How independent can a doctor be?

EXAMINING MEDICAL PRACTITIONER'S REPORT (EMP)

It is not uncommon for the DLA unit or indeed the tribunals to request that a person undertakes a medical examination to assist them in making a decision about benefit entitlement. The reports are supposed to be carried out by an independent doctor who usually visits you at home. It is difficult at times to understand the logic of independent and impartial examinations when many of the doctors who carry out the examination sometimes work for the benefits agencies medical services as well.

MEDICAL CONFLICTS

It is not uncommon for disputes as to a person's ability to walk or the amount of care that they require. It is obviously down to medical opinion and often this differs in a lot of cases. It appears, however, that where the EMP gives an adverse opinion, then the DSS relies on that opinion to refuse benefit. This happens despite supportive medical evidence supplied by the person applying for the benefit.

COMMISSIONER'S DECISION

The Commissioner in the case quashed the tribunal's decision and sent it back to be heard by a new tribunal. The main point at issue in this case was, however, the weight of the EMP report and the independence of him/her. This was crucial, particularly if the report conflicted with the claimant's own evidence.

Commissioner Rice in an earlier decision had said that where there is a conflict of evidence between the claimant and the EMP, the latter will normally prevail as he is wholly disinterested and has the medical expertise to determine what the claimant's walking ability amounts to. He went on to say that a claimant's GP is not normally as disinterested as an EMP. He is likely to be subject to pressure from the claimant in a way that the EMP never could.

In this case Commissioner May said that there was no existing authority for the proposition that evidence from an EMP must prevail over that from a claimant. The tribunal must assess all the evidence and determine what evidence it accepts and what evidence it rejects, so as to form a factual foundation for its decision. In complying with the requirements set out above, an EMP report has to be dealt with in the same way. It may be, however, that in most cases an EMP report could prevail for the reasoning given by Commissioner Rice.

JIM STRANG'S COMMENTS:

Appeals concerning medical evidence have to be considered carefully. Representation should be sought early and further medical evidence is often essential for the best chance.

If you need to know more about this or any other welfare rights matter, you can write to Jim Strang at Unit 7, 36 Beechwood Drive, Beechwood Estate, Birkenhead, enclosing an SAE. If you wish him to act on your behalf, call 606-1188, 10am - 4pm, Monday to Friday. His mobile 'phone number is O7930-104679.

Jim Strang represents clients on a 'no win, no fee' basis.

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