Dr Charlie Vivian

Dr Vivian And Normal Appropriate Medical Treatment

IODPA Admin medical treatment
Dr Vivian And Normal Appropriate Medical Treatment

“A little knowledge is a dangerous thing” is a slight misquotation of Alexander Pope’s “A little learning is a dangerous thing” dating back to 1774 and we do not think that there is a more appropriate quote that’s applicable to Dr Vivian.

We’ve recently been contacted by more than one pensioner, who have been reviewed by Dr Vivian under regulation 37(1) and have been reduced from band 4 to band 1 with a disability of 0%.

It would be most unusual for one pensioner to be reduced from band 4 to band 1, so what is going on?

Let’s firstly set the scene. Dr Vivian acted as the original SMP for the pensioners granting a band 4 injury pension in each case. He recommended that each pensioner be reviewed in two to three years time, which is now.

It may be worth pointing out at this stage, that such a recommendation is not part of the regulations and is likely to be contrary to the case of Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 (Admin) (16 September 2020) where the judge opined that Police Pension Authority (‘PPA’) cannot make a future decision regarding reviews. They have a duty to ‘consider at suitable intervals’ whether a pensioners level of disability has substantially altered and that decision is based on the here and now and cannot be diarised at a specific date in the future in the same way that Staffordshire Police were wrong to state that they were never going to review. We won’t labour this point here as this is not what this blog is about, but needless to say, we don’t agree with it.

When the pensioners hit their recommended review dates, the forces (conveniently) passed the cases back to Dr Vivian for a regulation 37(1) review. Nice work if you can get it!

Let’s look at the duty that is imposed on Dr Vivian under this reassessment.

Regulation 37(1) says the following –

Reassessment of injury pension

37.—(1) Subject to the provisions of this Part, where an injury pension is payable under these Regulations, the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner’s disablement has altered; and if after such consideration the police authority find that the degree of the pensioner’s disablement has substantially altered, the pension shall be revised accordingly.

The regulations specify that decision should be passed to a SMP.

Regulation 30(2)(d) says the following –

Reference of medical questions

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

…

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

and, if they are considering whether to revise an injury pension, shall so refer question (d) above.

It is abundantly clear from that regulation that the duty, the ONLY duty, of Dr Vivian conducting a 37(1) reassessment is to establish the degree of the person’s disablement today.

We are sure that everyone is aware of the case of Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 (13 October 2010) which confirms that regulation 37(1) is a comparison exercise whereby the SMP has to compare the pensioners current level of disability with their last known position. This can be the original granting of the award, or the last review, whichever was most recent. In order for the PPA to reduce a pension they have to identify substantial alteration (via the SMP) in the pensioners level of disability.

So, the first question that we should ask is did Dr Vivian identify substantial alteration? The answer to that question is a resounding ‘NO’. On this basis alone, Dr Vivian has acted unlawfully as he has not complied with his duty under the regulations.

Instead, Dr Vivian cited R (Metcalf) v Marcus and West Yorkshire Police [2002] EWHC 2892 Admin in order to reduce each of the pensioners on the basis that each of the pensioners has failed to either seek or accept suggested medical treatment, since being retired, for their condition. He has stated that, in his opinion, it is unreasonable for them to not seek or attempt such treatment and has reduced each to 0% (band 1) on the basis that had they done so, they would have substantially improved.

The facts in Metcalf are extreme. Four clinicians had proposed treatment for a serving officer who had a shoulder injury sustained during a struggle with a prisoner in the form of (i) joint injections, (ii) surgical intervention, (iii) desensitising physiotherapy and (iv) pain management but these options had been rejected by the claimant on the grounds that none of it was guaranteed to make him operational again. Unsurprisingly, his refusal was held to be unreasonable and the High Court declined to intervene.

In 2003, no doubt inspired by the case, there was an amendment to the Police Pension Regulations 1987 (‘PPR 1987’), the forerunner to The Police (Injury Pension) Regulations 2006 (PIBR 2006).

The Police Pensions (Amendment) (No. 2) Regulations 2003 inserted the following onto the PPR 1987 –

(1A) For the purposes of deciding if a person’s disablement is likely to be permanent, that person shall be assumed to receive normal appropriate medical treatment for his disablement, and in this paragraph “appropriate medical treatment” shall not include medical treatment that it is reasonable in the opinion of the police authority for that person to refuse.

This amendment made it into regulation 7(3) of the PIBR 2006 –

Disablement

7.—(3) For the purposes of deciding if a person’s disablement is likely to be permanent, that person shall be assumed to receive normal appropriate medical treatment for his disablement, and in this paragraph “appropriate medical treatment” shall not include medical treatment that it is reasonable in the opinion of the police authority for that person to refuse.

Not only has Dr Vivian failed to comply with regulation 37(1) but the keen eyed readers amongst us may have also spotted the flaw with his logic and the application of this outdated case law?

