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Dorset Reviews – lessons learned, or not?
IODPA Admin 2021-10-14 2021-10-16 Regulation 37, smp
It certainly didn't take Dorset's new Chief Constable, Scott Chilton, who was only appointed on 12th August 2021, very long to authorise reviews of injury pensions under The Police (Injury Benefit) Regulations 2006 ('PIBR'). He must have been in post less than a month before letters have been sent out. A clear message to his serving officers should they become injured.
We have been sent a copy of the correspondence sent out by the force and will examine it to see what lessons, if any, may have been learnt over the years from other forces.
Let's start by looking at the covering letter sent out by Susan McCausland (HR Officer). We must start off by saying, that yet again, these letters were received by pensioners on a Friday or Saturday, at a time when the recipients are often unable to seek professional help in the form of legal advice or medical support through their GPs. Thankfully we are on hand to give some immediate help and reassurance to those very poorly and vulnerable people.
Here is a copy of the documentation that was sent out –
Dorset letter
The first paragraphs of the letter relates to the individual, and states that the review is as a result of their previous SMP recommending a future review. This approach is confirmed in the FAQ sheet (post) where they state "Presently we are only reviewing Injury Benefit Pensioners where the Selected Medical Practitioner ('SMP') has recommended a review."
This indicates that Dorset intend to review EVERY injury pension based upon a previous SMP recommendation.
Regulations 37(1) of the PIBR states that reviews may take place "as such intervals as may be suitable". The recent case of Goodland, R (On the Application Of) v Chief Constable Of Staffordshire Police [2020] EWHC 2477 at para 81 is clear, that "It is for the Defendant [PPA] to decide whether a suitable interval has elapsed since the last assessment or reassessment". It continues, "The Regulation does not permit the Defendant [PPA] to decide in advance that a suitable interval will never elapse". What flows from this, is that a future date for review cannot be specified either, so a SMP cannot in our view recommend a future date that the PPA can then act on, on this basis alone.
It seems to be common practice for SMPs to make these recommendations, despite there being no requirement or reference to this in the PIBR.
Paragraph 3 of the letter "respectfully" requests that the pensioner completes an enclosed questionnaire. We know from paragraph 182 of the Goodland/Wright judgment (ante) that in the case of Staffordshire judgment, the Chief Constable "erred in law" by threatening the triggering of Regulation 33 for failing to complete this questionnaire.
Yet, we see in the FAQ, there is a suggestion that a failure to complete the questionnaire and consent to medical records may trigger Regulation 33. This implied threat is in itself is at best misleading and at worst, unlawful.
Paragraph 5 of the letter states that the pensioner has 28 days from the date of the letter to comply. The only reference to timescales in the regulations is when the pensioner has 28 days in which to appeal an SMP decision. So where in the regulations do these self-imposed timescales come from?
This 28 day deadline is also highlighted in bold in the FAQ. These time limits are quite rich considering forces regularly ignore correspondence from pensioners and their legal representatives for months and months at a time. Pensioners can also wait for six months or more for SMP reports to be forwarded after completion.
What this really highlights is the total lack of care or compassion, or understanding of the vulnerable and often very ill people that Dorset Police are dealing with. We have experienced first-hand the impact that a letter of this type has on a pensioner. HR staff sitting in their comfy, air conditioned offices, who probably have no experience of mental health issues, and see these ex-officers and as just a collar number, start date, end date and continuing cost (burden) to the force. We do make mention that it is not all HR staff who lack the emotional connection with their former officers, we know of some HR personnel who go well beyond what is expected of them in caring for their injured and ill police pensioners. But clearly not in this case.
Many pensioners with mental health issues, often caused or exacerbated by their forces, will often not open post for weeks or months at a time. A self-imposed limit of 28 days does nothing to reassure us that the force know who or what they are dealing with.
It has to be asked, what training have Dorset staff received to deal with vulnerable individuals? Little, or nothing is probably the answer.
We have already touched on the non-mandatory questionnaire, but let's look at it in a little more detail.
It rightly asks whether the pensioner considers whether there has been a substantial alteration in the condition of the former officer. That is a sensible question to ask, and if the answer to that is 'no', the pensioner should be left alone. Alas, it then continues to go into a lot of detail about employment and other conditions.
We all know the purpose of these intrusive questions; it is an evidence gathering exercise for no other purpose but to reduce. We would know it commonly as a 'fishing expedition'.
We all know that the SMP (perversely) performs a calculation (rather than a medical assessment) based on what a pensioner is earning in order to determine how their physical or mental disability has affected their earning capacity. We were, however, shocked to read this question –
(g) Date of next pay increase (as this may impact on your next award).
Quite simply this approach is unlawful. A regulation 37(1) reconsideration is about the 'here and now', not about what you may earn at some stage in the future. If anyone has had future earnings used in a calculation in this manner, we would suggest that you immediately have grounds to appeal and would urge you to contact us at admin@iodpa.org.
Finally, the questionnaire contains a declaration entitled Section 2 of the Fraud Act 2006. The inclusion of this caption seems to have originated in Avon and Somerset Police, way back in 2014, subsequently copied by Staffordshire Police and has now been adopted by Dorset Police. Quite frankly, we find this wording disgusting and highly offensive. We would recommend that pensioners do NOT sign this document based on this one caption alone.
Police officers, by the very nature of their role, are honest and have unquestionable integrity. They have signed the Official Secrets Act, prepare and present papers for the most heinous of crimes at the highest levels of probity, and yet they are not trusted to honestly complete a questionnaire (which is not required under the regulations or case law). This speaks volumes of the contempt in which they are held by their forces.
Let's now look at the FAQs.
In answer to the question "Will my medical records be kept confidential?" they reply "Only SMP reports will be seen by non-medical staff in the HR Operations Corporate Support Team".
Clearly, we need to provide Dorset police with a lesson on confidentiality of personal and private sensitive medical information under the GDPR and the PIBR.
The PIBR states under Reg 30(2)(d) that if the [PPA] are considering whether to revise an injury pension, they shall refer question (d) above to the SMP –
(d) the degree of the person's disablement;
It is clear that all medical decisions are to be answered by the SMP, and the SMP alone. There is NO provision in the regulations for any other nominee of the PPA to request, collect, collate, or view any personal and private medical records of retired pensioners. In our view medical records should be forwarded directly to the SMP with the condition that they are not disclosed or shared with any third party without express permission.
The fact that an SMP may not want records sent directly to them, is not a reason not to do it, if it secures the confidentiality of your medical files. At paragraph 150 of the Goodland/Wright judgment (ante), Dr Vivian kindly wrote to Mr Wright offering him the facility of sending his medical notes directly to him. This proves that it can be done.
Once the SMP has made their consideration, Reg 30(6) states that the decision 'shall be expressed in the form of a report'.
Having read many SMP reports, we are well aware that the SMP will usually prepare a written report as well as a new certificate of disability (often referred to under the 1987 Regs as a H1) including the new level of disability or banding.
The covering report, however, is verbose and very detailed, and will often contain a summary of the pensioner's entire medical background and history. It is quite wrong in our view, that this report be shared amongst any individual in HR, let alone a team. The ONLY people entitled to see a person's personal and private medical conditions is another medical professional, and that is with the express consent of the pensioner.
In our opinion, if the SMP report has to go back to the force, then it should ONLY go back to someone who is medically qualified, and that person is the Force Medical Examiner ('FMA'), and this is despite them playing no recognised role in the review process according to the PIBR. The only document that should go to HR is the revised certificate.
Finally, we turn our attention to the two consent forms that were attached for the pensioner to sign. They ask for full medical records, which, in our view, is not necessary. The force would have obtained a full set of medicals at the time of the officer's ill health retirement so why ask for a duplicate set? Or have they lost the original set they held which could lead in to another potential can of worms to be opened?
In the Goodland/Wright case (ante) the judge deemed that it was for the SMP to decide what was necessary, and in that case some of the SMP only asked for notes since the last review, so our question to Dorset, is why are you asking for full medical records since birth in every case when other forces are not doing the same?
We note that the 'CONSENT FOR THE RELEASE OF GP RECORDS' document contains a statement that any withheld records my affect "my application for ill-health retirement or an on duty award".
There forms have been re-purposed for these reviews, but are not fit for purpose as unless expressly requested and justified by the SMP, the pensioner should only be requested to provide their medical records since the granting of the award, or the last review. The case of the Metropolitan Police Authority v Laws & Anor [2010] EWCA Civ 1099 was not superseded by the Goodland/Wright case, which states that a review is a comparison exercise, and therefore medical notes since the last review should nearly always be sufficient.
We would have expected a professional organisation to have seen the small but nonetheless important administrative error and actually created a document that reflected the regulation that they are dealing with, rather than 'making do'.
We can only profusely apologise to all those who will be affected by this review process and the poor and compassionless manner in which they are being dealt with. Perhaps a letter asking the former officer how they are and whether there has been any change initially would not have gone amiss, when many have not heard from their former force for years. Or are we asking for the impossible?
Learn From The Mistakes Of Others
IODPA Admin 2021-03-23 smp
Learn from the mistakes of others. You can't live long enough to make them all yourself.
