smp

Do SMPs Put Their Patients First?

IODPA Admin smp
Do SMPs Put Their Patients First?

No man has a good enough memory to be a successful liar
— Abraham Lincoln

In our previous blog we looked at some serious misconceptions which have been implanted in the minds of SMPs. Now we need to focus some more on the shortcomings of certain SMPs.

For new readers, we first need to explain that the Police (Injury Benefit) Regulations 2006, govern a compensation scheme which grants pensions to officers injured and disabled in the line of duty who, as a result, have to leave the police service. The Regulations require the scheme managers to appoint a ‘duly qualified medical practitioner’ to decide certain medical questions. Usually, the medical professional is a doctor registered with the General Medical Council. The doctor, once appointed, is generally referred to as the Selected Medical Practitioner, or (‘SMP’)

We made the important point in the last blog that SMPs are nearly all doctors who have made a living not from healing and caring, but from finding work in the field of occupational medicine, formerly known as industrial medicine, where they spend their days concerned with the maintenance of health in the workplace, including prevention and treatment of diseases and injuries, with secondary objectives of maintaining and increasing productivity and social adjustment in the workplace.

Some SMPs have been misdirected over the nature and extent of their role within the Regulations. However, we do acknowledge that not all SMPs have been tainted by what can only be described as, pardon the pun, ‘indoctrination.’

We applaud all honest and decent SMPs, and members of HR and Occupational Health departments in those forces where they have ignored or dismissed the nonsense touted by a small handful of people whose disreputable motivations are tinged with biased.

It needs to be made clear that all medical interviews and examinations conducted by SMPs are of damaged people. Every officer or former officer they see will have suffered potentially life changing physical or mental injury. Many will have suffered both physical and mental damage. They deserve to be approached with kindness and understanding. Qualities which are entirely lacking in some SMPs.

The man on the Clapham omnibus would be forgiven for thinking that scheme managers and SMPs  would make their prime responsibility the welfare of the officer or former officer. Shamefully, that is generally not the case.

For example, we hear frequently of the complete lack of any regard to the both the practical and psychological difficulties faced by officers and former officers when called to attend a medical examination or interview. It’s not hard to wonder at the unthinking attitude of any force which apparently sees nothing amiss in arranging for these SMP sessions to take place on police premises.

This should be the last place a traumatised individual should be asked to visit. This choice of venue is guaranteed to increase the risk of triggering flashbacks in PTSD sufferers, and inevitably gives the impression of an intention to control and dominate events. The oppressive nature of this arrangement illustrates the unhelpful attitude we see in some forces, where injured, disabled former officers are seen only as a drain on resources, Although they have left the force, are no longer employees, some forces deal with them as though they were.

Instead of being politely asked to attend a SMP session, they are often, ‘advised an appointment has been arranged’. No consideration given as to whether the place or the time, or the travelling to and from might be inconvenient or difficult for the individual.

IODPA believes that all SMP sessions should be held on neutral territory, preferably a medical facility, properly designed and equipped to cater for the needs of disabled people. SMP appointments should be made at a time and place convenient to the individual, not arranged entirely for the convenience of the force or the SMP.

Returning to misconceptions, one which some SMPs have acquired is thinking that they can lay down rules about how a medical interview and/or examination by them shall take place.

We have heard much about the unpleasant and coercive practice whereby the SMP asks the disabled person to complete a sort of customer satisfaction survey. No, you can’t take it with you to complete and send it. You must do it now, and no, you can’t have a copy. Complete it before I commence my examination and interview and if you don’t then I may not be able to proceed.

Coercive behaviour of that nature is unbecoming of any medical professional.

We have heard of SMPs who are never more happy than when their decisions are appealed. They can sit back and let the force’s legal department take over whilst they look forward to another fat fee for attending the appeal hearing. At the going rate for SMP services of a minimum of £250 an hour, that is as shady dealer Arthur Daley would say, ‘A nice little earner.’

We frequently are told of SMPs reports which bear little to no relation to what was said and done during an examination or interview. In the most extreme examples an SMP has told the pensioner that the decision will be no alteration in disablement, and hence no reduction in pension payments, only for the SMP’s report to show otherwise.

