Royal Courts of Justice
Strand,
London, WC2A 2LL
Before:
THE HONOURABLE MR JUSTICE PITCHFORD
Between:
THE QUEEN (On the application of NATIONAL ASSOCIATION OF COLLIERY OVERMEN, DEPUTIES AND SHOT FIRERS) | Claimant |
- and - | |
SECRETARY OF STATE FOR WORK AND PENSIONS | Defendant |
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Keir Starmer QC (instructed by Hugh James Ford Simey) for the Claimant
Jonathan Moffett (instructed by Office of the Solicitor,
Department for Work & Pensions) for the Defendant
Judgment
As Approved by the Court
Crown Copyright ©
Mr Justice Pitchford:
Mr Alun Davies is Assistant General Secretary of the National Association of Colliery Overmen, Deputies and Shot Firers (NACODS), South Wales Area. Mr Davies and his General Secretary Mr Bleddyn Hancock, assist their members in the presentation of appeals to medical appeal tribunals against refusals to award industrial injuries benefit under section 108 Social Security Contributions and Benefits Act 1992. Many of those members claim to be entitled to benefit because they suffer vibration-induced white finger, classified in regulations as Prescribed Disease A11. Since January 1998 they have between them represented 32 such appellants. A 33rd claimant was represented by the Association’s solicitors, Hugh James Ford Simey. On 11 January 2002 Mr Gareth Morgan, on instruction from the union, wrote to the Defendant in the following terms:
“We are acting for a large number of former miners who are now suffering from vibration white finger......Our union clients have requested that we investigate the marked discrepancy between those former miners who have been successful in civil claims and those former miners who have been successful in obtaining benefits for PDA11. Our research has led to the development of a deep concern about the use of the cold water provocation test as a diagnostic tool by the examining BAMS [Benefits Agency Medical Services] doctor.
It seems clear that the cold water provocation test is extensively used in South Wales and the outcome of the cold water provocation test is one of the main, if not the only criteria, by which the condition is diagnosed in those applying for benefit for PDA11. In support of this assertion please consider the enclosed statement prepared by Mr Alun Davies who is the Assistant Secretary of NACODS and who has extensive experience of dealing with these matters.
It seems equally clear that the cold water provocation test is of no diagnostic value whatsoever and its use should now be abandoned by the Department of Work and Pensions. In support of this argument would you please consider the enclosed report prepared by Professor C L Welsh dated 9 August 2001.
In the circumstances would you please confirm that the Department will now issue clear guidance in relation to the Cold Water Provocation Test in relation to those Claimants seeking benefit for PDA11.....”
Mr Morgan was referring to a test in which the claimant for benefit was invited to immerse his hands in cold water in an attempt to reproduce the characteristic appearance of vibration white finger. The existing guidance is that provided in Notes on the Diagnosis of Prescribed Diseases, non-statutory departmental advice provided to medical practitioners.
In a letter dated 7 February 2002, not received until April, Mr John Dickie replied on behalf of the Secretary of State. He drew attention to the fact that proof of the existence of the condition was not sufficient by itself to establish an entitlement to benefit for PDA11 since PDA11 provided criteria for diagnosis specifying a minimum level of involvement of the fingers and symptoms occurring throughout the year. Its diagnosis was confined to the vascular effects of the injury and not any sensorineural effects. PDA11 was therefore concerned with whitening of the fingers and not with numbness. He continued:
“There is no universally recognised and agreed diagnostic test for “white finger”. Tests developed in the context of settling civil claims for negligence may not be appropriate for Social Security benefits. The Benefits Scheme requires a straightforward and simple administrative approach suitable for a National Benefits Scheme. It is important to ensure that the tests used are practicable, useable, repeatable and acceptable for diagnosing the condition, and assessing a person’s disability for industrial injury benefit purposes.
Because the criteria are not the same in the industrial injuries scheme and in the British Coal compensation cases it is quite possible for a claim for civil compensation to succeed even if a claim for prescribed disease A11 has failed. This is because of the difference between the two schemes and is not a reflection of the competence of the doctors carrying out the assessments.
I hope that this helps to explain the Government’s position.”
Mr Dickie's letter appeared to be supporting the continued use of the CWPT in diagnosis of claims for benefit. On 3 May 2002 the Claimant sought review of the Secretary of State's decision not immediately to modify and revise existing guidance. In an Acknowledgement of Service of 29th May 2002 the Secretary of State averred that the CWPT "does not necessarily determine the presence of prescribed disease A11 but can be used as a diagnostic tool". Permission to proceed was given by Collins J on 3 July 2002.
Section 108 Social Security Contributions Benefit Act 1992 provides for the payment of industrial injuries benefit as follows:
“(1) Industrial injury benefits shall in respect of a person who has been in employed earner’s employment be payable in accordance with this section.... in respect of –
(i) any prescribed disease, or
(ii) any prescribed personal injury (other than an injury caused by accident arising out of and in the course of his employment)
which is a disease or injury due to the nature of that employment and which developed after 4 July 1948.
(2) A disease or injury may be prescribed in relation to any employed earners if the Secretary of State is satisfied that –
(a) it ought to be treated, having regard to its causes and incidence and other relevant considerations, as a risk to their occupations and not as a risk common to all persons; and
(b) it is such that, in the absence of special circumstances, the attribution of particular cases to the nature of the employment can be established or presumed with reasonable certainty.”
On 31 July 1985 the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations 1985 came into force. Regulation 2(a) reads (with exceptions and savings which do not here apply):
“....Each disease or injury set out in the first column of Part 1 of Schedule 1 hereto is prescribed in relation to all persons who have been employed on or after 5 July 1948 in employed earner’s employment in any occupation set against such disease or injury in the second column of the said Part....”
The condition vibration white finger is prescribed in the following terms by Part 1, Schedule 1 to the Regulations:
“A11. Episodic blanching, occurring throughout the year, affecting the middle or proximal phalanges or in the case of a thumb, the proximal phalanx of –
1. in the case of a person with five fingers (including thumb) on one hand, any three of those fingers, or
2. in the case of a person with only four such fingers, any two of those fingers, or
3. in the case of a person with less than four such fingers or, as the case may be, the one remaining finger (vibration white finger).”
It is agreed that the claim for benefit is processed as follows. In the first instance the application will be considered by the Secretary of State's Decision Maker pursuant to section 8 Social Security Act 1998. By section 19 the Decision Maker (DM) may, and invariably does, refer the applicant to a medical practitioner for a medical examination and report. The medical practitioner is known as the Medical Advisor. He is one of a panel of medical advisors appointed by the Secretary of State. The examination takes place at a medical examination centre. The Medical Advisor (MA) takes a history, carries out a physical examination and may perform tests. The MA’s report to the DM is provided upon Form B1 161C(VWF). That form, it should be noted, draws the MA’s attention to the Secretary of State's “Notes on the Diagnosis of Prescribed Diseases”. The form contains a diagrammatic representation of the extent of any part of the applicant’s hand affected by blanching.
Upon receipt of the completed form the DM will decide whether the applicant qualifies for benefit. In the event the decision is adverse, the applicant has a right given by section 12 Social Security Act 1998 to appeal to a tribunal. The decision may be adverse either because PDA11 is not diagnosed or because the degree of disablement accepted by the DM is not satisfactory to the applicant. The tribunal consists of two or three members appointed from a panel selected by the Lord Chancellor. One member will be medically qualified. Further appeal lies under section 14 to a Commissioner on a point of law.
The Notes on the Diagnosis of Prescribed Diseases (NDPD) were produced in support of the provisions of the Social Security Act 1975. They have since been revised although it is accepted by the Secretary of State that even the latest revision is out of date. The Notes are published by the Secretary of State primarily but not exclusively for the use of MAs. They contain a list of scheduled occupations, cause, effects and safe working practice. For the purposes of PDA11, the condition is chronic in nature. Diagnostic assistance is given to the MA as follows:
“History Prolonged use of vibrating tools.