— Eleanor Roosevelt (1884 – 1962)
Here's a question for you –
Would you ask a plumber to service your car?
Although the initial response might well be a resounding, 'No' a few moments thought could lead us to contemplate that there might, just possibly, be a few plumbers out there who are also qualified experienced car mechanics who have access to all the rights tools and equipment needed to service a car.
Let's apply this thought to members of the medical profession. How many doctors are there who are experts in police pension law? By expert we mean hold a qualification in law – a law degree, and who fully understand all the police pension regulations and case law. Or, in reverse, how many legal professionals are there, such as solicitors or barristers, who are also registered with the General Medical Council as fit to practice medicine?
There must be a few, but so far as we are aware none of the doctors employed in the role of 'selected medical practitioner' (SMP) by police pension authorities in England and Wales have any sort of legal qualification or experience.
Yet doctors are being required to make decisions on matters of law in respect of police pension entitlement – matters which they are surely not competent to decide.
The Regulations which govern police pensions state that certain decisions must be made by a medical practitioner selected by the police pension authority.
For new readers – a SMP is a doctor who is required by a police pension authority to decide certain regulatory questions in respect of police ill health and injury pensions. A SMP also provides medical assessments within that context.
It is possible the drafters of the pension Regulations never envisaged just how many errors in law otherwise worthy doctors could make. It is also possible that some police pension authorities have wrongfully tried to 'assist' the supposedly independent decision making of their SMPs by inserting themselves into the process.
This has never resulted in good decisions, for the staff involved are frequently as poorly equipped to decide matters of law as are their SMPs.
Home Office guidance issued in 2004 was that any doctor who is to act as a SMP should, ideally, be a Member or Fellow of the Faculty of Occupational Medicine (MFOM or FFOM), or EEA equivalent. The minimum requirement should be that he or she is an Associate of the Faculty of Occupational Medicine (AFOM) or EEA equivalent.
The guidance also says that, before appointment as SMP, the police authority must provide the medical practitioner concerned with an induction programme and other training so that he or she has an understanding of what police service entails.
No mention there of legal training or qualifications.
We are aware that some SMPs attended a training event arranged by the College of Policing in January 2014. It was presented by one Nicholas Wirz, who is a solicitor employed by Northumbria Police, and in our opinion, hardly best placed to be trusted to deliver unbiased training. We have commented earlier here on the doubtful content and appropriateness of this training, so don't need to say any more other than it was, at best, biased and dubious and very likely to lead SMPs astray when dealing with the legal aspects of their role.
One SMP who attended the training became so disorientated that she consequently claimed she had all the powers of a high court judge, and could order individuals to do her bidding.
Certainly, there has been no lessening of the number and frequency of mistakes made by SMPs since the training event.
So far as we are aware, apart from the single College of Policing event, it is left entirely up to individual forces to ensure their SMPs are competent in both medical and legal expertise.
A SMP's opinion on a medical matter can be appealed, and thus considered by a panel of other doctors, including at least one specialist in the relevant field of medicine. However, a SMP's decision on a legal aspect, if challenged, will almost inevitably have to be settled in a court of law.
This is so because there seems to be little point in taking a questionable legal decision by a SMP to more doctors – to a police medical medical appeal board composed of only doctors. Increasing the number of doctors, who have no law qualifications, involved in the decision making process is no guarantee of them being any better able to understand the law. All that happens is that the appeal board covers its shortcomings by appointing its own solicitor or barrister to attend the hearing, thus putting the appellant at a huge disadvantage unless they can afford to be represented by their own solicitor or barrister.
Unfortunately, far too many disabled former, and serving officers, continue to have to suffer the stress, inconvenience and cost of dealing with mistakes made by SMPs and by appeal boards.
So, are forces well enough equipped to provide legal training for SMPs and thus help prevent mistakes? Even assuming they have the will to do so?
Staffordshire's Chief Constable Morgan, who is currently engaged in a legal process resulting from questionable actions taken by a SMP and by himself, not long ago researched and produced a paper on the 'Force Management of Ill Health Retirements, Injury on Duty Awards and Police Medical Appeal Boards.'
He reports:
'Many forces are struggling due to the lack of expertise within their organisations. Both forces and staff associations report difficulties managing these issues due to key personal leaving the organisation or being absent for short periods due to sickness or prolonged periods of leave.'
'The structure of some force HR facilities do not support the management of the process. When managed by shared service pools rather than through specific dedicated individuals, personnel are unable to build up experience in dealing with these cases. This is acutely felt by small forces that do not have the workload to enable individual staff members to build up their experience of this work.'
'The above issues are compounded by a lack of dedicated subject matter experts across the service and training opportunities.'
He concludes:
'In light of the above, force personnel lack the confidence and expertise to successfully manage these processes. This is compounded by a perception that senior management in the service do not understand the complexity of the role, do not provide adequate support and that the regulations which govern these processes are not fit for purpose.'
And comments:
'There is variance in the level of engagement of legal professionals and forces are not only obtaining legal advice from a number of sources, including individual force legal teams and contracted external legal advisors, but in some instances forces are without the support of any recognised legal professional. Due to the range of legal areas force solicitors cover, and in some instances the relatively low number of occasions when their services are engaged, legal services have been unable to develop expertise in these areas.'
From this, and from our members' reports of continuing maladministration arising from lack of legal knowledge exhibited by SMPs, we are disturbed to know that SMPs are no more clued up now on legal matters now than they were back in 2009 when Dr Broome, (a co-worker of Nicholas Wirz and undoubtedly advised by him) erroneously thought it entirely lawful to reduce, in the course of one day, with no medical examinations, the pensions of no less than 70 elderly disabled former police officers merely because they had reached a certain age.
There are far too many current examples of legal knowledge being woefully inadequate in SMPs for us to discuss them all here. However, we can present one recent example which perhaps illustrates the situation rather well.
An individual applied to be awarded an injury on duty pension. The SMP decided that the person did not qualify, as he had received the disabling duty injury whilst employed in another force. The officer had transferred from one force to another during his career. The SMP's view was that the officer's current force was therefore not liable to pay him an injury pension.
This was entirely an instance of a SMP failing completely to understand the relevant law. It seems the SMP was not even capable of reading the Police (Injury Benefit) Regulations 2006 to check what the law said. Had he done so he would have seen this:
Authorities responsible for payment of awards
41, – (1) An award which is payable to or in respect of a person by reason of his having served as a regular police officer shall be payable by the police authority of the force in which he last served as such.
Not difficult to understand. Even a layperson should be able to get to grips with this straightforward piece of law. But, we hear of SMPs, and HR managers complaining that the various police pension Regulations are hard to understand, or are poorly written. Chief Constable Morgan has even gone so far as to suggest the pension Regulations are, 'not fit for purpose.'
We don't agree. Any difficulty SMPs face is down to lack of basic understanding of the law, and lack of adequate unbiased training. They make mistakes because they are out of their depth, and because HR managers, and others, insert themselves into the decision making, which by law, should be the sole disinterested responsibility of the SMP.
An oversight, a mistake, such as the one above is hugely distressing to the individual involved. The blame lays not only with the SMP but with the people who hired him and who are available to him for legal advice. In this instance we don't know whether some hidden agenda influenced the SMPs decision. If that was the case, then the maladministration moves into the area of malice.
It was Chief Constable Morgan's considered opinion that the best way to deal with the many deficiencies he encountered in his research would be to centralise SMP services. He thought that regional centres, controlled and staffed with doctors selected and presumably trained by the Home Office would be a solution.
Not so. It is our view that such an arrangement would make matters worse, not better. We suspect the Home Office realises this, and is content to let individual chief constables continue to carry the cost of litigation whenever their SMPs make mistakes.
We rarely express any sympathy for SMPs, but we do acknowledge that they are not all hopelessly inadequately trained. There are some excellent SMPs who consistently make sound medical judgements and who apply the police pension regulations fairly and accurately.
Unfortunately, for every SMP who can't be bothered to read the Regulations, there are a host of HR and Occupational Health workers, plus senior officers, who simply don't have a clue and who either fail to recognise their SMPs shortcomings, or who are content to allow them to occur.
Between them, these persons in positions of responsibility do their forces no good at all. Mistakes cost money. They also destroy confidence. Few forces still cling to the fool's gold belief that conducting reviews of the degree of disablement of former officers will result in savings. The mistakes that SMPs and HR staff help to ensure that savings are illusory. Importantly, even if reviews were all held perfectly, the data indicates strongly that as many or more pensions stand to be increased than decreased, with the vast majority remaining unaltered.
Despite this, some forces, for reasons unknown, continue to employ plumbers to do their car servicing.
Chinese Parmesan
Aunty Sophia is a redoubtable woman and a very good cook. Ask her anything about food and she will have the answer, from how to make the perfect Eggs Benedict to how Spaghetti Bolognese does not exist in Italy.
She will explain, with an exasperated sigh, that in Bologna they make a minced beef ragù with minced pork, onions, celery, carrots, wine and other ingredients, which is served tossed through Tagliatelle, Fettuccine or the wider Pappardelle, but (and at this point her voice raises in volume and a finger wags admonishingly) it is never, never, served with spaghetti.
