smp

Fishy Business or When a Review Should Stop

iodpa Regulation 37, selected medical practitioner, smp
Fishy Business or When a Review Should Stop

Fishing Expedition
· Examples· Word Origin

noun, Informal.

1. a legal proceeding mainly for the purpose of interrogating an adversary, or of examining his or her property and documents, in order to gain useful information.

2. any inquiry carried on without any clearly defined plan or purpose in the hope of discovering useful information.

So, imagine you are a well paid, supposedly professional and experienced HR manager, (let’s say you have the initials of CJ), who knows the difference between a haddock and a kipper, who has been given orders from your Business Manager (with perhaps the initials of CW), who in turn has had instruction from the Chief Finance Officer and the Police and Crime Commissioner.

You have been tasked to send review notifications out to disabled former officers who have had no contact from the force since retiring due to injury on duty for at least a minimum of 12 years ago and some, in fact most, who have been out of the job for 15 to 20 years. You’ve been told to start a programme of reviewing injury pensions, beginning with those which have the potential to cost the most over the long term. According to the bean counters, who have less knowledge than even you of the Regulations governing police injury pensions, these are the pensions which offer the tempting best prospect of providing the greatest savings – if only a way can be found to reduce the payments. It might take a bit of imagination, but let’s say, for instance, that you could get a patsy in the form of a ‘duly qualified medical practitioner’ who would be prepared, in return for a fat fee of around £500 a time, to find a way around the ethics of the medical profession and the Regulations and declare that this person and that person has had a miraculous substantial improvement in their disability. Bingo! Kerching! Three cherries in a row! Done up like a kipper!

You know nothing about these disabled former officers, as in many instances no personnel records exist, having been destroyed due to the force’s retention policy. And there’s no way you are allowed to view the occupational health records due to an irritating little impediment called the Data Protection Act. You can’t quite understand why anyone would object to letting you read all about their private personal medical history. Patient confidentiality – it’s a bugger, (shame that). You only know these people are on band four so are severely disabled in regards to earning capacity. The fact that some may have mental illness such that that the stress of a review could send them into a catastrophic life changing adverse reaction. Tough, you think, much as did the train driver to Belsen-Bergen, I’ve got a job to do, and by golly I’ll do it no matter who objects.

Do you pause for a moment and think that it might be appropriate to ask the force medical officer to review the medical notes the force does have, to see if a review is in fact appropriate? No, that would be the right thing to do, but you’ve got targets imposed on you by the higher powers. The train is in motion and you can’t stop it – more than your job is worth – someone else’s responsibility. You may have even been told that everyone retired with an injury on duty award are earning 6 figure salaries and driving Porche Cayennes and ought to be reviewed – how dare they be retired on an ‘award’ you might think.

So you send the letters out. But not before you spice the letters up and say you are reviewing the recipient due to the financial constraints to the force is under. Nothing like telling them your agenda from the start. As an added incentive to make the pensioners take your cunning plan seriously, you throw in a questionnaire which asks them how many cars they drive and how much they earn and threatens them with either prosecution if they make an error with their answers or reduction or suspension of their injury award if they mess you about. Never mind there is no lawful way of doing that – they won’t know as they are just dumb ex-cops. And, oh, while I am at it, can I have your signed permission to contact the DHS and HMRC so I can get to see how much money you have?

You realise that you might be onto a sticky wicket when the former officers start asking questions. Like, why are we being reviewed now? You have ignored me and my welfare for the last twenty years so why the sudden interest? Where is the individual case by case objectivity? You give out some baloney about a SMP will look at your medical records and decide whether a review is actually required (whilst crossing your fingers behind your back), fully aware that your pet stooge SMP fully intends to interrogate every single one of them without exception no matter what they say.

Despite having no circumstances to justify a review, no evidence to indicate whether there has been any improvement in any individual’s degree of disablement, no evidence of the substantial alteration needed by law before an injury pension can be revised, you know that your SMP will find the ‘evidence’ by hook or by crook. He’ll even try to con his way into getting agreement to let him look at medical records that date from birth to see if he can give his expert opinion that the back injury was given by the midwife’s forceps, not during the reported polacc.