We have heard of venues where ‘security cameras’ capture the arrival of the disabled individual and follow their progress right into the room where the examination/interview is to take place. Whilst capturing video for security purposes is acceptable, it is not at all acceptable for an SMP to then view the footage to see how the disabled person arrives, whether they come by car, and what make and model of car, and whether they drive or not, or how they manage the stairs, opening doors, how they walk, etc. All done without the individuals knowledge or consent, and with a view to taking these observations into consideration when making a medical decision.

Mention of video recording leads us naturally into what has been a contentious issue, and the cause of much distress to disabled officers and former officers who are assessed by a SMP. The Regulations do not set out anything about audio or video recording. Nor do they grant any power whatever to SMPs to allow them to ban recording by the individual.

No honest SMP would see any reason to object to recording. Those who have objected can only have done with one objective in mind, and that is to prevent an accurate record of proceedings being made, so their version of events can not be successfully challenged.

We also hear, too frequently, of SMPs who either downright refuse or strongly object to the disabled individual having a friend, supporter, or carer present during the examination/interview. This of course gives rise to justified suspicion that the SMP wishes to place the individual at a disadvantage whilst also ensuring that there is no witness to the proceedings who might later dispute the SMP’s version of what was said and done.

Needless to say, the GMC and other medical professionals’ organisations advise all doctors conducting any professional interaction with individuals to allow a friend, carer or chaperone to be present if the patient so wishes.

And it is the use of the term ‘patient’ which some SMPs think gives them wriggle-room to behave in ways that contravene GMC guidelines. They claim that the individual is not their patient, so the guidelines don’t apply. In thinking this they are sorely mistaken and IODPA advises all its members and any non-members reading this that no SMP can refuse the individual having a friend, carer, supporter, or even a legal representative present.

It is frankly indicative of their combative mind-set that some SMPs would even dream of trying to refuse or object to the presence of a companion. Due variously to misinformation, lack of information, deficient expertise, even natural inclination, some SMPs see themselves as protectors of their force’s budgets. They are on a mission to seek out every little opportunity to find a reason however flimsy, however inventive, or however fly-in-the-face of the facts it is, to come to a decision which results in a reduction of benefits due.

In a blog published last year – https://iodpa.org/2018/07/03/recordingreviews we said:

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 SMP is supposed to be an independent medical expert whose role is to weigh all the medical evidence lawfully available in a truly disinterested manner. It should not be any concern of the SMP whether any decision they make results in financial advantage or disadvantage to the individual. Their responsibility is to the Regulations, which require them to make a decision, and by clear inference to make that decision free of bias, and with due consideration of all relevant factors, with the exclusion of irrelevant factors.

Presently, that is not happening universally. In plain terms, there is a whole lot of dodgy behaviour going on, both with some SMPs and with some HR and Occupational Health staff. In the worst cases the corruption has spread to the top of the tree.

For the sake of all that is decent, for the sake of the reputation of the medical profession, for the sake of the health and well being of disabled officers and former officers, this must stop.

Police Medical Appeal Boards

IODPA Admin pmab, smp
Police Medical Appeal Boards

Access to justice is a fundamental requirement for the rule of law, by which people have their voice heard, exercise their rights, challenge discrimination, and hold decision makers to account.

― The Law Society

 

We are going to talk about Police Medical Appeal Boards.

The British legal system is often said to be the envy of the World. In the criminal justice system an accused person is assumed to be innocent until proved guilty. The proof of guilt is a high one. Whoever is tasked with deciding guilt is proved must arrive at a finding of guilt beyond all reasonable doubt.

Even when found guilty, a person can usually appeal the decision, providing there are some good grounds for believing the decision was in some way flawed.

These two principles apply to most other forms of hearing, such as disciplinary hearings, employment dismissals, grant of a licence, state benefit decisions and right down to parking fines.

So too with decisions made by a police pension authority and by medical professionals acting for the police pension authority.

Anyone who has been reading the blogs on this site will be under no illusion that police pension authorities and their ‘selected medical practitioners’ (SMPs) have a remarkable talent for making decisions which are unsound and eminently suitable for appeal.

So, how many unsound decisions are being made?

