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The Avoidance of Doubt(fire): police pensions and subsequent Selected Medical Practitioner determinations

The determinations of Selected Medical Practitioners (SMPs) made under the various Police Pensions Regulations and the Police (Injury Benefit) Regulations 2006 are, in many cases, supposed to be final unless or until they are appealed. Subsequent SMPs, Police Medical Appeal Boards and, on occasion, the lawyers acting for both officers and police pension authorities, seem prone to forget this principle. When they do, the High Court always welcomes them with open arms and a consistent eagerness to remind them that careful adherence to the statutory procedures for injury on duty awards is in everyone’s long-term interest.

The case of R (Evans) v Chief Constable of Cheshire Constabulary and Police Medical Appeals Board [2018] EWHC 952 (Admin) is the latest case to confirm this principle. While there is little in the decision that ought to come as a great surprise, the judgment does include an unambiguous critique of the decision in R (Doubtfire & Anor) v Police Medical Appeal Board [2010] EWHC 980 (Admin), which ought no longer to be regarded as good law. It also gives clear advice to SMPs and PMABs, who may be considering the question of an injury on duty award years after the first determination under the Police Pensions Regulations 1987.


Mr Evans had served as a police officer with the Cheshire Police Force since October 1988. He suffered a number of injuries and was involved in several traumatic events during the period of his service. From October 2004, the claimant suffered psychological symptoms. He was absent from work on medical grounds, returning in September 2005, at which point he undertook non-operational clerical roles for the defendant.

On 27 June 2007, a selected medical practitioner found that Mr Evans was disabled from performing the ordinary duties of a member of the Police Force, by reason of (i) mechanical back pain; and (ii) post-traumatic stress disorder; and that both of these disablements were “likely to be permanent”. This was a determination made under paragraphs A20/ H1 of the Police Pensions Regulations 1987.

Mr Evans continued working in non-operational roles until December 2015, the defendant required the claimant to retire as a police officer, on the ground of permanent disablement. This decision followed a report from a second medical practitioner (also described as an SMP determination) that Mr Evans was not permanently disabled due to mental health, but that his physical injury was a permanent disability.

Mr Evans then applied for an injury on duty award, the entitlement to which is determined (and quantified) by the Police (Injury Benefit) Regulations 2006 (the PIBR). He was again referred to a third SMP to determine this entitlement and, if appropriate, the band of disability.

In April 2016, the third SMP determined that Mr Evans had had a permanent disability as a result of “significant degenerative changes in his right shoulder joint”. He also found that Mr Evans had “ongoing psychological problems”, resulting in “mixed anxiety and depression” which would “probably benefit from access to psychological therapy”. He determined Mr Evans was entitled to an injury award in Band 1 (the lowest band).

Mr Evans appealed to the PMAB

In its determination, the PMAB decided that it disagreed with the third SMP about the orthopaedic injury, and that Mr Evans did not have degenerative osteoarthritis of the right shoulder.  Further it decided, agreeing with the third SMP, that Mr Evans was not permanently disabled from performing the ordinary duties of a police officer by anxiety/depression.

Decision of the PMAB

The PMAB considered the legal position and tests it had to consider under Regulation 30(2) of the PIBR.

Regulation 30(2) of the PIBR provides as follows:

“(2) Subject to paragraph (3), where the police pension authority are considering whether a person is permanently disabled, they shall refer to a duly qualified medical practitioner selected by them the following questions

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent,

except that, in a case where the said questions have been referred for decision to a duly qualified medical practitioner under regulation H1(2) of the 1987 Regulations or regulation 69 of the 2006 Regulations 1  a final decision of a medical authority on the said questions under Part 14 of the 1987 Regulations or as the case may be Part 7 of the 2006 Regulations shall be binding for the purposes of these Regulations;

and, if they are further considering whether to grant an injury pension, shall so refer the following questions –

(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;”

The PMAB made the following observations:

“…the case of Doubtfire and Williams (2011) makes it clear that the conditions determined by the SMP at the A20 stage are not binding on the future injury on duty decision because the decisions are separate legal decisions and must be independently conducted.”

The PMAB went on to conclude that none of the shoulder, back or mental health conditions amounted to a permanent disablement preventing him from undertaking the ordinary duties of a police officer. As a consequence, as there is no permanent disablement, it is unnecessary to further address the questions at Regulation 30(c) & (d).

