medical records

Advocating a 100% Fresh Assessment in All but Name

iodpa Causation, National Attendance Management Forum, National Wellbeing and Engagement Forum, Uncategorized
Advocating a 100% Fresh Assessment in All but Name

“Isn’t it nice to think that tomorrow is a new day with no mistakes in it yet?”
― L.M. Montgomery

Here’s the problem. A force brainwashed SMP won’t say a medical examination has occurred without seeing the former officer stagger into the office with bulging* Lidl bag (other supermarkets are available) with papers sticking out of it. *Note: More than likely the physical carrying of such bag will be used as sly evidence of substantial change.

We don’t know if it had the words ‘all my medical records ever, since birth’ written in Magic Marker on the side of the bag. Anyway, a little later, the SMP says a mild bout of flu when 6 years old is the real cause of the missing limb and subsequent PTSD, and causation is revisited.

Later again, surprise is expressed that the SMP had been able to get through with his primitive bag of tricks. In this new-age we are continually exhorted by HR minions such as  Staffordshire’s Andrew Colley that it’s not the force that wants the medical records, it’s the SMP.  Always the SMP.  ‘Our hands are tied!’ says Colley, the doctor is a doctor, he can ask for whatever he likes.  Don’t shoot the messenger … nothing to do with the PPA (honest ‘guv).

We are told to be vigilant on disclosure of sensitive personal information, so why wasn’t the SMP told he can’t have what he’s not entitled to? Did nobody think it looked a bit suspicious?  That the question of what happened prior to the last decision is time-barred and irrelevant.  What maybe reasonable to a nice and pleasant doctor is not lawful in the world of the Regulations where nice and pleasant doctors are as rare as unicorn droppings.

We have the feeling we know the answer to that. Just think of the howl-round, the furore, if the SMP decided to say the person should not have an injury award in the first place or said the previous decision wrong. This would be a clear breach of Law Court of Appeal in Metropolitan Police Authority v Laws and the PMAB [2010] EWCA Civ 1099, in which it was held that the SMP was not entitled when conducting a review under regulation 37 to re-open clinical judgements as to causation or apportionment made in earlier decisions under the 2006 Regulations, and had merely to consider whether the degree of disablement had substantially altered.

But by demanding full medical records from birth, this is exactly where we are, right now. Pinned to our seats by perceived medical decision immunity, as the train enters the darkness of the tunnel of the Laws case law, next stop a zero percent band one.

Forces like Staffordshire are trying to bypass Laws and revisit causation by pointing the finger at Dr Vivian by proclaiming that it’s not them (the police pension authority, PPA) that is demanding full medical records, it’s Vivian – and Vivian is a doctor, and all doctors are nice and pleasant and wouldn’t breach the law.  The flaw in this is the SMP, as a delegated decision maker, is synonymous with the PPA.  They are not two separate entities … one is culpable for the other.  What the PPA can’t do, the SMP can’t do.

But the “let’s look at full medical records from birth” is when the SMP brings in other illnesses even when there are no said illness – such as age! (We aren’t joking here, this recently happened). And the reduction is formalised behind the mask of so-called expert medical opinion.

Where did this process of radicalisation start, and what has had done to counter it?  Our blogs shine a light and the narrative is clear:  the Regulations do not support the interpretation that is placed upon them by police forces.  They get it wrong and that’s why they continually lose in judicial reviews.

The National Well Being & Attendance Forum sets its people apart from the rest and, in all too many cases, this apartness leads to a hatred of the function of the Regulations:  to provide those injured on duty with an injury award.

NWEF prefers to think the Regulations as a means to stop those injured on duty from getting an injury award.

The NWEF September 1st 2017 minutes are a case in point.  The minions in attendance obviously, quite rightly, have the willies about consent because they get the consent issue so wrong it hurts.  They talked about being GDPR ready (the GPDR is the new General Data Protection Regulations and is the new legal framework for data protection coming into force in 2018) but just prior they chat about the SMP can have anything the SMP asks for. NWEF says:

The general view was that it is the SMPs process so it is up to the SMP to direct what information or evidence they require,

We’ve read the GPDR and having ‘everything’ ever, because ‘everything’ is asked for, and not giving ‘everything’ will be seen as non-compliance and dealt with by punitive action, doesn’t seem to fit.  Actually enough faux understatement, let’s not beat around the bush; it’s unlawful.