Symptoms Intermittent blanching of fingers. The extent of blanching, its frequency, duration, seasonal incidence and associated symptoms should be carefully recorded.
Signs Usually none. In the more advanced cases there may be some loss of touch.
Investigation These are aimed at finding causes of secondary Raynaud’s Phenomenon other than vibration, for example poliomyelitis, syringomyelia, scleroderma, lupus erythematosus, rheumatoid arthritis, occlusive vascular disease and costo-clavicular syndrome.
In severer cases blanching may be induced by asking the patient to immerse his or her hands in cold water for a few minutes.
Due to the nature of When a Prescribed Disease is diagnosed in a worker who is a) currently employed in or; b) within a month of having left the relevant scheduled occupation, the disease should be presumed to be due to the nature of the occupation unless there is evidence to the contrary.....
Special points The various gradings of Vibration Induced White Finger by Taylor and Pelmear, Rigby and Cornish and the recent Stockholm Workshop Scale have not proved to be very useful in the diagnosis of PDA11. The diagnosis should be based strictly on the diagnostic criteria laid down in the definition of the disease for industrial injuries purposes, and special attention should be paid to the exact extent of blanching in each finger and whether or not the blanching occurred episodically all the year round.” [my emphasis]
The highlighted words are the subject of controversy.
It is Mr Davies' experience that the CPWT is almost invariably performed by MAs on examination. He believes that MAs and DMs place reliance upon the result, whether positive or negative. Mr Davies has produced Forms B1 161C(VWF) for 32 of the 33 cases he has researched and, of those, 31 make reference to the performance of a cold water provocation test. Each of them resulted in an adverse finding by the DM which led to an appeal.
I am not however informed, because the information is not available, how many successful applications were made to a DM at first instance and what proportion of those were examined by an MA who conducted the CWPT.
It is Mr Davies’ experience that at the conclusion of the oral hearing before the tribunal the appellant is taken to a side room where he is examined by the medically qualified member of the panel. On each such occasion the appellant is asked to undergo the CWPT notwithstanding Mr Davies’ representations that the procedure is non-diagnostic and inappropriate.
Dr Susan Reed is a Medical Policy Advisor employed by the office of the Chief Medical Advisor to the Department for Work and Pensions. She has worked for the Department for 17 years and has submitted two statements in support of the Defendant's case. Where she has been able to locate them Dr Reed has reviewed the benefit files relating to the appeals relied upon by Mr Davies.
Mr Davies’ view is that the cases analysed demonstrate:
1) Heavy reliance by the DM on the CWPT. It is the basic test used by MAs to determine whether the applicant suffers from PDA11.
2) Less reliance is placed on the test by the tribunal. Although the test is almost always carried out at the tribunal, several appellants have succeeded in their appeals despite a negative test result.
3) The tribunal does place reliance on independent medical evidence gathered primarily for the purpose of a civil claim but the DM less so or not at all.
It is the Claimant’s case that the evidence demonstrates the CWPT is simply non-diagnostic, therefore useless as a diagnostic tool of any sort and should be stopped. The Claimant asserts that its inclusion in the NDPD is irrational and should be removed forthwith; alternatively, the reference should be qualified by a health warning as to its use.
The Defendant's case is that the test enjoys some support in the medical literature, does have some, albeit extremely limited function, and is in any event under review. There is no risk that MAs are misconstruing or misinterpreting the purpose and meaning of the NDPD to the detriment of claimants. Pending the advice sought from the Industrial Injuries Advisory Council upon the prescription of PDA11 in general, the Secretary of State's decision to maintain the status quo is reasonable.
I turn to consider first the evidence of diagnostic value of the CWPT. I should make it clear that there are various forms of the CWPT, the simple form used by MAs and more sophisticated forms involving the taking of temperature and systolic pressure with which I am not concerned save for the purpose of comparison. It is common ground between the parties that vibration white finger is correctly described as the collective name for injuries to blood vessels and nerves caused by exposure to vibration through the hands. Its principal vascular symptom is an intense whitening of the fingers (described elsewhere in the literature as blue/white) caused by intermittently restricted blood flow. The whitening phenomenon is described by the medical profession as blanching or Raynaud’s Phenomenon. The blanching is cold induced.
It is agreed that diagnosis should be based upon the history obtained from the patient which includes the following:
1) A description of symptoms.
2) An account of exposure to percussive and vibratory tools in the course of employment, including the number of years exposed, the type of tools used, the method of use and an estimate of daily exposure time.
3) Details of personal, social, family and past medical history, medication, alcohol consumption and smoking.
Examination should include the vascular, nervous and musculoskeletal systems. Although PDA11 is concerned only with vascular symptoms, other causes of symptoms may be revealed by a wider examination.
It is agreed that there is no objective diagnostic test for PDA11. Such a test would make a distinction between two populations, those with and those without the condition. It would assess severity. It would do so without making a positive finding in a normal individual or failing to make a positive finding in an affected individual. In other words such a test must not produce an unacceptable level of false positive or false negative results. It is the Defendant's case that a CWPT may nevertheless be a useful diagnostic tool in certain cases.
For the purpose of diagnosis of hand-arm vibration syndrome (HAVS) in civil claims for damages by claimants formerly employed by the National Coal Board, their unions and the Department of Trade and Industry have agreed the use of a battery of tests designed to assess both vascular and neurological components. They include more sophisticated variations upon the CWPT requiring measurement and standardised test conditions.
Professor C L Welsh is a Consultant Vascular Surgeon at Sheffield General Hospital with a close interest and special expertise in the diagnosis of HAVS.
Professor Welsh describes in his statement of 9 August 2001 the development of understanding of HAVS and VWF. Neurological symptoms are now recognised as more significant than vascular. Blanching which characterises PDA11 is a product of vascular damage and intermittent. Neurological symptoms, on the other hand, are permanent.
Professor Welsh was a contributor to the Report of a Working Party published by the Royal College of Physicians in January 1993 entitled Hand-transmitted Vibration, Clinical Effects and Pathophysiology. The working party comprised a distinguished group of experts in occupational medicine, neurophysiology, rheumatology and vascular disease. The working party consulted internationally. The problem facing the medical profession was described in the Introduction to the Report as follows:
“..... There remains an incomplete, or even total, lack of knowledge of the effects of HTV by some members of the medical profession who are perhaps not so intimately concerned with the problem. Even among occupational physicians, considerably more emphasis has been given in the past to vascular effects. This misunderstanding has been fostered to some extent by British legislation.... in an attempt to overcome some of these difficulties, in 1991 the Faculty of Occupational Medicine of the Royal College of Physicians, London, commissioned a working party to study and report on the clinical effects and pathophysiology of HTV and their assessment.....”
At Chapter 1, paragraph 2, the working party described the aetiology of vascular damage caused by hand-transmitted vibration:
“Continuing exposure to HTV results in the classic symptom of episodic blanching, with attacks to the fingers most exposed to vibration, usually precipitated by cold exposure. Further transmission of vibration to the hand results in an increase in the area affected by blanching, which may eventually extend to the base of the fingers and very occasionally beyond. The distribution of the affected fingers varies with the occupation and the way in which that occupation is performed by the individual worker.
Attacks of episodic blanching usually last several minutes, with a pattern of blue/white discolouration followed by redness. In some cases, there develops permanent blue discolouration. Transient tingling may be felt and considerable pain which may persist for some time after the finger has apparently returned to normal. During the attack the affected area becomes numb and unrecognised injury may be sustained at this time.
There is steady progression of the area affected in most cases, with attacks becoming increasingly frequent and often being ascribed to increasing age or accepted as part of the job.”
