3 December 2003
Scottish law lords sporting wigs and stockings have unveiled a new 'pantomime principle' of legal challenge. The principle allowed them to overturn a decision by a tribunal of commissioners that a reasonable person might fear that a doctor who worked for the DWP could be biased when acting as a tribunal member in disability living allowance appeals.
He who pays the piper
The decision in question has been working its way through the appeal system since 1999. The claimant, James Gillies, appealed to a tribunal when his application for DLA was turned down. When that appeal was also unsuccessful he appealed further to the social security commissioners. One of the grounds of his appeal was that the doctor who sat on the tribunal had been employed by the DWP's subcontractors SEMA to carry out personal capability assessment (PCA) medicals for incapacity for work and DLA medicals. At the time of the appeal tribunal the doctor no longer carried out PCA's but still did home visits to assess people for DLA. The claimant argued that there was a possibility that the doctor could be unconsciously biased in favour of the medical opinion of another such doctor who had provided a report in his case.
This seemed such an important point of law that a tribunal of three commissioners, rather than the usual one commissioner, was convened to look at the matter. The tribunal held that the test was whether a reasonable and well informed observer might believe there was a possibility of bias. The commissioners held that doctors carrying out medicals for the DWP were a small group of specially trained, approved and monitored doctors. They considered that reasonable people might well believe that a small identifiable group might have an unconscious bias towards each other.
The commissioners bore in mind the fact that whilst doctors doing DLA examinations are permitted by the Tribunal Service to sit on tribunals, doctors doing PCAs, which are done at DWP medical centres, are not. This fact, they considered, showed that the Tribunal Service itself considered that there could be an appearance of bias. They also held that most people would not see any real distinction between carrying out PCA medicals and DLA medicals and that if there was a fear of bias in relation to one set of doctors there would be the same fear in relation to the other.
The DWP appealed against this decision to the Court of Session, the Scottish equivalent of the English and Welsh Court of Appeal. Meanwhile many similar appeals were put on hold waiting for this case to be heard. The DWP and the Appeal Service piled on the pressure by letting it be known that if the DWP lost the case the whole system of DLA tribunals would grind almost to a halt. This was because most of the doctors who are willing to sit on appeal tribunals also carry out DLA medicals. If these doctors were disqualified from hearing appeals very few tribunals would be able to sit and a huge backlog of cases would develop.
Nobody expects . . .
The claimant's first line of defence against the DWP's case was that the DWP had given no point of law on which to base their appeal. It is not permissible for a higher court such as the Court of Session to overturn a lower court's decision simply on the basis that given the same facts they would have reached a different decision. For an appeal to succeed the DWP needed first to show not just that they disagreed with the decision, but that the commissioners had made an error of law in reaching it. Examples of errors of law would be that the commissioners had applied the wrong legal test, got the facts wrong or shown bias themselves. The burden of proof lies with the party making the appeal, in this case the DWP, to prove to the satisfaction of the court that an error took place before the rest of the case can be heard.
The lords of the Court of Session agreed that the DWP must show an error of law; they also agreed that the Commissioners had applied the correct legal test and that they had got all the facts right. However, somewhat astonishingly, they decided that they had the right to hear the appeal and apply exactly the same 'reasonable observer' test to exactly the same facts because the DWP were arguing that when the commissioners applied the test 'there was no basis for any suspicion of bias'. In other words, the DWP simply disagreed with the commissioners' decision that a reasonable observer might suspect bias and the lords of the Court of Session considered that this failure to convince the DWP constituted an error of law.
This newly discovered 'pantomime principle' of error of law works like this:
Law lords: "Was there an error of law which allows us to hear this case?"
Claimant "No there wasn't."
DWP : "Yes there was."
Law lords: "Louder. We can't hear you. Was there an error of law which allows us to hear this case?"
Claimant: "No there wasn't."
DWP (bellows): "Oh yes there was!"
Law lords, saucily slapping thighs and jubilantly tossing wigs in the air: "Error of law proved: let the case be heard."
Blessed be the observer
The Court of Session made short work of the rest of the case. The hypothetical reasonable and well informed observer 'would surely be blessed with the knowledge' that the doctors in question are 'independent expert advisers in carrying out the work of examining and reporting to the Benefits Agency'. The blessed observer would therefore have no reason to imagine the doctors would show any bias when choosing between different medical opinions. Accordingly, the lords of the Court of Session upheld the DWP's appeal.
Happily ever after
And that, boys and girls, is the story of why often semi-retired doctors with perhaps out-of-date knowledge and possibly dubious interview skills who maybe never quite rose to the top of their profession - which is why they end up working for the DWP in the first place - are free to continue taking £47 per DLA home visit from the DWP whilst also sitting on appeal tribunals for a handsome £262 a day. And it's also the story of why we can all feel certain that they never, ever - even unconsciously - favour the opinions of their fellow DWP doctors over the opinions of those doctors who managed to make a success of their careers.
And you can't say fairer than that, now can you, ey? . . . Oh no you can't.
What do you say?
I don't think that the DWP doctors can be impartial when they're being paid by them. Its just like a defense solicitor being paid by the opposition. It just wouldn't be correct to the lay person.
On a different note, even when a decision goes correctly, when having an EMP visit you just know if the doc isn't putting down exactly what you said because there's so many interpretations and things cannot always be explained in a yes/no answer. Its more complicated.
I am appalled at the decision to allow EMP's to sit at appeals. I feel they are biased, they are paid by the DWP, how could there be no bias? It is difficult enough having them visit you at home, taking no notice of what you tell them. I have an appeal coming up in January. If an EMP is part of the Tribunal and sees that I have complained about one of his colleagues in the past, could he not hold this against me?