She is scathing about the globalisation of cuisine. She simply refuses to accept that Cheddar cheese can be made in Australia, Canada, and even Scotland, and yet legally be called Cheddar. Yes, it is cheese, but it can not be proper Cheddar cheese.
The same goes for Parmesan. In Italy, one is judged by how good is the Parmesan you serve to your guests. It has to be authentic, for it is not unknown for unscrupulous retailers to pass off lesser hard cheeses as genuine Parmigiano-Reggiano. What really gets Italian Aunty Sophia's goat is the deep suspicion that Parmesan is now being made in China. Chinese Parmesan! Oddio! Che cosa sta succedendo? What's going on!
Aunty's amazement and utter rejection of Chinese Parmesan is so often expressed by her that it has become a sort of meme within her family. If something is not right, fake, a deception or just plain out crooked, then it is 'Chinese Parmesan'.
Which inevitably brings us to focus on selected cheesy medical practitioners who take on the role of SMP.
For new readers, a Selected Medical Practitioner ('SMP') is a doctor, usually qualified in the branch of medicine known as occupational health, who is selected and paid by a police pension authority to make medical assessments and medical decisions in connection with fitness to work and, especially, decisions affecting the pension rights of serving and former police officers.
IODPA is usually very critical of SMPs. With good reason. Whenever IODPA lists their numerous shortcomings, exposes their woeful ignorance of the police pension regulations, or when we report on how they deliberately flout data protection law, then IODPA will name and shame, but always in the spirit of constructive criticism. IODPA hopes, perhaps forlornly, that exposure of SMP's deficiencies might encourage them, and their paymasters to realise they need to change their ways and begin to conduct themselves lawfully and ethically.
Unusually, in this article we are not going to recount some new or repeated wrongdoing by a corrupt or incompetent SMP. I'd be spoiled for choice. Instead we are going to sing the praises of one doctor who fulfills the role of SMP in a caring and professional manner.
Several of our members have told IODPA that this doctor is a rarity. An honest and impartial SMP. A round of noble Stilton on a table groaning with counterfeit Camembert, fake Feta, analogue pizza cheese substitute, and ersatz Emmental.
IODPA has heard nothing but praise for the professional and respectful way medical examinations and interviews have been conducted. Decisions made have been in tune with the medical facts and have thus been acceptable. The strict requirements of the General Data Protection Regulation have been adhered to. Members report no objections or difficulties being raised when being accompanied by a chaperone or helper, nor to sessions being recorded.
This doctor demonstrates that the police injury and ill health regulations are not difficult to understand or to apply. The regulations do not require that a SMP holds a law degree or that the SMP should act as though they were a presiding magistrate or High Court Judge. The role of the SMP can be described as simply as this – interview and examine an individual as necessary with the objective to identifying illness or injury which might erode an individual officer's ability to carry out the full range of duties required of a constable, and, in the case of former officers in receipt of an injury pension, determine whether there has been any alteration in their degree of disablement.
A SMP is there to consider the medical evidence – not just from their own examination and interview, but all evidence supplied by the individual, such as reports from eminent specialists, consultants and grounded GPs.
The SMP delivers a decision on certain medical questions which are contained in the various regulations.
The questions, so far as the Police (Injury Benefit) Regulations 2006 are concerned come down to these:
(a) whether the person concerned is disabled (or totally disabled);
(b) whether the disablement (or total disablement) is likely to be permanent;
(c) whether the disablement is the result of an injury received in the execution of duty, and;
(d) the degree of the person's disablement.
On rare occasions a SMP may be asked to revisit a decision made by a different SMP, who for whatever reason is not able or willing to reconsider their decision themselves (commonly known as a Regulation 32(3)).
The SMP we are praising has had to address all of these questions and has done so consistently, with no apparent difficulty and without giving any cause for either the individual concerned, or the police pension authority to feel that some skulduggery was involved.
Anyone can make mistakes, but there is a world of difference between genuine unintentional error and the sort of 'error' that some SMPs make, hoping they won't be noticed, and therefore drive a 987 horsepower Bugatti Veyron through the regulations. Errors, which the offending SMP's police pension authority will inevitably do their utmost to deny.
We have to say that the SMP, who we thank and congratulate here, is first and foremost a caring human being who happens to be a doctor, who happens to work as a SMP. His or her work is in glowing contrast to the Machiavellian manoeuvrings of other SMPs whose behaviour strays right across the spectrum from careless inability, incompetence, ineptitude, and inexperience through to full-on criminal intent to defraud.
We haven't named this doctor, for we fear the powers that be would find some excuse to dispense with his or her services. Sounds far-fetched? Not a bit of it. Ill-intentioned police pension authorities have successfully driven out nearly all honest and decent SMPs, who have been replaced with the Chinese Parmesan type of doctors who Italian Aunty Sophia would readily sniff out and scornfully reject as not the real deal.
She would say, 'Where you find Chinese Parmesan, there you will also find a useless Chef.'
Surrey And Sussex Police Have A Candidate For File 13
IODPA Admin 2020-07-03 Chief Constable, GDPR, HR, medical records, Regulation 37, smp
"File 13" is a euphemism for the trash can or waste paper basket.
Our attention has been drawn to a document entitled "Managing Police Officer and Police Staff Ill Health Retirement Policy (Surrey and Sussex) (542/2019)", which can be found on the Sussex Police website. It is a joint force policy between Surrey and Sussex Police on the management of ill-health retirement, injury awards and subsequent reviews. This policy document is annotated on the bottom as belonging to the "People Services Department (Occupational Health)" of Surrey and Sussex Police.
You can find a copy at the following link:
https://www.sussex.police.uk/SysSiteAssets/foi-media/sussex/policies/managing-police-officer-and-police-staff-ill-health-retirement-policy-surrey-and-sussex-5422019.pdf
Or you can read a copy, duplicated below.
managing-police-officer-and-police-staff-ill-health-retirement-policy-surrey-and-sussex-5422019
There are so many things wrong with this document that it's difficult to know where to start.
It is probably fair to say that the overall feel of this official multi-force policy is one of dislike or even contempt of injured officers, as is evident from its frequent references to any non-defined 'failure to co-operate' being met with punitive measures.
We've selected, replicated and highlighted some of the worst sections of this policy document with our comments under each section. However, we will begin with the one section which is uncontentious.
3.1 This is a sensitive issue with personal and financial implications for the individual and the force. It must be
administered with sensitivity, understanding and confidentiality
The policy starts off well and we agree with their sentiments whole heartedly. Sensitivity, understanding and confidentiality are all words we use when describing how forces should be treating their injured officers, but it all goes downhill after here.
3.10 An individual will remain on their current pay status (full/half or nil pay) once they have made their application for IHR, unless they fail to co-operate with the process. Once authority is given for the individual to be ill health retired, they will revert to full pay.
Note: Chief constables have the lawful discretion to reduce the pay of officers who are ill or injured and thus not able to perform the full ordinary duties of a constable.
There are two things wrong with this statement, the first is that the policy states that if officers have already had their pay reduced, they will remain on their current level of pay until they have completed the ill-health retirement process and it is confirmed that they are likely to be retired; secondly, there is clear intent within this statement that if the officer fails to co-operate with the process, they will be further reduced.
The circumstances under which an officer's pay may be reduced derives from section 28 of the Police Regulations 2003, which allows the chief constable discretionary powers to retain or reduce an officers pay during periods of sickness.
Police Negotiating Board ('PNB') Circular 05/01 provides specific guidance to chief constables to grant discretionary sick pay to officers who have been on sick leave for more than six months.
Section 7 of this guidance reads –
7. Whilst each case must be considered individually, the PNB considers it would generally be appropriate for chief officers to exercise the discretion favourably where:
The chief officer is satisfied that the officer's incapacity is directly attributable to an injury or illness that was sustained or contracted in the execution of his/her duty or
The officer is suffering from an illness which may prove to be terminal; or
The case is being considered in accordance with the PNB Joint Guidance on Improving the Management of Ill Health and the police authority has referred the issue of whether the officer is permanently disabled to a selected medical practitioner
The Force Medical Adviser advises that the absence is related to a disability as defined by the DDA* (*"A physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day-to-day activities.") and the chief officer considers that it would be a "reasonable adjustment" to extend sick pay, generally speaking to allow (further) reasonable adjustments to be made to enable the officer to return to work.
Whilst there is no explicit statutory obligation on the part of chief officers to have regard to this guidance, in the case of Weed, R (On the Application Of) v Commissioner of Police of the Metropolis [2020], it was accepted that it would have been unlawful to ignore the guidance.
It is clear, under point three (above), that once an officer has been referred for consideration of ill-health retirement, the chief constable should seriously consider reinstating the officer to full pay.
What has to be realised here is that officers can become ill through no fault of their own with physical or mental injuries, or sometimes a combination of both. It is not uncommon with mental health injuries for the officer to suffer from severe PTSD. This can seriously impair their cognitive function and ability to comply with requests or process information. Despite this, it is clear in the policy that there is no compassion or support regardless of the officer's injury, but instead there is a clear statement that that non-compliance will trigger a further reduction.