At Chapter 3, paragraph 2, the working party expressed its views about screening tests:
“Simple screening tests easily performed within the consulting room should form part of the assessment examinations. No single test is able to diagnose and stage HAVS, but the use of multiple tests can help both to substantiate the presence of the syndrome and to stage its progression. False positive and false negative results can occur with any of the tests described. Some tests which have been advocated in the past are of doubtful value because of variations which are not infrequently found in the normal population.”
A number of tests are listed. Two of them are designed to test vascular condition. Neither of them is the simple CWPT used in benefit claims. At paragraph 3 the Working Party considered Special Investigations:
“Special investigations require additional equipment and expertise. They may be performed by occupational physicians with appropriate experience, otherwise referral to specialist centres is required.
Vascular assessment.
Doppler
Arm and Digital Blood Flow. This test can demonstrate a vascular tree, but is not useful in the diagnosis of HAVS.
Cold Provocation Tests
(a) Temperature recovery times of fingers.
(b) Fingers systolic blood pressure measurements..…..
Recommendations concerning cold provocation tests in diagnosis and assessment of hand-arm syndrome
The literature contains many reports of cold provocation tests which have been used in the diagnosis and assessment of HAVS for more than 30 years, with disappointing and, in many cases, misleading results. At present many different tests are performed with wide variations in the challenging conditions and ill-defined end-points, without reference data (sensitivity and specificity). Simple cold provocation, such as dipping the hand(s) in cold water followed by visual inspection of the colour of the skin, is of negligible value and gives a high number of false negative results. This method should be abandoned.”
An acceptable cold water provocation test should have the following criteria:
standard acclimatisation and challenged conditions;
a defined end-point; and
reported sensitivity and specificity.
Satisfactory measured variables are:
temperature, using thermistors, thermocouples and thermal imaging; and
digital systolic blood pressure”
Mr Moffett, on behalf of the Secretary of State was unable to assist me as to the origin of the material contained in the NDPD. It was believed that it emanated from the Industrial Injuries Advisory Council at or about the time when vibration white finger became the prescribed disease A11. The Claimant’s researches produced a report dated September 1981 by the IIAC to the Department of Health and Social Security. The Chairman of the Council notified the Secretary of State of its unanimous decision to adopt a sub-committee’s report recommending the inclusion of VWF as a prescribed disease.
At paragraph 14 of the sub-committee’s report under the heading Diagnosis appears the following:
“Two questions arise in relation to the diagnosis of VWF for the purpose of determining industrial injuries claims. These are: (i) Does the Claimant in fact have white finger? (ii) If so, is the white finger occupationally caused? In demonstrating the presence of white finger the principal difficulty arises from the intermittent nature of the condition for, especially in its early stages, it cannot be made to appear with any reliability in the course of a medical examination. From the evidence we considered, we concluded that there is no single objective clinical test to confirm its presence. But we are told that, in the severer forms, it is sometimes possible to provoke the condition by comparatively simply means, such as getting the patient to hold his hands under cold water for a few minutes. An examination on these lines, combined with careful history taking, should, it was put to us, usually suffice to diagnose the presence of the condition in its more advanced stages.” [my emphasis]
At paragraph 27 under the heading Consideration of Claims the Report continued:
“We do not think that there is a case for specialist medical centres to be set up to diagnose VWF and assess the resulting disablement. Nor do we think that diagnosis and assessment should normally depend on a complicated series of tests. Since we have recommended that disablement benefit only is to be payable, specialists would carry out the initial examination of Claimants and we believe that, by a combination of history taking with straightforward tests to exclude other causes of white finger, it will be possible to arrive at a satisfactory diagnosis in respect of the severe cases to which we have suggested prescription be limited.” [my emphasis]
It seems to me tolerably clear that both the prescription and the NDPD were framed with the recommendations of the IIAC firmly in mind. What remains unknown, however, is the source of the advice contained within paragraph 14.
On 8 November 1994 the IIAC tendered a further report to the Secretary of State for Social Security entitled Report on Hand-arm Vibration Syndrome (Vascular Neurological Components involving the Fingers and Thumb). The Report was published by the Department of Social Security in May 1995. The Council set itself the task of examining four questions: whether the prescription of A11 should be extended to include neurological features, whether the list of relevant occupational exposures should be extended, whether there was scope to improve the operation of the scheme in relation to the disease, and the diagnostic difficulties it presented. I am concerned, for present purposes, only with the fourth question.
Under the title, Diagnosing the Condition, paragraph 20, the Report reads:
“There are many tests that have been used to diagnose and assess vibration white finger. Many are of questionable reliability, are of little use for screening procedures, do not discriminate enough in themselves and are insufficiently objective. Specialised tests for screening have been proposed and these include:
a) Vascular - Doppler
- Cold Provocation
- Finger systolic blood, pressure following cooling.....”
The Report identifies neurological tests and continues at paragraph 21:
“In assessing the vascular effects of vibration the Doppler Test has not proved particularly valuable although it can demonstrate the patency of the peripheral vascular tree. The cold water provocation test is much in vogue but requires careful standardisation of the test conditions and accurate temperature measurements. The specificity and sensitivity of both tests are considered by some to be unacceptably low. Instruments for measuring blood pressure, following cooling, in the finger are available, reliable, and easy to use.”
It will be seen immediately that the IIAC advice on diagnostic tests was strikingly similar to that tendered to the Royal College of Physicians in January 1993. While the IIAC Report did not specifically outlaw the NDPD cold water provocation test it laid down conditions for acceptability which in effect excluded it as a test for diagnosis of VWF. At paragraph 33 in its Recommendations section the Council wrote:
“Finger systolic blood pressure following cooling, and vibrometry should be used as the principal diagnostic tests; (other tests may be of value in assessing levels of disability, but are not reliable enough to make the initial diagnosis).”
It is not possible to tell with certainty whether the NDPD cold water provocation test was intended to be among those bracketed. As I read the Report it was not. The Report appears to be approving finger systolic blood pressure tests and vibrometry but excluding temperature measurements following cooling for diagnostic purposes as inaccurate and wanting in standardisation.
Dr I J Lawson, Dr K L McGeoch, Mr F Burke and Mr G Proud comprise the medical advisory team engaged by claimants and the Department of Trade and Industry to advise upon the diagnosis of HAVS in civil claims arising in the mining industry. During 2001 they examined the efficacy of a test which had been adopted by the parties to the litigation since about August 2000, cold water provocation testing using finger skin measurement of temperature with thermocouples attached to all eight fingers. This was of course a more sophisticated version of the NDPD test and included among those considered by IIAC in paragraph 21 of its Report. The conclusion of the Panel having carried out an audit of 19,085 tests performed since 1996, was as follows:
“Cold provocation testing using finger skin temperature monitoring by the technique described is not a valid tool for diagnosing the vascular component of the hand-arm vibration syndrome. Performing the test at different seasonal periods did not affect outcome.”
This conclusion is entirely consistent with the recommendation made by IIAC in 1995.
Professor Welsh’s opinion is that the crude NDPD test of immersion in cold water followed by visual inspection gives a high number of false positive and false negative results and is “useless”. I need to consider what, if any, grounds remain for the reference to the cold water test in the Secretary of State's NDPD.
On 6 November 2000 Dr Susan Reed wrote to the Claimant’s solicitors:
“Numerous tests have been developed as diagnostic aids for vibration-induced white finger. The cold provocation test is just one of those tests. The tests are not very reliable, having too many false positives and false negatives to be reliable, i.e. the results can indicate the disease is present when it is not, or can indicate that it is not present when it is. For this reason the Department does not put too much weight on the cold provocation test, and it is by no means universally used throughout the country. As far as I am aware there are no Departmental guidelines on its use.”
