Recording Reviews
There are some things one remembers even though they may never have happened.
In an earlier blog, we highlighted some of the barriers which stand in the way of justice for disabled former officers in receipt of an injury pension, and serving officers seeking to retire due to injury on duty or disabling ill health.
We commented on how individuals are effectively prevented from securing their pension rights.
The system seems loaded against them due to the scarcity of information, support and professional representation. IODPA reaches out to those who would otherwise not secure their pension rights and in so doing we learn about and witness first hand the deficiencies of some of the doctors who are asked to provide medical assessments on behalf of police pension authorities.
One aspect of these assessments which our members have highlighted is the matter of the reports which these ‘selected medical practitioners’ (SMPs) produce. All too often they seem to bear little resemblance to what was said and done during the assessment.
The upsetting experience of one of our members might illustrate what we mean.
An injury on duty pensioner was being assessed by a SMP for the purpose of determining whether there had been any alteration in his degree of disablement.
The SMP referred the pensioner to a consultant neuropsychiatrist, who saw him some little time later. The pensioner had his wife present throughout the assessment. He was asked some questions about alcohol consumption, and the pensioner stated that he, together with his wife, drank three bottles of wine a week.
When the consultant’s report was issued, the pensioner, and his wife, were shocked to see that the consultant had written that he drank three bottles of wine a day and believed he should be categorised as presenting with ‘Harmful use of Alcohol’. The consultant went on to comment that he should reduce his alcohol consumption and be prescribed thiamine – a drug given to alcoholics to help reduce vitamin deficiency.
It was bad enough that the consultant, who was not entitled to make any recommendations, or even comments on treatment, did just that, but worse was yet to come, for the error was not corrected.
When the pensioner pointed out the error to the consultant and asked for her report to be amended, the consultant refused to do so. Thus this error, which essentially labels a sober man an alcoholic, has remained on file.
The point of this illustration is that, if the assessment had been recorded, then the error would have been revealed in evidential form and would have been corrected, either by agreement, or by compulsion through legal proceedings.
You might think it only common sense that medical assessments and interviews held in connection with police pension rights should be routinely recorded. That the doctors concerned be supplied with proper recording equipment, which produced a simultaneous copy for the medic and for the individual.
However, that is not the case, and is likely to remain the situation. Not least because some SMPs have voiced opposition to any form of recording of their sessions. Some have gone so far as attempting to stop individuals from making their own recording of the assessment or interview. We will comment on that situation below.
In our earlier blog we produced figures on the number of appeals made to Police Medical Appeal Boards concerning pension matters. For an appeal to be arranged, a police pension authority must accept that there is reason to believe an error of fact or law was made – by a SMP or by a police pension authority.
We believe that the number of appeals heard cast only a glimmer of light into the darkest of corners. It is entirely probable there are many more errors which have not been revealed and have not been challenged.
Of course, it is not only SMPs and consultants who can have faulty recollection. A study [1] revealed that patients only retain between 40% and 80% of what their doctor has told them during a consultation. It is not hard to understand that former officers with mental injury, placed under the huge stress of a medical examination and interview, the results of which will determine the amount of their pension, might find it even harder to recollect much of what went on.
It is partly for that reason IODPA recommends members always have someone with them during any process concerning their pensions.
We are aware of instances though, where certain SMPs have objected to anyone other than the individual being privy to what is said and done. Happily, the General Medical Council (GMC) has advised that doctors should not raise any objections to a friend being present.
Looking at the wider picture, it would be better all round if there were fewer appeals. There would be less stress and financial uncertainty for the individuals and less cost for forces. To achieve a reduction in appeals, however, there would need to be a decrease in errors, and we think that is unlikely to come to pass, given the fact that, by all the accounts we receive, SMPs and police pension authorities are, shall we say, rather prone to committing errors.
Errors should be corrected without the need for appeal to a PMAB. The Police (Injury Benefit) Regulation 2006 make that very clear, for regulation 32, parts (2) and (3) makes provision for SMP’s to be asked to reconsider any decision.
A reconsideration is an opportunity for the SMP to be made aware of any errors of fact or law, and to correct them. But, before an individual can bring such matters to the attention of a police pension authority and request a reconsideration the errors need to be identified.
IODPA therefore advocates that anyone who attends a medical interview or examination by a SMP, or any other doctor to whom they have been referred to by a SMP, should not only insist they are accompanied throughout by a friend, but should also make a recording of the entire event, and should do so openly.
We advise that the doctor be told the session is being recorded.