My experience of dealing with Medical Services , the DWP Corporate Medical Group and DWP ministers leads me to believe that no right minded person could honestly describe EMP’s or doctors contracted via Nestor and SchlumbergerSema as independent. An Independent Financial Adviser is one who can offer advice to anyone willing to pay his fees, knowing the advice he offers is independent of contracts limiting or restricting the products he offers. Doctors working for the DWP via medical services are limited to who can buy their services. Claimants cannot access EMP’s even if they wanted to contract an EMP. Recently an elderly woman had a very nice EMP visit, his report supported the claimant but the Decision Maker suggested that although the EMP correctly reported the lady was unable to stand to prepare a cooked meal, she could do this seated. The claimant knew that if the same EMP revisited, the difficulties arising from the Decision Makers suggestion would be immediately apparent and that EMP would be best able to clarify the point. The tribunal service were unable to explain why the claimant couldn’t pay for and request an EMP visit, neither could Medical Services. The only reason they could offer was that the DWP contract specifically prevented this. When Maria Eagle was asked to explain, her reason was that if the claimant paid the EMP that report would inevitably be biased. It appears that Maria Eagle believes in the principle that “He who pays the Piper calls the tune" when it comes to writing EMP reports.
In my analogy to Independent Professional Financial advisers I also refer to the independence of the advice offered. From it’s website it is clear that SchlumbergerSema is proud that since 1998, it has "harnessed its extensive clinical experience to deliver vastly improved Medical Services to the DWP’s customers. The information and processes behind medical examinations and certain common conditions have been codified, providing a structured examination process for doctors" In order to find out how well informed Medical Services Doctors might be I asked Medical Services and was told that the opinions and understanding their doctors offer are restricted to those approved by the DWP Corporate Medical Group. So while contracted to the DWP via Medical Services the opinions offered must be within the remit set by the CMG. It appears unlikely to me that a doctor willing to work mornings as an EMP within a remit predetermined by the CMG will adopt independent minded understandings when working on a Tribunal Panel in the afternoon. If they are willing to have closed or limited understanding part of the day it is more than likely they will adopt the same restricted viewpoint for the rest of the day. The understanding of Postpolio Syndrome (PPS)I later got from the CMG has now been updated but it still is inaccurate, out of date and misleading to those who have read and understood the latest research. If I did have to argue that the understanding of PPS shown by my EMP was medically unsound, I would feel that a panel informed by an equally restricted medical opinion was demonstrably biased.
The idea that DWP doctors could be seen as unbiased in this context is risible. Full Stop. There is a huge area for debate here! What we should be demanding over and above everything else is an independent judiciary protected by a written constitution. Without either of these prerequisites the executive will continue to lean on the judiciary to make decisions which suit its needs. The establishment as ever looks after its own. Perhaps we should adopt at least one American practice and elect judges! If judges were answerable to the electorate they might just think twice about bending over backwards.
The President of the Appeals Service judicial wing, Judge Michael Harris has the power to amend the rules governing the qualifications acceptable to him, as to who and who is not able to sit 'independently' as a tribunal medical member, certainly one of the reasons he chose not to debar EMP's to also sit as the tribunal medical member, was that he would have lost over a third of medical members, which would in effect lead to a delay in tribunals being heard, at a time when the times from refusal of DLA by the Sec of State to actually getting to appeal had fallen dramatically.
It remains to be seen if Judge Harris will choose to alter the criteria for the appointment of medical members. Disability Members who are, or were, welfare rights officers are not allowed to give advice to, nor to represent appellants at tribunal in the areas in which they normally sit on tribunals, yet medical members are allowed to do medicals for the DWP. !! Surely, what's sauce for the goose, should be sauce for the gander !!! In my opinion, if the President fails to take action in this case, it will throw serious doubt on the independence of appeal tribunals.
And if that proves to be the case, it must be only a matter of time before one of the major advice agencies such as CPAG or the Disability Alliance etc. etc. challenge a similar case in the courts and make use of the provisions of the Human Rights Act 1998, which the Court were not allowed to consider in Gillies. It should be obvious to an outside observer, that a doctor, selected, trained and paid by the DWP cannot sit on a DLA tribunal as a medical member and claim to be 'independent', having regard to article 6 of the ECHR, now enshrined in the HRA 1998.
I once had to go for a medical for incapacity benefit, the appointment was one day after my hospital discharge following surgery to remove a transitional cell tumour.
On arrival at the centre I had to climb two flights of stairs [with difficulty as I was in pain and still suffering the affects of a general anaesthetic from two days previous]. I was called in by an elderly looking Doctor who proceeded to tell me that I had a cyst, I told him that I only had surgery to remove a tumour two days previously, he insisted that it was a cyst in my nose until I produced my CT scan [which I had obtained and taken with me], he asked me to let him see it which I did, he then asked which way was the right way up and to show him the tumour as he had never seen a CT scan before! When I finished showing him the scan and pointing out the tumour in my frontal sinus recess, I requested a "real" doctor for the examination. He then telephoned someone and said "This guy has brought his CT scan with him, he had surgery only two days ago to remove a tumour, what do I do with him?" the reply was to stop the examination and send him home again.
This doctor was definitely not competent as he could not read a CT scan, he didn't even know which was the right way up, although the actual scan was marked, He was not independent as he then had to take advice from someone else on the telephone. The reality is that this is not an isolated case it appears to be a frequent occurrence.