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Medical reviews of former police officers on injury pensions: Is there any duty to provide medical records?

There is a considerable debate at the moment about how far Chief Constables, acting as the Police Pensions Authority, (“the PPA”) and the Selected Medical Practitioner (“the SMP”), appointed by the Chief Constable under Regulation 30 of the Police (Injury Benefit) Regulations 2006 ("the Regulations"), can go to require former police officers to provide confidential medical information to assist in a review of a police injury pension conducted under Regulation 37. This post is designed to provide some clarity on the issue

The role of the PPA 

The PPA has a statutory duty under regulation 37(1) of the Regulations to refer former officers who are in receipt of an injury pension under those regulations for reassessment, but has a discretion to decide how often to do so. If a referral is under consideration, the former officer is under no statutory obligation to assist the PPA by providing information to assist that decision making process. The former officer may, of course, choose to do so. There are (as I see it) broadly 2 reasons why a former officer may choose to provide information to the PPA:

a)          To show that his or her degree of disablement has changed for the worse, and thus invite the PPA to refer his case for a review in order to seek an increase in the Band of the pension. If the PPA then refused to do so, that would be challenged either in a judicial review or an appeal under Regulation 34 to the Crown Court; and

b)         If the former officer thought the medical evidence showed that nothing had changed and so provided the information in order to seek to dissuade the PPA from ordering a review.

However the Regulations place no legal duty on former officer to assist the PPA by providing information at the stage when the PPA is considering whether to refer a case to the Selected medical Practitioner ("the SMP") for review. Hence there is no legal duty on a former officer to complete a questionnaire to assist the PPA decide to commission an SMP review. The former officer may choose to do so but has no obligation to do so. It follows that a former police officer cannot be penalised by a PPA for refusing to complete a questionnaire. The Merseyside PPA attempted to stop a former officer's injury pension because the former officer refused to fill in a Questionnaire. That was the subject of a judicial review challenge and the PPA backed down (and paid the former officer's legal costs).

The role of the SMP

The role of the SMP undertaking a regulation 37 review is to write a report which answers the statutory question as to whether there has been a substantial alteration in the former officer’s degree of disablement since the initial grant of the pension or the last review (whichever is later in time) ("the last assessment point"): see Laws v Commissioner of the Metropolitan Police. That is the only issue that the SMP is entitled to address and so the focus must be on the period from the date of the review going back to the last assessment point.

The SMP is entitled (but not obliged) to conduct a medical examination of the former officer under Regulation 33. If required to do so, the former officer is required to "submit" himself or herself to an examination by the SMP. he or she also has to "attend" such interviews as the SMP considers necessary (but cannot be called on to do so by anyone other than the SMP). Hence, for example, the SMP may ask a former officer with a psychiatric injury to attend a psychiatric or psychological examination as part of the process to decide whether there has been a substantial change in his or her degree of disablement since the last assessment point.

There is no express duty in the Regulations on the former officer to answer questions but, particularly in a psychological examination, the answering of questions is probably the only way that the officer can "submit" himself to an examination concerning his or her mental illness. But, there is no specific duty on the former officer to provide records made by any other medical practitioner of any medical treatment that he or she has had since the last reference point. The former officer may choose to do so but is not under any obligation to do so.

It is entirely understandable that the SMP may wish to see medical records relating to the former officer covering the period since the last assessment point. There is nothing improper in the SMP asking the former officer to provide access to his or her medical records, but the SMP cannot insist on disclosure. 

Medical records constitute a record, made by another doctor or healthcare professional, of that person's understanding of the presenting medical symptoms of the patient and the treatment provided to the patient. They are confidential to the patient the law will protect that confidentiality. Once the records are disclosed to the SMP, it seems inevitable that the records will be assumed by the SMP to be both accurate and comprehensive. Hence, the former officer will, in practice, be unable to challenge the accuracy or relevance of anything set out in a medical record. The doctor who made the records is not part of any review process and it follows that former police officers will, in practice, find themselves unable to challenge either the accuracy or the completeness of anything set out in records made by other doctors.

There is nothing in the 2006 Regulations to require a former officer to submit any medical records made by any other doctor to the SMP. These records are confidential to the former officer and that confidentiality attracts a high level of protection under article 8 ECHR: see Z v Finland. A legal duty on former officers to disclose medical records could only arise if there was a legal framework in existence which regulated the alleged disclosure duty. There is no such legal framework in teh 2006 Regulations. It follows that:

a)     The former officer is under no legal duty to disclose any other records; and

b)     When addressing the statutory questions in the review process and preparing a report, it must be impermissible for the SMP to draw any adverse inferences against the former officer because he or she refuses to disclose medical records.

A former officer may have legitimate reasons for not submitting the records because they may relate to a medical condition which is irrelevant to the issues the SMP has to consider or because the former officer considers that the records are either inaccurate or incomplete. However a former police officer cannot be asked to explain his or her reasons for choosing to keep their medical records confidential. Questioning a former officer about that decision would be a breach of the duty of confidentiality.

Hence, as long as the former officer submits to the examination and attends such interviews as he or she is required to attend by the SMP (but not by the PPA), there is no lawful sanction which can be imposed on the former officer for not attending with medical records or otherwise not agreeing to provide the SMP with medical records.

 A practice seems to have grown up recently of PPAs and/or SMPs “demanding” access to a former officer’s medical records and threatening to penalise a former officer who chooses not to disclose them. As far as I am aware, there is no legal basis to support such a threat.

 

Former police officers who wish to seek advice about this issue are encouraged to seek legal advice from Mr Ron Thompson of Haven Solicitors (ron@havensolicitors.co.uk) or Mr Mark Lake of Cartwright King Solicitors (Mark.Lake@cartwrightking.co.uk)