But you come across a problem. You’ve made someone extremely ill as a direct response of your actions. Someone who has just been trying to survive for the past 15 years, barely hanging on to life by their fingernails and who can’t deal with the process. If you’d got the force medical officer to read the notes beforehand you would had known that this person’s health is in such a delicate state that he is unreviewable. Nevertheless, you think that what you haven’t bothered to look into you can’t be blamed for, so you demand he attends the occupational health unit and you get your SMP to grill him like a turbot for 90 minutes anyway.

The mental anguish of someone already suffering from PTSD means they are unable to deal with abnormal events such as a review. The experience is so traumatic that after the grilling by the SMP they have to go to the community mental health crisis team. The relapse is huge and his clinicians write to you to say this person is no better this year than he was last year, or the year before that, or the year before that. In fact, the duty injury ruined his life and his health and your review is making things worse. But you wouldn’t know, because you and your predecessors have not bothered to enquire after him or to ask him how he is coping. This person is borderline suicidal. Clinicians write to you some more, pleading for you to back off. But you and your tame SMP are adamant that just because an expert psychologist says someone has deteriorated there is no reason to believe it.

So you’ve waited a year since first notifying the intention to review and 6 months since dragging this person before the SMP. He must be stewed enough now you think. You have a brainwave. Send him a letter saying he is too ill to be reviewed now but you’ll postpone the review for 3 months until there is some improvement. Yes that’ll do it. If these people aren’t better then we will wait until they are better! Brilliant! No matter how long that takes I’ll keep the review open until I get the result I want. Why ever end a review with a decision when we can keep a review going for infinity? Don’t have to bother with a suitable interval or a PMAB appeal this way, I will surely get my bonus this year, you think, and maybe some recognition from the HR professional associations. Sheer HR genius – I ought to write up a presentation on this to give to the next meeting of the NAMF. Nothing fishy about that.

Note: This is a true story and the protagonist HR professional is employed by Avon & Somerset Constabulary.

NB: The sassy gallows humour tone of this post is a front to cope with the true fiendish actions of HR. It is no way intended to lessen, or be disrespectful of, the horrendous affect it is all having on the former officer mentioned.

Just don’t go there …oh! Too late, you did.

iodpa Regulation 33, Regulation 37, Review, selected medical practitioner, smp
Just don’t go there …oh! Too late, you did.

Just Don’t Go There

“A fishing rod is a stick with a hook on one end and a fool at the other.”

Samuel Johnson (1709-17840

When a police pension authority decides to hold a review of an injury pension it is not entitled to pack some sandwiches and a flask of tea and go on a fishing expedition. It can’t itself, or via the SMP, try to second-guess or overturn earlier decisions, whether made when an injury award was first granted or at an earlier review.

Regulation 37 is perfectly clear on this, yet foolish forces mysteriously seem unable to grasp the fact. The quote below is from the Court of Appeal judgement in the case of The Metropolitan Police Authority vs. Belinda Laws, where the court was considering the fishy argument of the Met that the SMP could revisit, and thus come to a different view of the factors which led to earlier decisions. The court rejected this argument, stating, in effect, that earlier decisions were very much final, as were the facts on which the decisions were made:

“18. So much is surely confirmed by the terms of Regulation 37(1), under which the police authority (via the SMP/Board) are to “consider whether the degree of the pensioner’s disablement has altered”. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

19 In my judgment, then, the learned judge below was right to construe the Regulations as she did. Burton J’s reasoning in paragraph 21 of Turner, which encapsulates the same approach, is also correct. The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners. Strictly that is so. But the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.

Why then do doctors Johnson and Bulpitt think they are permitted to look for information in someone’s medical history which might reveal something about apportionment or causation?  The former is the SMP put in post by Avon & Somerset Police Pension Authority and the latter the substantive Force Medical Officer from Avon & Somerset Police.

