14 July 2003
The recently announced decision by the Department for Work and Pensions (DWP) to allow multibillion, multinational SchlumbergerSema to hand the writing of incapacity for work medical reports over to computers has prompted fears that the new system will breach claimants' human rights.
SchlumbergerSema, which carries out medicals on behalf of the DWP, has devised computer software for use by doctors carrying out incapacity medicals. The software, Logic Integrated Medical Assessment (LIMA) is loaded with opinions from medical texts about the effects of physical conditions such as angina and arthritis and mental health conditions such as depression and anxiety. The doctor tells the computer which medical conditions the claimant has, the software then tells the doctor which appropriate 'logical' questions to ask. At the end of the assessment the software tells the doctor which descriptors they should logically choose based on the answers the doctor has recorded. The computer then prints a report for the doctor to pass on to the decision maker.
The software was tried out on claimants in a three month pilot in 2002 and a newer version of the system is currently being developed which, SchlumbergerSema proudly announces, will be 'entirely mouse driven'. SchlumbergerSema claim that "The feedback we have received from both the doctors and the DWP following the pilot has truly exceeded our expectations". However, they fail to mention what kind of feedback, if any, they got from the claimants they experimented on.
The pilot allegedly showed that computer controlled doctors produced a higher standard of reports and decision makers found the reports clearer and - not surprisingly - easier to read. However, we have so far been unable to find anyone able to tell us what proportion of claimants were found incapable of work under the software pilot compared to medicals carried out without the aid of computers. Nonetheless, the DWP have decided to allow the new system to be introduced nationally, with 1,000 doctors being trained to use the new software by the end of 2004.
Until now, the assessment process has been entirely transparent. For example, you can download a copy of the Incapacity Benefit Handbook for Medical Services Doctors for free from the internet. This tells doctors in detail how they should carry out medical assessments, including the kinds of questions they should ask and how much and what sort of information they should record. The Handbook has the force of law: a social security commissioner has held that if a doctor does not follow the guidance in the Handbook and a decision maker relies on the doctors evidence, that in itself may constitute an error of law.
However, the new software being used to compile reports belongs to SchlumbergerSema, is not currently publicly available and we have yet to find anyone who can tell us when or whether it will be made available. It seems likely that SchlumbergerSema will jealously guard its copyright and decline to let the public or advice workers have access to the system. This will mean that, for example, claimants will not know which medical authorities the software relied upon when deciding what questions it would be logical for the doctor to ask. This could be very important in conditions such as ME/CFS where different authorities have considered the condition to be physical, mental or both in origin. If the software considers the condition to be physical it will consider it illogical to ask the questions relating to the mental health test. Equally, claimants with symptoms which differ widely from the accepted norm may be in danger of being found capable of work because the questions do not address their difficulties or because their answers are not on the list that the doctor can click their mouse on. Without access to the software, however, claimants and their representatives will not know whether this is the case.
Mouse knows best
At the moment, if a claimant appeals against a decision that they are capable of work, tribunals often prefer the evidence which a claimant manages to get from their own GP or specialist about the effects of their condition. Now, however, the DWP are likely to claim that the new medical reports are more reliable because they are supported by the best and most up-to-date medical opinions and the report has been compiled by a doctor specially trained in assessing incapacity. They will seek to persuade tribunals that this computer based evidence should therefore always be preferred over evidence that the claimant may have obtained from their own GP or specialist.
In fact, the reality is that an entirely mouse driven report may mean that the doctor has not typed a single word of original evidence. The report may be solely a collection of multiple choice answers strung together in the form of a medical report, perhaps with the claimant's name inserted by the computer at various points throughout, to make it look more personal.
Rights and justice
Both under the rules of natural justice and under the Human Rights Act we all have the right to have legal decisions, such as benefits claims, decided fairly and openly. However, if by keeping the workings of their LIMA software secret, SchlumbergerSema prevent claimants, their representatives and tribunals examining the way the doctor reached their conclusions, that may make such decisions unfair. For example, if the claimant cannot be told which medical authorities the computer relied upon when assessing their condition, how can the claimant or their legal or medical specialist challenge that authority by showing that there is other research that disagrees? Or if the claimant doesn't know which questions the computer decided were not logical, how can they show that an error was made because those questions would have been appropriate in their case, perhaps because their condition is not typical?
How incapacity decisions are made
Decisions about incapacity for work are based on a points system, called the Personal Capability Assessment.
For physical health, points are awarded depending on the degree of difficulty claimants have with activities such as walking, sitting and standing. Claimants fill out a questionnaire in which they choose what they think are the appropriate 'descriptors'. In relation to walking, for example, two of the descriptors are: 'Cannot walk more than 200 metres without stopping or severe discomfort' or 'Cannot walk more than 50 metres without stopping or severe discomfort'. Each descriptor has points attached to it and if you are assessed by the decision maker as reaching the threshold, 15 points for physical health, then you will be found incapable of work. After you have returned your completed questionnaire, you may be examined by a Medical Services doctor employed by SchlumbergerSema who will make their own assessment of which descriptors apply. The decision maker should then look at all the evidence from you and the doctor and reach their own independent decision about which descriptors apply.
While there are detailed notes and tick boxes in the questionnaire for claimants to assess their physical health, when it comes to mental health there is just a single empty box in which you are asked to write about any mental health problems. You are, therefore, very unlikely to be found incapable of work on mental health grounds just on the basis of your questionnaire. Instead, you will be asked a range of questions about your everyday activities by a Medical Services doctor who will then decide which of the mental health descriptors apply. These are things like: '
'Cannot answer the telephone and reliably take a message' or
'Sleep problems interfere with his daytime activities'.
If you score ten points under the mental health test you are found to be incapable of work.
Decision makers complete a score sheet when deciding whether a claimant is incapable of work. For physical health problems the score sheet contains a column showing how many points the claimant thinks they should score, based on their answers in the IB50 questionnaire. There is a further column showing how many points the doctor assessed them as scoring and a final column showing how many points, based on all the evidence, the decision maker assesses them as scoring.
For mental health, however, any pretence that the decision maker is independent is discarded. There is a single column which simply shows the points assessed by the doctor - no separate column for claimants or the decision maker. It is rare for the decision maker to disagree with the doctor in relation to physical health, very rare indeed for there to be any disagreement in relation to mental health.
Moreover, for a decision to be legally fair, it's necessary for the claimant to be given sufficient information to allow them to understand how it was reached. If the decision maker relies on evidence which was gathered using a process that is kept secret, then it may be that the claimant is unfairly prevented from being able to understand the way in which the decision was reached and can challenge it on that basis.
In addition, if it is the case that the Medical Services doctor can ask only a limited range of questions, accept only a limited range of answers and choose only from a restricted range of descriptors, then it may be possible to argue that their report should not be relied upon by the decision maker or the tribunal. This may particularly be the case if the claimant can obtain evidence from their GP or another health professional who was not subject to the same restrictions.
SEMA (now taken over by Schlumberger) has been criticised in the past by the Public Accounts Committee for the quality of its medical reports and the suggestion has been made that there should be some financial penalty for poor reports. SchlumbergerSema may see the new mouse driven method as a way of escaping both criticism and reduction of profit. At the same time, tying the Personal Capability Assessment into software for which SchlumbergerSema own the copyright will make it extremely difficult for the DWP to award the medical services contract to any other company when it comes up for renewal in 2005.
For Schlumberger - a company with interests in oil, gas, transport, finance and telecommunications in 65 countries worldwide and a turnover in excess of $13 billion - computerised medicals may make very good sense. For individual claimants whose condition does not fit the norm, however, the new system could be very bad news indeed.