Our point is that non-compliance may not be deliberate, negligent or willful, but may well be caused by the effects of the injury or illness. The policy makes no recognition of this possibility
The PNB guidance goes on to say there should be monthly reviews of the officer's situation. This policy document ignores the guidance as there is no mention of monthly reviews.
Where such claims are substantiated at a later date and the application has been made within a year of the date, of the last day of service, for the officer, payment of the injury award will be backdated to the day after, the last day of Service.
This section unmistakably implies that if an application for an injury pension is not made within a year of the retirement date of the pensioner, the force will not backdate payment to the applicant. We'd be interested to hear from Surrey or Sussex where in the regulations or current case law this approach is permitted?
Regulation 43 of The Police (Injury Benefit) Regulations 2006 ('PIBR'), states that the pension of a member of a police force under these Regulations shall be payable in respect of each year as from the date of his retirement.
It is widely accepted (by most forces) that an injury pension is payable from the date of retirement, unless the date of injury cannot be established, in which case, it would be the date of claim.
If Surrey and Sussex police need further persuading, we suggest that they look at the cases of Tully and North Wales police and Kelly and Chief Constable Of South Yorkshire Police.
In Tully, The court decided, 'First, we are satisfied that Parliament intended that, generally speaking, pension entitlements under these regulations should be payable from the date of an officer's retirement unless or until that was limited or excluded by operation of an express provision to that effect elsewhere in the same regulations.'
In Kelly the court held that Sgt Kelly's case ought to have been referred by the South Yorkshire Police Authority to the SMP in 2005 and that the chief constable was attempting to gain a windfall from his predecessor's breach of its legal duty by failing to pay the back-dated pension. The Judge held that the scheme of the regulations provided that, once a police pension was awarded, it was payable for the life of the officer from the date of retirement. Hence, he directed the chief constable to pay the backdated pay in full and with interest from the date of the award
This is to be illustrated as the percentage by which the individual's police salary would fall, in order to reach the level of salary likely to be commanded in another occupation despite the injury. The SMP in such cases may be the FMA.
The suggestion that the Force Medical Adviser ('FMA') may act in such cases is not good practice, and we don't know why it has ever been suggested. The whole purpose of the Selected Medical Practitioner ('SMP') is that they are supposed to be non-partisan and independent.
Published on the 4 May 2007, a Home Office ('HO') paper entitled "GUIDANCE ON MEDICAL APPEALS" states the following,
5. Where the police authority decides to refer the case to the SMP it should normally be via the force medical adviser (FMA). The purpose of the FMA's advice is to inform not determine the assessment by the SMP on whether the officer is permanently disabled.
Yet again, it seems as though the author of this paper is blissfully unaware of any of the HO or PNB guidance.
Note: Police Pension Authorities would be negligent if they failed to consider guidance, but guidance is not law and need not be followed. Surrey and Sussex's policy makes no reference to any guidance, so we are left in the dark as to whether it was considered or not. We add that certain Home Office guidance has in the recent past been determined to be flawed, to the point of being unlawful. PPA's need to be cautious of blindly following guidance to the same degree that they need to be sure to consider it. The various Regulations are the law which PPA's must abide by, and this policy document is deficient in that respect.
Surrey and Sussex's policy casually departs from statutory limitations. Bells and whistles are added with no apparent rationale, and devoid of legal underpinning.
6.1 When an officer disagrees with the decision of the PPA not to accept a claim for ill health retirement or injury award and to refer questions to an SMP, the officer may appeal the decision to the Crown Court (PPR and PIBR refers). In such cases the police officer will be asked to complete an appropriate medical records consent form and such records will be sought from the officers GP.
Whilst it is correct that if the Police Pension Authority ('PPA') refuse to admit a claim for an injury award, the officer may refer the matter to the Crown Court for arbitration, there is no provision under the PIBR for forces to be able to demand medical records as a consequence. We have to question why the force would only be requesting the necessary medical records at this stage? Surely they would have needed them in order to have made a balanced decision to refuse the application to start with?
6.2 Where the officer is considered permanently disabled, the SMP will complete a report, relevant to the questions raised by the PPA in accordance with the relevant PPR that affect that officer and the officer will be formally notified of the decision in writing, by the PPA.
Medical reports completed by the SMP should be released to the officer first, who should be able correct any factual errors before it is released to the PPA.
7.3 Where an injury award is payable, the PPA shall consider whether the degree of disablement has substantially altered in accordance with the advice of the SMP who determined the injury award and if it has, the award will be revised accordingly in accordance with PIBR.
In determining the degree of disablement in this process, the PPA shall refer the matter to an SMP (the FMA may act in this role), who will be required to deal with it in accord with PIBR and will issue a report accordingly.
Let's compare what has been written in the policy with the actual PIBR. The policy states "the PPA shall consider whether the degree of disablement has substantially altered", whereas regulation 37(1) actually says "the police authority shall, at such intervals as may be suitable, consider whether the degree of the pensioner's disablement has altered".
A small, but important omission, as the PPA is not entitled to conduct a reassessment of an injury pension unless there has been a suitable interval. A suitable interval is not defined, but in "The Queen on the Application of Turner v The Police Medical Appeal Board" it was said "suitable intervals suggests that this is not a matter which should be revisited every year, nor is it."
This means that it is not open for the force to simply review at will without due consideration as to whether a suitable interval has passed. The policy thus puts the cart before the horse. It intimates that a SMP will exercise a remarkable ability to predict the future by recommending to the PPA when a disabled officer's degree of disablement might alter substantially. The plain fact is that nobody, not even a doctor, can tell what the future holds.
The policy places a fetter on the discretion required of PPAs as to whether or when to consider the matter of substantial alteration in degree of disablement. It commits the PPA to a future action, based on nothing more than the opinion of a SMP.
This latter section, again suggests that it is appropriate for the FMA to act in the role of the SMP, when it is not. See the answer we gave to 5.3
7.5 The final part of the review process will involve an assessment by the SMP who will initially address the apparent disablement of the individual being reviewed, if necessary during private consultation and examination.
Reading this one line caused us outrage. The use of the word 'apparent' is highly offensive and clearly speaks volumes of how these two forces value and think of their injured and disabled pensioners. One dictionary definition of 'apparent' is 'seeming true but not necessarily so'. So their obvious suggestion here is that pensioners are 'pulling a fast one' and there are no real injuries or illnesses.
Let us also point out that this approach is also unlawful. Once an SMP makes a determination in relation to a pensioners level of disability, that position is a given, and any subsequent reviews are a comparison exercise between that stated position and today. No ifs, or buts, you cannot question or revisit previous decisions or conduct a fresh assessment.
7.7 An individual subject to a review and living abroad, may be directed to see an SMP within reasonable travelling distance of their homes, after consultation by the OHWD with British Authorities overseas (e.g. Embassies, Consuls, Armed Forces). Alternatively, the individual may be advised to attend a meeting with the SMP within the UK. Failure on the part of the individual to co-operate may be addressed in accordance with the PIBR.
Firstly, this section suggests that the force has the right to 'direct' the pensioner to do things, which is not the case. They are no longer serving officers taking orders. More importantly, it suggests that pensioners who may be living abroad can be made to return to the UK for a medical consultation. We'd be interested to see where in the PIBR it allows forces to order pensioners to return for the purposes of a medical examination? Yet again, there is the threat of consequences if they fail to co-operate, so what are those consequences?
If the individual wilfully or negligently fails to submit to a medical examination, or to attend such interviews as the SMP may consider necessary in order to reach a decision, the PPA may make their determination on such evidence and medical advice, as in their discretion, they think necessary.
We have already mentioned in section 7.3 how the omission of a word from the regulations can change their original meaning. With that in mind, lets look at what has been written in the policy "the individual wilfully or negligently fails to submit to a medical examination". That's not what the PIBR say. What it actually says in regulation 33 is the the following "the person concerned wilfully or negligently fails to submit himself to such medical examination".
Have you spotted the difference? The word "himself" is missing. So what is the significance of this? The word "himself" implies "the person" i.e. the pensioner should attend in person where they may be questioned or examined about their current level of disability. The statement "failing to submit to a medical examination" is far broader than just the person. It implies and could be argued that the medical examination also includes the authority to demand and examine medical records or other medical information about the pensioner which is not a requirement of the regulations.
SMPs can request, but not demand, access to medical records. They can ask a pensioner any relevant questions they think necessary to their task. However, we see nothing in the Regulations that allows anyone, SMP or other, to require or demand access. Nor do we see any legal authority in any other legislation which allows access without express informed permission from the data subject.
8.2 To assist with this determination, individuals who fail to co-operate, or only co-operate conditionally, will be provided with an appointment to see the SMP at their clinic, or other location specified by the PPA.
This section is absolutely nonsensical. It's suggesting that pensioners whose injury pensions are being reviewed that are not co-operating will be referred to an an SMP in order to assist the PPA make a determination under regulation 33.
However regulation 30(2)(d) is clear, that if the PPA is considering revising an injury pension, the PPA has an obligation to refer the matter to the SMP,
30(2) Subject to paragraph (3), where the police authority are considering whether a person is permanently disabled, they shall refer for decision to a duly qualified medical practitioner selected by them the following questions—
(d) the degree of the person's disablement; and, if they are considering whether to revise an injury pension, shall so refer question (d) above.