Unfortunately, it is impossible to say with certainty, for decisions made by police pension authorities and their SMPs are not subject to any oversight whatever. Unlike in a court of law there is usually no person present who represents the officer or former officer. Nobody to spot the mistakes, or to make at-the-time objections. Nobody to review the decision once made, to examine it for factual accuracy and legal compliance.

IODPA exists to offer advice and support to any former officer who has concerns over their injury pension and we applaud the good work of all local NARPO’s and the Federation where they are able to guide individuals through the tribulations of ill health retirement or the trauma of a review of degree of disablement.

Worse, where the decisions are being made concern disabled former officers who were injured on duty, the individuals subject of the decisions are, we have good reason to say, almost always totally unaware of the police injury pension regulations and thus have no way of knowing whether the process of decision making, or the decision itself is flawed. What greater disservice could there be to officers injured in the line of duty than to leave them unaware of their pension rights and without any support to help ensure they receive the benefits they are due..

Police Forces themselves universally stay clear of offering any advice or assistance – and we can understand their reasons for doing this, but suspect their reasons are not always grounded in concerns to remain impartial. The best any individual can hope for is a brief few lines mentioning NARPO or the Federation and the availability of appeal to a PMAB.

Despite this sorry situation, some individuals must feel so aggrieved by a decision they decide to appeal.

We should bear in mind that decisions made by a SMP are medical ones. That is, they are nothing more than a medical opinion. In that sense, they can rarely be arrived at beyond all reasonable doubt, for diagnosis is not an exact science. Where the decision contains elements of prognosis we depart rapidly a great distance away from certainty, for prognosis is entirely speculative and uncertain.

A PMAB is composed of a panel of three doctors, one of whom must be a specialist in the field of medicine most relevant to the duty injury or injuries of the appellant. The rationale is that only other doctors can offer an opinion contrary to that of a SMP.

When a disabled former officer arrives at a PMAB hearing they are often as poorly prepared as they were in the earlier stages of life as a disabled person. Only those who have secured assistance from IODPA or from the Federation will have anyone to represent them and to look out for their best interests. Pensioners are at the mercy of the Board, and of the arguably fallible SMP, who will inevitably be at the hearing.

Pensioners will also find that their pension authority is represented by a solicitor, or even a barrister, though sometimes they rely on the cheaper services of a self-styled pensions expert or someone from the force’s HR or Occupational Health Department.

It is a testament to the firmness of purpose of the few pensioners who do have the will and the ability to negotiate the many barriers put in their way to getting justice, that there are any appeals at all. IODPA is all too well aware that for the vast majority of individuals the barriers are too daunting a prospect. They have to accept the decisions made, for their circumstances are such they have no hope whatever of taking matters to appeal. For some, the trauma and stress would do so much harm to their delicate health they fear to seek justice.

So, given that, for now, we don’t know how many decisions made by police pension authorities and SMPs have been flawed, and thus susceptible to challenge, how many PMABs have actually been held in recent times?

A freedom of information request – https://www.whatdotheyknow.com/request/smp_police_medical_appeal_boards – made by a Lily Nightingale, which may or may not be the same Lily Nightingale who is an SMP, has revealed this:

  • In 2014 there were 66 appeals heard, of which 23 were upheld, and 43 rejected.
  • In 2015 there were 93 appeals heard, of which 24 were upheld and 69 rejected,
  • In 2016 there were 119 appeals heard, of which 94 were upheld and 67 rejected.
  • In 2017, there were 94 appeals heard, of which 35 were upheld and 59 rejected.
  • In the first quarter of 2018 there were 20 appeals heard, of which 10 were upheld and 10 rejected.

From those figures we can calculate some percentages.

  • In 2014 65.15% of appeals were rejected
  • In 2015 74.19% of appeals were rejected
  • In 2016 56.30% of appeals were rejected
  • In 2017 62.76% of appeals were rejected
  • In 2018 50% of appeals were rejected
  • Overall, 63.26% of all appeals were rejected

If we are to search for reasons why more appeals are rejected than succeed, then more research would be needed. We can theorise that one reason may be that doctors are reluctant to disagree with an opinion of a fellow medical professional. Another may be that where appeals were rejected the individual was not represented or poorly represented.