Take a look at the email below, in which Dr Bulpitt actually mentions in the same sentence, ‘apportionment’ and ‘attribution of cause’! He is arguing that the SMP should have full access to any individual’s medical records back to the year dot. He wants to see if something is ‘concealed’ which might let the SMP come to a different view which would allow him to call into question earlier final decisions.

The foolishness of these two medical worthies inquisitiveness is disturbing. They may know the difference between a wart and a boil (not that I would trust either one of them to remove or lance any such disfigurements on my body) but they seem to known diddly-squat about the seminal appeal court decision in the case of Laws.

The simple fact is that SMPs conducting a review of an injury pension are not allowed in any way to revisit apportionment or causation. (Apportionment is the tricksy ploy of saying a disablement is partly or wholly due to a non-duty injury or pre-existing condition, and causation is the SMP looking for something other than injury on duty having caused the disablement.)

bulpitt

Ha!

Has there been substantial alteration in degree of disablement since the latest of either the last review or original award? That is the only question the SMP is allowed to consider. Medical history prior to the injury award being given (or prior to the last review) could not speak to that, only to the question of the correctness of the original award or the award on review. That is the very thing which the case of Belinda Laws rules unacceptable. Further, Laws was followed and confirmed in the case of Simpson vs. Police Medical Appeal Board in the High Court in 2012. The principle is beyond doubt. The SMP can not access whatever medical records he wishes. That is the very thing that Avon and Somerset is getting wrong at the moment. (Unfortunately, it is not the only thing.)

In a later email, Dr Johnson says he will be ‘robust’ on those former officers who refuse to disclose full medical records.

johnson

Regulation 33, of the Police (Injury Benefit) Regulations 2006 states that if any person concerned wilfully or negligently fails to submit himself to such medical examination or to attend such interviews as the medical authority may consider necessary in order to enable him to make his decision, then the police pension authority has the discretion to make their determination on such evidence and medical advice as they in their discretion think necessary.

A pensioner is being neither wilful nor negligent should he or she point out the law to an erring SMP, nor does the regulation mention access to medical records. In fact, drawing the attention of the SMP to the fact that not only has his hook got no bait on it, but his dog is eating his sandwiches is doing him a great service, as it should prevent him from acting unlawfully.

There is nothing in the law which would suggest to former military gynaecologist Johnson that he could say the Regulations allow him to have a full picture. His statement is either a bare-faced lie, or a display of pure ignorance.

Surely even a pilchard like Johnson has the ability to read the Regulations and see that?

The decision … or lack of one

iodpa selected medical practitioner, smp
The decision … or lack of one

When a police pension authority turns its mind to police injury pension reviews, there are some decisions to be made.

It’s a bit like eating a plate of chips. Shall I have mayonnaise with them, or just salt and vinegar? Sounds like an either/or type of decision, doesn’t it. But what if you can’t decide? Then the status quo continues – the chips get eaten just the same, but with no dressing. No decision is really a decision to leave things as they are.

So, what should happen when a police pension authority (PPA) thinks about holding a review of an injury pension? First off, a decision needs to be made as to whether a review is appropriate in each individual case. The PPA has a wide power of discretion over when or whether to hold a review. According to the Police (Injury Benefit) Regulations 2006 a PPA (regulation 37-(1) the PPA,

‘ . . . shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered . . . ‘

The Regulations give no instructions on what might constitute a suitable interval. That is left to the PPA to decide, because each case is different. Where legislation confers a power of discretion, it must be exercised. Some ‘mind’ must be applied to the matter. The PPA is obliged, indeed required. to conduct a decision-making process for each individual, designed to determine whether a suitable interval has passed since the time of the last final decision.

Of course, I am assuming here that a review would only be contemplated for the reason of ensuring the intention and scope of the Regulations were upheld. Which, with the review provision, is to help ensure the correct level of injury pension continues to be paid. In Avon and Somerset Police Headquarters they don’t think that way. Oh no. They look at the bill for injury pensions and see the review process as offering a way to reduce pension payments. They look for ways of manipulating the process so as to achieve that aim.