This means that the PPA should have already referred the pensioner to the SMP for the purposes of regulation 37(1), that being the case, why would they then refer the pensioner in order to determine regulation 33? If our understanding of this section is right, and they wish to refer the pensioner to the SMP purely for the purposes of regulation 33, then we're happy to inform them that there is no such authority.
8.3 If they attend but have not completed a medical review questionnaire as supplied by OHWD, they will be provided with one by the SMP and asked to complete it forthwith. Once completed the SMP will conduct the consultation and examination but will delay any decision until the information on the questionnaire is examined by the OHWD and the appropriate report completed.
What!??? They will be "asked to complete it forthwith". Once and only once they complete it will the SMP conduct the examination. Let's make it unequivocally clear to the chief constables of Surrey and Sussex, there in no requirement under the PIBR to complete any medical questionnaire. Furthermore, the disclosure any of such medial questionnaire to the Occupational Health and Welfare Dept ('OHWD') as suggested is a series breach of 'special category' personal data under the General Data Protection Regulations ('GDPR') and will make the force liable as the data controller for this serious breach.
Let's make it perfectly clear to Surrey and Sussex Police, a 37(1) reassessment of an injury pension is a medical decision, and as such can only be made by a medical practitioner. It is our view, that medical data should ONLY be requested and viewed by the SMP. There is no authority or provision in the regulations for OHWD staff to paw over the personal, sensitive and private medical notes provided by a pensioner. Is this clear enough?
8.4 Should the individual fail to attend any meeting with the SMP, or fail to co-operate at all, the injury award percentage will be reduced to 0%, unless there are clear and unequivocal reasons for not doing so. Any subsequent appeal will be defended, or the case may be reassessed if the individual is then able to co-operate
Wow! Let's say that again, WOW! What regulation allows the PPA to reduce the injury award to 0% if the pensioner fails to attend an SMP meeting or if they fail to co-operate at all? This is fantasy land stuff and is UNLAWFUL. Again, we believe that this is clear indication as to the contempt in which they hold those in receipt of any injury award. They should bow their heads in shame!
9.1 An individual will remain on their current pay status (full/half or nil pay), once the PPA have granted permission for the IHR application to proceed, unless the individual fails to co-operate with the process. Once authority is given for the individual to be medically retired, they will revert to full pay from the date the PPA authorised the ill health retirement.
In closing, we would draw your attention to the comments we made in relation to 3.10 (ante).
Clearly someone has taken a lot of time and effort in producing this dreadful document, and we can only assume that the Chief Constables of Surrey and Sussex have viewed and authorised this policy.
Chief Constable of Surrey – Gavin Stephens Chief Constable of Sussex – Giles York
We started this blog by saying that "File 13" is a euphemism for the trash can, and we've found a prime candidate for the use of such a receptacle.
We'd love to hear the hear the conversation between one of the chief constables and the author of this policy document when they're summonsed to his office.
Chief Constable: "So how long did it take you prepare this policy?"
Author: "About a week."
Chief Constable: "Well, that's how long you're not going to be paid for!"
Author: "Oh, okay. What do you want me to do with the policy?"
Chief Constable: "Put it in file 13, on the way out!"
The Shortcomings Of Certain SMPs
No man has a good enough memory to be a successful liar
In our previous blog we looked at some serious misconceptions which have been implanted in the minds of Selected Medical Practitioners (SMPs). Now we need to focus 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, who needs to be on the register maintained by the General Medical Council. The doctor, once appointed, is generally referred to as the SMP or selected medical practitioner.
We made the important point in the last blog that SMPs are nearly all doctors who have not made it their professional objective to do what is accepted to be the main work of doctors, such as healing the sick, researching for cures to diseases, or caring for the terminally ill. Instead, they chose to find work in the field of occupational medicine, formerly known as industrial medicine, where they spend their days, to quote, from various sources, '. . . concerned with the maintenance of health in the workplace, with secondary objectives of maintaining and increasing productivity and social adjustment in the workplace.'
An objective observer may consider there is an inbuilt conflict of interest where a doctor is employed by a commercial organisation in a role which is essentially to assist productivity.
It might also be thought that an occupational health doctor employed in the public sector would be free of any hint of conflict of interest, for there is no pressure on them to have an eye on their employer's profit margin, Sadly, when it comes to the police service, whilst there is no profit margin to worry about, Chief Constables fret, with good cause, over the costs of running their force. They are encouraged to make savings by successive Governments, who in the same breath will demand greater efficiency and falling crime rates.
No wonder then that some Chief Constables have looked at the cost of providing injury pensions and have strayed into dangerous territory by enabling their HR and Occupational Health managers, along with the SMPs used by their force, to be 'inventive' with their application of the law governing the administration of injury pensions.
Elsewhere in this website, there are numerous examples of the sharp practices which have resulted from some Chief Constables forgetting entirely that their responsibility to the law precludes them from putting their worries over their shrinking budgets before their duties as managers of the police injury benefit scheme.
Put simply, police injury benefits should be managed with no thought to the financial effect of decisions made regarding a serving officer's or injured retired officer's medical condition. Decisions made by a SMP need to be made free of any pressure, whether overt or merely hinted at, to act in ways which are influenced by financial outcomes.
Some SMPs, however, 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 biase.
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 a 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 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, and 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.
We have heard much about the unpleasant and coercive practice whereby the SMP asks the disabled person to complete a "customer satisfaction" survey. The pensioner is told something along the lines of, 'No, you can't take it with you to complete and send it back. 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 around £250 an hour, that is as shady dealer Arthur Daley would say, 'A nice little earner.'
We are frequently told of SMPs reports which bear little to no relationship to what was said and done during an examination or interview. In the most extreme examples an SMP has told the pensioner verbally during the examination/interview 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 a 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, or 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 so 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 in 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 HR/ 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.
Do SMPs Put Their Patients First?
IODPA Admin 2020-01-20 2020-03-03 smp
— 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.
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.
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.
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.
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.
In a blog published last year – https://iodpa.org/2018/07/03/recordingreviews we said:
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.
The Wirz virus
IODPA Admin 2019-11-24 College of Policing, GMC, smp
Like computer viruses, successful mind viruses will tend to be hard for their victims to detect. If you are the victim of one, the chances are that you won't know it, and may even vigorously deny it.
— Richard Dawkins: English ethologist, evolutionary biologist, and author.
Doctors are expected to do what they can to prevent the spread of viruses, and to cure those who are made ill by them.
How contrary then is it that a handful of doctors seem content to be infected by a species of virus which has taken hold in their own minds? A virus, the very specific effects of which are to confuse the host with delusions of power and a warped interpretation of the set of Regulations which govern the police injury award scheme.
We speak of those doctors, who act in the role of 'selected medical practitioner' (SMP) for the several Police Pension Authorities (PPAs) in England, Wales and Northern Ireland. SMPs have a role in the administration of the police injury benefit scheme. They are responsible for making certain regulatory medical decisions. The most notable being determining an officer's or former officer's degree of disablement resulting from injury on duty.
A certain solicitor, after whom the virus is named, who is employed by a certain Northern police force is suspected, with good reason, as being responsible for the creation of the virus and for its release.
The virus is known as the Wirz virus and has been in circulation for some time now – and we in IODPA think it is long overdue that all PPAs, all the Human Resources departments of police forces, and all doctors who act as SMPs or as panel members of police medical appeal boards should be made aware of the virus and the threats it contains to their reputations and careers.
Disabled former officers, and injured serving officers also need to be made aware of the Wirz virus and of those doctors and others who have been infected by it. And that is where IODPA can help.
IODPA exists to provide advice, support and defence of their pension rights. We regularly hear of mistakes made by those involved in the management of the police injury benefit scheme. Mistakes arise from a variety of causes. Some are due to lack of training, some from lack of knowledge, some from carelessness, some from prejudice, some from laziness, some from a lack of moral courage, some from a desire not to be seen as a poor team player and a few from deliberate intent.
All of these can usually be dealt with, and corrected, one way or another, but the Wirz virus inserts something much more damaging than simple mistakes into the system. The Wirz virus spreads misinformation and does so in a way which leads those infected to absolutely believe the misinformation. Those infected inevitably produce work and decisions which are always legally flawed. Their entire output is contaminated.
That causes great harm to disabled former officers, injured serving officers, and their families. It also harms the hosts – the carriers of the virus – and the reputation of the medical profession itself.
Our sympathies are centred on the victims of maladministration but we do reserve a small concern for any honest, decent, ethical doctor or HR staff who might have unwittingly been infected by the Wirz virus. We have, however, no sympathy whatever for anyone who deliberately or negligently denies disabled former officers or injured serving officers their pension rights.
Whilst feeling a little bit sorry for some SMPs, we recognise also that the role of SMP is reportedly widely recognised within the medical profession as something to be avoided at all costs. The main factor informing that perception appears to be an awareness of the strong likelihood of becoming embroiled in litigation and complaints due to being required to act in ways unknowingly contrary to the Regulations. The Wirz virus causes SMPs and others to believe all complaints, all challenges to maladministration are vexatious and, above all, should not be made as SMPs have immunity from professional regulatory investigation or proceedings
Let's divert briefly to highlight the origin of this situation.