Given that we know decisions made by PMABs do get challenged successfully by way of judicial review or by complaint to the Pensions Ombudsman, we can also consider it is possible the medical people who form the Boards may lack the legal knowledge necessary to ensure they arrive at decisions which are not biased or arrived at by consideration of irrelevant factors, or by dismissing or ignoring relevant factors.

Unlike the criminal justice system, the appeals concerning matters arising from the Police (Injury  Benefit) Regulations 2006 are heard by a panel selected by and trained by a for-profit commercial company. The doctors who sit on the PMABs are paid a fee, as are the SMPs who attend and whose decisions are being challenged. Representatives of the police pension authority are likewise paid a fee or are on a salary from their police force.

The appellants, in contrast, have no financial assistance save the few who manage to secure some from the Federation. On those grounds alone, the appeal system is weighted in favour of the police pension authorities, who think nothing of spending public money defending their actions.

Appellants are not accused of any crime, yet they seem to have far fewer rights, and lesser safeguards ensuring fairness, than any common criminal. Far too frequently the system as currently established is effective in denying them their pension rights and blocking any paths to the possibility of redress.

The freedom of information request supplies a list of names, of the SMPs whose decisions were being appealed. Not too much can be read into this, as there are not many doctors willing to debase their profession by taking on SMP work. However, even though the likes of Drs William Cheng, Ralph Sampson, David Bulpitt, Johnathan Broome, and, yes, Lily Nightingale appear frequently on the list of appeals via PMAB, it might be preferable to contemplate which SMPs names are consistently absent from the list.

In a well ordered system there would be no need for appeals. But until there is reform PMABs will remain a stain on the enshrined principles of justice. Until justice can be made freely accessible to vulnerable disabled former officers there is no certainty of justice being found. Until vulnerable disabled former officers can know themselves supported and properly advised and represented throughout all stages of ill health retirement and reviews of degree of disablement then the ill-disposed, the ignorant or misinformed, the lazy and the incompetent who administer the systems within which injustice is allowed to flourish will ensure a steady flow of appeals.

Whilst all those who either do not know they have been victims of injustice and all those who do suspect but are unable to do anything about it will continue to suffer injustice unseen and unheard.

Buzzwords Bingo

iodpa HR, smp
Buzzwords Bingo

Bullshit Bingo

A game that can be played in large meetings. The players write down management-nonsense word like “Out-of-the-box-thinking”, “Synergy”, “Content streamlining” etc. in a 5 by 5 square bingo card.

If a word or phrase is used during the meeting you check the box. When you get a five box line (horizontally, vertically or diagonally) you shout “BULLSHIT!” and win.

-Company Bigshot Fancypants: “And that is why this merger is going to benefit shareholder value by creating value driven content.”

-Eager But Dim Employee: “BULLSHIT BINGO!”

-Company Bigshot Fancypants: “You’re fired!”

It wasn’t long ago that Avon & Somerset HR employees stated in a meeting that their ‘procedures’ weren’t aligned with the Regulations.

I think they meant to say that they knew they were breaking the law.

On learning of that remark, IODPA dared to think for a moment that the ignorant had become a bit more enlightened. We were mildly excited. We were prepared to ignore the fact that the remark was good enough for a Bullshit Bingo award, and concentrated on its meaning rather than its delivery. We knew there was a still a lot of work for HR and their string-pullers to do – we’re worldly-wise and know how HR types operate – but we thought we saw the first faint flicker of light on the horizon.

Oh, but how we underestimated the force’s capacity to continue to muck things up.

Our internal source (God/Allah bless him/her) has informed us that the force is about to send out final reports for some of those under review.  Remember these are the ones Dr Johnson has been ‘contemplating’ since May 2014.

When those reports finally end up on the doormat of the IODs the mistakes will bound to be numerous. In the spirit of Bullshit Bingo here is a list of errors only the truly ignorant can make – all of which are usually and inevitably wrapped up in phrases carefully intended to obscure rather than elucidate.

As Johnson’s reports arrive, let’s count how many times these errors are contained therein:

  • Fresh assessment.