The case law, the amendment to the PPR 1987 and the PIBR 2006 ALL place a duty on the SMP to ensure that the person has received “normal appropriate medical” ONLY when the question of permanency is being considered, and that question ONLY arises during the granting of the original award. Just to reinforce this point, this refers to officers who are going through the ill health retirement process, or are being assessed for an injury award.

Dr Vivian is NOT, in our opinion, entitled to revisit the question of permanency as this has already been decided, and there is NOTHING in the case law or regulations that allow him to apply this test on a regulation 37(1) review and he is therefore acting ultra vires.

What concerns us most, is that Dr Vivian is reducing people’s pensions who are seriously ill. The damage and the stress he’s causing these pensioners is immeasurable with his shenanigans and with his crackpot theories. His previous crusades on bad backs and acceleration has been discredited by the courts and overturned by PMABs.

When is this ultracrepidarian going to concentrate on the medical task in hand and leave the law to those who know what they’re talking about?

 

 

 

Dr Vivian And Acceleration

IODPA Admin Acceleration
Dr Vivian And Acceleration

It’s been almost 12 months since we printed our articles on the dubious methods used by one of our regular Selected Medical Practitioners (‘SMP’) – Dr Charlie Vivian. If you haven’t already, we suggest that you read the previous articles which can be found here –

https://iodpa.org/2022/02/26/when-is-receiving-a-back-injury-on-duty-not-an-injury  -on-duty/

https://iodpa.org/2022/04/11/what-is-an-injury-on-duty/

In the first of those articles we touched on the thorny subject of acceleration, and said that we’d return to it. We also referred to a paper entitled “The Police (Injury Benefit) Regulations 2006 – A guide for conducting the Injury Assessment”, and promised to print it. This is a document that was written and agreed upon by three SMPs including Dr Vivian and the Northumbria Police’s force solicitor, Nicholas Wirz. In that article we called it the ‘SMP paper’, which we will continue to do here.

For the curious, here is the paper itself –

 

So here it is, 16 pages of advice and guidance that has no legal standing and dubious citations which Dr Vivian is using to assess you, a police officer that’s been injured on duty through no fault of your own!

What we wanted to look at in more detail is Dr Vivian’s apparent OBSESSION with acceleration (section 5). Probably 80% of all determinations by Dr Vivian that we read now have the concept of acceleration embedded in them.

Acceleration is often considered hand in hand with aggravation. Aggravation is the concept of an an existing but dormant condition and one which left alone would not develop further. An injury on duty would trigger or aggravate this dormant condition. Whereas acceleration is the concept of an existing condition which left to its own devices would have naturally worsened over a period of time, but was advanced early due an injury on duty.

These concepts are discussed in two stated cases involving Peter Walther, one of which was in the case of the Commissioner of Police of the Metropolis (Claimant) v The Police Medical Appeal Board (Defendant) and David Walther (Interested party) [2013] EWHC 1203 (Admin) (17 May 2013), which we’ll summarise here –

Mr Walther was medically retired in 2008 with a number of medical conditions, but the only relevant injury for the purposes of Mr Walther’s claim was a lumbar disc degeneration. Mr Walther had a well documented history of back problems including previous incidents at work, and also degenerative disc disease. For Mr Walther, the straw that broke the camel’s back was when a 15 stone officer jumped on him during officer safety training, causing him both immediate and continuing back pain.

It should be noted that following the case of Jennings v Humberside Police [2002] EWHC 3064 (Admin) the Home Office issued (yet more flawed) advice that injuries causing acceleration could not qualify for injury pensions.

Using this advice, the SMP, a Dr Baxendine, refused an injury award on the basis that Mr Walther had an existing condition that was merely accelerated by the work incident.

Mr Walther appealed to the Police Medical Appeal Board (‘PMAB’). They agreed that the index event had brought about an “acceleration of the underlying condition”. They too refused his injury award as “this was an acceleration case, rather than a case where the relevant injury aggravated an underlying condition”.

Mr Walther appealed both decisions in a Judicial Review. The Hon Mr Justice Irwin took the view that both the SMP and the PMAB were wrong when they took a blanket approach that because acceleration was involved it could not be be a significant contribution to a permanent disability, and therefore an injury on duty. He stated that a short acceleration may not contribute to a permanent disability, but a longer period may. “Where the dividing line comes must be a matter of fact in each case”. As a result, he referred it back to the SMP to reconsider the case.

The SMP reconsidered Mr Walther’s case, but again maintained his conclusion that he was not entitled to an injury award. Mr Walther appealed to the PMAB for a second time, where he was now granted an injury award. This time, the Metropolitan Police appealed the decision of the PMAB at a Judicial Review.

Mr Justice Collins opined that the PMAB were correct in their reasoning and that Mr Walther was entitled to an injury pension. He said that the length of the acceleration is not relevant as long as at the time of the assessment the injury had substantially contributed to the disablement. He stated

It will be apparent that it is my view that the approach based on aggravation or acceleration and the extent of any acceleration is not appropriate”. He further stated “If however the injury was such that it did substantially contribute to the permanent disability (since the question of causation or contribution will only arise if the disablement is found to be permanent), the right to an award arises and the extent of any acceleration is not determinative of that right.