Once that approach has been adopted, it is all downhill from there. None of the decisions taken along the route thereafter are lawful.

Let’s back up a little. Regulation 37-(1) commands the PPA to consider whether the degree of the pensioner’s disablement has altered. In my dictionary, ‘consider’ means, ‘To spend time thinking about a possibility or making a decision.’ So, let’s imagine ourselves in the shoes of a professional HR manager to whom has been delegated the task of considering whether a former officer’s degree of disablement has altered.

What information do we have to go on? We can’t look at any occupational health file, as that contains personal medical information which we have no authority to access. Even if we could, it would not help as we have no medical qualifications and thus can’t form any opinion or decision based on medical information. There is the former officer’s personnel file, which contains little which might help, other than date of injury, date of retirement, date of grant of injury award – all of which relate to events many years ago. Nothing which might tell us the state of the individual’s disability now.

So, here comes the first mayonnaise or salt and vinegar moment. Shall we

  1. a) send a sneaky, intrusive and threatening questionnaire to pensioners selected on the grounds that they are on band four and under the age of 50, so being the most likely candidates for a reduction in pension payment, or
  2. b) send a polite letter to all injury pensioners asking them to indicate whether they, if asked to do so, could provide a report from their GP saying their disablement was any better, worse, or much the same?It’s a no-brainer. As a HR professional the nasty, sneaky, stupid approach is always by far the best option.

However, at least the HR professional has done what the Regulations require. The question has been considered. No matter that it has been done in the most ham-fisted, insulting and idiotic way possible, breaking a good few laws on data protection, human rights and fraud along the way. No matter that the responses from pensioners could never contain the slightest piece of information which could be used to determine the possibility or otherwise of there being a substantial alteration in degree of disablement.

Thus, on we go – we have considered so now we can arrange the appointments for the pensioners to be assessed by the SMP, which is what we intended all along.

That is why the process devised by Avon and Somerset Constabulary is fundamentally wrong. It is a fishing expedition. Their non-independent SMP, Dr Philip Johnson, has been involved in the process from the start and has declared the intention to ‘forensically examine’ the medical history from the birth of former officers. Why so? The reason is clear – he and the PPA are looking to unlawfully revisit earlier final lawful decisions and to try to overturn them. You can just hear Johnson, can’t you – ‘Oh look, this man had a graze on his knee when he was six. That, in my very professional opinion caused a degenerative weakness which has exacerbated his injury. So let’s say that accounts for 50% of his disability. Cut his pension by half.’

Avon & Somerset has got things back to front. They have approached the review process in bad faith and with the wrong reason. Their objective is to revise the degree of disablement downwards so the tactic is to have the SMP forensically examine the medical history and interrogate the disabled former officer and thus revisit decisions they are not permitted to revisit. They have revealed their warped intentions so very clearly that it is a wonder the SMP does not wear a stripped pullover and carry a bag marked ‘swag’.

The first 16 disabled former officers selected for review are all on the highest banding and under the age of 50. They represent, in the delusional minds of A&S, the best opportunity for making savings. Moreover, being crafty, they have worked out that they are eliminating any risk of having to increase any pensions, as from band four the only way is down.

The HR manager of Avon & Somerset Police, one Christine Jones, explains that the reviews of the selected sixteen is a two-stage process. She says that first there would be a ‘consideration’ and then and only then might there be a need to see a SMP. This is what she wrote to a former officer about how she sees the review process:

Our interpretation (which has been agreed with the Federation) is that this is a two stage process – the review firstly determines whether there has been a substantial alteration in the level of your incapacity and, if this is the case, a review is then carried out as to the level (or banding) of the injury award.

Christine’s words are just fluff (or misdirection, depending on your level of cynicism). They do not reflect the real situation, which is that she first tried to elicit information from pensioners which she thought would give her an idea of their financial situation and life-style. She asked for permission for medical records and tax records to be seen by goodness knows whom in the occupational health department, and by the SMP. She even wanted to know how many vehicles pensioners drive. From this mish-mash of totally irrelevant data the SMP was expected to rubber stamp the pre-made decision to interview, examine and assess each of the 16. It was smoke and mirrors. A false consideration.