Everyone’s most unfavoured cock up. This error occurs when the SMP oversteps the mark and starts from scratch to assess and quantify degree of disablement. There are many ways to make this fundamental error, but the most frequent ploy is where HR gives the SMP a list of jobs and wages and the SMP compares the speculative, future, income that might result if the pensioner, say, moved to Aberdeen and became a lecturer in quantum physics, with either what he or she earned as a police officer, or what the average wages were seven years ago for the entire population of the UK, as set out in the NAE index.

OI! YOU! SMP! DON’T YOU UNDERSTAND YOUR JOB

IS ONLY TO CONSIDER SUBSTANTIAL CHANGE!

Not being able to read the notes of a doctor who retired someone 15 years ago is not a free pass to start again on someone. There is no excuse for this error, and, trust us, this will go to the High Court at some point.

Oh! hang on a minute. This was already decided – back in 2003, in the case of Crocker:

‘The task, in my judgment, in assessing earning capacity is to assess what the interested party is capable of doing and thus capable of earning. It is not a labour market assessment, or an assessment of whether somebody would actually pay him to do what he is capable of doing, whether or not in competition with other workers.’

The Judge’s binding opinion, which has never been challenged or amended, relates to the initial grant of an injury pension. At review, therefore, the SMP can not do what is prohibited when the pension was first granted. That would not only amount to a fresh assessment, from scratch, but a fresh assessment using an unlawful approach. Double whammy.

And as a footnote to this error, SMP, (and HR please take note) The National Average Earnings (NAE) Index stopped being a National Statistic in January 2010. The Office of National Statistics continued to publish this index until September 2010. Indices were published two months in arrears so the last index that was a National Statistic was that for October 2009 and the final index ever published was for July 2010.

The Average Weekly Earnings (AWE) measure was accredited as a National Statistic in January 2010 and, consequently, it replaced the National Average Earnings Index as the headline measure of earnings growth in the UK.

So, please do tell – where, exactly have you been getting these figures which you claim are from the NAE Index?

How much case law is there which states clearly that apportionment cannot be reapplied?.  Has any SMP actually bothered to read the most helpful body of case law which has accumulated?  Evidently not.

  • The straw that broke the camel’s back.

It doesn’t matter what causes the degeneration of a duty injury.  If the index injury has progressively got worse a SMP can’t mitigate the reason why it’s got worse by ascribing the whole or part of the degeneration to a specific non-duty cause in order to try to reduce the banding.

A spinal disc compression sustained in dealing with a riot whilst on duty 20 years ago, which has become more severely damaged because a young child was lifted 5 years ago?  This doesn’t mean you can reduce the band !!!

Degeneration of the index injury is just that – a worsening of the index injury.  Where does this illogical SMP train of thought stop?  Is age not allowed to be a reason for the degeneration?  Without the original injury, age & time would not have caused the disablement in the first place.

  • Disagreement with the diagnosis.

The last previous decision is a given. It is a final decision.  Simples.  What makes the SMP think he can say he disagrees with it? Apart from ignorance, a complete lack of professionalism and one eye on his pay-cheque, that is.

  • The SMP reporting there is no change to degree of disablement and then changing the % degree of disablement.

Yes, they do this. Unbelievably. They consider substantial change, find there is none and then provide a new figure of degree of disablement.  So you are a band 4 on 76-100% and there is no change?  So now Dr Johnson says you are 85% or 90%, or any other figure in the 76 to 100 percent range that takes his fancy. Plucked out of thin air with no stated reasoning to support it. Just because the last SMP gave a range instead of an exact figure does not mean you can now give an exact figure.  No change means just that – no change.

In fact, it seems obvious that the SMP has not realised the Regulations do NOT intend, or allow degree of disablement to be stated as a precise percentage. Perhaps HR and the SMP have also not bothered to read what eminent QC Scoffield wrote in his report to the Northern Ireland Policing Board recently?

‘However, there is nothing in the Regulations which specifically requires an SMP to give a percentage figure in any individual case. Their obligation under regulation 29(2) is to give a decision on “the degree of the person’s disablement”, which could just as easily mean a decision as to whether the disablement is slight, minor, major or very severe. Regulation 29 could have been drafted to indicate that the medical authority had to specify a precise percentage disablement; but it is not.