Thus Mr Evans lost even the band 1 injury award that the third SMP had allowed.

The Judicial Review

The core of Mr Evans’ judicial review was that, contrary to the PMAB’s understanding of the effect of the decision in Doubtfire, on its proper construction, regulation 30 of the PIBR limited the questions that the Police Pension Authority could lawfully require the third SMP to answer, in deciding whether the claimant was entitled to an injury pension. When applying PIBR Reg. 30(2) (a) and (b), neither the third SMP nor the PMAB had the power under the PIBR to depart from the determinations of the first SMP under the 1987 Regulations. The paragraph that sits between subsections (b) and (c) makes this clear.

The High Court focussed its analysis of the appeal on the cases of Doubtfire and the decision of the Court of Appeal in R (Laws) v Police Medical Appeal Board & Anor [2010] EWCA Civ 1099; [2011] ICR 242.

The key basis for the decision in Doubtfire, identified in Evans, was that a subsequent SMP’s determining the question of whether an officer’s disablement was caused by an injury ought not to be forced to do so by reference to the diagnosis of an earlier SMP with whom the second SMP disagreed. The High Court observed in Doubtfire:

“Finally, if it had been intended that the diagnosis of the SMP or Board answering the disablement questions would be final, the Regulations would have said so. The regulations very carefully avoid saying that.”

Laws involved a consideration of the extent to which earlier decisions of an SMP were binding on subsequent SMPs conducting reviews under Regulation 37. It was therefore involved with a slightly different aspect of the PIBR scheme. The Court of Appeal observed:

“It is clear from these provisions that each determination of the SMP, or on appeal by the board, is to be treated as being final…. But the clear legislative purpose is to achieve a degree of certainty from one review to the next such that the pension awarded does not fall to be reduced or increased by a change of mind as to an earlier clinical finding where the finding was a driver of the pension then awarded.”

Having considered these cases, Mr Justice Lane had no hesitation in accepting the Claimant’s argument that earlier decisions of the SMP were final. He found that Regulation 30(2) is clear: when making a decision about an injury award, previous (unappealed) decisions by an SMP on issues (a) and (b) taken under the 1987 Regulations are binding on a subsequent SMPs or PMABs, who will therefore only be considering questions (c) and (d).

Importantly, at paragraphs 38-39, Lane J stated:

“Leaving aside for the moment the case law, as a matter of pure statutory construction of regulation 30 , I consider that what is made binding is not just the bare answers to questions (a) and (b) but also the reasons (that is to say, the diagnosis) underpinning those answers… Any doubt concerning the correctness of this exercise of statutory interpretation is, I find, laid to rest by the judgments in Laws.”

Although the Court of Appeal decision in Laws was not binding, Lane J determined that the Court of Appeal’s reasoning was persuasive, and that the decision in Doubtfire “cannot withstand scrutiny and is, in any event, incompatible with the approach taken by the Court of Appeal in Laws.” 

The effect of Lane J’s decision is clear and should not be misunderstood: Both the SMP’s determination as to permanent disablement and the clinical diagnosis underlying it are binding on subsequent SMPs or PMABs considering whether or not to make an injury award, and if so the degree of disablement.

The consequence of this is, as observed by counsel for the Respondent, that SMPs and PMABs would be compelled to make findings in response to questions under Regulation 30(2) (c) and (d) on the causation of injury and the degree of disablement, even where those doctors are fully persuaded that no such disablement exists. Lane J’s response at paragraph 43 was “I understand the difficulty. The fact is, however, that that is what the legislature has decreed. It is the price to be paid for giving police officers a proper degree of certainty.”


So there you have it. It is fairly common for an SMP to determine that an officer is permanently disabled under the 1987 Regulations several months or even years before the officer is retired and submits an application for an injury on duty award. When this occurs, the task of the subsequent SMP/PMAB is described in paragraph 44 of Lane J’s decision:

“In the circumstances with which we are here concerned, the task of the second SMP/PMAB remains, in my view, professionally coherent. The diagnosis of the first SMP must be accepted, with all that entails. The second SMP/PMAB then needs to determine, on what it would have to regard as a clinical hypothesis, the issue of causation and the degree of disablement.”

Lastly, in a useful reminder to all those who produce formal reports to which detailed reference may need to be made, Lane J observed at paragraph 24 that “I agree it would be better if, in the future, PMAB reports were to take the form of numbered paragraphs.” (Unlike this blog post).