I note the reference to the Department’s view of the cold provocation test as at November 2000. The test is not of course administered by the Department; it is administered by the MA on behalf of the Department. The issue raised is whether the medical profession, notwithstanding the Department’s view, is still using the CWPT for the purposes of diagnosis when the overwhelming thrust of expert medical opinion is that it should not. The Secretary of State's policy as expressed by Dr Reed has refined since her letter of 6 November 2000. At paragraph 23 of her first witness statement Dr Reed draws attention to the course of training given to medical advisors before entry to the Panel. It is emphasised to them that the NDPD test can be used to give a benefit claimant the fullest possible opportunity to demonstrate that he or she suffers from PDA11, but that a negative result from the NDPD test should not be used as a basis for concluding that an individual does not suffer from PDA11. Thus, the NDPD test can be of benefit to individual claimants who are unable to articulate their history of symptoms. At paragraph 25 Dr Reed continued:
“Accordingly, as is indicated by the material to which I have referred.... the NDPD test is not put forward as a test which can provide a definitive answer to the question of whether an individual suffers from PDA11. Rather, it is regarded (at best) as a tool which may be of use in certain cases. This is because, as is accepted by the Secretary of State, the NDPD test is not particularly reliable....”
In her second statement at paragraph 3, Dr Reed confirms that this represents her own view and the Secretary of State's policy.
During argument, I requested assistance from Mr Moffett as to what were the “certain cases” in which the test could be regarded as a diagnostic tool. On instructions, Mr Moffett confirmed that the position was as Dr Reed described in paragraph 23 of her first witness statement. A positive result from an NDPD test should be used to support a favourable diagnosis of PDA11 but a negative result should not be taken as any support for an unfavourable diagnosis. In other words, a positive result would assist a claimant whose history of symptoms was inconclusive but a negative result could not support an unfavourable diagnosis. It follows that the reference in NDPD to "severer cases" remains unqualified by an important reservation which the Secretary of State wishes to be generally understood. What then is the justification for declining to issue that qualification in written form?
Dr Reed explains that there are references in the literature to the test and, secondly, that other material is made available to MAs which provides the necessary qualification.
The literature to which my attention was drawn commenced with the Oxford Textbook of Medicine at page 1226. The entry upon which reliance is placed reads as follows:
“Various clinical and special tests have been used in the evaluation of patients with hand-arm vibration syndrome. Compression of the nail bed of affected digits for 10 seconds may show delay (minus 5 seconds) return of the digital circulation (Lewis-Prusik Test). Finger plethysmography allows measurement of changes in finger systolic blood pressure and finger vascular circulation following cooling. Digital blood pressure measurements using a Doppler device may demonstrate a fall in pressure after cold provocation. Cold provocation tests are commonly used in an attempt to provoke digital pallor. However, the method of doing these tests has not been standardised, and sensitivity is low.”
It is by no means clear to me that the editor had in mind the NDPD test. The sentence describing the lack of standardisation and low sensitivity is an echo of the attempt to measure temperature criticised by the Royal College of Physicians in 1993 and Lawson and others in 2002. If the reference to digital pallor was intended to include tests such as the NDPD test then it seems to me that at its highest this entry reports only the incidence of such testing. It does not provide or purport to provide support for it.
The second reference is at page 311 of the current edition of Hunter’s Diseases of Occupation. The authors make reference to Doppler studies to check patency of blood vessels and blood pressure ratios in the peripheral vessels and the measurement of pulses and finger systolic pressure, and continues:
“Cold air or water provocation tests (immersion of the digits in air or water for 2-10 minutes at 5-15 degrees Celsius with recording of skin temperature) to note any reactive hyperaemia while immersed, and delay in recovery afterwards. The cold stressed tests are used to verify that vasospasm occurs on cold exposure, and the severity grade may be determined from the results.”
It is plain from the text that reference is made not to the NDPD test but to the more sophisticated temperature testing itself now disapproved by Lawson and others.
Dr Reed’s third reference was to a publication of the 1980s called Occupational Medicine – Principles and Practical Applications, from which she extracts the quotation “Cold provocation tests as one of the objective methods of testing”. The publication appears no longer to be in print. It has not been produced. Professor Welsh has never heard of it. It does not identify which cold provocation tests are being referred to and does nothing to support the NDPD.
Finally, Dr Reed’s researches have revealed an abstract of a paper by E. Hrncir in 2000 in which it is said that diagnosis can be confirmed by “case history and evidence of white fingers during the cold water test”.
The paper is published in Czech and has not been translated. I am told nothing about the source or the research on which it is based. I cannot imagine that the Secretary of State would seek to support the continued endorsement of the NDPD test from an incomplete and unresearched source and I do not believe Mr Moffett places significant reliance upon it.
In summary, no medical literature has been produced to support the averment made in the NDPD, nor to support or explain the view that it might be a useful diagnostic tool in certain cases.
I next examine the other materials which it is said serve to qualify and explain the appropriate use of the NDPD test.
Medical Advisors seeking to join the Secretary of State's panel of MAs attend a short course of training. They are provided with a pre-course reading pack produced by Sema UK Ltd, a private sector medical services company. Dr Reed does not point to any particular section as illuminating the worth of the NDPD test and I have found none. What it does is to introduce the medical practitioner to benefit claims in general and the use of the form submitted to the Decision Maker. Section 1 of the reading pack under the title Sources draws the trainee's attention to the “Industrial Injuries Handbook for Medical Advisors” (the "official handbook for Medical Advisors") and to “Notes on the Diagnosis of Prescribed Diseases” (the “official guide to MAs on important features on each Disease, excluding A10 and the Respiratory Diseases”). Copies of both publications are made available to the trainee.
The Industrial Injuries Scheme Benefits Participants Pack contains no reference to the NDPD test. It familiarises the trainee with various aspects of the benefit claim system including describing exercises on the principles of diagnosis of different forms of injury and disability. It gives examples of forms which the MAs should complete. MAs may be supplied with a report prepared on behalf of the claimant to support his claim for damages against the Department of Trade and Industry. Since the format of those reports has been agreed between the claimants and DTI the reports will be in common form. MAs are provided with some guidance upon the interpretation of those reports. The point is made that a diagnosis of HAVS in such a report does not amount to a diagnosis of PDA11. The Participant’s Pack explains the use of vibrotactile threshold, thermal aesthesiometry and cold provocation tests performed in such cases. None of these is the test to which NDPD refers.
The Industrial Injuries Handbook for Medical Advisors explains the working of the benefits system, the role of MAs, the procedure for conducting examination and interview, and gives an introduction to prescribed industrial diseases. It does not make reference to the diagnosis of PDA11 in particular but does extract its statutory definition. It does not refer to the NDPD test but does at Part 6.4 draw the reader’s attention to the NDPD.
The Medical Assessment Framework was published in July 2001. Dr Reed was the principal author and editor of the Framework. Mr Moffett relies in particular upon the following passages:
“503. The onset of Raynaud’s Disease and Raynaud’s Phenomenon is usually gradual over a number of years, with attacks being rare and in winter only. Usually the fingers are affected, (but it can affect the toes and, more rarely, the nose, ears, cheeks and chin), beginning with tingling and/or numbness in the tips of the fingers. Later in the progression of the disorder there is well-demarcated blanching on exposure to intense cold, at first in the tips of the fingers, but over time this blanching progresses to affect more and more of the finger, and to occur throughout the year, in that it can occur on colder summer days
504. If the cause of the disorder is vibration the disorder will not progress if exposure to vibration ceases. With continued exposure to vibration the disorder may slowly worsen.