As I have also noted in Chapter 1, the calculation of a precise percentage figure is also an exercise with which the SMPs are not terribly comfortable, involving, as it does, something of an accountancy exercise. Indeed, the fact that the degree of a person’s disablement is a “medical question” under regulation 29 of the 2006 Regulations may also suggest that (what I have referred to as) the mathematical approach is not the correct way of determining degree of disablement under the Regulations; but that, rather, it is a broad judgment to be made by a clinician about the effect of the injury or condition he has examined in contrast to a much more detailed calculation based on earnings data.’

  • Suggesting treatment.

Remember, if you are capable of remembering , SMP, this is really for you what should be point number one. Please feel free to print it out in large type and pin it on your wall next to your insubstantial certificates of qualification. It is worth more than any of them:

YOUR JOB IS ONLY TO CONSIDER SUBSTANTIAL CHANGE!

You have no jurisdiction to say a pensioner should see a consultant cardiologist, psychologist, psychiatrist, clinical nuerophysiologist, urlogist, gynaecologist, or any other ologist to cure all their ills. Not only are you unlawfully altering a previous decision but you come across as a slimy snake oil salesman – ‘take this elixir and you’ll be cured’.  As if.

Pensioners, please email IODPA (admin@iodpa.org) if you have evidence of more errors or Bullshit Bingo-worthy scribblings from SMPs and forces.  If the SMP scores full marks on a single report then a chocolate teapot will be sent directly by special delivery.  This teapot will be pre-filled with hot tea for the doctor’s convenience.

And, as a special one time offer only, IODPA will also provide a thick book compiled from case-law, Pension Ombudsman determinations and the full unread text of the Regulations so the SMP can insert it into the seat of his trousers so that the spanking at PMAB for being such a muppet will not sting quite so much.

In all seriousness though, HR types, please read the reports your SMP has signed off.  If any of them contain a trace of the bullshit terms and errors we have briefly outlined above then you can prepare yourselves for a few years of complaint, challenge, appeals and litigation. And that is from around a dozen reviews only.

Just don’t go there …oh! Too late, you did.

iodpa Regulation 33, Regulation 37, Review, selected medical practitioner, smp
Just don’t go there …oh! Too late, you did.

Just Don’t Go There

“A fishing rod is a stick with a hook on one end and a fool at the other.”

Samuel Johnson (1709-17840

When a police pension authority decides to hold a review of an injury pension it is not entitled to pack some sandwiches and a flask of tea and go on a fishing expedition. It can’t itself, or via the SMP, try to second-guess or overturn earlier decisions, whether made when an injury award was first granted or at an earlier review.

Regulation 37 is perfectly clear on this, yet foolish forces mysteriously seem unable to grasp the fact. The quote below is from the Court of Appeal judgement in the case of The Metropolitan Police Authority vs. Belinda Laws, where the court was considering the fishy argument of the Met that the SMP could revisit, and thus come to a different view of the factors which led to earlier decisions. The court rejected this argument, stating, in effect, that earlier decisions were very much final, as were the facts on which the decisions were made:

“18. So much is surely confirmed by the terms of Regulation 37(1), under which the police authority (via the SMP/Board) are to “consider whether the degree of the pensioner’s disablement has altered”. The premise is that the earlier decision as to the degree of disablement is taken as a given; and the duty – the only duty – is to decide whether, since then, there has been a change: “substantially altered”, in the words of the Regulation. The focus is not merely on the outturn figure, but on the substance of the degree of disablement.

19 In my judgment, then, the learned judge below was right to construe the Regulations as she did. Burton J’s reasoning in paragraph 21 of Turner, which encapsulates the same approach, is also correct. The result is to provide a high level of certainty in the assessment of police injury pensions. It is not open to the SMP/Board to reduce a pension on a Regulation 37(1) review by virtue of a conclusion that the clinical basis of an earlier assessment was wrong. Equally, of course, they may not increase a pension by reference to such a conclusion; and it is right to note that Mr Butler, appearing for the Board, voiced his client’s concern that so confined an approach to earlier clinical findings might in some cases work to the disadvantage of police pensioners. Strictly that is so. But the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.

Why then do doctors Johnson and Bulpitt think they are permitted to look for information in someone’s medical history which might reveal something about apportionment or causation?  The former is the SMP put in post by Avon & Somerset Police Pension Authority and the latter the substantive Force Medical Officer from Avon & Somerset Police.