And the questionnaire!  Oh my, the questionnaire.  Even though a 2017 consent order against Merseyside touched on this as well as full medical records from birth, NWEF still thinks a questionnaire is a legitimate means to fulfil the comparison test.

3) Refusing to complete a questionnaire for the purposes of Reg 37(1)
It was felt the exchange of information between the pensioner and SMP is essential to identify substantial change.
There was comment that the case of Laws set the principle that a case cannot be referred for degree of disablement to be reviewed without evidence of substantial change; the questionnaire assists with the gathering of evidence.

Let us quickly mention that the purpose of a review is never to fish for change to find evidence for a reduction and that a questionnaire is an invented device and is outside the statutory framework.  But let us roll with the juxtaposition of the Laws judgement and whether the questionnaire assists with the gathering of evidence.

Surely for the questionnaire to be a tool in the way NWEF suggests, there will have to be two questionnaires.  One completed on a previous date, and one completed in the present day. And then the answer to the questions could be balanced against the previous answer.

But no … there is only ever one questionnaire.  So tying to mask this unlawful device as permitted by Laws is just probably the worse thing ever written about anything to do with the Regulations. Ever.

Feel free to read the rest of the September minutes.  Have your tutting hat on.  You will be doing a lot of tutting!

 

3 Big Data Myths: Busted

iodpa medical records
3 Big Data Myths: Busted

“He knows nothing; and he thinks he knows everything. That points clearly to a political career.”
― George Bernard Shaw, Major Barbara

Myth #1:  Handwritten SMP notes belong to the Doctor

Having brought and subsequently lost a constructive dismissal claim, in 2014 and 2015, a Mr Percival made a series of Subject Access Requests to the Ministry of Justice (MoJ) seeking access to the judge’s notes relating to the employment tribunal.

The MoJ initially resisted the request on the basis that judicial notes should not be disclosed as part of a subject access request. They argued that the Judge’s notes were not part of a “relevant filing system” so were not within the scope of the Data protection Act and that the MoJ were not the relevant data controller concerning the notes

The ICO also disagreed with the argument put forward by the MoJ that they were not the data controller, deciding that the MoJ became the data controller in relation to the notes as soon as they were included in the court file.

Accordingly, the ICO recommended that all personal data (including the Judge’s handwritten notes) should be provided. The judge’s notes were eventually released to Mr Percival in January 2017.

It is reported that the ICO letter to Mr Percival stated

“there is no doubt that clarifying the nature of the relationship between judicial notes and the DPA is important … a decision on the relationship is likely to be far-reaching and extend well beyond the particular circumstances of your own case.”

Often SMP’s keep their scribbles to themselves.  The ICO advice makes it clear that if the SMP has used a pen during the appointment, then he or she is obliged to disclose what they have written in answer to a subject access request.

Myth #2:  consent to Disclose a report cannot be revoked when an Occupational Health Doctor is performing a work test for an employer

IODPA has already discussed the Access to Medical Reports Act.  You can refresh your knowledge here:

Access to Medical Reports Act

But what are the thoughts to the GMC on this matter?  Michael Keegan, Policy Adviser with the GMC’s Standards & Ethics Team made it quite clear in a 2009 letter he sent to the Faculty of Occupation Medicine.

If a doctor makes a report based on that person’s own medical history, specific consent of disclosure is required.

Mr Keegan elucidates:

For the avoidance of doubt, I should state that the disclosure of a report expressing an opinion (on a patient’s fitness to work, for example) based on confidential information is a disclosure. I think that was common ground.

He contrasts this with a report authored with information that originated from the employer alone:

Reports based on information to which patients’ employers or insurers already have access are not disclosures for the purposes of this guidance, although the involvement and role of doctors should be explained as part of the information about the process.

Police forces do not have the information held on your GP medical records – this is why they demand full records from birth with poorly veiled threats to suspend awards on non-compliance.  They fail to realise by obtaining such information they then have statutory restrictions on any report or certificate they write based on such information.

This takes us to the final myth: they can’t keep the confidential, personal and sensitive data they already possess!

Myth #3:  A Police force can retain the personal CONFIDENTIAL & sensitive data of a retired officer forever in perpetuity “just in case“

This debunk involves a Mr Herring who, having attended a Police Medical Appeals Board (‘PMAB’), approx 15 years ago recently discovered that the Avon and Somerset Constabulary still retained a full set of his medical records from birth. They attempted to justify this retention on the basis that the records were being held ‘just in case’ they were required at some point in the future. Case law confirms that once a medical assessment has been made under the PIBR 2006, then that decision is final and introducing or using previous medical information can be unlawful.