505. The colour changes are characteristic. The blanching is an intense whiteness with a well-defined demarcation. The blanching may last a few minutes or last up to an hour or two. Sometimes immersion in warm water speeds up recovery. On recovery the fingers may become cyanotic (i.e. turn a greyish-blue colour) or become hyperaemic (i.e. very red in colour). Blanching is not just a paleness, it is an intense whitening. In severe cases, with the passage of time, there may be trophic changes leading to gangrene of the tips of the fingers.
506. As the symptoms are intermittent, and only occur in cold conditions, it is rare for the clinician to witness an attack. Thus, in a specific case, it is important not only to try to have an accurate description of the symptoms, but also to establish an accurate diagnosis and that the cause is occupational in origin, and not due to another cause.
507……..
508. There is no simple, reliable test for Raynaud’s Phenomenon, and much of the diagnosis depends on the history and observations during the interview. Loss of sensation, which can be a feature of Raynaud’s Phenomenon, such as can be identified by simple tests such as the response to pinprick, cotton wool etc. may not necessarily be disabling, and rely on the patient’s responses, and are therefore not very reliable. On the other hand observation of manual dexterity is relatively easy to test formally, and verify informally through observation during the interview, pre and post-examination etc.
509. Because it is rare for the clinician to see the colour changes, and the tests which have been developed are not very reliable (having many false positives and false negative results), the diagnosis of the disorder and its cause are mainly derived from the history from the patient. In cases seeking compensation (e.g. in the civil courts or under the Industrial Injuries Scheme) it is particularly important to check the patient’s history closely. The signs are easily learned, and there has been evidence of “coaching” to ensure the criteria for diagnosis and causation are fulfilled.”
There is an obvious similarity between paragraph 509 and advice received from IIAC in respect of temperature measurement after cold water provocation. However, the reader receives no guidance upon the NDPD test in particular. He is not told that a negative CWPT result should never be used to support an unfavourable diagnosis.
In July 2002 a memorandum drafted by Dr Reed was circulated to all MAs from the office of the Chief Medical Advisor, entitled “Diagnosis and Assessment of PDA11”. Some of the paragraphs which I have extracted from the Framework were repeated. At section 4 paragraph 4 the memorandum deals with the examination. It reads as follows:
“1. The examination should involve both informal observations throughout the interview and a formal clinical assessment. (It is very rare for the blanching to be witnessed at examination, even on “objective” testing – see para 4.4.4).
2. Informal observation of the ability to hold a pen, unfasten and fasten buttons etc. should be made throughout the proceedings, and commented upon in the clinical findings.
3. The formal examination should involve formal testing of fine manipulatory skills... and to note any discrepancy between the formal testing and the informal observations; formal tests for sensation, noting if these correlate with the nerve distribution; tests for thoracic outlet syndrome, e.g. presence of a cervical rib. Tests should be performed to eliminate an alternative diagnosis, e.g. carpal tunnel syndrome, tenosynovitis etc.
4. “Objective” tests have been developed, and are used in civil claims. However these are often unreliable, having many false positives and false negatives, and, in several instances are not truly objective as responses can be learned. At best they are diagnostic tools, to be considered along with the history and results of formal and informal observations. As they take a considerable length of time and require a controlled environment, they are not considered appropriate for use in IISB, where the extent of disablement is not established by their use.”
Nowhere in the memorandum is the Secretary of State's view of a negative NDPD test explained. What the memorandum does do is discourage the use of the range of more sophisticated tests, themselves of doubtful value, adopted for civil claims. The reference in the NDPD to the cold water test is, in my view, untouched.
Having explained the purpose behind the implicit retention of the NDPD cold water test as a desire to provide inarticulate claimants with an opportunity to demonstrate the presence of blanching, Mr Moffett proceeded to justify that approach by reference to Professor Welsh’s reply, in his second statement, to Dr Reed’s paragraph 23. Professor Welsh appears to acknowledge that a positive result from an NDPD test does confirm that the patient is affected by Raynaud’s Phenomenon. At first sight this appears to be a change of Professor Welsh’s position. Having said that the test was useless because it produced false positive and false negative results he appeared to be accepting that a positive result was diagnostic. It may be that this was a change of position, or that his earlier opinion was confined to an examination of PDA11 symptoms in particular rather than vibration white finger in general. Alternatively, he may only have been acknowledging Dr Reed’s view. I am not in a position to reach a firm conclusion. Professor Welsh went on to reaffirm that a positive result did not establish that the patient suffered PDA11 or that the condition was caused by exposure to hand-transmitted vibration. If this was a change of position (and I remind myself the burden is on the Claimant) then it would appear that Professor Welsh's position is now identical to that of the Secretary of State. He too, on the above assumption, concludes that a negative result can never support an unfavourable diagnosis, but a positive reaction does establish the presence of Raynaud's phenomenon. With the literature and written guidance available to MAs in mind, I return to the question whether the words used in the NDPD (see paragraph 10 above) do express the guidance the Secretary of State intends MAs to receive.
What does the word “severer” mean in context? It is common ground that PDA11 is a severe form of the condition vibration white finger. I have already extracted from the written material the Secretary of State's guidance upon the development of the condition. Mr Moffett submits that the word "severer" describes the greater area of the fingers affected (the vascular consequences of the condition) rather than the quality of sensations produced (the neurological consequences of the condition) because PDA11 criteria are entirely vascular in nature. I agree with him. Mr Moffett's submission is entirely consistent with the use of the same word in IIAC's Report submitted to the Secretary of State in September 1981 (see paragraph 31 above).
As written, the Note inevitably, in my view, leads the reader to the impression that a cold water test is at the least a diagnostic tool for the condition described by PDA11. I accept that properly read, the Note does not inform the MA that it is a diagnostic test , but there is a clear danger that it might be so understood if the MA was not also informed that a negative result cannot provide evidence that Raynaud’s Phenomenon is not present. Neither the Note nor the additional material makes explicit the Secretary of State's advice to that effect. The danger is that without an explicit rider, the distinction between the use of cold water provocation as a diagnostic tool for the assistance of the claimant on the one hand, and a diagnostic test to negative the presence of Raynaud’s Phenomenon on the other, will be blurred.
While I agree with Mr Moffett’s submission that the Notes do not say that CWPT is diagnostic, only that it may be, nor that a negative result is significant, nor that the MA should use it, it is in my view plain that the MA is encouraged to follow the guidance provided by NDPD, including its reference to the test. As I have already observed the form which the MA is required to complete tells the MA to “See Notes on the Diagnosis of Prescribed Diseases”.
I accept Mr Moffett’s submission that the Notes are not intended for the guidance of those without training or experience. Nevertheless it is clear from the evidence that specialist experience in the diagnosis of vibration white finger is variable. It is Mr Davies’ experience that the CWPT is almost invariably used by the MA whatever the quality of the history taken. If the guidance was being applied as intended, it is difficult to see why this should be so. Whenever a satisfactory history is taken a cold water test should not be required.
Mr Moffett submits that the 33 cases extracted by the Claimant do not establish that MAs are misinterpreting or misapplying the NDPD, or that there is a significant risk that they are so doing. He accepts that I should consider whether the only reasonable interpretation of the evidence is that there exists a real or substantial risk that MAs are using the CWPT for a purpose which betrays a misunderstanding of the Secretary of State's intent; if so, it would not be rational to leave that situation uncorrected. I remind myself that the Secretary of State's intention is that MAs should treat the test only as an opportunity for the claimant to demonstrate blanching; a negative result should be treated as of no diagnostic significance. I also remind myself that the cases I am examining are only those taken to appeal. I recall that the Claimant is not suggesting that these cases were wrongly decided, only that the MAs were misinterpreting the function of the CWPT.
In all but one case the test was administered. The exceptional case concerned a Claimant with severe arthritis. It is believed that the test was not conducted on grounds related to his general physical condition.