Her own words describe the real process. The SMP is to examine the pensioners to determine whether there has been a substantial alteration in ‘incapacity’. Have a look in the Regulations – the word incapacity is not mentioned.  It might sound like disablement or disability but that is not what is assessed at review. The only task of the SMP is to answer the question of whether there has been a substantial alteration in degree of disablement.

Degree of disablement is the extent to which an individual’s ability to work and thus earn has been affected by duty injury. How many cars he might drive is neither here nor there. Nor is his or her income. The focus should be on disability, and whether it has altered.

Once the SMP has decided that question, the review is complete. But Christine thinks there is a second stage – where a ‘review is then carried out as to the level (or banding) of the injury award.’

But the Regulations don’t allow for this ‘two reviews’ approach which the HR department think is permissible. They have to consider whether there has been an alteration in the pensioners level of disability and then, ask the SMP to decide if there indeed has been a substantial alteration. If there has been, no further calculation is needed. The pension is revised in line with the table set out in Schedule 3 of the Regulations.

When the SMP is assessing a person’s disablement for evidence of substantial alteration there can only be one of two decisions which result.  It’s either salt and vinegar or mayonnaise. The SMP can decide there has not been a substantial alteration or he can decide there has been. There is no room for a decision not to be made. If he can’t decide, for whatever reason, then the decision defaults to no alteration in degree of disablement.

But Dr Philip Johnson thinks he has the luxury of making no decision and has done this in all the Avon and Somerset reviews he has been a part of. Is his lack of decision nothing more than the result of his growing realisation that he is willingly participating in an unlawful process? Does he realise that his reputation, even his licence to practice might well be in jeopardy? His lack of decision and Christine Jones’ view of how a review should proceed give the clearest confirmation that there is indeed a hidden agenda to unlawfully revisit the basis of earlier final decisions.

The SMP, out of a well-honed sense of self preservation can see a storm coming and is steering his boat for harbour. No more fishing expeditions for him. And as for Christine – see you in court.

The function of the SMP

iodpa selected medical practitioner, smp
The function of the SMP

What does a duly qualified medical practitioner (selected medical practitioner or ‘SMP’) bring to the table?  Firstly it is peremptory that any final decision made under Police Injury Benefit Regulations 2006 is a medical decision.  It is not a legal question or an occupational assessment – it is a medical question and therefore can only be answered by a medical doctor.  ‘Suitably qualified’ has no specific definition under the regulations other than the implied possession of  medical degree so a general practitioner or a surgeon could perform the task.  However it is the praxis of police pension authorities to have interpreted the suitable qualification as being a member of the Faculty of Occupational Medicine.

This hugely narrows the pool of suitable potential SMPs.  Forces are deliberately hiring a specific type of medical professional.  Quite often the SMP belongs to an umbrella  limited company that contracts the occupational health doctors back to several forces in a consortium pact.  This insular arrangement is amplified by use of the NAMF’s white list of approved providers.  An otherwise excellent medical practitioner is barred from working as a SMP if not a member of this closed club, further adding to the erosion of the independence of SMPs.

But what is the remit of a SMP?  Firstly the SMP is bound by the ethics of the GMC guidance which determines how its members are allowed to act in such positions (Confidentiality_disclosing_info_2009.pdf.)  The GMC guidelines dictate that any person the doctor has access to in such an event is still their ‘patient’ and it is irrelevant whether they are giving therapeutic treatment or not – as their patient, the well-being of the person is their first concern.  In partnership with their medical duty, there is the legal duty of the SMP to abide by the statutory instrument  enacted by the regulations. So the SMP assesses the disability and it’s effect on earning capacity together with factors such as rank and length of service. The SMP then makes the award which falls into four bands (Band one is the least).  The bands are simplified into 4 to make it easier for a medical expert (not a HR manager) to decide a suitable degree of disability.  When some SMPs use rounding to 2 decimal places in order to put an IOD retiree into a lower threshold (49.95%), they clearly haven’t taken the ‘decision in the round’.  This was talked about in the post concerning the PAEM & Bad maths.  As mentioned, although the SMP is employed by the Police Authority/Commissioner/Force, the function should be an independent one.

