23 March 2005
Benefits and Work has obtained a copy of the previously secret list of standards that visiting DLA doctors’ reports are required to meet under the contract between the DWP and SEMA – now Atos Origin. Failure to meet any one of these key requirements makes a report “unacceptable” for use by the DWP and should lead to it being rejected by decision makers and no payment of taxpayers money being made. Yet Benefits and Work believe that many welfare rights workers will consider that a significant proportion of the reports they see fail to pass one or more of these key tests and may now be challenged on these grounds.
Under the IMPACT contract between SEMA and the DWP a list of 16 attributes of an Examining Medical Practitioner’s (EMP) report were drawn up. Of these, six are desirable attributes: failure to display them will not make a report unfit for purpose. These are attributes such as the report being: clearly presented with underlined headings; free from medical abbreviations and medical jargon and written in plain English.
EMPs are told that these attributes “enhance the product without being vital to its acceptability”.
However there are 10 attributes which EMPs are instructed are “key attributes in that they are a prerequisite for quality and if unsatisfied will render the product unacceptable.”
“Legible”: EMPs are told that “A passage may be regarded as legible if it can be read at not less than half the average speed of printed text, and no key words or phrases are indecipherable."
Illegibility of reports is a common complaint by welfare rights workers. If, prior to making a decision, a decision maker returns a report to Atos Origin because it is illegible, Atos Origin have to meet the cost of producing a typed transcript. However, once it has been used to make a decision, if the customer complains it is illegible the DWP are responsible for the cost of producing a typed transcript. We do know that the DWP frequently refuse requests for typed transcripts. Yet guidance given to decision makers, previously unavailable but now obtained by Benefits and Work, states that:
“Where the report has been accepted as "fit for purpose" and a customer subsequently asks for a copy of the report, if the customer states that it is illegible and asks for a typed copy then it must be provided at the expense of the Disability Carers Service (DCS)”.
The guidance does not appear to allow the decision maker simply to refuse to provide a transcript.
“Consistent”: EMPs are instructed that they must ensure that their report is not contradictory and that “A fact or opinion given in one part of a document should be in accord with all other components of the product”.
If, for example, at one point the EMP states that the claimant walks at a normal pace, but elsewhere states that the claimant has some difficulty moving around indoors, that would be inconsistent
“In accordance with defined procedures and current advice”: this means that EMPs must follow the guidance that they are issued with, a copy of which has been obtained by Benefits and Work.
“In accordance with legislation” : the EMP’s advice must be “given in accordance with the law”.
“FME consideration recorded” : EMPs are told that they must make clear to the customer any evidence which they have considered in giving advice and that “Further medical evidence is of particular importance in this context”.
Whether EMPs, or indeed the DWP, do disclose all the evidence made available to visiting doctors is an issue we will be revisiting over the coming months.
“Complete answers to all questions raised”: EMPs are told not to leave any part of the medical report form blank and to address any questions raised by the customer. If sections are left blank, this may make the report unfit for purpose.
“Advice adequately justified”: EMPs are warned that “Advice which is not accompanied by justification is no more than a gratuitous opinion”. The EMP must explain the reasons for reaching conclusions and “the underlying evidence by which he was guided”.
For example, the claimant may have said in their statement that their depression and anxiety means that they are too anxious and unmotivated to walk outdoors unaccompanied. If, in response to the question in the medical report about the need for guidance or supervision, the EMP writes “Could walk outdoors alone but prefers to have company” this should render the report unacceptable. This is because the EMP has given no reason for disagreeing with the claimant’s assessment of their needs, but merely offered an opposing opinion.
“Clear explanation of medical issues”: EMPs are told that “A report written solely in technical medical terms is valueless to the non-medical customer”. Where technical terms are used they, and their significance, must be clearly explained.
So, for example, if an EMP writes “Romberg’s sign –ve” in relation to a claimant with Chronic Fatigue Syndrome without explaining what Romberg’s sign is and why its being negative is of significance, that may be sufficient to render the whole report unacceptable.
“Full clarification of contradictions and/or conflicts” : if there are conflicts of evidence the EMP must show that they have recognised them, even if they cannot explain them.
“Not compromising decision-making”: the EMP is warned not to make any reference to entitlement to DLA or AA. So, if in the report the EMP refers to “the cooking test” or “lower rate mobility”, for example, that should make the whole report unacceptable.
Decision makers guidance
Guidance given to decision makers states that:
“The EMP and Medical Services Contract states that 99% of Examining Medical Practitioners (EMP) reports, and advice provided by MS must be "fit for purpose" and not result in Rework.
You consider a report/advice to be "fit for purpose" if:
- report/advice given is fair and impartial, and does not compromise Decision Making;
- report/advice given is legible and concise;
- report/advice given is in accordance with relevant legislation;
- report/advice given is comprehensive, clearly explaining the medical issues raised;
- report/advice given is in plain English and free of medical jargon; and
- report/advice given is complete, with no questions unanswered”.
Rework, mentioned above, is the practice of altering a medical report after it has been written. It is a practice which is beginning to incur the displeasure of the likes of Commissioner Williams (see CDLA 4127 2003) and is another issue we hope to shine a spotlight on over the coming months. For the present, it is sufficient to note that once a report has been used for decision making it cannot be “reworked” or altered in any way.
This suggests that if a tribunal accepted that a report is unacceptable by the DWP’s own standards then, even though these standards relate to a commercial contract rather than statute, it would be difficult for the tribunal to attach significant weight to the report or to adjourn to allow the DWP to put matters right.
All resistance is useless . . . possibly
No doubt any attempt by claimants or tribunals to assess reports by these standards will be strongly resisted by Atos Origin, who have their own system of scrutinising reports. Each attribute is graded with either an:
A: key requirements fully satisfied.
B: key requirements adequately satisfied but the auditor can specify elements that could be improved.
C: Key requirements are not satisfied to the extent that the product fails to meet Medical Services Professional Standards.
The quality assessment standards state that “If any area of the product generates a B or a C grade, the whole product is regarded as a B or a C.” In other words, significantly failing to meet any one of the key attributes, i.e. getting a grade C for any single attribute, makes the entire report unfit for purpose. Presumably Atos Origin scrutineers consider that 99% of their EMPs work is up to standard.
It was announced this week that Atos Origin has held on to the contract to carry out medicals on behalf of the DWP, a contract worth half a billion pounds over the next five years. Clearly the DWP must also be happy with the standard of work produced by Atos Origin.
But now, for the first time, claimants and welfare rights workers have objective standards by which they can judge EMP reports. The news that until now 99% of have met the required standards for legibility, for example, may cause incredulous laughter in the offices of many welfare rights agencies. It will be interesting to see whether the same 99% success rate is upheld by tribunals, now that the contractual cat has wriggled out of the bag.