The 32 cases produced a total of 52 cold water provocation tests. The reason is that in some cases the test was conducted by the MA, also by the adjudicating medical authority (AMA) and by the medically qualified member of the Tribunal. The former practice of referring a dissatisfied claimant to the AMA before appeal has since ceased. In 38 of the 52 cases a negative result was recorded. Fifteen different doctors performed the tests at five separate test centres.
I shall not make specific reference to each case, only to those in which significant comments upon the result of the CWPT appear to have been made by the MA. I shall refer only to case numbers in the order in which they are filed in bundle 3. I shall not identify the claimants by name.
Case 1
69. The AMA noted, “There is no blanching of any digit or part thereof even after immersion in cold water”. Mr Starmer submits the AMA can only have used the word “even” if that word was intended to express a significance in the result of immersion in cold water. The AMA thought that if Raynaud's phenomenon was present cold water immersion would demonstrate it. Mr Moffett points out that the AMA nevertheless diagnosed vibration white finger short of PDA11 because in his statement to the AMA the claimant said, “The tips of my fingers tend to go white at times”. A test was carried out at the tribunal and the response was described as exaggerated. I accept both submissions. I can imagine no reason why the AMA expressed himself as he did unless in his own mind the test result provided some confirmation of his clinical impression. On the other hand, the claimant could not have succeeded in his claim by reason of his inconsistent and unsatisfactory history. Taken at its highest blanching of the tips of the fingers would not qualify for an award of benefit. In my judgment, however, the case demonstrates a medical examiner giving emphasis to a negative result from a CWPT.
Case 2
The claimant’s history included the description “If my fingers get cold, especially in winter, they become mottled and tingle, and I cannot pick up small objects or do up laces”.
It is not the practice of the MA, I am informed, to seek further elucidation of the history given by the claimant. There is no record in the note of the claimant being asked to describe what he meant by the word “mottled” and no further description appears. The mottled colouring described by the claimant could have been the characteristic white/blue of blanching. The MA carried out a cold water test which “Produced very minor physiological mottling only”.
Nevertheless, the MA completed a diagram in which he depicted that, from the history given, all parts of all four fingers in each hand were affected by blanching. This suggests that either further explanation was provided by the claimant but not recorded in the form, or the MA so interpreted the word “mottled” from the history. The finding under Remarks was “While I accept that this gentleman gives a history compatible with vibration white finger, it is not of sufficient severity to satisfy the criteria for PDA11”.
Mr Starmer suggests the MA’s opinion must have been reached upon a judgment of the appearance of the fingers following immersion. The MA, having thought that he had received a history of blanching from the claimant, then compared that history with the visual appearance of the fingers on immersion.
It is impossible, in my view, to ignore the coincidence between the very minor physiological mottling described in Form B1 161C and the finding of inadequate severity to satisfy the criteria for PDA11. It is demonstrated there is a real possibility the MA granted to the test result a significance it is agreed it should not have received. Even if the MA did not treat the test as literally diagnostic, it seems he used it as a tool to support his clinical impression.
The AMA performed the test and recorded “There is no blanching of any digit even after immersion in cold water”. The author was the same AMA as in case 1. A similar conclusion is inevitable.
Case 3
The claimant described a bluish colour in his fingers. I recall the reference to the description of blanching at Chapter 1 paragraph 2 of the Report to the Royal College of Physicians and paragraph 505 of the Medical Assessment Framework. A CWPT was carried out which produced no blanching in the opinion of the MA. He diagnosed paraesthesia of the hands, arthritis and spinal injury. He based his opinion on the history and examination. To the AMA the claimant described his symptoms as “patchy whitening”. The AMA carried out an examination and observed, “Immersion of hands in cold water produced no true blanching”. It is possible that the use of the word “true” is of no significance. However, the AMA accepted that the claimant suffered from HAVS. He found the condition was not the natural vasospasm characteristic of PDA11. In my view, this case demonstrates a real possibility that the MA and AMA judged the history given against the finding on cold water provocation.
Case 5
The claimant underwent hand immersion which resulted in “physiological mottling but no blanching”. The MA made a diagnosis of osteoarthritis, cervical spondylitis and early Dupuytren’s contraction in the right palm. He said the history and clinical findings did not support a diagnosis of PDA11, this, despite the claimant’s description of his fingers going bluey white at any time. Mr Starmer asks why the MA should have used emphasis that “ no blanching” was demonstrated on test if he understood that a negative result was of no significance in diagnosis. I agree. I also agree with Mr Moffett to the extent that it is just possible an explanation other than misunderstanding of the purpose of the test could be given. The natural inference, however, is that the MA was treating the test as to some extent diagnostic when it was not.
Case 7
The MA noted, “Immersion of both hands in cold water failed to elicit blanching”. Mr Starmer wonders why the MA expressed himself in that way unless he regarded the test as a means of eliciting the symptom if it existed. There were other reasons for making the unfavourable diagnosis but the possibility the test was influential cannot, I agree, be ignored.
Before the bundle of case reports became available, Dr Reed, using information contained in Mr Davies’ witness statement, searched the benefit files and found several. Unfortunately, she was unable to recover files for cases 1-3, 5, 13 and 24. She was however able to recover the file in respect of case 7. Dr Reed observes that on examination the claimant exhibited responses to pinprick symptomatic only of severe trauma, for example, severance of the spinal cord at the neck. I presume she is referring to the MA’s description of “glove” distribution. However the full note is “Sensation to pinprick probably diminished both hands but it is of a “glove” distribution”.
The MA did not refer to exaggeration of symptoms in his Remarks. He said only that “History is a little vague and examination does not suggest neurovascular damage affecting the middle or proximal phalanges”. I am not concerned to judge whether the claim was wrongly refused but whether there is evidence that the MA used the cold water test for negative diagnostic purposes. I have already indicated my view that there are signs that he did.
Case 13
The claimant gave no history of blanching to the MA but only of tingling in the fingers to the tips. The MA reported that the immersion test produced “No significant blanching”, as if degrees of blanching might be relevant to diagnosis. In his Remarks the MA expressed himself as follows. “Clinical history and examination do not meet the precise criteria for making a diagnosis of PDA11 vibration white finger”. I appreciate the need to be careful about the use of the words “no significant”. I do not know whether the MA intended those words to mean that blanching was present but not to the extent which PDA11 required, or that the colour change did not amount to blanching. I therefore confine myself to the view that this is a case in which a risk is demonstrated that the MA was using the test to assist him to make a negative diagnosis, a purpose which the Secretary of State did not intend. What is suggested by his entry is a comparison between the appearance found after test against the criteria set for PDA11.
Case 15
The MA recorded the existence of “paleness but no whitening” after immersion in cold water. In his Remarks he said, “The distribution of blanching and history do not suggest a diagnosis of PDA11”. Since the distribution was described in the history, the Remarks appear to be based not on the test but on the history. The result of the test did not refer to distribution, only to appearance. While there must be a suspicion the test was applied with a view to making a negative diagnosis, I do not consider that the form in which the MA’s opinion was expressed supports an assertion that the test was wrongly applied. On appeal, as Dr Reed points out, the tribunal carried out a CWPT but allowed the appeal after a negative test on the basis of the history.
Case 19
The history taking did not elicit a history of blanching but the MA recorded that following immersion of the hands in cold water there was “mottling of palms and two digits”. He completed a diagram in which the mottling was marked and described as areas affected by blanching. His conclusion was that his clinical findings did not support the diagnosis of PDA11. This suggests to me that the MA relied upon the distribution of mottling to deny qualification for PDA11. If that is what he did, both sides accept that this is not an approach intended by the NDPD. Dr Reed's conclusion was that the MA described the discolouration produced upon immersion as “mottling”. Mottling, Dr Reed says, is not blanching. The fact is, however, that in his diagram the MA did describe the mottling as blanching. It is not possible for the Secretary of State, at this stage, to second-guess the MA’s plain use of the form. Furthermore, at least one tribunal Chairman (case 28) after CWPT, recorded the tribunal’s finding as “mottling of all four of his fingers amounting to digital blanching”.
