What legal judgements do you mean here?
Apologies for this long post, but your question is a good one.
The situations outlined below all pertain either to HCP’s right to diagnose, investigate and treat ME/CFS as a primary biological illness and/or the patients and their main carers right to choose that clinical approach and gain access and entitlement to:
· Biological medicine both investigative and treatment: Examples of success at law here include the successful defending in legal process by HCP’s of their ‘Fitness to Practice’ licence against charges by the BPS that their biological view of ME/CFS was false and harmful to patients. Other examples are the very many recorded failures at law by BPS informed authorities to remove children from their parents care just because the parents chose the biological explanation and clinical approach to ME/CFS. The BPS false illness beliefs attribution could not be explained/justified at law in either of these scenarios.
In our own experience we also found that referencing these judgements and the law which supported those judgements was often enough to get access to previously denied medical care or social and welfare support for my wife and myself as her carer. We also had a child diagnosed with ME/CFS and our knowledge of those failed BPS informed child protection actions, the law on which the judgements were based, helped us navigate that particular BPS minefield successfully and not have to actually go to law to protect ourselves and our child’s rights. We faced a similar situation at the end of my Wife’s life with regard to Adult Safety concerns and again our demonstration of our understanding of the law and the failure of the BPS psychological diagnosis of ME/CFS to explain itself helped us navigate that particular difficulty.
· Social and Welfare support including State or other insurance backed financial support for being unable to work and for help with the extra costs of being disabled: Examples of legal success here are ourselves, the at least hundreds and more probably many thousands of other ME/CFS patients and even greater numbers of others who have successfully appealed refusal of State benefits on psychological BPS grounds for Invalidity/Sick Benefits/Disability Living Allowance/Mobility Allowance/Blue Badges etc. Entitlement to such benefits are based on law which set out the criteria, medical and otherwise upon which entitlement is based. Who gets these benefits is decided by non medical adjudication officers in accordance with requirements set out in the law. (In our case we had to take our case to the highest level a Social Security Commissioner but since then most now succeed at Tribunal Appeal.) The law requires that those giving a medical opinion must satisfy legal requirements for that medical opinion to be acceptable. I will discuss below the BPS failure to meet the acceptability requirement in more detail below as those legal requirements for medical opinion to explain itself at law is a common factor throughout all these situational scenarios. The important point here is that just like in ‘the consideration of risk’ with regard to ‘informed Consent’ it is not simply a matter of deciding which clinical judgement to accept but about the ‘reasonableness’ of that clinical judgement in respect to the individual patients' rights as set out in the legal statutes covering the situational scenario. The BPS spread their psychological (false disability belief attribution) to encompass many other long term illnesses and this also failed to stand up to legal scrutiny when challenged at law just as it fails in ME/CFS cases.
· HCP’s, Parents and carers rights to support those they care for with ME/CFS in the belief that the illness is physical and not a figment of the patients or their own imagination and also be provided with their own reasonable adjustments/social/welfare support: my primary example here is my own case, which concerns ‘the duty of care’ all HCP’s and those they advise like Employers, Insurers (State or Private) owe to the public and individuals. On advice from their Occupational Health Adviser my employer refused me ‘reasonable adjustments’ so as to help me cope with my caring duties for my wife who had severe, often very severe ME/CFS. Long story short, my health suffered substantially as a result. I got independent expert medical evidence that placed that failure of my health firmly at the door of my Employer’s refusal to make ‘reasonable adjustments to take account of my caring responsibilities with someone with severe ME/CFS’. At an Employment Tribunal my Employer accepted that Expert medical evidence that they had failed in their ‘duty of care’ towards me as a result of following their occupational health adviser’s personal unsubstantiated/unexplained BPS psychological view of ME/CFS, which conflicted with the advice given by my Wife’s own medical advisers on her ill health and care needs.
Some more words on the actual ‘facts’ in a legal sense which underpin all the above noted legal judgements against the BPS psychological diagnosis and treatment of ME/CFS.
Starting accepted Fact: Historically ME, CFS, PVFS etc) has been classified as a physical disease of the Nervous System in the WHO classification of disease since 1969. This classification was and is accepted by the UK Government and the Department of Health. The cardinal feature of the disease ‘effort intolerance’ leading to a prolonged worsening of all symptoms is well described in the medical and science literature by Ramsey amongst others. This feature and signs of biological irregularities in certain body systems, together with careful investigation for other identifiable causes including the exclusion of ‘psychological’ reasons for the clinical presentation in individual patients supported the diagnosis of it being a biological illness. Hence the WHO classification.