The case was taken to the Information Commissioner’s Office (‘ICO’) regarding the excessive retention and processing of data of personal sensitive information. After consultation with the National College of Policing (‘COP’), the ICO upheld the complaint, and instructed the Avon and Somerset Constabulary to cease processing this material forthwith and either destroy it, or return it to Mr Herring upon request.

We quote from the ICO’s advice to Mr Herring,

“…it would appear that the constabulary is excessively processing sensitive personal data about you. It would appear unnecessary for the constabulary to continue to retain information about your medical records, going right back to your birth.
We have therefore asked the constabulary to cease processing your medical records. We would recommend that you contact the constabulary directly to agree how best for them to do this; whether it be that they return the information to you or securely destroy it”

Mr Herring subsequently had his medical records returned to him.

There is therefore no justification or provision in law for holding or processing such excessive amounts of sensitive personal information. Many forces hold vast amounts of information relating to retired officers, and for no lawful reason. We understand that the COP will be issuing guidance to forces, but in the meantime it is open for all retired officers to contact their force and ask for the return of their data. We would also encourage them to do so.

 

 

 

 

The Protection of Personal Data & The Sad Story of “Z”

iodpa data protection, medical records
The Protection of Personal Data & The Sad Story of “Z”

“If I maintain my silence about my secret it is my prisoner…if I let it slip from my tongue, I am ITs prisoner.”
― Arthur Schopenhauer

One important aspect of privacy is recognised in common law – that of the confidentiality of medical information.   Patients should be free of the fear that they will be harmed by disclosure of clinical information as a result of engaging with a doctor.

In the UK there are various statutes and statutory instruments that require doctors to reveal information, which would otherwise be considered confidential. For example the reporting of notifiable diseases (Public Health Control of Diseases Act 1984) or notification of terminations of pregnancy (Abortion Regulations, 1991).  The Abortion Regulations provides a good example of the clarity given to the subject’s protections when medical information has to be disclosed, its section 5 specifically refers to the restrictions placed on disclosure of information.   There are ten parts to this section that explicitly spells out the limited remit of any information disclosed to the Chief Medical Officer and his delegates relating to abortions and the narrow window that it can be processed.

It is by no accident then, that the Police (Injury) Benefit Regulations (PIBR) does not reference at all the words ‘medical records’ or ‘medical notes’.  Given this fact, that no mention of the limitations of disclosure is made, such as you’ll read in the Abortion Regulations, it is clear that there is no requirement for disclosure in the first place!

There is also no implied obligation to do so because it would involve the state asserting an unqualified right to inspect confidential medical records.

Think on this for a second:  There is only one small sample of the UK populace who is frequently threatened to disclose all and every piece of medical information ever written about them in their entire life on a whim of a non-medical HR agent working for a police force.  Fail to acquiesce and a HR minion will terrorise a disabled former police officer by saying they will stop the injury award that person receives.

Everyone else in the UK is protected from such a menace – but the HR minion authoring the threats blithely continues onwards without pause.

Bureaucrats such as the medical retirement officer from Merseyside police demands full medical records from birth, ignorant (or not caring) that a request for such medical records isn’t mandated by any law.  If the former officer is female, the fact that these medical records may contain records of an abortion and therefore protected by the statutory instrument mentioned above, is criminally overlooked by the officious functionary.

When a statutory instrument calls for medical information, this is what you’ll find:

“A notice given or any information furnished to a Chief Medical Officer in pursuance of these Regulations shall not be disclosed except that disclosure may be made…[]”STATUTORY INSTRUMENTS 1991 No. 499 MEDICAL PROFESSION The Abortion Regulations 1991

Their ignorance is beyond comprehension.  In reality everyone, those with injury awards included, also have protections under the Human Rights legislation.

Don’t take our word for it.  Just listen to the European Court of Human Rights (ECHR).

It will not surprise our constant readers that the European court found that domestic law must afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention.

In other words there has to be effective and adequate safeguards against the possibility that either irrelevant or medically inaccurate information recorded would be re-circulated and used out of its original context to the prejudice of the person.  Such safeguards as exampled in the UK Abortion Regulations!