Take a look at the email below, in which Dr Bulpitt actually mentions in the same sentence, ‘apportionment’ and ‘attribution of cause’! He is arguing that the SMP should have full access to any individual’s medical records back to the year dot. He wants to see if something is ‘concealed’ which might let the SMP come to a different view which would allow him to call into question earlier final decisions.

The foolishness of these two medical worthies inquisitiveness is disturbing. They may know the difference between a wart and a boil (not that I would trust either one of them to remove or lance any such disfigurements on my body) but they seem to known diddly-squat about the seminal appeal court decision in the case of Laws.

The simple fact is that SMPs conducting a review of an injury pension are not allowed in any way to revisit apportionment or causation. (Apportionment is the tricksy ploy of saying a disablement is partly or wholly due to a non-duty injury or pre-existing condition, and causation is the SMP looking for something other than injury on duty having caused the disablement.)

bulpitt

Ha!

Has there been substantial alteration in degree of disablement since the latest of either the last review or original award? That is the only question the SMP is allowed to consider. Medical history prior to the injury award being given (or prior to the last review) could not speak to that, only to the question of the correctness of the original award or the award on review. That is the very thing which the case of Belinda Laws rules unacceptable. Further, Laws was followed and confirmed in the case of Simpson vs. Police Medical Appeal Board in the High Court in 2012. The principle is beyond doubt. The SMP can not access whatever medical records he wishes. That is the very thing that Avon and Somerset is getting wrong at the moment. (Unfortunately, it is not the only thing.)

In a later email, Dr Johnson says he will be ‘robust’ on those former officers who refuse to disclose full medical records.

johnson

Regulation 33, of the Police (Injury Benefit) Regulations 2006 states that if any 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 the police pension authority has the discretion to make their determination on such evidence and medical advice as they in their discretion think necessary.

A pensioner is being neither wilful nor negligent should he or she point out the law to an erring SMP, nor does the regulation mention access to medical records. In fact, drawing the attention of the SMP to the fact that not only has his hook got no bait on it, but his dog is eating his sandwiches is doing him a great service, as it should prevent him from acting unlawfully.

There is nothing in the law which would suggest to former military gynaecologist Johnson that he could say the Regulations allow him to have a full picture. His statement is either a bare-faced lie, or a display of pure ignorance.

Surely even a pilchard like Johnson has the ability to read the Regulations and see that?

The function of the SMP

iodpa selected medical practitioner, smp
The function of the SMP

What does a duly qualified medical practitioner (selected medical practitioner or ‘SMP’) bring to the table?  Firstly it is peremptory that any final decision made under Police Injury Benefit Regulations 2006 is a medical decision.  It is not a legal question or an occupational assessment – it is a medical question and therefore can only be answered by a medical doctor.  ‘Suitably qualified’ has no specific definition under the regulations other than the implied possession of  medical degree so a general practitioner or a surgeon could perform the task.  However it is the praxis of police pension authorities to have interpreted the suitable qualification as being a member of the Faculty of Occupational Medicine.

This hugely narrows the pool of suitable potential SMPs.  Forces are deliberately hiring a specific type of medical professional.  Quite often the SMP belongs to an umbrella  limited company that contracts the occupational health doctors back to several forces in a consortium pact.  This insular arrangement is amplified by use of the NAMF’s white list of approved providers.  An otherwise excellent medical practitioner is barred from working as a SMP if not a member of this closed club, further adding to the erosion of the independence of SMPs.

But what is the remit of a SMP?  Firstly the SMP is bound by the ethics of the GMC guidance which determines how its members are allowed to act in such positions (Confidentiality_disclosing_info_2009.pdf.)  The GMC guidelines dictate that any person the doctor has access to in such an event is still their ‘patient’ and it is irrelevant whether they are giving therapeutic treatment or not – as their patient, the well-being of the person is their first concern.  In partnership with their medical duty, there is the legal duty of the SMP to abide by the statutory instrument  enacted by the regulations. So the SMP assesses the disability and it’s effect on earning capacity together with factors such as rank and length of service. The SMP then makes the award which falls into four bands (Band one is the least).  The bands are simplified into 4 to make it easier for a medical expert (not a HR manager) to decide a suitable degree of disability.  When some SMPs use rounding to 2 decimal places in order to put an IOD retiree into a lower threshold (49.95%), they clearly haven’t taken the ‘decision in the round’.  This was talked about in the post concerning the PAEM & Bad maths.  As mentioned, although the SMP is employed by the Police Authority/Commissioner/Force, the function should be an independent one.

