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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

Physiotherapist evidence of no probabtive value in relation to mental health assessment

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Dan_Manville
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Mental health & welfare rights service - Wolverhampton City Council

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MrFinch - 15 January 2015 12:29 PM

We also have no way of knowing if the 83% of trainees who are rejected suffer this fate because they refuse to go along with a culture of wrongful findings: perhaps they are rejected because they won’t accept that a person who washes, dresses, and goes to one shop cannot have a significant mental health problem.

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A certain Dr Greg Wood comes to mind…

Robbie Spence
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Having just (nearly) quoted this case in an appeal sub, I’d like to put a note of caution on this thread to say see http://www.rightsnet.org.uk/welfare-rights/caselaw/item/value-of-an-hcp-report-carried-out-by-a-physiotherapist-where-mental-health and note that Judge Mark has effectively been over-ruled. Physiotherapist evidence CAN have probative value in relation to mental health assessment after all.
Maybe Rightsnet eds could post a note of caution at the top of the thread because it is misleading (with hindsight) and it is a top google hit on the topic?

stevejohnsontrainer
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I think there is a degree of case law inconsistency in relation HP competence.

As mentioned in an another thread, have a look at CE/288/2016 (27/4/2016), that decides:

“…I do not think, absent unusual circumstances, there can normally be any sensible objection to a non aggressively put request for the name of the healthcare professional who is to conduct the examination (unless of course there are security concerns), a verbal assurance from the health care professional that he/she has been properly appointed as a healthcare professional such that they are authorised to carry out the examination and an indication as to which category within the definition of “healthcare professional” as contained within regulation 2 of the Employment and Support Allowance Regulations 2008, they fall within…  It seems to me, though, that any demand for additional information, absent most unusual circumstances, is likely to go beyond what is reasonable.”.

See also the very similar CE/62/2016, decided by the same judge (Judge Hemingway) the following day.

So the conclusion of Judge Hemingway in CE/288/2016 and CE/62/2016 is effectively that if you ask the HP for anything beyond name rank and serial number, you may fall foul of ESA regulation 23 (failure to submit to medial).

But how do these cases this with CE/4111/2012, which despite curtailing Judge Mark (as Robbie explains), still recognises that the expertise of the HP is relevant…

“…In assessing the weight to be given to any report addressing the functional impact of any medical condition on a claimant, a First-tier Tribunal should consider the level of the author’s expertise (for example, an HCP or a consultant psychiatrist) and the knowledge of the claimant possessed by the author (for example, knowledge gained from a one-off assessment or that gained as a treating clinician). Additionally the date of the evidence, its comprehensiveness, and its relevance to the issues the tribunal has to determine are also key matters for the tribunal to consider. Importantly the tribunal should explain its reasoning for attaching weight to one type or piece of evidence rather than to another”

In summary, how can you probe expertise without falling foul of regulation 23? I do not think that Judge Hemingway even refers to CE/4111/2012. 

CE/2379/2015 refers to the possibility of getting proof of HP’s medical status from the internet, and aso raises the risk of claimant non-compliance with regulation 23.