Before we go on an exploration of a judgement made by the European Court of Human Rights it’s worth saying first that Brexit will not change anything about the point we will make here.

The ECHR is not part of the EU and will not change on Brexit as it is completely separate from the EU.  The ECHR was drafted in the aftermath of the Second World War and adopted by the Council of Europe in 1950. It was incorporated into UK law through the Human Rights Act 1998.  Arguably, the Great Repeal Bill, which will become an Act in 2019 or 2020, will do quite the opposite of repealing anything: although the Bill will remove the 1972 European Communities Act (ECA), which gives EU law authority, first it will adopt EU law lock stock and barrel into UK law

OK.  Proviso dealt with.

We are going to talk about what the ECHR thinks of “The State” using it’s authority to demand things of it’s citizens – specifically personal data.

In 1997 “Z” applied to the European Court of Human Rights alleging that her right to privacy under the Convention was violated when her HIV status was disclosed by the media during her husband’s criminal trial.

Z v. FINLAND – 22009/93 – Chamber Judgment [1997] ECHR 10 (25 February 1997)

You are here: BAILII >> Databases >> European Court of Human Rights >> Z v. FINLAND – 22009/93 – Chamber Judgment [1997] ECHR 10 (25 February 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/10.html Cite as: 25 EHRR 371, (1999) 45 BMLR 107, [1997] ECHR 10, (1998) 25 EHRR 371


This ECHR case turned on issues of privacy as Z was the applicant complaining that Finland’s legal system had not protected her privacy rights under Article 8 of the European Convention on Human Rights throughout the process.

The Finnish police tried to investigate when X, the spouse of Z, became HIV positive to prove an attempted manslaughter charge against X;  subsequent to the victims being raped by X.   At the 1993 manslaughter hearing, Z’s doctor was called as a prosecution witness and told the court about Z’s medical history, specifically a blood test taken from Z three years earlier.   Z also took the witness stand and told the court that she had not been infected with HIV by X.

All the medical records of Z were seized by the Finnish police who added them all to items of evidence in the case files.  These records comprised some thirty documents.  Such seizure would be unlawful in the UK by virtue of the Police and Criminal Evidence Act 1984 (PACE)*.

*PACE Sections 8 and 9 and schedule 1 (see R v. Central Criminal Court ex parte Brown (1992) TLR Sept 7th) in the absence of agreement by those holding the records the police have no powers to seize or have access to ‘documentary and other records’.

X was convicted of attempted manslaughter for the three rapes he committed in 1992 and solely rape for the offence committed in 1991.   The court sentenced X to seven years imprisonment and decreed that the reasoning and case files (including Z’s medical records) should be kept confidential for a decade.

Just after the first trial a leading national newspaper reported the seizing of Z’s medical records under the headline “Prosecutor obtains medical records of wife of man accused of HIV rape”.  The article published the first name and family name of Z.

In December 1993 the convictions were upheld by Finland’s Court of Appeal.  Further, the 1991 rape as well as newly introduced 1992 rape charge was now judged to have been attempted manslaughter.  The reasoning was released to the media.  It contained a passage where Z was named as a carrier of HIV and that as the wife of X, this gave X reasonable suspicion to think he was also infected.  In any case, the Court of Appeal sentenced X to a further four years.

The media again published identifiable information of both Z and X after the Court of Appeal sent the decision by fax on the day the hearing was concluded to several newspapers.

Under Finnish law, the Court of Appeal had the power to omit any identifiers of individuals in their judgements.  The ECHR heard whether the Court of Appeal was justified to release the disclosure of Z’s identity and HIV status in the Court of Appeal’s judgement made available to the press.

It was explained to the ECHR that X’s lawyers had petitioned for the confidentially order of a decade to be extended and that Z remained anonymous.  The Court of Appeal had paid no heed.

The EHCR ruled that the publication of Z’s identity and medical condition was not supported by any cogent reasons and accordingly the publication gave rise to a violation of Z’s right to respect for her family and private life as guaranteed by Article 8.  The EHCR also made a ruling on the special nature of medical data:

In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention (art. 8).

The court made it clear that health data has a special preeminence:

Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.

We are fortunate in the UK.   Existing primary legislation such as PACE, Access to Medical Reports Act and the Data Protection Act ‘should‘ prevent medical records floating around so many of the case file bundles as happened in the case of Z.