By a peculiar initiative of the Home Office, it became a requirement that SMPs should preferably hold a qualification in occupational medicine.
In 2002 it was agreed by the then Police Negotiating Board that it should produce, with the Home Office, joint guidance for police authorities and force senior managers on the key areas of managing ill-health retirement.
In due course a joint circular was issued which contained this:
'Qualifications of FMA and SMP
It is difficult to be prescriptive about the minimum qualification an FMA should have since there are many existing FMAs with considerable experience but relatively few occupational health qualifications. New FMAs should be recruited with the minimum requirement that he or she be an Associate of the Faculty of Occupational Medicine (AFOM) or EEA equivalent and be given the opportunity quickly to build up a good knowledge of the police service and the range of duties that need to be performed.
Ideally, the SMP should be a Member or Fellow of the Faculty of Occupational Medicine (MFOM or FFOM), or EEA equivalent. The minimum requirement should be that he or she is an Associate of the Faculty of Occupational Medicine (AFOM) or EEA equivalent. Before appointment as SMP the police authority must provide the medical practitioner concerned with an induction programme and other training so that he or she has an understanding of what police service entails.
The logic of this advice is suspect as it seems to suggest that only a doctor with such a qualification has the skill and experience to perform the role. If the role of SMP included a brief to help injured officers back to health so they could continue to serve, then an occupational health qualification might be useful. But SMPs are not required to do that. They have no part to play (and rightly should have no part to play) in treatment of an officer or former officer. A SMP is there merely to decide certain regulatory questions which are part of either the ill health retirement process or part of the injury benefit scheme. It seems to IODPA that an occupational health qualification is pointless and by only selecting doctors with that qualification to act in the role of SMPs helps create conditions for maladministration.
Any illusory advantages an occupational health qualification might bring are heavily outweighed by one major disadvantage. At a stroke the agreement reduced the pool of potential doctors who might wish to act in the role of SMP down to a fraction. In 2018, almost 290,000 doctors were registered in the United Kingdom. Few hold, or want to hold, qualifications in occupational health.
The net result is that SMPs nearly all come from a very restricted pool of medical professionals who by no stretch of the imagination can be said to be sufficiently 'appropriately qualified' as required by the Regulations. More experienced, better qualified doctors are excluded.
Back to the Wirz virus.
Mr Wirz. With the cooperation of that esteemed body of rational thought and learning, the Police College (wholly funded by the Home Office), decided to give SMPs the benefit of his inestimable insight into the detail of the police injury benefit scheme. A training programme was devised. It was given the grand title of Police Pensions (SMP) Development Event and was held at the college on 31st January 2014.
We have visited the content of Mr Wirz's presentation before, and continue to hold our low opinion as to the quality, relevance and accuracy of the content. For now though we need look at only one section to make the point that this training was responsible for sowing confusions and misdirecting SMPs.
Mr Wirz, addressing the issue of complaints made to the General Medical Council by officers and former officers against SMPs stated,
The GMC believes it has jurisdiction over medical practitioners performing a function under the Regulations.
He continued:
It is by no means clear that the GMC does, in fact, have jurisdiction over an SMP when acting as such. The SMP takes their authority from the statute as interpreted by the courts. Does the GMC have any locus in these circumstances? In other scenarios where medical practitioners perform a judicial function, taking their authority from the relevant enabling legislation/common law, the GMC has no jurisdiction. An example would be the role of Coroner.
IODPA is aware the GMC has consistently been very clear that SMPs need to act according to GMC guidelines, and that breaching those guidelines carries a risk of complaint and consequent investigation by the GMC.
We present here the recently-expressed view of Mr Percival who is the Principal Legal Advisor and Deputy General Counsel to the General Medical Council, and Judge, First Tier Tribunal Health, Education and Social Care Chamber at HM Courts and Tribunal Service.
Even in the case of judges who sit in courts or tribunals, there is not complete immunity from regulatory proceedings. This is demonstrated by the existence of the Judicial Conduct Investigations Office, with powers to investigate misconduct relating to a judge's personal behaviour whether in court or outside of court, though not of course a judge's decisions or judgments made in the course of court proceedings which can only be challenged via the appropriate appellate proceedings.
So far as registered medical practitioners are concerned, the Court of Appeal in its judgment in the case of Meadow v General Medical Council [2006] EWCA Civ 1390 declined to extend the immunity from suit (from claims in the civil courts) in the case of expert witnesses to also cover immunity from regulatory proceedings. The reasons given were clearly stated by the Court of Appeal, namely that "although the need for fearlessness and the avoidance of a multiplicity of actions has been held to outweigh the private interest in civil redress, hence the immunity from civil suit, those public policy benefits do not and cannot (or at least should not) override the public interest in the protection of the public's health and safety enshrined in the GMC's statutory duty to bring FTP proceedings where a registered medical practitioner's fitness to practise is impaired."
For this reason, the equivalent immunity from professional regulatory investigation or proceedings which appears to be being suggested to apply to SMPs, has been held by the Court of Appeal to be contrary to the public interest in the case of expert witnesses – whose role and function in a wide array of legal proceedings of substantial public importance can, as acknowledged by the Court of Appeal in Meadow, present risks of complaints being raised which are very much the same as those potentially arising in relation to SMPs.
As you will be aware, the overarching objective of the GMC is the protection of the public. This involves:
protecting, promoting and maintaining the health, safety and well-being of the public,
promoting and maintaining public confidence in the medical profession, and
promoting and maintaining proper professional standards and conduct for members of that profession.
We are not aware that the particular role of SMPs raises any substantially different arguments for immunity from regulatory proceedings from a public interest perspective than does the role of the expert witness in court proceedings. For these reasons, the GMC does not currently consider that there is any more justification, or legal basis, for exempting SMPs from its regulatory jurisdiction than there would be for exempting expert witnesses from the same in respect of their role in giving expert evidence in a wide range of judicial proceedings.
From all the evidence, from all of the accounts we hear from our members, it is beyond argument that some police pension authorities allow, perhaps even encourage, their SMPs to conduct medical examinations and interviews in ways which cause real and lasting damage to health. At the very least, PPAs remain unaware of what is being done in their name, not just by SMPs, but by HR staff also. This has to stop. Police pension authorities need to find a better, less intrusive, kinder way of discharging their responsibilities under the Regulations.
On that note, we will have to draw to a conclusion, for reasons of space, but we will return in a future article to further examine the role of the SMP.
Northumbria Police Produce Guidance To SMPs
IODPA Admin 2019-10-08 smp, Uncategorized
A man who works evil against another works it really against himself, and bad advice is worst for the one who devised it.
— Hesiod (Greek poet, generally thought to have been active between 750 and 650 BC.)
We all receive advice as we progress through life. Parents, teachers, doctors, financial advisers, police officers, lifestyle coaches, diet experts and many others – they all hand out advice. By all accounts, much of it is then promptly ignored.
Perhaps that reaction can be explained by an instinctive understanding that it can be difficult to spot bad advice, especially when it comes from an authoritative source. Essentially, advice is seen as not to be followed blindly, but to serve only as someone's point of view, before making up your own mind what to do or not do.
With that in mind, this blog is about some seemingly professional advice issued as 'guidance' by Northumbria Police to the doctor or doctors who are tasked to make certain decisions in regard to so-called 'reviews' of the degree of disablement of former officers of Northumbria Police.
The guidance is reproduced in full, below –
IOD Reviews and Reconsiderations Case Law Reference for SMPs
We should explain, for new readers, that officers who are injured on duty and as a result become disabled to a degree which prevents them continuing to perform the full range of ordinary duties of a police officer are retired, with an injury pension. The old phrase used for this involuntary retirement was that the individual was 'cast from the force'.
The amount of injury pension paid is tied, in part, to the 'degree of disablement' which is the extent to which an individual's capacity to do paid work has been eroded by the disablement.
It is accepted there is a possibility the degree of disablement present at the point of retirement may alter at some later stage. The injury pension Regulations allow, therefore, for a police pension authority to consider, 'at such intervals as may be suitable' whether an individual's degree of disablement has altered. If it has altered substantially, then the amount of pension paid can be revised. This process, of medical assessment and decision is commonly known as a 'review'.
The Regulations require that the scheme manager, who holds the office of Police Pension Authority ('PPA'), shall select a 'duly qualified medical practitioner' to decide whether there has been any alteration, and if there has been, decide the extent of the alteration. This doctor is known commonly as the Selected Medical Practitioner, or the SMP. The guidance issued by Northumbria Police is to those doctors.
We understand the guidance has been widely circulated and has not been confined to only Northumbria's SMPs. Thus, its influence, and potential impact, has spread far and wide, across many of the 43 police forces in England and Wales.
Can guidance from such an authoritative, seemingly professional source, be trusted? We suggest not. Northumbria has a long history of misunderstanding the Regulations. We need hardly remind ourselves of the disgraceful actions of Northumbria's resident SMP, Dr Broome in reducing, at the stoke of his pen, the pensions of some 70 disabled pensioners.
We believe that Dr Broome, who describes himself as a 'consultant occupational physician' was undoubtedly guided in his actions by Northumbria's resident solicitor, Mr Wirz.
