CE/288/2016- Failure to submit to medical examination

CE/288/2016

Failure ‘to submit’ to a medical examination if a health care professional refuses to divulge their qualifications

[2016] UKUT 207 (AAC)
This is from todays news

Having read the decision there does appear to be an element within it where I for one would sympathise with the claimant

On many occaions and on quite a large number of tribunals over a lot of years a common thread has been that the claimant was examined by someone who had little or no experience of the clients condition and in some cases didnt appears to have read the information in the source directory

This was to the extent that on at least one occasion ( official notification) and on several others ( more whispered) the assessor was ’ retrained’ ’ re informed’ ’ moved to a different benefit’

Without knowing the actual case linked to the decision as now made or the clients actual condition , how do others deal with this issue

I have built up a resource file over the years on many contiions ( usually produced by the organisations concerned) and then try to point to the relevant parts in the clients own situation and then add to the clients claim form/ ESA form etc

It’s an interesting area and a judgement call. In part it depends on the condition and its rarity. In part it depends on the claimants own knowledge of their condition(s).

My take has always been that, given the opportunity, I will explain to a claimant that they will be seen by a (sometimes retired) doctor, nurse, paramedic, OT, physio. etc. and that, whilst that person will have their own professional experiences and some training from their employer, it is unlikely that they will know much about the claimants condition and the claimant should not assume they will. Very few medical professionals have that breadth of knowledge. I also explain that it’s statistically relatively unlikely the person will be a doctor or nurse but, even if they were, that’s no guarantee that the HCP would know their condition or have insight into the practicalities. What I’m trying to achieve by this is getting over this idea that you somehow get a better report from a “qualified” doctor or nurse, which is often the perception of claimants or indeed WROs. I simply don’t see the evidence for that at all. I have seen brilliantly insightful reports from a paramedic who had dealt extensively with hearing impairment and mental health. It’s as remiss of us to assume they don’t know as it is of claimants. I’m not saying they’re wonderful but neither are they 100% appalling.

If I can lodge that concept then I can get through to the claimant that the key thing is that regardless of their condition they will need to assume nothing; explain everything and especially explain the practical consequences. Obsessing on whether someone is qualified to assess your condition is as misguided as thinking that “medical” evidence solves everything.

Your idea of a resource file is an excellent one although nowadays so many organisations have web sites it’s easy enough to search for what you want and print it off as needed. I’ve found such things very useful to go in with claim forms or tribunals. Arguably less so for HCP assessments where the attitude seems very much that the time should be spent talking rather than reading. That said, I know from my own experience that such documents only take you part way down the road as they inevitably describe the generalised experience rather than the individual one. The charity which raises awareness for one of my eye conditions produced two decent videos - for parents and professionals. The former purports to show what someone like me sees and features Richard Osman. It looks absolutely nothing like what I see and yet I struggle with as much if not more than the people in the video and in areas they simply don’t touch because leaflets, booklets and videos can’t touch it all.

For me therefore it really is about getting through to someone what they need to describe and how that might be disbelieved because it doesn’t fit with a stereotype or the generalised experience. It’s also about playing devils advocate in difficult areas and talking that through rather than any focus on “is this person qualified to understand my condition and me”.

I have recently, following advice from an OT colleague who went through a PIP assessment and did it when they were assessed, suggested to claimants that at the end of the HCP assessment they ask specifically which areas they have recommended points are scored on. Not how many points or which specific activity. Just the descriptors. Not had a HCP refuse so far. This gives the claimant an excellent opportunity to say “but what about…” without it descending into the sort of confrontation described in the decision.

FWIW I do think it’s reasonable to ask what background the person has but not if you’re planning on making that the focus of your conversation. It’s useful but only in a minor way.

Of course a lot of this assumes a certain insight on the part of the claimant into their condition(s) and this is often not the case. That’s a difficult area and I tend towards the view that there’s not much you can do in those cases beyond prayer and fixing it in the mix at the MR or appeal stages.

Thankyou Mike for such a complete response like you I try to balance the idel with the actual and like you have been aware of some excellent cases ( obviously we dont see those) and some dreadful ones

Regarding taking information with client , i tend to suggest taking it for unusual situation or ones which may be not so obvious as to be fair Ive been to tribunal where the doctor had asked the claimant if they tooks information but like everything its just part of the overall process