Case 21
The claimant gave no history of blanching. On immersion the MA noted the fingers “bluish and that’s all”. His opinion was that the criteria had not been met. The Claimant presented his own medical report to the Tribunal in which a diagrammatic representation of the blanching was submitted. The appeal was allowed and a 6% disability accepted. Mr Starmer suggests that the immersion test was used for diagnosis. In my view, that is doubtful. The MA's words may signify no more than that the test was used as an opportunity to demonstrate blanching notwithstanding its omission from the history. If (which is speculative) the MA was wrong to reject the bluish colour as blanching, that is an error which is not material to the issue I am considering. I agree with Dr Reed's conclusion that this case does not provide evidence that the CWPT was used to support a negative diagnosis.
Case 22
The claimant described how his fingers went white all over. In his Remarks the MA described, “Physiological mottling on cold water immersion but no focal blanching. Client confirms that his hands go patchy white. No true blanching when asked directly at test. Criteria for PDA11 not met”. The MA was, in my view, undoubtedly using the test for negative diagnostic purposes. In her consideration of case 22 Dr Reed rehearses the findings but does not attempt to deal with the MA's comparison between the symptoms described by the claimant and the result of the immersion. I acknowledge and appreciate that the MA purported to rely upon the claimant’s own description during the test but he did so in the context of the test result itself. At least in part, he used what he regarded as a negative test result to exclude diagnosis.
Case 24
The MA elicited no history of blanching and noted that none occurred on cold water testing. Blanching was demonstrated at a test performed on appeal. Although Mr Starmer expresses concern at the opinion of the MA that, “the whitening he demonstrated is physiological only” I do not consider that this case demonstrates a use of the test beyond that intended by the Secretary of State. It may demonstrate only that the result was misinterpreted, which is an issue I am not required to consider.
Case 25
The tribunal accepted the claimant’s history notwithstanding the absence of a positive cold water test. Mr Starmer relies upon the view expressed by the tribunal that a negative cold provocation test is not conclusive. He compares that expression of view unfavourably with the absence of any such expression in Forms B1 161C completed by MAs. It tends to confirm Mr Davies’ opinion that while tribunals are aware of the limitation of the test, MAs may not be, at least until they are corrected by an appeal whose reasons are notified to them. I do not consider that the absence of the tribunal’s reservation from the Forms establishes the case that the MAs did not understand the intention behind the NDPD. I would not expect the MAs to express such a view unless making a diagnosis, as did the tribunal, on clinical history alone, and I do not have such a case before me. As to Mr Davies’ opinion, I can draw no support for his belief from the positive finding of the tribunal. If such a conclusion is to be justified, it can only be justified in the present case upon the expression of findings made by the MAs in each case.
Case 28
This case is drawn to my attention because, despite a note by the MA that the claimant did not suffer blanching throughout the year, the tribunal allowed the appeal when cold water immersion induced blanching of four fingers of each hand. Mr Starmer submits it demonstrates the importance attached to the test. In my judgment what it demonstrates is the performance of the test for the purpose for which the Secretary of State intends, namely that a positive result may be used to make a diagnosis favourable to the claimant. It does not demonstrate, however, a misinterpretation of the purpose of the test by the MA and I do not consider it significant to the resolution of the issues I am considering.
Case 29
The claimant described how his fingers went white to the knuckles. On immersion, physiological mottling only was demonstrated. The MA concluded that clinical history and physical examination did not support the precise diagnostic features needed to make a diagnosis of PDA11. Dr Reed remarks that despite an inconclusive test on appeal in case 29 (some blanching, some mottling) the tribunal made an award based on the history. She does not however deal with the way in which the MA chose to express himself in Form B1 161C. She simply refers to the fact that the conclusion was based upon history and examination.
The form of words used by the MA was inappropriate to describe merely a failure in the history to describe a distribution of blanching which matched the criteria of PDA11. The tribunal clearly accepted the history as adequate to support an award. In my view, this case does provide evidence that the MA was making a judgment about the appearance of colour change for the purpose of diagnosis. His description in its juxtaposition with a history, satisfactory to the tribunal, causes concern.
Dr Reed expresses the view that in many of these cases the history justified the conclusion that the complainant did not meet the criteria for PDA11, quite apart from any reference to the CWPT. In my opinion, having read the papers available in all 33 cases, that view carries weight. However, the accuracy of the diagnosis is not in question. The question with which the Secretary of State was concerned is whether there was evidence that MAs were using the test for a purpose for which it was not intended. That question required close examination of the words used by the MAs to express their opinion. Dr Reed has not conducted that exercise. I have only Mr Moffett's submissions in a limited number of cases.
The conclusion I have reached is that there is abundant evidence of a risk that some MAs are using the test to support a negative diagnosis. They may be using the test as a diagnostic tool as intended by the Secretary of State, but not merely as a chance for the claimant to demonstrate blanching in the absence of a clear history. In my judgment, the risk is that they are using the test as a diagnostic tool to negative a PDA11 diagnosis. I would express the risk as at least significant. It cannot be ignored and it seems to me to be a risk of such substance that the Secretary of State was bound to consider it when making his decision whether amendment of his NDPD was required. With respect to Dr Reed, her examination of those cases whose files she was able to retrieve concentrated on the wrong question. She was searching for signs that the application of a negative test may have led to an erroneous diagnosis, rather than the question whether it revealed MAs may have been using the test for a purpose not intended by the Department. The problem is, in my view, likely to be compounded if the DMs understand that an MA will never use a negative result of the CWPT to decline diagnosis of vibration white finger.
Mr Moffett seeks to deflect the force of Mr Starmer’s submissions upon the cases presented in evidence by reminding me of Dr Reed's evidence that during training MAs are told that they should not use a CWPT to make a negative diagnosis. I do not know for how long this has been the practice. There will be many MAs making these examinations whose training took place several years ago. It seems to me that whatever the training may be and however long it has been the practice to give the warning, the Secretary of State is bound to consider what is happening on the ground. In the face of experience, it seems to me not reasonable or rational to decline to put into writing the very diagnostic policy which the Department wishes to see followed by MAs.
This is not a case in which the Secretary of State has no policy at all or his policy is to defer to the independent judgment of the MA upon the worth of CWPT. It is his own judgment, on advice, that a negative result should not be used to support a conclusion that a claimant does not suffer from PDA11, and that is what he wishes the MA to understand. In these circumstances, it seems to me there is no rational basis for a decision not to make that policy explicit in the Note on Diagnosis itself.
In a further attempt to support the continuing use of the CWPT, Mr Moffett observes that, in a large proportion of the cases exhibited, appeals are accompanied by a copy of a report from Mr Tudor Davies, on behalf of the Claimant. It is apparent that in the great majority of cases upon which Mr Tudor Davies expressed his opinion, he carried out a CWPT. Mr Moffett seeks to derive from this, support for the use of the CWPT as a diagnostic tool.
First, as I understand the Claimant’s case, it is submitted that either the test should not be used at all or, if it is, it should be accompanied by the clear health warning which the Secretary of State concedes is intended.
Second, Mr Davies has not been invited to submit evidence of his own but on 20 September 1999 he wrote to Dr Aylward at the Department of Social Security to express his views in this way:
“Following our meeting at the Hilton Hotel last Thursday and Friday, I have outlined some of my concerns in relation to PDA11.
1. The condition is poorly prescribed. The present narrow criteria rely on an anecdotal account of blanching (this feature cannot be reliably provoked by cold immersion in the examination)....