An appeal, by way of judicial review, was made by several of the affected pensioners. They won their case. Here is what the court report has to say:
Dr Broome, the SMP, dealt with all 70 cases on the same day – 20th February 2009. In each case he reduced the degree of disablement to Band 1. In Mr Crudace's case his reasons were expressed in a letter of that date which reads:
I am advised that the Pensioner has reached State Retirement Age and therefore, in accordance with the Regulations, the Pensioner "no longer has an earning capacity for the purposes of the Police Injury Benefit Regulations". Northumbria Police has also determined that there is no "cogent reason" why the Pensioner should not, therefore, be considered to have 0% loss of earnings capacity and as a consequence of their injury, and should be placed in the 0-25% Degree of Disablement banding. I confirm that the above recommendations are consistent with the Regulations and I attach a revised Statement of Injury
Dr Broome should have weighed more carefully whatever guidance was directed his way. For his part, and in our humble opinion, solicitor Wirz would have in turn relied on guidance issued by none other than the Home Office.
That guidance, contained in Home Office circular 46/2004, which one would think should have been beyond critical appraisal given its source, was declared to be unlawful later and the Home Office withdrew significant parts of it.
It is worth nothing that both Dr Broome and Mr Wirz have had several other unsuccessful ventures in the appeal courts. Indeed, it is hard to find any record of a successful outcome in the law courts for these two.
Yet they both continue to be employed by Northumbria Police, despite all the above.
The rub is, Dr Broome, being paid by Northumbria Police, can hardly be classed as impartial. He who pays the piper calls the tune.
It is all very well that Northumbria's Chief Constable and the local Police and Crime Commissioner are content to have Dr Broome and Mr Wirz on the books. Perhaps their shortcomings are compensated for by excellence in other aspects of their duties. However, when bad advice is more than likely circulated by Northumbria to other forces – forces who may be blissfully unaware of the track records of Mr Wirz and Dr Broome. These forces may be tempted to take the guidance as sound, valid and watertight, and might recommend it to their own SMPs.
They would be wrong to do so.
The motives of Mr Wirz remain known only to him, but glimpses of his thinking can be caught from reading the guidance. It can be read on two levels – the visible and the unstated. For those who have knowledge of the history of police injury pension maladministration, the unstated theme of the guidance is obvious. It is, in our view, a cynical attempt to manipulate SMPs into applying the regulations in an unlawful manner.
We don't propose to present a detailed critique of the Northumbria guidance, for that would take up too much space. Instead we suggest to any other force, and any other SMPs who might be tempted to adopt this guidance, that they would do well to treat it with circumspection and a healthy level of suspicion.
It may though be helpful to sample the guidance at its start, in the middle, and at its end. A sample is all that is needed to demonstrate just how badly flawed is the entire guidance, and how any SMP or police pension authority who chose to rely on it could expect the certainty of successful legal challenge.
It is laughably ironic that the guidance warns, at the outset, that SMPs should not rely on Home Office guidance. The very guidance which Dr Broome and Northumbria Police failed to identify as flawed and unlawful back in 2009.
Although the Home Office withdrew parts of the guidance (46/2004 circular) they left virtually intact and in circulation a hugely more detailed and lengthy guidance which was composed by the same person.
So, Northumbria is right to warn SMPs conducting reviews that,
. . . case law confirms that the approach to this issue contained in historic Home Office Guidance should not be relied upon.
But Northumbria is being partisan by omitting to caution that case law equally confirms that, given its track record, the approach to most issues of injury pension law by Northumbria police pension authority should not be relied upon.
Further into the guidance, speaking about reviews, it advises,
The SMP must establish, relying on admissible evidence, whether the pensioner remains disabled, and if so, whether the disablement caused by the qualifying medical condition is permanent.
This is not at all what 'case law confirms'. The SMP is required to accept the previously-decided degree of disablement, and with that as the starting point, must then determine whether there has been any alteration from that level.
We note the guidance neglects to cite the 'case law' it relies upon. We can put the matter straight by quoting from the case report of Haworth and Northumbria Police Authority [2012] EWHC 1225 (Admin).
At paragraph 24, we see the court's opinion:
Upon any such review the starting point on disablement has to be taken as that reached by any previous review as a matter of substance and a new review cannot lawfully seek to re-open questions on disablement, and in particular on causation, already determined by earlier decisions of the material medical authority.
Given that this was a judicial review case involving Northumbria, it seems all the more suspect that its Guidance to SMPs is so much at variance with the decision of a court and that it relies on unidentified legal authority here.
Moving to the bottom of the guidance it can be seen that SMPs are being advised directly to divest themselves of a legal duty in certain circumstances.
Those circumstances are currently the subject of an ongoing legal case involving Staffordshire's police pension authority, so we can't comment in detail. Suffice to say that the issues revolve around the data protection rights of private citizens and the limits of authority of a Police Pension Authority in making decisions concerning degree of disablement.
We can point out though that the Police (Injury Benefit) Regulations 2006 place a duty on the SMP to make a decision. Regulation 30 states, very clearly a police pension authority. '. . . shall refer for decision to a duly qualified medical practitioner selected by them . . .' certain decisions.
The Northumbria guidance, in complete contradiction, says this:
As SMP you should avoid attempting to make a determination in the absence of information which you, in your professional judgement, consider necessary in order to complete the determination.
It is IODPA's informed understanding that a SMP must make a decision. The regulations offer no option where the SMP can decline to decide. There is a duty on the SMP to make a decision. If there is no evidence, for whatever reason, of substantial alteration in degree of disablement, then the decision of the SMP can only be, and should only be to declare there is no evidence of alteration.
The importance of Northumbria's guidance on this point is that, if a SMP declines to make a decision, claiming certain information is not available, then an aggressive police pension authority might be tempted to claim the pensioner had wilfully or negligently refused to be medically examined. Thus allowing the police pension authority to turn to regulation 33 and make the decision itself.
That is the very crux of the litigation which is currently engulfing Staffordshire police pension authority.
Whilst that case is ongoing IODPA cautions all SMPs to be very careful in respect of the totality of the guidance issued by Northumbria. The guidance is adversarial in tone, emanates from a source with a record of losses at judicial review and is most probably penned by an individual who has an axe to grind.
We have said it before and we repeat it again. Forces need to ensure they, and their SMPs conduct reviews rigorously within the regulations, utterly fairly, without bias, and with the welfare of the disabled former officer firmly in mind in all that they do.
Collusion by Human Resources
IODPA Admin 2019-03-05 Employment Appeal Tribunal, HR, smp
Who shall set a limit to the influence of a Human Being?
— Waldo Emerson
Had the poet been around today, he might have mused over the influence of Human Resources ('HR') managers.
In this blog we take a look at another Employment Appeal Tribunal ('EAT') case and reflect on how the events and decisions made echo the experiences of too many disabled former officers.
The focus is on the dubious and what surely must be unlawful practice by some HR employees of exerting undue influence on the regulatory decisions made by Selected Medical Practitioners ('SMPs').
We could also say that some SMPs are more than willing to be influenced.
The case we briefly explore is the 2015 hearing of Ramphal v Department for Transport UKEAT/0352/14.
Here is the full report:
Mr_I_R_Ramphal_v_Department_for_Transport_UKEAT_0352_14_DA
Mr Ramphal was an employee of the Department of Transport. There was a disciplinary hearing to investigate possible misconduct in relation to the expenses Mr Ramphal had claimed and his use of hire cars.
Mr Goodchild, a manager with the Department of Transport, was appointed to conduct the investigation. Mr Goodchild was supposed to act as an independent and disinterested party, and he initially produced a draft of his findings of his investigation report, including his opinion that the misuse of hire cars was "not deliberate" and that the explanations given by the claimant in respect of expenditure on petrol were "plausible". Mr Goodchild's first report concluded that Mr Ramphal was guilty of misconduct rather than gross misconduct and that he should be given a final written warning as to his future conduct.
There then followed meetings of HR with Mr Goodchild as a result of which the report was amended with the findings in favour of Mr Ramphal removed. The report now concluded that Mr Ramphal's conduct amounted to to gross misconduct and recommended that he be summarily dismissed.
The matter went to an Employment Tribunal, which held that Mr Ramphal had been fairly dismissed.
Mr Ramphal appealed on grounds that the investigating officer's recommendations had been heavily influenced by input from Human Resources. The advice Mr Goodchild was given by HR was not limited to matters of law and procedure, and level of appropriate sanctions with a view to achieving consistency, but extended to issues of the claimant's credibility and level of culpability.
The Employment Appeals Tribunal found in favour of Mr Ramphal, stating that employment judge had failed to apply the decision of the Supreme Court in Chabra v West London Mental Health NHS Trust [2013], which set out guidelines on the role of HR in disciplinary investigations. In particular, HR's advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer.
A vitally important principle was drawn on by the EAT, namely that an employee against whom allegations of misconduct are made has an implied contractual right to a fair process. By interfering with what should have been an impartial decision by Mr Goodchild, the fairness of the investigation and hearing had been undermined.
This principle translates readily across to the role of the SMP, who is an appointed medical professional tasked by a Police Pension Authority ('PPA') to make a decision concerning the pension of a serving or retired officer.