On the original decision (when the award is first given) the SMP may ask for full medical records as well as accompanying report from specialists.  There is no given power that enables the SMP to demand things – indeed no legal powers are inferred on the role of the SMP – he/she can ask but accordingly there is no obligation to acquiesce.   They are not coroners with common law or statute powers – the statutory role is to answer a question – the referred question; they are not empowered in anyway to act other than as a doctor.  Of course, the SMP is entitled to make an informed  judgement on the available evidence and non-cooperation does allow the SMP to infer something.  The final decision is the SMP’s alone to make.  The procedure should be an evidenced based approached.  In injury cases in particular it is important that the SMP should satisfy him or herself that the evidence presented about the circumstances surrounding the injury and the disablement in question is not accepted uncritically from either party. It is for the SMP to test and weigh the evidence given in the light of the other evidence provided and in the light of his or her own medical knowledge and reasoning. In deciding whether a statement put to him or her as a matter of fact is to be accepted as such, after having duly tested and weighed it, the SMP should apply the balance of probabilities and not a higher evidential test.

Such questions the SMP considers are (but not exclusive of):

  • The Regulations specify that whether the injury includes any injury or disease, whether of body or mind
  • That disablement is deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement
  • It is necessary to establish a direct causal link between the permanent disablement and service as a police officer:
  • In cases where the permanent disablement through injury was the result of a single, significant incident the question will be a relatively simple one – was the injury received in the execution of duty
  • An injury does not have to be received though a single, significant incident; where no single moment of injury can be identified.  The question for the SMP is whether the permanent disablement through injury was caused by, or received in, the execution of duty as opposed to domestic or other circumstances not related to police duty – bearing in mind the following points:
    • police duty should not be given a narrow meaning; it relates to all aspects of the officer’s work;
    • the Court of Appeal has held that stress-related illness through exposure to police disciplinary proceedings does not count as an injury received in the execution of duty;
    • police duty does not extend to a sporting activity for the police while not carried out on duty, unless where the injury was due to the officer being known to be a constable.
  • There may be an issue as to whether there was a single injury or more than one injury which contributed to the disablement. This can affect the calculation of degree or disablement where a relevant injury was not received in the execution of duty. Where this is relevant the SMP’s findings as to whether there is one injury or more than injury should be clearly stated (apportionment).

If the decision is not accepted it can be challenged within 28 days and an appeal lodge with the Police Medical Appeals Board.  This a panel of 3 medical specialists on a Home Office list.  Before Laws V PMAB historically a PMAB panel rubber-stamped the decision of the SMP using the HO guidance 46/2004 – an example of Home Office officials keeping the bien pensant stance and ensuring the Home Office guidance is followed to the letter (despite the subsequent withdrawal due to the guidance being unlawful).

The role of the SMP in a review situation is the sole question of substantial alteration of the degree of disablement (earning capacity not physical disability) since the last final decision.  Has the medical condition substantial improved or substantial deteriorated?  Is there jobs available to the individual that were not available at the last final decision?

A review therefore should be a benign event.  As circumstance dictate (and not routinely), the submission of medical records, partially disclosed of dates between the last decision and the date of the review.  A quick face to face meeting IF and ONLY if there are points in the medical notes that need clarifying.  If there is no evidence of change then the person should not even be put in front of a SMP.  That’s it.  Nothing more.  If the SMP acts like a Gestapo officer, forensically examining medical history and interrogating the retiree for close to 2 hours during a review then it is obvious that there is an agenda.  How will other IODs react when they get called?  Defensively, no doubt.  Where’s the motivation to engage in a demeaning and unlawful process.

There is no excuse for any review to last from May 2014 and still be continuing in mid-March 2015.  That suggests that the police pension authority and the SMP are considering facts that are beyond their legal duty.  Rather like Avon & Somerset’s current reviews…