What we’re finding with Dr Vivian is that a very high percentage of awards (probably over 80%) granted by Dr Vivian have this concept of acceleration attached to them, even where on the surface there appears to be no obvious previous history of an underlying condition or any evidence that over a period of time it would have worsened.

To put this in perspective, Dr Vivian is saying that in 4 out of 5 cases the violent arrest, the high speed pursuit resulting in a collision, or the constant exposure to distressing situations only brought forward a physical or mental condition that would have happened anyway. It’s amazing just how many of these fit and healthy police officers have (often the same) vulnerabilities triggered by a duty event, but apparently, according to Dr Vivian would have happened anyway!

One such case, involving Dr Vivian, was recently heard by his Honor J Scoffield in the High Court of Justice of Northern Ireland IN THE MATTER OF AN APPLICATION BY JUSTIN CHADWICK AND ANDREW HARVISON FOR JUDICIAL REVIEW AND IN THE MATTER OF DECISIONS OF THE NORTHERN IRELAND POLICING BOARD – 

 

 

Ironically, the matter under review was nothing to do with the subject matter of this blog. It was a case brought by two PSNI pensioners who were reassessed by Dr Vivian and awarded band 4, but the Northern Ireland Policing Board (‘NIPB’) disagreed with the methodology used by Dr Vivian in his assessment and decided to withhold the increase in banding. The two pensioners challenged the decision of the NIPB and their claim was upheld.

What ties our blog to this judgment was the criticism leveled at Dr Vivian by the NIPB and Justice Scoffield and his use of acceleration.

The NIPB was concerned that the Independent Medical Referee (‘IMR’) [Dr Vivian] had

deferred to his own guidance document… which contains a methodology not contained within the… official guidance documents for medical assessments within this jurisdiction.

The NIPB are clearly referring to the ‘SMP paper’ (ante).

In the first case, Dr Vivian considered that the PTSD symptoms were substantially caused by events during the applicant’s police career, which had accelerated symptoms by 10 years. His hip problems had been accelerated by 3 to 5 years.

In the second case, in respect of one of the conditions Dr Vivian considered that duty activities accelerated the back pain symptoms by 5 to 10 years and he took a mid-point of 7½ years.

The NIPB submitted,

During subsequent investigations it has come to light that the IMR has deferred to own guidance document (attached) which contains a methodology not contained within the attached official guidance document for medical assessments within this jurisdiction to include a methodology of his own devising referred to as “assigning acceleration.”

Ironically, the board further complained that Dr Vivian failed to have regard to guidance issued to SMPs by the board, which ironically has no more legal standing than the guidance devised by Dr Vivian, but we’ll park this argument for another day.

The NIPB stated,

The Board’s concerns with the IMR’s methodology included that he had relied upon a guidance document that he had prepared himself which had not been shared with the Board or the Department; that this guidance document contained errors (in the Board’s view), in particular by introducing a concept of “acceleration” when assessing the impact of a duty injury which was said to be “at best, speculative” and which the reviewing doctors considered to be so subjective that they could not explain how it had been applied, as well as involving judgments which were required to be made by a different medical specialist rather than an occupational health specialist

His Honor J Scoffield said,

The guidance document co-authored by Dr Vivian, who appears to have considerable experience in the field of police injury awards in England and Wales and in Scotland, was produced in conjunction with a working party involving two other SMPs and solicitors with experience in police pensions work. Dr Vivian has indicated that it has been shared across constabularies in Great Britain and has been favourably received, as well as having been the subject of training conducted by him for the Police Federation of England and Wales.

Whilst the judge was not asked to provide an opinion on the methodology used by Dr Vivian, and more importantly the legality of his approach the final paragraph of the judgment contained the following,

I would add that my provisional view is that it would not be appropriate for me to hear and determine any judicial review of that character since much of the issue appears to resolve to a difference in view as to the methodology which should be applied to assessing the degree of an officer’s disablement, with the competing models being that devised by Dr Vivian and his working group on the one hand and that devised by the Department and the Board and set out in their joint guidance on the other hand. The latter approach, however, appears to flow directly from recommendations made in the course of the review which I conducted for the Board which is discussed above

 

We have already previously shown that the document that Dr Vivian clings so fiercely to is at best flawed, and at worst unlawful, so when is he going to put it where it belongs?

 

 

What Is An Injury On Duty?

IODPA Admin Causation, smp
What Is An Injury On Duty?

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

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

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

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

Who could not understand this simple concept?

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

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

The judge made the following observations –

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

 

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

 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

A: When you are assessed by Dr Vivian.

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

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

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

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

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

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

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

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

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

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

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

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

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

It then says – 

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

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

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

Page 162 contains the following line –

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

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

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

 

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

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


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

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

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

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

 

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

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

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

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

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

Another search of the internet reveals Hadler’s paper – 

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

In paragraph 7 of the paper he quotes – 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge, Jury And Jackass

iodpa selected medical practitioner, smp
Judge, Jury And Jackass

“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…