Would the story of Z reached the ECHR if not for the media leak?  Perhaps, perhaps not.  But that’s not the point.  The point is, once medical records are ‘released into the wild‘ the subject loses control over them.

Clearly UK lawmakers know this and that is why the Abortion Regulations puts safeguards on such sensitive medical information.  The ECHR ruled that medical information needs unrivalled protection and that is why the PIBR, as a similar statutory instrument, does not call for medical records by not referencing them and by not implementing safeguards on any, HR or SMP invented, ‘implied disclosure’.

When a HR minion demands full medical records from birth there is always a possibility that your medical records will fall into the hands of those not entitled to access them.  And as a consequence the material is misused.  The story of Z is an extreme case but the Finnish Court of Appeal still made a massive mistake that potentially can be repeated if medical records aren’t treated as the most sensitive and confidential of all personal documentation and never disclosed in full just because a SMP wants to see the “whole picture”.

Are you sufficiently confident that the Finnish Court of Appeal is more incompetent than the Occupational Health unit of a police service you used to serve with?  And that your own confidential data couldn’t be used in untoward processing?  Do you know whether your medical data relates to any 3rd party?

Murphy’s law comes into play here.  The adage that is typically stated as: Anything that can go wrong, will go wrong.  No public organisation is beyond making the same mistake as one of the highest Finnish court.  Indeed, given how often police HR departments cock things up and the frequency that the Police Injury Benefit Regulations are contravened there is a much higher probability that the HR department could lose and misuse such sensitive medical data.

Talking about the original ten year confidentially order (breached by the Court of Appeal) the EHCR stated plainly that:

the interference with the applicant’s private and family life which the contested orders entailed was thus subjected to important limitations and was accompanied by effective and adequate safeguards against abuse

We’ll repeat this again: There are no limitations and there are no safeguards provided by the Police Injury Benefit Regulations in relation to confidential medical records.  Why?  Because there is no mention of confidential medical records in the Regulations.

A police force asks for full medical records from birth because their default position is that the injury award grant was wrong.  And they want their double jeopardy.  They want to reduce their financial commitment and will gladly look for a medical incident when you were 11 years old to justify their malevolence.

Case law is quite clear in this matter.  Pollard, Turner and Laws all state the last decision is final.  There is no right for them to have any medical records.  The clock cannot be ‘turned back’.

Tell them this and refer them to this blog if the HR minion disagrees.

How would the HR minion react if they themselves, or close family members, were victims of such bullying and bureaucratic blundering?  You would hear their personal outcries of injustice in their own reaction to a public authority, decades after their own retirement, sending a missive demanding disclosure to their own full medical history.

Best they realise now that following ‘orders’ gives them no protection.  They should think very carefully before signing letters demanding things they have no legal justification to demand.

 

 

 

 

 

 

 

My medical records, not yours

iodpa medical records, selected medical practitioner
My medical records, not yours

“A good blog should be like a woman’s skirt; long enough to cover the subject and short enough to create interest.”
– A Facebook poster (knowingly misquoting Winston Churchill)

There are roughly 57,000,000 adults in the UK.  There are approximately 14,000 adults who are medically retired former police officers with injury awards.

There is no lawful authority to treat 0.000246% of the population any differently.  The Data Protection Act nor the GMC guidance do not have an exception saying their requirements don’t apply to those with an injury award.

Confidentiality and medical records

  • A doctor should gain a patient’s consent before disclosing information to a third party (and that includes a worker who is being examined only for a medical report)
  • The legal right to see a report in advance and withhold consent only applies to reports from a doctor who is treating them, but the GMC guidance makes it clear that this should apply to all medical reports
  • Before an employer asks an employee to go for a medical examination for any purpose they should notify the employee what the examination will entail and what the purpose is. The employee should be given the opportunity of challenging any such request if they feel it is unwarranted.
  • The doctor should confirm that the patient is aware of the implications of the examination and has consented. They should also advise them that they have the right to withdraw consent at any time.
  • There is no need for the full medical record, nor should information on any other conditions be disclosed unless directly relevant. If the employee is concerned over this they should raise it with the doctor and, if necessary, remind them of the GMC advice

Access to Medical Records

iodpa caselaw, medical records, police injury award, Regulation 37, Review, selected medical practitioner
Access to Medical Records

One of the most sacred principles of law is, that a written instrument must be construed upon the face of it, and that no parol evidence can be used for the purpose of inserting any words not therein contained.