On the original decision (when the award is first given) the SMP may ask for full medical records as well as accompanying report from specialists.  There is no given power that enables the SMP to demand things – indeed no legal powers are inferred on the role of the SMP – he/she can ask but accordingly there is no obligation to acquiesce.   They are not coroners with common law or statute powers – the statutory role is to answer a question – the referred question; they are not empowered in anyway to act other than as a doctor.  Of course, the SMP is entitled to make an informed  judgement on the available evidence and non-cooperation does allow the SMP to infer something.  The final decision is the SMP’s alone to make.  The procedure should be an evidenced based approached.  In injury cases in particular it is important that the SMP should satisfy him or herself that the evidence presented about the circumstances surrounding the injury and the disablement in question is not accepted uncritically from either party. It is for the SMP to test and weigh the evidence given in the light of the other evidence provided and in the light of his or her own medical knowledge and reasoning. In deciding whether a statement put to him or her as a matter of fact is to be accepted as such, after having duly tested and weighed it, the SMP should apply the balance of probabilities and not a higher evidential test.

Such questions the SMP considers are (but not exclusive of):

  • The Regulations specify that whether the injury includes any injury or disease, whether of body or mind
  • That disablement is deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement
  • It is necessary to establish a direct causal link between the permanent disablement and service as a police officer:
  • In cases where the permanent disablement through injury was the result of a single, significant incident the question will be a relatively simple one – was the injury received in the execution of duty
  • An injury does not have to be received though a single, significant incident; where no single moment of injury can be identified.  The question for the SMP is whether the permanent disablement through injury was caused by, or received in, the execution of duty as opposed to domestic or other circumstances not related to police duty – bearing in mind the following points:
    • police duty should not be given a narrow meaning; it relates to all aspects of the officer’s work;
    • the Court of Appeal has held that stress-related illness through exposure to police disciplinary proceedings does not count as an injury received in the execution of duty;
    • police duty does not extend to a sporting activity for the police while not carried out on duty, unless where the injury was due to the officer being known to be a constable.
  • There may be an issue as to whether there was a single injury or more than one injury which contributed to the disablement. This can affect the calculation of degree or disablement where a relevant injury was not received in the execution of duty. Where this is relevant the SMP’s findings as to whether there is one injury or more than injury should be clearly stated (apportionment).

If the decision is not accepted it can be challenged within 28 days and an appeal lodge with the Police Medical Appeals Board.  This a panel of 3 medical specialists on a Home Office list.  Before Laws V PMAB historically a PMAB panel rubber-stamped the decision of the SMP using the HO guidance 46/2004 – an example of Home Office officials keeping the bien pensant stance and ensuring the Home Office guidance is followed to the letter (despite the subsequent withdrawal due to the guidance being unlawful).

The role of the SMP in a review situation is the sole question of substantial alteration of the degree of disablement (earning capacity not physical disability) since the last final decision.  Has the medical condition substantial improved or substantial deteriorated?  Is there jobs available to the individual that were not available at the last final decision?

A review therefore should be a benign event.  As circumstance dictate (and not routinely), the submission of medical records, partially disclosed of dates between the last decision and the date of the review.  A quick face to face meeting IF and ONLY if there are points in the medical notes that need clarifying.  If there is no evidence of change then the person should not even be put in front of a SMP.  That’s it.  Nothing more.  If the SMP acts like a Gestapo officer, forensically examining medical history and interrogating the retiree for close to 2 hours during a review then it is obvious that there is an agenda.  How will other IODs react when they get called?  Defensively, no doubt.  Where’s the motivation to engage in a demeaning and unlawful process.

There is no excuse for any review to last from May 2014 and still be continuing in mid-March 2015.  That suggests that the police pension authority and the SMP are considering facts that are beyond their legal duty.  Rather like Avon & Somerset’s current reviews…