Dorset

Dorset Reviews – lessons learned, or not?

Dorset Reviews – lessons learned, or not?

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

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

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

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

Dorset letter

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let’s now look at the FAQs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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