If any doctor objects, then the objection should be acknowledged and the doctor told they have no legal power to prevent the recording.
Doctors should have no cause to object, for a recording is as much a protection for them as is it is to the individual.
Recording is lawful because you are only processing your own personal information and are therefore exempt from data protection principles.
The recording remains the property of the individual, who may well find it could be admitted as evidence should they decide to appeal any decision made by the SMP, or if matters go to an industrial tribunal or judicial review. The GMC will also likely accept the recording as evidence in any complaint proceedings against a doctor.
A little bird has told us that a certain SMP thinks that they have the authority to ban individuals from making recordings of medical interviews and examinations.
That SMP is wrong.
Expert police pension solicitor Mark Lake advises on the argument that a recording, covert or otherwise, may not be admissible in legal proceedings:
I do not think such an argument can possibly succeed for 2 reasons. First, the SMP is acting as a public law decision maker in this interview and not as a treating doctor.
Second, any confidentiality in the consultation belongs to the patient and not the doctor.
Although a SMP may be considered to act in a quasi-judicial way, that is solely because any decisions made are binding unless appealed. By decisions we mean only those a SMP is tasked to make under the Regulations. A SMP is not a judge and does not have the powers of a court.
Essentially a medical interview or examination for pension purposes under the Regulations is just that – a doctor’s consultation with a person who they must respect as having the status of patient. The doctor must abide by the ethics of their profession and also with the law, with particular regard to the Access to Medical Reports Act 1988 and the General Data Protection Regulations.
Is the view of IODPA on the recording of these sessions a lone one? It seems not, for we can turn to the combined wisdom of the General Medical Council and to the Medical Defence Union, the Medical Protection Society and the Medical and Dental Defence Union of Scotland for their opinions.
All of these organisations recommend that doctors raise no objections to a patient recoding any interaction with them.
The GMC has confirmed there exists a doctor/patient relationship when a doctor is conducting a medical examination or interview for an employer or pension scheme manager. SMPs are obliged to follow GMC guidelines and advice, as failure to do so opens the door to civil claims and to complaints to the GMC.
In its guidance on good medical practice, the GMC states:
You must give patients the information they want or need to know in a way they can understand. You should make sure that arrangements are made, wherever possible, to meet patients’ language and communication needs.
Clearly, this is an endorsement of patients making recordings, which allow them to obtain the information they need in a form which enables considered analysis of the information.
The Medical Defence Union offered its opinion in its publication ‘Good Practice’ [2] The article says:
By recording a consultation to listen to again later, patients are less likely to miss something important.
And;
It would be a mistake to think they are trying to catch you out or that a complaint or claim will inevitably follow. If you are concerned that the patient’s actions are a sign they do not trust you, you may want to discuss this with them at a later date, but recording a consultation is not itself sufficient reason to end your professional relationship with them.
The Medical Protection Society gave its opinion in its publication ‘Practice Matters’ [3] The article says:
A recording would potentially provide even more detail to support the doctor’s professional position. There should be no reason therefore why you should have anything to fear from such a recording.
And;
A patient does not require your permission to record a consultation. The content of the recording is
confidential to the patient, not the doctor so the patient can do what they wish with it. This could include disclosing it to third parties, or even posting the recording on the internet.
In a press release dated 2nd July 2015 [4], the Medical and Dental Defence Union of Scotland stated:
In an ideal world, patients would not feel the need to covertly record a consultation and would be open about it, says Dr Peddie, however, doctors should not necessarily feel threatened when they become aware of a recording. Indeed, a recording may be helpful in avoiding misunderstandings.
So there we have it. Recording of medical interviews and examinations for any purpose concerning pensions or ill health retirement is lawful, and is encouraged by doctor’s professional organisations.
SMPs should take careful note of this and accept that an accurate record is essential to ensure errors of law or fact can be revealed and dealt with without the need to take matters to a PMAB.
As for PMABs, then IODPA urges the Home Office to make provision for official recording of everything said and done during an appeal hearing and to advise PMABs not to obstruct appellants or their legal representatives who wish to make recordings.
[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC539473/ – Journal of the Royal Society of Medicine, 2003
[2] https://www.themdu.com/guidance-and-advice/journals/good-practice-june-2014/patients-recording-consultations – Good Practice June 2014
[3] https://www.medicalprotection.org/docs/default-source/pdfs/uk-practice-matters/practice-matters-oct-2014.pdf – Practice Matters, Volume 2, Issue 3, page 6, 2014
[4] https://www.mddus.com/about-us/media-centre/2015/july/doctors-should-not-fear-covert-recording –
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