– Sir R. Malins, V.-C, Inre Sayer’s Trusts (1868), L. R. 6 Eq. Ca. 321.

Let’s get one thing straight here, before we begin. For the benefit of any HR managers who do us the honour of reading our well-meant attempts to help steer them along lawful paths, and for the benefit of one Nicholas Wirz who appears to be attempting the opposite:

The Regulations are law, and it is not up to anyone to try to place upon them a meaning which is not there.  OK, that said, let’s get back onto the main topic.

There is a lot of sensitive personal detail in everyone’s medical records. For example there will be references to third parties such as family members, or notes about relationship problems or the termination of a pregnancy. The sort of information which is meant to be seen only by one’s own doctor. It is confidential.

Disabled former officers may not appreciate the implications if they agree to the release of their full medical records to an Occupational Health Department or to a SMP.  People do not tell things to a GP in confidence only for every little bit of information they give to end up being read by employees of a police force. Some doctors argue that if patients feel their entire records are routinely viewed by outsiders patients may decide not to reveal certain conditions to their GP.

We have a right to expect medical confidentiality so why should anyone be conned, coerced, bullied, or baffled into signing away that right?  But this is what happens to disabled former officers who mistakenly give in to vapid threats and sign away their rights, consenting to full disclosure of all medical records since birth.

Not even the Department of Work and Pensions has the power to routinely demand full medical records.  The DWP can only request reports as stated in this link DWP Medical (factual) Reports.

DWP and their assessment providers only request a report where it is needed and not in every case. The medical report you provide will then be considered when producing an assessment report.

NHS GPs are under a statutory obligation to provide certain information to a healthcare professional working on behalf of the DWP, in respect of patients that they have issued or refused to issue a statement, including a requirement to complete IB113/ESA113 reports.  This is implicitly defined in a parliamentary instrument, also known as secondary legislation, namely The Employment and Support Allowance Regulations 2013.  This Regulation refers to evidence provided in accordance with the Medical Evidence Regulations (which prescribe the form of doctor’s statement).

There is no legislation that permits the same disclosure to a police pension authority.  An injury award is not a benefit that has to be reapplied for – it is an entitlement for life and is in effect compensation for work-related injuries.

But despite this, every time a force attempts to review an injury on duty award, without fail they will send out a consent form demanding access to all your medical history.

We believe that, in some forces, this is no more than a ploy to replace records which have been lost or destroyed.

We also believe that any demand for access to medical records so as to process a review of degree of disablement is unenforceable.

We know of instances where former officers have made a request under the terms of the Data Protection Act for copies of all information relating to them held by their former force. They have been told, shockingly, that their occupational health file and other medical records have been destroyed, in line with the force’s retention policy.

‘Destroyed’ is, we suspect with good reason, to be a euphemism for ‘lost’.  All psychiatric/ surgical/ general-medicine consultant reports and other documents of some individuals have been lost by the force since their retirement.  When they joined, full medical records were made available to the force medical officer and if they have since lost them, why would anyone trust them to be responsible with them a second time?  Once bitten, twice shy.

More than this, why do they insist they have a right to any medical records?

You may be surprised to hear that there is nothing that permits them to have any; not partial, not full. None. Zero. Zip. Zilch. Nada.

Long ago and before the all-out corruption of the Regulations practiced by certain forces there was a time when, if a force medical officer had questions about a significant change in an IOD pensioner’s medical condition, they would order a bespoke report from individual’s own GP or specialist.

But Nicholas Wirz, Principal Solicitor of Northumbria Police wishes to change all this.  Amazingly, he thinks GPs are biased and advises SMPs to ignore the opinion of the pensioner’s own doctor.

This is an excerpt from Wirz’s January 2014 SMP training indoctrination course:

This can often be the case with reports produced by a treating physician in support of their patient. The patient may have a very strong desire to achieve a particular outcome (eg medical retirement; an injury award – or larger award; being found not permanently disabled if young in service etc). Applying the facts to the correct legal test may not support a conclusion supportive of the officer/pensioner. This places the treating physician in an invidious position.

Explicitly reaching a conclusion their patient does not desire risks destroying that particular doctor/patient relationship. A common occurrence is for the treating physician to “fudge” the issue. SMPs need to be alert to this and be able to argue why a particular report has not been accepted. Usually this will require an analysis of the correct test and where the report fails to appreciate this.

