“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.
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