormat of the IODs the mistakes will bound to be numerous. In the spirit of Bullshit Bingo here is a list of errors only the truly ignorant can make – all of which are usually and inevitably wrapped up in phrases carefully intended to obscure rather than elucidate.

As Johnson’s reports arrive, let’s count how many times these errors are contained therein:

Fresh assessment.

Everyone’s most unfavoured cock up. This error occurs when the SMP oversteps the mark and starts from scratch to assess and quantify degree of disablement. There are many ways to make this fundamental error, but the most frequent ploy is where HR gives the SMP a list of jobs and wages and the SMP compares the speculative, future, income that might result if the pensioner, say, moved to Aberdeen and became a lecturer in quantum physics, with either what he or she earned as a police officer, or what the average wages were seven years ago for the entire population of the UK, as set out in the NAE index.

OI! YOU! SMP! DON’T YOU UNDERSTAND YOUR JOB

IS ONLY TO CONSIDER SUBSTANTIAL CHANGE!

Not being able to read the notes of a doctor who retired someone 15 years ago is not a free pass to start again on someone. There is no excuse for this error, and, trust us, this will go to the High Court at some point.

Oh! hang on a minute. This was already decided – back in 2003, in the case of Crocker:

‘The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers.’

The Judge’s binding opinion, which has never been challenged or amended, relates to the initial grant of an injury pension. At review, therefore, the SMP can not do what is prohibited when the pension was first granted. That would not only amount to a fresh assessment, from scratch, but a fresh assessment using an unlawful approach. Double whammy.

And as a footnote to this error, SMP, (and HR please take note) The National Average Earnings (NAE) Index stopped being a National Statistic in January 2010. The Office of National Statistics continued to publish this index until September 2010. Indices were published two months in arrears so the last index that was a National Statistic was that for October 2009 and the final index ever published was for July 2010.

The Average Weekly Earnings (AWE) measure was accredited as a National Statistic in January 2010 and, consequently, it replaced the National Average Earnings Index as the headline measure of earnings growth in the UK.

So, please do tell – where, exactly have you been getting these figures which you claim are from the NAE Index?

How much case law is there which states clearly that apportionment cannot be reapplied?. Has any SMP actually bothered to read the most helpful body of case law which has accumulated? Evidently not.

The straw that broke the camel’s back.

It doesn’t matter what causes the degeneration of a duty injury. If the index injury has progressively got worse a SMP can’t mitigate the reason why it’s got worse by ascribing the whole or part of the degeneration to a specific non-duty cause in order to try to reduce the banding.

A spinal disc compression sustained in dealing with a riot whilst on duty 20 years ago, which has become more severely damaged because a young child was lifted 5 years ago? This doesn’t mean you can reduce the band !!!

Degeneration of the index injury is just that – a worsening of the index injury. Where does this illogical SMP train of thought stop? Is age not allowed to be a reason for the degeneration? Without the original injury, age & time would not have caused the disablement in the first place.

Disagreement with the diagnosis.

The last previous decision is a given. It is a final decision. Simples. What makes the SMP think he can say he disagrees with it? Apart from ignorance, a complete lack of professionalism and one eye on his pay-cheque, that is.

The SMP reporting there is no change to degree of disablement and then changing the % degree of disablement.

Yes, they do this. Unbelievably. They consider substantial change, find there is none and then provide a new figure of degree of disablement. So you are a band 4 on 76-100% and there is no change? So now Dr Johnson says you are 85% or 90%, or any other figure in the 76 to 100 percent range that takes his fancy. Plucked out of thin air with no stated reasoning to support it. Just because the last SMP gave a range instead of an exact figure does not mean you can now give an exact figure. No change means just that – no change.

In fact, it seems obvious that the SMP has not realised the Regulations do NOT intend, or allow degree of disablement to be stated as a precise percentage. Perhaps HR and the SMP have also not bothered to read what eminent QC Scoffield wrote in his report to the Northern Ireland Policing Board recently?

‘However, there is nothing in the Regulations which specifically requires an SMP to give a percentage figure in any individual case. Their obligation under regulation 29(2) is to give a decision on “the degree of the person’s disablement”, which could just as easily mean a decision as to whether the disablement is slight, minor, major or very severe. Regulation 29 could have been drafted to indicate that the medical authority had to specify a precise percentage disablement; but it is not.

As I have also noted in Chapter 1, the calculation of a precise percentage figure is also an exercise with which the SMPs are not terribly comfortable, involving, as it does, something of an accountancy exercise. Indeed, the fact that the degree of a person’s disablement is a “medical question” under regulation 29 of the 2006 Regulations may also suggest that (what I have referred to as) the mathematical approach is not the correct way of determining degree of disablement under the Regulations; but that, rather, it is a broad judgment to be made by a clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data.’

Suggesting treatment.

Remember, if you are capable of remembering , SMP, this is really for you what should be point number one. Please feel free to print it out in large type and pin it on your wall next to your insubstantial certificates of qualification. It is worth more than any of them:

YOUR JOB IS ONLY TO CONSIDER SUBSTANTIAL CHANGE!

You have no jurisdiction to say a pensioner should see a consultant cardiologist, psychologist, psychiatrist, clinical nuerophysiologist, urlogist, gynaecologist, or any other ologist to cure all their ills. Not only are you unlawfully altering a previous decision but you come across as a slimy snake oil salesman – ‘take this elixir and you’ll be cured’. As if.

Pensioners, please email IODPA (admin@iodpa.org) if you have evidence of more errors or Bullshit Bingo-worthy scribblings from SMPs and forces. If the SMP scores full marks on a single report then a chocolate teapot will be sent directly by special delivery. This teapot will be pre-filled with hot tea for the doctor’s convenience.

And, as a special one time offer only, IODPA will also provide a thick book compiled from case-law, Pension Ombudsman determinations and the full unread text of the Regulations so the SMP can insert it into the seat of his trousers so that the spanking at PMAB for being such a muppet will not sting quite so much.

In all seriousness though, HR types, please read the reports your SMP has signed off. If any of them contain a trace of the bullshit terms and errors we have briefly outlined above then you can prepare yourselves for a few years of complaint, challenge, appeals and litigation. And that is from around a dozen reviews only.

john yardley on PSNI/RUC Injury Awards and Appeals"Dr VIVIAN" strikes again with his home grown guidance and rules to follow exactly the same as when he and...
John on PSNI/RUC Injury Awards and AppealsContacted the federation in the early days of my retirement asking for advice and help. I got neither ! I...
Chopper on PSNI/RUC Injury Awards and AppealsSimply corrupt, in every sense of the word.

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