Wirz proclaims in his guidance to SMPs that all doctors will only tell their patients things that they want to hear, and that physicians commonly fudge the issue.  In other words, his view is that only the SMPs he ‘trains’ are the sole beacon of righteousness in a world full of misguided and fudge-prone doctors.

Hang on a moment. Back up a little and think about this goose and gander situation. What is sauce for one is sauce for the other. If it is OK for Wirz to say that all GPs and specialists can’t be trusted to be unbiased and impartial when writing a formal report on their patient’s condition, then surely it is OK for us to similarly point at all SMPs and say they can’t be trusted to be free of bias and partiality.

Who would you trust most to be truthful and impartial? Your hard working GP, trusted by parliament to issue medical reports to the DWP, embedded in the local community, with years of accumulated trust and confidence stored in their account, or a hired hand, a doctor who comes via his own private limited company with a contract through another private limited company to supply ‘medical services’ to a police force?

This post from February 2015 displays clearly how SMPs inplementing Wirz’s doctrine collude together to persuade themselves that GPs are not to be trusted and that any failure to disclose full medical records is an attempt to conceal from them facts that they can unlawfully use to reapportion or revisit causation – page 2 of the pdf is truly shocking: When SMPs Attack

Wirz continues with his claim that the SMP must demand full access to medical records, despite the fact (conceded in his own words) that the Regulations do not speak of medical records – only medical examination. It seems that in his delusional world a medical examination does not count if the SMP is not able to have prior sight of whatever medical records he demands.

So, if you are unfortunate enough to be knocked down by a number nine bus, does the doctor who arrives by helicopter to treat you at the scene first demand that your full medical records are made available? Why should a SMP need to see that you had measles when you were eight years old, or indeed any medical record which pre-dates the time of the last final decision on degree of disablement? In either scenario, a traffic accident or a review, what the doctor sees before them is what the doctor gets. Sure, they can ask for information, and the individual can chose whether to give it, but there is no way that any doctor can demand information.

Come off it Wirz. A SMP has no need of a full medical history to determine whether there has been any alteration in degree of disablement. If he needs an expert opinion, then he has only to ask the individual’s own GP or specialist for a report.

Wirz offers these words of wisdom to SMPs:

An officer/pensioner who elects not to take a step the SMP considers necessary risks the process being concluded by management: on the grounds that the election amounts to a failure:

“..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.”

Where the PPA reaches this conclusion it,:

“.may make its determination on such evidence and medical advice as they in their discretion think necessary.”

Even though the Regulations refer to medical examination and interviews, the provisions have no meaning unless included in those terms are the necessary preparatory steps before those events can take place. A medical examination would be largely meaningless without, eg, prior sight of the relevant medical records. If the SMP considers a step “necessary” then the SMP should direct the officer/pensioner to take it.

This orthodoxy from the book of Wirz is fed SMPs, who foolishly emboldened with the utter tripe that is Wirz’s speciality dish of every day, are now routinely demanding full medical notes from birth.

The trouble for Wirz is that there is in fact no onus on the pensioner to prove that their medical condition has or has not changed.  The last final decision is a given and is the starting point from which the SMP must make the assessment. When a police pension authority tasks a SMP to determine whether there has been any alteration in degree of disablement, the burden of proof rests solely on the police pension authority, via the SMP.

The SMP can’t begin the task by assuming there is substantial change and then asking the pensioner to prove, by submitting medical records, why there hasn’t been. That would be coming at the task from the wrong direction. It would be illogical.

Wirz has taken the words contained in the Police Injury benefit Regulations and has performed with them nothing less than reverse alchemy, turning gold into manure.

The literal rule of statutory interpretation should be the first rule applied by anyone referring to the Regulations. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without seeking to put a gloss on the words or seek to make sense of the statute.

The Regulations state that the pensioner can face only a medical examination. They contain nothing about SMPs trawling through medical records. It is wrong for Wirz to try to insinuate that the provision has no meaning unless full medical records are released.

Medical records are no small thing.  They are intrinsically confidential and a SMP has the same obligations under their regulator (the GMC) and by statute to act impartially and ethically as do the treating clinicians that so often are (according to Wirz) so eager to ‘fudge’ their reports.

The Regulations do not prescribe exactly how a police pension authority or a duly qualified medical practitioner acting on behalf of a police pension authority should set about any consideration but, using the literal rule, if the Regulations required the submission of ANY medical records it would explicitly state as such.   Of course, there is no such mention.