Yet we hear, on a regular basis, accounts describing how HR employees interfere with what should be an independent and impartial decision. There appears to be a complete lack of understanding in some forces that there is a firm line between offering a SMP advice on the law and procedure and inserting HR into the actual decision-making process.
By way of example, and this is a very common occurrence, HR gather in information, often in contravention of data protection law, on an individual's financial and other circumstances. They then present the SMP with often ludicrous opinion on what jobs and what earnings the individual might be capable of. In this way they influence the SMP's decision on the individual's degree of disablement.
Such practice is appalling, but worse examples exist. We know of one case where a HR manager colluded with a SMP to alter the decision of a Home Office appointed medical referee. The referee had decided a certain level of degree of disablement, and this decision was altered to a lower level of disablement, and thus a lower level of pension payment.
We also know of another instance where a HR manager 'advised' a SMP to follow their recommendation that the injury pension of a disabled former officer be reduced from the highest level of payment to the lowest.
In a Northwest force, they took things even further, and had an civilian employee deciding the degree of disablement of individuals and then having the SMP put his name to a decision which the SMP had no part in forming.
The Regulations require that a PPA refer 'for decision' to a duly qualified medical practitioner certain matters. Clearly, when a PPA hands that responsibility to a SMP it must step back and let the SMP form their own opinion, without influence and without interference. This simply is not happening in some forces.
IODPA believes it is time all police pension authorities take a close look at the processes which HR departments have constructed around the way in which medical decisions are made. Police Pension Authorities need to take steps to ensure HR managers and SMPs are better informed and instructed on the limits of advice and how to prevent interaction between SMP and HR dragging them down into a quicksand of unlawful unfairness caused by undue influence.
Staffordshire – The Story To Date
IODPA Admin 2018-12-08 2018-12-08 Regulation 33, Regulation 37, Review, smp
All the things I really like to do are either illegal, immoral, or fattening.
— Alexander Woollcott (1887-1943)
Elsewhere on our web site are numerous comments concerning the action taken by Staffordshire Police in reducing the pension payments due to a group of disabled former officers. The comments make clear the feelings engendered in reaction to this dramatic turn of events.
IODPA has refrained from making comment as the issue is undoubtedly going to be subject to prompt legal challenge.
However, we can give an account of what has happened so far.
Officers who are injured on duty to such an extent they can no longer perform the ordinary duties of a constable can be required to retire. They can be awarded a one-off gratuity payment plus a pension, payable for life, as compensation for no-fault injury.
The compensation scheme is governed by The Police (Injury Benefit) Regulations 2006, which is secondary legislation made by a Minister of State under provision of The Police Pensions Act 1976.
The Regulations, specifically regulation 37, allow the question of degree of disablement to be considered from time to time, as appropriate, for it is recognised that the disabling effects of duty injuries may worsen or lessen. If there has been a substantial alteration, then the amount of pension paid can be revised accordingly.
On 26th April 2017 Staffordshire Police commenced a programme intended to review the degrees of disablement of the over 300 former officers who are in receipt of an injury pension.
The programme quickly ran into difficulties as pensioners raised issues questioning the legality of the programme, both in concept and in detail.
A major issue was the insistence of Staffordshire Police that it be allowed full unrestricted access to individual's medical records, from birth, and to personal financial information.
A number of pensioners refused to give permission, on the grounds that their personal data enjoyed detailed protection under data protection law and that there is nothing in the 2006 Regulations to require a former officer to submit any medical records made by any other doctor to the force or to any doctor employed by the force.
A further concern expressed by some pensioners was that they had no confidence Staffordshire Police was capable of conducting the review process lawfully. The content of various policy and process documents created by Staffordshire Police concerning the review programme arguably contained misinformation and misrepresentation of law.
A number of reviews were held, and the doctor tasked by Staffordshire Police to decide whether there had been any alteration in degree of disablement reported that, in some instances, due to the absence of permission to access medical records, he could not make a decision. The doctor later withdrew himself from any further involvement in the review process.
In December 2017 Staffordshire Police published a letter which sought to apportion all blame on the difficulties being experienced to, 'a small number of individuals'.
It emerged that in the majority of instances where pensioners had refused unrestricted access to their medical records no decision was made on alteration of degree of disablement, despite it being a requirement of the relevant regulation (regulation 30) that the appointed doctor is referred the question 'for decision'.
Each of the individuals concerned had attended an appointment arranged by the force with the force's doctor. They answered all questions which were put to them, and allowed themselves to be medically examined where this was requested. Some provided medical evidence showing there had been no alteration in their degree of disablement. in some cases, the pensioners were recalled within months to attend a second medical examination. Again, they fully complied.
On 26th November 2018, we reported that seventeen pensioners had had their pensions reduced.
This is the letter that was sent out to those who had refused permission for unrestricted access to their medical records. We reproduce a redacted copy of one of those letters here.
Morgan letter redacted
The letters announce that Staffordshire Police has turned to regulation 33, which it relies on as giving authority to reduce the injury pensions of those who had refused permission for unrestricted access to their medical and access to financial records.
It is worth reproducing regulation 33 here:
Refusal to be medically examined
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.
The letter indicates that Staffordshire Police has taken the view that it was not enough for the individuals concerned to have submitted themselves to such medical examination as had been arranged for them with the force's doctor, and to have allowed themselves to be interviewed by the doctor. Staffordshire Police appears to believe regulation 30 covers access to personal medical and financial information. Staffordshire Police thus claims there has been either a wilful or negligent refusal.
Consequently, a decision has been made by the force to reduce the pensions of the individuals concerned.
Moreover, the reductions are to be back-dated to the time when they saw the force's doctor.
The letter is essentially identical to each individual. Each letter fails to give any reason or insight into how the decision to reduce the pensions was taken, or on what evidence.
IODPA understands that solicitors have been instructed in challenging this extraordinary action by Staffordshire Police.
We will provide updates as the situation evolves.
Iodpa.org
Thank you for following our FB page. We start 2022 with over 2300 followers, which we are delighted about. IODPA is an organisation that supports, guides and lends a shoulder and ear to police officers who are facing ill health retirement, no matter what the injury or condition is. We are also there for police pensioners who have obtained their IOD award and live in the constant anxiety of a 'review'. Or indeed, are under review. We hope to make the process a little less daunting by being there, by being a trusted friend to officers in need.	... See MoreSee Less
May this former officer always rest in peace. Our hearts break upon hearing news such as this.Its was with great sadness that we recieved the tragic news earlier of a former Police Officer suffering with PTSD has sadly taken their own life. Out of respect to family, friends and colleagues we won't be sharing any further details. Our thoughts are with those left behind. ❤💙💚🧡 #itsoknottobeok #ptsd #thinblueline #oneistoomany ... See MoreSee Less
We do not plan to show the video coverage due to it being a possible trigger, but we would like to send our thoughts to the two Met officers who were violently attacked in late December in the Croydon area. One officer suffered a suspected fracture whilst the second officer suffered concussion. We hope that they make a full recovery, both mentally and physically. Our heartfelt thanks go to the member of the public who bravely rushed in to assist them. A 23 year old man has been arrested and charged	... See MoreSee Less
An article on page 35 that will resonate with so many injured officers who have been ill health retired from the job."My retirement on ill-health grounds passed in a whisper and a whimper. Ultimately I feel let down by my force and my supervisors." In an open and honest interview for #PoliceMag, one officer shares his story about how he felt left behind by his force, after he was forced to be ill-health retired, and his advice on how forces can better support their colleagues in times of need. Read the insightful piece here 👉 content.yudu.com/web/440a7/0A440oc/December2021/html/index.html?page=34&origin=reader ... See MoreSee Less
Wishing you all a very healthy and good 2022. Stay safe and look after yourselves. Here if you need us. IODPA 💙	... See MoreSee Less
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Injury On Duty Pensioners Association. Registered Charity Number 1174473 CIO. "Supporting the rights of injured officers"
Retweet on Twitteriodpaorg Retweeted
StueyA@stuartarcher2·
After 2.5 years on the sick, x2 expert reports and an SMP that refuses to accept either MENTAL health or the expert reports, my PMAB was successful.
I cannot thank @HavenSolicitors, especially Mark Botham and my local FedRep @PFEW_HQ for their expert counsel & support.. 1/2
rgaillimhe QPM@rgaillimhe·
33yrs ago on this date, I walked into the RUC training centre along with 30+ other folk who would become my squad mates. We spent hours signing documents, authorising deductions from our pay for everything from benefits in the case of injury to 50p for the police band.
iodpaorg@iodpaorg·
It appears that Essex Police intend to recommence injury pension reviews from April of this year. The official decision can be found here –
https://iodpa.org/2021/03/31/essex-police-to-recommence-injury-reviews/
Today is @comicrelief #RedNoseDay
Why don't you consider giving to a UK charity instead?
Every penny that you donate goes towards supporting police officers that have been injured on duty doing their job.
https://iodpa.org/donations-and-fundraising/
We'd heard Chief Constable Gareth Morgan is retiring from Staffs Police but cannot confirm this as we're still blocked.
We wish him every happiness in his retirement, safe in the knowledge that he won't be living in constant fear that his pension may be taken from him.
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