The law in various statutes including that pertaining to the award of sickness and other social security benefits require that patients must be given an explanation if that diagnosis of ME/CFS as a physical illness and its recognised cardinal feature of ‘effort intolerance’ is changed by another later medical authority.
The Kitchen Judgement confirmed this requirement setting two conditions to be met; the reasons and grounds on which the first ‘physical’ diagnosis fails and second the evidence relied upon to substantiate the new ‘psychological diagnosis of ME/CFS. We won our first case in the early 1990’s by referencing the Kitchen Judgement and the requirements it set out. The existing Social Security Act at that time also set out the same requirement that a changed diagnosis by a later medical authority should be explained to the patient/claimant.
The law also contains and sets out a test for deciding the level of impairment/disability necessary in order to legally qualify for the financial support offered.
The test for many different benefits is whether the patient can ‘safely sustainably and repeatedly’ undertake various physical activities necessary to be able either to be fit to work in the case of sickness benefits or look after their own personal needs in the case of Disability Living Allowance, PIP and Mobility Allowances.
All the legal successes referred to above found as a finding of ‘fact’ that the BPS psychological diagnosis of ME/CFS did not explain itself or why the previous physical attribution to the illness ME/CFS should be set aside. In addition, the Judgements implicitly found there was no reliable evidence to show that ‘effort intolerance’ was not a physical reality and that consequently ME/CFS patients met the qualifying criteria of being unable to ‘reliably, sustainably and safely’ undertake physical activities. They all implicitly reject the BPS assertion their recommended treatments of increasing activity are ‘safe’ for patients to undertake.
The later Montgomery Judgement further supports and expands on Kitchen and is in my view extremely important as it completely places the power as to which medical treatment a patient should undertake solely with the patient, because all treatments come with ‘risk’ and the acceptance of that risk can only be decided by the patient. The HCP has a legal duty to give full advice on all medical views, the associated risks and to respect the patients ‘informed consent’ choice. A failure to do so could constitute ‘Negligence’.
The BPS approach has been and is so far from obtaining individuals ‘informed consent’ as to be completely unsafe for patients in my view. The law in many situations as described above makes that conclusion also.
Information on legal successes against the BPS efforts to deny the biological reality of ME/CFS and the failure of their treatments have been reported over the years by many ME/CFS charitable and other organisations helping people with their claims for State benefits or in defence against child removal action.
Denial of State Benefits on BPS psychological grounds was also big news for a while in the UK about a decade ago. A senior Judge commented at the time that the DWP were losing so many cases at legal appeal that they should be fined for wasting the courts time. In his view they had no evidence to back up their refusals on the BPS medical grounds they applied. A substantial number of those successful appeals included ME/CFS cases. A little research online should draw it all out if you want to dig deeper.
I have over the years in various voluntary capacities, helped very many ME/CFS patients and their families get their entitlements originally refused on BPS medical advice by explaining the legal basis on which they could challenge that clinical view. You don’t have to prove ME/CFS is physical/biological that was done in the eyes of the law years ago. You have to show (at law if necessary) that the BPS medical view and treatments can’t/don’t explain themselves and are unsafe for you in the light of that pre existing physical/biological diagnosis of ME/CFS with its identification of ‘effort intolerance’ as the cardinal feature. This also applies to getting ‘reasonable adjustments’ in other settings because of other recognised ME/CFS intolerance features. This required getting medical advice to support that specific to each individual case. NG206 and Jonathan’s paper now medically and scientifically state and explain that unsafeness within and the inappropriateness of the BPS approach to ME/CFS explicitly and generically. Although only guidance to HCP’s they carry the weight of the law on ‘informed consent’ behind them and should prove useful tools for patients to use when choosing their medical care.
Where I and many others have been less successful, is in getting the GMC as the Medical Regulator to bring the BPS System of Medical Care into line with UK law governing their medical practice. They seem content to leave that job up to individuals as evidenced by the myriad of these little but very significant legal successes outlined in the scenarios described above.
Your own work does an excellent job in highlighting the inadequacies of the BPS system of science and medical care. Thank you for all your efforts, which help to empower patients in their choice of medical care for ME/CFS. The legal Judgements and processes outlined above also empower patients to make their own choices of acceptable to them medical care and in gaining access to other support services.