Moreover, any actions taken by a police pension authority or anyone acting on its behalf must comply with the Data Protection Act, the Human Rights Act and all relevant parts of administrative law.  This includes Data Protection Act 1998 – Schedule 1, Part 1, Principle 5. Wherein it is stated that,

‘Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes’. 

We may well ask then, why do forces think they can hold on to sensitive personal information, including medical records, which has been processed at some point for some purpose, and has then remained unused for years?

And what is the situation should an individual refuse to accede to a demand that access is given to medical records held by their GP?

The Regulations say this:

Refusal to be medically examined

33.If a question is referred to a medical authority under regulation 30, 31 or 32 and the 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—

(a) if the question arises otherwise than on an appeal to a board of medical referees, the police authority may make their determination on such evidence and medical advice as they in their discretion think necessary;

 (b) if the question arises on an appeal to a board of medical referees, the appeal shall be deemed to be withdrawn.

From this Regulation it is clear that a police pension authority, after a suitable interval and after consideration of the possibility of alteration to the medical condition, has the right to request an individual to subject himself to a medical examination or interview, but has no power to command it.

Note well  – there is no penalty for wilful or negligent non-cooperation. If the police pension authority decides to continue in the face of willfull or negligent non-cooperation then it is permitted to make a decision on such evidence as is available.

Any such decision would need to be rational – that is based on facts, and not punitive. There is no power for a police pension authority to reduce or suspend any injury pension in such circumstances. Such action would be unlawful.

There is nothing that expressively permits a police pension authority or SMP the right to demand that an individual agrees to allowing access to any medical records.

Since the appeal case of Belinda Laws in 2010, those subjected to a review have generally allowed the release of partial notes since the last decision.  Despite pressure from their HR department  those in the know have refused consent for the SMP to access full medical records and only agree to release of those from the time of the last review.

But if you consider that the Regulations do not refer to any medical records at all, then arguably no medical records need be disclosed at all.

This is not wilful, nor is it negligent. Rather, this is a considered and advised decision based on compelling legal knowledge that the Regulations do not permit the SMP to have sight of such records.

It may not be ideal, but that’s the law. We don’t advocate non-cooperation as a tactic, but we do suggest that disabled former officers should be very selective about what medical information, or any other personal information, they chose to divulge to the police pension authority or the SMP. Just because someone asks you for information does not mean they are entitled to it, or that you are obliged to give it.

As former Police Officers there were many times we would have liked to have had access to additional personal information on individuals but the law prohibited it.  This was to protect miscarriages of justice and to protect an individual’s rights to privacy.

When in doubt about why any information is requested, or what use will be made of it, the question to ask the SMP is for them to quote the Act and Section of any legislation which they think grants them permission to obtain sensitive personal information.

It is clear that Wirz, just like Grima ‘Wormtongue’ in the Lord of the Rings, uses words formed as his twisted corruption of the Regulations to manipulate people to nefarious ends. Fooling people by using devious and unscrupulous tactics to obtain irrelevant information is unethical and immoral, and it is certainly harmful to health.

The current Regulations do not serve the purposes suggested by Wirz and can only be interpreted literally and thus it would appear that individuals such as the SMPs who follow the book of Wirz are willing to operate outside the law to achieve their goals.

Unless you want to be reviewed or are currently applying for an award in the first instance you have the option to say no – tell them consent to any medical records is refused and revoked.  Even if you are applying for an award or need to evidence substantial worsening of your medical condition at a review and wish to clearly evidence your index injury, think very, very carefully about disclosing information prior to your injury occurring. Any disclosure has to be relevant to the matter in hand.  A recent, pertinent expert specialist clinical report carries more weight than you suffering from measles at 3 years of age.

No doubt there could be a backlash from the more idiotic of the pension authorities.  You may receive threatening letters from SMPs, Directors of HR and staff officers or even the Chief Constable demanding that you do what they say.  ‘Who are you go argue with us?’,you’ll hear them shout.  But remember these people have never taken the time to read and understand the Regulations and the case-law built around them.

If you are in any doubt then ask the police pension authority the question:

As nothing can be more mischievous than the attempt to wrest words from their proper and legal meaning, will you please explain to me how can a medical examination be interpreted as giving you, yet again, authority to demand access to full or partial medical notes?