2. The medical examiners in MATs (and I include myself in this criticism) cannot reliably diagnose or rule out the condition in Claimants. This leads to confusion and distress in many circumstances. Most of the examining doctors have only sketchiest understanding of this industrial injury and to award disablement benefit in this way is unacceptable.”
Third, Mr Davies was preparing reports for individuals he knew, if they were making benefit claims, would be subjected by others to cold provocation tests. In those circumstances he would have been failing in his duty if he did not perform his own test, even if he regarded it as unreliable. More importantly, he was doing so from the firm standpoint revealed in his letter. There is no suggestion that Mr Davies was using the test to make a negative diagnosis.
99. Mr Moffett reminds me that on 9 August 2002 Mr Stuart McLachlan, a Deputy Social Security Commissioner allowed an appeal by a claimant (outside the South Wales area) from the tribunal on the grounds of an error of law. The Commissioner included the further observation that in his grounds the claimant had complained of a refusal by the tribunal to permit him to perform the CWPT. The Commissioner expressed the view that while the tribunal had no obligation to carry out the physical examination it might well be in breach of its inquisitorial function if it failed to do so in response to a request from a claimant. This decision supports Mr Moffett's submission that the continuing use of the CWPT to assist claimants whose claims might otherwise fail is not only rational but generous in the light of the view expressed that false positives arise. I do not need persuading that a policy designed to assist a claimant to establish a condition as elusive as this is a rational one. As the argument developed before me, however, it became clear that it was not the administration of the test which was challenged but the purpose to which it was put by those responsible for administering it.
100. Mr Moffett cautions me that I should consider a claim which attacks a public non-statutory document containing no error of law with the utmost circumspection. My attention was drawn to a passage in the speech of Lord Bridge in Gillick v West Norfolk & Wisbech Area Health Authority & Department of Health & Social Security [1986] 1 AC 112 commencing at page 193G. Lord Bridge said:
“We must now say that if a government department, in a field of administration in which it exercises responsibility, promulgates in a public document, albeit non-statutory in form, advice which is erroneous in law, then the court, in proceedings in appropriate form commenced by an applicant or plaintiff who possesses the necessary locus standi , has jurisdiction to correct the error of law by an appropriate declaration. Such an extended jurisdiction is no doubt a salutary and indeed a necessary one in certain circumstances, as the Royal College of Nursing case [1981] AC 800 itself well illustrates. But the occasions of departmental non-statutory publication raising, as in that case, a clearly defined issue of law unclouded by political, social or moral overtones, will be rare. In cases where any proposition of law implicit in a departmental advisory document is interwoven with questions of social and ethical controversy, the court should, in my opinion, exercise its jurisdiction with the utmost restraint, confine itself to decide whether the proposition of law is erroneous and avoid either expressing ex cathedra opinions in areas of social and ethical controversy in which it has no claim to speak with authority or proffering answers to hypothetical questions of law which do not strictly arise for decision.”
101. The facts in Gillick are well known. The House of Lords was considering the legality of departmental guidance upon the giving of contraceptive advice to children under 16. Their Lordships found that if medical practitioners, following the Department’s memorandum on guidance in family planning, gave contraceptive advice to girls under the age of 16, they would not be committing a criminal offence nor, without more, infringing parents’ rights. It followed the guidance was lawful. The House was not dealing with an assertion of Wednesbury unreasonableness. I accept that if the issue with which I am dealing were simply a matter of judgment of policy about which there was more than one rational approach I could not and would not interfere.
102. Secondly, Mr Moffett invited me to consider the decision of the Court of Appeal in R v Cambridge Health Authority ex parte B [1995] 1WLR 898. The decision the Court was considering was a medical one made by doctors having the care of a little girl suffering from leukaemia. At page 905 A-B Sir Thomas Bingham MR said:
“The second general comment which should be made is that the courts are not, contrary to what is sometimes believed, arbiters as to the merits of cases of this kind. Were we to express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgment, then we should be straying far from the sphere which under our constitution is accorded to us. We have one function only, which is to rule upon the lawfulness of decisions. That is a function to which we should strictly confine ourselves.”
As I have indicated, the Court was there concerned with an attempt to undermine medical judgment which required a weighing of the possible effects of treatment of an experimental nature upon the patient against limited resources available to the provider. That was not a matter for the Court. It is emphasised by both parties before me that I am not so concerned. The purpose of the challenge to the Secretary of State's decision is not to undermine medical judgment or to seek to overturn the lawful decisions of tribunals but to attempt to bring the Secretary of State's written guide to diagnosis into line with the avowed aim of that advice.
Finally, I am invited by Mr Moffett to conclude that the Secretary of State is entitled to maintain the status quo pending review of PDA11 by the Industrial Injuries Advisory Council. Review was sought by the Secretary of State in a letter dated 15 March 2002 in the following terms:
“The Department for Work & Pensions requests that the Council undertake a review of the current prescription for PDA11.
Recent Capital Commissioners decisions indicate that both the neurological and vascular disabilities should be assessed when deciding the level of disablement. This differs from both the intention of the legislation and its present wording.
IIAC last reviewed the prescription in 1995. On that occasion the Department did not implement the recommendations because the cost of introducing expensive tests was disproportionate to the number of cases that would benefit. However currently medical advisors and decision makers are assessing cases in the light of the new case law without the need for specialised tests.
In addition scientific evidence relating to PDA11 and HAVS will have changed since the last IIAC report in 1995.
Once IIAC’s review is completed the Department will legislate to regularise the position.”
105. Mr Starmer observes that the request for review is a wide ranging one. No request is made specifically for reconsideration of NDPD, nor for an evaluation of the NDPD cold water test. The review is likely to take until 2004 to complete and it cannot be guaranteed that the recommendations will deal with the particular issues (a) whether the test should be dropped as a diagnostic tool altogether and (b) whether the test should be issued with an explicit health warning attached to the NDPD.
106. Had there been insufficient evidence to demonstrate that MAs were, at least in the South Wales area, misinterpreting the Notes on Diagnosis, I should have been reluctant to grant discretionary relief, notwithstanding my conclusion about the probable effect of the reference to "severer" conditions in the NDPD. At first sight the submission made on behalf of the Secretary of State that medical practitioners are quite capable of interpreting the policy correctly without further assistance from the Department seemed to me to be a powerful one. However, I am faced with unequivocal evidence of a significant risk that claimants are being invited to undertake a test for purposes outside the Department’s policy. Since the Decision Maker is bound to have regard to the diagnosis made by the Medical Advisor, and since that opinion appears in some cases to be influenced by a negative CWPT, I am driven to the view that immediate action is required.
I decline to pronounce on the issue whether the NDPD cold water provocation test is obsolete. That is a matter for medical and departmental review and not, in my view, for me. The Claimant, in the light of evidence submitted and submissions made on behalf of the Secretary of State, does not invite me to go that far. What is sought is an order requiring the Defendant to modify and revise existing guidance or to issue fresh guidance on the use of the cold water provocation test.
In my judgment, the decision not to issue an amendment to the Notes on Diagnosis was founded upon a failure to take account of a material consideration, namely that on proper analysis the evidence established that some MAs appeared to be placing reliance upon the CWPT as a negative diagnostic tool. As I have indicated, I am driven to the conclusion that examination of the files took place with an eye to the wrong question. The decision was accordingly flawed and irrational. I see force in Mr Starmer’s proposed amendment to the Note as follows:
“In severer cases blanching may be induced by asking the patient to immerse his or hands in cold water for a few minutes but a negative result should be treated as of no diagnostic value ”
or words to like effect.
It is not, however, for me to instruct the Secretary of State how to express his advice. All that is required between now and the completion of the review by IIAC is a correction of the existing entry to reflect the intention behind the words used. For these reasons I propose to allow the claim and make an order in the terms of paragraph 1, section 6 of the Claim Form.